Research › Search › Judgment

Madhya Pradesh High Court · body

2009 DIGILAW 614 (MP)

Vipin Kumar Saxena v. State of M. P.

2009-05-07

A.P.SHRIVASTAVA, SUBHASH SAMVATSAR

body2009
JUDGMENT Samvatsar, J. -- 1. This writ appeal is filed by appellant being aggrieved by the order dated 26.2.2009 passed by Single Bench of this Court in WP No. 1092/2008 (s). 2. The brief facts of the case are that appellant-writ petitioner is the husband of late Smt. Vimla Devi Saxena, who was appointed as a teacher on 2.8.1972. According to the appellant, at the time of appointment date of birth of his wife was recorded as 5.2.1942 in the service record and she was retired in the month of February, 2004 on attaining the age of 62 years, which is the age of superannuation in cases of teachers. She died on 15.5.2004. 3. The present appellant had filed a writ petition i.e. W.P. No. 1092/2008 praying therein that his wife's retiral dues be released to him alongwith interest at the rate of 12% per annum taking into account the date of birth of his wife as 5.2.1943. This writ petition was dismissed by the learned Single Bench, hence this appeal. 4. Counsel for the appellant pointed out that Annexure P-1 is the copy of service book, which shows that his wife's date of birth was 5.2.1943. Annexure P-2 is the school leaving certificate dated 20.10.2004 which also shows that his wife's date of birth was 5.2.1943. Annexure P-3 is his wife's high school certificate mentioning her date of birth as 5.3.1943. Similarly in the seniority list (Annexure P-4) his wife's date of birth is mentioned as 5.2.1943. Annexure P-5 is a certificate issued by District Education Officer, Morena in which again his wife's date of birth has been mentioned as 5.2.1943. It is pointed out that Annexure P-6 is another copy of service book in which his wife's date of birth is mentioned as 5.2.1942, on the basis of which she was wrongly stood retired in the month of February, 2004. 5. Contention of learned counsel for the appellant is that as all these documents show that correct date of birth of appellant's wife is 5.2.1943, she should have been retired in the month of February, 2005 instead of February, 2004 and therefore, her services should be counted on that basis and benefits be released to her. 6. 5. Contention of learned counsel for the appellant is that as all these documents show that correct date of birth of appellant's wife is 5.2.1943, she should have been retired in the month of February, 2005 instead of February, 2004 and therefore, her services should be counted on that basis and benefits be released to her. 6. In reply of this argument, counsel for the State contended that the correct dated of birth of late Smt. Vimla Devi was 5.2.1942, which was entered into the service book Annexure P-6 and as there are two different dates in service record, appellant's wife has filed an application under section 19 of the Administrative Tribunal Act, 1985 before the State Administrative Tribunal, which was registered as Original Application No. 1287/01. After abolition of the SAT, the matter was transferred to this Court and the same was registered as WP No. 642712003. This writ petition was dismissed by this Court on 24.2.2004 holding that : "Considering the observation made by the Supreme Court in the aforesaid judgments and keeping in view the facts and circumstances of the present case as indicated hereinabove, no case is made out for issuing a mandamus for correction of the date of birth, accordingly, petition stands dismissed as devoid of substance without any order as to costs." 7. Thus, this Court has dismissed the writ petition filed for changing the date of birth of Vimla Devi from 5.2.1942 to 5.2.1943. This order has attained finality between the parties as the same was not assailed in any Court. This judgment was delivered on 24.2.2004 and thereafter, Vimla Devi died on 15.5.2004. 8. After death of Vimla Devi, an application was filed by her husband Vipin Kumar Saxena i.e. present appellant for change of date of birth of his wife in pursuance of a circular Annexure P-10, which was issued by the State Government under Rule 84 and 85 of the M.P. Financial Code, which authorises the Treasury Officer to hold an enquiry about the date of birth of a government employee. It is pointed out by the learned counsel for the State that the appellant approached the Treasury Officer without disclosing the fact that the petition filed by Vimla Devi for change of her date of birth has already been dismissed by the High Court. It is pointed out by the learned counsel for the State that the appellant approached the Treasury Officer without disclosing the fact that the petition filed by Vimla Devi for change of her date of birth has already been dismissed by the High Court. The Treasury Officer, after holding an enquiry gave a finding that correct date of birth of Vimla Devi was 5.2.1943 and not 5.2.1942 as entered into the service record. 9. After this order, another writ petition i.e. WP No. 5300/2006 (s) was filed by the present appellant claiming the benefits of retiral dues of his wife, treating her retirement to be in the month of February, 2005. This writ petition was allowed by a Single Bench of this Court vide order dated 8.5.2007. 10. A review application was filed by the State against the said order dated 8.5.2007, which was numbered as M.C.C. No. 479/2007 and learned Judge, who has decided the WP No. 530012006 (s) on 21.1.2008 recalled the said order dated 8.5.2007 and thus, WP No. 5300/2006 was restored. This case was listed for hearing on 15.2.2008 and was withdrawn by the learned counsel for the appellant with a liberty to file afresh if occasion so arises. 11. After withdrawing the aforesaid writ petition No. 5300/2006 (s), WP No. 1092/2008 was preferred by the present appellant on 28.2.2008 i.e. within two weeks of the withdrawal of the earlier writ petition No. 5300/2006 (s). WP No. 1092/2008 was dismissed by a Single Bench of this Court by the impugned order, hence the present writ appeal. 12. The contention of leaned counsel for the appellant is that after dismissal of earlier writ petition i.e. WP No. 6427/2003 on 24.2.2004, there was a fresh enquiry by the Treasury Officer in respect of date of birth of appellant's wife, in which the Treasury Officer has held that the date of birth of appellant's wife late Smt. Vimla Devi was 5.2.1943 and therefore, fresh cause of action accrued in favour of the appellant and therefore, the WP No. 1092/2008 was maintainable. According to learned counsel for the appellant, this being a subsequent event, the Court is bound to consider the same. According to learned counsel for the appellant, this being a subsequent event, the Court is bound to consider the same. In support of his arguments, he relied upon a judgment of apex Court in the case of Om Prakash Gupta v. Ranbir B. Goyal, (2002) 2 SCC 256 , in which the apex Court has held that the Court are bound to consider the subsequent event taking place during the pendency of proceedings. There is no doubt about this proposition of law. This proposition of law was laid down by the apex Court even in the case of Hasmat Rai and another v. Raghunath Prasad, 1981 JLJ 716 = AIR 1981 SC 1711 . But in this case, the Court was dealing with a situation where subsequent event have taken place during the pendency of the proceedings and these subsequent event were brought to the notice of the Court during the pendency of the proceedings itself. In the present case, the order passed in WP No. 6427/2003 has attained finality between the parties. The apex Court in the case of Syed Asadullah Kazmi v. The Additional District Judge, Allahabad and others, AIR 1981 SC 1724 had laid down that the subsequent events taking place after the conclusion of the proceedings, cannot be considered for reopening of a case. Similar was the view of the apex Court in the case of Kamleshwar Prasad v. Pradumanju Agrawal, AIR 1997 SC 2399 . In the aforesaid case a writ petition was filed challenging the order of eviction, which was passed on the ground of bona fide requirement of a land. The said judgment has attained finality and subsequently a writ petition was filed under Article 226 of the Constitution of India challenging the judgment and decree on the ground that landlord died after the decision. The apex Court dismissed the same and held that death of landlord, which has accrued after the decree of eviction, which has attained finality, is no ground to reopen the said case. 13. Thus, the findings arrived at by this Court in WP No. 6427/2003, which has attained finality, cannot be reopened on the ground of subsequent events i.e. the enquiry conducted by the Treasury Officer. 13. Thus, the findings arrived at by this Court in WP No. 6427/2003, which has attained finality, cannot be reopened on the ground of subsequent events i.e. the enquiry conducted by the Treasury Officer. Apart from that from the report of Treasury Officer (Annexure P-7) it is clear that the Treasury Officer has not considered the findings arrived at by this Court in WP No. 6427/2003 and therefore, the Treasury Officer has no jurisdiction to set aside or ignore the findings given by this Court in writ petition. 14. Moreover, the second writ petition i.e. WP No. 5300/2006, which was filed by the present appellant was withdrawn by the petitioner on 15.2.2008 with a liberty to file afresh if occasion so arises. This writ petition was withdrawn on 15.2.2008 and WP No. 1092/2008 was filed on 28.2.2008 without mentioning any subsequent development. So, there is nothing on record to show that any fresh occasion has arisen in favour of the appellant. Once the present appellant has withdrew a writ petition filed before this Court, the second writ petition was not maintainable in absence of any fresh cause of action. 15. Considering the overall scenario, we hold that second writ petition 1092/2008 filed by the present appellant was not at all maintainable. The learned writ Court has rightly dismissed the same. No ground for interference is made out. Appeal is therefore dismissed.