Denial Of Salary A 'Continuing Wrong' ; Not Barred By Limitation : HP HC [Read Judgment]

"Where the issue relates to payment or fixation of salary or any allowance, the challenge is not barred by limitation or the doctrine of laches, as the denial of benefit occurs every month when the salary is paid, thereby giving rise to a fresh cause of action, based on continuing wrong," the bench of Chief Justice L. Narayana Swamy & Justice Jyotsna Rewal Dua held while disposing of a bunch of petitions.

Reliance was placed on State of Madhya Pradesh & Ors. v. Yogendra Shrivastava, 2010 (12) SCC 538.

The order directs treatment of the Petitioner JBTs at par with the Vidya Upasaks, whose services though regularized in 2007, were counted from their initial dates of appointment for the purposes of pension under CCS(Pension) Rules 1972, annual increments, seniority, promotions, etc., as per the law laid down in Joga Singh & Ors. v. State of H.P. & Ors., CWP No.8953/2013.

Background

The Upasaks were granted the aforementioned benefit by the high court in the year 2015. Subsequently, the SLP and the review petition filed against the said order came to be dismissed, thus granting finality to the high court's order.

Claiming to be situated in a similar position as the Upasaks, the Petitioner JBTs had approached the high court for extension of the benefit granted in Joga Singh's judgment to them.

The Petitioners had in fact argued that their services were regularized in 2006, prior to regularization of Upasaks, and thus non-extension of Joga Singh's judgment to them had virtually made them juniors to their actual juniors/Upasaks.

State's Arguments

The State opposed the petition stating that it was barred by limitation under Section 21 of Administrative Tribunal Act. Reliance was placed on Union of India v. C. Girija & Ors., (2019) 3 SCALE 527, to state that the petitioners were fence sitters and therefore, they should not be allowed to reap the benefit of judgment in Joga Singh's case.

The state also argued that the Joga Singh's case was bad in law and the state should avail the opportunity to overrule the same. Reliance was placed on Union of India v. Dr. O.P. Nijhawan, wherein it was held by the Apex Court that even where the State does not challenge a judgment owing to the fact that financial repercussions are negligible or where the appeal is time barred or on account of wrong legal advice, this would not ipso-facto prevent the State from challenging subsequent decision in similar matters where magnitude of financial implications involved is high.

Reliance was also placed on State of Punjab v. Davinder Pal Singh Bhulla (2011) 14 SCC 770, to assert that dismissal of an SLP in limine simply implies that case was not considered worthy of examination by the Supreme Court for a reason, which may be other than the merits of the case. Such in limine dismissal at the threshold without giving any detailed reasons does not constitute any declaration of law or a binding precedent under Article 141 of the Constitution.

Findings

As mentioned above, the court dismissed the State's argument vis-à-vis the petition being barred by limitation.

"It was after the dismissal of SLP that cause of action virtually arose in favour of the petitioner as his juniors (originally -Vidya Upasaks) were held entitled to count their past service for purpose of pensionary benefits under CCS (Pension) Rules, 1972 as well as for annual increments," the court held.

Further delving into the vires of the verdict rendered in Joga Singh's case, the high court upheld the same. While agreeing with the State's argument that an order refusing Special Leave to Appeal does not attract doctrine of merger and is not a binding law, the court was inclined to accept the law laid down in that case.

The court observed that Vidya Upasaks were discharging same and similar duties being discharged by the regularly appointed teachers; they were appointed under a selection process; their services were continued without any break right from the dates of their appointment as Vidya Upasaks till the date of their regularization.

Thus, the high court was of the opinion that the judgment had rightly directed the State to count the services of Upasaks from the initial date of their appointments for the purpose of pensionary benefits. Reliance was placed on Kesar Chand v. State of Punjab, AIR 1988 P & H 265, which was upheld by the Apex Court in Punjab State Electricity Board v. Narata Singh (2010) 4 SCC 317, to hold that services rendered by a workman on work charge basis are to be counted towards qualifying service for the purposes of pension.

Thus extending the benefit of Joga Singh's case to the Petitioner JBTs, the high court observed,

"Judgment in Joga Singh's case is virtually a judgment in rem in so far as JBT cadre is concerned. Contractually appointed JBTs (petitioners) and Vidya Upasaks (Joga Singh & others) eventually were regularized as JBTs & merged into one cadre of JBT. Petitioners were appointed as JBTs on contract basis prior in time to Joga Singh & others' appointment as Vidya Upasaks. Appointment of both the categories was against sanctioned and regular posts. Petitioners were regularized as JBTs prior in time to regularization of Vidya Upasaks. Benefits of counting past service granted to all Vidya Upasaks as a category in whole treating it as qualifying service towards grant of pension under CCS (Pension) Rules, 1972 and annual increments cannot be denied to the petitioners, who were seniors to VU."

Reliance was placed on State of Uttar Pradesh & Ors. v. Arvind Kumar Srivastava & Ors., (2015) 1 SCC 347, wherein it was held that non-extension of benefit, accorded in favour of a particular set of employees by the Court, to similarly situated persons violates Article 14 of the Constitution of India as like should be treated alike.

The court also rejected State's plea that in order to claim the benefit of judgment in Joga Singh's case, the petitioner was required to challenge his regularization order dated 10.07.2006.

Case Details:
Case Title: Jagdish Chand v. State of Himachal Pradesh & Ors.
Case No.: CWP No. 2411/2019
Quorum: Chief Justice L. Narayana Swamy & Justice Jyotsna Rewal Dua
Appearance: Advocate JL Bhardwaj (for Petitioner); Advocate General Ashok Sharma with Additional Advocates General Ranjan Sharma, Ritta Goswami, Adarsh Sharma, Ashwani Sharma and Nand Lal Thakur (for Respondents)

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