High Court Of Judicature At Patna vs Madan Mohan Prasad & Ors

3. The respondent No.1 was appointed to the Bihar Judicial Service as Munsif at Hajipur on January 13, 1955. On May 9, 1970, High Court of Patna recommended to the State Government the dismissal of respondent No.1 from service. On the basis of recommendation made by the High Court, the State Government issued a Notification dated January 15, 1972, dismissing the respondent No.1 from service.

Thereupon the respondent No.1 filed W.P. No.121 of 1972 under Article 32 of the Constitution challenging his dismissal from service before this Court. The petition filed by the respondent No.1 was allowed vide judgment dated February 23, 1972 on the ground that the termination of service was stigmatic and was ordered without holding an enquiry. It may be 3 mentioned that judgment of this Court rendered in the petition filed by the respondent No.1 is reported in (1973) 4 SCC 166. In view of the above mentioned judgment of this Court, the respondent No.1 was reinstated in service. However, he was suspended from service on April 12, 1974 and departmental proceedings were initiated against him. Suspension order was challenged by him by filing CWJC No. 820 of 1974 and initiation of departmental proceedings was challenged by filing CWJC No. 593 of 1975 in the High Court of Patna. Both the writ petitions were dismissed in the year 1977 by the High Court. Thereupon, he had filed SLP (C) No.4344 of 1977 challenging dismissal of writ petition filed against suspension order and SLP (C) No. 4345 of 1977 challenging the decision in CWJC No. 593 of 1975 by which his prayer to set aside departmental proceedings was rejected.

During the pendency of above numbered two SLPs another Notification dated January 30, 1978 was issued by the High Court suspending him from 4 service. On March 01, 1978 this Court admitted both these Special Leave Petitions which were then converted into C.A. No.525 of 1978 and 526 of 1978 respectively. This Court by judgment dated 24.09.1981 directed the High Court of Patna to withdraw the suspension order dated January 30, 1978 passed against the respondent No.1 as well as departmental proceedings initiated against him and granted liberty to the High Court to amend the charge sheet before initiating departmental proceedings and to consider the question of his suspension from service afresh. By Notification dated October 12, 1981, the respondent No.1 was posted at Sasaram as Additional Munsif, which is the lowest post in judiciary and which post he had joined initially on January 13, 1955. Another Notification was issued on December 10, 1981 posting him at Darbhanga as Additional Munsif. Meanwhile he made various representations to release his dues and to keep one post of appropriate rank reserved for him. He did not receive any reply to 5 those representations. Therefore, he filed CWJC No.1924 of 1982 on May 6, 1982 for quashing Notification dated December 10, 1981 issued by High Court posting him as Additional Munsif in Darbhanga and prayed to direct the High Court on its administrative side to give him promotions from the dates when his juniors named in the petition were promoted during the period 1970 to 1981, with all increments and other benefits. He also prayed to direct the High Court to issue a revised notification incorporating therein all the promotions to be given to him from due dates and to post him as a District Judge. After necessary amendment in the charge sheet, fresh departmental proceedings were initiated against him on August 19, 1982. No reply was filed by the respondent No.1 before the Inquiry Officer. After inquiry, the Inquiry Officer submitted his report dated December 10, 1982 holding that the charges levelled against him were proved. Thereupon, notice dated January 12, 1983 with copy of the report of Inquiry 6 Officer was served upon him calling upon him to show cause as to why he should not be removed from service. The respondent No.1 did not file reply to the show cause notice.

4. When CWJC No.1924 of 1982 had come up for hearing before the Court on February 24, 1983, the learned Additional Advocate General had informed the Court that the departmental proceedings had concluded and second show cause notice was served upon him, calling upon him to show cause as to why he should not be removed from service. Thereupon, the court had expressed the view that the Writ Petition had become infructuous and dismissed the same accordingly by order dated February 24, 1983.

After receipt of show cause notice dated January 12, 1983 the respondent No.1 instituted CWJC No. 2959 of 1984 to quash (i) notification dated August 19, 1982 issued by High Court initiating departmental proceedings against him (ii) inquiry report dated December 10, 1982 forwarded 7 by the District Judge Darbhanga and (3) notice dated January 12, 1983 calling upon him to show cause as to why he should not be removed from service.

6. The grievance of the respondent No.1 was that his claim for promotion from the various dates when his immediate juniors were promoted was not considered by the High Court nor was he paid benefits. Under the circumstances, he had approached this Court by filing SLP (C) No. 8923 of 1983 against order dated February 24, 1983 dismissing CWJC No. 1924 of 1982, as having become infructuous. The said SLP was listed for hearing on August 30, 1983. It was brought to the notice of this Court that second show cause notice had been issued to the respondent No.1 and that the respondent No.1 was to 9 retire from service on August 31, 1983 i.e. the next day when SLP (C) No. 8923 of 2003 was taken up for hearing on August 30, 1983. The respondent No.1 had thereupon stated before the Court that the SLP had become infructuous and sought permission to withdraw the same. In view of the statement of the respondent No.1, the SLP was disposed of as withdrawn by order dated August 30, 1983.

Thus, there is no manner of doubt that order dated February 24, 1983 passed by the Division Bench of Patna High Court in CWJC No. 1924 of 1983 refusing to grant relief of promotion with deemed dates and monetary benefits had attained finality when SLP (C) No. 8923 of 1983 filed against the said order was unconditionally withdrawn by the respondent No.1 on August 30, 1983.

8. The above quoted order makes it evident that the special leave petition which was against order dated February 26, 1985 passed by the Division Bench of High Court in CWJC No. 2059 of 1984 was dismissed. The learned counsel for the petitioner states at the bar that the respondent No.1 was a Judicial Officer and therefore, when it was brought to the notice of this Court that his pension had been forfeited permanently, this Court had 11 shown compassion, concern, sympathy and clemency to the respondent No.1 and had directed the State of Bihar to restore pension payable to him and pay arrears due on the basis that he had superannuated from service from the date of superannuation, and a direction was given to pay him Provident Fund, Gratuity and leave salary as might be admissible to him on superannuation.

9. According to the respondent No.1 his pension matter was finalized on July 14, 1987. After finalization of pension matter, he filed CWJC No. 4862 of 1987 in the High Court for lawful claims as were given to his juniors. The said petition was disposed of on November 9, 1989 with a direction to the respondent No.1 to submit representation to the High Court on its administrative side for legitimate claims as were given to his juniors. Pursuant to the 12 above mentioned direction, the respondent No.1 had submitted representation dated February 12, 1990. The said representation was considered by the Standing Committee of the Patna High Court and was rejected on March 30, 1990.

10.Again respondent No.1 had sent representation dated April 30, 1990 repeating his prayer to grant him his lawful claims as were given to his juniors. The same was rejected by High Court on its Administrative side vide order dated May 25, 1990. The respondent No.1 had made third representation dated June 23, 1990 to the same effect which was rejected by the High Court vide communication dated September 17, 1990. Thereupon the respondent No.1 had filed CWJC No. 6538 of 1990 in the High Court of Patna. The Division Bench hearing the same has directed the appellant High Court to consider the case of promotion of the respondent No.1 as also consequential benefit in accordance with law vide 13 judgment dated June 27, 2008 which has given rise to the instant appeal.

12.The contention advanced on behalf of the appellant that writ petition was filed by the respondent No.1 on November 10, 1990 i.e. seven years after he had superannuated from service, and therefore, writ petition should have been dismissed on the ground of delay and latches cannot be accepted. The impugned judgment nowhere shows that such a point was argued by the appellant before the High Court. No grievance is made in the memorandum of SLP, that point regarding delay and latches was argued before the High Court but the same was not dealt with by the High Court when impugned judgment was delivered. Further from the facts noticed, it becomes evident that by order dated November 9, 14 1989, passed in CWJC No. 4862 of 1987, the High Court had directed the respondent No.1 to submit representation to the High Court on its administrative side claiming benefits which were given to his juniors but were denied to him, pursuant to which the respondent No.1 had filed last representation on June 23, 1990 which was rejected by High Court on September 17, 1990. The question of delay and latches will have to be considered from the communication dated September 17, 1990 by which claim made by the respondent No.1 to give him benefits which were given to his juniors was rejected and not from the date of superannuation. Thus, the respondent No.1 is not liable to be non-suited on the ground of delay and latches in filing writ petition after his superannuation from service.

However, there is no manner of doubt that the respondent No.1 is claiming promotions to different cadres from the post of Additional Munsif as well as promotional benefits from the due dates as were given to his juniors in 15 the years 1971, 1974 and 1978. In C.W.J.C. No. 6538 of 1990 from which the present appeal arises the petitioner had claimed following relief in paragraph 20 of the writ petition :

17. At this stage, it would be relevant to notice a Constitution Bench judgment of this Court in M/s. Ram Lal Kapur and Sons (P) Ltd. vs. Ram Nath and others AIR 1963 SC 1060. In the said case the first respondent Ram Nath was owner of a building in Delhi of which the 22 appellant company was one of the tenants. The appellant moved the Rent Controller, Delhi under Section 7A of the Delhi and Ajmer Rent Control Act, 1947 for fixation of the fair rent of the portion in its occupation. The Rent Controller, Delhi computed the fair rent for the entire building at Rs.565/- per month and the fair rent payable by the appellant at Rs.146/- per month. The respondent landlord preferred an appeal against the order of the Rent Controller to the learned District Judge, Delhi, but the appeal was dismissed. Thereafter, he moved the High Court of the Punjab under Article 227 of the Constitution challenging the correctness and propriety of every finding by the Rent Controller and of the District Judge on appeal.

However, a preliminary objection to the hearing of the appeal was raised by the learned counsel for the landlord respondent. His submission was that the special leave which was granted by this Court ex-parte should be revoked as having been improperly obtained. The judgment of the learned single Judge to appeal from which the leave was granted was dated January 5, 1955 and the application to this Court seeking leave was made on January 5, 1959, i.e., after a lapse of four years. It was obvious that it was a petition which had been filed far beyond the period of 25 limitation prescribed by the Rules of this Court. The learned counsel for the respondent urged that there were no sufficient grounds for condoning that long delay and that this Court should, therefore, revoke the leave. The Constitution Bench of this Court was not disposed to accede to this request for revoking the leave. The learned counsel had drawn attention of the Constitution Bench to a few decisions in which leave granted ex-parte was revoked at the stage of hearing of the appeal on an objection raised by the respondent. However, the Constitution Bench did not consider that the facts of the appeal before it was bearing any analogy to those in the decisions cited. The Five Judge Constitution Bench was of the opinion that in fact the grant of special leave in the circumstances of the case merely served to shorten the proceedings and this Court had acceded to the petition for leave obviously because the appeals in this Court from judgments in the cases where view was taken that Section 7A was unconstitutional, were getting ready for hearing and there was some advantage if the appellant was in a position to 26 intervene in those other appeals. However, the Constitution Bench made following pertinent observations in paragraph 9 of the reported decision. They are as under: -

21. Coming to the merits of the matter this Court finds that earlier the respondent No.1 had filed CWJC No. 1924 of 1982 in the High Court of Patna claiming promotions from retrospective dates with all claims, benefits and increments in various cadres from various dates as and when they had accrued and were given to his immediate juniors. His prayer was to direct the High Court on its administrative side to issue a revised notification incorporating all the promotions to which he was entitled to from various dates as they had accrued when his immediate juniors were promoted and to post him as District Judge. His another prayer in the writ petition was to quash 33 Notification dated December 10, 1981 by which he was posted as Additional Munsif in Darbhanga. The writ petition was dismissed by the High Court vide order dated February 24, 1983 as having become infructuous. Feeling aggrieved, the respondent No.1 had filed SLP (C) No.8923 of 1983 in this Court which was dismissed as withdrawn by order dated August 30, 1983. Thus the order dated February 24, 1983 passed in CWJC No. 1924 of 1982 had attained finality when SLP filed against the said order was dismissed as withdrawn. There is no manner of doubt that the order dated February 24, 1983 passed in CWJC No. 1924 of 1982 refusing to grant promotions with retrospective dates read with order passed by this Court in SLP (C) No. 8923 of 1983, would operate as res judicata.

It would thus be seen that only point which the learned Judge considered and on which the revision petition of the landlord respondent was allowed no longer subsisted and hence the appellant was entitled to have the appeal allowed. As the learned single Judge did not consider the other objections raised by the first respondent to the order of the Rent Controller fixing the standard fair rent payable by the appellant, the appeal had to be remanded to the High Court for being dealt with according to law.

Thus, this Court does not find any substance in the contention raised by the respondent No. 1 relating to condonation of delay, which was caused in filing the special leave petition and, therefore, the same is hereby rejected.

This court had never directed that the High Court of Patna on its administrative side should consider the claim of the respondent No.1 regarding deemed promotions.

24. In view of the above discussion, this Court is of the opinion that the High Court has erred in law in directing the original respondent No.2 i.e. present appellant to consider the case of promotion of respondent No.1 as also the consequential benefits in accordance with law by the impugned judgment. Thus the impugned judgment is liable to be set aside.

For the foregoing reasons the appeal succeeds. The judgment dated June 27, 2008 rendered by the Division Bench of High Court of Judicature at Patna in CWJC No. 6578 of 1990, directing the present appellant to consider the case of respondent No.1 for promotion as also consequential benefits, is hereby set aside. The appeal accordingly stands disposed of.