STATE OF HIMACHAL PRADESH v. SARAB DAYAL [2011] INSC 512 (5 May 2011)

Judgement

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 4040 OF 2011 (Arising out of SLP(C) No.362/2008) 

STATE OF HIMACHAL PRADESH Appellant(s) :

VERSUS:

SARAB DAYAL Respondent(s)

WITH CIVIL APPEAL NO. 4027 OF 2011 (@ SLP(C)No.23225/2007) CIVIL APPEAL NO. 4028 OF 2011 (@ SLP(C)No.23886/2007) CIVIL APPEAL NO. 4029 OF 2011 (@ SLP(C)No.24042/2007) CIVIL APPEAL NO. 4030 OF 2011 (@ SLP(C)No.24043/2007) CIVIL APPEAL NO. 4031 OF 2011 (@ SLP(C)No.24045/2007) CIVIL APPEAL NO. 4033 OF 2011 (@ SLP(C)No.24304/2007) CIVIL APPEAL NO. 4036 OF 2011 (@ SLP(C)No.55/2008) CIVIL APPEAL NO. 4032 OF 2011 (@ SLP(C)No.1114/2008) CIVIL APPEAL NO. 4037 OF 2011 (@ SLP(C)No.5206/2008) CIVIL APPEAL NO. 4039 OF 2011 (@ SLP(C)No.5208/2008) CIVIL APPEAL NO. 4041 OF 2011 (@ SLP(C)No.8027/2008) CIVIL APPEAL NO. 4042 OF 2011 (@ SLP(C)No.8562/2008) CIVIL APPEAL NO. 4043 OF 2011 (@ SLP(C)No.15379/2008) CIVIL APPEAL NO. 4113 OF 2011 (@ SLP(C)No.17525/2008) CIVIL APPEAL NO. 4123 OF 2011 (@ SLP(C)No.19516/2008) CIVIL APPEAL NO. 4132 OF 2011 (@ SLP(C)No.26055/2008) CIVIL APPEAL NO. 4134 OF 2011 (@ SLP(C)No.26628/2008) CIVIL APPEAL NO. 4044 OF 2011 (@ SLP(C)No.28886/2008) CIVIL APPEAL NO. 4045 OF 2011 (@ SLP(C)No.26353/2008) CIVIL APPEAL NO. 4046 OF 2011 (@ SLP(C)No.30185/2008) CIVIL APPEAL NO. 4047 OF 2011 (@ SLP(C)No.28787/2008) CIVIL APPEAL NO. 4048 OF 2011 (@ SLP(C)No.26454/2008) CIVIL APPEAL NO. 4049 OF 2011 (@ SLP(C)No.30399/2008) CIVIL APPEAL NO. 4050 OF 2011 (@ SLP(C)No.30730/2008) CIVIL APPEAL NO. 4051 OF 2011 (@ SLP(C)No.30323/2008) CIVIL APPEAL NO. 4054 OF 2011 (@ SLP(C)No.30782/2008) 2 CIVIL APPEAL NO. 4166 OF 2011 (@ SLP(C)No.22207/2008) CIVIL APPEAL NO. 4167 OF 2011 (@ SLP(C)No.21367/2008) CIVIL APPEAL NO. 4168 OF 2011 (@ SLP(C)No.21405/2008) CIVIL APPEAL NO. 4169 OF 2011 (@ SLP(C)No.22208/2008) CIVIL APPEAL NO. 4170 OF 2011 (@ SLP(C)No.21594/2008) CIVIL APPEAL NO. 4171 OF 2011 (@ SLP(C)No.29457/2008) CIVIL APPEAL NO. 4172 OF 2011 (@ SLP(C)No.30477/2008) CIVIL APPEAL NO. 4052 OF 2011 (@ SLP(C)No.386/2009) CIVIL APPEAL NO. 4053 OF 2011 (@ SLP(C)No.382/2009) CIVIL APPEAL NO. 4055 OF 2011 (@ SLP(C)No.384/2009) CIVIL APPEAL NO. 4056 OF 2011 (@ SLP(C)No.387/2009) CIVIL APPEAL NO. 4057 OF 2011 (@ SLP(C)No.390/2009) CIVIL APPEAL NO. 4058 OF 2011 (@ SLP(C)No.45/2009) CIVIL APPEAL NO. 4059 OF 2011 (@ SLP(C)No.773/2009) CIVIL APPEAL NO. 4060 OF 2011 (@ SLP(C)No.775/2009) CIVIL APPEAL NO. 4061 OF 2011 (@ SLP(C)No.774/2009) CIVIL APPEAL NO. 4062 OF 2011 (@ SLP(C)No.2466/2009) CIVIL APPEAL NO. 4063 OF 2011 (@ SLP(C)No.2467/2009) CIVIL APPEAL NO. 4064 OF 2011 (@ SLP(C)No.1620/2009) CIVIL APPEAL NO. 4065 OF 2011 (@ SLP(C)No.8318/2009) CIVIL APPEAL NO. 4066 OF 2011 (@ SLP(C)No.12290/2009) CIVIL APPEAL NO. 4067 OF 2011 (@ SLP(C)No.10851/2009) CIVIL APPEAL NO. 4068 OF 2011 (@ SLP(C)No.12291/2009) CIVIL APPEAL NO. 4069 OF 2011 (@ SLP(C)No.12292/2009) CIVIL APPEAL NO. 4070 OF 2011 (@ SLP(C)No.12293/2009) CIVIL APPEAL NO. 4071 OF 2011 (@ SLP(C)No.6358/2009) CIVIL APPEAL NO. 4072 OF 2011 (@ SLP(C)No.15477/2009) CIVIL APPEAL NO. 4073 OF 2011 (@ SLP(C)No.13493/2009) CIVIL APPEAL NO. 4074 OF 2011 (@ SLP(C)No.15537/2009) CIVIL APPEAL NO. 4075 OF 2011 (@ SLP(C)No.13354/2009) CIVIL APPEAL NO. 4076 OF 2011 (@ SLP(C)No.13494/2009) CIVIL APPEAL NO. 4077 OF 2011 (@ SLP(C)No.15546/2009) CIVIL APPEAL NO. 4078 OF 2011 (@ SLP(C)No.13505/2009) CIVIL APPEAL NO. 4079 OF 2011 (@ SLP(C)No.13622/2009) CIVIL APPEAL NO. 4080 OF 2011 (@ SLP(C)No.15547/2009) 3 CIVIL APPEAL NO. 4081 OF 2011 (@ SLP(C)No.15550/2009) CIVIL APPEAL NO. 4082 OF 2011 (@ SLP(C)No.15565/2009) CIVIL APPEAL NO. 4083 OF 2011 (@ SLP(C)No.15556/2009) CIVIL APPEAL NO. 4084 OF 2011 (@ SLP(C)No.15558/2009) CIVIL APPEAL NO. 4086 OF 2011 (@ SLP(C)No.10090/2009) CIVIL APPEAL NO. 4085 OF 2011 (@ SLP(C)No.15551/2009) CIVIL APPEAL NO. 4087 OF 2011 (@ SLP(C)No.10122/2009) CIVIL APPEAL NO. 4088 OF 2011 (@ SLP(C)No.10123/2009) CIVIL APPEAL NO. 4089 OF 2011 (@ SLP(C)No.10124/2009) CIVIL APPEAL NO. 4090 OF 2011 (@ SLP(C)No.10119/2009) CIVIL APPEAL NO. 4091 OF 2011 (@ SLP(C)No.10116/2009) CIVIL APPEAL NO. 4092 OF 2011 (@ SLP(C)No.21414/2009) CIVIL APPEAL NO. 4093 OF 2011 (@ SLP(C)No.22498/2009) CIVIL APPEAL NO. 4094 OF 2011 (@ SLP(C)No.22500/2009) CIVIL APPEAL NO. 4095 OF 2011 (@ SLP(C)No.22501/2009) CIVIL APPEAL NO. 4096 OF 2011 (@ SLP(C)No.22503/2009) CIVIL APPEAL NO. 4097 OF 2011 (@ SLP(C)No.22504/2009) CIVIL APPEAL NO. 4098 OF 2011 (@ SLP(C)No.22505/2009) CIVIL APPEAL NO. 4099 OF 2011 (@ SLP(C)No.22506/2009) CIVIL APPEAL NO. 4100 OF 2011 (@ SLP(C)No.21189/2009) CIVIL APPEAL NO. 4101 OF 2011 (@ SLP(C)No.21280/2009) CIVIL APPEAL NO. 4102 OF 2011 (@ SLP(C)No.21281/2009) CIVIL APPEAL NO. 4103 OF 2011 (@ SLP(C)No.21283/2009) CIVIL APPEAL NO. 4104 OF 2011 (@ SLP(C)No.21284/2009) CIVIL APPEAL NO. 4105 OF 2011 (@ SLP(C)No.21285/2009) CIVIL APPEAL NO. 4106 OF 2011 (@ SLP(C)No.21984/2009) CIVIL APPEAL NO. 4107 OF 2011 (@ SLP(C)No.24411/2009) CIVIL APPEAL NO. 4108 OF 2011 (@ SLP(C)No.5085/2009) CIVIL APPEAL NO. 4109 OF 2011 (@ SLP(C)No.5086/2009) CIVIL APPEAL NO. 4110 OF 2011 (@ SLP(C)No.5087/2009) CIVIL APPEAL NO. 4111 OF 2011 (@ SLP(C)No.21191/2009) CIVIL APPEAL NO. 4112 OF 2011 (@ SLP(C)No.24412/2009) CIVIL APPEAL NO. 4114 OF 2011 (@ SLP(C)No.24737/2009) CIVIL APPEAL NO. 4115 OF 2011 (@ SLP(C)No.24740/2009) CIVIL APPEAL NO. 4116 OF 2011 (@ SLP(C)No.24741/2009) 4 CIVIL APPEAL NO. 4117 OF 2011 (@ SLP(C)No.24742/2009) CIVIL APPEAL NO. 4118 OF 2011 (@ SLP(C)No.24744/2009) CIVIL APPEAL NO. 4119 OF 2011 (@ SLP(C)No.24745/2009) CIVIL APPEAL NO. 4120 OF 2011 (@ SLP(C)No.24746/2009) CIVIL APPEAL NO. 4121 OF 2011 (@ SLP(C)No.24748/2009) CIVIL APPEAL NO. 4122 OF 2011 (@ SLP(C)No.24414/2009) CIVIL APPEAL NO. 4124 OF 2011 (@ SLP(C)No.27976/2009) CIVIL APPEAL NO. 4125 OF 2011 (@ SLP(C)No.27977/2009) CIVIL APPEAL NO. 4126 OF 2011 (@ SLP(C)No.27978/2009) CIVIL APPEAL NO. 4127 OF 2011 (@ SLP(C)No.27979/2009) CIVIL APPEAL NO. 4128 OF 2011 (@ SLP(C)No.27980/2009) CIVIL APPEAL NO. 4129 OF 2011 (@ SLP(C)No.21173/2009) CIVIL APPEAL NO. 4130 OF 2011 (@ SLP(C)No.31857/2009) CIVIL APPEAL NO. 4131 OF 2011 (@ SLP(C)No.32864/2009) CIVIL APPEAL NO. 4144 OF 2011 (@ SLP(C)No.3686/2009) CIVIL APPEAL NO. 4145 OF 2011 (@ SLP(C)No.8317/2009) CIVIL APPEAL NO. 4133 OF 2011 (@ SLP(C)No.3503/2010) CIVIL APPEAL NO. 4135 OF 2011 (@ SLP(C)No.640/2010) CIVIL APPEAL NO. 4136 OF 2011 (@ SLP(C)No.641/2010) CIVIL APPEAL NO. 4137 OF 2011 (@ SLP(C)No.643/2010) CIVIL APPEAL NO. 4138 OF 2011 (@ SLP(C)No.644/2010) CIVIL APPEAL NO. 4139 OF 2011 (@ SLP(C)No.646/2010) CIVIL APPEAL NO. 4140 OF 2011 (@ SLP(C)No.4062/2010) CIVIL APPEAL NO. 4141 OF 2011 (@ SLP(C)No.6141/2010) CIVIL APPEAL NO. 4142 OF 2011 (@ SLP(C)No.5940/2010) CIVIL APPEAL NO. 4143 OF 2011 (@ SLP(C)No.5941/2010) CIVIL APPEAL NO. 4146 OF 2011 (@ SLP(C)No.8145/2010) CIVIL APPEAL NO. 4147 OF 2011 (@ SLP(C)No.645/2010) CIVIL APPEAL NO. 4148 OF 2011 (@ SLP(C)No.17235/2010) CIVIL APPEAL NO. 4149 OF 2011 (@ SLP(C)No.20006/2010) CIVIL APPEAL NO. 4150 OF 2011 (@ SLP(C)No.20291/2010) CIVIL APPEAL NO. 4151 OF 2011 (@ SLP(C)No.20312/2010) CIVIL APPEAL NO. 4152 OF 2011 (@ SLP(C)No.20316/2010) CIVIL APPEAL NO. 4153 OF 2011 (@ SLP(C)No.20324/2010) CIVIL APPEAL NO. 4154 OF 2011 (@ SLP(C)No.20347/2010) 5 CIVIL APPEAL NO. 4155 OF 2011 (@ SLP(C)No.20352/2010) CIVIL APPEAL NO. 4156 OF 2011 (@ SLP(C)No.20368/2010) CIVIL APPEAL NO. 4157 OF 2011 (@ SLP(C)No.20409/2010) CIVIL APPEAL NO. 4158 OF 2011 (@ SLP(C)No.21870/2010) CIVIL APPEAL NO. 4159 OF 2011 (@ SLP(C)No.21875/2010) CIVIL APPEAL NO. 4160 OF 2011 (@ SLP(C)No.21872/2010) CIVIL APPEAL NO. 4161 OF 2011 (@ SLP(C)No.23375/2010) CIVIL APPEAL NO. 4162 OF 2011 (@ SLP(C)No.23376/2010) CIVIL APPEAL NO. 4163 OF 2011 (@ SLP(C)No.23385/2010) CIVIL APPEAL NO. 4164 OF 2011 (@ SLP(C)No.23389/2010) CIVIL APPEAL NO. 4165 OF 2011 (@ SLP(C)No.23390/2010) CIVIL APPEAL NO. 4173 OF 2011 (@ SLP(C)No.24716/2010) CIVIL APPEAL NO. 4174 OF 2011 (@ SLP(C)No.24717/2010) CIVIL APPEAL NO. 4175 OF 2011 (@ SLP(C)No.24718/2010) CIVIL APPEAL NO. 4176 OF 2011 (@ SLP(C)No.24719/2010) CIVIL APPEAL NO. 4177 OF 2011 (@ SLP(C)No.23648/2010) CIVIL APPEAL NO. 4178 OF 2011 (@ SLP(C)No.30827/2010) CIVIL APPEAL NO. 4179 OF 2011 (@ SLP(C)No.29346/2010) CIVIL APPEAL NO. 4180 OF 2011 (@ SLP(C)No.30881/2010) CIVIL APPEAL NO. 4181 OF 2011 (@ SLP(C)No.31509/2010) CIVIL APPEAL NO. 4182 OF 2011 (@ SLP(C)No.31510/2010) CIVIL APPEAL NO. 4183 OF 2011 (@ SLP(C)No.31511/2010) CIVIL APPEAL NO. 4184 OF 2011 (@ SLP(C)No.31866/2010) CIVIL APPEAL NO. 4185 OF 2011 (@ SLP(C)No.31649/2010) CIVIL APPEAL NO. 4186 OF 2011 (@ SLP(C)No.33594/2010) CIVIL APPEAL NO. 4187 OF 2011 (@ SLP(C)No.33595/2010) CIVIL APPEAL NO. 4188 OF 2011 (@ SLP(C)No.33596/2010) CIVIL APPEAL NO. 4189 OF 2011 (@ SLP(C)No.33597/2010) CIVIL APPEAL NO. 4190 OF 2011 (@ SLP(C)No.33600/2010) CIVIL APPEAL NO. 4191 OF 2011 (@ SLP(C)No.32729/2010) O R D E R 1. Delay condoned.

2. Leave is granted in all the Special leave 6 petitions.

3. These appeals emanate from the judgment and order dated 19.7.2007 delivered by a Division Bench of the High Court of Himachal Pradesh at Shimla in a group of civil writ petitions.

4. We have heard Mr. P.P. Rao, learned senior counsel appearing for the State of Himachal Pradesh and Mr. M.C. Dhingra, learned counsel for the respondents and other learned counsel appearing for the respondents.

5. During the course of hearing, a copy of Office Memorandum No.F.12(1)E.V/68, dated the 14th May, 1968, which was issued by the Government of India, has been brought to our notice. Admittedly the said Office Memorandum was neither filed by the appellant(s) nor by the respondents. Only during the course of arguments, a copy of this 1968 Office Memorandum was handed over to the High Court by the learned counsel for the respondents.

6. Learned counsel appearing for the appellant(s) 7 submits that the appellant State did not have any opportunity to file any reply to this Office Memorandum of 1968. The High Court in the impugned judgment has placed heavy reliance on this Office Memorandum. It is submitted by the learned counsel for the appellant(s) that the 1968 Office Memorandum was not adopted by the State. This fact could not be brought to the notice of the Court because the State did not have a chance of filing reply. Obviously the Court did not consider the aspect of non adoption of the Office Memorandum by the State in the judgment.

7. On 13th April, 2011, this Court directed the State of Himachal Pradesh to file an affidavit stating therein as to whether the Office Memorandum dated 14th May, 1968 issued by the Governments of India was adopted by the State or not.

8. In pursuance to the direction of this Court, an affidavit has been filed by Mr. P.C. Kapoor, Principal Secretary to the Government of Himachal Pradesh, Shimla, in which it is stated that the 8 State of Himachal Pradesh has not adopted the O.M. No.F.12(1)-EV/68, dated the 14th May, 1968 issued by the Government of India, Ministry of Finance, either for the payment of pension or payment of gratuity to its employees.

9. In the affidavit it is also mentioned that the Government of Himachal Pradesh is not paying the gratuity to its employees under OM dated 14th May, 1968 but is paying the gratuity to its workers under the Payment of Gratuity Act, 1972 and CCS Pension Rules, 1972 and as per the directions of the High Court vide its judgment dated 9.5.2007 in CWP No.150 of 2004, titled as 'State of H.P. versus Lashkri Ram'.

10. Mr. M.C. Dhingra, learned counsel appearing for the respondents has referred to The Punjab Reorganisation Act, 1966 and submitted that Himachal Pradesh became a State with effect from 25.1.1971 and prior to this, it was a Union Territory established under the Government of Union Territories Act, 1963. It was submitted by Mr. Dhingra that all the Office Memorandums issued by 9 the Government of India, ipso facto, became applicable to the State of Himachal Pradesh with effect from 19.5.1971.

11. We have perused the records and heard the learned counsel for the parties. We are of the considered view that an entirely new case has been weaved out before this Court. There are no pleadings to that effect. In this view of the matter, we are constrained to set aside the impugned judgment of the High Court and remit the matters to the High Court for fresh adjudication. To avoid any confusion, we direct the State to file a comprehensive amended writ petition in the High Court within eight weeks and reply of the same be filed within eight weeks thereafter and rejoinder, if any, within four weeks thereafter.

12. We request the High Court to dispose of the matters on the basis of the amended pleadings, as early as possible, in any event, within nine months from the date of communication of this order.

13. To avoid any delay in the matters, we direct 10 the parties to appear before the High Court on 17th May, 2011. The State of Himachal Pradesh would be at liberty to additionally serve the parties through their respective counsel in the High Court.

14. With these observations and directions, these appeals are disposed of, leaving the parties to bear their own costs. .....................J (DALVEER BHANDARI) .....................J (DEEPAK VERMA) New Delhi;

May 5, 2011.