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Himachal Pradesh High Court · body

2009 DIGILAW 437 (HP)

SUDERSHAN KUMAR v. STATE OF HIMACHAL PRADESH

2009-05-11

RAJIV SHARMA

body2009
JUDGMENT Rajiv Sharma, J-The brief facts necessary for the adjudication of this petition are that respondents No.3 and 4 had filed a writ petition bearing CWP No.530/1985 in this Court. The petitioner was added as respondent No.2 therein. The CWP No. 530/1985 was transferred to the learned Himachal Pradesh Administrative Tribune and was assigned TA No. 807/1986. The same was decided by the learned Tribunal on 20.12.1991. The operative portion of the judgment reads thus: “The orders dated June 6, 1966, September 16, 1969, September 22, 1969, December 13, 1970 and the notification dated August 29, 1974, November 30, 1974 and order dated August 1, 1979 conferred certain legal valuable rights in favour of both the petitioners and if the respondent No.2 was aggrieved by the same it was necessary for him to have approached the Courts at the earliest. In view of above discussion, it is clear that the order dated June 7, 1985 (Annexure PG-1) June 14, 1985 (Annexure PG-2) and June 27, 1985 (Annexure PG-3) are illegal and are hereby set aside. The application is allowed with no order as to costs.” 2. In sequel to the judgment rendered in TA No. 807/1986, the respondent-State had issued order on 30.5.1992 whereby the reversion of the petitioner was ordered with effect from 17.5.1966. The petitioner was directed to work out and intimate the over payment of pay and allowances made to him as a result of promotion to the post of District Public Relations Officer with effect from 17.5.1966 onwards. The petitioner has assailed the order dated 30.5.1992 by way of the present petition. 3. Mr. D.P. Gupta, Advocate has strenuously argued that the order dated 30.5.1992 is illegal and arbitrary thus violative of Articles 14 and 16 of the Constitution of India. 4. Mr. R.K. Sharma, learned Senior Additional Advocate General has supported the issuance of order dated 30.5.1992 on the basis of the judgment rendered in TA No. 807 of 1986 decided on 20.12.1991. 5. I have herd the learned counsel for the parties and perused the record carefully. 6. It is not in dispute that the promotion of the petitioner was quashed and set aside by the learned Himachal Pradesh Administrative Tribunal in TA No. 807/1986 as per the operative portion of the judgment reproduced hereinabove. The order dated 30.5.1992 was consequential order. The petitioner has assailed this order. Mr. 6. It is not in dispute that the promotion of the petitioner was quashed and set aside by the learned Himachal Pradesh Administrative Tribunal in TA No. 807/1986 as per the operative portion of the judgment reproduced hereinabove. The order dated 30.5.1992 was consequential order. The petitioner has assailed this order. Mr. D.P. Gupta has argued that before the issuance of order dated 30.5.1992, review Departmental Promotion Committee was required to be convened. He has faintly argued that the learned Himachal Pradesh Administrative Tribunal has over looked very important aspect while delivering earlier judgment that the adverse entries recorded against the petitioner were expunged. 7. The petitioner was added as respondent No.2 in TA No. 807/1986. The learned Tribunal by a well reasoned judgment dated 20.12.1991 has quashed his promotion. He had also sought review of the judgment and the same was dismissed by the learned Tribunal on 24.3.1992. The judgment rendered by the learned Tribunal has attained finality. The petitioner has not assailed the judgment passed in TA No. 807/1986 before the Hon’ble Supreme Court. 8. The Court is of the firm opinion that the present petition is not maintainable. The issue raised in this petition has already been adjudicated upon effectively by the learned Tribunal in TA No. 807/1986. The present petition is hit by res-judicata. The petitioner cannot rake up the issue which has already been adjudicated upon and has attained the finality. The case has been decided between the same parties. The orders passed by the competent courts of law are required to be implemented. In case the person like petitioner is encouraged to re-agitate the matters already concluded, it would lead to chaos and there would be no finality attached to the orders/judgments passed by the competent courts of law. It appears that the respondent-State was remiss in implementing the judgment dated 20.12.1991 and had tried to help the petitioner indirectly. The State at one given time had also filed Miscellaneous Application by way of MA No. 1336/92 seeking extension of time for implementing of judgment rendered on 20.12.1991. This application was allowed by the learned Tribunal on 7.9.1992 and despite that the judgment was not implemented. The effect of non-implementing the judgment dated 20.12.1991 is that respondents No.3 and 4 have been deprived of the benefits of the judgment. 9. The contention of Mr. This application was allowed by the learned Tribunal on 7.9.1992 and despite that the judgment was not implemented. The effect of non-implementing the judgment dated 20.12.1991 is that respondents No.3 and 4 have been deprived of the benefits of the judgment. 9. The contention of Mr. D.P. Gupta, Advocate that Review Departmental Promotion Committee was to be convened before the issuance of order dated 24.3.1992 merits rejection. Issuance of letter dated 24.3.1992 is consequential order which was required to be passed after the judgment dated 20.12.1991. In fact, it was expected from the State to implement the judgment with promptitude. The non-implementation of the judgments at the earliest sends wrong signal to the society at large and affects the rule of law. The other point raised by the petitioner qua the adverse entry has already been taken into consideration by the learned Tribunal and it has dealt with this issue extensively in its judgment. 10. However, Mr. D.P. Gupta has argued finally that his client has retired after attaining the age of superannuation in the year 1993 and it would be very harsh and oppressive if the respondents are not restrained from effecting recoveries. There is considerable force in this submission. The petitioner has been promoted by the respondent-State. He has worked on the higher post. He was paid the salary for the higher post. In these circumstances it would be very harsh, oppressive and unjust to permit the respondent-State to effect recoveries from the petitioner. Moreover, the petitioner has retried in the year 1993 and his retiral benefits would also be adversely affected if the recoveries are effected from him. 11. In view of the reasons assigned herein, there is no merit in this petition and the same is dismissed. However, the Court cannot be oblivious to the fact that the petitioner in fact had worked on the higher post for number of years. His promotion has been set aside by the learned Tribunal on 20.12.1991. In these circumstances, the ends of justice will be met if the respondents No.1 and 2 are restrained from effecting the recoveries from the petitioner on the basis of Annexure A-1 dated 24.3.1992. No costs.