Union of India and others v. Diganta Kumar Das

unsuccessfully challenged by department before the High Court in CWP No.5953 of 2016. Thus, Tribunal directed to extend the same benefit to the present applicant, a similarly situated employee.

#6. Criticizing the order of Tribunal, learned senior advocate for the petitioner submits that twin reasons for rejecting the claim mentioned in the impugned order dated 7th November, 2023 had not been considered by the Tribunal. Thus, the order of the Tribunal is vulnerable and liable to be interfered with.

#7. Mr. Ujjal Roy, learned counsel for the respondent opposed the prayer and contended that on 3 principle of parity, the applicant deserves similar treatment and Tribunal has not committed any error in extending the same benefit. More so when the order of Hyderabad Bench of Tribunal in case of similarly situated employee has been implemented which is evident from the document at page no.176 of the writ petition. Thus, he supported the impugned order.

#8. We have heard the learned counsel for the parties. The Tribunal recorded its findings as under: “8. We have gone through the Order dated 21.07.2015 of the Hyderabad Bench of this Tribunal in O.A. No. 760 of 2014 in the case of Dr. K.S. Reddy, Senior Medical Officer (Homeo), Central Government, Health Scheme, Wellness Centre IV, Begumpet, Hyderabad Vs. Department of AYUSH and others (Annexure A-6). The operative part of the judgement is reproduced below: considering "12. Having heard both sides counsel and circumstances of the case, we are of the considered view that this OA. is squarely covered by the judgment of the Hon’ble Supreme Court in State of Haryana & & Anr Vs. Deepak Sood & Others (supra). Hence, this OA is liable to be allowed by following the law laid down by the Hon’ble Supreme Court in Civil Appeal No. 4446/2008 & Batch. On the other the Hon’ble judgment of hand, Supreme Court respondents in Union of India & Ors. Vs. K. Savitri & Ors, is not applicable to the the said present case judgment is on the issue of counting of past service of the redeployed staff for seniority in the new organization. relied on by inasmuch as

#13. In the result, the O.A is allowed by holding that the applicant is entitled for counting the service rendered by him as in SSB Cabinet Medical officer Secretariat

18.11.1997 4 time bound

30.04.2007 financial upgradation under Dynamic Assured Career Progression (DACP) Scheme. Accordingly, the respondents are directed to consider the case of the applicant for financial upgradation under DACP Scheme by considering his past service to 30.04.2007 as from 18.11.1997 in SSB, Cabinet Medical Officer Secretariat. respondents The comply with the order within a period of two months from the date of receipt of copy of this order. No order as to costs."

#9. The aforesaid order of the Hyderabad Bench of this Tribunal was challenged by the respondents in CWP No. 5953 of 2016, before the Hon’ble High Court but the same was dismissed vide order dated 03.03.2016 (Annexure A-7). 10. The applicant in this O.A. has submitted that Dr. K.S. Reddy, who was an applicant in the O.A. 760 of 2014, was also declared as surplus along with him while he was working in SSB. On perusal of the facts of the said OA as outlined in the aforesaid Order dated 21.07.2015 of the Hyderabad Bench of in O.A. No. 760 of 2014 this Tribunal, (Annexure A-6), we find that the applicant in this O.A is similarly circumstanced as Dr. K.S Reddy, who was an applicant in the said O.A. and is entitled to similar relief. 11. In the light of the above discussion, the impugned speaking order passed by the under Secretary to the Government of India, Ministry of Ayush, with the approval of the competent authority, vide Office Memorandum dated 7th November, 2023 is hereby quashed and set aside. The Original Application is allowed. There will, however, be no order as to costs.” (Emphasis Supplied)

#9. This aspect of similarity is not disputed before us by learned counsel appearing for the department i.e. present respondent and Dr. K. S. Reddy, the applicant before the Hyderabad Bench in O.A. 760/2014 are similarly situated. Both were serving in SSB and were declared surplus simultaneously. Thereafter joined present department. In the case of Dr. K. S. 5 Reddy, the Hyderabad Bench of Tribunal had directed consideration of benefit of DACP Scheme by counting his services rendered in the previous department. The present applicant is similarly situated. In the case of Inder Pal Yadav and others vs. Union of India and others reported in (1985) 2 SCC 648, the Apex Court opined as under: “Therefore, some of the retrenched workmen failed to knock at the doors of the court of justice because these doors do not open unless huge expenses are incurred. Choice in such a situation, even without crystal gazing is between incurring expenses for a litigation with uncertain outcome and hunger from day to day. It is a Hobson’s choice. Therefore, those who could not come to the court need not be at a comparative disadvantage to those who rushed in here. If they are otherwise similarly situated, they are entitled to similar treatment, if not by anyone else at the hands of this Court.” (Emphasis Supplied)

#10. Since similarly situated employee Dr. K. S. Reddy got benefit from Hyderabad Bench of Tribunal and said order got stamp of approval from the High Court in CWP No.5953 of 2016, we find no reason to deprive the present applicant from the similar benefits. Otherwise, two similarly situated employees will be governed by two different parameters/criteria. This will certainly hit Article 14 of the Constitution of India.

#11. The courts must eschew the benefit of negative equality. Once the order of Tribunal in the case of similarly situated employee, namely, Dr. K. S. Reddy is upheld by the High Court in CWP 6 No.5953 of 2016, it cannot be said that said benefit extended to Dr. K. S. Reddy falls within the ambit of negative equality.

#12. The Tribunal, in our considered view, has taken a plausible view which does not warrant any interference. Accordingly, admission is declined. Petition is dismissed. (Sujoy Paul, A.C.J.) (Partha Sarathi Sen, J.)