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2000 DIGILAW 50 (PAT)

Ashok Kumar Pandey v. State Of Bihar

2000-01-12

S.N.JHA

body2000
Judgment S.N.Jha, J. 1. The dispute in this writ petition relates to appointment to the post of Dafadar in Bit No. 3 of Rohtas Police Station. The petitioner seeks direction to allow him to work on the post. 2. The post in question fell vacant on 8.10.86 when the erstwhile Dafadar Nanhak Pandey was removed from service on charges in a departmental proceeding. Birkeshwar Singh, who has been added as respondent No. 5 pursuant to his intervention in this case, was nominated for appointment to the post. The Officer-in-charge, Rohtas Police Station as well as Sub-divisional Magistrate, Sasaram recommended his case. On 20.8.87 vide Order No. 55/87 he was appointed on the post by the Superintendent of Police, Rohtas. In the meantime, Nanhak Pandey had filed C.W. J.C. No. 3013 of 1987 challenging his removal from service. By an interim order passed on 15.9.87, the operation of the impugned order was stated and Nanhak Pandey was allowed to work as before. In the light of the said order of this Court, Nanhak Pandey was allowed to work; however, salary was also paid to respondent No. 5 with respect to the period, he had worked on the post. On 25.5.90, during the pendency of the said writ petition, Nanhak Pandey died. The petitioner, who is his son, filed application for his substitution in place of his deceased father. Respondent No. 5 filed application for intervention. By order dated 8.2.91, the application for substitution was rejected and the writ petition was dismissed as having become infructuous (on the death of Nanhak Patidey). The petitioner however, was allowed to make representation. In stead of making representation on 10.6.91, the petitioner filed the present writ petition which in course of time was admitted on 4.2.93. In the meantime, respondent No, 5 had filed a representation to accept his joining on he post contending that after disposal of C.W.J.C. No. 3013 of 1987, the stay granted in the case stood vacated and his appointment on the post revived, vide order No. 52/91 dated 18.3.91, respondent No. 5 was allowed to join. Pursuant to the said order, he submitted his joining on 24.3.91 and started functioning on the post. However, as salary was not being paid to him, he filed C.W.J.C. No. 794 /93 which was disposed of on 21.5.93 with a direction to file representation. He filed representation which was rejected on 7.5.94. Pursuant to the said order, he submitted his joining on 24.3.91 and started functioning on the post. However, as salary was not being paid to him, he filed C.W.J.C. No. 794 /93 which was disposed of on 21.5.93 with a direction to file representation. He filed representation which was rejected on 7.5.94. He again approached this Court in C.W.J.C. No. 5312/94. By judgment and order dated 30.6.95, this Court held that he (respondent No. 5) hold a valid appointment and was entitled to salary. The petitioner filed C.W.J.C. No. 5169/96 challenging the said order dated 30.6.95 which however, he withdrew oil 19.3.98. It would be useful to quote the said order dated 19.3.98 as follows: After some argument, learned Counsel appearing on behalf of the petitioner is permitted to withdraw this application as the petitioner wants to file an application for review of order dated 30.6.1995 passed in C.W.J.C. No. 5312 of 1994. This writ application is accordingly disposed of. 3. Shri Dinesh Chandra, learned Counsel for Intervener-respondent No. 5 submitted that the order of this Court passed in C.W.J.C. No. 5312/94 upholding validity of the appointment of respondent No. 5 which was challenged by the petitioner, having become final, no relief can be granted to him. Shri Ganga Prasad Roy, learned Counsel for the petitioner submitted that as the petitioner was not party to the Writ petition C.W.J.C. No. 5312/94). the order and the findings recorded therein are not binding on him. 4. It is settled law that, any order passed or finding recorded behind back of a person is not binding on him. And where such order/finding affects his interest, it. is open to him to apply for review of the order. This is true of writ: petitions under Articles 226/227 of the Constitution as well, In Shivdeo Singh and Ors. V/s. State of Punjab AIR 1963 SC 1909 , the apex Court observed: There is nothing under Article 226 of the Constitution to preclude the High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice of to correct grave and palpable errors committed by it. In the aforesaid case, the High Court had entertained a second writ petition under Article 226 of the Constitution and reviewed the earlier order passed by it: at the instance of persons who were not party to the previous proceeding. In the aforesaid case, the High Court had entertained a second writ petition under Article 226 of the Constitution and reviewed the earlier order passed by it: at the instance of persons who were not party to the previous proceeding. The Supreme Court observed that in doing so, the High Court merely did what the principles of natural justice required it to do. 5. The writ petition (C.W.J.C. No. 5769/96) was, therefore, clearly maintainable in law. But, the petitioner himself withdrew the petition stating that he wanted to file a separate application for review of the order. In my opinion, as this Court was competent to review the order passed in C.W.J.C. No. 5312/94, the petitioner was not required to file another application giving it the label of review petition, and in any view, the Court having permitted him to withdraw the writ petition to enable him to file separate application for review, he ought to have filed another application. The order in C.W.J.C. No. 5312/94 might be exparte and not binding on him but it does not mean that the petitioner can afford to ignore the findings and the order passed therein. It would be useful to quote the relevant part of the order dated 30.6.95 as under: For the reasons stated above, I hold that the petitioner having been appointed, as back as on 20th August, 1987, as Dafadar and the order of stay passed by this Court against the petitioner having stood vacated on account of the writ petition (C.W.J.C. No. 3013/83) having become infructuous he (Petitioner) was rightly allowed to join his duty by the Respondent-S.P., vide order dated 18.3.91 (Annexure-8). Further, I hold that the subsequent Rule having come into effect from 1st January, 1990, the same has got no effect in the matter of appointment of the petitioner. It is only because of the wrong sentence used by the Respondent-S.P., in the order dated 20th August, 1987 (Annexure-1), all such confusion took place in the mind of the Respondents. Accordingly. I allow the writ petition, set aside the impugned order dated 7th May, 1994 (Annexure-13) and direct the Respondents to provide the petitioner with his due salary, which is due to him for the period the petitioner has actually performed his duty, within a period of three months from the date of receipt/production of a copy of this order. Accordingly. I allow the writ petition, set aside the impugned order dated 7th May, 1994 (Annexure-13) and direct the Respondents to provide the petitioner with his due salary, which is due to him for the period the petitioner has actually performed his duty, within a period of three months from the date of receipt/production of a copy of this order. On the ground that the above findings were recorded without giving opportunity of hearing to the petitioner, which obviously were prejudicial to his claim, the order could have been recalled but the petitioner gave no such occasion. He filed writ petition but withdrew the same on his own, seeking liberty to file a review petition, so called, which he never did. It is not possible to direct the respondents to treat the petitioner also as Dafadar at the same place, allowing him to work and pay him salary to the post. Such an order would amount to disturbing the appointment of respondent No. 5 and would be in conflict With the order of this Court. It is not insignificant that although respondent No. 5 has been working on the post since March 1991, the petitioner took no steps to obtain any interim order against him in the present case. Surely, he cannot say that he was not aware of these facts. 6 Considering the fact that the writ petition has remained pending for all these years during which the petitioner might be nursing hope of getting favourable order, and further that he seems to be a victim of wrong advice. I would permit him to make representation before the authorities concerned with an observation that if it. is possible to appoint him on the post of Dafadar elsewhere, to consider his case in accordance with law. 7. With these observations, this writ petition is dismissed. There will be no order as to costs.