Suram Singh & Ors. vs State Of Himachal Pradesh & Ors.

Ajay Mohan Goel, Judge (Oral)

By way of this writ petition, the petitioner has inter alia prayed for the following reliefs:-

¹ Whether reporters of the local papers may be allowed to see the judgment? date of joining of the petitioner as Helper-cum-Peon alongwith all consequential benefits.

Facts necessary for the adjudication of this petition are that in the year 1999, vide Annexure P-1, an advertisement was issued by the respondent-Bank, inviting applications from the eligible candidates inter alia for the post of Helper-cum-Peon. As per the advertisement, 75 posts of Helper-cum-Peon were advertised and it was also mentioned that reservation of posts was available as per the rules of the Government of Himachal Pradesh.

To cut the controversy short, the present petitioners being eligible participated in the process and were appointed against the said posts in their capacity as Ex-servicemen. Annexure P-2, is a copy of the seniority list of Helper-cum-Peon appended by the petitioners, in which at Sr. No. 199, name of Shri Daya Krishan is mentioned, who was also appointed as Helper-cum-Peon in the same process against the post reserved for ex-servicemen. In this seniority list, the petitioners are at Sr. No. 88, 218, 222 and 227. Vide Annexure P-3, the petitioners and Sh. Daya Krishan, were promoted to the post of Peon-cum-Chowkidar. These facts are not in dispute.

The grievance of the petitioners is that vide Annexure P-4, a resolution was passed by the respondent-Bank, dated 24.02.2007, on the request of Shri Daya Krishan, which reads as under:-

Thereafter the benefit of pay protection was extended to Shri Daya Krishan and his pay was fixed taking into consideration the service rendered by him in the Army. The petitioners being similarly situated approached the Authority for the grant of same treatment but same stands denied to the petitioners till date on the ground that they are not entitled for the said benefit and therefore, they have approached this Court by way of this petition.

Mr. Jagdish Thakur, learned Counsel for the petitioners argued that de hors everything else including the stand taken by the respondent-Bank in its reply, herein it is a sheer case of discrimination. Mr. Thakur argued that it is a matter of record that Shri Daya Krishan and the petitioners were recruited against the post of Helper-cum-Peon as Ex-servicemen in the same process and subsequently, they were promoted vide same order (Annexure P-3) against the post of Peon-cum-Chowkidar. Accordingly, there was no occasion for the Bank to have had denied the benefit of protection of pay for the service rendered in the Army to the petitioners when the Bank has conferred this benefit upon Shri Daya Krishan. Learned Counsel argued that the stand of the Bank is very strange. On one hand, they say that the benefit was erroneously conferred upon Daya Krishan and as once a mistake has been committed, the Bank is not bound to repeat the same but till date, the benefit which was conferred upon Daya Krishan has not been rescinded. This speaks of double standards as far as the Bank is concerned and the petitioners being similarly situated as Shri Daya Krishan and as there is a precedent in the shape of Shri Daya Krishan that pay protection has been done qua the service rendered by an incumbent in the Army, denial of same relief to the petitioners is bad in law.

On the other hand, learned Counsel for the respondent-Bank referred to the reply filed by the State and submitted that the factum of the benefit having been given to Shri Daya Krishan qua the pay protection is a matter of record but it was with the condition that the incumbent will not claim any other benefit from the bank under the policy in issue. Mr. Rathore further argued that in light of the fact that there is no provision in terms whereof, the Bank can confer any benefit of service rendered in Armed Forces as far as the protection of pay is concerned, the reliefs being prayed for by the petitioners have been rightly refused to them. He also referred to para-15 of the reply and submitted that when the matter was taken up with the Registrar, Cooperative Societies qua the pay protection/ pay fixation of Ex-servicemen category of employees, the Bank was advised that this benefit can be extended on the analogy of the Government but then the Bank should keep into consideration its financial condition. In its wisdom, the Bank has taken a conscious decision not to grant the relief being prayed for by the petitioners to avoid any further complications.

I have heard learned counsel for the petitioners as also learned Additional Advocate General and have also gone through the pleadings as well as documents appended therewith.

The facts as have been mentioned by me hereinabove with regard to the appointment etc. of the petitioners are not much in dispute. It is a matter of record that the petitioners responded to advertisement Annexure P-1 and were selected against the post of Helper-cum-Peon against the posts reserved for Ex-servicemen. It is also a matter of record that Shri Daya Krishan was also appointed in the same process as a Helper-cum-Peon against the post reserved for Ex-servicemen. Passing of Resolution dated 24.02.2007, copy whereof is appended with the petition as Annexure P-4 is not in dispute. It is also not in dispute that after the passing of this Resolution, the benefits in terms of this Resolution stand passed on to Shri Daya Krishan. In light of this fact, the act of the Bank discriminating persons similarly situated as Shri Daya Krishan, is not sustainable in the eyes of law.

This Court is not going into the issue as to whether the petitioners in terms of the bye-laws or Rules etc. of the Bank are entitled for the reliefs being claimed by them or not. In the present case, this Court is deciding a very simple issue that if a request of an employee is acceded to by the Bank, then can similar requests of other similarly situated employees be rejected by the same employer by assigning a reason that the earlier request was purportedly wrongly accepted.

In the considered view of this Court, an employer cannot apply double standards qua similarly situated employees. Assuming that Shri Daya Krishan was not entitled to the protection of pay taking into consideration the service rendered by him in the Army, then once the petitioners approached the Bank seeking the same relief as was conferred upon Shri Daya Krishan in terms of Annexure P-4, Resolution dated 24.02.2007, prudently the Bank should have withdrawn the relief granted to Shri Daya Krishan. Admittedly, this has not been done till date despite the fact that the petitioners have been raking up the issue of grant of similar treatment since the year 2008. Therefore, in these peculiar circumstances, the act of the respondent-Bank of denying the benefit of Annexure P-4 to the petitioners is not sustainable in the eyes of law and is discriminatory.

Accordingly, in light of above discussion, this petition is allowed and the respondents are directed to extend the benefit of pay protection to the petitioners with regard to the service rendered by them in the Armed Forces as from the date of joining as Helper-cum-Peon from the due date in the same terms as stands extended to Shri Daya Krishan. The due date shall be construed to be the date, from which, the benefit has been given to Shri Daya Krishan. Obviously, as the petitioners have been agitating their cause since the year 2008, the benefits shall be payable in actual to the petitioners, with all benefits extended to Sh. Daya Krishan. Pending miscellaneous application(s), if any, also stand disposed of accordingly.