Jharkhand High Court
Kanchan Pandey vs State Of Jharkhand & Ors. on 18 April, 2013
Equivalent citations: 2013 (3) AJR 292
Author: Shree Chandrashekhar
Bench: Shree Chandrashekhar
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 3700 of 2005
(An application under Article 226 of the Constitution of India)
Kanchan Pandey... ... ... Petitioner
Versus
1. The State of Jharkhand
2. Director General of Police, Jharkhand, Ranchi
3. The Inspector General of Police (Wireless)
Headquarters, Ranchi
4. The Deputy Inspector General of Police,
Wireless, Ranchi.
5. The Superintendent of Police, Garhwa
........Respondents
For the Petitioner : Mr. Dr. S. N. Pathak, (seinor counsel)
Mr. Rishikesh Giri, & Birju Thakur,
Advocates
For the Respondents :Mr. Saket Upadhyay, J.C. to A.A.G.
PRESENT
HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
By Court: Aggrieved by order dated 17.2.2004 passed by the
Deputy Inspector General of Police, the petitioner has moved this Court by filing the present writ petition.
2. The brief facts of the case are that, the petitioner was appointed as a Literate Constable (Operation) in the Bihar Police Radio Organization on 17.12.1972 and he was promoted as Assistant Sub-Inspector of Police (Operation) on 22.12.1976. It appears that one Shakti Ranjan Nag was appointed as Literate Constable (Operation) on 14.7.1976. With a view to fill up some posts in Radio Technical Wing in the rank of Assistant Sub-Inspector/Literate Constable from those who were working as A.S.I/ Literate Constable (Operation), option was invited with the following conditions;
"(i) Should pass the aptitude test
(ii) Will have to undergo basic technical course, and 2
(iii) After successful completion of basic course, they will be placed below those A.S.I.,(Technical)/Literate Constable(Technical)) who have already passed basic training prior to other."
3. Both, the petitioner as well as the said Shakti Ranjan Nag passed the aptitude test and accordingly they were sent for basic Grade- III (Technical) course. The petitioner passed the basic Grade-III (Technical) examination on 1.1.1984 and the said Sri Shakti Ranjan Nag passed the basic Grade-III (Technical) examination on 10.5.1983. It appears that on a representation made by the said Sri Shakti Ranjan Nag, his seniority as literate constable was fixed with effect from his initial appointment as Literate Constable(Operation) and he was promoted as Assistant Sub-Inspector of Police(Technical) with effect from 10.5.1983 however, the said order was subsequently stayed by the State Government vide order dated 24.2.1989 which order came to be challenged before the Hon'ble Patna High Court in C.W.J.C. No. 4193 of 1989 by Sri Shakti Ranjan Nag. The writ petition was allowed by judgment and order dated 12.5.1994 and Sri Shakti Ranjan Nag was granted promotion as Assistant Sub-Inspector of Police (Technical) with effect from the date he passed Grade-III examination, that is, with effect from 10.5.1983, as a result of which the petitioner who was about four years senior to Sri Shakti Ranjan Nag became junior to him. The petitioner made several representations and finally moved the High Court in C.W.J.C. no. 3116 of 1999(R) which was disposed of on 12.4.2001 with liberty to the petitioner to pursue his representation filed before the respondents. The petitioner preferred L.P.A. no. 384 of 2001 which was disposed of on 11.7.2001 in the following terms, "After hearing the learned counsel for the parties, we dispose of this appeal and by setting aside the judgment of the learned Single Judge direct the respondents to consider and find out as to whether the case of the appellant - writ petitioner is covered by the aforesaid judgment in C.W.J.C. no.
34193/89 and if it is covered, to consider the question of grant of identical relief to the petitioner-appellant based on his seniority and other considerations relating to grant of such relief. Needful shall be done within four months from today."
4. As the direction of the Hon'ble High Court was not complied with, the petitioner moved in Cont. (C) Case No. 465 of 2002 which was disposed of on 15.7.2002 with a direction to the Respondent-State of Jharkhand and the concerned officers including Director-General of Police, Jharkhand to ensure that the identical, same and similar reliefs/benefits are granted to the petitioner as were given to the said Shakti Ranjan Nag. In compliance of the said direction, by order dated 24.12.2002 the petitioner was granted promotion on the post of Sub-Inspector (Technical) with effect from 1.1.1984. Surprisingly, after about one year the earlier order dated 24.12.2002 was reviewed by the successor Deputy Inspector General of Police by order dated 17.2.2004 which has been challenged by the petitioner in the present writ proceeding.
5. A counter-affidavit has been filed by the respondent no. 4 in which promotion given to Sri Shakti Ranjan Nag has been admitted and it has also been admitted that the petitioner was appointed as a Literate Constable(Operation) about 4 years prior to the said Sri Shakti Ranjan Nag. It has further been stated that on representation of one Sub- Inspector (Techinical) namely, Maheshwar Prasad Singh claiming himself to be senior to the petitioner on the ground that he passed Grade-II (T) examination on 14.3.1980 whereas, the petitioner passed Grade-II (T) examination on 28.9.1989, the matter was referred to Law Department and on the recommendation of the Law Department, the date of the promotion of the petitioner was modified and shifted from 1.1.1984 to 28.9.1989.
6. Heard learned counsel for the parties and perused the documents on record.
47. Dr. S.N. Pathak, learned senior counsel appearing for the petitioner has raised a contention that the order dated 24.12.2002 passed by the Deputy Inspector General of Police granting promotion to the petitioner with effect from 1.1.1984 would not have been reviewed and modified by the successor Deputy Inspector General of Police by the impugned order dated 17.2.2004. The benefit given to similarly situated person namely, Sri Shakti Ranjan Nag was never challenged by the State Government and it has become final. The Inspector General of Police (Modernization and Communication) in his letter dated 4.11.1995 ( Annexure-4) has opined that the petitioner's case stands on similar footing to the said Sri Shakti Ranjan Nag and therefore, the petitioner is entitled for similar benefit. He has further submitted that the orders passed by this Hon'ble Court were not challenged by the Respondent- State of Jharkhand and those orders have attained finality and therefore, the petitioner is entitled for grant of such benefit which has been ordered by the Court in earlier proceeding. Learned counsel for the petitioner has relied on the judgments reported in A.I.R. 1937 PC 27, A.I.R. 1958 Madhya Pradesh 413 and 2009 (3) J.L.J.R. 350.
8. Mr. Saket Upadhyay, learned counsel appearing for the Respondent- State of Jharkhand contended that in view of the fact that as on 1.1.1984 the petitioner was not eligible for grant of promotion, the Law Department opined that promotion to the petitioner should be given strictly in accordance with Recruitment Rules and therefore, the earlier order dated 24.12.2002 was recalled and modified by order dated 17.2.2004. He has further submitted that this Hon'ble Court never intended that the petitioner should be given promotion even if he was not eligible for grant of promotion.
9. It is not in dispute that one Shakti Ranjan Nag was appointed as Literate Constable (Operation) about four years after the petitioner was initially appointed on the said post. Both these persons exercised their options and were 5 selected and sent for undergoing basic Grade- III (Technical) course which both of them successfully completed. Pursuant to order dated 12.5.1994 passed in C.W.J.C. No. 4193 of 1989 passed by the Patna High Court the said Shakti Ranjan Nag has been given promotion. It is also a matter of record that by order dated 11.7.2001 in L.P.A. No. 384 of 2001 this Court directed the Respondent-State of Jharkhand to ascertain whether the case of the present petitioner was covered by the judgment in C.W.J.C. No. 4193 of 1989 and if covered, to consider the question of granting identical relief to the petitioner based on his seniority and other considerations relating to grant of such relief. In the proceeding of Cont.(C) Case No. 465 of 2002, this Court by order dated 15.7.2002 again directed the Respondent-State of Jharkhand to ensure that identical, same and similar reliefs/benefits are given to the petitioner as were given to the said Shakti Ranjan Nag. The orders passed in L.P.A. no. 384 of 2001 and Cont.(C) Case No. 465 of 2002 have become final as these orders were not taken in appeal. Pursuant to orders passed by this Court, by order dated 24.12.2002 the petitioner was granted promotion to the post of Sub-Inspector (T) with effect from 1.1.1984. It also appears from the record of the case that order dated 24.12.2002 was passed after taking legal opinion from the learned Advocate-General for the State of Jharkhand.
10. Adverting to the contention of the learned senior counsel appearing for the petitioner that order dated 24.12.2002 passed by the Deputy Inspector General of Police could not have been reviewed /recalled/modified by the successor Deputy Inspector General of Police, I find that law in this regard is well settled. It is not open to the authority to review/recall its own earlier order unless, fraud or misrepresentation is detected. In "R.T. Rangachari Vs. Secretary of State", reported in A.I.R. 1937 Privy Council 27, it has been held, "In a case in which after Government Officials, duly competent and duly authorized in that 6 behalf, have arrived honestly at one decision, their successors in office, after the decision has been acted upon and is in effective operation, cannot purport to enter upon a reconsideration of the matter and to arrive at another and totally different decision."
11. In "Behari Kunj Sahkari Awas Samiti and another Vs. State of U.P. and others" reported in (1997) 7 SCC 37, the Hon'ble Supreme Court has held that since the order dated 11.11.1982 of the Custodian of Evacuee Property was approved by the Assistant Custodian General of Evacuee Property, who was acting as delegate of Custodian General, the order was rightly not reviewed by the Custodian General when revision application under Section 27 of the Administration of Evacuee Property Act, 1950 was preferred before the Custodian General.
12. In "H.C. Suman and another Vs. Rehabilitation Ministry Employees' Cooperative House Building Society Ltd., New Delhi and others" reported in (1991) 4 SCC 485, the Hon'ble Supreme Court has held that once a quasi judicial order becomes final, it cannot be reviewed by the authority passing the same order unless such power is conferred by statute on the authority.
13. In " State of Orissa and others Vs. Commissioner of Land Records & Settlement, Cuttack and others"
reported in (1998 ) 7 SCC 162, the Hon'ble Supreme Court has held that the order of delegate is to be treated as order of principal itself and therefore, principle cannot revised order of the delegate. The Hon'ble Supreme Court has held as under,
30. "In the light of the above, it is therefore clear that the Board of Revenue which never heard the case cannot review the order of the Commissioner, its delegate, passed under Section 15 of the 1958 Act. In fact, if it does so, that will amount to the exercise of an indirect power of revision by the Board which is not permissible in the light of the rulings in Roop Chand case and the case in Behari Kunj Sahkari Awas Samiti referred to above."7
14. In "Gadde Venkateswara Rao, Vs. Government of Andhra Pradesh and others" reported in A.I.R 1966 SC 828, where question for consideration before the Hon'ble Supreme Court was whether in exercise of powers under Section 62 of the Andhra Pradesh Panchayat Samithis and Zila Parishads Act (35 of 1959) the government has power to cancel or suspend the resolution of a Panchayat Samithi, the Hon'ble Supreme Court has observed as under,
13."The learned counsel for the State then contended that the order dated April 18, 1963, could itself be sustained under S. 62 of the Act. Reliance is placed upon S. 13 of the Madras General Clauses Act, 1891, whereunder if any power is conferred on the Government, that power may be exercised from time to time as occasion requires. But that section cannot apply to an order made in exercise of a quasi- judicial power. Section 62 of the Act confers a power on the Government to cancel or suspend the resolution of a Panchayat Samithi, in the circumstances mentioned therein, after giving an opportunity for explanation to the Panchayat Samithi. If the Government in exercise of that power cancels or confirms a resolution of the Panchayat Samithi, qua that order it becomes functus officio. Section 62, unlike S. 72 of the Act does not confer a power on the Government to review its orders. Therefore, there are no merits in this contention".
15. By order dated 17.2.2004, the order dated 24.12.2002 has been recalled on the ground that subsequently the Law Department rendered different opinion in the matter. In my considered opinion this is not permissible in Law. The order passed by this Court on 15.7.2002 in Cont.(C) case No. 465 of 2002 is clear and unambiguous. The Respondent-State of Jharkhand was directed to accord identical, same and similar reliefs/benefits to the petitioner as were given to the said Shakti Ranjan Nag. Such order of the Court cannot be varied or modified by an executive order denying the petitioner relief similar to the said Shakti Ranjan Nag.
816. In "S. Nagaraj and others Vs. State of Karnataka and another" reported in 1993 Supp.(4) SCC 595, the Hon'ble Supreme Court has observed as under,
12."...Law on the binding effect of an order passed by a court of law is well settled. Nor there can be any conflict of opinion that if an order had been passed by a court which had jurisdiction to pass it then the error or mistake in the order can be got corrected by a higher court or by an application for clarification, modification or recall of the order and not by ignoring the order by any authority actively or passively or disobeying it expressly or impliedly. Even if the order has been improperly obtained the authorities cannot assume on themselves the role of substituting it or clarifying and modifying it as they consider proper. In Halsbury's Laws of England (Fourth Edn., Vol. 9 p. 35, para 55) the law on orders improperly obtained is stated thus:
"The opinion has been expressed that the fact that an order ought not to have been made is not a sufficient excuse for disobeying it, that disobedience to it constitutes a contempt, and that the party aggrieved should apply to the court for relief from compliance with the order."
Any order passed by a court of law, more so by the higher courts and especially this court whose decisions are declarations of law are not only entitled to respect but are binding and have to be enforced and obeyed strictly. No court much less an authority howsoever high can ignore it. Any doubt or ambiguity can be removed by the court which passed the order and not by an authority according to its own understanding."
17. In view of aforesaid discussion, I am of the opinion that the impugned order dated 17.2.2004 cannot be sustained in law and therefore, it is quashed. Since the petitioner has already superannuated from service, Respondent-State of Jharkhand is directed to grant all consequential monetary benefits to the petitioner which would have accrued to him in terms of order dated 24.12.2002. The writ petition is allowed in the aforesaid terms.
9I.A. No. 2281 of 2005.
Since the petitioner in W.P.S. No. 3700 of 2005 has already superannuated from service, the application for intervention cannot be entertained and accordingly, it is dismissed.
(Shree Chandrashekhar, J.) Jharkhand High Court, Ranchi Dated 18/4/ 2013 Shanant/A.F.R.