Jammu & Kashmir High Court - Srinagar Bench
Asif Hamid Khan vs Union Public Service Commission And Ors on 2 June, 2016
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR SWP No. 1768 of 2015 Asif Hamid Khan Petitioners Union Public Service Commission and Ors. Respondents !Mr. Z. A. Shah, Sr. Advocate ^Mr. N. H. Shah, AAG. Honble Mr. Justice Muzaffar Hussain Attar, Judge Date: 02/06/2016 : J U D G M E N T :
(Oral) In this another round of litigation the petitioner has prayed for issuance of writ of certiorari for quashing Government order no. 1036-GAD of 2015 dated 30th July, 2015. It is also prayed that by issuance of an appropriate writ/direction/order including one in the nature of writ of mandamus, Official respondents be directed to induct petitioner in the Kashmir Administrative Service (KAS) from 31st August, 2000 and Government order no. 08-GAD/2005 date 4th January, 2005 be accordingly directed to be given effect to the extent of petitioner. It is also prayed that by issuance of an appropriate writ/order/direction including a writ in the nature of certiorari the recommendations made by the State Government/Selection Committee with regard to induction of the Officers in Administrative Services be quashed.
The controversy raised by issuance of impugned consideration order in essence stands settled by the Court vides its decision dated 31st March, 2015, passed in SWP No. 946/2006 connected with SWP No. 805/2008. The Court in the aforesaid decision dated 31st March, 2015 has taken cognizance of all the facts relevant even for the disposal of this petition. All the issues raised by the parties in their respective pleadings stand considered and settled by the Court in terms of the aforesaid Judgment. The Court in terms of Paragraph 35 of the said decision allowed both the writ petitions and quashed Order no. 1740-GAD of 2009 dated 15th December, 2009. Paragraph 35 of the said decision is taken note of:
For the reasons discussed, Writ petition nos 946/2006 & 805/2008 are allowed and the Order no. 1740-GAD of 2009 dated 15th December, 2009, is quashed. The respondents by a writ of mandamus are commanded to accord consideration to petitioners appointment to the Service under Technical quota in terms of Rule 5(1)(c) J&K Administrative Service Rules w.e.f. 31st August, 2000 i.e. the date when his colleagues were appointed to the service. Let Establishment-cum-Selection Committee be convened within two weeks from the date of receipt of copy of order. The Establishment-cum-Selection Committee shall accord consideration to petitioners claim having regard to APRs for the period 1995 to 1997 admittedly received by respondents and take a decision in the matter within two weeks thereafter. The respondents are expected to be alive to the fact that justice has eluded petitioner for last 15 years, and therefore they need to adhere to above time frame. Once the consideration is accorded and decision taken, petitioners seniority shall be re-fixed in light of such decision after hearing officer(s), if any adversely affected by such re-fixation.
Petitioner shall be granted all the service benefits due to him, like promotion etc. that petitioner would have earned in wake of his appointment to the Service under Technical quota w.e.f. 31.08.2000. In the facts and circumstances of this case this order shall be deemed to be in-continuation to the aforesaid Court order passed in earlier two writ petitions. As already stated the issues raised in the respective pleadings by the parties have been considered, discussed, deliberated upon and findings recorded which bind the parties and parties cannot re-agitate or re-open those settled issues, inasmuch as, both the parties accepted the aforesaid decision of the Court having not challenged the same in appeal.
The respondent-State has accepted the aforesaid decision of the Court, inasmuch as, it has acted upon it and has passed the impugned order. While passing impugned order the respondent-State has deviated from the findings recorded in the earlier round of litigation and has denied the relief to the petitioner by raising the grounds which were never taken up in the earlier round of litigation. In law it is declared that such a ground was never in existence and could not be made basis for defeating the Judgment of the Court which has attained finality.
In support of this reasoning learned counsel for the petitioner has referred to the Judgment of Honble the Supreme Court 1986 1 SCC. Learned counsel referred to Para 20 of the said Judgment which is taken note of:
So far as the first reason is concerned, the High Court in our opinion was not right in holding that the earlier Judgment would not operate as res judicata as one of the grounds taken in the present petition was conspicuous by its absence in the earlier petition. Explanation IV to Section 11 CPC provides that any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. An adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had it decided as incidental to or essentially connected with the subject matter of the litigation and every matter coming within the legitimate purview of the original action both in respect of the matters of claim or defence. The principle underlying Explanation IV is that where the parties have had an opportunity of controverting a matter that should be taken to be the same thing as if he matter had been actually controverted and decided. It is true that where a matter has been constructively in issue it cannot be said to have been actually heard and decided. It could not be deemed to have been heard and decided. The first reason, therefore, has absolutely no force. Assuming but not admitting that respondent-State could take a ground which was not taken in the first round of litigation but for that they have to satisfy the Court that despite due diligence shown by them that ground was not traceable from the records. It is not the case set up by the respondents either in the consideration order or in their reply affidavit.
Respondent-State is custodian of the entire record and it has to be not only presumed but accepted that while filing their pleadings in the earlier round of litigation they considered the entire record, the material and grounds available with them to resist the claim of the petitioner.
Now at post ad litim and post decisional stage grounds are urged that the petitioner was, neither recommended by his parent department for being accorded consideration to his appointment under technical quota and his APRs were not forwarded to General Administrative Department (GAD) at the relevant point of time and has also did not exercise his willingness to the terms and conditions. This stand taken by the respondents cannot be accepted by the Court, as it has the effect of defeating earlier Judgment of the Court. It appears that in order to defeat the Judgment of the Court the respondents have carved out these grounds. If in the wisdom of the official respondents, these were the appropriate grounds for rejecting the claim of the petitioner then these grounds ought to have been raised in the earlier round of litigation.
These issues have been raised only to defeat the Judgment of the Court which has attained finality. The court is duty bound to ensure that Judgments rendered by it, which are not challenged, are implemented and the authority which has to implement the said Judgment is not permitted to wriggle out of the impact of the Court Judgment by either manufacturing or projecting a new ground. The Court Judgments which have otherwise attained finality cannot be allowed to be rendered inconsequential and incapable of implementation. Any uncouth attempt by any authority to defeat the Court Judgment cannot be accepted.
In the facts and circumstances of this case everything is settled in terms of the earlier Court Judgment. The Court Judgment will not be permitted to be defeated by projecting a new ground. It is declared that all the available grounds were taken in the first round of litigation and stand settled.
For the above stated reasons impugned order is rendered illegal.
This writ petition accordingly in view of the discussion made in this order is disposed of in the following manner:
By issuance of writ of certiorari order dated 1036-GAD of 2015 dated 30th July, 2015 passed by respondent no. 4 is quashed. The Official respondents are directed to comply with the Judgment dated 31st March, 2015, passed in SWP No. 946/2006 and SWP No. 805/2008 and give all the consequential benefits to the petitioner.
By issuance of writ of mandamus the Official respondents are further directed to consider the claim of the petitioner for his induction in Indian Administrative Services (IAS) in accordance with the mandate contained in the earlier Judgment and his name shall be recommended along with other selected candidates in accordance with the decision of the Court dated 31st March, 2015.
Disposed of.
(Muzaffar Hussain Attar) Judge SRINAGAR 02/06/2016 Sakeena