Surendra Nath Pandey & Ors vs U.P.Cooperative Bank Ltd. & Ors

Surendra Nath Pandey & Ors. ... Appellants

Vs.

UP Cooperative Bank Ltd. & Anr. ... Respondents

O R D E R

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.

4

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)

New Delhi; ___________________J. January 19, 2010. (Aftab Alam)