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2003 DIGILAW 283 (JK)

Hari Krishan v. State Of J. &K.

2003-09-15

PERMOD KOHLI

body2003
Petition is admitted to hearing and taken up for final disposal with the consent of the learned counsel for the parties. 2. Petitioner and respondent-5 both were engaged Daily Wagers in the Public Health Engineering Department, Jammu and were assigned the job of Turn Cock. Petitioner was engaged on 1.3.1969 whereas respondent-5 came to be engaged in the year 1972. Both attained supernannuation in May, 1993 at the age of 60 years. . They were denied pensionary benefits resulting in filing of two separate writ petitions. Petitioners Writ Petition bearing SWP No. 1146/93 claiming regularization and consequential pensionary benefits came to be dismissed whereas SWP No. 308/94 filed by respondent-5 was disposed of with the direction to respondents to regularize his service in terms of Government Order No. 458 of 1981 dated 1.9.1981. Pursuant to direction of the court issued in SWP No. 308/94, respondent-5 was allowed benefit of regularization by the Chief Engineer, Public Health Engineerings communication dated 12.5.2000. On the basis of the aforesaid communication, ex-post-facto sanction was accorded in relaxation of upper age limit at initial engagement of respondent-5 vide Government Order No. 175-PWD of 2000 dated 17.5.2000. Accordingly respondent-5 was granted all the consequential benefits including retiral benefits as a regular government employee. 3. Encouraged by grant of pensionary benefits in favour of respondent-5 who is similarly situate, petitioner made a representation to the government claiming similar treatment as accorded to respondent-5. Receiving no response from the government, he has again approached this Court seeking a direction for grant of all retiral benefits to him on the analogy and parity with respondent-5. Main thrust of petitioners case, is similar treatment with respondent-5. As according to him, both were/are similarly placed on identical facts, respondent-5 has been allowed the benefit of regularization and pension whereas the petitioner has been denied similar treatment on the solitary ground of dismissal of his petition. 4. Objections have been filed by the respondents wherein stand taken is that, petitioner had earlier filed SWP No. 1146/93 seeking regularization and pensionary benefits and the said writ petition came to be dismissed. Regarding grant of benefit to respondent-5, it is stated that on the basis of direction of the High Court passed in SWP No. 308/94, case of respondent-5 was considered and he was allowed benefit of regularization and consequential pensionary benefit. Regarding grant of benefit to respondent-5, it is stated that on the basis of direction of the High Court passed in SWP No. 308/94, case of respondent-5 was considered and he was allowed benefit of regularization and consequential pensionary benefit. The sole ground of denial of benefit to the petitioner, is the dismissal of his writ petition. 5. I have heard learned counsel for the parties. There is absolutely no dispute about the fact that petitioner filed SWP No. 1146/93 claiming regularization and pensionary benefit and the said writ petition was dismissed . Petitioner did not challenge that order of dismissal of his writ petition, which has attained finality . It is also established on record and not disputed by respondents either in the objections or otherwise that respondent-5 was similarly situate and both of them were sailing in the same boat . In writ petition filed by respondent-5 being SWP No. 308/94 decided vide Judgment dated 30.1.1997, this Court granted benefit of regularization and pensionary benefit to respondent-5 on the basis of Government Order No. 458 of 1981 dated 1.9.1981. As a matter of fact, the court only considered and interpreted the scheme formulated by the government as notified vide Government Order, which confers such benefit upon the class of people to which petitioner and respondent-5 both admittedly belong. The High Court on consideration of the entire issue, issued the following ditrection:- " Cumulative effect of what has been discussed above is that, respondents are directed to regularize the services of the petitioner in terms of Government Order No. 458 of 1981 dated 1.9.1981. Thereafter, he be extended the relief of Pension and other consequential benefits." 6. The important question that falls for consideration, is,whether petitioner can be denied the benefit of Government Policy whereunder he is other wise entitled to the benefit merely on account of dismissal of his writ petition when the benefit of the policy has been conferred on other similarly situate persons. After examination of the judgment passed in SWP No. 308/94, it appears that the benefit conferred upon respondent-5 emanates from Government Order No. 458 of 1981 dated 1.9.1981 and not from the direction of the court. The court while disposing of writ petition filed by respondent-5, only directed implementation of the aforesaid Government Order. 7. It is under these circumstances, claim and right of the petitioner is to be looked into. The court while disposing of writ petition filed by respondent-5, only directed implementation of the aforesaid Government Order. 7. It is under these circumstances, claim and right of the petitioner is to be looked into. If the petitioner is also entitled to the benefit of regularization and pension in terms of Government Order No. 458 of 1981 dated 1.9.1981, how and why he should be deprived of the same benefit on the ground that the court has refused to implement the Government Policy in the case of petitioner. Once it is established that the petitioner and respondent-5 have equal right being sailing in the same boat and this right flows from the Government Policy/Order, they cannot be treated differently, notwithstanding the dismissal of writ petition filed by the Petitioner. 8. In the present case, the right available to the petitioner and respondent-5 flows from the Government Order/Policy and not from the judgment, therefore, independent of the decision of the court in two separate writ petitions filed by petitioner and respondent-5, the State cannot treat both the petitioners differently, when they have equal rights. The rule of res-judicata and/or estoppel is based upon public policy and provides finality to the judicial decisions, which is again in public interest. This doctrine does not in any manner nullify the fundamental principle of equality as enshrined under Article 14 of the Constitution of India. The right of equality and equal treatment before law, is a part of the fundamental rights enshrined in Part-III of the Constitution, which in any case, cannot be said to be circumvented by the rule of estoppel or for that matter, the principle of res-judicata as are contained in general law. The Constitution being the basic law of the land and all laws subservient to the Constitution, cannot be allowed to render the constitutional mandate otiose. The law of land must prevail, equals have to be treated equally and not differently . 9. Keeping in view the mandate of Article 14 of the Constitution, I have no inhibition in declaring the petitioner entitled to the benefit under Government Order No. 458 of 1981 dated 1.9.1981 as has been allowed to respondent-5, notwithstanding dismissal of his writ petition. 10. This petition is accordingly allowed and respondents are directed to regularize the petitioner and grant him all pensionary benefits on the analogy of respondent-5. 10. This petition is accordingly allowed and respondents are directed to regularize the petitioner and grant him all pensionary benefits on the analogy of respondent-5. Let necessary orders be passed within a period of three months.