Mohinder Singh vs State Of H.P. & Others

Bipin Chander Negi, J

The petitioner had worked with respondents as daily wage worker with minimum 240 days with effect from 1997. The regularization of the petitioner was governed by the policy of 2006, wherein the cut off date was 31.03.2004. The petitioner having completed 8 years or more continuous service prior to 31.03.2004 was considered and accordingly granted regularization, as per policy from a prospective date i.e. 10.10.2007, as is evident from Annexure A­2.

The decision to grant benefit to individuals like the petitioner in terms of judgment passed by this Court, in CWP No. 2735 of 2010 titled Rakesh Kumar Vs. State of H.P. alongwith connected matters decided on 28.07.2010, was taken vide letter dated 08.06.2015 i.e. Annexure A­5. Subsequently, the respondents implemented the decision in Rakesh Kumar's case and as a consequence thereof, the date of regularization of the petitioner was changed to 01.01.2005, as is evident from Annexure R­3 dated 01.08.2015.

A perusal of Annexure R­III i.e. office order dated 01.08.2015, whereby the petitioner was regularized clearly depicts that the claim of arrears were restricted to three years from the date of filing of the claim in the Court. The restriction of claim of arrears is also evident from Annexures A­3 and A­4 i.e. letters dated 17.03.2015 and 19.03.2015, respectively.

Subsequently, vide letter dated 13.04.2017, respondents­State decided that individuals like the petitioner who had not filed any petition would only be entitled to notional benefits of fixing of pay on completion of 8 years of contract service with 240 days in each calendar year and on actual basis w.e.f. 08.06.2015 i.e. date of approval of the Government (Annexure A­5). Further vide Annexure A­7 i.e. letter dated 13.04.2017, it was decided that no arrears of three years are required to be given to an individual, who had not filed a petition earlier.

Based on the aforesaid, vide Annexure A­8, recovery was initiated against the present petitioner, vide order dated 01.02.2018, the recovery initiated in terms of Annexure A­8, had been stayed by the erstwhile H.P. State Administrative Tribunal.

In the aforesaid backdrop, the petitioner has filed the present petition against the decision of the respondents, vide letter dated 13.05.2017, not to grant arrears of pay, and order of recovery from the petitioner vide order dated 01.02.2018, seeking following substantive reliefs:­

“(i) That letter dated 13.04.2017, Annexure A­7 and office order dated 01.02.2018, Annexure A­8, may kindly be quashed and set­aside being illegal, arbitrary and discriminatory.

(ii) That the respondents may kindly be directed to pay the arrears to the applicants as per the judgment of Rakesh Kumar's case as paid to other similar situate employees.

(iii) That the respondents may kindly be directed to produce the entire record for the kind perusal of the Hon'ble Court.”

From a perusal of records, it is clearly evident that sole ground for non grant of benefits to the petitioner is based on the reason that the petitioner had not filed a case seeking the benefits of Rakesh Kumar's case stated supra. At the outset, it is made clear that no other ground is available to the State to defend its action as it is a well settled principle of law that reasons are not like wine which mature over a period of time. As has been held in AIR 1978, Supreme Court, 851 titled Mohinder Singh Gill and another Vs. The Chief Election Commissioner, New Delhi and others. Relevant extract is reproduced herein below:­

“8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise . Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by addition grounds later brought out. We may here draw attention to the observations of Bose J. In Gordhandas Bhanji (AIR 1952 SC 16) ( at. p.18):

“ Public orders publicly made, in exercise of a statutory authority can not be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.”

Orders are not like old wine becoming better as they grow older.”

A perusal of Rakesh Kumar's case stated supra reflects that the same is a decision, which touches upon a policy matter, scheme of regularization. Rakesh Kumar's case is a judgment in rem with intention to give benefits to all similarly situated persons, whether they approached the Court or not. The same casts an obligation upon the authorities to themselves extend the benefits thereof to all similarly situated persons. A perusal of Annexure A­5, letter dated 08.06.2015, reflects the respondents authorities of their own had also decided to extend the benefits of Rakesh Kumar's case to all.

In Rakesh Kumar's case, there is no direction of the Court to restrict the consequential benefits, including monetary benefits, for three years prior to filing of the petition. It has been observed in Rakesh Kumar's case that for delay in approaching the Court, the petitioner, at the most, can be denied interest on delayed payment, but shall not be denied arrears of wages and other financial benefits for which he is entitled, like others, from the date of regularization/ conferment of Work Charge status. Therefore, restriction of payment of consequential benefits for only three years prior to filing of the Writ Petition is not sustainable.

Even otherwise, when a particular set of employees is given relief by the Court, other identical situated persons need to be treated alike by extending that benefit, and not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India.

Plea of the respondents with respect to delay and laches is also not legally sustainable. The distinction between operation of delay and laches to judgments delivered in rem and in personam is lucidly captured in State of UP Vs. Arvind Kumar Shrivastva 2015 (8) SCC Page 347 followed in 2021 Vol. 13 SCC Page 225. Relevant extract wherein is being reproduced here­in­below:­

“22.1. The normal rule is that when a particular set of employees is given relief by the court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently.

22.2. However, this principle is subject to well­recognised exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence­sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim.

22.3. However, this exception may not apply in those cases where the judgment pronounced by the court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated persons. Such a situation can occur when the subject­matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K.C. Sharma v. Union of India, (1997) 6 SCC 721). On the other hand, if the judgment of the court was in personam holding that benefit of the said judgment shall accrue to the parties before the court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence.” (Emphasis supplied)

Present case is covered by Paras 22.1 and 22.3 of Arvind Kumar Shrivastva's case supra and, therefore, claim of the petitioner does not suffer either from delay and laches or acquiescence.

Where the Court has not restricted the benefits for specific period, any guidelines, instructions, circular etc issued by Department or executive decision of any other authority cannot restrict such benefit as it would amount to modification of order of Court by an authority having no jurisdiction to do so.

For the forgoing reasons, Annexure A­7 and Annexure A­8 are quashed.

The respondents authorities are directed to grant all the consequential benefits on actual basis including salary, seniority, pay fixation pensionary benefits, if any, to the petitioner in terms of Rakesh Kumar's case stated supra from due date within three months today.

Petition is allowed in aforesaid terms. Pending application(s), if any, also stands disposed of.