The High Court · 2023
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI (Letters Patent Appellate Jurisdiction) L.P.A No. 129 of 2017 Md. Akhtar Rasul S/o Md. Moin Uddin, r/o village-Topkhana, Bazar, PO-Munger, PS-Kotwali, District-Munger (Bihar) … Appellant Versus 1. The State of Jharkhand 2. Director General of Police, Jharkhand, Ranchi, Project Bhawan, Dhurwa, PO-Dhurwa, PS-Jagarnathpur, District-Ranchi. 3. Inspector General, Jharkhand Armed Police, Ranchi At+PO- Doranda, PS-Doranda, District-Ranchi 4. Deputy Inspector General of Police (Personnel) Jharkhand Ranchi, AT+PO-Dhurwa, Ranchi, PS-Dhurwa, District-Ranchi 5. Deputy Inspector General of Police, Jharkhand Armed Police, Ranchi, PO & PS-Doranda, District-Ranchi. 6. Commandant, Indian Reserve Bataliyan-I, Jamtara, PO, PS & District-Jamtara, Jharkhand. 7. Chhote Lal Yadav, s/o Lalu Prasad Yadav, r/o Bansi Chak, PO- Saidpur, PS-Pirpainti, District-Bhagalpur (Bihar) 8. Umesh Yadav, s/o Yamuna Yadav, r/o Madan Gopali, PO- Saidpur, PS-Pirpainti, District-Bhagalpur (Bihar) 9. Anil Kumar Sah, s/o Sri Achhay Lal Sah, r/o Koeribandh, PO & PS-Jhariya, District-Dhanbad (Jharkhand) 10. Hare Ram Kumar Paswan, s/o Sri Ram Lakhan Paswan, r/o Dumri No.-4, PO-Jamdaba, PS-Jorapokhar, District-Dhanbad (Jharkhand) 11. Sanjay Kumar, s/o Gulab Chandra Mallik, r/o Jogiya Talab, PO-Nirja Chak, PS-Pirpainti, District-Bhagalpur (Bihar) 12. Deepak Kumar, S/o Sri Mohan Prasad, r/o Amarut, PO & PS- Dobi, District-Gaya (Bihar) ... Respondents CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
Legal Reasoning
HON'BLE MR. JUSTICE RATNAKER BHENGRA For the Appellant : Mr. Indrajit Sinha, Advocate Mr. Pawan Kumar Choudhary, Advocate For the Resp.-State : Mr. Ankit Kumar, AC to GP-VI ---------
Decision
O R D E R 16th May 2023 Per, Shree Chandrashekhar, J. I.A No. 3476 of 2023 This application has been filed by Md. Akhtar Rasul seeking condonation of delay of 913 days in filing the present Letters Patent Appeal. 2 L.P.A No. 129 of 2017 This Letters Patent Appeal was listed on 2nd May 2023 and 5th May 2023. However, there is no affidavit-in-opposition filed by the State of Jharkhand opposing the prayer seeking condonation of 913 days delay. Two weeks peremptory time was given to the appellant on 29th November 2017 for removing the defects – there were as many as five defects. On account of non-compliance of the order dated 29th November 2017, LPA No. 129 of 2017 was dismissed in default. Thereafter CMP No. 242 of 2018 was filed for restoration of L.P.A No. 129 of 2017 but this application was dismissed on the ground that the appellant had failed to produce certified copy of the order dated 29th November 2017. By an order dated 28th March 2023, CMP No. 118 of 2019 which was filed for restoration of the present Letters Patent Appeal was allowed by a co-ordinate Division Bench of this Court. This order was challenged before the Division Bench and finally decided by a Full Bench of this Court vide judgment dated 24th February 2020 in L.P.A No. 282 of 2015 and analogous cases. Mr. Pawan Kumar Choudhary, the learned counsel for the appellant has submitted that the calculation of the period of delay is not correct inasmuch as the Registry has calculated the period of delay till CMP No. 118 of 2019 was allowed vide order dated 28th March 2023. Having regard to the statements made in this interlocutory application and on being satisfied of the cause shown by the appellant, I.A No. 3476 of 2023 is allowed. L.P.A No. 129 of 2017 In the present Letters Patent Appeal, a challenge has been laid to the order dated 30th January 2015 passed in W.P.(S) No. 3737 of 2008 and analogous cases. 2. The appellant is one of the petitioners in W.P.(S) No. 3737 of 2008 which was filed by seven persons including 3 L.P.A No. 129 of 2017 Chote Lal Yadav, Umesh Yadav, Anil Kumar Sah, Hare Ram Kumar Paswan, Sanjay Kumar and Deepak Kumar. 3. Umesh Yadav and four others were appellants in L.P.A No. 136 of 2015 which was dealt with and disposed of along with the aforesaid L.P.A No. 282 of 2015. 4. The appellant has brought on record the judgment in “Pankaj Kumar v. State of Jharkhand & Ors.” to seek appointment on the ground of parity with the others who were before the Hon'ble Supreme Court in Civil Appeal No(S). 4864 of 2021 with Civil Appeal No(S). 4865-4870/2021. 5. In “Pankaj Kumar” the Hon'ble Supreme Court has held as under : “59. But taking note of the peculiar facts and circumstances of the case which, however, cannot be ignored, that the appellants had bonafidely submitted their application pursuant to an advertisement dated 13th January, 2004 issued by the State of Jharkhand holding selection for the post of Constable and it is not the case of the respondents that either of the appellant has misrepresented while participating in the selection process or the caste/tribe/OBC to which either of the appellant belongs is not being notified in the Constitution (Scheduled Castes)/(Scheduled Tribes) Order, 1950 which has been amended in reference to Sections 23 and 24 of the Act 2000 or the class of OBC which has been notified by the State of Jharkhand and once the appellants are appointed, after going through the process of selection served for 3-4 years, their services came to be terminated in June, 2008 and who were never at fault have lost almost 13 years in litigation and could not secure employment at a later stage. Taking note of the peculiar facts and circumstances and the period of service rendered, while exercising our plenary power under Article 142 of the Constitution, to do complete justice, each of the appellant deserves indulgence of reinstatement in service on notional fixation of pay and allowances, etc. 60. Consequently, the appeals deserve to succeed and we hold that the majority judgment of the High Court impugned dated 24th February, 2020 is unsustainable and is hereby set aside. We are also not in agreement with the minority judgment on principle and clarify that the person is entitled to claim the benefit of reservation in either of the successor State of Bihar or State of Jharkhand but would not be entitled to claim the privileges and benefits of reservation simultaneously in both the States and if that is permitted, it will defeat the mandate of Article 341(1) and 342(1) of the Constitution. 61. Accordingly, the appellant Pankaj Kumar in Civil Appeal @ SLP (Civil) No. 13473 of 2020 shall be appointed pursuant to his selection in reference to advertisement no.11 of 2007 and he is entitled for his seniority as per his placement in the order of merit with notional fixation of pay & allowances and in Civil Appeals @ SLP (Civil) Nos. 3610-3615 of 2021, the order of termination of each of the appellant is hereby quashed and set aside and the appellants shall be reinstated in service with notional pay & allowances and shall not be entitled the date of appointment/reinstatement. 62. Consequently, the appeals in the above terms stand disposed of and compliance shall be made within six weeks. No costs.” for arrears of salary upto 6. Mr. Ankit Kumar, the learned AC to GP-VI has contended that the appellant who did not approach the Division 4 L.P.A No. 129 of 2017 Bench or the Hon'ble Supreme Court is not entitled for similar benefit as has been given to the others who had approached the Hon'ble Supreme Court. 7. In “State of U.P. v. Arvind Kumar Srivastava” (2015) 1 SCC 347 the Hon’ble Supreme Court has observed as under: “22.1. 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. 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-recognised 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. 22.3. However, this exception may not apply in those cases where the judgment pronounced by the court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated persons. Such a situation can occur when the subject-matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K.C. Sharma v. Union of India. On the other hand, if the judgment of the court was in personam holding that benefit of the said judgment shall accrue to the parties before the court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence.” 8. Having regard to the aforesaid facts and circumstances in the case, LPA No. 129 of 2017 is allowed. 9. The appellant shall be reinstated in service with notional pay and allowances within four weeks, and without salary or any other allowance from the date of termination till the date of reinstatement. (Shree Chandrashekhar, J.) Jharkhand High Court, Ranchi Dated: 16th May 2023 Amit/N.A.F.R (Ratnaker Bhengra, J.)