IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 945 OF 2010

[Arising out of SLP (C) No.5001 of 2007]

Surendra Nath Pandey & Ors. … Appellants Vs. UP Cooperative Bank Ltd. & Anr.     … Respondents

O R D E R  

Leave granted. Heard the parties.  

2. The  appellants  were  appointed  during  1978-1981  on  daily wage basis by the first respondent (UP Co-operative  Bank Ltd., (for short ‘the Bank’), by way of stop gap  arrangement. Upto 30.6.1981, they were on daily wages.  From  1.7.1981,  they  were  paid  consolidated  salary  of  Rs.368/- per month which was increased to Rs.575/- per  month from 1.4.1982. From 1.7.1983, they were extended  the benefit of the minimum in the pay scale applicable to  regular  employees,  i.e.  Rs.325/-  per  month,  with  allowances, but without yearly increments.  

3. On  30.7.1985,  the  UP  Regularisation  of  Ad-hoc  appointments (on posts within the purview of the Uttar

Pradesh  Cooperative  Institutional  Service  Board)Regulations,  1985  were  notified  and  came  into  force. In terms of the said rules, the appellants were  regularised on different dates -- 1.10.1985, 9.12.1985,  24.4.1986 and 29.9.1986 and they were also extended the  benefit of regular pay scales with all allowances. In the  year 1990, they approached the Allahabad High Court by  filing a writ petition seeking the benefit of regular pay  scale, allowances and other benefits which were extended  to regular employees, with effect from the date of their  stop gap or ad-hoc appointment.  

4. A learned single Judge  of the High court, by order  dated 6.7.2005, allowed the writ petitions and directed  the first respondent-Bank to treat the appellants on par  with employees, who were the petitioners in Jai Kishan &  Ors. vs. UP Co-operative Bank Ltd. & Ors., (WP No.1941 of  1985 and connected cases which were decided by the High  Court on 3.3.1989). In  Jai Kishan, the High Court had  affirmed the decision of the Labour Court directing that  certain employees of the Bank (whose cases were espoused  by the Union) shall be extended the benefit of pay scale  by starting with a minimum of Rs.325/- per month with  effect  from  1.7.1981  with  annual  increments  in  the  regular  pay  scale  and  all  other  allowances.  This  direction  was  issued  on  a  concession  by  the  learned  

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counsel  for  the  Bank  given  on  the  peculiar  facts  and  circumstances  of  the  case,  with  respect  to  three  employees.  The  effect  of  the  judgment  of  the  learned  single  Judge  was  that  the  appellants  were  also  to  be  extended the benefit of the regular pay scale with annual  increments with effect from 1.7.1981. Feeling aggrieved,  the  Bank  appealed  and  the  Division  Bench  of  the  High  Court allowed the special appeals of the Bank, set aside  the judgment of the learned Single Judge and dismissed  the writ petitions. The said order is challenged in this  appeal by special leave.  

5. The appellants submit that the Division Bench found  that there was no significant difference between the type  of work which the appellants were rendering and the type  of  work  which  their  counterparts  who  were  regularly  employed were rendering at the relevant point of time.  They also submitted that the Bank did not dispute the  fact that the petitioners in  Jai Kishan who were given  the benefit of the regular pay scales, were similarly  placed as the appellants. They contend that the decision  in  Jai  Kishan having  become  final  the  Bank  cannot  discriminate between the petitioners in the case of  Jai  Kishan and  other  similarly  situated  employees  like  appellants and, therefore, they are also entitled to the  same reliefs.  

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6. We are of the view that the real issue is whether  persons  employed  on  stop  gap  or  ad  hoc  basis  were  entitled to the benefit of pay scales with increments  during the period of service on daily or stop-gap or ad  hoc basis. Unless the appellants are able to establish  that either under the contract, or applicable rules, or  settled  principles  of  service  jurisprudence,  they  are  entitled  to  the  benefit  of  pay  scale  with  increments  during the period of their stop-gap/ad-hoc service, it  cannot be said the appellants have the right to claim the  benefit of pay scales with increments. Admittedly, the  appellants do not claim the said relief on the basis of  any  rules  or  contract.  This  Court  in  a  series  of  decisions [See for example -- State of Haryana vs. Jasmer  Singh- 1996(11) SCC 77 and State of Haryana vs. Tilak Raj  – 2003 (6) SCC 123], has held that the daily wage or ad  hoc employees were not entitled to the benefit of regular  pay  scales  with  increments,  by  claiming  parity  with  regular  employees.  Therefore,  it  is  clear  that  the  appellants did not have a right to claim the said relief.  

7. If the appellants do not have a legal right to seek  the benefit of pay scales before their regularisation,  the  question  is  whether  they  are  entitled  to  such  a  relief on the ground that such a relief has been extended  

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to some similarly placed employees in pursuance of the  decision in Jai Kishan. This question is answered by this  court in  Col (Retd) B. J. Akkara vs. Govt. of India –  2206  (11)  SCC  709,  while  dealing  with  a  similar  contention :  

“It  is  contended  that  the  Respondents  having  accepted  and  implemented the decision of the Delhi High Court in the case of  civilian medical officers, cannot discriminate against the Defence  service medical officers placed in identical position and therefore  the benefit given to the civilian medical officers in pursuance of  the decision of the Delhi High Court should also be extended to  them.  The  petitioners  rely  on  the  broad  principles  underlying  estoppel  by  Judgment,  legitimate  expectation,  and  fairness  in  action in support of their contention.  

Respondents … contended that the fact that a decision of the High  Court  had  been  accepted  or  implemented  in  the  case  of  some  persons, will not come in the way of the Union of India resisting  similar petitions filed by others, in public interest.  

25. A similar contention was considered by this Court in State of   Maharashtra vs. Digambar [1995 (4) SCC 683]. This Court held :  

“Sometimes,  as  it  was  stated  on  behalf  of  the  State,  the  State  Government  may  not  choose  to  file  appeals  against  certain  judgments of the High Court rendered in Writ petitions when they  are  considered  as  stray  cases  and  not  worthwhile  invoking  the  discretionary  jurisdiction of  this  Court  under  Article  136 of  the  Constitution,  for seeking redressal  therefor.  At other  times,  it  is  also possible for the State, not to file appeals before this Court in  some  matters  on  account  of  improper  advice  or  negligence  or  improper conduct of officers concerned. It is further possible, that  even where S.L.Ps are filed by the State against judgments of High  Court, such S.L.Ps may not be entertained by this Court in exercise  of  its  discretionary  jurisdiction  under  Article  136  of  the  Constitution either because they are considered as individual cases  or because they are considered as cases not involving stakes which  may  adversely  affect  the  interest  of  the  State.  Therefore,  the  circumstance of the non-filing of the appeals by the State in some  similar matters or the rejection of some S.L.Ps in limine by this  Court in some other similar matters by itself, in our view, cannot  be held as a bar against the State in filing an S.L.P. or S.L.Ps in  other similar matters where it is considered on behalf of the State  

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that non-filing of such S.L.P. or S.L.Ps and pursuing them is likely  to seriously jeopardize the interest of the State or public interest.”

The said observations apply to this case. A particular judgment of  the  High  Court  may  not  be  challenged  by  the  State  where  the  financial repercussions are negligible or where the appeal is barred  by limitation. It may also not be challenged due to negligence or  oversight  of  the  dealing  officers  or  on  account  of  wrong  legal  advice, or on account of the non-comprehension of the seriousness  or magnitude of the issue involved. However, when similar matters  subsequently  crop  up  and  the  magnitude  of  the  financial  implications is realized, the State is not prevented or barred from  challenging the subsequent decisions or resisting subsequent writ  petitions, even though judgment in a case involving similar issue  was allowed to reach finality in the case of others. Of course, the  position would be viewed differently, if petitioners plead and prove  that  the  State  had adopted a  ‘pick  and choose’  method only  to  exclude petitioners on account of malafides or ulterior motives.  

8. In view of the above, we are of the view that the  appellants are not entitled to any relief based on the  decision in  Jai Kishan. The Division Bench of the High  Court was justified in reversing the decision of learned  Single Judge which extended the benefit of Jai Kishan to  the  appellants.  The  appeal  has  no  merit  and  is,  accordingly, dismissed.

___________________J.  (R. V. Raveendran)

New Delhi; ___________________J. January 19, 2010. (Aftab Alam)

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