High Court of Punjab and HaryanaLPA/1088/2018allowed

State Of Punjab And Others v. Shingara Singh And Others

2022-07-07Mr. Justice Gurmeet Singh Sandhawalia,Mr. Justice Vikas Suri24 pages

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Ms. Monica Chhibbar, Senior DAG, Punjab, for the applicant/appellants (in LPA No. 1088, 1089, 1885, 1886, 1887 of 2018) Mr. Pardeep Singh Mirpur, Advocate, for the applicant/appellants/petitioners (in LPAs No. 1814, 1815, 1818 of 2019, CWPs No.33508, 33587, 33514, 33565, 33571, 33572, 33579, 33566 and 34587 of 2019).

Mr. J.S. Dhaliwal, Advocate, for the applicant/appellants (in LPAs No. 1567, 1571, 1573, 1599, 1624, 1556, 1673, 1754 and 1855 of 2019).

Mr. J.S. Khiva, Advocate, for the applicant/respondents (in LPAs No. 1885 of 2018 to 1887 of 2018) Mr. Puneet Kumar Bansal, Advocate, for the petitioners (in CWPs No. 12888, 21455, 21442 and 32987 of 2019) Mr. Randeep Singh, Advocate (in CWP No. 672 of 2020) Mr. PPS Duggal, Advocate (in CWP No. 33866 of 2019) for the petitioners.

Mr. G.S. Lalli, Advocate, for respondent Nos.3 to 9 (in LPA No. 1088 of 2018) for respondent Nos.1 to 3 (in LPA No. 1089 of 2018).

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To comply with the afore-said directions of the Hon'ble Court to judge the physical fitness and mental alertness of PetitionersJarnail Singh, Charanjit Singh and Balwinder Singh, the Standing Board comprising of three Gazetted Officers of the department conducted a basic physical endurance test of aforesaid petitioners at Combined Training Institute of the Department at Sundran (S.A.S. Nagar) on dated 24.05.2017. These petitioners could not pass the minimum physical endurance standards.

Punjab Home Guard is a voluntary organization, organized under the Punjab Home Guards Act 1947. As per rules of the organization, after enrolling and training volunteers they are kept ready for call out duties as per requirement in the state. Therefore these volunteers can not claim as a matter of right to remain on continuous call out duty.

In view of the aforesaid facts, Petitioner Jarnail Singh, Chanranjit Singh and Balwinder Singh due to their high age and having been out of duty for 20/22 days, have not been found fit to perform strenuous constabulary duties. Besides law & order, jail and Bank duties, for election duties in other States, services of physically fit volunteers are demanded only. Therefore, it is not in public interest to recall these petitioners on duty, the concerned Guards absented from their duties without any leave/information with their own will. Due to this the names of concerned Guards have been discharged from the long rolls of the department.

In view of the above the claim of petitioners is rejected after due consideration.%

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8 (4! The legal principles which emerge from the reading of the aforesaid judgments, cited both by the

, appellants as well as the respondents, can be summed up as under:

(1) Normal rule is that when a particular set of employees is given relief by the Court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently.

(2) However, this principle is subject to well recognized exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the Court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim.

(3) However, this exception may not apply in those cases where the judgment pronounced by the Court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the Court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated person. Such a situation can occur when the subject matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K.C. Sharma & Ors. v. Union of India (supra). On the other hand, if the judgment of the Court was in personam holding that benefit of the said judgment shall accrue to the parties before the Court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence.

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Viewed from this angle, in the present case, we find that the selection process took place in the year 1986. Appointment orders were issued in the year 1987, but were also cancelled vide orders dated June 22, 1987. The respondents before us did not chalelnge these cancelleation orders till the year 1996, i.e. for a period of 9 years. It means that they had accepted the cancellation of their appointments. They woke up in the year 1996 only after finding that some other persons whose appointment orders were also cancelled got the relief. By that time, nine years had passed. The earlier

judgment had granted the relief to the parties before the Court. It would also be pertinent to highlight that these respondents have not joined the service nor working like the employees who succeeded in earlier case before the Tribunal. As of today, 27 years have passed after the issuance of cancellation orders. Therefore, not only there was unexplained delay and laches in filing the claim petition after period of 9 years, it would be totally unjust to direct the appointment to give them the appointment as of today, i.e. after a period of 27 years when most of these respondents would be almost 50 years of age or above. 25.

For all the foregoing reasons, we allow the appeal and set aside the order of the High Court as well as that of the Tribunal. There shall, however, be no order as to costs."

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1" # . # 8 In exercise of the power conferred by Section 9 of the Punjab Home Guards Act, 1947 "the Punjab

Home Guards and Civil Defence (Class II) Service Rules, 1988" "The Punjab Home Guard and Civil Defence (Class I) Service Rules, 1988" were framed. Though the aforesaid rules are not applicable to the present cases it is necessary to notice the difference between the Punjab Home Guard Rules, 1963 and 1988 Rules.

In Appendix 'A' of Class II Service Rules, the total strength posts both permanent and temporary and the Regular scale of pay to which the officers are entitled have also been shown therein. Similarly, an Appendix to Class I Service Rules also total no. of permanent and temporary posts has been shown along with the scale of pay. No such strength of post and scale of pay have been shown for members of Home Guards who were guided by the Punjab Home Guard Rules, 1963.

From the Punjab Home Guards Act,1947 we find that the Act has been enacted to provide for the constitution of volunteers Corps and therefore we hold that the members of the Home Guards of Punjab under the Punjab Home Guards Rules are volunteers and are not regular employees of the State.

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