W.P.(C)/1017/2003 of N.S.GULIA Vs UOI & ORS. on 23 November 2004

1. Whether reporters of local papers may be allowed tosee tlie Judgment?

2. To be referred to tlie Reporter or not?S.Whetlierdiejudgment shouldbe reported in die Digest?

DIL MUKUNDAEAM SHAEMA. J (OEAL)

For orders see W.P.(C) 6724/2004.

DR.MUKUr^AEAM SHAEMAjJ

NOVEMBER 23,2004kr

OTAMITTAirj

W.R(C)6724/2(X)4

Signature Not Verified

Digitally Signed By:AMULYACertify that the digital file andphysical file have been compared andthe digital data is as per the physicalfile and no page is missing.

IN THE HIGH COURTOF DELHI AT NEW DELHI

Date ofde^ion : 23"^November,2004

WP.(C) 6724/2004

LT.COL.S,RS.REKHIPetitionerTiirough Ms. Jyoti Singh, Advocate

versus

UOI & ORS.RespondentsThrough Mr. Kailash Gambhir, Advocate

AND

W.R(C) 8085/2004

LT. COL. HANUMANSINGH....|PetitionerTiirough Mr. Jyoti Singli, Advocate

versus

UOI & ORS..... RespondentsTiirough Mr. Kailash Gambhir, Advocate

AND

W.P.(C) 1209/2003

LT. COL.(TS)IS. SANGWAN...^ PetitionerThrough Ms. Jyoti Singh, Advocate UOI & ORS.

versus

.... Respondents

ThroughMr. R^manDuggal,Advocate

AND

W.P.(C) 6724/2(X}4

W.P.(C) 1017/2003 ^

i

LT.COL.(TS)N.S. GULIA

Petitibner

ThroughMs. Jyoti Singh,Advocate versus

UOI&ORS.....RespondentsThrough Mr. RamanDuggal, Advocate CORAM; •' , .

HON'BLE DR. JUSTICE MUKUNDAKAM SHAEMAHON'BLE MS. JUSTICE GITA MTIT AL

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1. Whether refxjrtersoflocalpaperemay beallowedtoseethe Judgment?the Judgment?

2. To be referred to the Reporter or not?

3. Whetherthejudgmentshouldbe"reportedin theDigest?^

DR. MUKUNDAKAMSHARSIA. ,T (COMMON ORDER -ORAL)

1. Tlie facts and tlie legalissueswhich arise for considerationbeforeus in thesewritpetitionsare similarand, therefore,we proposeto disposeofallthesewrit petitionsby tliiscommonjudgmentand order. Tliepetitionerhereinv/ere all reemployed superannuatedOfficers from tlie Indian Army.The herein after tlieir retirement from the Indian were re-petitioners Armyemployed in terms of a scheme of tlie respondents. The petitionerswere,however, not given any extensionof re-employedser/iceup to tlie age of 58years in terms of the amended army instructions.Therefore tlie present writ,petitionersfiledwritpetitionsin tliiscourtone ofwhichwas registeredas CWPNo. 3324/2000titledCol. Hanuman Singli Vs UOl seekingfor a directiontothe respondentsto allow the petitionersup to the age of 58 years. Tlie writpetitionswerecontestedbytlierespondents.

W.P.(C)6724/2004

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2. The aforesaidwrit petitions filed by the petitioners along with fewother writ petitions were placed before the learned Single Judge of tliis courtand by tlie judgment and order dated 23"' January, 2002, one of us (Dr.Mulaindakam Sharma, J) heard and disposed of die said writ petitions in termsof tiie directions contained in the said order. Hie operative portion of tlie saidjudgment records as follows

"Therefore, 1 am of tlie considered opinion that once dieGovernmenthad itself amended the letter of 30.5.2000and the cutoffdate has been removed,the officerswhcj werere-employedevenprior to 30.5.2000 or on the said date are entitled to die benefits oftlie age extension upto 58 years of age subject to all other conditionsbeing fulfilled.There cannot be a discrimination between similarlysituated persons and tlie benefit given to one should be given to allsimilarly situated persons.Tlie petitioners are, dierefore, clearlyentitled to be retained upto 58 years of age and , tlierefore, dierespondents are directed to give effect to the aforesaid observations,subject however to all otlier conditions bei^ng fulfilled. A writ ofmandamus is accordingly issued in terms of the aforesaid directionsand a decision thereof shall be communicated to die .petitionerswidiin two mondis from the date of receipt of this order.All tliewritpetitionstandsdisposedofintermsofdieaforesaidobservationsand directions."

3. Pursuant to the said orders not only die writ petitioners but odiersimilarly situated persons were called back to service by tlie respondents andthey were given work and were made to retire from service on completion ofthe service of 58 years. Against die aforesaidjudgment no appeal was taken bydie respondents.

4. Tlie respondents, however, took time to make the directions and,therefore,all diepetitionershereinwere given work onlyfor a few days beforedieycompleted58 years of age in their service and consequentlywere retiredW.P.(C) 6724/20)4page 3 of 9

from service.

5. Hie petitioners sought for paymentjof all arrear, pay andallowancesfor tlie periodbetweentlieirduty attlie age of56yearsand the dateof tlieirjoiningpursuantto the orders passedby this court and a prayerwasmade byeach one of the petitionersbefore tlie respondentsfor releaseof dieaforesaidpayandallowancesin favourof the petitioners.

6. Counsel for tlie petitioners has also drawn our attention to ajudgmentof this courtrenderedby aSingleJudge in Lt. GeneralR.C. Kochharvs UQI CW No. 6573/1998decided on 29^ October, 1999. In tlie aforesaidcase a similarissue came to be considered and decidedby tlie learned Single and on considerationof the same in tlieit wasJudge penultimateparagraph,stated tliat tlietherein would be entitled to tlie on petitioners get pensionattainingthe age of 62 years in terms of the office memorandumdated 13'^May, 1998 andconsequentlyhe shouldbe treatedto be in serviceas ifhe hadnot retired witli effect from 3?' May, 1998. It was also held in tlie saiddecision that the petitionerwas entitled,to pay, salary and allowanceswitlieffect from 3?' 1998.Tlie of tlie aforesaid decision was May, legalitychallengedbefore the DivisionBenchby filing aLettersPatentAppeal whichwas, however,dismissedbyjudgmentand orderdated 17^ February,2000.

7. Counselappearingfor the respondents,however,has placedstrongreliance on the communication of tlie respondents dated 4"^ April, 2002.Relyingand referringto the same, he has submittedtliat tlie respondentshavetalten a consensusdecisionafterconsideringthe entirefacts andcircumstances of tlie case not to pay salaryand allowancesto tliepetitionersin view of tlietliedecision of the Supreme Court in MP State Electricity Board Vs Jarina Beereported in 2003 (vi) AD (SCC 141).

8. Havingregardtothe aforesaidsubmissionsofthe counselappearing for tlie paities we may now propose to deal with the same and renderour decision on the issue that is raised before us. The petitioners were entitledto die benefits of extension of age up to 58 years as tlie Government itself hadamendedtheletter of 30*^ May, 200L The aforesaidjudgmentwas renderedinrespect of the four petitioners who were before tliis court but it had clearlyobser^^ed tliat tliere could not be a discrimination between similarly situatedpetitioners and benefit should be given to all the similarly situated petitionersand, therefore, die petitioner would be entitled to be retained up to 58 years ofage.

9. The respondents considered tlie aforesaid plea of die petitionersand by order dated 4* April, 2002, an order was passed that no pay andallowances would be admitted to die petitioners for tlie period they were out ofactive re-employed service diough die said period would be taken into accountfor grant of notional increment. It was also stated in die said order in paragraph4 diat pay and allowances will be admissible from die date die officer joinsduty. The aforesaidordercame tobe passedonlyon 4'^ April,2002 whichwasin die nature of implementation of die judgment passed by diis court.Thejudgment was passed by diis court on 23"^ January, 2002 and die same wasimplementedby the respondentsonlyon 4"^ April,2002which makesit crystal clear that tlie respondentstook two months to get tlie said orderimplemented.It is also pointed out that despite tlie aforesaid order no clear order was issuedto the petitionersand in some of tliecases tlieypassedthe necessaryorderonlyin the montli of December, 2002.

10. Be that as it may, die issue diat nov/ arises for consideration in alltliesepetitionsis as to whetlieror not tlie petitionersshouldbe paid tlieirpayand allowancesfor tlie period of their attainmentof the age of 56 years till tliedate of tlieir re-employed service. Having regard to the aforesaid submissionsof the counsel appearing for tlie parties we may now propose to deal ¥/ith tliesame and renderour decisionon the issue diat is raised before us.In thisregard, we have heard tlie learned counsel appearing for tlie parties.In thejudgmentdated 23"* January,2002in paragraph14 whichis die operativepartof the judgment, it was explicitly held tliat tlie petitioners were held entitled tobe retained up to 58 years of age and tliey would also be paid for the periodbetween 56 years and from the date of tlieir attainment of 50 years of age up totlie date of retirement. Counsel for tlie petitioners has also drawn our attentionto a judgment of this court rendered by a Single Judge in Lt. General R.C.Kochhar vs UQl CW No. 6573/1998 decided on 29"^ October, 1999,In theaforesaid case a similar issue came to be considered and decided by tlie learnedSingle Judge and on consideration of the same in tlie penultimate paragraph, itwas stated tliat die petitioners dierein would be entitled to get die pension onattaining the age of 62 years in terms of the office memorandum datedMay, 1998 and consequently he should be treated to be in service as if he had

not retired with effect from 3P' May, 1998.It was also held in the saiddecision that tlie petitioner was entitled to pay, salary and allowances witheffect from 31" May, 1998.The legality of the aforesaid decision waschallenged before die Division Bench by filing a Letters Patent Appeal whichwas, however,dismissedbyjudgmentand orderdated 17^ February,2000.11.The petitionerswere entitledto die benefits of extensionof ageupto 58 years as the Governmentitselfhad amendedthe letter of 30*^ May, 2001.Tlie aforesaid judgment was rendered in respect of die four petitioners whowere before this court but it had clearly observed diat diere could not be adiscrimination between similarly situated petitioners and benefit should begiven to all die similarly situated petitioners and, dierefore, die petitionerswould be entitled to be retained up to 58 years of age. Ttie respondents weredirected to give effect to die aforesaid obsei-vationsas expeditiously as possibleand preferably within a period of two months. Tlie respondents have deniedpayment of the salary and allowances for die period die petitioners were keptout of service, i.e. up to dieir date of re-joining die service, on die ground thatdie petitioners did not work for die aforesaid period. Tlie aforesaid plea cannotbe accepted in view of die fact diat die petitioners were not allowed to workand could not render dieir service because they were not allowed to do so by3die respondents. The petitioners were not at all at fault for not being able torender their services and it is die respondents who deprived die petitioners fromrendering their service. It is the action of die respondents which prevented diepetitioners from rendering their services. The petitioners were kept out of ^

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service by the respondents although tlie petitionerswere ready and willing tosei-ve tlie respondents, Hierefore in such situation, in oui' considered opinionthe principles of 'no work no pay' would not be applicable. Tlie view whichhas been taJcen by us here was also taken by the Supreme Court in die decisionswhich we propose to discuss here.

The Apex Court directed payment of all arrears of emoluirentsfroinaretrospectivedatewheretheemployeewas made to sufferon accountofadininistrative reasons for which he was not responsible in Vasant Rao Romanvs UOI reported in 1993(9) SC Service Rulings 213.hi State of AndhraPradesh Vs K.V.L. Narasimim Rao reported in JT 1999(3) SC 205 tlie courtheld that in normal circumstances, when retrospective promotions are effected,all benefits flowing tlierefrom including monetary benefits must be extended tothe employee who was denied promotion earlier.

12. Counsel appearing for tlie respondents referred to the decision ofMP ElectricityBoardfSupral. We are, however,of the consideredopinionthatthe aforesaid case shall have no application to the facts of tiiepresent case. Theaforesaid decision was rendered in the facts of tliaticaseand was in tlie contextof hidustrial Disputes. In the said case tlie Supreme Court held that it cannotbe said that when an order of dismissalis set aside as adiere of consequenceback wages should be awarded, but it would depend upon facts andcircumstances of each case.We have given our reasons for allowing thebenefitof paymentof salary andallowancesin favour of the petitionersandtliesaid reasons,in ourconsideredopinion,distinguishtliesecases from the case of W.P.(C) 6724/2004

MP Electricity Boai'd(supra).

13. In tliis context reference may also be made to tlie decision of Lt.General R.C. Kochhar(supra) wherein on similar facts of extending the age ofretirement to 62 years, diis court had directed payment of full salary andallovtfances for the period during which die said writ petitionerswas notallowedto work by the respondents. In the said case also tlie sarre memo ofthe respondents,namelyNo. 25012/04/97/Estt,Dated 13""May, 1998,was alsoconsideredandin thelight of the contentsof the said memo die effectiveorderswere passedby tliis court. The action and decisionof tlie re^ondents cannotbe sustained and is hereby set aside.

14. In the light of tlie aforesaid observations and directions, it isorderedtliat tlie petitionershereinwouldbe entitledto pay and allowancesforthe periodthey were kept out of serviceby tlie respondents,namely, from tliedateofcompletionof56yearsup to the date oftheirrejoining. The saidperiodshall also be counted for the purpose of dieir pension and all otlierconsequentialbenefits. Tlie writpetitionsstandallo¥/edto tlie aforesaidextentleaving the parties to bear their own cost.

DK. MUKUTpAKAM SHAEMA, J

NOVEMBER 23,2004kr

iiTAMirr^j