Delhi High Court
B.N. Chaudhary vs Municipal Corporation Of Delhi on 1 September, 1993
Equivalent citations: 1993IIIAD(DELHI)863, 52(1993)DLT76, 1993(27)DRJ505
Author: D.K. Jain
Bench: D.K. Jain
JUDGMENT D.K. Jain, J.
(1) The petitioner initially appointed in a temporary post of Assistant Teacher in the office of the Director of Education, Delhi Administration on 20 July 1953, was later promoted to the higher post as teacher. On the formation of the Municipal Corporation of Delhi (for short MCD), in the year 1958, the petitioner was sent on deputation to the Mcd for one year along with other middle/primary school teachers/officers. However, when middle and higher secondary schools of the Mcd were transferred to the Delhi Administration, some teaching and supervisory staff like Education Officers and School Inspectors were also transferred and absorbed in those-schools. However, (2) It is claimed that at the time of retention of the teaching staff and the supervisory staff by the Mcd, they were assured that a complete parity will be maintained in their conditions of service with those who were working in the Delhi Administration on similar posts and will not suffer any financial loss. Since the age of retirement of officers, teachers and other employees in the Education Department of the Delhi Administration was 60 years, the petitioner claimed that in terms of the assurance to maintain a complete party regarding terms and conditions of service of the teaching and supervisory staff in the Education Department of the Mcd, his age of superannuation was 60 years.
(3) Learning about the plan to retire him on attaining the age of 58 years, the petitioner made a representation to the Mcd on 01 January 1980 praying for extension of his service by two years with effect from 01 April 1980, on which date he was to attain age of 58 years. However, petitioner's representation was rejected and he was informed vide letter dated 14 January 1980 that his date of birth being 15 March 1922, he shall retire from service on 31 March 1980 on attaining 58 years of age.
(4) Being aggrieved, the petitioner filed a writ petition in this court being Cwp No.205/80. A Division Bench of this Court, after hearing counsel for the petitioner and the Mcd, dismissed the same on 27 March 1980 by a speaking order. In order to appreciate the rival contentions, raised in the present petition, it would be beneficial to reproduce the said order: "the petitioner's case is that he cannot be retired at the age of 58 years as the retirement age of teachers in the Municipal Corporation of Delhi is 60 years. The contention has no force because the rules applicable in the case of municipal employees are the same as for the Central Government employees. Regulation 4 of the Service Regulations of 1959, framed under the Delhi Municipal Corporation act, specifically says so. Under Fundamental Rule 56 (a) the retirement age is 58 years. Reference is made to some resolutions with regard to municipal employees transferred to Delhi Administration along with certain schools when the same were transferred from the Municipal Corporation to Delhi Administration. In these resolutions the age of retirement of a municipal employees is mentioned as 60 years. In the counter affidavit filed on behalf of respondent No. I it has been submitted that mentioning of 60 years is a mistake. The reason given for the mistake creeping in is that generally speaking yearly extensions were given after 58 years of age to the employees till they attained the age of 60 years and inasmuch as generally municipal employees being retained till the age of 60 years who were those employees who belong to vacation department, this mistake somehow crept in. It is further said that the mistake has since been rectified. It is next contended by the petitioner that he was originally a Government employee and when the school was transferred to the Municipal Corporation, his conditions of services were protected. He was a teacher when the school was transferred from Delhi Administration to the Municipal Corporation. The protection given to the petitioner has not been violated. At that point of time the age of retirement was 55 years which was subsequently raised to 58 years. Thirdly, the petitioner contends that he is a displaced person and is entitled to be considered for extension of service up to 60 years. His application in this behalf has not been decided. If that be so, we can only express the hope that respondent No. I will sympathetically consider the application that has been moved by the petitioner for extension of service up to the age of 60 years. Till that petition is rejected, which it is admitted has still not been rejected, not even a case for discrimination is made out. Lastly, the petitioner contends that he is being discriminated vis-a-vis those teachers who stand transferred along with their schools from Municipal Corporation once again back to the Delhi Administration. The question of discrimination does not arise. The petitioner today is holding a higher post. He has not been transferred to Delhi Administration. Further, as has been said in the affidavit of respondent No. 1, the mistake with regard to even those employees has since been corrected. We, accordingly, find no force in the petition. Dismissed."
(5) The matter rested there as the petitioner did not take it further to the Supreme Court and he retired on 31 March 1980.
(6) After about four years of the petitioner's retirement, another officer of the Mcd, namely, Mrs.Shiela Puri, who was working as a Assistant Education Officer in the Mcd and was sought to be retired on attaining the age of 58 years, filed a writ petition in this Court being Cwp No. 1365/84 challenging the order of the MCD. This court vide judgment dated 22 May 1985 held that Mrs. Puri had a right to continue in service till she attained the age of 60 years. The contention of the Mcd that Mrs. Puri being not a teach could be retired at the age of 58 years was repelled by this Court by observing that the very concept of an Inspector is to see that the teaching is conducted in accordance with some standard practice and progress of the students is as desired. The Inspector or Inspectors must, therefore, be a teacher. The Court observed that on promotion as an Inspector such a person does not cease to be a teacher but continues to be so. Drawing a similarity between those persons who had been transferred to Delhi Administration, which had accepted that the age of retirement of the school inspectors would be 60 years in view of the resolutions passed by the Mcd, the court applied Article 14 of the Constitution to the situation before and it held that Mrs. Puri could not be retired at the age of 58 years. This Bench decision was upheld by the Supreme Court and has been reported as Municipal Corporation of Delhi vs. Smt. Sheila Puri, 37 (1989)DLTIO.
(7) Since the petitioner felt that his case was similar to the case of Mrs.Puri, on 30 May 1985 he made a representation to the Commissioner of Mcd and prayed that in view of the said judgment, he be granted all the benefits of two years' extension in service from 01 April 1980 to 31 March 1982. Having failed to get any response to the representation. the petitioner filed the present writ petition.
(8) Rule in the writ petition was issued as far back as on 24 July 1987 but the respondent Mcd has chosen not to file counter affidavit. On petitioner's moving an application for expediting the hearing, vide order dated 30 September 1992, it was directed that the matter be listed for final hearing as 'after notice misc. matters. It has thus, been listed and I have heard learned counsel for the parties.
(9) It is not in dispute that the issue raised in the present petition is similar to the one which came up for consideration in Mrs. Sheila Puri's case (supra) as also some other cases, in which it was held that all those who had joined the Mcd as teachers will retire at the age of 60 years. However, the present petition is vehemently opposed by Mr. K.K.Bhuchar, learned counsel for the Mcd on the ground that the decision in petitioner's earlier writ petition would operate as res judicata in the present petition and he cannot be granted any relief. In support of his contention, learned counsel has placed reliance on Daryao and others vs. State of U.P. and others, and Devilal Modi vs. Sales Tax Officer, Ratlam and others, .
(10) Mr. M.C.Garg, learned counsel for the petitioner, has valiantly tried to meet the preliminary objection of Mr. Bhuchar by urging that the earlier writ petition was dismissed in liming without considering the effect of M.C.D.'s two resolutions being No. 127/70 dated 12 May 1970 and 666/78 dated 06 November 1978 which have been relied upon in Mrs. Shiela Puri's case and further the view expressed earlier in petitioner's case could not be considered to be good law in the light of the fact that the judgment in Mrs. Puri's case has been upheld by the Supreme Court. In this behalf, he sought to derive support from some observations in Mrs.Puri's case. He also relied on the judgment of the Supreme Court reported as Mathura Prasad Sarjoo Jaiswal and others vs. Dossibai N.B.Jeejeebhoy, and Ram Mehr vs. Union of India, Air 1987 Delhi 130.
(11) In my view, the preliminary objection taken by Mr. Bhuchar is sound and must be upheld.
(12) Enunciating the principles underlying the doctrine of res judicata, the Supreme Court in Satyadhyan Ghosal and others vs. Smt. Deorajin Debi and another, , observed as under:- "The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a res is judicata, it shall not be adjudged again,.Primarily it applies as between past litigation and future litigatioin. When a matter - whether on a question of fact or a question of law - has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again. This principle of res judicata is embodied in relation to suits in S. 11 of the Code of Civil Procedure; but even where S. 11 does not apply, the principle of res judicata has been applied by courts for the purpose of achieving finality in litigatioin. The result of this is that the original court as well as any higher court must in any future litigation proceed on the basis that the previous decision was correct."
(13) Again in this very context in Daryao and others (supra), the Supreme Court has held that if a writ petition filed by a party under Article 226 of the Constitution is considered on merits as a contested matter and is dismissed, the decision thus pronounced would continue to bind the parties unless it is otherwise modified or reversed in appeal or other appropriate proceedings permissible under the Constitution. If a writ petition is dismissed in liming and an order is pronounced in that behalf, whether or not, the dismissal would constitute a bar, would depend upon the nature of the order. If the order is on the merits, it would be a bar; if the order shows that the dismissal was for the reason that the petitioner was guilty of laches or that he had an alternative remedy, it would not be a bar. If the petition is dismissed in liming without passing a speaking order, then such dismissal cannot be treated as creating a bar of res judicata.
(14) It is therefore well settled that the principle of res judicata equally applies to writ petitions filed under Article 226. If the petition is dismissed on merits after contest, the decision would continue to bind the parties if the cause of action is the same.
(15) Mr. M.C.Garg, learned counsel for the petitioner, has neither questioned this legal position nor has he laid much emphasis on his initial submissions that the earlier writ petition was dismissed in liming without noticing various resolutions passed by the Mcd but the thrust of his argument is that since the decision in the earlier writ petition was founded on the view which has subsequently been held to be erroneous by this court as also by the Supreme Court in Mrs.Sheila Puri's case (supra), it cannot operate as res judicata in the present petition.
(16) The argument is fallacious. I am of the view that the correctness or otherwise of a judicial decision has no bearing upon the question whether or not the decision operates as res judicata. What is to be seen is whether the matter directly and substantially in issue was directly and substantially in issue in the former writ petition and had been heard and finally decided by a competent court. If so, the principle of res judicata would apply. Even an erroneous judgment is nonetheless a binding judgment inter parts so long as it is not reviewed or reversed by a higher court. Once a final judgment has been obtained by a party, he cannot canvass the same matter over again in another action. Support is lent to this view by the observations of the Supreme Court in Mohan Lal Goenka vs. Benoy Kishna Mukherjee and others, and Mathura Prasad Sarjoo Jaiswal and others, , incidentally the latter judgment had been relied upon by learned counsel for the petitioner.
(17) In the light of the aforesaid legal position the only question which calls for consideration is whether the issue raised in the present petition is directly and substantially the same which was raised by the petitioner in his earlier writ petition. Having compared the two writ petitions and having perused the earlier order, reproduced above, I have little hesitation in coming to the conclusion that it is directly and substantially the same. The grounds and the prayer in the earlier writ petition are substantially the same as in the present writ petition. Merely because in the earlier order the Court has not specifically referred to the two resolutions, mentioned hereinabove, on which the petitioner seeks to place reliance, does not mean that these were not taken into account.
(18) I am, therefore, of the considered view that the judgment inter parts in the previous writ petition No.205/80 would operate as a res judicata in the present writ petition and it has to be dismissed on that score.
(19) I would accordingly dismiss the writ petition and discharge the rule. The parties are, however, left to bear their own costs.