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2013 DIGILAW 2354 (ALL)

Ravi Nath Singh v. State of U. P.

2013-09-19

VISHNU CHANDRA GUPTA

body2013
JUDGMENT Vishnu Chandra Gupta, J. – Heard Sri D.N. Tripathi, learned counsel for the petitioners and Sri Rahul Mishra holding brief of Sri Manik Sinha learned counsel for the respondents no.2, 3 and 4 and the learned Standing Counsel for the respondent no.1 in both the petitions. 2. As the controversy involved in both petitions is similar hence both petitions are being disposed of finally by this common judgment. 3. The petitioners in both writ petitions are the daily wage employees of Acharya Narendra Dev University of Agricultural & Technology, Kumarganj, Faizabad. Earlier to the present petitions, certain writ petitions were filed by the daily wagers of the aforesaid University, which were decided by learned Single Judge of this Court in Writ Petition No.4677 of 2000 (SS) along with connected matters, vide order dated 16.04.2002. The relevant portion of the said order is quoted hereinbelow: "The writ petition is finally disposed of with the direction that the University shall frame a scheme for regularisation of Class III and IV employees, who are working on daily wage basis in a phased manner within a period of four months and submit the same before the State Government, who will consider and take a decision on the scheme submitted by the University within four months thereafter and the opposite parties shall consider the case of the petitioners for regularisation, in accordance with law, as soon as the posts are sanctioned by the State Government. Till the services of the petitioners are not regularised, the opposite parties shall not make any fresh recruitment on regular basis either on Class-III or Class-IV posts and shall pay the minimum of the pay scale of the respective posts on which the petitioners are working. The benefit of this order shall be given only to those daily wage employees who are working at present. In the circumstance there shall be no order as to costs." 4. Against this order, Special Appeal had been filed and the same was also dismissed. The dismissal of Special Appeal is not disputed by learned counsel for the parties. Thereafter in pursuance of the order passed by learned Single Judge, the University vide order dated 06.07.2003 (Annexure-4 to writ petition no.6621 of 2005) granted minimum of the pay scale. Against this order, Special Appeal had been filed and the same was also dismissed. The dismissal of Special Appeal is not disputed by learned counsel for the parties. Thereafter in pursuance of the order passed by learned Single Judge, the University vide order dated 06.07.2003 (Annexure-4 to writ petition no.6621 of 2005) granted minimum of the pay scale. The said order is quoted hereinbelow: "fjV ;kfpdk la[;k 4677@,l0,l0@2000] esMbZ o vU; cuke mRrj izns'k ljdkj o vU; rFkk vU; lEcfU/kr ;kfpdkvksa esa ikfjr ekuuh; mPp U;k;ky; ds vkns'k ds vuqikyu esa dqyifr egksn; ds vkns'kkuqlkj Jh Jh izdk'k flag iq= Jh fo'oukFk flag tks vk'kq0 in ds fo: ) d0fy0@Vadd dk dk;Z dj jgs gSa rFkk dks ftldk osrueku : 0 3050&4590 gS] ds fo: ) nSfud Jfed ds : i esa fujUrj dk;Zjr gS] dks jkT; ljdkj }kjk fu;ferhdj.k Ldhe rFkk in@fu;qfDr Lohd`fr gksus rd rkRdkfyd izHkko ls mDr in dk U;wure osru iznku fd;s tkus dh Lohd`fr iznku dh tkrh gS ftlesa vU; HkRrs ns; ugha gksaxsA" 5. In pursuance of the orders passed by the Writ Court, a scheme has been formulated by the University and the same was approved by the State Government, vide order dated 15.12.2003 (Annexure-2 to Writ Petition No.6621 of 2005). According to this scheme, a daily wager who was engaged in the University before 16.04.1992 and is continuing as such on the date of commencement of the scheme and possessed requisite eligibility for regular appointment as prescribed under the scheme, at the time of such engagement on daily wage basis, shall be considered for regular appointment on Class-III posts in permanent or temporary vacancy as may be available on the date of commencement of this scheme, on the basis of his record and suitability before any regular appointment is made in such vacancy. 6. It has been contended by learned counsel for the petitioner that similar scheme has been approved by the State Government in respect of Class-IV employees. Though, the copy of that scheme is not available on record but this fact has also not been disputed either from the side of State or by the counsel appearing on behalf of remaining respondents. It is also not in dispute at bar that after formulation of the scheme, the employees are being accommodated as and when vacancy occurs in the cadre. 7. It is also not in dispute at bar that after formulation of the scheme, the employees are being accommodated as and when vacancy occurs in the cadre. 7. The only controversy in the present writ petitions is that the University is not giving any Dearness Allowance on the minimum of the pay scale which is being provided to the daily wagers in terms of the judgment rendered by learned Single Judge of this Court and affirmed in the appeal. It is also not in dispute that in the earlier writ petition, which has been finally decided by learned Single Judge and the appeal filed against the same was also attained finality and in pursuance of that the University allowed minimum of the pay scale to the employees and their services are being regularized as and when vacancy occurs in terms of the scheme. 8. Learned counsel for the petitioners, on the strength of the judgment of this Court in the matter of Chandra Shekhar Azad University of Agriculture & Technology, Kanpur, sought relief for payment of Dearness Allowance to the daily wagers. In this regard, learned counsel for the petitioners invited the attention of this Court towards the judgment rendered by learned Single Judge of this Court in Writ Petition No.7942 of 1994 and in Writ Petition No.6910 of 1994 decided on 24.04.2000. While deciding these petitions, learned Single Judge of this Court allowed the minimum of the pay scale to the daily wagers and was also allowed the payment of Dearness Allowance over the minimum of the pay scale. 9. This order was challenged by the University in Special Appeal No.381 of 2000 and the appeal was dismissed vide order dated 10.05.2001. The order of learned Single Judge of this Court was upheld. The University again challenged the orders of the appellate court as well as the learned Single Judge before the Apex Court and in that, the Apex Court vide its order dated 10.12.2001 declined to interfere in the order passed by learned Single Judge as well as by the appellate court and dismissed the Special Leave Petition (Civil) No.14326 of 2001 and affirmed the finding of grant of Dearness Allowance to the employees on the minimum of the pay scale. 10. Learned counsel for the petitioner further relied on the judgment of this Court delivered by the Division Bench in Ram Kishore and others Vs. 10. Learned counsel for the petitioner further relied on the judgment of this Court delivered by the Division Bench in Ram Kishore and others Vs. State of U.P. and others reported in 2013 (31) LCD 992 . He relied upon the paragraphs 20, 21 and 22 of this judgment wherein it was held that the daily wagers are entitled for Dearness Allowance on the amount paid to them. Learned counsel for the petitioner further submits that while delivering the judgment by this Court in the matter of Acharya Narendra Dev University of Agricultural & Technology, the Court relied upon the judgment rendered by this Court in Writ Petition No.7942 of 1994 (Chandra Shekhar Azad Krishi Evam Prodyogic Dainik Wetan Bhogi Karamchari Sangathan and others Vs. Chandra Shekhar Azad University of Agriculture & Technology). On this score, he submits that whatever judgment has been delivered in the matter of Chandra Shekhar Azad University of Agriculture & Technology would apply with full force in respect of the employees of the University of Acharya Narendra Dev University of Agricultural & Technology. 11. Attention of this Court has also been drawn by learned counsel for the petitioners towards Annexure 12 of the Writ Petition No.6621 of 2005, by means of which one daily wager Mahendra Pratap Singh RA is getting Dearness Allowance. He also relied upon the contents of paragraph 12 of the writ petition, which is quoted hereinbelow: "12. That it is very relevant to mention here that the University authorities are paying the minimum of pay scale with the other allowances to one daily wager Mahendra Pratap Singh in pursuance of interim order passed by this Hon'ble Court. He is getting Rs.9600/- from the month of December, 2004 which is clear from the perusal of pay scroll. The true photostat copy of the pay scroll of December, 2004 is being annexed herewith as Annexure No.12 to this writ petition." 12. No specific reply has been given of it in the counter affidavit filed by the opposite parties. 13. Learned counsel appearing on behalf of the opposite parties has submitted that lis in between the petitioners and the University has finally been settled down by a judgment in personam. The benefit of decided cases later on cannot be used to alter or review the verdict earlier given between the parties. 13. Learned counsel appearing on behalf of the opposite parties has submitted that lis in between the petitioners and the University has finally been settled down by a judgment in personam. The benefit of decided cases later on cannot be used to alter or review the verdict earlier given between the parties. It was further submitted that the reliance placed by learned counsel for the petitioner in the case of Ram Kishre (Supra) is not applicable in view of the fact that it relates to employees of the State Government. 14. It was further submitted by learned counsel for the opposite parties that the case of Mahendra Pratap Singh is not identical to the case of the present petitioner as the benefit is being granted to him in pursuance of an order passed in another writ petition. So it is distinguishable with the case of the present petitioners. 15. I have considered the submissions of learned counsel for the parties and perused the records. Actually the petitioners want review of earlier orders passed in their favour in Writ Petition No.4677 of 2000 (SS) after altering the same by appellate court and also after acting it upon by the University by formulating the scheme of regularization in year 2003 and granting the minimum of scale of pay to the petitioners without any protest from the case of petitioners. 16. It is settled principle of law that a concluded judgment cannot be reopened by another judgment in another case on the basis of similar fact. Admittedly, the benefit of granting Dearness Allowance was not conferred to the petitioners by a concluded judgment in their favour. So on the strength of decision rendered in another case of Chandra Shekhar Azad University of Agriculture & Technology benefit of grant of Dearness Allowance cannot be extended to the petitioners. So far as, the judgment rendered by this Court in Ram Kishore (supra) is concerned, the same can also not be extended any help to the petitioners on the aforesaid analogy. It is not in dispute that the judgment delivered in the case of Acharya Narendra Dev University of Agricultural & Technology, in between, the University and the employees is a judgment in personam and not in rem. It is also well settled that if the things cannot done directly could not be perused to be done indirectly. 17. It is not in dispute that the judgment delivered in the case of Acharya Narendra Dev University of Agricultural & Technology, in between, the University and the employees is a judgment in personam and not in rem. It is also well settled that if the things cannot done directly could not be perused to be done indirectly. 17. So far as the matter relating to Mahendra Pratap Singh is concerned, the pleadings of the petitioners is also incomplete. The interim order, on the strength of which they alleged, granted of Dearness Allowance to Mahendra Pratap Singh has not been brought on record. Hence, in view of in complete pleadings, the benefit cannot be extended. 18. However, it is not disputed that Mahendra Pratap Singh is getting the amount over and above the minimum of the pay scale. 19. In view of above, the petitioners are given liberty to represent their cause claiming parity with Mahendra Pratap Singh before the University and the University will decide the cause of the petitioners by speaking and reasoned order in case the petitioners moved representation within three weeks from today along with a certified copy of this judgment. The aforesaid representation shall be decided within a period of two months by the competent authority on behalf of the University by reasoned and speaking order. 20. With the aforesaid observations, both petitions are finally disposed of.