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NON-REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 16355 OF 2017

[@ SPECIAL LEAVE PETITION (C) NOS. 10004 OF 2016] DEEPAK KUMAR & ORS.                           Appellant (s)

                               VERSUS PRINCIPAL SECRETARY HOME, GOVT.  OF U.P LUCKNOW (U.P) & ORS.  Respondent(s)

WITH CIVIL APPEAL NO. 16356 OF 2017

[@ SPECIAL LEAVE PETITION (C) NOS. 10006 OF 2016] CIVIL APPEAL NO. 16357 OF 2017

[@ SPECIAL LEAVE PETITION (C) NOS. 10008 OF 2016] CIVIL APPEAL NO. 16358 OF 2017

[@ SPECIAL LEAVE PETITION (C) NOS. 10005 OF 2016]

J U D G M E N T

KURIAN, J. 1. As  requested  by  Mr.  V.  Giri,  learned  senior counsel, the appellants are at liberty to amend the cause title.

2. Leave granted.

3. The appellants are before this Court, aggrieved by an order dated 27.10.2015 passed by the High Court of  Judicature  at  Allahabad  in  Special  Appeal (Defective) No. 707 of 2015.  They moved the High

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Court,  invoking  its  contempt  jurisdiction,  praying for appropriate direction for payment of the entire salary for the period from the date of termination to the  date  of  reinstatement.   Having  regard  to  the various orders passed by the Court, the High Court was  not  inclined  to  exercise  its  jurisdiction  in contempt  proceedings  and,  therefore,  dismissed  the Special Appeal with liberty to the appellants to work out their remedy for appropriate proceedings.

4. When the matter came up before this Court, after having heard the learned counsel on both sides, this Court passed the following order on 17.08.2017 :-

“Application for impleadment, filed in SLP(C) No.10006/2016, is taken on Board and is allowed. These  are  the  cases  where  in  the State  of  Uttar  Pradesh  the  police constables  recruited  and  appointed during  2005-06  were  terminated  in September, 2007.  That termination has been held to be wrong by the learned Single Judge and confirmed thereafter  by  the  Division  Bench. Since the declaration regarding the termination to be bad in law stands even as on today, in any case the constables  who  were  terminated during  2005-06 are  entitled  to continuity  of  service  from  their respective  date  of  termination  to

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the  date  of  reinstatement. According to the State it is a fresh appointment, which we find difficult to  appreciate  in  view  of  the judgment of the High Court.

We agree with the learned Additional Advocate General appearing for the State of Uttar Pradesh that in the peculiar  facts  of  these  cases,  in any case they will not be entitled to  backwages  from  the  date  of termination  till  the  date  of judgment  of  the  learned  Single Judge.   The  remaining  question  is only  with  regard  to  the  backwages from  the  date  of  judgment  by  the learned Single Judge i.e. 8.12.2008 to  27.05.2009,  the  date  of reinstatement.

Learned Additional Advocate General invited  our  reference  to  the judgment dated 4.3.2009, wherein the Division Bench, after agreeing with the  learned  Single  Judge  in  the matter  of  cancellation  of  the appointment  as  bad,  has  granted liberty to the State to conduct a fresh exercise and, therefore, it is submitted  that  the  constables  may not  be  entitled  to  any  backwages from the date of the judgment of the learned Single Judge to the actual date  of  fresh  appointment/

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reinstatement. We find it difficult to wholly agree with the learned Additional Advocate General. As far as the people who are  before  this  Court,  we  are tentatively  of  the  view  that  they must be entitled to some equitable relief  in  the  matter  of  backwages for  the  period  from  8.12.2008  to 27.05.2009.   We make it clear that this equitable relief would be confined only to the people  who  are  before  this  Court either  as  petitioners  or  as impleaders, as on today. The  Registry  is  directed  not  to entertain any impleadment or fresh petition in respect of the subject matter involved in these petitions. Learned Additional Advocate General of the State of U.P. seeks some time to get instruction. Post on 12.09.2017.”

5. The State of U.P. has filed a detailed additional affidavit in response to the order extracted above. In the nature of the order we propose to pass, it is not  necessary  to  refer  to  the  stand  of  the  State except to take note of the fact that the case has a chequered history.  Despite the liberty granted by the  High  Court  to  weed  out  the  allegedly  tainted candidates,  it  appears  that  no  such  exercise  was

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undertaken and all of them have been taken back into service.  That liberty was granted by the Division Bench  of  the  High  Court  in  the  order  dated 04.03.2009.   The  reinstatement  was  made  on 27.05.2009.  Therefore, as rightly pointed out by the learned senior counsel appearing for the State that if at all, any exercise could have been done by the State, it would have been only pursuant to the order dated  04.03.2009.   Mr.  V.  Giri,  learned  senior counsel appearing for the appellants, would contend that the High Court, in the original jurisdiction, having  held  that  the  termination  was  otherwise illegal,  the  only  corollary  to  the  declaration  is that  the  appellants  should  be  deemed  to  be  ‘in service’ for all purposes.

6. Having  regard  to  the  background  of  the allegations  pursuant  to  which  the  termination  was effected, we are of the view that the State, having resolved  to  take  back  all  employees  into  service without further inquiry, has itself shown sufficient grace  to  the  appellants.   The  respondents,  having acted within three months from the final order passed by the Division Bench of the High Court, we find that the tentative view taken by this Court in the order dated 17.08.2017 needs to be revisited.

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7. Having  said  that,  in  case  these  appeals  are dismissed,  there  would  still  be  scope  for  further litigation between the parties in view of the liberty granted by the High Court in the impugned order.  The learned senior counsel appearing on both sides have submitted  that  there  should  not  be  any  further litigation on this count.

8. Having  regard  to  the  entire  facts  and circumstances of the case, we are of the view that the  interest  of  justice  would  be  met  in  case  the appellants before this Court are granted litigation expenses, which would be in full and final settlement of all their claims, which they have been pursuing before  the  High  Court.   This  benefit  will  be available only to those Constables who have chosen to pursue  their  grievance  before  this  Court  upto 17.08.2017, when this Court passed the order referred to in Paragraph 4 above.  The litigation expenses are quantified  to  Rs.  35,000/-  (Rupees  Thirty  Five Thousand).   This  amount  shall  be  paid  to  each  of those Constables covered by this order on or before 20.12.2017.   It  is  made  clear  that  in  case  the appellants are not paid the above amount within the stipulated time, they shall be entitled to interest at the rate of 18% from the date of termination.

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9. We  also  make  it  clear  that  this  Judgment  is passed  in  the  peculiar  facts  and  circumstances  of this case and this benefit shall not be available to any other similarly situated employee(s) who had been reinstated  pursuant  to  the  order  dated  04.03.2009 passed by the High Court.

10. Since  the  entire  litigation  has  been  given  a quietus,  we  make  it  clear  that  for  all  other purposes,  the  Constables  concerned  who  had  been terminated in 2006-2007, will be treated to be ‘in continuous  service’  except  for  the  Assured  Career Progression (ACP), for which the actual service, when they discharged the duties, will be counted.

11. With the above observations and directions, the appeals are disposed of.  

.......................J.               [ KURIAN JOSEPH ]  

.......................J.               [ R. BANUMATHI ]  

New Delhi; October 10, 2017.

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ITEM NO.7               COURT NO.4               SECTION XI                S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS Petition(s) for Special Leave to Appeal (C)  No(s).  10004/2016 (Arising out of impugned final judgment and order dated  27-10-2015 in SAD No. 707/2015 passed by the High Court Of Judicature At Allahabad) DEEPAK KUMAR  & ORS.                               Petitioner(s)                                 VERSUS PRINCIPAL SECRETARY HOME, GOVT. OF U.P LUCKNOW  (U.P) & ORS.   Respondent(s) (IA No.70474/2017-PERMISSION TO FILE ADDITIONAL DOCUMENTS and IA  No.70476/2017-EXEMPTION FROM FILING O.T.) WITH SLP(C) No. 10006/2016 (XI) (IA No.69737/2017-impleading party and IA No.70477/2017-PERMISSION TO FILE ADDITIONAL DOCUMENTS and IA No.70478/2017-EXEMPTION FROM FILING O.T.) SLP(C) No. 10005/2016 (XI) (IA No.70466/2017-PERMISSION TO FILE ADDITIONAL DOCUMENTS and IA No.70468/2017-EXEMPTION FROM FILING O.T.) SLP(C) No. 10008/2016 (XI) (IA No.70481/2017-PERMISSION TO FILE ADDITIONAL DOCUMENTS and IA No.70482/2017-EXEMPTION FROM FILING O.T.)   Date : 10-10-2017 This petition was called on for hearing today. CORAM :  HON'BLE MR. JUSTICE KURIAN JOSEPH          HON'BLE MRS. JUSTICE R. BANUMATHI Counsel for the  parties Mr. V. Giri, Sr. Adv.  

Mr. Krishna M. Singh, Adv.  Mr. S. R. Setia, AOR Mr. Danish Zubair Khan, AOR Mr. V. Shekhar, Sr. Adv.  Ms. Aishwarya Bhati, AAG, UP Mr. Rajeev Kumar Dubey, Adv.  Mr. Kamlendra Mishra, Adv.  Mr. Ravi Prakash Mehrotra, AOR

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   UPON hearing the counsel the Court made the following                              O R D E R

Leave granted.   The appeals are disposed of in terms of the non-reportable

Judgment.   Pending Interlocutory Applications, if any, stand disposed of.

(JAYANT KUMAR ARORA)                              (RENU DIWAN)    COURT MASTER                                ASSISTANT REGISTRAR

(Signed non-reportable Judgment is placed on the file)