IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7798 of 2005 SRIDHAR SINHA Versus THE STATE OF BIHAR & ORS ----------- For the Petitioner : Mr. Banwari Sharma, Advocate With Mr. Shiv Kumar, Advocate For the State : Standing Counsel No. 2 --------- P R E S E N T THE HON’BLE JUSTICE MIHIR KUMAR JHA Mihir Kr. Jha, J. Heard learned counsel for the petitioner and the learned counsel for the State. In this writ application the petitioner has made a prayer to the following effect:- “ That the present application is for issuance of a writ in the nature of writ of mandamus directing the respondent to calculate the service of the petitioner when he was first appointed and thereafter his service was taken over in the other name by the department as earlier post named as Malaria Inspector which was later on known as basic health worker cannot be treated as promotion and thereafter the petitioner is entitled for his promotion in the selection grade as per the State Government rules but in case of the petitioner the same has not been done and the petitioner was given promotion in the junior selection grade and senior selection grade and thus the petitioner is entitled for suppertime selection grade and two higher scales from the date of his appointment as basic health inspector and accordingly pay be fixed and his pension and other retirement benefits be also fixed accordingly. And/or pass such other order or orders as your Lordships may deem fit and proper. “ (underlined for emphasis) 2 Counsel for the petitioner however on being asked as to how he could maintain this writ application pertaining to a relief for which a cause of action had arisen to him way back in the year 1964, has very fairly submitted that he did not intend to press that portion of relief, whereby and whereunder, a direction has been sought for from this Court to calculate the length of his service from the date of his first appointment. In the opinion of this Court, such a prayer of the petitioner even otherwise was not sustainable in view of the fact that the petitioner came to be appointed initially on the post of Malaria Inspector on 22.7.1960 and his such temporary appointment vide Annexure-1 to the writ application had stood terminated. The order dated 30th October 1964 appointing the petitioner afresh on the post of Basic Field Worker by order dated 30th October, 1964 ( Annexure-2) being altogether a fresh appointment and with no co-relation with the earlier temporary appointment of the petitioner on the post of Malaria Inspector, his prayer for continuity in service and/or reckoning his service from the first date of appointment, i.e, 28.7.1960 even otherwise is wholly misconceived being not altogether non maintainable on account of passage of 41 years since the date on which such cause of action had arisen to the petitioner. In that view of the matter, the first part of the relief as prayed for in the writ application regarding calculation of service of the petitioner from the date of his first appointment must be and is hereby dismissed as not pressed. Counsel for the petitioner next contended that the petitioner is actually aggrieved by the order dated 4th February, 2004 passed by the Commissioner, Patna Division, whereby and whereunder, it has been held that the petitioner is not entitled for grant of first time bound promotion. In the opinion of this Court even this part of relief is not admissible to the 3 petitioner due to absence of a specific prayer to this effect in the writ application. The contents of the alleged order dated 4th February, 2004 being part of Annexure-8, a communication of the District Malaria Officer, Patna dated 11.2.2004 ( Annexure-8) would go to show that the Secretary to the Commissioner of Patna Division had merely communicated the objection raised by the Confirmation Committee headed by the Commissioner, Patna Division which had gone into issue of grant of first time bound promotion of a large number of employees including the petitioner. From the tenor of letter dated 4th February, 2004 it would become apparent that as a matter of fact case of the petitioner was placed before the Confirmation Committee with reference to the letter no.653 dated 31.12.2003 of the District Malaria Officer, Patna, when a contempt petition bearing M.J.C. No. 534/2003 was filed by the petitioner before this Court. Infact it was in that context the Confirmation Committee headed by the Commissioner of Patna Division had found that there were certain anomalies on account of which fixation of final pay and consequential pensionary benefit by taking into account the time bound promotion was not possible unless the following objections as recorded by the Committee were rectified, namely :- (a) There was no specific entry in the service book of the petitioner with regard to his first date of appointment. (b) Prapatra- Ka and Kha as also first time bound promotion given to the petitioner were not duly verified. (c) The petitioner had already been granted a regular cadre promotion on 19.1.1978 on the post of Junior Health Inspector prior to his being given first time bound promotion and as such first time bound promotion was not 4 admissible to the petitioner. In fact, due to aforementioned three objections the service book of the petitioner along with the forwarding letter dated 04.02.2004 was returned by the Office of the Commissioner of Patna Division to the District Malaria Officer for necessary rectification. In the opinion of this Court letter dated 4th February, 2004 is thus not even an order muchless any final order wherein any adverse decision was taken conclusively against the petitioner and consequently at cannot be quashed by this court. The mystery in fact with regard to the origin of the aforesaid letter dated 4th February, 2004 allegedly affecting the petitioner adversely is actually unfolded from the contents of another letter dated 11.02.2004, Annexure-8 to the writ application. From the letter dated 11.02.2004 it becomes clear that not only the aforesaid letter dated 04.02.2004 is a mere query made by the office of the Divisional Commissioner in form of the three objections but is actually part of an inter departmental communication vide letter dated 11.02.2004 as with regard to taking a final decision on the claim of pay fixation and consequential retirement benefits of the petitioner as with regard to his previous between 1960 to 1964 and the admissibility and date of first time bound promotion due to his cadre promotion w.e.f 19.01.1978. In view of the fact the counsel for the petitioner has given up the first part of the prayer as noted above, his submission even with regard to the letter dated 04.02.2004 must be held to be misconceived.. Such prayer of the petitioner infact has to be also rejected when it is found that his two writ petitions for payment of retirement benefits is already pending before this Court and surprisingly the material facts in this regard has been totally concealed by the petitioner. Such 5 concealment infact appears to be malafide when it is realized that the subject matter of this writ application being claim to retirement benefit was/is already pending before this Court in C.W.J.C. No. 5662 of 2002, wherein the petitioner had made following prayer in paragraph no. 1 of that writ application namely : - “That the present application is for issuance of a writ in the nature of writ of certiorari for quashing the order passed by respondent no. 3 by which the final order has been passed on 09.03.2002 without appreciating the facts and legal points raised in the case before Hon’ble Supreme Court in Appeal Case No. 4676 of 1999 rather the same has been passed on the basis of submission made by learned counsel for the respondent before the Supreme Court and that also is not fully complied as no departmental proceeding was ever initiated against the petitioners rather the petitioner is the victim of insubordination, defiance of government orders by subordinates, a clear out case of favourism and from the fact it is also clear that those who works in accordance with the State Government orders and directions are victimized and those who defy the government order are favoured. By impugned order without any basis the petitioner alleged absence is treated as extra ordinary leave without any pay although the facts shows that the petitioner was fighting for his legal right who enshrined from the government order issued from time to time but by malafide and arbitrary action the petitioner has been 6 denied his salary without any basis and further a writ in the nature of writ of mandamus be issued directing the respondents to pay the salary and other emoluments to the petitioner for period treated as extra ordinary leave and all the legal benefits be given to the petitioner because it is authorities who denied the petitioner to work and the persons who defy the government order are responsible for violating the government order and not the petitioner and accordingly the petitioner be given all the post retirement benefits in accordance with calculating last pay drawn by the petitioner. And/or pass such other order or orders as your Lordships may deed fit and proper.” (underlined for emphasis) From the record of C.W.J.C. No. 5662 of 2002 it would also appear that the petitioner has moved this Court for payment of his retirement benefit upon quashing the order dated 9.3.2002, whereby and whereunder, the Secretary-Cum-Health Commissioner had passed order for treating the period of absence from duty by the petitioner between 27.5.1992 to 31.12.2000 as extraordinary leave on the ground that the petitioner did not comply the order of transfer and did not choose to perform duty assigned to him. From the record of C.W.J.C. No. 5662 of 2002 it further transpires that after the petitioner had retired he had moved this Court for claiming payment of salary for the period of his absence from duty in between 27.5.1992 to 31.12.2000 by seeking quashing of the order passed by the Commissioner and Secretary of the Health Department dated 9.3.2002 in which the petitioner had also made a prayer that as he had already retired from service his all post retirement benefits be calculated and paid to him on the basis of 7 last salary drawn after giving him benefit of payment of salary for the period from 27.5.1992 to 31.12.2000. At this stage if the prayer of the petitioner in the present writ application as quoted and underlined above is also looked into, it would become clear that the petitioner has also made a similar prayer for the relief of the payment of retirement benefit but not a word has been said by him about filing and pendency of C.W.J.C. No. 5662 of 2002 . This by itself in the opinion of the Court is suppression of material fact because when the petitioner in para 17 of this writ application has stated on oath that he did not move this Court on any earlier occasion for the relief sought for in this writ application, he had definitely sought to suppress the fact with regard to pendency of C.W.J.C. No. 5662 of 2002. As stated above, in both the writ application, i.e, C.W.J.C. No. 5662 of 2002 and in the present writ application there is a definite prayer for payment of post retirement benefit and as such the petitioner was duty bound to disclose with regard to pendency of C.W.J.C. No. 5662 of 2002 filed by him. The reason for such suppression of fact in the opinion of this Court is also quite obvious. This Court in the earlier writ application of the petitioner, i.e, C.W.J.C. No. 5662 of 2002 by order dated 21.5.2002 had passed the following order:- “After hearing counsel for the parties for sometime it appears that the case requires a rather detailed hearing. Accordingly let it be listed for admission in due course. Meanwhile respondents should file counter affidavit. It is clarified that the finalization of the pension etc. will not be held up on account of pendency of this case which may be provisionally fixed and also paid to the petitioner without prejudice to the right and contention of the parties, subject to result of this case. “ 8 As a matter of fact when this Court did not allow the prayer for full and final payment of post retirement benefit and had only directed for fixation and payment of pension provisionally by keeping the writ application pending for detailed hearing, the petitioner had filed another writ petition, C.W.J.C. No. 13292 of 2002, wherein a prayer was made for payment of retirement benefits to the following effect. :- “That the present application is for issuance of a writ in the nature of writ of mandamus directing the respondents to pay the pension to the petitioner along with gratuity, leave salary, provident fund, group insurance which is due to the petitioner and other legal dues payable to the petitioner alongwith 18% interest as the petitioner’s post retiral benefit has not been settled till date and no departmental proceeding or any criminal case is pending against the petitioner while he was working as government servant. The petitioner has been superannuated from service with effect from 31.12.2000 but even after several representations and also one order passed by this Hon’ble Court the petitioner has not been paid his post retiral dues. And/or pass such other order or orders as your Lordships may think fit and proper.” When the second case was placed before a bench of this court on 10.02.2003, it had passed the following order : - “Heard learned counsel for the parties. The result of the present writ petition prima facie appears to be substantially dependent on the result of C.W.J.C. No. 5662 of 2002 and pending in this Court. In that view of the matter, let it be placed before the Bench taking up C.W.J.C. No. 5662 of 2002, being the 9 main matter, after obtaining permission from Hon’ble the Chief Justice. Let this case go out of my list.” Thus when the petitioner could not get any relief for payment of his retirement benefit even in his aforesaid writ petition he had filed a third case, this time a contempt application on 04.04.2003 being M.J.C. No. 534 of 2003 for the following relief : - “That the present application is for initiating a contempt of court proceeding against the concerned opposite parties for deliberately and willfully violating the order dated 21.5.2002 passed by this Hon’ble Court in C.W.J.C. No. 5662/2002 by Hon’ble Mr. Justice S.N. Jha by which this Hon’ble Court has directed/clarified that the finalization of the provisional pension etc. will not be held up on account of pendency of this case which may be provisionally fixed and also paid to the petitioner. But inspite of clear direction of this Hon’ble Court, more than 10 months have been passed, till date neither the pension of the petitioner has provisionally been fixed nor he has been paid a single penny as his post retiral benefits and due to that the petitioner who is a old man is suffering from financial hardship due to enaction and malafide intention of the concerned opposite parties. And after return of the rule, the concerned opposite parties be accordingly punished for violating the order of this Hon’ble Court.” This Court however in course of hearing the contempt application, M.J.C. No. 534 of 2003 having found that the said contempt petition arose out of an interim order in C.W.J.C. No. 5662 of 2002 as quoted above, by its order dated 12.01.2005 had directed for the hearing of contempt petition with the main writ application i.e. C.W.J.C. No. 5662 of 2002. From the counter affidavit in C.W.J.C. No. 5662 of 2002 filed in this Court on 18.03.2005 with a copy thereof served on the counsel 10 for the petitioner on 17.03.2005, it however appears that the respondents with a view to comply the interim order dated 21.05.2002 in C.W.J.C. No. 5662 of 2002 directing them to fix and pay pension provisionally to the petitioner had treated the period between 27.5.1992 to 31.12.2000 by sanctioning it as extraordinary leave and thereafter had also paid provisional pension at the rate of Rs. 3988/- per month from the month of January, 2001 and that the Government had also sent a sanction order to the Accountant General for making payment of final pension vide letter dated 11.1.2005. Added to it, the petitioner was also sanctioned the provisional gratuity to the tune of Rs. 1,43,243/- vide cheque No. 335124 dated 14.1.2005. It was also stated therein that the petitioner was paid his leave encashment to the tune of Rs. 43,268/- and the amount of group insurance to the tune of Rs.13369/- as well as final withdrawal of G.P.F to the tune of Rs. 1,99,619/- vide authority slip issued by the District Provident Fund Officer dated 30.7.2003 and dated 11.4.2004. The petitioner thus became aware of all the payment of post retirement benefit in the counter affidavit filed by the respondents in C.W.J.C. No. 5662 of 2002 on or before 17.3.2005 and thereafter had filed this writ application on 6.7.2005 claiming the post retirement benefit by seeking the relief of refixation of his pay on the ground of his being entitled to promotion for the super-time scale of pay on the post of Basic Health inspector and for this purpose he came out with the ingenious idea that he must be given such benefit on the basis of his date of first appointment on the post of Malaria Inspector, i.e, on 28.7.1960. While doing so the petitioner conveniently suppressed the facts with regard to pendency of C.W.J.C. No. 5662 of 2002, C.W.J.C. no. 13292 of 2002 and M.J.C. No. 534 of 2003 which in the opinion of this Court are material suppression of 11 fact and are sufficient to hold that the petitioner has not approached this Court with clean hands while filing this writ application in as much as in all the three cases the issue of payment of his retirement benefits was also subjudice. It thus appears to this court that the petitioner is a veteran litigant and has moved this Court times without number as would be apparent from the order of this court dated 7.8.1995 in C.W.J.C.No.2656 of 1995 wherein claim of the petitioner for payment of his salary with effect from 2.5.1992 was remitted to the Director-in-Chief of the Health Services. The petitioner again moved this Court against the order of his transfer dated 2.3.1996 in C.W.J.C. No. 9909 of 1997 which was dismissed by Division Bench holding that the order of transfer of the petitioner was passed by the competent authority and that the petitioner had also not complied the order of transfer dated 18.12.1989. It is a matter of record that despite direction given by a Division Bench of this Court in its order dated 3.11.1998 in C.W.J.C. No. 9909 of 1997 to join his post of transfer forthwith the petitioner did not choose to comply the order and had reached on the age of superannuation on 30.12.2000 and on account of which a stand was taken by him in the Supreme Court in Civil Appeal No. 4676 of 1999 disposed of on 27.11.2001 that as he had already retired from service, no useful order can be made in regard to the question of his transfer and had confined his claim for payment of arrear of salary and/or other emoluments, if any. The Supreme Court, in fact, did not interfere with the order of the Division Bench and the Civil Appeal filed by the petitioner was disposed of on 27.11.2001 by observing that it would be appropriate for the petitioner to make a representation to the Government within a period of one month and the Government was directed to dispose of the same within a period of three 12 months from the date of receipt of the representation by also taking into consideration whether there was any requirement for modification in regard to payment of salary and pension or on account of his remaining absent from the duty between 27.5.1992 to 31.12.2000. It was this order of the Supreme Court dated 27.11.2001 which was complied by the State Government when the Commissioner-Cum –Secretary of the Health Department had passed order dated 9.3.2002 denying the petitioner entire payment for the period of his absence between 27.5.1992 to 31.12.2000 by treating it to be extraordinary leave which led to filing of C.W.J.C. No. 5662 of 2002 followed by C.W.J.C. No. 13292 of 2002 and M.J.C. No. 534 of 2003. Thus the manner in which the petitioner has suppressed the material facts with regard to his filing two writ petitions and a contempt petition while filing this writ application though the same Advocate, who had filed this writ application and C.W.J.C. No. 5662 of 2002, C.W.J.C. No. 13292 of 2002 and M.J.C. No. 534 of 2003 would leave no doubt in the mind of this court that he had deliberately suppressed the material fact for getting more amount of retirement benefit beyond what was already paid to him in view of the interim order of this court dated 21.5.2002 in C.W.J.C. No. 5662 of 2002. His such conduct by itself would therefore disentitle him to avail the remedy of extraordinary jurisdiction under Article 226 of the Constitution as was held by the Apex Court in the case of Agricultural & Process Food Products V. Oswal Agro Furance reported in AIR 1996 SC 1947, Union of India V. Muneesh Suneja reported in AIR 2001 SC 854, All India State Bank Officers Federation V. Union of India reported in 1990 Suppl. SCC 336, Suraj Bhan V. Bharat Singh reported in AIR 1990 SC 753 and G. Narayanaswamy V. Government of Karnataka reported in AIR 1991 13 SC 1726. This Court in fact would also not approve the conduct of the Counsel who have filed and pressed the present writ application despite being aware of the pendency of the writ application being CWJC No. 5662/2002, CWJC No. 13292/2002 and MJC No. 534/2003 in all of which the issue of retiral benefit of the petitioner was also under consideration. The facts mentioned above go to show that the same Counsel who has been appearing in all these four cases has taken extra interest for his client i.e. the petitioner and tapped every forum simultaneously and exhausted all the remedies at one stroke. The conduct of the Counsel for the petitioner as well as the petitioner in approaching this Court for getting retirement benefit of the petitioner paid without mentioning relevant and material particulars is highly reprehensible. The Counsel for the petitioner ought not to have been the party for the contemptuous act committed by the petitioner. The Counsel is expected only to give legal advice. He cannot be expected to act in such a way in order to get some order or other in some way or the other by which are very much known to him. This conduct on the part of the petitioner as well as the Counsel would not only injure the other party in litigation but also would cause most mischievous consequence to administration of justice. This would certainly be termed as an absolute abuse of Court’s process. It has been held in Wright Vs. Bennet 1948 (1) All E.R. 227 taking all successive actions covering same ground and litigating over the same question is normally an act of abuse of the process of the Court. Filing of any petition in any Court of law by suppression of facts exposes the intention of the party concerned in perverting the course of justice. Anyone who may be a client or a Counsel, who makes an attempt to impede 14 or undermine or obstruct the free flow of the holy stream of justice by resorting to the filing