Harnam Singh Yadav vs The State of Madhya Pradesh and Others

This application has been filed for review/recall of the order passed on 3/4/2014 in W.A. No. 857/12. Appellant Harnam Singh was working as a Compounder in Special Armed Forces and in the year 2011 he filed a Writ Petition No. 4032/2011(s), wherein he claimed that he is also entitled to certain additional benefits while working as a Compounder in view of the judgment rendered by the M.P. State Administrative Tribunal in O.A. No. 763/92 (Kunwarpal Singh vs. State of M.P. & ors decided on 26/10/93. In the year 2011, when the writ petition was filed, he was working in the Department and claimed parity in the matter of grant of benefit at par with other employees who are getting the said benefit. Learned writ Court in its order passed on 10/3/2011 found that the petitioner is claiming the benefit at par with other employees and is seeking the pay-scale in accordance with judgment rendered in the case of Kunwar Pal Singh (supra) which was decided in the year 1983, after a period of 18 years and on account of delay and laches the petition was dismissed. Challenging the order of the writ Court, the appeal in question was filed and there being a delay of more than one and a half year in filing the appeal, we dismissed the appeal also on the ground of unexplained delay and further considering the fact that the benefit is claimed after a period of 18 years. However, when the appeal was being heard by us in the year 2014, the appellant''s counsel did not appear. We perused the record and passed the order. Now it is indicated in the review application that the appellant had engaged one counsel whose name is indicated in the application and due to non-appearance of the counsel certain facts could not be brought to the notice of this Court. Contending that on account of fault on the part of the counsel, the litigant should not suffer. The judgment of the Supreme Court in the case of Rafiq and Another Vs. Munshilal and Another, AIR 1981 SC 1400 : (1981) 2 SCC 788 : (1981) 3 SCR 509 : (1981) 13 UJ 505 is referred to. That apart, learned counsel for the applicant submitted that the learned Writ Court and while dismissing the writ appeal, this Court also lost sight of the fact that even if there was a delay in claiming the benefit, in the year 2011 when the petitioner claimed the benefit after representing to the department, the petitioner had a recurring loss inasmuch as the allowance which was payable to him by virtue of the order passed in the case of Kunwar Pal Singh (supra) was denied every month and as the cause of action accrued every month to the appellant when the less payment was made in comparison to the other similarly situated employees. The dismissal of the petition on the ground of delay and laches was not proper. It is argued that this aspect of the matter was completely lost sight both by the writ Court and by this Court while deciding the writ appeal.

Shri Piyush Jain, learned P.L. appearing for the respondent State refuted the aforesaid and submitted that once the petitioner had slept over the matter for a period of 18 years and did not claim the benefit well within time after the judgment was rendered in the case of Kunwar Pal Singh (Supra) in the year 1993, this Court has not committed any error while dismissing the writ petition and the writ appeal and there being no error apparent on the face of the record, the petitioner is not entitled to any benefit.

We have considered the rival contention and we find that the petitioner wanted implementation of certain orders passed by the State Administrative Tribunal in the case of Kunwarpal Singh (surpa). In the case of Kunwarpal Singh (surpa) the Tribunal has granted the benefit to certain employees in the matter of giving to them certain additional benefits. Admittedly, there was a delay on the part of the petitioner in seeking the benefit, but at the same time when the applicant was in service and so long as he continues in service, if the benefit was to be given to the applicant, the applicant was loosing the said benefit every month when the pay was being paid to the applicant. That being so, there is a recurring loss to the applicant every month when less pay was granted to him in comparison to his co-employees identically situated. While dismissing the writ appeal by this Court, we did not advert to this aspect of the matter and if this consideration was made, the applicant would have been entitled to the benefit from a future date and arrears could have been denied to him. That apart, the Supreme Court in the case of State of State of Uttar Pradesh Vs. Arvind Kumar Srivastava, (2015) 1 ESC 89 : (2015) LabIC 482 : (2015) 1 SCC(L&S) 191 : (2014) 9 SCJ 439 has laid down a principle that in the matter of grant of service benefit if a law is laid down and certain directions are given by the Court, the State as a modern employer is required to implement the order uniformally in the case of all persons and it is not necessary to compel each and every individual to go to the Court for seeking the said benefit. We find that while dismissing the writ appeal, these aspect of the matter were completely lost sight and only on the ground that there is a delay of 18 years in claiming the benefit, we dismissed the writ appeal. However, while doing so, this Court did not evaluate the matter in the light of the principles as detailed here-in-above and in doing so we have committed an error, which may be an error apparent on the face of the record, as well settled legal principles have been lost sight of.

Keeping in view the aforesaid, we modify the order passed in Writ Appeal No. 857/2012 and the order passed by the writ Court to the extent that in case the petitioner feels that he is also entitled to the benefit as was granted to the similarly situated employees by virtue of order passed in the case of Kunwarpal Singh (supra), he may represent to the departmental authority and the departmental authority after evaluating the claim in the backdrop of the benefits granted to the similarly situated employees may examine whether the petitioner is also entitled to the said benefit and if it is found that the petitioner is entitled to said benefit, the respondents may passed an appropriate order granting the benefit to the petitioner prospectively either from the date when the claim was made first time by the petitioner or from the date as may be determined by the competent authority. The competent authority is free to decline grant of benefit to the petitioner from the date w.e.f. the case was decided by the State Administrative Tribunal i.e. 26/10/1993. We make it clear that if the petitioner found entitled to the benefit, the respondents may grant the benefit to the petitioner and the actual date from which the benefit is to be granted to the petitioner, is left open to be determined by the competent authority in accordance with requirement of law and after considering the delay on the part of the petitioner. The claim of the petitioner be decided as may be directed herein above within a period of three months of its representation. Needless to emphasize that in case, for any reason whatsoever apart from the ground of delay, the respondents find that the petitioner is not entitled to the benefit of order passed in Kunwarpal Singh (supra) they are free to record reasons for the same and communicate it to the petitioner.

With the aforesaid modification in the order dated 3/4/2014 passed in the Writ Appeal No. 857/2012 the Review Petition stands disposed off.