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2006 DIGILAW 59 (JK)

Tirath Ram v. State Of J. &K.

2006-03-24

B.A.KHAN, J.P.SINGH

body2006
Per J.P.Singh, J: Appellant came to this Court, initially in SWP No. 1160/2003, which, however, appears to have been withdrawn with liberty to file fresh one. The writ petition appears to have been withdrawn, when the action of the respondents in denying monetary benefits of retrospective promotion, was sought to be supported by the respondents on the strength of Order No.1246 of 1988, dated December 27, 1988. 2. Second writ petition of the petitioner SWP No. 2279/2003 claimed the following reliefs:- "i) Writ of Certiorari seeking quashing of Order No. 142 of 2002 dated 27.05.2002 of the respondent No. 4 partially so far as it pertains to denial of monetary benefits accrued in favour of the petitioner on promotion to the present post of Head Constable. (ii) Quashing of Order No. 1246 of 1988 issued by the respondent No. 3. D.G.P declaring it inoperative, being an Administrative directive, which cannot over ride the constitutional and statutory provisions and can not be allowed to snatch away statutory/legal rights conferred upon the petitioner because the promotion is a condition of services and once it is made from a particular date, all benefits accrued to the promotee can not be denied unless forfeited as a punishment for a specific guilt, which is not the case, in present petition of the petitioner. Contrary to it, it is delay, fault and mistake of the respondents. (iii) Writ of mandamus, commanding upon the respondents to release the benefit of promotion as have been released to the juniors of the petitioner and denied to the petitioner vide promotion order No. 509 of 2001 dated 10.9.2000, all arrears with interest, from the date of promotion to the rank of S.G.C, which have been kept withheld illegally. (iv) Any other writ, order or direction whatever the Honble Court may deem fit under the circumstances of the case may also be passed in favour of the petitioner." 3. Government Order No. 1246 of 1988, dated 27.12.1988, on which the claim of the appellant to monetary benefits had been declined, was questioned in paragraph 12 of the writ petition. This paragraph reads thus:-- "12. Government Order No. 1246 of 1988, dated 27.12.1988, on which the claim of the appellant to monetary benefits had been declined, was questioned in paragraph 12 of the writ petition. This paragraph reads thus:-- "12. THAT the words and phrase "pre-date promotion" emanating and originating from an administrative order of respondent No. 3, D.G.P., J&K, vide his order No. 1246 of 1988 has no mandate of law, denying the earned benefits of the petitioner to which the petitioner is legally and constitutionally entitled, which thus creates cause of action in favour of the petitioner. The petitioner, therefore, strongly challenge the aforesaid order on the following grounds:-- (i) The Administrative authority can not use the power of legislature and change the State Policy, with the power, vested in such authority for public good, which is protected and guaranteed by the provisions of the constitution and limited to the purpose of people welfare only. So, it will be antithetical to state policy under Article 39(a) of the Constitution, if this administrative order will be allowed to override the Constitutional provisions/rights. (ii) That no Administrative or Legislative enactment can take away the right of the employees which is guaranteed by the constitution, a principal which S.C. has repeatedly confirmed as laid down in recent judgement in a case Yogi Nath Bodge vs. State of Maharashtra, AIR 1999 Para 33 and other citation made in opening Para. (iii) That the present petition is an out come of grievance for mistake, delay and lapse on the part of the respondents, as such, the respondents can not be allowed to take advantage of their own inaction and negligence and put the petitioner to suffer time and again. Had the respondents acted promptly and with responsibly in submitting the out come of enquiry report to the Chairman DPC i.e., I.G.P., Jammu in time, the petitioner would have neither been left out of timely promotion and loss being imposed upon him nor the petitioner would have been exposed to this uncalled for litigation, heart burning and monetary and physical sufferance. (iv) Disallowing promotional benefits to the petitioner for the period, for which his juniors have got the same, will operate as a serious punishment upon the petitioner for no guilt on his part, for which seeks indulgence of the Honble Court in the interest of Justice." 4. (iv) Disallowing promotional benefits to the petitioner for the period, for which his juniors have got the same, will operate as a serious punishment upon the petitioner for no guilt on his part, for which seeks indulgence of the Honble Court in the interest of Justice." 4. The official respondents do not appear to have replied this paragraph of the writ petition in the objections filed by them to SWP No. 2279/2003. The only plea which was raised in regard to Government Order No. 1246 of 1988, dated 27.12.1988, is as follows:- "3. That the present petitioner is expressly hit by delay and latches (laches). The petitioner is seeking quashment of order No. 1246 of 1988, dated 17.12.1988 (27.12.1988) long after in the year 2003." 5. Other grounds raised in the reply of the respondents demonstrate that the appellant had been granted promotion twice, with effect from the date his juniors were so promoted, despite his having incurred punishment more than once. 6. Learned Single Judge noticed the submission of the appellant in the following terms:-- "Petitioner filed present petition seeking to challenge denial of monetary benefits in the impugned order dated 27.5.2002. In addition to this, petitioner has also assailed Order No. 1246 of 1988 dated 27.12.1988, which provides retrospective promotion without pecuniary benefits. Contention of the petitioner is that even while departmental proceedings were initiated against him, his case was not considered for promotion." 7. Learned Single Judge dismissed the appellants writ petition by holding as under:-- "Mr. N. C. Kotwal, learned counsel for petitioner submits that while according promotion, his past conduct cannot be considered to be relevant. I fail to appreciate this contention. Whenever a Government servant is accorded promotion, his service record atleast relevant for the period of promotion and the years preceding thereto, is required to be taken note of. Petitioner has suffered four punishments which are on record. These punishments are not under challenge. Therefore, while according promotion, the competent authority has decided not to grant any monetary benefits and to make promotion on notional basis. It is not an isolate case of petitioner that he has been denied monetary benefits. The impugned order itself indicates that all the promotees have been denied monetary benefits. Therefore, petitioner has not been treated with hostility or discriminated against. The plea of violation of Article 14 and 16, is not attracted in the present case. It is not an isolate case of petitioner that he has been denied monetary benefits. The impugned order itself indicates that all the promotees have been denied monetary benefits. Therefore, petitioner has not been treated with hostility or discriminated against. The plea of violation of Article 14 and 16, is not attracted in the present case. Petitioner did not perform the duty of higher post and therefore, he is not entitled to monetary benefits for that period." 8. We, however, do not find any discussion by the learned Single Judge on the plea, raised in paragraph 12 of the writ petition. 9. Sh. N. C. Kotwal, learned counsel appearing for the appellant, refers to `State of Andhra Pradesh v/s L. Narsimaha Rao and Ors, reported as AIR 1999 SC 2255, `Balbir Singh v/s State and S.R.T.C., reported as 1998 SLJ 393 and `Asha Rani Lamba v/s State of Haryana, reported as 1983 SLR 400-405, to support the submission raised by the petitioner in paragraph 12 of the writ petition. 10. Writ petition appears to have been decided at admission stage declining relief to the appellant on an issue, which appears to be foreign to the controversy raised in the petition. 11. The only issue, which, in our opinion, survived consideration in view of the grant of retrospective promotion to the appellant, was his claim to monetary benefits, which he sought on the basis of judgments referred before us on the plea raised in paragraph 12 of the writ petition. 12. The plea raised by the petitioner was, thus, required to be adjudicated upon, in the light of stand taken by the respondents, that the writ petition suffered from delay and laches. 13. The success or failure of the claim of appellant, in our opinion, would depend on the finding of the Court, as to whether or not, Government Order No. 1246 of 1988, dated 27.12.1988 was good, bad or indifferent. 14. We, thus, find that the order of the learned Single Judge is unsustainable because the learned Single Judge has omitted to deal with a question of law specifically projected in paragraph 12 of the writ petition and noted, as such, in the judgment, though left undecided. 15. An issue raised in the pleadings, projected at the time of hearing, and noted in the judgment, cannot be left undecided, for, such omission, would vitiate the judgment. 16. 15. An issue raised in the pleadings, projected at the time of hearing, and noted in the judgment, cannot be left undecided, for, such omission, would vitiate the judgment. 16. The judgment of the learned Single Judge is, thus, set aside. 17. While admitting the writ petition to hearing, we would request the learned Single Judge to hear the writ petition afresh on merits, for its decision in accordance with law. 18. Registrar Judicial is directed to post the writ petition before an appropriate Writ Court Bench in the third week of April 2006.