IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH LPA No. 1996 of 2011(O&M) Date of Decision: 31.10.2011. Sucha Singh & others --Appellants Versus State of Punjab & others --Respondents CORAM:- HON'BLE MR.JUSTICE PERMOD KOHLI. HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA. Present:- Mr. Gurminder Singh, Advocate for the appellants. *** PERMOD KOHLI.J (ORAL) Notice of motion. Ms. Anu Pal, A.A.G., Punjab has been asked to accept notice on behalf of respondents-State. With the concurrence of learned counsel for the parties, this appeal is being disposed of at the motion stage itself. The moot question which falls for consideration before us is whether the similarly situated employees can claim parity on the basis of the judgements rendered on the similar issues in the matter of grant of arrears of benefits, even though, in some of the cases the arrears have been restricted. Admittedly, there are two sets of judgements on the same issue. In one set of judgements rendered by this Court benefit of arrears has been restricted to three years, whereas in other set of judgements no such restriction has been imposed. Resultantly, the employees/writ petitioners in those judgements have been conferred the benefit of arrears as well. The issue is definitely ticklish in nature and needs to be resolved. The factual matrix relating to filing of this appeal is briefly LPA No. 1996 of 2011(O&M) -2- noticed hereunder:- Appellants herein were serving in the Agriculture Department, Govt. of Punjab as Agriculture Development Officers. They were in service prior to 1.1.1986. On the basis of the recommendations of the Third Pay Commission accepted by the State Govt., benefit of revised pay scales were granted to the employees of various departments including Veterinary Department. The State Govt., however, issued order dated 18.9.1992 and adopted 1.1.1991 as the effective date for grant of revised pay scales pursuant to the recommendations of the Third Pay Commission instead of 1.1.1986. Aggrieved of the action of the State Govt. for shifting the period of grant of benefit from 1.1.1986 to 1.1.1991 a writ petition being CWP No.457 of 1995 titled as Prem Singh Gill and others Vs. State of Punjab & others came to be filed before this Court claiming benefit of the revised pay scales w.e.f. 1.1.1986 instead of 1.1.1991 as granted by the State Govt. This writ petition was allowed by this Court vide judgement dated 29.9.2006 and a direction was issued to allow the benefit of the revised pay scale to the writ petitioners therein w.e.f. 1.1.1986 with all consequential benefits. Resultantly, the arrears became payable w.e.f. 1.1.1986. State Govt.'s appeal being L.P.A. No.94 of 2007 remained unsuccessful having been dismissed by the Hon'ble Division Bench of this Court vide judgement dated 24.4.2007. The judgement having attained finality as no further challenge was made against the same, the State Govt. vide its order dated 10.7.2008 granted pay scale of Rs.4125-5600 to the writ petitioners w.e.f. 1.1.1986 meaning thereby the arrears were also paid. Even though, the aforesaid judgement was implemented qua the petitioners therein, a large section of the Govt. employees was not granted similar benefits despite their LPA No. 1996 of 2011(O&M) -3- entitlement. Inaction on the part of the State Govt. forced the deprived employees to approach this Court in various writ petitions. Reference may be made to CWP No.13615 of 2009 titled as Dr. Yadvendra Singh and others Vs. State of Punjab & others decided on 2.3.2010, CWP No.8646 of 2010 titled as Narender Singh Josan and others Vs. State of Punjab and others decided on 12.5.2010 and CWP No. 13062 of 2010 titled as Sawinder Singh and others Vs. State of Punjab & others decided on 10.1.2011. All these writ petitions were disposed of in terms of judgement in Prem Singh Gill's case. Another writ petition being CWP No.9855 of 2009 titled as Balbir Singh Vs. State of Punjab & others filed before this Court also came to be decided vide judgement dated 17.3.2010. In Balbir Singh's case while allowing the writ petition, this Court restricted the arrears of revised pay to period of 3 years and 2 months preceding the filing of the writ petition. The relevant observations in Balbir Singh's case are as under:- “ Having heard learned counsel for the parties at some length, I am of the considered view that once the action of the respondents in restricting the benefit of revised pay- scales w.e.f. 01.01.1991 as against 01.01.1986 has been held to be in conflict with Articles 14 & 16 of the Constitution, the objection raised by the respondents against entertainment of this writ petition at a belated stage is inconsequential as the respondents cannot be allowed to take undue advantage of their unconstitutional action. A Writ Court in any case is not precluded from entertaining a belated claim, if it otherwise merits acceptance. The cardinal principle in such like cases would be to strike balance by restricting the retrospectivity of the consequential benefits. (7). For the reasons afore-stated, the writ petitions are allowed in part; the impugned Circular dated 18.09.1992 (Annexure P1) qua the petitioners is also quashed with the LPA No. 1996 of 2011(O&M) -4- following directions, which have been consented to by their respective learned counsel also:- (i.) the petitioners shall be entitled for the grant of revised pay-scales w.e.f. 01.01.1986 instead of 01.01.1991. However, they shall not be entitled to the arrears of pay for the period from 01.01.1986 to 31.12.1990; (ii.) the pay of the petitioners shall be notionally fixed and their pension/other retiral benefits shall be revised accordingly. (iii.) the petitioners, however, shall be entitled to the arrears of revised pension with effect fromtheir respective dates of retirement(s). (iv.) the petitioners who are still in service shall not be entitled to the arrears of pay (w.e.f. 01.01.1986) but their pay shall be notionally fixed and the consequential arrears and/or revised pay shall be paid to them w.e.f. 01.01.2010 onwards only. The needful shall be done as early as possible and preferably within a period of six months from the date of receipt of a certified copy of this order. (8). Ordered accordingly.” Appellants herein having been denied the benefit of the arrears of pay scales w.e.f. 1.1.1986 also filed CWP No. 8242 of 2011 titled as Sucha Singh and others Vs. State of Punjab & others. This writ petition has been disposed of by the learned Single Judge vide the impugned judgement dated 26.8.2011 on the basis of law laid down in Prem Singh Gill and Balbir Singh's cases (supra). However, while allowing the benefit of revised pay scales w.e.f. 1.1.1986 instead of 1.1.1991 arrears of revised pension have been allowed notionally and the revised pensionary benefits granted with effect from the respective dates of their retirement in respect of those employees who had retired from service and in respect to employees, who are still in service the benefit of the revised pay has been allowed w.e.f. 1.1.2010. LPA No. 1996 of 2011(O&M) -5- The appellants are aggrieved of the directions of the learned Single Judge to the extent they have been denied the arrears of pay scales up to the date of retirement in case of retired petitioners and up to the date of 1.1.2010 in case of such of the petitioners, who were still in service at the time of passing of the judgement. Mr. Gurminder Singh, learned counsel appearing for the appellants has vehemently argued that the impugned judgement of learned Single Judge itself amounts to discrimination in so far as the grant of benefit of arrears is concerned. It is, accordingly, contended that there has been disparity between two sets of judgements and the appellants have a right of parity with all those writ petitioners who have been granted benefit of arrears w.e.f. 1.1.1986. His further contention is that the impugned judgement denying the benefits of arrears is totally unjustified and patently erroneous. There is no dispute of the fact that there has been discrepancy in two sets of judgements of this Court in regard to grant of benefit of arrears. The circumstances leading to such an anomaly is required to be addressed to. We have heard Mr. Gurminder Singh at length. Certain important aspects need to be noticed before a final conclusion is drawn in this regard. Appellants herein were working in the Department of Agriculture as Agriculture Inspectors and Agriculture Officers prior to 1.1.1986. Third Pay Commission recommended grant of revised pay scales w.e.f. 1.1.1986. State Govt. vide memorandum dated 18.9.1992 granted the LPA No. 1996 of 2011(O&M) -6- benefit of revised pay scales w.e.f. 1.1.1991 instead of 1.1.1986. Cause of action accrued to the State Govt. employees including the appellants when the notification dated 18.9.1992 came to be issued. First writ petition challenging the notification dated 18.9.1992 came to be filed by Prem Singh Gill and others in the year 1995, which was allowed in the year 2006. The appellants waited for a long period of more than 18 years when they filed the writ petition in the year 2011 seeking retrospective benefit w.e.f. 1.1.1986. The only ground for filing the writ petition belatedly is judgement in Prem Singh Gill's case. This does not seem to be a valid ground to approach this Court after a lapse of more than 18 years. The appellants were required to be vigilant and prompt in projecting their grievance and seeking remedy therefor. Even the plea of parity with the writ petitioners in Prem Singh Gill's case is misplaced. Prem Singh Gill and others filed their writ petition in the year 1995, though, it was decided in the year 2006. Even after the decision in Prem Singh Gill's case the appellants took five years to approach this Court. Thus, they cannot seek any parity with the writ petitioners in Prem Singh Gill's case. Otherwise also, it is settled law that Article 14 inhere a positive concept of equality. Mere identity of claim or grievance is not enough to attract the principle of equality. Other attending circumstances include negligence, callousness and acquiescence are equally relevant. Delay in itself disentitles a person from seeking relief. Inordinate delay per se is sufficient to deny the relief, where it is unexplained. Hon'ble Supreme Court in case of Union of India and others Vs. Tarsem Singh reported as 2008 (4) SCT 19 while considering the question of belated service claims observed as under:- LPA No. 1996 of 2011(O&M) -7- “5. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to be said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the re-opening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment of refixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. In so far as the consequential relief of recovery of arrears for a past period, the principles relating to recurring/successive wrongs will apply. As a consequence, High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition.” In case of Regional Manager, A.P. SRTC Vs. N. Satyanarayan and others, (2008) 1 SCC 210, Hon'ble Supreme Court declined the prayer for regularization of daily wagers from the date of their initial engagement in the year 1986, in the writ petition filed in the year 1999, on the ground of delay and laches though they were entitled to such relief under an earlier judgement of the Court. LPA No. 1996 of 2011(O&M) -8- In the case of Nadia Distt. Primary School Council and another Vs. Sristidhar Biswas and others (2007) 12, SCC 779, the Court declined the relief on the ground of delay in the matter of appointment when the writ petition was filed after a period of nine years. The relevant observations are contained in paragraph 11 of the judgement aforesaid which are as under:- “11. In the present case, the panel was prepared in 1980 and the petitioners approached the court in 1989 after the decision in Dibakar Pal. Such persons should not be given any benefit by the court when they allowed more than nine years to elapse. Delay is very significant in matters of granting relief and court cannot come to the rescue of the persons who are not vigilant of their rights. Therefore, the view taken by the High Court condoning the delay of nine years cannot be countenanced.” In Eastern Coalfields Limited Vs. Dugal Kumar, (2008) 14, Supreme Court Cases, 295, a writ petition was filed after a decade claiming the benefit of additional quantity of coal allotted to the company 10 years before the date of filing of the writ petition. It has been held that inordinate delay on the part of the petitioner in making the motion for a writ is an adequate ground for refusing to exercise discretion under Article 226 of the Constitution of India. In case of S.S. Basu and another vs. State of Kerala and others, (2009) 2, SCC 479, Hon'ble Supreme Court made following observations to deny the relief when there is inordinate delay:- “ 17. It is also well-settled principle of law that “delay defeats equity”. The Govt. order was issued on 15.1.2002. The appellants did not file any writ application questioning the legality and validity thereof. Only after the LPA No. 1996 of 2011(O&M) -9- writ petitions filed by others were allowed and the State of Kerala preferred an appeal thereagainst, they impleaded themselves as party-respondents. It is now a trite law that where the writ petitioner approached the High Court after a long delay, reliefs prayed for may be denied to them on the ground of delay and laches irrespective of the fact they are similarly situated to the other candidates who obtain the benefit of the judgement. It is, thus, not possible for us to issue any direction to the State of Kerala or the Commission to appoint the appellants at this stage. In NDMC v. Pan Singh, this Court held: (SCC p.283 para 16). In the case of Shiv Dass vs. Union of India and others, (2007) 9, SCC 274, the writ petitioner was denied the disability pension in the year 1983. He filed a writ petition in the High Court in the year 2005. This writ petition was dismissed by the High Court considering the question of delay and laches. The Hon'ble Supreme Court while remanding the matter to the High Court made the following observations:- “10. In the case of pension the cause of action actually continues from month to month. That, however, cannot be a ground to overlook delay in filing the petition. It would depend upon the fact of each case. If petition is filed beyond a reasonable period say three years normally the Court would reject the same or restrict the relief which could be granted to a reasonable period of three years. The High Court did not examine whether on merit the appellant had a case. If on merits it would have found that there was no scope for interference, it would have dismissed the writ petition on that score alone.” In view of the factual and legal position as noticed herein above, we have no hesitation to say that the appellants are not entitled to claim parity with the writ petitioners in Prem Singh Gill's case on account of LPA No. 1996 of 2011(O&M) -10- lapse on their part and their failure to approach this Court promptly and with promptitude. They have disentitled themselves from the similar relief. The claim of equality and parity with the writ petitioners in Prem Singh Gill's case or for that matter any other case wherein learned Single Judge might have granted the benefit of arrears is not only misconceived but is fallacious in law. It is also settled proposition of law that where an act or an order perpetuates illegality, it is imprudent to follow the same. We are, thus, of the considered view that the appellants are not entitled to the similar treatment as the petitioners in Prem Singh Gill's case or any other similar case. In view of the above, we modify the judgement of learned Single Judge in respect of the appellants, who are still in service and they shall be entitled to arrears of revised pay preceding three years from the date of filing of the writ petition and those who have retired preceding three years of their retirement. (PERMOD KOHLI) JUDGE (TEJINDER SINGH DHINDSA) JUDGE 31.10.2011. lucky Whether to be referred to the Reporter? Yes.