Surendra
Nath Pandey & Ors. Vs. U.P. Cooperative Bank Ltd. & Ors. [2010] INSC
168 (19 January 2010)
Judgment
CIVIL
APPELLATE JURISDICTION CIVIL APPEAL NO. 945 OF 2010 [Arising out of SLP (C)
No.5001 of 2007] Surendra Nath Pandey & Ors. ... Appellants UP Cooperative
Bank Ltd. & Anr. ... Respondents
O R D E R
1.
Leave granted. Heard the parties.
2.
The appellants were appointed during 1978-1981 on daily wage basis
by the first respondent (UP Co-operative Bank Ltd., (for short `the Bank'), by
way of stop gap arrangement. Upto 30.6.1981, they were on daily wages.
From
1.7.1981, they were paid consolidated salary of Rs.368/- per month which was
increased to Rs.575/- per month from 1.4.1982. From 1.7.1983, they were
extended the benefit of the minimum in the pay scale applicable to regular
employees, i.e. Rs.325/- per month, with allowances, but without yearly
increments.
3.
On 30.7.1985, the UP Regularisation of Ad-hoc appointments (on
posts within the purview of the Uttar 2 Pradesh Cooperative Institutional Service
Board)Regulations, 1985 were notified and came into force. In terms of the said
rules, the appellants were regularised on different dates -- 1.10.1985,
9.12.1985, 24.4.1986 and 29.9.1986 and they were also extended the benefit of
regular pay scales with all allowances. In the year 1990, they approached the
Allahabad High Court by filing a writ petition seeking the benefit of regular
pay scale, allowances and other benefits which were extended to regular
employees, with effect from the date of their stop gap or ad-hoc appointment.
4.
A learned single Judge of the High court, by order dated 6.7.2005,
allowed the writ petitions and directed the first respondent-Bank to treat the
appellants on par with employees, who were the petitioners in Jai Kishan &Ors.
vs. UP Co-operative Bank Ltd. & Ors., (WP No.1941 of 1985 and connected
cases which were decided by the High Court on 3.3.1989). In Jai Kishan, the
High Court had affirmed the decision of the Labour Court directing that certain
employees of the Bank (whose cases were espoused by the Union) shall be
extended the benefit of pay scale by starting with a minimum of Rs.325/- per
month with effect from 1.7.1981 with annual increments in the regular pay scale
and all other allowances. This direction was issued on a concession by the
learned 3 counsel for the Bank given on the peculiar facts and circumstances
of the case, with respect to three employees. The effect of the judgment of the
learned single Judge was that the appellants were also to be extended the benefit
of the regular pay scale with annual increments with effect from 1.7.1981.
Feeling aggrieved, the Bank appealed and the Division Bench of the High Court
allowed the special appeals of the Bank, set aside the judgment of the learned
Single Judge and dismissed the writ petitions. The said order is challenged in
this appeal by special leave.
5.
The appellants submit that the Division Bench found that there was
no significant difference between the type of work which the appellants were
rendering and the type of work which their counterparts who were regularly
employed were rendering at the relevant point of time.
They also
submitted that the Bank did not dispute the fact that the petitioners in Jai
Kishan who were given the benefit of the regular pay scales, were similarly
placed as the appellants. They contend that the decision in Jai Kishan having
become final the Bank cannot discriminate between the petitioners in the case
of Jai Kishan and other similarly situated employees like appellants and, therefore,
they are also entitled to the same reliefs.
6.
We are of the view that the real issue is whether persons employed
on stop gap or ad hoc basis were entitled to the benefit of pay scales with
increments during the period of service on daily or stop-gap or ad hoc basis.
Unless the appellants are able to establish that either under the contract, or
applicable rules, or settled principles of service jurisprudence, they are
entitled to the benefit of pay scale with increments during the period of their
stop-gap/ad-hoc service, it cannot be said the appellants have the right to
claim the benefit of pay scales with increments. Admittedly, the appellants do
not claim the said relief on the basis of any rules or contract. This Court in
a series of decisions [See for example -- State of Haryana vs. Jasmer Singh-
1996(11) SCC 77 and State of Haryana vs. Tilak Raj - 2003 (6) SCC 123], has
held that the daily wage or ad hoc employees were not entitled to the benefit
of regular pay scales with increments, by claiming parity with regular
employees. Therefore, it is clear that the appellants did not have a right to
claim the said relief.
7.
If the appellants do not have a legal right to seek the benefit of
pay scales before their regularisation, the question is whether they are
entitled to such a relief on the ground that such a relief has been extended 5
to some similarly placed employees in pursuance of the decision in Jai Kishan.
This question is answered by this court in Col (Retd) B. J. Akkara vs. Govt. of
India - 2206 (11) SCC 709, while dealing with a similar contention :
"It
is contended that the Respondents having accepted and implemented the decision
of the Delhi High Court in the case of civilian medical officers, cannot
discriminate against the Defence service medical officers placed in identical
position and therefore the benefit given to the civilian medical officers in
pursuance of the decision of the Delhi High Court should also be extended to
them. The petitioners rely on the broad principles underlying estoppel by
Judgment, legitimate expectation, and fairness in action in support of their
contention.
Respondents
... contended that the fact that a decision of the High Court had been accepted
or implemented in the case of some persons, will not come in the way of the
Union of India resisting similar petitions filed by others, in public interest.
25. A
similar contention was considered by this Court in State of Maharashtra vs.
Digambar [1995 (4) SCC 683]. This Court held :
"Sometimes,
as it was stated on behalf of the State, the State Government may not choose to
file appeals against certain judgments of the High Court rendered in Writ
petitions when they are considered as stray cases and not worthwhile invoking
the discretionary jurisdiction of this Court under Article 136 of the
Constitution, for seeking redressal therefor. At other times, it is also
possible for the State, not to file appeals before this Court in some matters
on account of improper advice or negligence or improper conduct of officers concerned.
It is further possible, that even where S.L.Ps are filed by the State against
judgments of High Court, such S.L.Ps may not be entertained by this Court in
exercise of its discretionary jurisdiction under Article 136 of the
Constitution either because they are considered as individual cases or because
they are considered as cases not involving stakes which may adversely affect
the interest of the State. Therefore, the circumstance of the non-filing of the
appeals by the State in some similar matters or the rejection of some S.L.Ps in
limine by this Court in some other similar matters by itself, in our view,
cannot be held as a bar against the State in filing an S.L.P. or S.L.Ps in
other similar matters where it is considered on behalf of the State 6 that
non-filing of such S.L.P. or S.L.Ps and pursuing them is likely to seriously
jeopardize the interest of the State or public interest."
The said
observations apply to this case. A particular judgment of the High Court may
not be challenged by the State where the financial repercussions are negligible
or where the appeal is barred by limitation. It may also not be challenged due
to negligence or oversight of the dealing officers or on account of wrong legal
advice, or on account of the non-comprehension of the seriousness or magnitude
of the issue involved. However, when similar matters subsequently crop up and
the magnitude of the financial implications is realized, the State is not
prevented or barred from challenging the subsequent decisions or resisting
subsequent writ petitions, even though judgment in a case involving similar
issue was allowed to reach finality in the case of others. Of course, the
position would be viewed differently, if petitioners plead and prove that the
State had adopted a `pick and choose' method only to exclude petitioners on
account of malafides or ulterior motives.
8.
In view of the above, we are of the view that the appellants are
not entitled to any relief based on the decision in Jai Kishan. The Division
Bench of the High Court was justified in reversing the decision of learned
Single Judge which extended the benefit of Jai Kishan to the appellants. The
appeal has no merit and is, accordingly, dismissed.
___________________J.(R. V. Raveendran)
; ___________________J.
New Delhi
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