Shri.S.Prem Kumar And ORS v. Sri Vijaya Puram Municipal Council And ORS.
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] ******** PRESENT: HON'BLE JUSTICE SHAMPA DUTT (PAUL) WPA/425/2025 Shri S. Prem Kumar and Others ... Petitioners
Versus
Sri Vijaya Puram Municipal Council and Others ... Respondents For the petitioners : Mr. Gopala Binnu Kumar For the respondents : Mr. Rakesh Kumar Heard on : 18.12.2025 Judgment on : 22.12.2025 SHAMPA DUTT (PAUL), J.
1.
The writ application has been preferred praying for directions upon the respondents no. 1 and 2 to release the benefit of 1/30th of pay plus dearness allowances in terms of the Office Memorandum dated 22.09.2017 and Order dated 10.08.2023 at par with the other 10 employees namely Shri. Dummu Nilesh, Shri. K. Dharma Rao, Shri. Selva Raj, Shri. P. Perumal, Shri. G. Balavenkata Satyanarayan Murthy, Shri. P. Kodanda Rao, Shri. Yashoda Bai, Shri. Dileep Kumar, Shri. Loganathan and Shri.
Bala Krishna, who are equally circumstanced and got the benefit of the same, vide Order dated 29.05.2025 and also to reinstate the petitioners in service at par
with the said 10 employees, who were reinstated in service with all consequential benefits.
2.
It is the case of the petitioners' that at different point of time, on and from the year 2012 to 2023, the petitioners were engaged under the respondent No. 1 discharging the duties and responsibilities of Daily Rated Employees in Gandhi Park and Marina Park in the Horticulture Division under the respondent No.3.
3.
The Andaman and Nicobar Administration in terms of the policy decision taken vide Office Memorandum dated 22.09.2017 decided to accord the benefit of 1/30th of pay plus dearness allowances to all the Daily Rated Employees followed by an Order dated 10.08.2023 issued by the Administration. 4.
In terms of the said order the respondents no. 1 and 2 accorded the said benefit to some of the Daily Rated Employees in a pick and choose manner and as such the Nagarpalika Shramik Sangh Union took up the said matter before the High Court and the High Court directed to accord the benefit to the other Daily Rated Employees whose cause was espoused by the union before this High Court.
5.
During the pendency of the said proceeding on and from 01.06.2024, the petitioners and the said 10 other incumbents,
who were party in the proceeding before the High Court were disengaged from service.
6.
After the orders passed in the case of other Daily Rated Employees, subsequently the financial benefit of 1/30th of pay plus dearness allowances was accorded to those 10 incumbents and also those incumbents were reinstated in service who were disengaged along with the applicants. 7.
As such the petitioners made detailed representations before the respondent No. 2 to accord them the financial benefit and to reinstated in service at par with the other said 10 employees, being similarly circumstanced, but nothing yielded. Hence, this writ petition.
8.
From the materials on record it appears that while the matter was pending before the Division Bench of this Hon'ble Court, the respondents no. 1 and 2 in a most illegal and arbitrary manner disengaged the service of 27 daily wages employees incumbents which includes the petitioners and the said 10 employees, who later were also the beneficiary of Order dated 09.02.2024 passed in WPA/979/2023.
9.
The petitioners further state that the 10 other daily wage employees subsequently filed a conciliation before Conciliation Officer. During the pendency of the conciliation
proceeding, the respondents no. 1 and 2 reinstated them in service from the month of July 2025 and also paid them the benefit of 1/30th of pay in terms of the Order dated 29.05.2025 and their name appears at Serial No. 84 to 92 of the Order dated 29.05.2025.
10.
It is the further case of the petitioners that though the petitioners and the said 10 persons are equally placed and circumstanced only the said 10 persons who approached the High Court got the benefits and were also reinstated in service. 11.
The petitioners then made a representation before the respondent no. 2 claiming the same benefit and reinstatement, but the petitioners' prayer was not granted. Hence, the writ application.
12.
In LT. COL. Suprita Chandel - versus - Union of India and Ors. (2024 INSC 942), the Supreme Court observed that :- "10. At the outset itself, we may say that the phrase "Only to the Petitioners"
in the order rejecting the representation is patently erroneous. While the AFT Principal Bench granted relief to the petitioners, it did not prohibit the department from considering similarly situated persons. Another representation was disposed of on 9th November 2017, inter alia, on the primary ground that she did not meet the criterion. In the meantime, the appellant's services were further extended for a period of 4 years on 31.10.2017.
14. It is a well settled principle of law that where a citizen aggrieved by an action of the government department has approached the court and obtained a declaration of law in his/her favour, others similarly situated ought to be extended
the benefit without the need for them to go to court. [See Amrit Lal Berry vs. Collector of Central Excise, New Delhi and Others, (1975) 4 SCC 714]
15. In K.I. Shephard and Others vs. Union of India and Others, (1987) 4 SCC 431, this Court while reinforcing the above principle held as under:- "19. The writ petitions and the appeals must succeed. We set aside the impugned judgments of the Single Judge and Division Bench of the Kerala High Court and direct that each of the three transferee banks should take over the excluded employees on the same terms and conditions of employment under respective banking companies prior to amalgamation. The employees would be entitled to the benefit of continuity of service for all purposes including salary and perks throughout the period. We leave it open to the transferee banks to take such action as they consider proper against these employees in accordance with law. Some of the excluded employees have not come to court. There is no justification to penalise them for not having litigated. They too shall be entitled to the same benefits as the petitioners. ...."
(Emphasis Supplied)
19. The stand of the Department relying on the judgment of this Court in State of Maharashtra and Another vs. Chandrakant Anant Kulkarni and Others, (1981) 4 SCC 130 to contend that mere reduction in chance of consideration did not result in deprivation of any right does not appeal to us. The appellant's case is founded on the principle of discrimination. What is sauce for the goose ought to be sauce for the gander. If the applicants in O.A. No. 111 of 2013 whom we find are identically situated to the appellant were found to be eligible to be given a third chance for promotion, because they acquired eligibility before the amendment to AI No. 37 of 1978 on 20.03.2013, we find no reason why the appellant should not be treated alike.
23. We hold that the appellant was wrongly excluded from consideration when other similarly situated officers were considered and granted permanent commission. Today, eleven years have elapsed. It will not be fair to subject her to the rigors of the 2013 parameters as she is now nearly 45
years of age. There has been no fault on the part of the appellant.".
13.
In State of Uttar Pradesh and Others - versus - Arvind Kumar Srivastava and Others, the Supreme Court held that :- "9) The moot question which requires determination is as to whether in the given case, approach of the Tribunal and the High Court was correct in extending the benefit of earlier judgment of the Tribunal, which had attained finality as it was affirmed till the Supreme Court. Whereas the appellants contend that the respondents herein did not approach the court in time and were fence-sitters and, therefore, not entitled to the benefit of the said judgment by approaching the judicial forum belatedly.
They also plead some distinguishing features on the basis of which it is contended that the case of the respondents herein is not at par with the matter which was dealt with by the Tribunal in which order dated June 22, 1987 were passed giving benefit to those candidates who had approached the court at that time. On the other hand, the respondents claim that their case is identical to those who had filed the application before the Tribunal inasmuch as appointments of the respondents were also cancelled by the same order dated June 22, 1987 and, therefore, there is no reason to deny the same treatment which was meted out to the said persons, as denial thereof would amount to invidious discrimination which is anathema to the right of equality enshrined under Article 14 of the Constitution of India.
10) It is of interest to note that both the sides, in support of their respective submissions, have referred to certain judgments and the reading whereof would demonstrate that in certain cases benefit of a particular judicial pronouncement is extended to those who are identically situated on the principle of equality. On the other hand, there is a line of judgments denying such a benefit to the second group which approaches the Court afterwards, even when the said second group is similarly situated as the persons belonging to the first group. However, there is no conflict between the two sets of cases. In order to find out the principles laid down on the
basis of which benefit of the earlier judgment is extended to those coming subsequently and the situations where such benefit is denied, we will have to undertake a journey into these details and lay down clear parameters.
11) Let us first take note of those judgments which are referred to by the learned counsel for the respondents wherein this Court has applied the ratio of the earlier judgments to the similarly situated persons giving them the same benefit. First case, in the line of these cases, referred to by the learned counsel for the respondents is the judgment in Inder Pal Yadav & Ors. v. Union of India & Ors.1 That was a case where the services of casual labour employed on railway projects continuously for more than a year were terminated on the ground that the projects where these casual labour were working had been wound up. Challenging their termination, writ petitions under Article 32 of the Constitution of India were filed in this Court.
During the pendency of these petitions, Railway Administration framed scheme for their absorption as temporary workmen on completion of 360 days of continuous employment. This scheme was made applicable to those who were in service as on January 01, 1984. In view of this development, writ petitions were set out for hearing to examine the fairness and justness of the scheme, particularly, on the issue as to whether choice of date of January 01, 1984 was arbitrary or discriminatory. The Court was not enthused by fixation of January 01, 1984 as the cut-off date on the ground that it was likely to introduce an invidious distinction between similarly situated persons and expose some workmen to arbitrary discrimination flowing from fortuitous Court's order.
It was noticed that in some matters, the Court had granted interim stay before the workmen could be retrenched while in some other cases no such interim orders had been passed. Thus, as a result of grant of interim relief by stay/suspension of the order of retrenchment, persons benefitted by the said interim order and were treated in service as on January 01, 1984. Those who failed to obtain the interim relief, their services were terminated in the meantime and, therefore, they were not in service as on January 01, 1984. The Court pointed out that though both the groups belong to the same category, one category could get the benefit of the scheme with cut-off date of January 01, 1984, whereas the other category would fail to get the benefit/advance of the scheme.
The Court also noted that there may be some other persons, similarly situated, who could not afford to rush to the court and they would also be left out.
date of January 01, 1984 fixed in the scheme was struck down and the Court while accepting the scheme framed by the Railway Administration, modified the date from January 01, 1984 to January 01, 1981. While doing so, following reasons were given:
"5...There is another area where discrimination is likely to rear its ugly head. These workmen come from the lowest grade of railway service. They can ill afford to rush to court. Their federations have hardly been of any assistance. They had individually to collect money and rush to court which in case of some may be beyond their reach.
Therefore, some of retrenched workmen failed to know at the door of justice because these doors do not open unless huge expenses are incurred. Choice in such a situation, even without crystal gazing is between incurring expenses for a litigation with uncertain outcome and hunger from day to day. It is a Hobson's choice. Therefore, those who could not come to the court need not be at a comparative disadvantage to those who rushed in here. If they are otherwise similarly situated, they are entitled to similar treatment if not by anyone else at the hands of this Court."
We would like to point out at this stage itself that the writ petitions were filed by the affected persons which were already pending before the Court and it was the step taken by the Railway Administration itself which framed the scheme for their absorption. In such circumstances, the question of fixing the rationality of cut-off date in the said scheme arose for consideration and the Court was of the view that while implementing the scheme, those whose services were terminated before January 01, 1984, they would be discriminated against. Thus, while giving the direction to implement the scheme which was framed by the Railway Administration itself, the Court gave the direction to start absorbing those with longest service, which is clear from the reading of para 6 of the said judgment, and we reproduce the same hereunder:
"6. To avoid violation of Article 14, the scientific and equitable way of implementing the scheme is for the Railway Administration to prepare, a list of project casual labour with
reference to each division of each railway and then start absorbing those with the longest service. If in the process any adjustments are necessary, the same must be done. In giving this direction, we are considerably influenced by the statutory recognition of a principle well known in industrial jurisprudence that the men with longest service shall have priority over those who have joined later on. In other words, the principle of last come first go or to reverse it first come last go as enunciated in Section 25-G of the Industrial Disputes Act, 1947 has been accepted. We direct accordingly."
This case, therefore, may not be of direct relevance.
12) The next judgment is of the Constitution Bench judgment of this Court in K.C Sharma v. Union of India2. In this case the Court was directly concerned with the issue of granting benefit of the earlier judgment. The Government had passed Notification dated December 05, 1988 which obviously affected pension of retired employees, retrospectively. These persons had not challenged the said notification within the limitation period. However, in some other case filed by similarly situated persons, a Full Bench of the Central Administrative Tribunal declared the notification invalid vide its judgment dated December 16, 1993. After this notification was declared invalid, the appellants also claimed the benefit of that judgment from the Railways. On Railways refusal to extend the benefit, they filed application in the Central Administrative Tribunal in April 1994.
This application was dismissed by the Tribunal as time barred and against the judgment of the Tribunal these appellants had approached this Court. The Court, in a brief order which runs into six paragraphs, held that delay in filing the Application should have been condoned and the appellants should have been given relief by the Tribunal on the same terms as were granted to others by the Full Bench judgment of the Tribunal. After stating the aforesaid facts in the earlier paragraphs of the order, the reasons for extending the benefit are contained in para 6 thereof, which reads as under: "6. Having regard to the facts and circumstances of the case, we are of the view that this was a fit case in which the Tribunal should have condoned the delay in the filing of the application and the
appellants should have been given relief in the same terms as was granted by the Full Bench of the Tribunal. The appeal is, therefore, allowed, the impugned judgment of the Tribunal is set aside, the delay in filing of OA No. 774 of 1994 is condoned and the said application is allowed. The appellants would be entitled to the same relief in the matter of pension as has been granted by the Full Bench of the Tribunal in its judgment dated 16-12-1993 in Oas Nos. 395-403 of 1993 and connected matters. No order as to costs."
Immediate comment which is called for by us to the aforesaid judgment is that there is no detailed discussion in the said order. What can be observed from the reading of this order is that the earlier judgment of the Tribunal striking down the Notification dated December 05, 1988 was treated as judgment in rem. Naturally, when the notification itself is struck down and it was a matter of pension, benefit thereof was to be given to the others as well. It appears that for this reason the Constitution Bench observed that delay should have been condoned giving relief to the appellants also in the same terms as was granted by the Full Bench of the Tribunal.
13) In State of Karnataka & Ors. v. C. Lalitha3, which is the next case relied upon by the learned counsel for the respondents, our attention was drawn to the following passage from the said judgment:
"29. Service jurisprudence evolved by this Court from time to time postulates that all persons similarly situated should be treated similarly. Only because one person has approached the court that would not mean that persons similarly situated should be treated differently. It is furthermore well settled that the question of seniority should be governed by the rules. It may be true that this Court took notice of the subsequent events, namely, that in meantime she had also been promoted as Assistant Commissioner which was a Category I post but direction to create a supernumerary post to adjust her must be held to have been issued only with a view to accommodate her therein as otherwise she might have been reverted and not for the
purpose of conferring a benefit to which she was not otherwise entitled to."
23) 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.
24) 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 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 a 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. 14.
In their affidavit-in-opposition, the respondent/PBMC have stated as follows :- "...the Council granted 1/30th vide Council order No 1/213935/2025, dt 29.05.2025 at Sl. No. 84 to 92. (09 workers).
However name of Shri Loganathan has not been included in the order because he was left and joined regular job in A & N Administration at the time."
"... It is further submitted that the worker engaged on Muster roll (unskilled) usually on monthly basis against the sanction estimates of works with break in their service. They were engaged against specific estimate works for specific period only till the fund exhaust 31.05.2024. They were not engaged continuously.".
15.
In their reply and their written notes of arguments, the petitioners have reiterated their case as made out in their writ petition :- (i) On and from the year 2012-2023 at different point of time the petitioners were engaged as daily rated employee in Gandhi Park and Marina Park in the Horticulture Division under the Port Blair Municipal Council.
(ii) In terms of one-time scheme of Administration, the Administration decided to accord higher scale of pay to the daily rated employee. (iii) Though the said benefit was accorded to some of the employees under the Port Blair Municipal Council but not to the petitioners and as such several other
daily rated employees through the union filed writ petitions for the higher financial benefit.
(iv) That the said writ petitions were allowed by this High Court, Single Bench, which was then challenged by the Port Blair Municipal Council and during the pendency of the same, petitioners along with the said 10 others were disengaged from service.
(v) Before the Division Bench also the Municipal Council was unsuccessful, thereafter they filed Special Leave Petition before the Hon'ble Supreme Court, which was also dismissed.
(vi) After the dismissal of the Special Leave Petition, the benefit of the higher financial scale was given to other daily rated employee but was not given to the petitioners.
(vii) Along with the petitioners, the other 10 persons who were disengaged, were subsequently reinstated in service and they were given the benefit of 1/30th Pay plus dearness allowance, which the petitioners' claim is clear discrimination, hence petitioner filed writ petition for reinstatement and to be accorded the benefit of 1/30th of pay.
16.
The petitioners case of claiming benefit and reinstatement on the ground of being similarly placed with that of the said 10 persons is not maintainable on the ground that : (i) The said ten (10) persons were also the writ petitioners in WPA/979/2023.
(ii) WPA/979/2023 was allowed with WPA/980/2023, by learned Single Bench, directing respondents particularly the PBMC to provide the benefit of 1/30th of pay of the minimum of the relevant pay scale of Dearness Allowance as per O.M. dated 22.09.2017.
(iii) The said order was affirmed by the Division Bench in MAT/10/2024 and SLP no.(s) 19731/2024 was dismissed.
(iv) No order of reinstatement was passed in the said order of the Single Bench.
(v) The said 10 (ten) persons were reinstated in service by the authorities from the month of July, 2025 with benefit of 1/30th of pay, in terms of order dated 29.05.2025 (being serial no. 84 to 92 in the said list).
(vi) The petitioners were not listed in the list dated 29.05.2025 but petitioners herein who admittedly (documents annexed and as per in affidavit-in-opposition) were engaged between 2012 to 2023 and disengaged on and from 01.06.2024 being similarly situated and circumstanced, and discriminated against are entitled to the benefit granted vide office memorandum dated 22.09.2017. The Division Bench in appeal specifically held that all DRMs under the Administration shall be paid and granted the benefits of the Office Memorandum dated 22.09.2017 irrespective of whether the DRMs were working against the sanctioned post or were casually engaged by the Administration.
17.
Therefore, there is a presumption of unreasonableness in the exclusion of the members of the petitioners from the benefits of the Office Memorandum dated 22.09.2017. The exclusion on the ground of alleged ineligibility of the petitioners clearly appears to be an afterthought and contrary to the direction of the Division Bench. The exclusion is also opaque, that is without reasons and hence arbitrary.
18.
But as the matter of reinstatement was not before any of the Courts, the petitioners who have not been reinstated have to approach appropriate forum claiming reinstatement.
19.
The writ application being WPA 425 of 2025 is thus disposed of with the direction upon the respondents particularly PBMC to provide the benefit of 1/30th of pay of the minimum of the relevant pay scale + Dearness Allowances to the members of the petitioners in this writ petitions in terms of the Office Memorandum dated 22.09.2017. The benefit shall be extended to the petitioners/members of the petitioners within 4 weeks from the date of this judgment.
20.
As a representation dated 06.06.2025 filed by the petitioners before the respondent no. 2 is still pending consideration, the same be disposed of by the respondent no. 2 within 30 days from the date of this order, on hearing the petitioners and considering the judgments as referred to herein, by passing a reasoned order, in accordance with law. 21.
The petitioners herein are also at liberty to approach the appropriate forum in respect of their claim for reinstatement. 22.
No order as to costs.
23.
Parties to act in terms of the serve copy of this order downloaded from the website of this Hon'ble Court. [ SHAMPA DUTT (PAUL), J. ]