1 Jaswant Singh Vs. State of Rajasthan (D.B. CIVIL SPECIAL APPEAL (W) NO.476/98) Date of Order :: 05.02.2009 HON'BLE MR.JUSTICE A.M.KAPADIA HON'BLE MR.JUSTICE SANGEET LODHA Mr. Manoj Bhandari, for the appellant. None present for the respondents. BY THE COURT:(PER HON'BLE MR.SANGEET LODHA,J.) 1. This special appeal is directed against order dated 3.4.98 passed by the learned Single Judge, whereby the writ petition preferred by the appellant assailing the validity of order dated 21.4.97 issued by Joint Director (Personnel) Primary & Secondary Education, Rajasthan, Bikaner, denying him the actual benefits of the post of Lecturer (School Education) w.e.f. 11.10.84, in defiance of order dated 5.1.95 passed by this Court in Writ Petition No.794/87, has been dismissed as barred by principles of res judicata. 2. The relevant facts in nutshell are that the appellant entered the service of Department of Education, Government of Rajasthan in the year 1978, on being appointed on the post of Teacher Gr.III. He was confirmed on the said post w.e.f. 1.3.81. While the appellant was continuing in service as aforesaid, about 90 posts of Senior Teachers (School Lecturers) in subject Civics were advertised by the Rajasthan Public Service Commission (in short 'the RPSC' hereinafter) on 3.11.83. The appellant applied for the post as handicapped candidate (blind). The certificate of blindness was also annexed with the application form. 2 The appellant was selected by the RPSC for appointment on the post of School Lecturer/Teacher Gr.I (now designated as Teacher Gr.I/Junior Lecturer) in Civics. But, despite the due selection as aforesaid, the appellant was not accorded appointment. The representations made by appellant to the authorities concerned were not responded. In these circumstances, he preferred a writ petition (No.784/87) before this Court, which was allowed by the learned Single Judge of this court vide judgment dated 5.1.95 in the following terms : “Consequently, the writ petition is allowed and it is directed that the petitioner should be given appointment as Senior Teacher (School Lecturer) in Civics subject for which he had applied and was selected. Since, the petitioner was denied the benefit wrongfully and if such denial had not been made, he would have got his appointment accordingly to his merit in the selection-list. It is directed that his appointment should be considered to have been made from the date that persons junior to him in the merit-list was given the appointment and he would be entitled to get all benefits including salary, fixation etc. from the said date.” (emphasis added) 3. Thus, in terms of the directions issued by this Court, the respondents were under an obligation to give appointment to the appellant on the post of Senior Teacher (School Lecturer) with effect from the date the person lower in the merit to the appellant was accorded appointment and on the appointment being given as 3 aforesaid, the respondents were under an obligation to extend all the consequential benefits to the appellant including the pay fixation, arrear of salary etc. However, even after repeated representations being made by the appellant, the respondents did not choose to comply with the directions issued by this Court. In these circumstances, the appellant preferred a contempt petition (No.215/96) with a prayer to punish the authorities concerned for wilful disobedience of the order passed by this court. However, the same was rejected by this Court being barred by time under the provisions of Section 20 of the Contempt of Court Act, 1961. 4. In the circumstances referred supra, the appellant preferred yet another Writ Petition (No.1371/97) before this Court seeking direction for implementation of order dated 5.1.95. This Court while issuing show cause notice to the respondents, directed respondent no.2 to remain present in the Court along with the entire record to explain as to why the aforesaid order dated 5.1.95 passed by this Court in Writ Petition (No.784/87) was not implemented. 5. In response to the notice to show cause, the respondents therein, filed a reply to the writ petition inter alia stating that in compliance of judgment dated 5.1.95, by an order dated 5.4.97 issued by the Director, Primary & Secondary Education, Rajasthan, Bikaner, the appellant has been appointed as Lecturer. The order dated 5.4.97 was also placed on record as Annexure-R1 to the reply. 4 6. In view of the order dated 5.4.97 placed on record, the aforesaid second writ petition preferred by the appellant was disposed of by this Court vide order dated 23.4.97 observing that by order dated 5.4.97 it has already been directed that the petitioner shall be entitled to all consequential benefits from the date of selection by the RPSC including seniority. However, it was further observed by the Court that if the appellant herein finds any illegality committed, he shall be at liberty to approach the appropriate authority. 7. It is to be noticed that the aforesaid order dated 23.4.97 was obtained by the respondents from this Court on the basis of the order dated 5.4.97, but strangely enough by yet another order dated 21.4.97 issued by the Joint Director (Personnel) Primary & Secondary Education, Rajasthan, Bikaner, the sanction was issued in terms that on fixation of the salary the actual benefits shall be payable to the appellant from the date of joining. 8. Indisputably, the order dated 21.4.97 was not brought to the notice of this Court by the respondents, when the order dated 23.4.97 disposing of the writ petition was passed by this Court. Apart from the denying the actual benefits w.e.f. 11.10.84 i.e. the date the persons lower in the merit list to the appellant was accorded appointment, the fixation of the appellant in the pay scale admissible to the post of Lecturer was also not made despite the repeated representations being made. In these circumstances, the validity of order dated 21.4.97 was 5 assailed by the petitioner by way of yet another writ petition, which stands dismissed by the learned Single Judge by the order under appeal, holding the same to be barred by principle of res judicata. Hence, this appeal. 9. It is contended by the learned counsel for the appellant that the learned Single Judge has seriously erred in dismissing the writ petition preferred by the appellant treating the same to be barred by principles of res judicata. The learned counsel submitted that by way of present writ petition, the appellant had challenged the validity of the order dated 21.4.97 inter alia on the ground that the same was contrary to the judgment dated 5.1.95 passed in Writ petition No.784/87. The learned counsel submitted that the principles of res judicata were not even remotely applicable in the instant case inasmuch as in the earlier litigation the validity of order dated 21.4.97 was not at all in question. The learned counsel submitted that the learned Single Judge has erred in not examining the validity of order dated 21.4.97, which was impugned in the writ petition. The learned counsel further urged that on the facts and in the circumstances of the case, the appellant had no other remedy available to approach of this Court for implementation of the judgment dated 5.1.95, rendered by this Court in Writ Petition No.784/87. That apart, the learned counsel submitted while deciding the second Writ Petition being No.1371/97 vide order dated 23.4.97, this Court has categorically observed that if after the reasonable time 6 the appellant finds illegality committed, he shall be at liberty to approach the appropriate authority. However, the respondents did not pay any heed to the representations made by the appellant raising the grievance, therefore, he was left with no other alternate except to approach this Court once again. The learned counsel contended that a writ petition is maintainable even for implementation of the judgment delivered by this Court. In this regard, the learned counsel has relied upon a decision of the Hon'ble Surpeme Court in the matter of 'Commissioner of Karnataka Housing Board Vs. C. Muddaiah' (2007) 7 SCC 689. According to the learned counsel, the order impugned passed by the learned Single Judge without appreciating all these relevant aspects of the matter is not sustainable in eye of the law. 10. We have considered the submissions of the learned counsel and perused the various orders passed by this Court so also the orders passed by the respondent authorities. 11. At the outset, it may be noticed that it was the obligation of the respondent authorities to accord appointment to the appellant on the post of Senior Teacher (School Lecturer) in terms of the directions issued by this Court vide order dated 5.1.95 from the date person lower in the merit to the appellant was accorded appointment on the said post with all consequential benefits. It is not in dispute that the person lower in merit to the appellant was accorded appointment on the said post w.e.f. 11.10.84. Thus, on appointment being accorded, the 7 appellant's fixation in the pay scale admissible to the post of Senior Teacher (School Lecturer) was required to be made w.e.f. 11.10.84 and the actual benefits flowing from such fixation were also required to be paid to him accordingly. 12. It is apparent on the face of record that despite unequivocal directions being issued by this Court, the respondent did not choose to comply with the same till the receipt of the notices of the second writ petition preferred by the petitioner for implementation of the earlier order. It is only after the passing of the order dated 28.3.97 by this Court, seeking explanation of the respondent no.2 as to why the order dated 5.1.95, passed by this Court was not implemented, that the respondents coming out of the slumber issued order dated 5.4.97, appointing the petitioner on the post of Lecturer (School Education). Since, vide order dated 5.4.97 the petitioner was extended seniority according to the merit list prepared by the RPSC and so also the consequential benefits, therefore, this Court rightly disposed of the writ petition preferred by the appellant saying that the relief claimed for, has already been granted. 13. It is really surprising that the respondents obtained the order dated 23.4.97 from this Court, whereby the second writ petition preferred by the petitioner was disposed of without disclosing the fact that vide yet another order dated 21.4.97, apparently issued in defiance of the order dated 5.1.95 passed by this Court the actual 8 monetary benefits payable to the petitioner on his fixation w.e.f. 11.10.84 were ordered to be paid only from the date of his joining the service. It leads to irresistible conclusion that the respondents have deliberately suppressed the actual facts so as to mislead this court. 14. Admittedly, the order dated 21.4.97 passed by the Joint Director (Personnel), Primary & Secondary Education, denying the payment of actual benefits to the petitioner in terms of the fixation to be made was not subject matter of the writ petition no.1371/97, therefore, by no stretch of imagination, it can be said that the matter in issue in the writ petition disposed of by the learned Single by the order impugned, has been directly and substantially in issue in the earlier writ petition between the parties. Moreover, vide order dated 23.4.97 this Court had disposed of the writ petition preferred by the petitioner virtually as having become infructuous in view of order dated 5.4.97 placed on record by the respondents along with their reply to the writ petition. For these reasons, we find ourselves unable to agree with the view taken by the learned Single Judge that the writ petition preferred by the petitioner was barred by principles of res judicata. In our considered opinion, the writ petition was based on fresh cause of action and could not have been dismissed as barred by principles of res judicata. 15. There is yet another aspect of the matter, it was the obligation of the respondent authorities to comply with the directions issued by 9 this Court vide order dated 5.1.95 meticulously. The unequivocal directions having been issued by this Court that the appellant is entitled for appointment to the post of Lecturer (School Education) with effect from the date the person lower in merit to the appellant was appointed on the said post and further that he shall be entitled for all benefits including salary, fixation etc. from the said date, the respondents could not have brushed aside, overlooked or ignored the same and issued an order which is ex facie in defiance of the directions issued by this Court as aforesaid. If the respondents were aggrieved by the said order, then, it was open for them to challenge the same by taking appropriate proceedings. Instead of taking the appropriate proceedings for challenging the order passed by this Court, the action of the respondents in denying the benefits to the appellant, a handicapped person, in terms of the order passed by this Court, deserves to be highly deprecated. 16. In view of the discussion above, in our view, the order dated 21.4.97 passed by the Joint Director (Personnel) Primary & Secondary Education is avowedly illegal, arbitrary and in gross violation of the directions issued by this Court and the same deserves to be quashed and set aside to the extent it denies the actual monetary benefits admissible to the post of Lecturer (School Education) with effect from the date of his appointment i.e. 11.10.84. The respondents are ex facie guilty of defying the order passed by this court. The petitioner , a 10 handicapped person, has been deprived of the benefits payable to him under the order passed by this court on account of high handed action and apathetic attitude of the respondents, therefore, he deserves to be compensated by way of exemplary cost. 17. In the result, the special appeal succeeds, it is hereby allowed. The order under appeal is set aside. The writ petition is allowed with cost assessed at Rs.20,000/-. The order impugned in the writ petition dated 21.4.97 passed by the Joint Director (Personnel) Primary & Secondary Education Rajasthan, Bikaner, is set aside to the extent it denies actual monetary benefits to the petitioner with effect from the date of his appointment i.e. 11.10.84 and restricts the same from the date of joining. The respondents are directed to compute the entire salary and other benefits payable to the petitioner on his fixation in the pay scale admissible to the post of Lecturer (School Education) w.e.f. 11.10.84 and to make the payment accordingly within a period of two months from the date of this order, failing which the amount due shall carry interest @ 9% per annum. The amount of cost determined as aforesaid shall be recovered from the authority, who has passed the erroneous order dated 21.4.97 in defiance of the directions issued by this Court vide order dated 5.1.95. The respondents are directed to submit the compliance report before this Court within a period of two months from the date of this order. The special appeal though stands disposed of , shall be listed for the perusal of the compliance report on 11 15.4.2009. Let the copy of this order be sent to the Secretary, Education Government of Rajasthan and the Director, Primary & Secondary Education, Bikaner forthwith. [SANGEET LODHA],J. [A.M. KAPADIA],J. vijayant