Allowed

State of U.P. Thru.Secy.Mahila Evam Bal Vikas Dept. andANR. v. Narendra Kumar Tiwari and Ors.

Allahabad HC6 Feb 2023WRIA/24951/2021

Case brief

AI extract

What is this about?

The High Court allowed a writ petition, holding that the Tribunal erred in permitting a claim for promotional pay-scale filed in 2018. The Court ruled the claim was barred by limitation as it was time-barred shortly after the benefit was granted to a similar employee in 2001, and the delay was not excusable.

What did the court decide?

Quashed the Tribunal's order allowing the claim and dismissed the Claim Petition as barred by time.

State of U.P. Thru.Secy.Mahila Evam Bal… — Pension and Retirement Benefits | Allahabad HC (2023)

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Court No. - 1

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Case :- WRIT - A No. - 24951 of 2021

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Petitioner :- State Of U.P. Thru.Secy.Mahila Evam Bal Vikas Dept. Andanr.

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Respondent :- Narendra Kumar Tiwari And Ors. Counsel for Petitioner :- C.S.C. Counsel for Respondent :- Shikhar Anand,Julfikar Ahmad,Naveen Kumar Sinha

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Hon'ble Ramesh Sinha,J. Hon'ble Subhash Vidyarthi,J.

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(1) Heard Shri Anand Singh, learned Standing Counsel for State-petitioners, Shri Julfikar Ahmad, learned counsel for respondent nos.1, 4 and 5 and Shri Alok Kumar Tiwari, Advocate holding brief of Shri Shikhar Anand, learned counsel for respondent nos.2 and 3.

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(2) By means of the instant writ petition, the petitioner- State of U.P. has challenged the judgment and order dated 23.10.2020 passed by the State Public Services Tribunal (hereinafter referred to as "the Tribunal" ), allowing the Claim Petition No.1066 of 2018.

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(3) The aforesaid Claim Petition was filed by respondent nos.1 to 5 to the writ petition claiming payment of promotional payscale of Rs.8,000-13,500/-, as modified by the Government Order dated 02.12.2000.

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(4) Briefly stated, facts of the case are that one Smt. Rajendri Verma had been appointed on the post of Junior Associate (Women) in the pay-scale of Rs.5,000-8,000/- and by means of an order dated 11.05.2001, she was granted the promotional pay-scale of Rs.5,500-9,000/- and thereafter by making partial modification in the order, she was granted pay-scale of

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Rs.8,000-13,000/-, upon completion of 14 years of service. One Shri Ram Kushwaha had filed Claim Petition No.1255 of 2005 claiming the same benefit and the Claim Petition filed by him was decided in his favour. The respondent nos.1 to 5 filed a representation claiming similar benefit, which was rejected on 24.10.2018 and the aforesaid order was challenged by filing Claim Petition No.1066 of 2018 and a claim was made for payment of the promotional pay-scale, which was being paid to Shri Ram Kushwaha.

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(5) The State of U.P. opposed the Claim Petition as being time barred on the ground that the same had been filed 13 years after filing of the Claim Petition of Shri Ram Kushwaha, when all the claimants had retired after attaining the age of superannuation. The Tribunal rejected the aforesaid petition on the ground that the claimants' representation was rejected on 24.10.2018 and, therefore, the petition was filed within time.

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(6) Section 5 (1)(b) of the U.P. Public Service (Tribunals) Act, 1976 provides as follows:-

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" (b) The provisions of the Limitation Act, 1963 shall mutatis mutandis apply to reference under section 4 as if a reference were a suit filed in civil court so, however, that:-

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(i) Notwithstanding the period of limitation prescribed in the Schedule to the said Act, the period of limitation for such reference shall be one year;

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(ii) In computing the period of limitation the period beginning with the date on which the public servant makes a representation or prefers an appeal, revision or any other petition (not being a memorial to the Governor), in accordance with the rules or orders regulating his conditions of service, and ending with the date on which such public servant has knowledge of the final order passed on such representation, appeal, revision or petition, as the case may be, shall be excluded "

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(7) Shri Anand Singh, learned Standing Counsel for State-

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petitioner has submitted that the cause of action for claiming the promotional pay-scale on the ground of parity, accrued to the claimants when the same was granted to Smt. Rajendri Verma, in the year 2001. The period of limitation of one year prescribed in Section 5 of the U.P. Public Service (Tribunals) Act, 1976 expired in the year 2002 and, therefore, the Claim Petition No.1066 of 2018 was highly time barred. He has further submitted that once the limitation period stood expired, the same would not revive by mere submission of a representation and rejection thereof.

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(8) Shri Singh has further placed reliance upon the decision of Supreme Court in C. Jacob vs. Director of Geology and Mining Indus. Est. and another ; 2008 (10) SCC 115 , wherein the Apex Court has held that " when an order is passed considering and rejecting the claim or representation, in compliance with direction of the court or tribunal, such an order does not revive the stale claim, nor amount to some kind of `acknowledgment of a jural relationship' to give rise to a fresh cause of action. "

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(9) The aforesaid discussion in C. Jacob (supra) was followed in Union of India & Ors. vs. M.K. Sarkar ; 2010 (2) SCC 59 , wherein the Apex Court has held that "w hen a belated representation in regard to a stale' or dead' issue/dispute is considered and decided, in compliance with a direction by the Court/Tribunal to do so, the date of such decision can not be considered as furnishing a fresh cause of action for reviving the `dead' issue or time-barred dispute. The issue of limitation or delay and laches should be considered with reference to the original cause of action and not with reference to the date on which an order is passed in compliance with a court's direction. Neither a court's direction to consider a representation issued

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without examining the merits, nor a decision given in compliance with such direction, will extend the limitation, or erase the delay and laches. "

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(10) Replying to the aforesaid submission, Shri Julfikar Ahmad, learned counsel for the respondent nos.1 to 5 has submitted that benefit of promotional pay-scale was granted to Shri Ram Kushwaha and, therefore, the respondent nos.1 to 5 were also entitled to get the same benefit. He has relied upon the decision of Co-ordinate Bench of this Court in the case of R.N. Dixit vs. State of U.P. and Another ; 1983 (1) L.C.D. , wherein this Court held that " Once the legal position is declared by this court and the same is not challenged before the Hon'ble Supreme Court, it is obligatory on the State Government to give effect to the law so declared. "

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(11) We have considered the facts and circumstances of the case and the submissions made by learned counsel for the parties.

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(12) Shri Ram Kushwaha had filed Claim Petition No.1255 of 2005 before the State Public Services Tribunal, claiming payscale of Rs.8,000-13,500/- on the ground that Smt. Rajendri Verma, Junior Associate (Non-Gazetted) was granted that payscale. The Claim Petition filed by Shri Ram Kushwaha was allowed by means of a judgment order dated 14.07.2006 on the ground of parity of Smt. Rajendri Verma. The State had filed Writ Petition No.117 (S/B) of 2007 challenging the judgment and order dated 14.07.2006 passed by the Tribunal in Claim Petition No.1255 of 2005 and the Writ Petition was dismissed by means of an order dated 23.03.2017, stating that " We do not find any manifest error for warranting interference in the order dated 14.07.2006 passed by the Tribunal. ", without any detailed discussion on the merits of the case. Therefore, no ' legal position ' was declared by this Court while deciding the Writ

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Petition No.117 (S/B) of 2007.

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(13) Shri Ram Kushwaha filed Contempt Petition No.107 of 2017 before the Tribunal and thereafter the order dated 14.07.2006, passed by the Tribunal in his favour, was complied with. However, in the compliance order dated 25.01.2018, it was specifically stated that it was passed because a Contempt Petition had been filed by Shri Ram Kushwaha and the compliance order will not be treated as precedent in future.

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(14) What is apparent from the material available on record is that respondent nos.1 to 5 had claimed a higher pay-scale on the ground that the same had been granted to Shri Ram Kushwaha. Shri Ram Kushwaha had filed the Claim Petition, claiming payment of higher pay-scale in the year 2005, and his Claim Petition was allowed on 14.07.2006. The respondent nos.1 to 5 have filed the Claim Petition in the year 2018. Shri Ram Kushwaha had laid his claim for payment of higher pay-scale on the basis of the fact that one Smt. Rajendri Verma had been granted the said pay-scale in the year 2001, therefore, the cause of action for raising a claim of payment of higher pay-scale on the ground of parity, accrued in favour of respondent nos.1 to 5 in the year 2001, when the same benefit was granted to Smt. Rajendri Verma. Merely because the respondent nos.1 to 5 filed representations for higher pay-scale in the year 2018, it cannot be said that a cause of action accrued in their favour upon rejection of their representations. In view of the law laid down by the Apex Court in C. Jacob (supra) and M.K. Sarkar (supra) , the limitation for filing the Claim Petition having expired after expiry of one year since passing of the order in favour of Smt. Rajendri Verma, the same could not be revived by mere filing of a representation in the year 2018 and the Claim Petition was clearly time barred.

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(15) The conduct of respondent nos.1 to 5 in not filing a Claim Petition when the same had been filed by another person, Shri Ram Kushwaha, and waiting for the outcome of the Claim Petition and that of the Writ Petition filed by them, indicates that they were negligent in pursuing their rights.

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(16) In State of Uttar Pradesh & Ors. vs. Arvind Kumar Srivastava & Ors. ; 2015 (1) SCC 347 , the Apex Court examined the issue of claiming parity in service jurisprudence and after referring to numerous previous proceedings, preceding the legal principles were summarized as follows:-

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"(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.

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(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.

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(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

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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 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."

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(17) Examining the facts of the present case in light of the legal principles summarized by the Apex Court in Arvind Kumar Srivastava & Ors. (supra) , we find that the respondent nos.1 to 5 did not challenge non-payment of higher pay-scale to them, when the same had been awarded to Smt. Rajendri Verma and thereafter when the same had been claimed by Shri Ram Kushwaha. They acquiesced with payment of the pay-scale, which was being paid to them and they woke up after a long delay, when the Claim Petition of Shri Ram Kushwaha had been allowed, the Writ Petition filed against the same had been dismissed and the order passed in his favour had been complied with keeping in view the Contempt Petition filed by him. In such circumstances, the respondent nos.1 to 5 should be treated as fence sitters and the delay would be a valid ground to dismiss their claim.

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(18) In view of the aforesaid discussions, we are of the view that the Claim Petition filed by the respondent nos.1 to 5 in the year 2018, claiming payment of higher pay-scale in furtherance of the Government Order dated 02.12.2000, was highly time barred and the same could not have been entertained and allowed.

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(19) Accordingly, the instant writ petition is allowed .

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(20) The judgment and order dated 23.10.2020 passed by the U.P. State Public Service Tribunal in Claim Petition No.1066 of 2018 is hereby quashed and the Claim Petition is dismissed as barred by time. However, there will be no order as to costs.

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(Subhash Vidyarthi, J.) (Ramesh Sinha, J.)

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Order Date :- 6.2.2023

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Arnima

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Digitally signed by :- ARNIMA SINGH High Court of Judicature at Allahabad, Lucknow Bench

State of U.P. Thru.Secy.Mahila Evam Bal Vikas Dept. andANR. v. Narendra Kumar Tiwari and Ors.

Case brief

What is this about?

What did the court decide?

State of U.P. Thru.Secy.Mahila Evam Bal Vikas Dept. andANR. v. Narendra Kumar Tiwari and Ors.

Case brief

What is this about?

What did the court decide?

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