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Uttarakhand High Court · body

2017 DIGILAW 272 (UTT)

KHASTI BAJELI v. STATE OF UTTARAKHAND

2017-05-04

RAJIV SHARMA

body2017
JUDGMENT Hon’ble Rajiv Sharma, J. Petitioners are working as Basic Health Assistants in the Health Department of the State. Similarly situate persons approached the Allahabad High Court by way of Writ Petition No.15904 of 1983 seeking directions to the State Government to grant them the same pay as was being paid to Family Planning Health Assistants since the nature of work performed by them was same. Their further case was that they possessed the same qualifications and their duties and responsibilities were also the same. The writ petition was allowed by the Division bench on March 11, 1988. The respondent-State, to overcome the judgment of the Division Bench rendered in WP No.15904/83, issued the Ordinance called as ‘the Uttar Pradesh Health Workers and Health Supervisors (Regulation of Pay) Ordinance, 1995’. The validity of that ordinance was assailed before the Single Judge of Allahabad High Court by way of W.P. No.12882 of 1995. Learned Single Judge allowed the writ petition on 01.12.1997. The State of Uttar Pradesh filed Special Appeal Nos.9/98 and 13/98 against the judgment dated 1.12.1997. The Division Bench of Allahabad High Court dismissed the appeal on 8.10.2010. The State of Uttar Pradesh preferred a Special Leave Petition against the judgment dated 8.10.2010. The S.L.P. was dismissed. 2. Petitioners, being similarly situate persons, approached this Court by way of filing WPSS No.873 of 2011 and analogous petitions, seeking enforcement of judgment of Allahabad High Court, which was upheld by the Hon. Supreme Court as well. The petitions were decided on 7.4.2014 and the petitioners were permitted to make a representation. Their representation(s) was considered and the order was rendered on 22.7.2014 on the basis of a Committee constituted by the respondent-State. 3. Petitioners have been paid the actual monetary benefits from 23.07.1981 to 30.04.1995, whereas they have been granted the notional benefit w.e.f. 1.5.1995 to 30.6.2010 and w.e.f. 1.7.2010, they have been paid the regular pay scale. 4. The Committee constituted by the State Government has formulated three issues. No reason is discernible from the impugned order dated 22.7.2014 as to why the actual benefits have been denied to the petitioner in between 1.5.1995 to 30.6.2010, more particularly, when the petitioners have been granted the same for the prior period i.e. 23.7.1981 to 30.4.1995. Petitioners, as noticed hereinabove, have started getting the regular pay scale w.e.f. 1.7.2010. No reason is discernible from the impugned order dated 22.7.2014 as to why the actual benefits have been denied to the petitioner in between 1.5.1995 to 30.6.2010, more particularly, when the petitioners have been granted the same for the prior period i.e. 23.7.1981 to 30.4.1995. Petitioners, as noticed hereinabove, have started getting the regular pay scale w.e.f. 1.7.2010. It would also be apt to mention at this stage that the State of Uttar Pradesh has already implemented and executed the judgment rendered by the Hon. Allahabad High Court, as noticed above, by releasing the monetary benefits to the similarly situate persons from due date. 5. The respondent-State of Uttarakhand should have paid the monetary benefits to the petitioners from 1.5.1995 to 30.6.2010 at par with the employees of the State of Uttar Pradesh. There has to be a uniformity in the decisions taken by the State Government. The basis of order dated 22.7.2014 is the judgment rendered by the Allahabad High Court which has been upheld up to the Hon. Apex Court. The judgment should have been implemented and executed in toto instead of denying the petitioners the salary for the second spell between 1.5.1995 to 30.6.2010. In the first spell, the petitioners have been given the actual monetary benefits, in the second spell, they have been denied the same but the same has been restored in the third spell. The decision taken by the respondent-State on 22.7.2014, whereby the petitioners have been denied the actual monetary benefits between 1.5.1995 to 30.6.2010, is arbitrary, discriminatory, unreasonable and thus, violative of Articles 14 and 16 of the Constitution of India. 6. Their Lordships of Hon. Supreme Court in (2009) 13 SCC Page 118 in the case of ‘Punjab SEB v. Jit Singh’ have held that fair play requires recording precise and cogent reasons when an order affects right of citizen. In paragraph no.20, their Lordships have held as under: - “15. Now, we come to the order passed by the Board dated 5.10.2004. In our view, it is suffice to state, that, the order is a non-speaking order in the sense, it does not contain any reasons much less cogent reason so fair play requires recording precise and cogent reasons when an order affects the right of citizen. In the impugned order, we do not see any reason in the order passed by the authorities of the Board. In the impugned order, we do not see any reason in the order passed by the authorities of the Board. Therefore, in our view, the High Court ought to have set aside the order and remitted the matter to the authorities of the Board, to reconsider the claim of the respondent in accordance with law. That only means the order should have been an open remand, instead of asking the Board to reconsider the claim with reference to a particular principle laid down by the High Court in a different factual scenario. Since, we are remanding the matter, we have not answered the second issue.” 7. Their Lordships of Hon. Supreme Court in (2010) 3 SCC Page 732 in the case of ‘Victoria Memorial Hall v. Howrah Ganatantrik Nagrik Samity’ have held that reasons are the fundamentals of justice-delivery system. Reasons ensure clarity, objectivity, transparency and fairness in decision-making process. Reasons show that there was application of mind. Their Lordships in paragraph nos.40 and 42 have held as under: - “40. It is a settled legal proposition that not only administrative but also judicial order must be supported by reasons, recorded in it. Thus, while deciding an issue, the Court is bound to give reasons for its conclusion. It is the duty and obligation on the part of the Court to record reasons while disposing of the case. The hallmark of an order and exercise of judicial power by a judicial forum is to disclose its reasons by itself and giving of reasons has always been insisted upon as one of the fundamentals of sound administration justice - delivery system, to make known that there had been proper and due application of mind to the issue before the Court and also as an essential requisite of principles of natural justice. “The giving of reasons for a decision is an essential attribute of judicial and judicious disposal of a matter before Courts, and which is the only indication to know about the manner and quality of exercise undertaken, as also the fact that the Court concerned had really applied its mind.” 42. Thus, it is evident that the recording of reasons is principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision making. Thus, it is evident that the recording of reasons is principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision making. The person who is adversely affected may know, as why his application has been rejected.” 8. Their Lordships of Hon. Supreme Court in (2010) 7 SCC Page 678 in the case of ‘East Coast Railway v. Mahadev Appa Rao’ have held that every order passed by a public authority must disclose due and proper application of mind by the person making the order. Absence of reasons either in the order passed by the authority or in the record contem-poraneously maintained is clearly suggestive of the order being arbitrary hence legally unsustainable. Their Lordships, in paragraph no.23, have held as under: - “Arbitrariness in the making of an order by an authority can manifest itself in different forms. Non-application of mind by the authority making the order is only one of them. Every order passed by a public authority must disclose due and proper application of mind by the person making the order. This may be evident from the order itself or the record contemporaneously maintained. Application of mind is best demonstrated by disclosure of mind by the authority making the order. And disclosure is best done by recording the reasons that led the authority to pass the order in question. Absence of reasons either in the order passed by the authority or in the record contemporaneously maintained is clearly suggestive of the order being arbitrary hence legally unsustainable.” 9. Their Lordships of Hon. Supreme Court in (2012) 4 SCC Page 407 in the case of ‘Ravi Yashwant Bhoir v. District Collector, Raigad & others’ have held that right to reason is an indispensable part of a sound judicial system. Their Lordships, in paragraph nos.42 and 46, have held as under: - 42. In S.N. Mukherjee v. Union of India AIR 1990 SC 1984 , it has been held that the object underlying the rules of natural justice is to prevent miscarriage of justice and secure fair play in action. Their Lordships, in paragraph nos.42 and 46, have held as under: - 42. In S.N. Mukherjee v. Union of India AIR 1990 SC 1984 , it has been held that the object underlying the rules of natural justice is to prevent miscarriage of justice and secure fair play in action. The expanding horizon of the principles of natural justice provides for requirement to record reasons as it is now regarded as one of the principles of natural justice, and it was held in the above case that except in cases where the requirement to record reasons is expressly or by necessary implication dispensed with, the authority must record reasons for its decision. 46. The emphasis on recording reason is that if the decision reveals the ‘inscrutable face of the sphinx’, it can be its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind of the authority before the court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made. In other words, a speaking out, the inscrutable face of the sphinx is ordinarily incongruous with a judicial or quasi-judicial performance. 10. Their Lordships of Hon. Supreme Court in (2013) 14 SCC Page 393 in the case of ‘Sham Lal & others v. State of Punjab & others’ have held that the rules of fairness required that while modifying or setting aside the resolution passed by the Trust, the State Government or the Deputy Commissioner, as the case might be, should have indicated the application of mind by recording reasons. Their Lordships in paragraph no.28 have held as under: - “Though the plain language of Section 72-E does not postulate grant of hearing by the State Government or the Deputy Commissioner, as the case may be, to those who may be affected by modification or annulment of the resolution passed by the Trust, but the rules of fairness require that while modifying or setting aside the resolution passed by the Trust, the State Government or the Deputy Commissioner, as the case may be, must give some indication of the application of mind by recording reasons, howsoever, briefly. If the order passed under Section 72-E represents inscrutable face of the sphinx, the Court is entitled to infer that the concerned authority had either not considered the relevant records or not applied mind to the rationale of the decision taken by the Trust or the recommendations made by it.” 11. The stand of the State is also that the payment made between the period 1.5.1995 to 30.6.2010 is required to be made by the State of Uttar Pradesh. However, the fact of the matter is that the State of Uttarakhand, in its own wisdom, has taken a conscious decision to release the same for the period 23.7.1981 to 30.4.1995 and now they are estopped to change the same. 12. Moreover, financial crunch cannot be a legitimate ground to deny the benefits which have accrued to the petitioners on the basis of judgment rendered by the Allahabad High Court which was upheld by the Hon. Supreme Court. 13. Accordingly, the writ petition is allowed. Impugned order dated 22.7.2014 is struck down by applying the principle of Severability. The respondents are directed to pay the actual monetary benefits to the petitioners for the period 1.5.1995 to 30.6.2010 within ten weeks from today along with the interest @9% per annum. 14. Before parting with the judgment, it is made clear that the State of Uttarakhand shall be free to recover the amount, paid to the petitioners before the cut-off date, from the State of Uttar Pradesh. 15. All pending applications stand disposed of in the above terms.