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2024 DIGILAW 184 (RAJ)

State Of Rajasthan v. Abdul Gaffar S/o Jaan Mohd

2024-01-30

MADAN GOPAL VYAS, MANINDRA MOHAN SHRIVASTAVA

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JUDGMENT : 1. This appeal is directed against the order dated 06.01.2023 passed by the learned Single Judge, by which the appellant State has been directed to extend the same benefits to the respondent writ petitioner, as has been extended in the case of other employees, namely, Hemraj and Durga Lal Khatik. 2. Shorn of unnecessary details, brief factual matrix necessary for disposal of this case is that the respondent writ petitioner was initially appointed as Class-IV employee on 10.12.1985 on daily wage basis. In course of time, respondent was considered for regularization and his services were regularized w.e.f. 31.03.1994. He thereafter earned selection grade vide order dated 08.09.2003 upon completion of 9 years of service. Successive selection grade upon completion of 18 years of service was also granted. The respondent was promoted to the post of LDC on 29.06.2010. 3. It appears that two other daily wages employees, who were appointed along with the petitioner, namely Durga Lal Khatik and Hemraj had raised an industrial dispute and an award came to be passed in their favour by the Labour Court granting them benefit of regular appointment with effect from the initial date of appointment i.e. the date when they were appointed on daily wages basis. The State unsuccessfully challenged the award by filing writ petition which was dismissed. A writ appeal was though filed, the same was also dismissed for want of prosecution. 4. It appears that when benefit of the award passed by the Labour Court was extended to Durga Lal Khatik and Hemraj, the petitioner filed writ petition seeking relief that he be also granted the benefit of regular appointment including regular pay scale and other benefits from the date of his initial appointment as daily wages basis claiming parity with other two employees namely, Durga Lal Khatik and Hemraj. The writ petition has been allowed by the learned Single Judge, giving rise to this appeal. 5. The writ petition has been allowed by the learned Single Judge, giving rise to this appeal. 5. Learned counsel for the State would submit that as far as Durga Lal Khatik and Hemraj are concerned, they had raised an industrial dispute claiming various rights including right to get benefit of regular appointment from initial date and succeeded whereas, the writ petitioner herein did not take recourse to any remedy under the law but acquiesced in the action of the respondents in granting him regularization w.e.f. 31.03.1994 and grant of successive benefits like higher pay scale, selection grade and promotion on that basis. He would further submit that the award passed in favour of Durga Lal Khatik and Hemraj and subsequent orders passed by this Court cannot be said to be order in rem but were applicable only in respect of the parties to those proceedings. Therefore, those orders could not be made a basis to claim that benefit should be also extended to the writ petitioner. 6. The other submission of learned State counsel is that even if it is assumed that the award which was passed in favour of Dugra Lal Khatik and Hemraj directing regularization with effect from the date of initial appointment on daily wages basis could be passed, now the legal position stands altered in view of the authoritative pronouncement of Hon’ble Supreme Court in the case of State of Rajasthan & Ors. Vs. Jagdish Narain Chaturvedi [ 2009 (12) SCC 49 ]. It is now a settled legal position that benefit of regularization cannot be granted from date prior to regular appointment through regular selection procedure and in any case no such benefit could be extended from the date of appointment on daily wages basis, therefore, relief sought by the petitioner could not be granted only on the ground of parity and that would amount to issuance of mandamus contrary to law. Learned State counsel placed reliance on the decision of Hon’ble Supreme Court in the case of State of Uttar Pradesh & Ors. Vs. Arvind Kumar Srivastava & Ors. [ 2015 (1) SCC 347 ]. 7. Per contra, learned counsel for the respondent writ petitioner would contend before us that the writ petitioner Durga Lal Khatik and Hemraj were appointed on daily wages basis and were continued in service. Vs. Arvind Kumar Srivastava & Ors. [ 2015 (1) SCC 347 ]. 7. Per contra, learned counsel for the respondent writ petitioner would contend before us that the writ petitioner Durga Lal Khatik and Hemraj were appointed on daily wages basis and were continued in service. Even though the writ petitioner did not choose to challenge the orders passed in his case, once there was an award passed in favour of similarly situated employees which attained finality despite challenge laid to the same before the High Court, the State being a model employer, was obliged under the law to implement the spirit of the orders passed in the case of Durga Lal Khatir and Hemraj in the case of all employees including the present writ petitioner, even though he had not filed any petition challenging non grant of regularization from initial date of appointment on daily wages basis. He would further submit that the decision of Hon’ble Supreme Court in the case of Arvind Kumar Srivastava (supra) supports the case of the respondents as it has been declared as normal rule that when a particular set of employees is given relief by Court, all other identically situated persons should be treated alike by extending that benefit and not doing so would amount to discrimination and violative of Article 14 of the Constitution of India. 8. We have heard learned counsel for the parties and perused the record. 9. Undisputedly, the writ petitioner was appointed on daily wages basis in the year 1985 on a consolidated pay. The writ petitioner, later on, came to be regularized in service in the year 1994. It is also not in dispute that at the time of regularization in service, the benefit of regularization was given only from the date of the order i.e. w.e.f 31.03.1994 and not prior to that, much less from the date of initial appointment on daily wages basis. The respondent did not choose to challenge the action of the respondents insofar as the date of regularization is concerned. He accepted and continued in service. Thereafter, he was granted successive benefits of pay scale and promotion on the basis that he was regular employee w.e.f. 31.03.1994. The respondent did not choose to challenge the action of the respondents insofar as the date of regularization is concerned. He accepted and continued in service. Thereafter, he was granted successive benefits of pay scale and promotion on the basis that he was regular employee w.e.f. 31.03.1994. He accepted all these orders and benefits without challenging the action of the respondents much less raising any claim in any fora that he was entitled to be regularized in service and granted all the benefits including the benefits of selection grade, higher pay scale, promotion by granting him regular appointment with effect from the date of his initial appointment on daily wages basis. 10. It appears that the two employees namely, Durga Lal Khatik and Hemraj had raised an industrial dispute and an award came to be passed in their favour. Though a copy of award has not been filed by any of the parties before this Court, but it has been averred that in the award, Durga Lal Khatik and Hemraj were granted benefit of regular pay scale from the date of their initial appointment on daily wages basis. Learned counsel for the respondent could not satisfy that the order passed by the Labour Court or by the writ Court was an order in rem and not in personam. We do not find from any of the orders concerning the case of Durga Lal Khatik and Hemraj that those orders were directed to be made applicable to all similarly situated employees irrespective of the fact whether they had approached the Court or not. 11. In the case of Jagdish Narain Chaturvedi (supra), the principle laid down is that claim of regular appointment cannot be accepted unless the appointment has been made in substantive capacity in accordance with rules. 12. The appointment of the respondent as a daily wages employee cannot be said to be a substantive appointment. Obviously, the consideration of the case of respondent for regularization means that he was not a regular employee. It is not the case of the petitioner that the appointment was made in regular capacity in regular pay scale after following the process of selection prescribed under the law. In fact, if the petitioner has any such claim, nothing stopped him from raising such a claim. However, the petitioner did not challenge his order of appointment as daily wage employee. In fact, if the petitioner has any such claim, nothing stopped him from raising such a claim. However, the petitioner did not challenge his order of appointment as daily wage employee. In the writ petition, there is no averment that the petitioner was appointed in regular capacity. In the writ petition there is a clear averment that the petitioner was appointed on daily wages basis. The only foundation for the claim, as stated in the writ petition, is that since there was an award already passed in favour of Durga Lal Khatik and Hemraj, on the ground of parity, relief should be granted to the writ petitioner. 13. This being the factual position, in our view, a person who has been appointed on daily wages basis, in view of settled legal position, could not claim that his regularization at a later point of time should relate back to his original date of appointment on daily wages basis. 14. In the case of Jagdish Narain Chaturvedi (supra), the Court also examined the tenability of the claim in light of the peculiar facts of the case. Taking into consideration that the writ petitioner though could have challenged when the order of regularization was passed, there was no challenge to the order of regularization and benefits therefrom. The case of the writ petitioner was examined as below: “16. There is another hurdle in the way of the writ petitioners. When the order of regularisation was passed, according to learned counsel for the respondent-writ petitioners the initial appointment was a substantive appointment. If that was the position, there was need to take the proficiency test which undisputedly all the respondents have taken. If initially the appointment was a substantive appointment, the respondent-writ petitioners could have challenged when the order of regularisation was passed. There was no challenge to the order of regularisation and benefits therefrom and there was no challenge to the order of regularisation in any of the cases. If the plea of the respondent-writ petitioners is accepted it would mean that in their cases the regularisation was done long back. There was no challenge at the relevant point of time. Therefore, the belated approach only for the sake of getting advantage of ad hoc or work-charge service cannot be countenanced.” 15. In the case of Arvind Kumar Srivastava (supra), the following principles have been laid down: “22. There was no challenge at the relevant point of time. Therefore, the belated approach only for the sake of getting advantage of ad hoc or work-charge service cannot be countenanced.” 15. In the case of Arvind Kumar Srivastava (supra), the following principles have been laid down: “22. Holding that the respondents had also acquiesced in accepting the retirements, the appeal of U.P. Jal Nigam was allowed with the following reasons: 22. 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 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. 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. 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(supra). On the other hand, if the judgment of the Court was inpersonam 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. In view of the above enunciation of law, though normal rule is that when a particular set of employees is given relief by Court, all other identically situated persons need to be treated alike by extending that benefit, at the same time, as a well recognized exceptions in the form of laches and delay as well as acquiescence, it has been held that those persons who did not challenge the wrongful action in their cases and acquiesced to the same and woke up after long delay, only because of the reason that their counter parts, 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, as they would be treated as fence sitters and laches and delays and/or the acquiescence, would be a valid ground to dismiss their claim. 17. It is also to be seen that present is not a case of judgment in rem passed by the Court directing the authorities to grant benefit of regularization of pay scale from the initial date of appointment to all the employees alike who were appointed on daily wage basis. 17. It is also to be seen that present is not a case of judgment in rem passed by the Court directing the authorities to grant benefit of regularization of pay scale from the initial date of appointment to all the employees alike who were appointed on daily wage basis. Therefore, it is difficult for this Court to accept the submission of learned counsel for the respondent that the benefit which was granted to Durga Lal Khatik and Hemraj should also be extended to him. 18. On principles, we cannot accept the prayer of the respondent as in doing so, the law of the land would be violated. Once it has been held that the persons who has been appointed on daily wages basis cannot claim regularization from the initial date of appointment unless his appointment is established to be a substantive one according to the rules, grant of any such benefit on the claim of parity would amount to issuing of writ of mandamus, against the law declared by the Hon’ble Supreme Court, which is binding under Article 141 of the Constitution of India. More then anything else, latches on the part of the respondent writ petitioner also constitutes major hurdle in granting relief to him. 19. In view of the above, the order passed by the learned Single Judge cannot be upheld and is, therefore, liable to be set aside. We accordingly do so. The writ petition filed by the respondent is consequentially stands dismissed, though without any order as to costs. 20. The appeal is accordingly allowed.