Full Judgment Text
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 945 OF 2010
[Arising out of SLP (C) No.5001 of 2007]
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
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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
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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.
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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
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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
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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)