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2013 DIGILAW 963 (PAT)

Radha Mohan Pandey v. State of Bihar

2013-08-07

NAVANITI PRASAD SINGH

body2013
Order A third supplementary counter affidavit, pursuant to orders of this Court, has been filed today on behalf of the respondents. Pleadings being complete, with consent of parties, this writ petition has been heard for its final disposal at this stage itself. 2. The facts of the case are not in controversy any more. It is the question of right that has to be decided in the present case. 3. The two petitioners were originally recruited as daily wage employee in work charge establishment prior to 1988. In 1988 both of them were regularized and put in regular pay-scale in the said work charge establishment. In the year 2002, they were issued notices that their initial appointment and their regularization as made in 1988 were bad. They were thus directed be reverted to the status of daily wage earners. While the matter was being considered, there were several other people similarly situated being treated by the State. All such people including these two petitioners approached this Court challenging their reversion. In the year 2002 itself interim orders were passed by the Court in those writ petitions. In interim order, it was stated that no coercive action can be taken against the petitioners. Ultimately, the writ petitions were disposed of by a Division Bench of this Court with a direction to the State to constitute a committee and enquire into the matter and take a decision in respect of their regularization. A three man committee was formed and, thereafter, in the year 2006 petitioners and their like were regularized in permanent establishment on newly sanctioned posts from the work charge establishment. A dispute arose when salary payment commenced. Deductions were made on account of Contributory Provident Fund (hereinafter referred to as “CPF”) and not on account of General Provident Fund (hereinafter referred to as “GPF”). The difference is that when there is CPF deduction it presupposes no pension payment upon retirement but if it is GPF then pension payment entitlement is there. This difference was because the State treated petitioners and their like as fresh appointees with effect from 2006 and, therefore, as prevalent in the year 2006, GPF having been discontinued, CPF deductions were made. Again, petitioners and their like filed separate writ petitions. Those writ petitions were allowed. This difference was because the State treated petitioners and their like as fresh appointees with effect from 2006 and, therefore, as prevalent in the year 2006, GPF having been discontinued, CPF deductions were made. Again, petitioners and their like filed separate writ petitions. Those writ petitions were allowed. It was clearly hold by this Court that petitioners had been in regular appointment under the State right from 1988, their GPF accounts had been opened and GPF subscriptions were credited to the said account since 1988 itself, hence they could not be treated as fresh appointees with effect from 2006. This position was accepted and CPF deductions were discontinued. It is not in dispute that after 2006 petitioners are being paid full remuneration with GPF deductions and not CPF deductions. 4. Petitioners’ case is that as it was not a case of fresh employment and petitioners were relegated in 2002 from regular employment to daily wagers, though they performed the same work, they were entitled to full remuneration for the period 2002-06. It is stated that in several writ petitions identical claims have already been adjudicated and allowed by this Court and State is paying those persons accordingly. These facts have been clearly brought out in the third supplementary affidavit filed on behalf of the petitioners. In response to this third supplementary affidavit, a third supplementary counter affidavit has been filed. 5. In this third supplementary counter affidavit State raises only two pleas to deny the prayer and/or reliefs sought for by the petitioners with regard to payment of full remuneration for the period 2002-06. Firstly, they say that the order issued by the State to make payment to one Awadhesh Kumar on 05.11.2012 was sanctioned and the letter itself clearly stated that it will not be treated as a precedent. Thus, petitioners cannot ask for the same treatment. In the third supplementary counter affidavit, in this connection, it is further stated that several people have been paid full amount but they are all pursuant to orders of the Court. In other words, the first submission is that unless there are order of the Court passed people similarly situated will not receive similar treatment at the hands of the State. The second submission is that petitioners have delayed in approaching this Court. They claim part of salary for the period 2002-06 but the writ petition has been filed in 2011. In other words, the first submission is that unless there are order of the Court passed people similarly situated will not receive similar treatment at the hands of the State. The second submission is that petitioners have delayed in approaching this Court. They claim part of salary for the period 2002-06 but the writ petition has been filed in 2011. In other words, State submits that the relief is barred by delay and laches. 6. Having considered the matter, in my view, the stand taken by the State on both counts is fallacious and cannot be accepted. State does not dispute that in large number of writ petitions people identically situated have been ordered to be paid full remuneration as a full time permanent employee for the period 2002-06. Those orders have already been attained finality. The question is if the petitioners are similarly situated, can the State treat differently or deny him the benefit. In my view, the answer to that is emphatic no. In the case of Ashwani Kumar & Ors. versus State of Bihar & Ors. since reported in AIR 1997 Supreme Court 1628, this is what the Apex Court held in paragraph-17, which is quoted hereunder:- “17. ……..Nor can we say that benefit can be made available only to 1363 appellants before us as the other employees similarly circumscribed and who might not have approached the High Court or this Court earlier and who may be waiting in the wings would also be entitled to claim similar relief against the State which has to give equal treatment to all of them otherwise it would be held guilty of discriminatory treatment which could not be countenanced under Articles 14 and 16(1) of the Constitution of India.” 7. Further Clause-4.C(1) of the notified State Government Litigation Policy states thus:- “4.C (1). A good number of cases are from the category of similar cases. Each Government Department will aim to consider and settle the claim of the representationist/applicant-employee/citizen, if the claim is found covered by any decision of the Court. Many service matters of this nature, can be disposed of at the level of the Department itself without compelling the litigant to come to the Court. In this manner, the Government Departments would be acting as efficient litigants.” 8. Thus, the State cannot deny the same treatment to similarly situated persons even in absence of any Court’s order. Many service matters of this nature, can be disposed of at the level of the Department itself without compelling the litigant to come to the Court. In this manner, the Government Departments would be acting as efficient litigants.” 8. Thus, the State cannot deny the same treatment to similarly situated persons even in absence of any Court’s order. I must note one thing. The letter annexed in supplementary counter affidavit in relation to one Awadhesh Kumar, being letter dated 05.11.2012 written by the Principal Secretary, Public Health Engineering Department, it is stated that the sanction of payment will not be taken as a precedent. I am afraid State cannot put any such rider because it is bound by the Articles-14 & 16 of the Constitution as held by the Apex Court. It cannot give a benefit to a person and deny the same to similarly situated persons. This is antithesis of Article-14 of the Constitution. 9. Now, coming to the next issue of delay. As evident from the third supplementary counter affidavit itself, State directed to make payment to similarly situated persons in relation to the same very period as late as on 05.11.2012, i.e., even after this writ petition was filed. In this writ petition, it is categorically stated that since petitioners’ regularization in 2006 Department had been repeating that they were considering the claim of petitioners and their like and in some case they started making payment. But, ultimately when petitioners found that it was unable to persuade the Department to make payment he came to this Court. Thus, there were no delays nor any laches. Claims were being entertained and paid even recently. Courts were ordering payment even as late as 2013 (in the case of Yogendera Prasad Asthana versus State of Bihar, being C.W.J.C. No.7211 of 2013, disposed of on 16.05.2013). Further, in a recent decision of the Apex Court in the case of Anil Kumar Gupta versus State of Bihar & Ors. since reported in (2012) 12 Supreme Court Cases 443, the question of laches have been discussed with reference to binding precedent of judgment of the Constitution Bench of that Court and this is what their Lordships had to say in paragraph-13 of the reports, which is quoted hereunder:- “13. since reported in (2012) 12 Supreme Court Cases 443, the question of laches have been discussed with reference to binding precedent of judgment of the Constitution Bench of that Court and this is what their Lordships had to say in paragraph-13 of the reports, which is quoted hereunder:- “13. We shall now examine whether the appellant was guilty of laches and the Division Bench of the High Court had rightly set aside the order passed by the learned Single Judge on that ground. In this context, it is apposite to observe that the Framers of the Constitution have not prescribed any period within which a petition can be filed under Article 226 of the Constitution of India. However, in the last six decades, the superior courts have evolved several rules of self-imposed restraint which are required to be kept in view by the High Courts while exercising power under Article 226. One of these rules is that the High Court will not come to the aid of a person who approaches the Court with delay and no explanation is offered for the same (State of M.P. v. Bhailal Bhai, AIR 1964 SC 1006 and Tilokchand Motichand v. H.B. Munshi, (1969) 1 SCC 110 : AIR 1970 SC 898 ). In the first two cases, the Constitution Bench observed that even though no period of limitation has been prescribed for filing a writ petition under Article 226 of the Constitution, the Court will come to the rescue of only those who are vigilant and a petition filed after expiry of the period of limitation prescribed for filing a suit will not be entertained unless cogent explanation is offered for the same. In the second case, Hidayatullah, C.J. who concurred with R.S. Bachawatand and G.K. Mitter, JJ. expressed the view that there is no upper or lower limit for filing a writ petition and each case has to be decided on its own facts. In the second case, Hidayatullah, C.J. who concurred with R.S. Bachawatand and G.K. Mitter, JJ. expressed the view that there is no upper or lower limit for filing a writ petition and each case has to be decided on its own facts. The learned Chief Justice further observed that even if the petition is filed beyond the period of limitation prescribed for filing a suit, the Court may entertain the petition provided the petitioner gives satisfactory explanation or may decline relief in a case where the petition is filed within limitation but the explanation for the delay is not satisfactory.” In that view of the matter and in the facts and circumstances of the case as noted above, in my view, the claim cannot be rejected on grounds of laches and delay. Thus, I hold that this Court had already held that petitioners were in regular Government service since 1988 itself. They would be deemed to be in regular service in between the period 2002 to 2006 and would not be treated as daily wager in that period for all purpose, i.e., including computation of retrial dues. This period as between 2002 to 2006 would be treated as a continuing regular employment and petitioners are liable to be paid their dues accordingly including retiral dues as the case may be. The responsibility of payment within a period of three months from today would squarely lie on the Executive Engineer, Public Health Engineering Department, Mechanical Division, Muzaffarpur, respondent no.3. With the aforesaid observations and directions, the writ petition is allowed.