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2022 DIGILAW 619 (JK)

Union of India & Another v. Ravi Kumar

2022-11-09

RAJESH SEKHRI, SANJEEV KUMAR

body2022
JUDGMENT Sanjeev Kumar, J. - LPA No. 95/2021 1. This appeal is directed against the judgment of learned Single Judge ['the Writ Court'] dated 01.04.2017 passed in SWP No. 801/2017 titled 'Ravi Kumar and others vs. UOI and another' whereby the Writ Court has allowed the writ petition of the respondents ['the writ petitioners'] and directed that, in future, if the respondents make appointments to the posts of Mazdoor, the case of the petitioners may also be considered by giving them preference over other candidates for having served in the Kargil War Zone. The Writ Court has further provided that if any of the petitioners has crossed the age bar, the same shall stand relaxed. 2. Before we advert to the grounds of challenge urged by learned DSGI appearing for the appellants, we deem it appropriate to deal briefly with the factual matrix in the backdrop whereof the instant appeal has arisen. 3. Briefly stated the case projected by the writ petitioners in the writ petition is that after the outbreak of Kargil war, the Indian Army, which was in dire need of porters to help the Army in mounting assault on the enemy, selected approximately 5000 persons from District Udhampur for working as Majdoor/porter in three different war fronts in Kargil sector. Out of 5000 persons selected by the Indian Army, only 200 volunteered to render their services. The writ petitioners have given details of the duties which they performed to assist the Army during Kargil war. 4. It is pleaded by the writ petitioners that in recognition of the exemplary services rendered by the writ petitioners during the Kargil war, the then Lt. Col. Rajinder Singh issued in favour of the writ petitioners commendation certificates stating therein that the writ petitioners had worked along with Army troops in most difficult terrains of Kargil area. Lt. Col. Rajinder Singh also made recommendations to the higher authorities for giving preference to the writ petitioners for Government/private jobs keeping in view the services rendered by them to the nation in hour of need. It is submitted that in the year 2001, an Advertisement notice was issued by the Indian Army for recruitment to Group C & D posts and several posts of Majdoor were also advertised. It is submitted that in the year 2001, an Advertisement notice was issued by the Indian Army for recruitment to Group C & D posts and several posts of Majdoor were also advertised. The writ petitioners claim that they, being eligible in terms of the aforesaid Advertisement notice, submitted their applications and attended the recruitment rally, but they were not selected by the Indian Army, nor did they give any preferential treatment as was promised to them in terms of the recommendations made by the then Lt. Co. Rajidner Singh. The writ petitioners further claim that despite they having been constantly representing to the appellants herein for the last 17 years for adjusting them against the posts of Majdoor in view of the exemplary services rendered by them to the nation during Kargil War, nothing has been done to settle their grievance. The writ petitioners also placed reliance upon the judgment dated 01.01.2010 passed by a Single Bench of this Court in SWP No. 2823/2001 titled 'Ram Lal and others vs. Union of India and others' whereby the learned Single Judge while disposing of the aforesaid writ petition vide judgment dated 01.01.2010 had directed that, in future, if the respondents would make appointments to the posts of Majdoor, the case of the petitioners may also be considered by giving them preference over other candidates and if need be, by relaxing their age. 5. The writ petition was resisted by the appellants before the Writ Court taking a stand that the recruitment to the posts of Majdoor has been made in terms of Advertisement notice and the appointments have been made after conducting the physical test and interview. However, the petitioners could not make the grade, as such, were not selected. The Writ Court considered the rival contentions and agreed in principle with the stand of Union of India that there was nothing wrong in the process of selection carried out by the appellants for making regular appointments against the posts of Majdoor. The writ Court, however, noted that while making appointments to the posts of Majdoor, the appellants had not taken into consideration the services rendered by the writ petitioners during Kargil war and, accordingly, issued the similar directions as were issued by a Bench of this Court in the case of Ram Lal and others (supra). The writ Court, however, noted that while making appointments to the posts of Majdoor, the appellants had not taken into consideration the services rendered by the writ petitioners during Kargil war and, accordingly, issued the similar directions as were issued by a Bench of this Court in the case of Ram Lal and others (supra). This was done by the Writ Court in terms of its judgment impugned in this appeal. 6. Having heard learned counsel for the parties and perused the material on record, we are of the view that the Writ Court has fallen in serious error in admitting the petition and granting the relief prayed for. 7. It is not in dispute that the writ petitioners like many others were engaged as Majdoors to assist the Armed Forces who were engaged in the Kargil war in the year 1999. The engagement of the writ petitioners as porters to assist the Armed Forces was for a fixed period on contract basis and, therefore, they had no vested right to seek their continuation or regularization in the regular Army as Majdoor or on any other post. 8 So far as the contention of Mr. Sethi, learned Senior Counsel appearing for the writ petitioners (respondents herein) made in reference to the recommendations made by Lt. Co. Rajinder Singh for providing preference to the writ petitioners while making appointments/recruitment to the posts of Majdoor is concerned, suffice it to say that similar plea stands already negatived by a Division Bench of this Court in LPA No. 36/2020 decided vide its judgment dated 10.03.2020. titled 'Vijay Kumar and others vs. Union of India and others'. What was held by the Division Bench is referable to para (19) of the judgment which reads thus: '19. We are unable to agree with this finding or the conclusion of the learned Single Judge in the order dated 1st of April, 2014. We have scrutinized the document given by the Lt. Col., Officer Commanding, to the appellants and find that the same is merely in the nature of a commendation for the services which they had rendered. Any suggestion by an Officer Commanding that the persons be given preference is not in the nature of any binding promise' 9. We have scrutinized the document given by the Lt. Col., Officer Commanding, to the appellants and find that the same is merely in the nature of a commendation for the services which they had rendered. Any suggestion by an Officer Commanding that the persons be given preference is not in the nature of any binding promise' 9. A lot of stress was laid by learned Senior Counsel appearing for the writ petitioners (respondents herein) on the judgment rendered by a Single Bench of this Court in the case of Ram Lal and others (supra) which was upheld in LPA No. 64/2014 titled 'Union of India vs. Ram Lal and others, decided on 10.02.2016 to claim that the writ petitioners are similarly situated with the writ petitioners of writ petition filed by the Ram Lal and others and, therefore, cannot be discriminated. The judgment passed by the Division Bench in Ram Lal's case (supra) was also subject matter of consideration in the subsequent judgment passed by a Division Bench of this Court on 1.12.2020 in LPA 223/19 titled Rattan Singh vs. Union of India. As is rightly found by the Division Bench in the case of Rattan Singh (supra) that the writ petition i.e SWP No. 2823/2001 was filed by Ram Lal and others immediately after the Kargil war was over and when the writ petitioners therein were denied priority consideration in the selection process initiated by appellants in the year 2001. The writ petition was however decided on 01.01.2010 against which LPA No. 64/2014 preferred by Union of India also came to be dismissed. 10. Much water has flown after the judgment has been rendered in the case of Ram Lal and others (supra). Another selection took place in the year 2017 and the persons similarly situated, who could not be accommodated by the appellants, filed writ petition SWP No. 43/2018 claiming similar reliefs as are claimed by the present writ petitioners in the writ petition allowed by the writ Court. The writ petition (SWP 43/2018) was dismissed vide Judgment dated 03.07.2019. LPA filed by the petitioners against the judgment dated 03.07.2019 was upheld by the Division Bench vide its judgment dated 01.12.2020. 11. All the contentions which have been raised by learned Senior Counsel appearing for the writ petitioners, have been considered and rejected. The recommendations made by Lt. Col. The writ petition (SWP 43/2018) was dismissed vide Judgment dated 03.07.2019. LPA filed by the petitioners against the judgment dated 03.07.2019 was upheld by the Division Bench vide its judgment dated 01.12.2020. 11. All the contentions which have been raised by learned Senior Counsel appearing for the writ petitioners, have been considered and rejected. The recommendations made by Lt. Col. Rajinder Singh, which were the basis of judgment rendered in the case of Ram Lal (supra) were held to be directory in nature and not capable of creating any right in favour of the petitioners. The Division Bench has clearly held that Rules of recruitment are required to be scrupulously followed in making selection and any relaxation in the Rules, if required, can only be done in terms of the provisions of the Rules and Regulations and by the competent authority. The recommendations of the officer, howsoever high in rank he be, cannot supplant the statutory Rules. 12. That apart, this Court has noticed a clear distinction between the case put up by the petitioners Ram Lal and others and the case set up by the present writ petitioner in their writ petition which has been allowed by the Writ Court. The petitioners Ram Lal and others were the candidates,who had participated in the selection process initiated by Armed Forces in the year 2001 to fill up certain Group C&D posts including the posts of Majdoor. Relying upon the recommendations made by Lt. Col. Rajinder Singh, the petitioners in Ram Lal's case challenged the selection process on the ground that during the process of selection, they were not given the preferential treatment in the light of recommendations made by Lt. Col. Rajinder Singh in that behalf. The writ petition was considered and disposed by the writ court by directing the respondents (appellants herein) that in future if they make recruitment to the posts of Majdoor, they will accord preferential treatment to the writ petitioners therein having regard to the recommendations made by the Lt. Col. Rajidner Singh and keeping in view the services rendered by them as porters during Kargil war. The future selection process was undertaken somewhere in the year 20016-17. Many candidates, who had earlier served as Porters during the Kargil war, participated in the selection process. The selection process was conducted strictly as per the Rules and many of them could not be accomodated. The future selection process was undertaken somewhere in the year 20016-17. Many candidates, who had earlier served as Porters during the Kargil war, participated in the selection process. The selection process was conducted strictly as per the Rules and many of them could not be accomodated. They filed a writ petition SWP No. 43/2018 before a Single Bench of this Court claiming, inter alia, a preferential treatment in the matter of selection on the analogy of judgment rendered in Ram Lal's case (supra). The Writ Court did not agree with the writ petitioners and, accordingly, dismissed the writ petition. The judgment of the Single Bench passed on 03.07.2019 was upheld by the Division Bench in LPA 223/2019. The case of the present writ petitioners is not, in any manner, better than the case of Rattan Singh and others, who were denied the relief not only by the Single Bench, but by the Division Bench as well. Otherwise also, the right to the present writ petitioners to seek their consideration for selection against the posts of Majdoor in preference to the other candidates, accrued to them in the year 2001 when the first selection was made after the recommendations were made by Lt. Col. Rajinder Singh. The present writ petitioners have nowhere averred as to whether they participated in the aforesaid selection or not. 13. Indisputably, the present writ petitioners never challenged the advertisement issued in the 2001 or the selection made consequent thereupon. They remained quiet for more than fifteen years. The present writ petitioners got the provocation to file the writ petition in the year 2017 only when, in compliance to the judgment passed by the Division Bench in the case of Ram Lal, the writ petitioners in the aforesaid writ petition were appointed by the appellants. It is a clear case of fence sitters coming to the Court after a huge delay. 14. The writ petitioners in the instant case are nothing short of fence sitters who were awaiting the final outcome of the litigation initiated by Ram Lal and others way back in the year 2001. The writ petitioners did not file the writ petition even immediately after the writ petition was decided in favour of the petitioners Ram Lal and others in the year 2010. The writ petitioners did not file the writ petition even immediately after the writ petition was decided in favour of the petitioners Ram Lal and others in the year 2010. They waited till the appeal filed against the judgment of the Single Judge was dismissed and the order passed by the Writ Court was implemented. The writ petitioners having remained silent for all these years cannot be permitted to knock the door of this Court only after being prompted by the compliance of the judgment rendered in the case of Ram Lal (supra). The present writ petition is, therefore badly hit by delay and laches and, therefore, cannot be entertained. 15. The view which we have taken hereinabove is fortified by the judgment of Hon'ble Supreme rendered in the case of State of UP and others vs. Arvind Kumar Srivastava, (2015) 1 SCC 347 . Para (22) of the judgment is relevant and is set out below: 'The legal principles which emerge from the reading of the aforesaid judgments, cited both by the appellants as well as the respondents, can be summed up as under: 22.1. 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 well recognized 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 fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim. (underlined by me to lay emphasis) 22.03. 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 person. Such a situation can occur when the subject matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K.C. Sharma & Ors. v. Union of India (supra). 22.4. 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'. 16. Relying upon the aforesaid judgment of the Supreme Court, a Division Bench of this Court in the case of State of Jammu and Kashmir vs. Rajesh Anand (LPASW No. 193/2017, decided on 30.12.2017) has also denied the relief to the fence sitter who had similarly come to the Court after a litigation initiated by some aggrieved employee similarly situated with him had succeeded in getting the relief finally from this Court. 17. In regard to the plea of Mr. Sethi learned Senior Counsel appearing for the writ petitioners that the writ petitioners belong to a poor strata of society, and, therefore, cannot be expected to be aware of their rights to invoke legal remedies at the earliest, needless to say that the persons, who had also worked as porters with the Indian Army during Kargil war in the year 1999 and who filed writ petition in the year 2001 titled 'Ram Lal and others are also similarly situated with the writ petitioner in the instant case in so far as their background and the social conditions are concerned. The writ petitioners were well aware that a litigation initiated by Ram Lal and others was going on in the Court of law, but they waited till the litigation attained finality and the judgment passed by the Writ Court in their favour attained finality with the dismissal of Letters Patent Appeal and was implemented in letter and spirit. Such conduct of the non-vigilant and opportunist litigants cannot be countenanced. 18. For the foregoing reasons and in view of the settled legal position, we find the judgment of the Writ Court unsustainable. We allow the appeal and set aside the judgment of the Writ Court. Consequently, the writ petition shall stand dismissed. LPA No. 128/2021 In view of the detailed reasons rendered in LPA No. 95/2021, this appeal is also allowed and judgment of the Writ Court set aside. Consequently, writ petition shall also stand dismissed. CDLSW No.18/2018 This is an application seeking condonation of delay of 170 days in filing appeal to challenge the judgement dated 26.05.2017 passed by the learned Single Judge in SWP No. 990/2017. Since the judgment impugned in this petition is entirely identical to the judgment of Writ Court set aside in LPA No. 95/2021, as such, we see no reason not to consider this appeal on merits after condoning the delay. The application, for the reason stated above, is allowed and the delay in filing the appeal is condoned. LPASW No.121/2022. Registry to diarize the appeal. In view of the detailed reasons rendered in LPA No. 95/2021, this appeal is also allowed and judgment of the Writ Court set aside. Consequently, writ petition shall also stand dismissed. CDLSW No.20/2018 This is an application seeking condonation of delay in filing appeal to challenge the judgement dated 26.09.2017 passed by the learned Single Judge in SWP No. 2372/2017. On the analogy of order condoning delay passed in CDLSW No. 18/2018, this application too deserves to be allowed. The application, for the reason stated above, is allowed and the delay in filing the appeal is condoned. LPASW No.122/2022. Registry to diarize the appeal. In view of the detailed reasons rendered in LPA No. 95/2021, this appeal is also allowed and judgment of the Writ Court set aside. Consequently, writ petition shall also stand dismissed. The application, for the reason stated above, is allowed and the delay in filing the appeal is condoned. LPASW No.122/2022. Registry to diarize the appeal. In view of the detailed reasons rendered in LPA No. 95/2021, this appeal is also allowed and judgment of the Writ Court set aside. Consequently, writ petition shall also stand dismissed. CDLSW No.21/2018 This is an application seeking condonation of delay in filing appeal to challenge the judgement dated 06.10.2017 passed by the learned Single Judge in SWP No. 2456/2017. On the analogy of order condoning delay passed in CDLSW No. 18/2018, this application too deserves to be allowed. The application, for the reason stated above, is allowed and the delay in filing the appeal is condoned. LPASW No.123/2022-. Registry to diarize the appeal. In view of the detailed reasons rendered in LPA No. 95/2021, this appeal is also allowed and judgment of the Writ Court set aside. Consequently, writ petition shall also stand dismissed. CDLSW No.22/2018 This is an application seeking condonation of delay in filing appeal to challenge the judgement dated 05.05.2017 passed by the learned Single Judge in SWP No. 1122/2017. On the analogy of order condoning delay passed in CDLSW No. 18/2018, this application too deserves to be allowed. The application, for the reason stated above, is allowed and the delay in filing the appeal is condoned. LPASW No.124/2022. Registry to diarize the appeal. In view of the detailed reasons rendered in LPA No. 95/2021, this appeal is also allowed and judgment of the Writ Court set aside. Consequently, writ petition shall also stand dismissed. CDLSW No.31/2018 This is an application seeking condonation of delay in filing appeal to challenge the judgment dated 21.07.2017 passed by the learned Single Judge in SWP No. 1815/2017. On the analogy of order condoning delay passed in CDLSW No. 18/2018, this application too deserves to be allowed. The application, for the reason stated above, is allowed and the delay in filing the appeal is condoned. LPASW No.125/2022. Registry to diarize the appeal. In view of the detailed reasons rendered in LPA No. 95/2021, this appeal is also allowed and judgment of the Writ Court set aside. Consequently, writ petition shall also stand dismissed.