Sanjay Kumar v. State Of Bihar — 1997 DIGILAW 599 (PAT)

Judgment A. K. Ganguly, J. 1. This writ petition has been filed by three petitioners for quashing the order dated 1st June, 1996 (Annexure-12) issued by respondent No.3, whereby, the services of the petitioners have been terminated. 2. The case of the petitioners is that they were appointed on regular basis against permanent posts and their services were confirmed which would appear from letters dated 6-4-1991 which have been annexed to this writ petition as Annexurc-1, 2 and 3 respectively. In fact, the petitioners have not annexed their orders of appointment, but they have annexed the order of confirmation of their services. 3. The respondents in their affidavit have asserted that the said order of confirmation which were passed by the Secretary are contrary to the rules, and the said order of confirmation of the services of the petitioners were without approval of the Chairman, and when irregularity in the order of confirmation was detected then the Secretary of the Commission cancelled the same. 4. Much depends in this case on the question whether or not the services of the petitioners were regularised in a proper manner by the orders dated 6-4-1991. In that view of the matter, this aspect of the case is considered by the court in some details. 5. Learned Counsel for the respondents has drawn the attention of this court to the rules, namely, the university Service Commission (Miscellaneous) Rules, 1963. Those rules have been framed under Sec.48-A of the bihar State Universities (University of bihar, Bhagalpur and Ranchi) Act, 1960. Therefore, those rules are statutory in nature. Under Rule-10 of the said rules, it has been made clear that subject to the control of the Chairman, the ministerial officers and the inferior staff of the Commission shall be appointed by the Secretary. 6. From a perusal of Rule-10 of the rules it appears that the power of appointment in respect of ministerial officers and the inferior staff vests in the secretary, subject to the control of the chairman. From the facts of this case it is clear that the services of the petitioners were allegedly regularised within a very short time of their appointment. It has not been disputed by the petitioner that they were initially appointed on daily wages with effect from 4th March, 1991 for a period of three months only. From the facts of this case it is clear that the services of the petitioners were allegedly regularised within a very short time of their appointment. It has not been disputed by the petitioner that they were initially appointed on daily wages with effect from 4th March, 1991 for a period of three months only. This fact has been stated in Para-3 of the counter-affidavit filed by the Commission, and this fact has not been controverted in the rejoinder-affidavit filed by the petitioners. Therefore, the appointment which was made with effect from 4-3-1991 allegedly stands confirmed with effect from 6-4-1991 by the Secretary. From this trend of facts it is quite clear that the confirmation within a period of one and half months of appointment is at least suggestive of the one thing that the orders of confirmation have been rushed through. This undue haste in passing the order of confirmation assumes considerable significance when unquestionably the initial appointment is only for a period of three months only. This court cannot lose sight of the glaring fact that in general the administrative machinery in this State functions in a very lackadiastical fashion and the reason for this sudden lightening speed in that background has not at all been explained by the petitioners. So this is really a situation in which there is more than what meets the eye ? 7. The petitioner has not been able to point out before this court anything to show that the said confirmation of the services was made on the approval of the Chairman. Therefore, this Court is of the view that requirements of Rule-10 of the said rules have not been complied with in so far as the alleged confirmation of the services of the petitioners are concerned. 8. The next question on this aspect is that there are two judgments of this court between the same parties. The first one has been rendered in CWJC no.12571 of 1992. The said judgment was delivered on 16th February, 1994 by a learned single Judge of this court. In paragraph-2 of the said judgment, the following observation has been made: "the fact that the petitioners did not hold any regular or substantive appointment in the College Service Commission is not in dispute. The said judgment was delivered on 16th February, 1994 by a learned single Judge of this court. In paragraph-2 of the said judgment, the following observation has been made: "the fact that the petitioners did not hold any regular or substantive appointment in the College Service Commission is not in dispute. " in the said proceeding the petitioner challenged the office order dated 10-9-1992, by which the Secretary of the Bihar College Service Commission has relieved the petitioner and others (who are also petitioners) to enable them to join in the office of the bihar State Universities (Constituent colleges) Service Commission. In the said proceeding the stand which was taken by the self same petitioners was that they were working on daily wages and as such they have no right to the post. Therefore, the order relieving the petitioners from the post creates uncertainty about their status. The matter relating to this proceeding and the order which has been passed in that proceeding has not been disclosed in the writ petition. This Court is of the view that this non-disclosure is a suppression of material facts. 9. Another proceeding which was initiated by the very same petitioners was a writ petition being numbered as cwjc No.11636 of 1994. The judgment in the said writ petition was delivered on 27th September, 1995. In the said judgment it is made clear that admittedly the petitioners are functioning under the respondent-State on daily wages basis. The said judgment has also referred the so called orders dated 6th april, 1991 of regularisation. It was also recorded by the Court that the said orders dated 6th April, 1991 were not approved by the Chairman and were therefore not acted upon. In the said judgment status of the petitioners was declared as persons not regularly appointed, and it was therefore made clear in the concluding paragraphs of the said judgment that till the orders all dated 6th April, 1991 are acted upon, the petitioners will not be entitled for year to year increment. In the said judgment status of the petitioners was declared as persons not regularly appointed, and it was therefore made clear in the concluding paragraphs of the said judgment that till the orders all dated 6th April, 1991 are acted upon, the petitioners will not be entitled for year to year increment. Therefore, there are judicial findings in proceedings to which the petitioners are parties to the following effect:- (i) The petitioners did not hold any regular post in the College Service Commission; (ii) The orders of so called confirmation of the services of the petitioners were not approved by the Chairman of the commission; (iii) The alleged orders of confirmation dated 6th April, 1991 were never acted upon; (iv) The petitioners are not regularly appointed and they were not entitled for year to year increment. 10. In the background of these findings which have become final between the same parties, it is difficult for this court to accept the petitioners case that they are regular employees of the said Commission. 11. Learned Counsel for the petitioner in order to wriggle out of this factual position submitted that the admission made in a proceeding does not bind the parties in subsequent proceedings, and cited certain decisions in support thereof. Learned Counsel for the petitioner relied on Special Bench judgment of the calcutta High Court in the case of weston V/s. Peary Mohun, reported in AIR 1914 Calcutta 396. At page 421 of the report it has been held that an erroneous statement in the pleadings cannot overcome an actual fact apparent on the face of the record which is admitted by the plaintiff and his Counsel. 12. This court fails to understand how does this principle help the petitioners. Here no erroneous pleading is involved. What is staring at the face is a finding of two Courts between the same parties in earlier proceedings on the same issue. Therefore, the issue that the petitioners are not regular employees of the said Commission is res judicata and not res integra. So the principles in Weston (supra) have no relevance. Similarly, the decision of the supreme Court in Kirhorilal V/s. Mt. Chaltibai, reported in AIR 1959 SC page 504, was rendered in a totally different context relating to adoption in Hindu law. So the principles in Weston (supra) have no relevance. Similarly, the decision of the supreme Court in Kirhorilal V/s. Mt. Chaltibai, reported in AIR 1959 SC page 504, was rendered in a totally different context relating to adoption in Hindu law. In Kishorilal (supra), it was held that admissions are not conclusive and unless they constitute estoppel, the maker is at liberty to prove that they are mistaken. It was also said that admission are mere pieces of evidence. There is no doubt about these principles. But those principles are not applicable here. In this case we are concerned with findings of Courts between the same parties in judgment which have become final. Therefore, on the principle of finality in litigation which is a principle based on public policy and enshrined in the doctrine of Res judicata those findings cannot be re-opened in subsequent proceedings at the instance of the same parties. It is settled beyond controversy that the doctrine of Res judicata and even constructive Res judicata and principles analogous thereto are equally applicable to proceedings in a writ court. Apart from the aforesaid difficulty in accepting the contentions of the petitioners Counsel, there is another aspect of the matter also. In Shangrila food Products Ltd. and another V/s. Life Insurance Corporation of India and another, (1996) 5 SCC page 54, the apex Court reiterated that the jurisdiction of High Court under Article 226 being equitable its basic end should be to promote honesty and fair play (See para 11 ). 13. Going by that principle, this court holds that permitting the same persons to take divergent stand in different proceeding between the same parties would not amount to promoting either honesty or fair play. An action at law, especially in a writ Court, cannot be equated to a game of chess. 14. Learned Counsel appearing for the respondents-Commission has relied on the aforesaid factual aspect of the matter, and further submitted that the petitioners were subsequently given opportunity to apply against the advertisements which were inserted by the commission to regularise their appointments made on daily wages. It is also stated that in the said advertisement, the persons who were working on daily wages, were to be given weightage in accordance with the direction of the Hon ble Court given in CWJC No.3953 of 1992, but the petitioners did not apply for their appointment on regular basis. It is also stated that in the said advertisement, the persons who were working on daily wages, were to be given weightage in accordance with the direction of the Hon ble Court given in CWJC No.3953 of 1992, but the petitioners did not apply for their appointment on regular basis. Instead of applying against the advertisement dated 6-1-1994, they filed another writ petition which is referred to above, namely, CWJC No.11636 of 1994 for a direction to the Commission to pay regular scale of pay to the petitioners and they placed reliance on the order dated 6-4-1991. These averments have been made in Paragraphs 19 and 20 of the counter-affidavit filed by the Commission. 15. In the rejoinder-affidavit filed by the petitioners Paragraph Nos.19 and 20 have been dealt within Paragraph 17 and 18. The stand which the petitioner has been taken is that they were holding sanctioned posts on regular basis on the basis of the order dated 6th April, 1991. Apart from this stand, the averment in Paragraphs 19 and 20 of the writ petition have not been effectively controverted. 16. This Court is of the view that having regard to the aforesaid judicial findings that the orders dated 6th April, 1991 have not been approved by the chairman and were never acted upon, the petitipners cannot claim to have been regularly appointed on the basis of the said orders and on basis of that stand they cannot in law refuse to appear in the selection process pursuant to the said advertisement. 17. Learned Counsel for the respondents has relied on the decision of the Supreme Court in the case of union of India V/s. S. K. Bhargawa, JT 1997 (5) SCC page 321. In the case of s. K. Bhargawa (supra) the Hon ble supreme Court held that where petitioners have not availed of successive chances for regularisation and they were not found suitable for regularisation in special selection by the Union public Service Commission, they can be removed from the service. 18. Here the factual aspect is slightly different, but the ratio is almost the same. The Supreme Court was obviously laying down when ad hoc employees like the petitioners whose appointments are on daily wages basis are given a chance to regularise the employment by competing in selection process, the concerned employees must avail of such chances to regularise their services. Here the factual aspect is slightly different, but the ratio is almost the same. The Supreme Court was obviously laying down when ad hoc employees like the petitioners whose appointments are on daily wages basis are given a chance to regularise the employment by competing in selection process, the concerned employees must avail of such chances to regularise their services. If the employee concerned fails to do so and subsequently the services are terminated, no complaint can be made. Almost similar situations prevail in this case. To the similar effect is the other judgment of the Supreme Court in the case of P. Ramendran and Ors. V/s. Indian territory, 1997 (1) SCC page 353 and on which the respondents relied. In the said judgment of P. Ramendran (supra), the Hon ble Supreme Court held that when the Commission has been entrusted with the duty to select candidate by inviting application every candidate has a right to seek consideration for appointment by participating in the selection. In matters of such appointment the commission cannot be by-passed by the court by issuing direction for regularisation of the services of ad hoc employees. Here also the court cannot give any direction to regularise the services of the petitioners whose status is one of daily wage. 19. For the reasons aforesaid this writ petition fails and is dismissed. Interim orders, if any, are vacated. There will be no order as to costs. Petition Dismissed.