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2023 DIGILAW 1855 (ALL)

State Of U. P. v. Shiv Jag Sharma

2023-08-03

SAUMITRA DAYAL SINGH, VINOD DIWAKAR

body2023
JUDGMENT : Heard Sri Ajeet Kumar Singh, learned Additional Advocate General assisted by Sri Pankaj Kumar Rai, learned Additional Chief Standing Counsel and Sri Amit Verma, learned Standing Counsel for the respondents-appellants and Sri Yogesh Kumar Saxena, learned counsel for the respondents-petitioners. 2. Present intra-court appeal has been filed against the order of the learned single judge dated 12.03.2018 passed in Writ-A No. 33526 of 2016 (Shiv Jag Sharma and others Vs. State of U.P. and others). 3. By that order, the learned single judge has allowed the writ petition, following the earlier decision of a Division Bench of this Court in Special Appeal (Defective) No. 773 of 2016 (State of U.P. and others Vs. Gorakh Nath Pandey and others), arising from an order of the another learned single judge dated 12.04.2016 in Writ-A No. 61107 of 2013 (Gorakh Nath Pandey and others Vs. State of U.P. and others). 4. In short, petitioners-respondents who had been engaged as workmen at the Churk and Dala Cement Factories established by the Government of U.P., have been directed to be paid pension, commensurate to the years of service rendered at those cement factories of the State Government, up to the cut off date i.e. 31.03.1981. They having rendered 10 years qualifying service on that date, were found eligible to that benefit, under Regulation 361 of the Civil Service Regulation. 5. Submissions of the learned Additional Advocate General are, all the petitioners-respondents were appointed as workmen at the Churk and Dala Cement Factories established by the State Government. Though, they may have served continuously for a period of 10 years in that capacity, they could never claim to be Civil Servants within the meaning of Regulation 361 of the Civil Service Regulation. The petitioners-respondents had only been appointed as workmen under the Industrial Employment (Standing Orders) Act, 1946 (hereinafter referred to as the "Act, 1946") and the Standing Order issued thereunder. Referring to the Government Order No. 1355, dated 18.04.1972, it has been submitted, the distinction between the workmen who may have worked at the above described cement factories and the other employees and officers of the State Government, who may have worked at those establishment of the government and who were governed by the Industrial Standing Orders, may never have been equalised. 6. 6. Reference has also been made to another Government Order dated 01.07.1989, to submit that the same was applicable only to Temporary Government Servants but not to workmen, who may have been engaged by the State Government. 7. Referring to another Office Order No. 3047-51, dated 02.08.2005, it has been submitted, the benefit of the pension scheme was applicable only to Officers and Temporary Government Servants of the above described cement factories, who were not governed by the Industrial Standing Orders, excluding the workmen who remained governed by the terms of the extant Industrial Standing Orders. 8. Relying on a decision of the Supreme Court in Ajit Kumar Nag Vs. General Manager (PJ), Indian Oil Corporation Limited; (2005) 7 SCC 764 , it has been strenuously urged, workmen engaged at an industrial establishment owned by the State Government may never acquire the status of a government servant. Since the petitioners-respondents continued to be workmen of the State Government, up to the date of their absorption in the U.P. Cement Corporation incorporated by the State Government w.e.f. 1.4.1981, they never acquired the status of a government/civil servant, either while working as a workman at a factory establishment owned by the State Government or at the factory of the corporation owned by the State Government. 9. That status of government servant may have been acquired by some of the petitioners-respondents who later came to be absorbed in other government departments under the U.P. Absorption of Retrenched Employees Rules, 1991, occasioned by the winding of the U.P. Cement Corporation Limited, vide order of the learned Company Judge, dated 8.12.1989. None of the petitioners-respondents have set up their claim of having completed qualifying service after the date of such absorption, as government servants. 10. In that factual premise, it has been submitted, the earlier order of the learned single judge in Gorakh Nath Pandey (supra) was based on a wrong assumption in law. It did not take note of the correct status of the petitioners in that case and proceeded to treat the workmen of the State Government to be government employees/civil servants. That mistake committed by the learned single judge was not corrected in the intra court appeal being Special Appeal (Defective) No. 773 of 2016 (State of U.P. and others Vs. Gorakh Nath Pandey and others) (hereinafter referred to as the "Gorakh Nath Pandey (supra)". 11. That mistake committed by the learned single judge was not corrected in the intra court appeal being Special Appeal (Defective) No. 773 of 2016 (State of U.P. and others Vs. Gorakh Nath Pandey and others) (hereinafter referred to as the "Gorakh Nath Pandey (supra)". 11. Upon further challenge raised by the State before the Supreme Court, that view of the co-ordinate bench of this Court was not affirmed. Thus, the Special Leave Petition (Civil) Diary No. 11199 of 2018 (State of Uttar Pradesh & Ors. Vs. Gorakh Nath Pandey & Ors.) came to be decided by the following order dated 01.05.2018 : "Delay condoned. Application for exemption from filing official translation is allowed. In the peculiar facts of this case, we are not inclined to exercise our jurisdiction under Article 136 of the Constitution of India. Hence, this special leave petition is dismissed, leaving the question of law open. Needless to say that the impugned judgment may not be treated as precedent." 12. Thus, it was only in the peculiar facts of that case found by the Supreme Court that SLP came to be dismissed. At the same time, the question of law raised in that appeal, whether a workman at a government factory could be equated as a government servant and be eligible to pension, was specifically left open. Any doubt in that regard was clarified further by the Supreme Court by observing that the said decision of the division bench of this Court would not be treated as a precedent. 13. In view of that order passed by the Supreme Court, the learned Additional Advocate General would further contend, the issue has to be examined de novo and, in any case, referred to a larger bench of the Court. 14. Since the equities are pitted directly against the law, it is not for this Court to rule in favour of equities. Here, reliance has been placed on decisions of the Supreme Court in Kamla Neti Vs. The Special Land Acquisition Officer and others; (2023) 3 SCC 528 , B. Premanand and others Vs. Mohan Koikal and others; (2011) 4 SCC 266 and P.M. Latha and another Vs. State of Kerala and others; (2003) 3 SCC 541 . 15. Last, it has been submitted, the petitioners did not approach this Court within time and therefore they are entitled to get any relief. Mohan Koikal and others; (2011) 4 SCC 266 and P.M. Latha and another Vs. State of Kerala and others; (2003) 3 SCC 541 . 15. Last, it has been submitted, the petitioners did not approach this Court within time and therefore they are entitled to get any relief. The learned single judge has erred in allowing their writ petitions. Here, reliance has been placed on three co-ordinate bench decisions of this Court, in State of U.P. and others Vs. Mohd. Israr Khan and others; Neutral Citation No. 2023:AHC:105865-DB, State of U.P. and others Vs. Gautam Das and 46 others; Neutral Citation No. 2023:AHC:105868-DB and State of U.P. and others Vs. Sant Lal Vishwakarma and others; Neutral Citation No. 2023:AHC:116438-DB. 16. On the other hand, Sri Yogesh Kumar Saxena would submit, the petitioners-respondents have not been given any benefit of service rendered by them to the U.P. Cement Corporation Limited w.e.f. 1.4.1981. Undoubtedly, those services have to be treated to have been rendered to a corporation established by the State Government. That corporation was a distinct and different entity from that of the State Government. Therefore, the dictum of the Supreme Court in Ajit Kumar Nag (supra) is wholly inapplicable to the present facts, inasmuch as that ratio had arisen in the context of employees of a State owned corporation only. In that case, it was never in dispute, if a workman under the industrial establishment owned by the State Government may stand on the same footing as a government servant or a civil servant. 17. The precise issue that had arisen in the present case was dealt with by the State Government by first issuing Government Order No. 1355, dated 18.04.1972 dealing with the nomenclature of employees of the State Government. Then, vide further Government Order dated 01.07.1989, it was specifically provided that the retiral benefits due to Government Servants would extend to Temporary Government Servants as well. In any case, on 02.08.2005, the State Government being cognizant of the fact situation applicable to the present case namely workmen of the industrial establishment owned by it had been permanently absorbed by a corporation established by it, w.e.f 1.4.1981. In that context, the workmen of the State Government were described as employees with reference to whom provision was being made by means of the said Office Order. In that context, the workmen of the State Government were described as employees with reference to whom provision was being made by means of the said Office Order. Paragraph-3 of the said order clearly refers to the workmen of the Cement Factories, Churk and Dala of the State Government. The State Government then announced its decision to extend the pensionary benefits to such workmen treating/equating them to be Temporary Government Servants to whom such benefit had been extended by the earlier Government Order dated 01.07.1989. 18. That decision having been made by the State Government itself and implemented, the petitioners were clearly entitled to its benefits. The distinction, if any that was being drawn, was dealt with by the learned single judge in Gorakh Nath Pandey (supra). Thereupon, it was found, having worked for more than 10 years in the cement factory established by the State Government, those workmen were entitled to pensionary benefits under the self-same Government Order (discussed above). 19. Upon challenge laid to the said order of the learned single judge, a division bench of this Court dealt with the self-same issue and repelled the submission as is now being advanced on behalf of the State Government. After a detailed discussion of the provisions of the Civil Service Regulation, the co-ordinate Bench reached a conclusion that the workmen of the industrial establishment owned by the State Government would remain entitled to pensionary benefits as government servants. 20. While the Supreme Court may not have fully approved and thus affirmed the order of the co-ordinate Bench, it did not reverse the same and in any case, it did not lay down any contrary law. The later observation made in that order leaving the question of law open and not for that reason allowing that decision of the co-ordinate bench to be made precedent, only indicates that the same is not to be applied by way of reasoning if facts are different. 21. Insofar as the same facts are shown to exist in the present case as existed in Gorakh Nath Pandey (supra), peculiarity of facts noted by the Supreme Court in the third paragraph of its order dated 1.5.2018 obtains in the present case, as well. It is not the case of the State-respondents that the present set of respondents stand on a different footing than the petitioners in Gorak Nath Pandey (supra). It is not the case of the State-respondents that the present set of respondents stand on a different footing than the petitioners in Gorak Nath Pandey (supra). Therefore, while no law may have arisen as may bind the Court in future decisions, at the same time, the rule of consistency and principles of equity would dictate, the Court may not draw any distinction as may itself lead to equals being treated unequally. Relying on a decision of the Supreme Court in Modified Voluntary Retirement Scheme of 2002 of Azam Jahi Mill Workers Association Vs. National Textile Corporation Limited and others; [2021 (4) ESC 880 (SC), it has been strenuously urged that the Court itself may not pass any order as may result in equals being treated unequally. As to delay, it has been submitted, neither such ground was raised before the learned single judge nor there is any inordinate delay on the part of the petitioner in the present case. These petitions were filed immediately after pronouncement by the learned single judge in Gorakh Nath Pandey (supra). 22. Having heard learned counsel for the parties and having perused the record, we find the coordinate Bench in Gorakh Nath Pandey (supra) had the occasion to deal with the exact same submissions being advanced in the present appeal. There also, an issue had been raised that exactly similarly situated workmen of a cement factory established by the State Government may not have been equated to civil servants and, therefore, they may not be found entitled to pensionary benefits under Regulation 361 of the Civil Service Regulations. Pertinent to the dispute before us, the co-ordinate bench had observed as under: "Crux of the submission of the learned Advocate General therefore, is what once the petitioners are found to answer the description of workmen/industrial employees within the meaning of to be assigned under the Standing Orders Act, they stand excluded from the definition of a person appointed to a civil post or in civil service within the meaning of U.P. Fundamental Rules/Civil Service Regulations and therefore they are not entitled to pension. We specifically inquired from the learned Advocate General as to under which provision of the U.P. Fundamental Rules/Civil Service Regulations/Standing Orders Act, any such exclusion in respect of the persons who are workmen are not being a person appointed to a civil post. No response could be given. We specifically inquired from the learned Advocate General as to under which provision of the U.P. Fundamental Rules/Civil Service Regulations/Standing Orders Act, any such exclusion in respect of the persons who are workmen are not being a person appointed to a civil post. No response could be given. It is more or less an admitted position that there is no specific provision for excluding the workmen/industrial employees in the matter of payment of pension/retiral dues, who otherwise satisfy all the conditions as contemplates by Regulation 361 of the Civil Service Regulations. The Standing Orders Act has been enforced with an object to law down the condition of service like disciplinary action, leave, allowances etc. so as to minimize the fraction between the workmen and employer in Industrial Undertaking. Such Industrial Undertaking can be private undertaking or Government Undertaking or Public Private Undertaking. It is useful to refer to the definition of employer contained in Section 2 (d) (ii) of the Act, 1946, which reads as follows: "2. Interpretation. (d) "employer"....... (ii) in any industrial establishment under the control of any department of any Government in India, the authority appointed by such Government in this behalf, or where no authority is so appointed, the head of the department;" Thus, it will be seen that a Government may own industrial undertaking and in that circumstance, a employee working in such an industrial undertaking has to be held to be in service of Government and if the appointment is substantive and his service is to be paid by the Government, he stands covered by the provisions of Regulation 361 of the Civil Service Regulations, which entitles him to pension. For ready reference, Regulation 361 of the Civil Service Regulations reads as under: "361. The service of an officer does not qualify for pension unless it conforms to the following three conditions:--- First-The service must be under Government. Second-The employment must be substantive and permanent. Third-The service must be paid by Government." We may explain that use of the word "civil service" under Civil Service Regulations has to be read to include all nature of employment in the Government, except those which are in relation to defence service or service connected with defence. Second-The employment must be substantive and permanent. Third-The service must be paid by Government." We may explain that use of the word "civil service" under Civil Service Regulations has to be read to include all nature of employment in the Government, except those which are in relation to defence service or service connected with defence. Civil Service as defined in The New Dictionary of Cultural Literacy, Third Edition by Houghton Mifflin Company reads as under: "The nonmilitary personnel who work for a government, applying its laws and regulations." In our opinion the service conditions laid down as per the Certified Standing Orders, the Act, 1946 do not in any way impinge upon the right of a employee working in a Government Industrial Undertaking to be entitled to pension and other retiral dues under Regulation 361 of Civil Service Regulations. Provisions of Regulation 361 of the Civil Service Regulations are a beneficial piece of legislation and we do not find any reason for the persons who are covered by the Certified Standing Orders to be excluded from the benefits of Regulation 361 of the Civil Service Regulations, if they satisfy the other requirements of Regulation 361 of the Civil Service Regulations. In our opinion even a workman/industrial employee of Government Industrial Undertaking has to be held to be a civil servant/holder of a civil post under the Government so as to be covered within the meaning of Regulation 361 of the Civil Service Regulations. There is no issue with regard to other employees appointed in Factory at Churk and subsequently absorbed in the Corporation being paid pension in terms of the Government Order dated 2nd August, 2005. We for the reasons recorded above see no reason as to why the workmen/industrial employees similarly appointed and absorbed be denied the same benefit. It is held that petitioners who answer the description of industrial employees/workmen shall also be covered by the Government Order dated 2nd August, 2005 and would be entitled to all benefits following therefrom. In the totality of the circumstances on record we do not find any substance in the contentions raised by the learned Advocate General for the State to interfere with the judgment and order of the learned Single Judge dated 12th April, 2016. All these appeals lack merit and are accordingly dismissed." 23. Thus, we find, exact same submission had been raised before the coordinate Bench. All these appeals lack merit and are accordingly dismissed." 23. Thus, we find, exact same submission had been raised before the coordinate Bench. It had been dealt with and repelled on the reasoning that the petitioners (in that case), were specifically included for the purpose of grant of pensionary benefit upon the decision made by the State Government dated 02.08.2005. Even today, it is no one's case that the above Office Order issued by the Commissioner and Director, Industries, Government of U.P., was later withdrawn or amended, at any subsequent date. That decision of the State Government has not only remained in existence, but it was also enforced against the State Government in Gorakh Nath Pandey (supra). 24. Therefore, the mere reference to the Standing Order containing the terms and conditions of engagement of the petitioners-respondents as workmen establishes that technically it is true that the workmen of the industrial establishment may stand on a different footing than an employee of the State Government enjoying status of an employee engaged under separate Rules. That technical deficiency of status though may always be recognized by the Courts, yet, it is always open to the State-government/employer to still treat its workmen equal to its other employees, for grant of pensionary benefit. In the context of a welfare State, that exact decision does appear to have been made by the State Government in favour of the present petitioners-respondents on 02.08.2005 when it decided, despite being conscious of the above distinction of the status of the petitioners-respondents, to grant them pensionary benefits by equating them with other government employees. Relevant extract of the Office Order dated 02.08.2005 reads as below: 25. It was never for this Court to question the wisdom of the State Government in taking that administrative decision. Insofar as that decision was permissible to be taken by the State Government, apparently while pursuing the welfarist objectives under the Constitution of India, we do not find that decision to be per se illegal or contrary to law. Having failed to specifically exclude the workmen from the scope of application of that order, it was not fair for the respondent-appellant/State, to now set up this plea. 26. As to reason, we find the learned single judge did not find any occasion to take a different view to that taken by the coordinate bench, in Gorakh Nath Pandey (supra). Having failed to specifically exclude the workmen from the scope of application of that order, it was not fair for the respondent-appellant/State, to now set up this plea. 26. As to reason, we find the learned single judge did not find any occasion to take a different view to that taken by the coordinate bench, in Gorakh Nath Pandey (supra). The learned single judge felt inclined to follow the decision of the co-ordinate bench in Gorakh Nath Pandey (supra). In the peculiar facts of the present case namely, the State Government having itself chosen to treat the industrial workmen appointed by it at its erstwhile cement factories at Churk and Dala, to be entitled to pensionary benefits and in view of the exact identity of facts between present petitioners-respondents and in Gorakh Nath Pandey (supra), and further, in absence of any dispute to the continued applicability of the Office Order dated 02.08.2005 issued by the State Government, read in conjunction with the Government Orders dated 18.04.1972 and 01.07.1989, to such industrial workmen, they having fulfilled the requirement of qualifying service of 10 years on the cutoff date i.e. 31.3.1981, we do not see any wrong principle had been applied by the learned single judge, in this case. 27. In Wander Ltd. Vs Antox India P. Ltd. 1990 (Supp) SCC 727, in an appeal arising from an interlocutory injunction, the Supreme Court disapproved the approach of the division bench of the High Court, in interfering with the interlocutory order of the learned single judge. In that, it was laid down: “14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pothan Joseph [ (1960) 3 SCR 713 : AIR 1960 SC 1156 ] : (SCR 721) “... These principles are well established, but as has been observed by Viscount Simon in Charles Osenton & Co. v. Jhanaton [1942 AC 130] ‘...the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case’.” The appellate judgment does not seem to defer to this principle”. 28. That principle was then applied by the Supreme Court to intra court appeals arising in writ jurisdiction, in Roma Sonkar v. M.P. State Public Service Commission, (2018) 17 SCC 106 . It was observed: “3. We have very serious reservations whether the Division Bench in an intra-court appeal could have remitted a writ petition in the matter of moulding the relief. It is the exercise of jurisdiction of the High Court under Article 226 of the Constitution of India. The learned Single Judge as well as the Division Bench exercised the same jurisdiction. Only to avoid inconvenience to the litigants, another tier of screening by the Division Bench is provided in terms of the power of the High Court but that does not mean that the Single Judge is subordinate to the Division Bench. The learned Single Judge as well as the Division Bench exercised the same jurisdiction. Only to avoid inconvenience to the litigants, another tier of screening by the Division Bench is provided in terms of the power of the High Court but that does not mean that the Single Judge is subordinate to the Division Bench. Being a writ proceeding, the Division Bench was called upon, in the intra-court appeal, primarily and mostly to consider the correctness or otherwise of the view taken by the learned Single Judge. Hence, in our view, the Division Bench needs to consider the appeal(s) on merits by deciding on the correctness of the judgment of the learned Single Judge, instead of remitting the matter to the learned Single Judge”. 29. We thus prefer to look through the filter of principle to be applied to the undisputed rather, admitted facts. To the extent, we find no fault in exactly similar citizens being treated similarly (on the force of an earlier division bench decision of this Court, that was not upturned in the challenge raised to it before the Supreme Court), at the cost of the respondent-State, that is otherwise sworn to pursue the constitutional ideology of a welfarism. The beneficiaries of that equality being affirmed through the agency of equitable relief granted, being individual workmen who had been engaged by the State Government, we find no error of principle applied by the learned single judge, in granting them the relief, following the earlier decision of the coordinate bench in Gorakh Nath Pandey (supra). 30. Thus, in the present facts, we decline to examine if an industrial workman (appointed with that status by the State Government), would hold the status equivalent to that of a Government Servant or a Civil Servant. We are inclined to affirm the decision of the learned single judge that is found based on the decision of the co-ordinate Bench in Gorakh Nath Pandey (supra). In the peculiar facts of the present case namely noted above we find no error of principle applied by the learned single judge, in allowing the writ petition in terms of Gorakh Nath Pandey (supra). 31. As noted above, that conscious and beneficial decision was taken by the State Government. In the peculiar facts of the present case namely noted above we find no error of principle applied by the learned single judge, in allowing the writ petition in terms of Gorakh Nath Pandey (supra). 31. As noted above, that conscious and beneficial decision was taken by the State Government. It is not the case of the State Government that the said Executive Order was in conflict with any statutory or other law, that Executive Order created the force of law, to the extent the State Government may not be permitted to either ignore it or to exercise whims or to pick and choose between exactly similarly situated persons – to grant its benefit to some to deny it to others. To that extent the Executive Order remains enforceable, and in any case lays down an administrative principle that may be applied universally, to all persons falling within its ambit, without any element of arbitrariness. 32. Coming to the order of the Supreme Court, we find, no exaggerated intent may be drawn from the use of the phraseology in that order, either to the words "peculiar facts in this case" or "leaving the question of law open" or "impugned judgement may not be treated as precedent". It is settled law that an order of the Supreme Court dismissing Special Leave Petition does not itself lay down any law as was observed by the Supreme Court in V.M. Salgaocar & Bros. (P) Ltd. v. CIT, (2000) 5 SCC 373 , observed as under: “8. Different considerations apply when a special leave petition under Article 136 of the Constitution is simply dismissed by saying “dismissed” and an appeal provided under Article 133 is dismissed also with the words “the appeal is dismissed”. In the former case it has been laid by this Court that when a special leave petition is dismissed this Court does not comment on the correctness or otherwise of the order from which leave to appeal is sought. But what the Court means is that it does not consider it to be a fit case for exercise of its jurisdiction under Article 136 of the Constitution. That certainly could not be so when an appeal is dismissed though by a non-speaking order. Here the doctrine of merger applies. But what the Court means is that it does not consider it to be a fit case for exercise of its jurisdiction under Article 136 of the Constitution. That certainly could not be so when an appeal is dismissed though by a non-speaking order. Here the doctrine of merger applies. In that case, the Supreme Court upholds the decision of the High Court or of the Tribunal from which the appeal is provided under clause (3) of Article 133. This doctrine of merger does not apply in the case of dismissal of a special leave petition under Article 136. When an appeal is dismissed the order of the High Court is merged with that of the Supreme Court. We quote the following paragraph from the judgment of this Court in the case of Supreme Court Employees' Welfare Assn. v. Union of India [ (1989) 4 SCC 187 : 1989 SCC (L&S) 569] : (SCC pp. 20607, para 22) “22. It has been already noticed that the special leave petitions filed on behalf of the Union of India against the said judgments of the Delhi High Court were summarily dismissed by this Court. It is now a well-settled principle of law that when a special leave petition is summarily dismissed under Article 136 of the Constitution, by such dismissal this Court does not lay down any law, as envisaged by Article 141 of the Constitution, as contended by the learned Attorney General. In Indian Oil Corpn. Ltd. v. State of Bihar [ (1986) 4 SCC 146 : 1986 SCC (L&S) 740] it has been held by this Court that the dismissal of a special leave petition in limine by a non-speaking order does not justify any inference that, by necessary implication, the contentions raised in the special leave petition on the merits of the case have been rejected by the Supreme Court. It has been further held that the effect of a nonspeaking order of dismissal of a special leave petition without anything more indicating the grounds or reasons of its dismissal must, by necessary implication, be taken to be that the Supreme Court had decided only that it was not a fit case where special leave petition should be granted. In Union of India v. All India Services Pensioners' Assn. In Union of India v. All India Services Pensioners' Assn. [ (1988) 2 SCC 580 : 1988 SCC (L&S) 651 : (1988) 7 ATC 449] this Court has given reasons for dismissing the special leave petition. When such reasons are given, the decision becomes one which attracts Article 141 of the Constitution which provides that the law declared by the Supreme Court shall be binding on all the courts within the territory of India. It, therefore, follows that when no reason is given, but a special leave petition is dismissed simpliciter, it cannot be said that there has been a declaration of law by this Court under Article 141 of the Constitution.” 33. Then, in Kunhayammed v. State of Kerala, (2000) 6 SCC 359 , the Supreme Court further explained the effect of dismissal of a Special Leave to Appeal petition, thus: “27. A petition for leave to appeal to this Court may be dismissed by a non-speaking order or by a speaking order. Whatever be the phraseology employed in the order of dismissal, if it is a non-speaking order, i.e., it does not assign reasons for dismissing the special leave petition, it would neither attract the doctrine of merger so as to stand substituted in place of the order put in issue before it nor would it be a declaration of law by the Supreme Court under Article 141 of the Constitution for there is no law which has been declared. If the order of dismissal be supported by reasons then also the doctrine of merger would not be attracted because the jurisdiction exercised was not an appellate jurisdiction but merely a discretionary jurisdiction refusing to grant leave to appeal. We have already dealt with this aspect earlier. Still the reasons stated by the Court would attract applicability of Article 141 of the Constitution if there is a law declared by the Supreme Court which obviously would be binding on all the courts and tribunals in India and certainly the parties thereto. The statement contained in the order other than on points of law would be binding on the parties and the court or tribunal, whose order was under challenge on the principle of judicial discipline, this Court being the Apex Court of the country. No court or tribunal or parties would have the liberty of taking or canvassing any view contrary to the one expressed by this Court. No court or tribunal or parties would have the liberty of taking or canvassing any view contrary to the one expressed by this Court. The order of Supreme Court would mean that it has declared the law and in that light the case was considered not fit for grant of leave. The declaration of law will be governed by Article 141 but still, the case not being one where leave was granted, the doctrine of merger does not apply. The Court sometimes leaves the question of law open. Or it sometimes briefly lays down the principle, may be, contrary to the one laid down by the High Court and yet would dismiss the special leave petition. The reasons given are intended for purposes of Article 141. This is so done because in the event of merely dismissing the special leave petition, it is likely that an argument could be advanced in the High Court that the Supreme Court has to be understood as not to have differed in law with the High Court. 40. A petition seeking grant of special leave to appeal may be rejected for several reasons. For example, it may be rejected (i) as barred by time, or (ii) being a defective presentation, (iii) the petitioner having no locus standi to file the petition, (iv) the conduct of the petitioner disentitling him to any indulgence by the court, (iv) the question raised by the petitioner for consideration by this Court being not fit for consideration or deserving being dealt with by the Apex Court of the country and so on. The expression often employed by this Court while disposing of such petitions are — “heard and dismissed”, “dismissed”, “dismissed as barred by time” and so on. May be that at the admission stage itself the opposite party appears on caveat or on notice and offers contest to the maintainability of the petition. The Court may apply its mind to the merit worthiness of the petitioner's prayer seeking leave to file an appeal and having formed an opinion may say “dismissed on merits”. Such an order may be passed even ex parte, that is, in the absence of the opposite party. In any case, the dismissal would remain a dismissal by a non-speaking order where no reasons have been assigned and no law has been declared by the Supreme Court. Such an order may be passed even ex parte, that is, in the absence of the opposite party. In any case, the dismissal would remain a dismissal by a non-speaking order where no reasons have been assigned and no law has been declared by the Supreme Court. The dismissal is not of the appeal but of the special leave petition. Even if the merits have been gone into, they are the merits of the special leave petition only. In our opinion neither doctrine of merger nor Article 141 of the Constitution is attracted to such an order. Grounds entitling exercise of review jurisdiction conferred by Order 47 Rule 1 CPC or any other statutory provision or allowing review of an order passed in exercise of writ or supervisory jurisdiction of the High Court (where also the principles underlying or emerging from Order 47 Rule 1 CPC act as guidelines) are not necessarily the same on which this Court exercises discretion to grant or not to grant special leave to appeal while disposing of a petition for the purpose. Mere rejection of a special leave petition does not take away the jurisdiction of the court, tribunal or forum whose order forms the subject-matter of petition for special leave to review its own order if grounds for exercise of review jurisdiction are shown to exist. Where the order rejecting an SLP is a speaking order, that is, where reasons have been assigned by this Court for rejecting the petition for special leave and are stated in the order still the order remains the one rejecting prayer for the grant of leave to appeal. The petitioner has been turned away at the threshold without having been allowed to enter in the appellate jurisdiction of this Court. Here also the doctrine of merger would not apply. But the law stated or declared by this Court in its order shall attract applicability of Article 141 of the Constitution. The reasons assigned by this Court in its order expressing its adjudication (expressly or by necessary implication) on point of fact or law shall take away the jurisdiction of any other court, tribunal or authority to express any opinion in conflict with or in departure from the view taken by this Court because permitting to do so would be subversive of judicial discipline and an affront to the order of this Court. However this would be so not by reference to the doctrine of merger. 44. To sum up, our conclusions are: (iv) An order refusing special leave to appeal may be a nonspeaking order or a speaking one. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed. (v) If the order refusing leave to appeal is a speaking order, i.e., gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the Apex Court of the country. But, this does not amount to saying that the order of the court, tribunal or authority below has stood merged in the order of the Supreme Court rejecting the special leave petition or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties. (emphasis supplied) 34. Insofar as no reason has been ascribed in the order of the Supreme Court dated 1.5.2018, there is no merger and no law declared under Article 141 of the Constitution of India. Then, the further observation of the Supreme Court, that the law declared by the coordinate bench of this Court, would not have precedential value, only amounts to leaving this Court completely free to take a contrary view, in any other case, if facts so justify. At the same time, in absence of any reason whatsoever, given by the Supreme Court, while deciding that Special Leave to Appeal, it did not lay down any principle of law to be applied to such other case. Therefore, the learned single judge may not have erred in principle, in following the earlier coordinate bench decision of this Court, in Gorakh Nath Pandey (supra). 35. Therefore, the learned single judge may not have erred in principle, in following the earlier coordinate bench decision of this Court, in Gorakh Nath Pandey (supra). 35. Therefore, to us, the order of the Supreme Court maintained the fact conclusions reached by the coordinate bench leading to the relief granted by it, in those facts. To that extent, the order of the Supreme Court is not an order negating or disapproving the fact reasoning given by the coordinate bench. Rather, it grants finality to that decision. There is no doubt that the said decision of the coordinate bench has attained finality. No review application or other proceedings was instituted by the State before the Supreme Court, or this Court, in that matter. 36. As to the peculiar facts in which the Supreme Court passed the above order, we are inclined to accept the submission of the learned counsel for the petitioners-respondents that that exact peculiarity of facts exists and obtains in the present set of proceedings, as well. It is not in dispute that the petitioners-respondents were initially engaged as workmen by the State Government to work at its industrial establishment namely -Churk and Dala Cement Factories. It is also not in dispute that the petitioners-respondents continued to work in that capacity for a period of 10 years or more, allowing them to describe themselves as persons who had rendered qualifying service for the purposes of eligibility to claim pension. It is also not in dispute that the petitioners-respondents have not claimed any pension for any length of service rendered by them as employees of the U.P. Cement Corporation. Those exact facts existed in the case of Gorakh Nath Pandey (supra). There is not the slightest difference in essential facts in these two sets of proceedings. 37. It is on those facts that the decision of the learned single judge arose in the first set of cases, namely, Gorakh Nath Pandey (supra), that was confirmed by the coordinate bench of this Court. Unless some distinct fact feature was shown to exist, the writ Court which remains a Court of equity may not reach a different fact conclusion and thus lead itself to treat equals, unequally. In Azam Jahi Mill Workers Association (supra), a group of workers of the said mill were granted voluntary retirement. Of that group, one set of workers vacated their official quarters earlier, voluntarily. In Azam Jahi Mill Workers Association (supra), a group of workers of the said mill were granted voluntary retirement. Of that group, one set of workers vacated their official quarters earlier, voluntarily. Another set of workers continued in occupation. Later, to secure the possession of the premises thus illegally occupied by its retired employees, the management floated a scheme to provide for allotment of alternative land, to secure the vacant possession of its premises. The first set of retired employees who had voluntarily vacated the premises were denied that benefit. In that context, proceedings arose, and the Supreme Court made the following pertinent observations in that regard: "9.3 The concept of equality before the law and equal protection of the laws emerges from the fundamental right expressed in Article 14 of the Constitution. Equality is a definite concept. The concept of equality has an inherent limitation arising from the very nature of the constitutional guarantee. Those who are similarly circumstanced are entitled to an equal treatment. Equality is amongst equals. Classification is therefore to be founded on substantial differences which distinguish persons grouped together from those left out of the groups and such differential attributes must bear in just and rational relation to the object sought to be achieved. In a given case Article 14 of the Constitution may permit a valid classification. However, a classification to be followed must necessarily satisfy two tests. Firstly, the distinguishing rationale has to be based on a just objective and secondly, the choice of differentiating one set of persons from another must have a reasonable nexus to the objects sought to be achieved. In the present case allotment of 200 Sq.Yards free of cost to 134 employees was to avoid undue hardship to the ex-employees and as a welfare measure. As observed hereinabove those 318 ex-employees who are denied the benefit of allotment of 200 Sq.Yards of plots free of cost are similarly placed persons with that of 134 employees who are allotted 200 Sq.Yards plots free of cost. There is no rationale justification in providing differential treatment to one class of ex-employees similarly placed with another class of ex-employees who are allotted the plots." 38. The decisions referred to and relied upon by the learned Additional Advocate General ruling in favour of principle, law would prevail over simple equity, are not apposite to the present facts. There is no rationale justification in providing differential treatment to one class of ex-employees similarly placed with another class of ex-employees who are allotted the plots." 38. The decisions referred to and relied upon by the learned Additional Advocate General ruling in favour of principle, law would prevail over simple equity, are not apposite to the present facts. That principle may have been applied, if there did not exist any Government Order dated 18.04.1972 and 01.07.1989 and further, if conscious decision had not been made by the State Government itself on 02.08.1985, to grant pensionary benefits to all its erstwhile employees who had been appointed at the Cement Factories, Dala and Churk, without specifically excluding the workmen. More critically, that principle in law may have been applied if this Court had not found Gorakh Nath Pandey and other exactly similarly situated persons entitled to the relief of pensionary benefits. That equalization with civil/government servants, granted to industrial workmen of the cement factories of the State Government at Dala and Churk, even if granted on the peculiar facts found in that case, strongly commends that the learned single judge did not err in granting that relief to the petitioners-respondents, on the own strength and force of equity. 39. Having failed to establish any distinction before the co-ordinate bench, in Gorakh Nath Pandey (surpa), and that decision having not been upturned by the Supreme Court, we do not find this a fit case to interfere on the submission advanced by the learned Additional Advocate General that the basic difference in status between a civil servant and an industrial workman, must always maintain. The respondent-appellant/State may not be permitted to re-agitate that issue, in these proceedings. That exercise, if permitted, may only lead to absolute equals being treated unequally by the writ Court. Thus, we do not find the equities being pitted against the law; rather, we find, in the present facts, the equities are running parallel to the result that arose in law i.e., upon dismissal of the Special Leave Petition in Gorakh Nath Pandey (supra). 40. Since the equality claimed was to a final order of a coordinate bench that has attained finality, it is that ‘law’ that the present set of petitioners-appellants sought benefit of, on an equitable principle. 40. Since the equality claimed was to a final order of a coordinate bench that has attained finality, it is that ‘law’ that the present set of petitioners-appellants sought benefit of, on an equitable principle. It has been granted by the learned single judge in exercise of the extraordinary discretionary jurisdiction of the Court under Article 226 of the Constitution of India. 41. In the context of service jurisprudence, the normal rule remains i.e. when a particular set of employees is given relief by the Court, all other identically situated persons are to be treated alike by extending that benefit. Not extending that benefit would itself amount to discrimination in violation of Article 14 of the Constitution of India. That principle was recognized in State of U.P. and others Vs. Arvind Kumar Srivastava and others (2015) 1 SCC 347 . However, the exception to that rule arising from gross delay and laches was also recognized and applied in that decision. Since there were unexplained delay and laches, such relief granted by the Tribunal as was confirmed by the High Court, was reversed by the High Court. However, the discussion as to the rule and its exception insofar as it is relevant case, contained in paragraph-22, is quoted hereinbelow : “22.1. The 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. 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. 22.3. 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 (1997) 6 SCC 721 : 1998 SCC (L&S) 226. 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 27 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.” 42. In the present case, there are no gross or unexplained delay and laches. The decision in Gorakh Nath Pandey (supra), is dated 12.04.2016 arising on writ petition filed in year 2013, whereas the petitions giving rise to the present batch of appeal were filed soon thereafter, in the year 2016 itself. In the present case, there are no gross or unexplained delay and laches. The decision in Gorakh Nath Pandey (supra), is dated 12.04.2016 arising on writ petition filed in year 2013, whereas the petitions giving rise to the present batch of appeal were filed soon thereafter, in the year 2016 itself. The petition giving rise to the present appeal having filed immediately after declaration of the law in Gorakh Nath Pandey (supra), we do not find the writ petition to have been filed with gross or unexplained delay and laches. 43. As discussed above, while exercising intra-court appeal jurisdiction, we remain within the confines of the same jurisdiction. Discretion vested in the Court having been exercised by the learned single judge, in favour of the petitioners-respondents, may not be interfered with in absence of any wrong application of principle by the learned single judge. Thus, we remain disinclined to take a contrary view as may seek to negate the discretion exercised, since we are unable to see material difference of facts existing, as may require or compel us to entertain any different view in law or on equity as may further compel us to make a reference to a larger bench. 44. Thus, we restrain the State Government from picking and choosing or differentiating between exactly similarly situated persons, for the purpose of grant of benefit of the Office Order dated 02.08.2005. To that extent we apply the principle laid down in Azam Jahi Mill Workers Association (supra). 45. In view of the above, we find no good ground to treat the petitioners differently from the petitioners in Gorakh Nath Pandey (supra). 46. Accordingly, the appeal fails and is dismissed. 47. No order as to costs.