Monday, November 2, 2020

Supreme Court asks Registrar General, Patna High Court to explain inordinate delay in uploading order

On October 15, 2020 Supreme Court's Bench of Justices S K Kaul and Dinesh Maheswari heard a Special Leave Petition (Civil) Diary No. 9469 of 2020 arising out of impugned final judgment and order dated January 24, 2018 in Letters Patent Appeal (LPA) No. 2138/2016 passed by Patna High Court in the matter of State of Bihar v Raj Kumar Yadav. 

Upon hearing the matter, the Supreme Court passed an order. The order reads: "There is an inordinate delay of 733 days as stated by the learned counsel (not 333 days as set out in the application and the office report). This aspect be verified by the Registry." It further reads: "We find from the averments made in paragraph 4 of the application that the impugned judgment was pronounced on 24th January, 2018 but was uploaded on the website on 1st May, 2019." 

The court directed: "We call upon the Registrar General of the Patna High Court to submit the report to us whether the aforesaid facts are correct and the reasons for the same. List on 28th October, 2020. A copy of the order be forthwith forwarded to the Registrar General, Patna High Court." 

Notably, the Letters Patent Appeal (LPA) No.2138 of 2016 in Civil Writ Jurisdiction Case No. 6299 of 2014 was heard in the High Court by the Division Bench of Chief Justices Rajendra Menon, and Justice Anil Kumar Upadhyay on January 24, 2018. The Appellants were: the State of Bihar, through the Principal Secretary, Public Health Engineering Department, Government of Bihar, the Joint Secretary, Public Health Engineering Department, the Engineer-in-Chief-cum- Special Secretary, Public Health Engineering Department, Muzaffarpur, the Regional Chief Engineer, Public Health Engineering Department, Muzaffarpur and the Executive Engineer, Public Health Engineering Division, Dhaka, East Champaran. The repondent was Raj Kumar Yadav, Son of Sri Deo Narayan Yadav, Resident of Village Dhobiyahi, P.O.-Vijiyatola Bela Singar Mositola Dhobiya, Via- Nirmali, P.s.-Nirmali, District- Supaul. The appeal of the State was dismissed. 

The dismissal order of the Chief Justice headed Division Bench is as under:

1. The present interlocutory application has been filed for condoning the delay of 149 days in filing the appeal. 

2. For the reasons mentioned in the interlocutory application, I.A. No. 8943 of 2016 is allowed and the delay in filing the appeal is condoned.

3. This is an appeal filed by the State Government calling in question tenability of order dated 25.04.2016 passed by the writ court in C.W.J.C. No. 6299 of 2014.

4. Writ petitioner along with six other persons approached this Court challenging their disengagement as Chowkidar brought into force with effect from 22.01.2014. Even though the petitioner was found to have been engaged in the Work-charged Establishment w.e.f.17.01.1991, he has been denied regularization on the ground that his appointment was after cut-off date 18.01.1991, whereas in the case of other six similarly situated persons, who also visited this Court in C.W.J.C. No. 5509 of 2002 along with the petitioner, they have been reinstated and granted the benefit only on account of the fact that they were appointed vide letter dated 31.12.1990 before the cut-off date. The learned Writ Court examined the issue and found that the petitioner was also engaged much earlier, but merely because of the hyper technical view of the State Government, he is denied similar benefit like the other employees, who are appointed few days before the petitioner. The learned Writ Court found that there has been discrimination in the matter and granted relief to the petitioner.

5. In doing so, we are of the considered view that the learned Writ Court has not committed any error. We find that the petitioner was initially engaged as Chowkidar in work-charged establishment on daily wage basis along with 8 persons and when the other 8 persons have been granted the benefit, merely on the hyper technical ground of engagement of the petitioner after a few days of the cut-off date the benefit could not be denied taking note of the fact that he was engaged as daily wages employee and the employer initially had done in the case of other seven employees before bringing them into the work-charged establishment. The learned Writ Court having analyzed all these factors and having issued the direction, the State Government as a model employer should have implemented the same, as was done in the case of other six employees.

6. Accordingly taking note of the totality of the facts and circumstances, we see no reason to make any indulgence into the matter.

7. The appeal stands dismissed.

The proceedings of the High Court reveals that this appeal was filed against the order of Justice Ajay Kumar Tripathi dated April 25, 2016 in Raj Kumar Yadav v State of Bihar & others. 

Justice Tripathi's order reveals that petitioner decided to file the writ application when he felt discriminated by the respondent’s decision not to regularize his service despite working in the work- charged establishment from the year 1991. By virtue of the decisions in question, the petitioner’s engagement as a Choukidar has been brought to an end with effect from July 31, 2014. The petitioner was engaged on January 17, 1991 by the Executive Engineer, Dhaka to work as a Choukidar. That engagement continued for quite some time. However, in between the petitioner was disengaged with similarly appointed persons, some of the names are indicated in paragraph 3 of the writ application. When such decision was taken, the petitioner along with others moved the High Court. The High Court intervened and petitioner continued to discharge his duty on the basis of order passed in CWJC No.2262 of 1997. Again the same fate visited the petitioner and some others when CWJC No.5509 of 2002 was filed and interim protection was granted. Petitioner along with others was reinstated. Subsequently the exercise for regularization was taken up by the respondent authorities. The respondents decided to regularize six of the persons, who were petitioners before the High Court earlier, but left out the name of the petitioner for such regularization on the ground that petitioner’s engagement has been after December 11, 1990, the cut-off date. 

Ramendra Nath Mukhopadhaya, the petitioner's lawyer submitted that the reasons provided or given by the respondents in their counter affidavit is not only erroneous but even fallacious and misleading. They are trying to make a hyper distinction between the engagement or appointment of the petitioner vis-à-vis other similarly situated persons on various posts. Yet another distinction provided was that one of the person though appointed after the petitioner was engaged as a Jeep Driver, therefore, his case is different from that of the petitioner.  

The court went through the so-called letters of engagement and appointments of some of the other persons, who have been regularized.

Justice Tripathi observed: "The issue is regularization of such persons by virtue of long stint of work and has nothing to do with the post on such engagements are made. The engagement of the petitioner and the others, who are regularized, have been done by the same authority in similar kind of time frame, may be with the difference of a month or two but the basic fact of their engagement and continuance since then cannot be a subject matter of dispute and the distinction sought to be drawn for conferring benefit of regularization on some and leaving out the case of the petitioner does not seem to be on cogent and for valid reason."

He further observed: "It is also taken note of that merely because the petitioner continued by virtue of a judicial order that cannot work against him because it is the continuance whether by indulgence shown by the State or protection given by the Court, will make no difference. It is the length of service and continuance which brings such persons within the zone of consideration for regularization."

He concluded: "The State, therefore, cannot be permitted to discriminate on grounds, which are not germane to the basic issue of regularization. The Court opines that the case of the present petitioner and the background thereto is no different than some of the other persons, who have been conferred the benefit of regularization." He quashed the impugned orders of the state. 

Justice Tripathi allowed the writ with directions saying, "The respondent authorities are directed to reconsider the claim of the petitioner for regularization in the work- charged establishment under the respondents within a period of three months from the date of production of a copy of this order." 

Now the case is in the Supreme Court and has been heard with a Diary Number. It has not be allotted any case number as yet. The information available on Supreme Court's website and causelist does not indicate that the matter was on October 28, 2020 before Justice Kaul Bench. 

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