IN THE HIGH COURT OF DELHI AT NEW DELHI Date ofde^ion : 23"^November,2004 WP.(C) 6724/2004 LT.COL.S,RS.REKHI Petitioner Tiirough Ms. Jyoti Singh, Advocate versus UOI & ORS. Respondents Through Mr. Kailash Gambhir, Advocate AND W.R(C) 8085/2004 LT. COL. HANUMANSINGH ....|Petitioner Tiirough Mr. Jyoti Singli, Advocate versus UOI & ORS. .... Respondents Tiirough Mr. Kailash Gambhir, Advocate AND W.P.(C) 1209/2003 LT. COL.(TS)IS. SANGWAN ...^ Petitioner Through Ms. Jyoti Singh, Advocate versus UOI & ORS. .... Respondents ThroughMr. R^manDuggal,Advocate AND W.P.(C) 6724/2(X}4 page 1 of 9 Signed By:RAM DATT Signing Date:20.06.2024 15:53 Certify that the digital and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified W.P.(C) 1017/2003 ^ i LT.COL.(TS)N.S. GULIA Petitibner ThroughMs. Jyoti Singh,Advocate versus UOI&ORS. ....Respondents Through Mr. RamanDuggal, Advocate CORAM; ' , . • HON'BLE DR. JUSTICE MUKUNDAKAM SHAEMA HON'BLE MS. JUSTICE GITA MTIT AL I 1. Whether refxjrtersoflocalpaperemay beallowedtosee the Judgment? 2. To be referred to the Reporter or not? 3. Whetherthejudgmentshouldbe"reportedin theDigest? ^ DR. MUKUNDAKAMSHARSIA. ,T (COMMON ORDER -ORAL) 1. Tlie facts and tlie legalissueswhich arise for considerationbefore us in thesewritpetitionsare similarand, therefore,we proposeto disposeofall thesewrit petitionsby tliiscommonjudgmentand order. Tliepetitionerherein v/ere all reemployed superannuatedOfficers from tlie Indian Army. The petitioners herein after tlieir retirement from the Indian Army were re- employed in terms of a scheme of tlie respondents. The petitionerswere, however, not given any extensionof re-employedser/iceup to tlie age of 58 years in terms of the amended army instructions.Therefore tlie present writ, petitionersfiledwritpetitionsin tliiscourtone ofwhichwas registeredas CWP No. 3324/2000titledCol. Hanuman Singli Vs UOl seekingfor a directionto the respondentsto allow the petitionersup to the age of 58 years. Tlie writ petitionswerecontestedbytlierespondents. W.P.(C)6724/2004 ^ ^ 2. The aforesaidwrit petitions filed by the petitioners along with few other writ petitions were placed before the learned Single Judge of tliis court and by tlie judgment and order dated 23"' January, 2002, one of us (Dr. Mulaindakam Sharma, J) heard and disposed of die said writ petitions in terms of tiie directions contained in the said order. Hie operative portion of tlie said judgment records as follows ^ "Therefore, 1 am of tlie considered opinion that once die Government had itself amended the letter of 30.5.2000 and the cut offdate has been removed,the officerswhcj werere-employedeven prior to 30.5.2000 or on the said date are entitled to die benefits of tlie age extension upto 58 years of age subject to all other conditions being fulfilled. There cannot be a discrimination between similarly situated persons and tlie benefit given to one should be given to all similarly situated persons. Tlie petitioners are, dierefore, clearly entitled to be retained upto 58 years of age and , tlierefore, die respondents are directed to give effect to the aforesaid observations, subject however to all otlier conditions bei^ng fulfilled. A writ of mandamus is accordingly issued in terms of the aforesaid directions and a decision thereof shall be communicated to die .petitioners widiin two mondis from the date of receipt of this order. All tlie writ petition stands disposed of in terms of die aforesaid observations and directions." 3. Pursuant to the said orders not only die writ petitioners but odier similarly situated persons were called back to service by tlie respondents and they were given work and were made to retire from service on completion of the service of 58 years. Against die aforesaidjudgment no appeal was taken by die respondents. 4. Tlie respondents, however, took time to make the directions and, therefore,all diepetitionershereinwere given work onlyfor a few days before dieycompleted58 years of age in their service and consequentlywere retired W.P.(C) 6724/20)4 page 3 of 9 from service. 5. Hie petitioners sought for paymentjof all arrear, pay and allowancesfor tlie periodbetweentlieirduty attlie age of56yearsand the date of tlieirjoiningpursuantto the orders passedby this court and a prayerwas made byeach one of the petitionersbefore tlie respondentsfor releaseof die aforesaidpayandallowancesin favourof the petitioners. 6. Counsel for tlie petitioners has also drawn our attention to a judgmentof this courtrenderedby aSingleJudge in Lt. GeneralR.C. Kochhar vs UQI CW No. 6573/1998decided on 29^ October, 1999. In tlie aforesaid case a similarissue came to be considered and decidedby tlie learned Single Judge and on considerationof the same in tlie penultimateparagraph,it was stated tliat tlie petitionerstherein would be entitled to get tlie pension on attainingthe age of 62 years in terms of the office memorandumdated 13'^ May, 1998 andconsequentlyhe shouldbe treatedto be in serviceas ifhe had not retired witli effect from 3?' May, 1998. It was also held in tlie said decision that the petitionerwas entitled,to pay, salary and allowanceswitli effect from 3?' May, 1998. Tlie legality of tlie aforesaid decision was challengedbefore the DivisionBenchby filing aLettersPatentAppeal which was, however,dismissedbyjudgmentand orderdated 17^ February,2000. 7. Counselappearingfor the respondents,however,has placedstrong reliance on the communication of tlie respondents dated 4"^ April, 2002. Relyingand referringto the same, he has submittedtliat tlie respondentshave talten a consensusdecisionafterconsideringthe entirefacts andcircumstances W.P.(C)6724/2004 page4of9 of tlie case not to pay salaryand allowancesto tliepetitionersin view of tlietlie decision of the Supreme Court in MP State Electricity Board Vs Jarina Bee reported in 2003 (vi) AD (SCC 141). 8. Having regard to the aforesaid submissions of the counsel appearing for tlie paities we may now propose to deal with the same and render our decision on the issue that is raised before us. The petitioners were entitled to die benefits of extension of age up to 58 years as tlie Government itself had amendedtheletter of 30*^ May, 200L The aforesaidjudgmentwas renderedin respect of the four petitioners who were before tliis court but it had clearly obser^^ed tliat tliere could not be a discrimination between similarly situated petitioners and benefit should be given to all the similarly situated petitioners and, therefore, die petitioner would be entitled to be retained up to 58 years of age. 9. The respondents considered tlie aforesaid plea of die petitioners and by order dated 4* April, 2002, an order was passed that no pay and allowances would be admitted to die petitioners for tlie period they were out of active re-employed service diough die said period would be taken into account for grant of notional increment. It was also stated in die said order in paragraph 4 diat pay and allowances will be admissible from die date die officer joins duty. The aforesaidordercame tobe passedonlyon 4'^ April,2002 whichwas in die nature of implementation of die judgment passed by diis court. The judgment was passed by diis court on 23"^ January, 2002 and die same was implementedby the respondentsonlyon 4"^ April,2002which makesit crystal W.P.(C) 6724/2004 page 5 of 9 clear that tlie respondentstook two months to get tlie said orderimplemented. It is also pointed out that despite tlie aforesaid order no clear order was issued to the petitionersand in some of tliecases tlieypassedthe necessaryorderonly in the montli of December, 2002. 10. Be that as it may, die issue diat nov/ arises for consideration in all tliesepetitionsis as to whetlieror not tlie petitionersshouldbe paid tlieirpay and allowancesfor tlie period of their attainmentof the age of 56 years till tlie date of tlieir re-employed service. Having regard to the aforesaid submissions of the counsel appearing for tlie parties we may now propose to deal ¥/ith tlie same and render our decision on the issue diat is raised before us. In this regard, we have heard tlie learned counsel appearing for tlie parties. In the judgmentdated 23"* January,2002in paragraph14 whichis die operativepart of the judgment, it was explicitly held tliat tlie petitioners were held entitled to be retained up to 58 years of age and tliey would also be paid for the period between 56 years and from the date of tlieir attainment of 50 years of age up to tlie date of retirement. Counsel for tlie petitioners has also drawn our attention to a judgment of this court rendered by a Single Judge in Lt. General R.C. Kochhar vs UQl CW No. 6573/1998 decided on 29"^ October, 1999, In the aforesaid case a similar issue came to be considered and decided by tlie learned Single Judge and on consideration of the same in tlie penultimate paragraph, it was stated tliat die petitioners dierein would be entitled to get die pension on attaining the age of 62 years in terms of the office memorandum dated May, 1998 and consequently he should be treated to be in service as if he had W.P.(C) 6724/2004 page 6 of 9 not retired with effect from 3P' May, 1998. It was also held in the said decision that tlie petitioner was entitled to pay, salary and allowances with effect from 31" May, 1998. The legality of the aforesaid decision was challenged before die Division Bench by filing a Letters Patent Appeal which was, however,dismissedbyjudgmentand orderdated 17^ February,2000. 11. The petitionerswere entitledto die benefits of extensionof ageup to 58 years as the Governmentitselfhad amendedthe letter of 30*^ May, 2001. Tlie aforesaid judgment was rendered in respect of die four petitioners who were before this court but it had clearly observed diat diere could not be a discrimination between similarly situated petitioners and benefit should be given to all die similarly situated petitioners and, dierefore, die petitioners would be entitled to be retained up to 58 years of age. Ttie respondents were directed to give effect to die aforesaid obsei-vationsas expeditiously as possible and preferably within a period of two months. Tlie respondents have denied payment of the salary and allowances for die period die petitioners were kept out of service, i.e. up to dieir date of re-joining die service, on die ground that die petitioners did not work for die aforesaid period. Tlie aforesaid plea cannot be accepted in view of die fact diat die petitioners were not allowed to work and could not render dieir service because they were not allowed to do so by 3 die respondents. The petitioners were not at all at fault for not being able to render their services and it is die respondents who deprived die petitioners from rendering their service. It is the action of die respondents which prevented die petitioners from rendering their services. The petitioners were kept out of W.P.(C) 6724,/2(X)4 page 7 of 9 service by the respondents although tlie petitionerswere ready and willing to sei-ve tlie respondents, Hierefore in such situation, in oui' considered opinion the principles of 'no work no pay' would not be applicable. Tlie view which has been taJcen by us here was also taken by the Supreme Court in die decisions which we propose to discuss here. The Apex Court directed payment of all arrears of emoluirents ^ froinaretrospectivedatewheretheemployeewas made to sufferon accountof adininistrative reasons for which he was not responsible in Vasant Rao Roman vs UOI reported in 1993(9) SC Service Rulings 213. hi State of Andhra Pradesh Vs K.V.L. Narasimim Rao reported in JT 1999(3) SC 205 tlie court held that in normal circumstances, when retrospective promotions are effected, all benefits flowing tlierefrom including monetary benefits must be extended to the employee who was denied promotion earlier. 12. Counsel appearing for tlie respondents referred to the decision of ^ MP ElectricityBoardfSupral. We are, however,of the consideredopinionthat the aforesaid case shall have no application to the facts of tiiepresent case. The aforesaid decision was rendered in the facts of tliaticase and was in tlie context of hidustrial Disputes. In the said case tlie Supreme Court held that it cannot j be said that when an order of dismissalis set aside as a consequencediere of back wages should be awarded, but it would depend upon facts and circumstances of each case. We have given our reasons for allowing the benefitof paymentof salary andallowancesin favour of the petitionersandtlie said reasons,in ourconsideredopinion,distinguishtliesecases from the case of W.P.(C) 6724/2004 page 8 of 9 MP Electricity Boai'd(supra). 13. In tliis context reference may also be made to tlie decision of Lt. General R.C. Kochhar(supra) wherein on similar facts of extending the age of retirement to 62 years, diis court had directed payment of full salary and allovtfances for the period during which die said writ petitioners was not allowedto work by the respondents. In the said case also tlie sarre memo of the respondents,namelyNo. 25012/04/97/Estt,Dated 13""May, 1998,was also consideredandin thelight of the contentsof the said memo die effectiveorders were passedby tliis court. The action and decisionof tlie re^ondents cannot be sustained and is hereby set aside. 14. In the light of tlie aforesaid observations and directions, it is orderedtliat tlie petitionershereinwouldbe entitledto pay and allowancesfor the periodthey were kept out of serviceby tlie respondents,namely, from tlie dateofcompletionof56yearsup to the date oftheirrejoining. The saidperiod shall also be counted for the purpose of dieir pension and all otlier consequentialbenefits. Tlie writpetitionsstandallo¥/edto tlie aforesaidextent leaving the parties to bear their own cost. DK. MUKUTpAKAM SHAEMA, J iiTAMirr^j NOVEMBER 23,2004 kr W.P.(C)6724,'2004 page9of9