1. Heard learned counsel for the petitioner and the learned Standing Counsel.
2. The petitioner being aggrieved with the order dated 7.10.2014, a copy of which has been filed as Annexure-1 to the writ petition, is before this Court. By the said order, the claim of the petitioner for being extended the benefit of the judgment of this Court in Writ Petition (S/S) No.4031 of 2001 In re: Pratap Narayan Pandey vs. State of U.P. and others decided on 19.8.2006, has been rejected. A further prayer is for a mandamus commanding the respondents to provide regular appointment to the petitioner with all consequential service benefits after giving the benefit of judgment and order dated 19.8.2006 passed in the case of Pratap Narayan Pandey (supra).
3. The case set-forth by the petitioner is that while he was working as Seasonal Collection Amin in the year 1986 a selection took place in pursuance to an advertisement for appointment of Regular Collection Amin and after due selection process a select list of 186 candidates was prepared, a copy of which is Annexure-3 to the writ petition, in which name of the petitioner finds place at Serial No.31. However, despite the petitioner having been selected as a Regular Collection Peon he was not given any posting and he continued to work as Seasonal Collection Amin intermittently and as and when work was available. At the same time, one Sri Pratap Narayan Pandey whose name finds place at Serial No.21 of the same select list, filed Writ Petition (S/S) No.10539 of 1990 and thereafter Writ Petition (S/S) No.4031 of 2001. The Writ Petition (S/S) No.4031 of 2001 was allowed on 19.8.2006 by this Court. The State filed Special Leave Petition against the judgment and order dated 19.8.2006 which was dismissed. Thereafter in pursuance to the judgment and order dated 19.8.2006, Sri Pratap Narayan Pandey was given regular appointment. The petitioner after coming to know of the appointment of Sri Pratap Narayan Pandey filed a writ petition namely Writ Petition (S/S) No.4207 of 2014 which was disposed of by this Court vide order dated 13.8.2014 with the direction to the respondents to verify the petitioner's status in comparison to the facts of the Pratap Narayan Pandey's case and take decision in the petitioner's matter within one month. Copy of order dated 13.8.2014 is Annexure-2 to the petition. In pursuance thereof, the respondents vide order dated 7.10.2014, a copy of which is Annexure-1 to the writ petition, have rejected the claim of the petitioner as his case has not been found similar to that of Sri Pratap Narayan Pandey and thus no benefit has been extended to the petitioner. Hence the present petition.
4. Learned counsel for the petitioner submits that once a select list has been issued by the respondents of Regular Collection Amins and a person whose name found place in the said select list namely Sri Pratap Narayan Pandey had been given appointment, consequently it was the duty of the respondents to act as a model employer and to have also given the benefit of the joining of Pratap Narayan Pandey to the petitioner also taking into consideration that the judgment in the case of Pratap Narayan Pandey (supra) has been affirmed and thus the State cannot be allowed to act in an arbitrary manner while giving the benefit of the judgment of Pratap Narayan Pandey (supra) and confining it in his case alone inasmuch as the judgment of Pratap Narayan Pandey (supra) has to be taken as a judgment in rem and not in personem. Thus it is contended that the respondents have erred in law while rejecting the claim of the petitioner by means of the impugned order dated 7.10.2014 and prays that the same be quashed and a direction be issued to the respondents for giving regular appointment to the petitioner on the post of Regular Collection Amin.
5. In this regard, learned counsel for the petitioner has placed reliance on a Division Bench judgment of this Court in the case of State of U.P. and others vs. Rajendra Prasad Tiwari reported in 2018(36) LCD 2570 to contend that in similar circumstances this Court has dismissed a challenge raised to the judgment passed by a Single Bench of this Court whereby the benefit of the judgment in the case of Pratap Narayan Pandey (supra) was extended to one Sri Rajendra Prasad Tiwari the petitioner on the ground that the State being a model employer should have suo motu extended the benefit of the judgment in the case of Pratap Narayan Pandey (supra) to other persons similarly circumstanced.
6. On the other hand, learned Standing Counsel, on the basis of the averments contained in the counter affidavit, contends that the respondents have considered the case of the petitioner vis a vis the case of Sri Pratap Narayan Pandey taking into consideration the specific direction issued by this Court vide judgment and order dated 13.8.2014. It is found that Sri Pratap Narayan Pandey had approached this Court in the year 1990 itself and thereafter in the year 2001 and as a mandamus had been issued by this Court on 19.8.2006, consequently Sri Pratap Narayan Pandey had been appointed. At the same time, the petitioner had approached this Court for the very first time in the year 2014 despite the judgment in the case of Pratap Narayan Pandey (supra) being of 19.8.2006. No explanation is coming forth for the laches in approaching this Court after a long lapse of time. Placing reliance on a Division Bench judgment of this Court in Special Appeal Defective No.17 of 2016 In re: State of U.P. and others vs. Dan Bahadur Singh decided on 19.1.2016, it is contended that in similar circumstances wherein a person had approached this Court claiming benefit of the judgment in the case of Pratap Narayan Pandey (supra) after a period of 29 years, the Division Bench had set-aside the order passed by the Hon'ble Single Judge by which directions had been issued for extending the benefit of the judgment in the case of Pratap Narayan Pandey (supra) to the petitioner of that writ petition also. It is contended that as no explanation is forth coming from the side of the petitioner and he has approached this Court after 28 years of the issue of select list in the year 1986, consequently the writ petition is liable to be dismissed taking into consideration the judgment in the case of Dan Bahadur Singh (supra).
7. Heard the learned counsel for the parties and perused the record.
8. From a perusal of pleadings on record, it comes out that the select list had been issued in the year 1986 in which the name of the petitioner found place at Serial No.31. Despite the issuance of the select list, the petitioner was not given any regular appointment rather he continued to work on seasonal basis intermittently and as and when the work was available. In the meanwhile, one Sri Pratap Narayan Pandey whose name also finds place at Serial No.21 of the same select list, approached this Court by filing Writ Petition (S/S) No.10539 of 1990 followed by a second writ petition in the year 2001 namely Writ Petition (S/S) No.4031 of 2001 which had been allowed on 19.8.2006. After series of litigations in which the judgment and order dated 19.8.2006 was affirmed, Sri Pratap Narayan Pandey was given regular appointment. It is after the appointment of Sri Pratap Narayan Pandey and after a period of almost 28 years of the issue of the select list in 1986 that the petitioner has approached this Court in the year 2014. The laches in approaching this Court after a period of 28 years are sought to be explained on the ground that State being a model employer should have extended the benefit of the judgment in the case of Pratap Narayan Pandey (supra) to the petitioner also. All these aspects of the matter have already been considered by a Division Bench of this Court in the case of Dan Bahadur Singh (supra) wherein considering the delay and laches, the Division Bench has held as under:-
".....In our view, the case of Pratap Narain Pandey is clearly distinguishable having due regard to the fact that in that case the candidate, who was aggrieved, had pursued his legal remedies with reasonable dispatch. The judgment of the learned Single Judge in Pratap Narain Pandey's case was delivered on 19 August 2006 in regard to two writ petitions. The first writ petition was filed by Pratap Narain Pandey as far back as in 1990 (Writ Petition No.10539 (S/S) of 1990). Apart from this writ petition, he had filed another writ petition in 2001 (Writ Petition No.4031 (S/S) of 2001). Both the writ petitions had been clubbed together and were disposed of on 19 August 2006.
On the other hand, the respondent filed his writ petition on 22 February 2015, seeking the benefit of the judgment and order dated 19 August 2006 delivered in the writ petition filed by Pratap Narain Pandey. By that judgment, the petitioner in the earlier proceedings was directed to be given appointment on the post of regular Collection Amin and to be treated as a regular Collection Amin in service since 5 June 1986 for the purposes of seniority etc. except the salary for the period for which he had not worked. In the writ petition which has been filed by the respondent before the learned Single Judge, there is absolutely no explanation much less a cogent explanation in regard to reasons which led the respondent to wait for nearly twenty nine years since 1986 before he filed a writ petition in 2015. The fact that other persons may have been granted the benefit of the judgment in Pratap Narain Pandey in the interregnum would not absolve the respondent of his own duty to explain why he chose to remain silent in the pursuit of his own rights. In a situation of this nature where a delay has been completely unexplained, a writ petition which was filed in 2015 seeking the benefit of parity with a case which had been decided in 2006 and where the petitioner in the earlier round had been vigilant enough in espousing his rights since 1990, could not have been entertained. There was evidently no parity with the case of Pratap Narain Pandey.
The learned counsel appearing on behalf of the respondent has relied upon a judgment of a Division Bench of this Court dated 8 August 2014 in a batch of special appeals filed by the State of Uttar Pradesh (Special Appeal Defective No.110 of 2012 :State of Uttar Pradesh Vs Mohd. Usman Ansari) and connected cases). In that batch of cases, the learned Single Judge had granted the benefit of the decision in Pratap Narain Pandey in various writ petitions. In fact, the judgment of the Division Bench would indicate that several of those writ petitions had been filed as far back as in 1991 (Writ Petition No.4587 (S/S) of 1991, Writ Petition No.6472 (S/S) of 1991 and Writ Petition No.3764 (S/S) of 1991) which had been decided by the learned Single Judges on 28 October 2010, 12 May 2010 and 12 May 2010 respectively. Those petitioners had again been vigilant enough to pursue their rights and the writ petitions had remained pending before this Court. Undoubtedly, one of those writ petitions in the batch (Writ Petition No.1595 (S/S) of 2008) had been dismissed on 26 March 2008 by a learned Single Judge on the ground of laches and the special appeal which had been filed by the State (Special Appeal No.311 of 2008) was disposed of by holding that the dismissal of the writ petition on the ground of laches was erroneous in view of the submission of the learned Standing Counsel that the case was identical to Pratap Narain Pandey which had attained finality and that the benefit had been granted to other similarly situated persons. The case proceeded entirely on a concession which was made and it would appear that no effort was made on the part of the State even to submit before the Division Bench that there was a factual difference between the case at hand and in the case of Pratap Narain Pandey. The judgment of the Division Bench does not lay down the principle that a writ petition which had been filed without any cogent explanation for a delay, as in the present case, must still be entertained merely on the ground of the decision in Pratap Narain Pandey. Hence, the judgment of the Division Bench will not assist the case of the respondent.
The learned counsel appearing on behalf of the respondent has relied upon a judgment of the Supreme Court in Basanti Prasad Vs Chairman, Bihar School Examination Board2. In that case, the husband of the appellant, who was an employee of the School Examination Board, was convicted of offences under Sections 467, 468, 471 and 120-B of the Penal Code on 7 February 1989 against which, a criminal appeal was filed before the Additional Sessions Judge. When the appeal was pending, his services were terminated in 1992. The husband of the appellant died during the pendency of the appeal before the Sessions Court and with the permission of the Court, the appellant continued to prosecute the criminal appeal. After he was acquitted by the Sessions Court, the appellant moved the Examination Board for an order that he would be deemed to have remained in service till the date of his retirement and that all the consequential retiral benefits of her late husband be paid.
Having due regard to the aforesaid factual background, the Supreme Court noted that if the delay is properly explained, it is open to the High Court to entertain the writ petition. The order of dismissal against the employee had been passed only on the ground of conviction in a criminal case. During the pendency of the appeal, the employee died and the appeal was prosecuted with the permission of the Sessions Court by his spouse. Upon acquittal by the Sessions Court, she had represented for the grant of retiral dues. In this background, it was held that there was no negligence or laches on the part of the appellant which would dis-entitle her for the grant of a writ.
In the present case, we find from the record that the writ petition which was filed by the respondent was without any explanation for the delay. The delay of nearly twenty nine years in filing the writ petition was completely unexplained. Merely because certain other individuals have been granted the benefit in the meantime, would not justify such a writ petition having been entertained in 2015. Hence, we hold that the respondent's writ petition ought to have been dismissed only on the ground of laches.
We, accordingly, allow the special appeal and set aside the impugned judgment and order of the learned Single Judge dated 26 February 2015. In consequence, the writ petition filed by the respondent (Service Single No.680 of 2015) shall stand dismissed. There shall be no order as to costs."
9. When the facts of instant case are tested on the touch stone of the Division Bench judgment of this Court in the case of Dan Bahadur Singh (supra) what clearly comes out is that even in the instant case there is gross unexplained delay in the petitioner approaching this Court after a period of almost 28 years from of issue of select list in the year 1986. No efforts were made by the petitioner to approach this Court for the redressal of his grievance within time. Merely because one selected person had approached this Court and certain orders were passed in his favour, the same would not entitle the petitioner also to firstly act as a fence sitter and thereafter approach this Court for extension of the benefit of the judgment in the case of Pratap Narayan Pandey (supra) to him.
10. In this regard, the Court would refer to the recent judgment of the Hon'ble Apex Court in the case of State of Uttar Pradesh and others vs. Arvind Kumar Srivastava reported in 2015(1) SCC 347 wherein the Hon'ble Apex Court has held that though 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 but the principle is subject to well recognized exceptions in the form of laches and delays as well as acquiescence inasmuch as 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 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. For the sake of convenience, the relevant observations of the Hon'ble Apex Court in the case of Arvind Kumar Srivastava (supra) are produced below:-
"22.1. 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.
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.
11. As regards the Division Bench judgment of this Court in the case of Rajendra Prasad Tiwari (supra), the same was a case in which Rajendra Prasad Tiwari had approached this Court by filing a writ petition in the year 2002 itself i.e. even prior to the judgment of this Court in the case of Pratap Narayan Pandey (supra). During pendency of the said petition and coming to know of the judgment and order dated 19.8.2006 in the case of Pratap Narayan Pandey, an application was filed in the pending writ petition of the year 2002 claiming benefit of the judgment and order dated 19.8.2002 in the case of Pratap Narayan Pandey which petition was disposed of on 18.5.2012 with a direction to the respondents to decide the representation which representation was rejected in the year 2002 and being aggrieved a second petition was filed in the year 2012 which was decided in the year 2014 but again the claim of Sri Rajendra Prasad Tiwari was rejected. Being aggrieved, a third petition was filed by Sri Rajendra Prasad Tiwari in the year in the year 2015 which was decided on 3.8.2017 by giving parity of the judgment of this Court in the case of Pratap Narayan Pandey (supra). Thus it is apparent that in the case of Rajendra Prasad Tiwari (supra) the petitioner was all along pursuing his remedy before this Court right since the year 2002 while in the present case the petitioner has filed the petition for the very first time after 28 years of the select list of the year 1986, hence the judgment in the case of Rajendra Prasad Tiwari (supra) is distinguishable and would not be applicable in the facts of the present case.
12. Taking into consideration the aforesaid discussions, no case for interference is made out. The writ petition is dismissed.
Order Date :- 27.8.2019 Rakesh (Abdul Moin, J.)