Patna High Court
Jitendra Prasad Singh And Ors. vs The Bihar State Housing Board And Ors. on 4 March, 1992
Equivalent citations: 1992(2)BLJR864
JUDGMENT Radha Mohan Prasad, J.
1. In this application the petitioners, three in number, have prayed for quashing of the order dated 5-7-1991, as contained in Annexure-1 to the writ application issued by the Secretary, Bihar State Housing Board (Respondent No. 2) and further, to restrain respondent Nos. 1 to 3 from giving effect to the said order and/or from changing the seniority of the petitioners in the gradation list of the junior Engineers of the Bihar State Housing Board (hereinafter referred to as 'the Board') published on 30-6-1983. By Annexure-1 respondent No. 4 had been granted extraordinary leave purporting to be under Rule 180 of the Bihar Service Code which, according to the Board, is applicable mutatis mutandis to the to the employees of the Board as well for the period from 7-1-1974 to 31-7-1974 i.e. 206 days,
2. The case of the petitioners is that they were appointed as Junior Engineers in the Board by the order dated 19-12-1973 in pursuance of the advertisement dated 14-4-1973. On 25-11-1981, a tentative gradation list was issued by the Board which was challenged by the petitioners and some other Junior Engineers in C.W.J.C. No. 2033 of 1982. In the said gradation list respondent No. 4 had been placed at serial No. 54 and he never challenged his placement in the gradation list. Aforesaid writ application was admitted and during its pendency the Board had issued a final gradation list of Junior Engineers on 30-6-1988, the validity of which was challenged by some of the Junior Engineers, including respondent No. 4, in this Court, All the writ petitions were admitted and finally disposed of by judgment dated 4-10-1989, the relevant photostat copy of which has been annexed as Annexure-8 to the writ petition, and the same is also reported in 1990 (1) PLJR 357, Rajeshwar Pd. Roy v. Bihar State Housing Board. The Court has affirmed the seniority list issued by the Board on 30-6-1983 and all the writ petitions, including that of respondent No. 4, were dismissed, except one filed by Radha Mohan Sharma which was allowed in part. Against the said judgment L. P. A No. 86 of 1989 was filed by respondent No. 4 in this Court which was also heard and dismissed on 15-1-1990. Respondent No. 4 filed special leave petition bearing S.L.P. (Civil) No. 13278 of 1990 before the Supreme Court against the aforesaid order passed in L. P. A. No. 86 of 1989 which was also dismissed by the Supreme Court on 19-11-1990. A photo copy of the order of the Supreme Court has been annexed as Annexure-7 to the writ application. Further, the case of the petitioners, is that respondent No. 4 proceeded on unauthorised leave from 7-1-1974 to 31-7-1974 on account of which his appointment was cancelled by the Board which has been affirmed by this Court in the aforementioned judgment dated 4-10-1989.
3. A counter-affidavit has been filed on behalf of respondent Nos. 1 to 3 as also on behalf of respondent No. 4. A supplementary counter-affidavit has also been filed on behalf of respondent No. 4. Affidavits in reply to the counter-affidavits have also been filed on behalf of the petitioners.
4. The case of respondent No. 4 is that he was appointed as Junior Engineer on 19-12-1973 in the Board where he joined his duties on 31-12-1973. Respondent No. 4 has claimed to have filed application on 4-9-1974 for grant of casual leave from 7-1-1974 to 12-1-1974 which was later extended up to 31-7-1974 due his illness. Respondent No. 4 had joined his duties after recovery from illness on 1-8-1975. According to him, he also submitted medical certificate issued by the Civil Assistant Surgeon but the Executive Engineer, in his letter to the Board, contained in Annexure-P, suppressed the same. His further case is that the Secretary of the Board has confirmed, vide his letter dated 10-8-1975, that the petition for leave filed by him was correct and respondent No. 4 was directed to submit medical certificate. On 15-8-1976, the Board cancelled the appointment of respondent No. 4 and reappointed him. Respondent No. 4 has claimed that he filed a representation against the cancellation of his appointment on 10-2-1976 itself, a true copy of which has been annexed as Annexure-H to the supplementary counter-affidavit filed on behalf of respondent No. 4. Thereafter he also filed representations before the Secretary. He has further stated that on 3-2-1982 he filed representation challenging his placement in the above-mentioned tentative gradation list which was made final on 30-6-1983 even without disposing of his representation. Against the said final gradation list he is said to have filed representation challenging his placement in the case. He has further asserted that on 22-3-1990 he filed representation before the Managing Director of the Board for grant of leave and for modification of the gradation list which was rejected on 14-6-1990 in the light of the judgment passed in C.W.J.C. No. 5939 of 1987. Thereafter legal notice was sent by him for sanctioning extraordinary leave from 7-1-1974 to 31-7-1974. It is alleged that on 16-10-1990 the Board issued a letter to the Executive Engineer, Jamshedpur directing him to send the medical certificate filed by respondent No. 4 on 1-8-1974 for sanction of the leave. On 22-11-1990, the Executive Engineer sent the medical certificate by letter No. 2414, dated 22-11 1990, a photocopy of which has been annexed as Annexure-F at Page 96 of the brief, whereafter on 6-7-1981 extraordinary leave was sanctioned by the impugned order by accepting the joining report on 1-8-1974 and also cancelling the order of reappointment dated 19-2-1975 against which the present writ application has been filed. However, there is no dispute that L. P. A. was dismissed by this Court against C.W.J.C. No. 5939 of 1987 and the special leave petition was also dismissed by the Supreme Court against the same on 19-11-1990.
5. Mr. Man Mohan, learned Counsel appearing for the petitioners, has submitted that besides the impugned order (Annexure-1) being arbitrary, mala fide and violative of the principle of natural justice, the same is in the teeth of the judgment of this Court passed in C. W. J.C. No. 5939 of 1987 against which S.L.P. was also dismissed by the Supreme Court.
6. Mr. Shyama Prasad Mukherjee, learned Senior Counsel appearing for respondent No. 4, on the other hand, has submitted that the earlier writ petition filed on behalf of respondent No. 4 in this Court was only with respect to the seniority and respondent had not raised his grievance against the order of cancellation of his appointment as his representation was still pending with the Board in that regard. Further, he has made to challenge the order of cancellation of his appointment in this writ application in the category or respondent. The another submission that has been made by him is that there is no arbitrariness inasmuch as the representation filed by respondent No. 4 was not considered at the time of cancellation of his appointment which has now been allowed in order to undo the injustice caused to him. There were sufficient materials to grant extraordinary leave to respondent No. 4. According to him, no prejudice has been caused to the petitioners.
7. So far as the first submission is concerned, there is nothing in the judgment of this Court to indicate that only the question of his seniority was involved. In Paragraph 82, this Court in the judgment passed in C.W.J.C. No. 5939 of 1987 has dealt with the order of cancellation of appointment of respondent No. 4 on account of his proceeding on unauthorised leave. In the said Paragraph 82, it has been specifically mentioned that the Board had treated the petitioner as a fresh appointee on 12-3-1975 and placed him in the gradation list accordingly. Further, the grievance of the petitioner respondent No. 4 as was raised has also been mentioned. In the last sentence of the said Paragraph it is mentioned that the petitioner's grievance is that the cancellation of his service by Annexure-5 was illegal as no proceeding in that behalf had been initiated and, therefore, his seniority must be reckoned from 31-12-1973 i.e., from the date of his initial joining at Jamshedpur. In Paragraph 5 of the aforementioned judgment, the Court has also noticed the submission of the learned Counsel for the petitioner (respondent No. 4 in the present case) that no proceeding for cancellation of his service having been initiated the Board, erred in law in cancelling his appointment and after considering all these aspects Court held that having taken the benefit of Compassionate appointment it does not lie in the mouth, of the petitioner of that case to say that the cancellation of his appointment in February, 1975 was illegal and unwarranted. Further, in Paragraph 87 his Lordship held that the petitioner took the appointment be granted on 10-2-1975 by Annexure-5, lie must be deemed to have cancelling in his fresh appointment, As regards the tentative gradation list his Lordship has found that the petitioner never agitated against it and even when the final gradation list prepared in loss he woke up in 1987 to challenge his placement in the gradation list after reseing that several others had moved this Court, The Court also did not find any fault with Annexure cancelling the appointment of 1973 of the petitioner and appointing him afresh in February, 1975.
8. Learned Counsel for the petitioners with respect to the above has submitted that the Board and the petitioner, both being party in the aforesaid writ application, cannot change their position by issuing the impugned order. According to him, it would be hit by the principle of constructive resjudicata. In reply learned Counsel for respondent No. 4 has submitted that res judicata is a rule of procedure and not a substantive law and moreover here in the present writ application the respondent had not approached this Court for any direction. In fact, the employer has full right to undo the injustice caused to its employee in the past and the same cannot be curtailed because of a judgment of the Court. It was also contended by the learned Counsel appearing for respondent No. 4 that the quashing of the impugned order will amount to restoring an illegal order which is not permissible in view of the decision of this Court reported in 1978 BBCJ 575 Hari Prasad v. Additional Collector. I do not feel necessary to go into and examine those submissions of the learned Counsel for respondent No. 4, as the matter in issue already stood concluded by the earlier decision of this Court.
9. In the latest decision of the Supreme Court , Supreme Court Employees Welfare Association v. Union of India, it has been held as follows:
The doctrine of res judicata is a universal doctrine laying down the finality of litigation between the parties. When a particular decision has become final and binding between the parties, it cannot be set at naught on the ground that such a decision is violative of Article 14 of the Constitution. So far as the parties are concerned, they will always be bound by the said decision. In other words, either of the parties will not be permitted to reopen the issue decided by such decision on the ground that such decision violates the equality clause under the Constitution. There is no question of overruling the provision of Article 14 as contended by the learned Attorney General. The judgment which is binding between the parties and which operates as res judicata between them cannot be said to overrule the provision of Article 14 of the Constitution and even though it may be, to some extent, violative of Article 14 of the Constitution. So far as the Supreme Court employees are concerned in these proceeding the only enquiry to be made is whether the judgment of the Delhi High Court relating to the L. D. C. and the Class IV employees have become final and conclusive between the employees of the Delhi High Court and the Union of India.
It thus follows that applying the principle laid down in the aforesaid decision which is binding, the grievance of respondent No. 4 as against the cancellation of his appointment by order dated 19-2-1975 stands concluded by the aforementioned judgment of this Court and binds the parties and it could not be set at naught on the ground that it would amounts revival of an illegal order which was violative of the principle of natural justice,
10. In fact, if such pleas are allowed to be entertained then the issue once decided by a Court of Law can never attend the finality and by change of administrative set up the authorities may go on reviewing the earlier decisions taken by the predecessors-in-office. In the Supreme Court decision , Workman C.P. Trust v. Board of Trustees, it has been held that if by any judgment or order any matter in issue has been directly and explicitly decided the decision operates as res judicata and bars the trial of an identical issue in a subsequent proceeding between the same parties. Further, it has been held by the Supreme Court that when any matter which might and ought to have been made a ground of defence or attack in a former proceeding but was not so made, then such a matter, in the eye of law, to avoid multiplicity of litigation and to bring about finality, it is deemed to have been constructively in issue and, therefore, is taken as decided.
11. Here, in the present case, as I have already dealt with earlier that this Court had in its decision examined and considered the grievance of respondent No. 4 against the cancellation of his appointment by Annexure-5 and that too on the ground that no proceeding in that behalf was initiated and still his Lordiship did not find any fault with the order cancelling his appointment of 1973 and appointing him afresh in February, 1975. The Court also held that respondent No. 4 had been rightly accorded the position in the gradation list of 1983.
12. Now, in such a situation, in my view, the earlier decision of this Court in C.W.J.C. No. 5939 of 1987 which had become final and binding between the parties cannot be set at naught on any ground whatsoever and by any authority. The parties to the said case will always be bound by the said decision. In other words, either of the parties will not be permitted to reopen the issue decided by such decision on the ground that such decision violates any law or even constitutional provisions.
13. Another submissions which have been advanced by Mr. Mukherjee, learned Senior Counsel appearing for respondent No. 4, was that the faulty implementation can be rectified by the authority and the power of review is permissible even in administrative matters. In support of the said contention he has relied on two decisions , Bal Kishan v. Delhi Administration and Anr. and , R.R. Verma and Ors. v. The Union of India and Ors. It is needless to go into the detailed consideration over these submissions when. I have already held that since the matter relating to the cancellation of the appointment of respondent No. 4 and appointing him afresh by an order passed in February, 1975 and, further, his consequential placement in the final seniority list had become final it was not open to the Board to reopen the same issue and review its earlier decision.
14. Mr. Ram Prasad Bhagat, learned Counsel appearing for the Board, however, tried to show with reference to Annexure-3 that the medical certificate though filed by respondent No. 4 at that time was not made available to the Board and, therefore, the earlier decision to cancel his appointment was taken but later when it was detected that it was not the fault of respondent No. 4 the Board passed a fresh order, as contained in Annexure-1. From perusal of the application of respondent No. 4, it will appear that he did not even mention that he was being treated by a doctor then how could he attach the certificate allegedly granted by the Doctor.
15. As regards the submissions advanced on behalf of respondent No. 4 questioning the validity of the order cancelling his appointment it is not necessary to go into the detailed consideration as it is well-settled that the validity of an order cannot be permitted to be challenged in a writ application as a respondent. In this connection a reference to the Supreme Court decision reported in 1972 SLR 64, State of Assam and mothers v. Raghava Rajgopalachari, may be made, Accordingly, I hold that the order, as contained in Annexure-1 to this writ application, is bad in law and without jurisdiction and is fit to be quashed.
16. In the result, I allow this writ application and quash the order contained in Annexure-1 to the writ application. But, in the facts and circumstances of the case, there will be no order as to costs.