Tara Kant Mishra, aged about 66 years, son of Late Fuleshwar Mishra, resident of v. 1. 2. 3. 4. 5. 6. The State of Jharkhand Jharkhand Urja Vikas Nigam
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI (LETTERS APPELLATE JURISDICTION) L.P.A. No. 224 of 2024 Tara Kant Mishra, aged about 66 years, son of Late Fuleshwar Mishra, resident of Qr. No. D-218, Road No. 12, Near Children Park, PTPS Patratu, P.O. PTPS Patratu, P.S. Patratu, District Ramgarh, PIN-829119 (Jharkhand) … … Appellant/Petitioner Versus 1. 2. 3. 4. 5. 6. The State of Jharkhand Jharkhand Urja Vikas Nigam Limited, through its Chairman-Cum- Managing Director, having its registered office at Engineering Bhawan, HEC Campus P.O. & P.S. Dhurwa, District Ranchi. The General Manager (Administration), Jharkhand Urja Vikas Nigam Limited, having its registered office at Engineering Bhawan, HEC Campus, P.O. & P.S. Dhurwa, District Ranchi. The Deputy General Manager (Administration) Jharkhand Urja Vikas Nigam Limited, having its registered office at Engineering Bhawan, HEC Campus, P.O. & P.S. Dhurwa, District Ranchi. The Deputy Director (Personnel), Patratu Thermal Power Station, Patratu, P.O. & P.S. Patratu, Ramgarh, District Ramgarh, Jharkhand. The General Manager (HRD), Jharkhand Urja Utpadan Nigam Limited, Engineering Bhawan, HEC Campus, P.O. & P.S. Dhurwa, District Ranchi. Jharkhand … … Respondents/Respondents With L.P.A. No. 227 of 2024 Suresh Mohan Dubey, aged about 72 years, son of Late Satneshwar Dubey, resident of C/O Amrendra Kumar, Quarter No. F-62, Road No. 24, P.O. Patratu Thermal, P.S. Patratu, District Ramgarh (Jharkhand) 1. 2. 3. 4. 5. 6. … … Appellant/Petitioner Versus The State of Jharkhand Jharkhand Urja Vikas Nigam Limited, through its Chairman-Cum- Managing Director, having its registered office at Engineering Bhawan, HEC Campus P.O. & P.S. Dhurwa, District Ranchi. The General Manager (Administration), Jharkhand Urja Vikas Nigam Limited, having its registered office at Engineering Bhawan, HEC Campus, P.O. & P.S. Dhurwa, District Ranchi. The Deputy General Manager (Administration) Jharkhand Urja Vikas Nigam Limited, having its registered office at Engineering Bhawan, HEC Campus, P.O. & P.S. Dhurwa, District Ranchi. The Deputy General Manager, Patratu Thermal Power Station, Patratu, P.O. & P.S. Patratu, Ramgarh, District Ramgarh, Jharkhand. The General Manager (HRD), Jharkhand Urja Vikas Nigam Limited, having its registered office at Engineering Bhawan, HEC Campus, P.O. & P.S. Dhurwa, District Ranchi. Jharkhand … … Respondents/Respondents With L.P.A. No. 242 of 2024 Subhash Chandra Pd. Singh, aged about 72 years, son of Late Nand Kishore Singh, resident of Scholar Tower, F.N.-601, Near Oxford Public School, Pragati Path, Chutia, P.O. & P.S. Chutia, District Ranchi, PIN-834001 (Jharkhand) 1. 2. 3. 4. 5. 6. … … Appellant/Petitioner Versus The State of Jharkhand Jharkhand Urja Vikas Nigam Limited, through its Chairman-Cum- Managing Director, having its registered office at Engineering Bhawan, HEC Campus P.O. & P.S. Dhurwa, District Ranchi. The General Manager (Administration), Jharkhand Urja Vikas Nigam Limited, having its registered office at Engineering Bhawan, HEC Campus, P.O. & P.S. Dhurwa, District Ranchi. The Deputy General Manager (Administration) Jharkhand Urja Vikas Nigam Limited, having its registered office at Engineering Bhawan, HEC Campus, P.O. & P.S. Dhurwa, District Ranchi. The Deputy Director (Personnel), Patratu Thermal Power Station, Patratu, P.O. & P.S. Patratu, Ramgarh, District Ramgarh, Jharkhand. The General Manager (HRD), Jharkhand Urja Utpadan Nigam Limited, Engineering Bhawan, HEC Campus, P.O. & P.S. Dhurwa, District Ranchi. Jharkhand … … Respondents/Respondents ………………….
Legal Reasoning
CORAM: HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE NAVNEET KUMAR For the Appellant(s) For the Respondent(s) : : …………………. Mr. Nipun Bakshi, Advocate Md. Asghar, A.C. to Sr. S.C. Mr. Mohan Kr. Dubey, S.C. (JUVNL) Mr. Indranil Bhaduri, APP ………………… 26th June 2024 Per, Shree Chandrashekhar,A.C. J. Mr. Md. Asghar, the learned State counsel has raised a preliminary objection to maintainability of the present Letters Patent Appeal on the ground that in L.P.A. No. 462 of 2023 and batch cases this Court has already decided a similar claim raised by the co-employees. 2 LPA No. 224 of 2024 and analogous cases 2. This preliminary objection is sustained for the reason that the appellants do not plead that the judgment in LPA No. 462 of 2023 and batch cases runs counter to another judgment of a Bench of co-equal strength of this Court. The appellant has also not raised a plea that the previous judgment by the Letters Patent Court was delivered in ignorance of a binding precedent or overlooking any statutory provision. 3. In W.P. (S) No. 1115 of 2023, W.P. (S) No. 2924 of 2023 and W.P. (S) No. 1117 of 2023, the appellants had made the following prayers: W.P. (S) No. 1115 of 2023 ―(i) For issuance of a writ of certiorari or any other appropriate writ/order/direction for quashing/setting aside the Office Order No. 403/Patratu dated 18.02.2005 [Annexure-5] issued by the Respondent No. 05 for pay fixation of the Petitioner on being promoted as Accounts Assistant after illegal and arbitrary deduction of three advance increments which has resulted in reduction of pay contrary to and in violation of Rule 78(a)(i) of the Bihar/ Jharkhand Service Code, which mandates that on promotion to higher post the pay has to be fixed at a level higher than the existing substantive pay in the lower post; (ii) For issuance of a writ of mandamus compelling / directing the Respondents to ensure pay protection of the Petitioner and for re-fixation of pay, pension and gratuity and to pay the differential amount with all arrears under each of these heads and any other consequential benefits to the Petitioners as has been directed in the case of Ishwari Prasad Mandal vs. Jharkhand State Electricity Board in W.P.(S) No. 6166/2008, which has been affirmed and upheld by the Hon'ble Supreme Court. (iii) For issuance of any other writ, order or direction that may be incidental to or connected with any or more of the reliefs sought for hereinabove or for doing conscionable justice to the Petitioner.‖ W.P. (S) No. 2924 of 2023 ―(i) For issuance of a writ of certiorari or any other appropriate writ/order/direction for quashing/setting aside the Pay Fixation of the Board in Form-B dated 16.07.2010 [Annexure-2] issued by the Respondent No. 05 for pay fixation of the Petitioner on being promoted as Head Clerk after illegal and arbitrary deduction of three advance increments which has resulted in reduction of pay contrary to and in violation of Rule 78(a)(i) of the Bihar/ Jharkhand Service Code, which mandates that on promotion to higher post the pay has to be fixed at a level higher than the existing substantive pay in the lower post; (ii) For issuance of a writ of mandamus compelling / directing the Respondents to ensure pay protection of the Petitioner and for re-fixation of pay, pension and gratuity and to pay the differential amount with all arrears under each of these heads and any other consequential benefits to the Petitioners as has been directed in the case of Ishwari Prasad Mandal vs. Jharkhand State Electricity Board in W.P.(S) No. 6166/2008, which has been affirmed and upheld by the Hon'ble Supreme Court. (iii) For issuance of any other writ, order or direction that may be incidental to or connected with any or more of the reliefs sought for 3 LPA No. 224 of 2024 and analogous cases hereinabove or for doing conscionable justice to the Petitioner.‖ W.P. (S) No. 1117 of 2023 ―(i) For issuance of a writ of certiorari or any other appropriate writ/order/direction for quashing/setting aside the Office Order No. 1631/Patratu dated 24.08.2010 [Annexure-2] issued by the Respondent No. 05 for pay fixation of the Petitioner on being promoted as Head Clerk after illegal and arbitrary deduction of three advance increments which has resulted in reduction of pay contrary to and in violation of Rule 78(a)(i) of the Bihar/ Jharkhand Service Code, which mandates that on promotion to higher post the pay has to be fixed at a level higher than the existing substantive pay in the lower post; (ii) For issuance of a writ of mandamus compelling / directing the Respondents to ensure pay protection of the Petitioner and for re-fixation of pay, pension and gratuity and to pay the differential amount with all arrears under each of these heads and any other consequential benefits to the Petitioners as has been directed in the case of Ishwari Prasad Mandal vs. Jharkhand State Electricity Board in W.P.(S) No. 6166/2008, which has been affirmed and upheld by the Hon'ble Supreme Court. (iii) For issuance of any other writ, order or direction that may be incidental to or connected with any or more of the reliefs sought for hereinabove or for doing conscionable justice to the Petitioner.‖
Decision
4. The writ petitions were dismissed relying upon the order dated 12th February 2024 passed in LPA No.497 of 2023 and batch cases. In LPA No.497 of 2023 and batch cases, this Court held as under: ―14. As it would appear on a glance at the above statements made before the writ Court, the claim of the appellants was that their pay was required to be refixed by taking into account three advance increments granted to them on their promotion to the post of Head Clerk. However, the appellants in this batch of Letters Patent Appeals approached the writ Court in the year 2023 about a decade after they superannuated from service. This is also a matter of record that the appellants did not approach the writ Court soon after a decision was rendered in ―Ishwari Prasad Mandal‖ and they came before this Court after inordinate delay and, that too, without an explanation much less any plausible and acceptable explanation for the delay in approaching this Court. The submission made on behalf of the appellants that denial of pay-protection to them gave a continuing cause of action is bereft of merits and is liable to be rejected summarily. There was no concluded right in favor of the appellants on the basis of which they can claim that the action of the respondents gave rise to a continuing cause of action. The cause of action for the appellants to approach the writ Court arose on 31st March 2004 but without even a representation they accepted the pay fixed on their promotion as Head Clerk and approached the writ Court in the year 2023, about two decades thereafter. In ―M.R. Gupta‖ the Hon’ble Supreme Court held that ―so long as the employee is in service‖ a fresh cause of action would arise every month when they are paid their salary on the basis of a wrong computation made contrary to the rules. The Hon’ble Supreme Court further held that the wages should be calculated and paid as long as they have not become time-barred. 4 LPA No. 224 of 2024 and analogous cases 15. And, ―Tarsem Singh‖ lays down as follows: ―7. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or refixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion, etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. Insofar as the consequential relief of recovery of arrears for a past period is concerned, the principles relating to recurring/successive wrongs will apply. As a consequence, the High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition.‖ 16. ―E. Parmasivan v. Union of India‖ (2003) 12 SCC 270 is a case on the subject wherein the Hon’ble Supreme Court observed that when the government employee retired from service he could have made the claim for pay fixation but he did not take any step in the matter and approached the Court after inordinate delay and, therefore, he was not entitled for the discretionary relief under Article 226 of the Constitution of India. This is by now well-settled that the writ Court shall exercise its powers under Article 226 of the Constitution of India to promote justice and in public good and not otherwise. 17. In ―Rushibhai Jagdishbhai Pathak‖ the respondent-Corporation adopted and implemented the scheme in the modified form. The said scheme envisaged grant of pay-scale to the next promotional post on completion of certain years of service. The Hon’ble Supreme Court held that the law recognizes a continuing cause of action which may give rise to a recurring cause of action as in the case of salary and pension. However, the judgment in ―Rushibhai Jagdishbhai Pathak‖ has to be understood in the context of the fact that the entitlement of the employees for the higher grade of pay-scale of the next promotional post was accepted by the Bhav Nagar Municipal Corporation and the grievance of the employees was against restricting of the said benefit from the date of the judgment of the learned Single Judge. It was in the light of the pronouncements in ―M. R. Gupta‖ and ―Tarsem Singh‖ that the Hon’ble Supreme Court observed that the employees were entitled for the higher grade of pay-scale of the next promotional post for 3 years before the date of filing of the writ petitions. 18. In ―State of M.P. v. Nandlal Jaiswal‖ (1986) 4 SCC 566 the Hon’ble Supreme Court observed that the power of the High Court to issue an appropriate writ under Article 226 of the Constitution of India is discretionary and the High Court in exercise of its discretion does not ordinarily assist the tardy and indolent or the acquiescent and the lethargic. The Hon’ble Supreme Court further observed that if there is inordinate delay on the part of the petitioner in filing of writ petition and such delay is 5 LPA No. 224 of 2024 and analogous cases not satisfactorily explained the High Court may decline to intervene and grant relief in the exercise of its writ jurisdiction. In ―Chennai Metropolitan Water Supply and Sewerage Board‖ the Hon’ble Supreme Court held that the High Court cannot lightly brush aside the doctrine of latches and delay and entertain the writ petition after a lapse of four years. The Hon’ble Supreme Court observed as under: ―16. Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure or pleasure, the court would be under legal obligation to scrutinise whether the lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in most circumstances inordinate delay would only invite disaster for the litigant who knocks at the doors of the court. Delay reflects inactivity and inaction on the part of a litigant — a litigant who has forgotten the basic norms, namely, ―procrastination is the greatest thief of time‖ and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis.‖ 19. For the foregoing reasons, we are not inclined to interfere in these matters and, accordingly, this batch of Letters Patent Appeals is dismissed.‖ 5. The judicial discipline and propriety are foundations of any legal system. It is necessary to uphold the rule of law and maintain uniformity in the judicial system that judgment of a Division Bench of this Court is followed by another Division Bench – with exception of reference to a larger Bench. In “Chandra Prakash v. State of U.P” (2002) 4 SCC 234 the Hon'ble Supreme Court has held as under: ―22. …….The doctrine of binding precedent is of utmost importance in the administration of our judicial system. It promotes certainty and consistency in judicial decisions. Judicial consistency promotes confidence in the system, therefore, there is this need for consistency in the enunciation of legal principles in the decisions of this Court. It is in the above context, this Court Raghubir Singh held that a pronouncement of law by a Division Bench of this Court is binding on a Division Bench of the same or smaller number of Judges. .....‖ 6. While so, L.P.A. Nos. 224, 227 and 242 of 2024 are dismissed. (Shree Chandrashekhar, A.C.J.) Basant (Navneet Kumar, J.) 6 LPA No. 224 of 2024 and analogous cases