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2014 DIGILAW 796 (JHR)

Baban Singh v. State of Jharkhand

2014-07-24

APARESH KUMAR SINGH

body2014
ORDER : Heard counsel for the petitioner and the State. 2. The petitioner's grievance in the present writ application is in relation to claim of salary on the promoted post under the State Education Service Class II w.e.f. 15.11.2000 upon grant of such promotion by the notification dated 1.7.2009 issued by the respondents just before his retirement on 31.7.2009. Consequential revision in post retirement benefits have also been claimed in the prayer portion at 1(b), (c), (d) etc. 3. The ground upon which the said claim is made by the petitioner is that after having come into the cadre of Subordinate Education Service, Primary Branch on 12.8.1988, on promotion, he was actually posted on different post under Bihar Education Service Class II since 30.6.1998 onwards till his retirement. Therefore the respondents were not justified in denying him the claim of salary for the promoted post atleast from 15.11.2000 i.e. the date of creation of successor State of Jharkhand under the provision of Rule 58 of the Jharkhand Service Code since he had actually worked on the said post all along. Reference has been given of the different post held by him i.e. Area Education Officer, Angarha from 30.6.1998, post of D.S.E., Lohardaga from 18.6.2005, D.S.E., Deoghar w.e.f. 29.6.2005, Sub Divisional Education Officer, Ranchi w.e.f. 30.12.2006 till he retired on 31.7.2009. 4. However, one fact which is staring at the case of the petitioner and does not stand refuted is that after his retirement petitioner himself preferred a writ petition being W.P.S. No. 1593 of 2010 for payment of post retirement benefits and pursuant to the judgment passed on 28.6.2010 the respondents have passed a reasoned order on 16.12.2010 bearing memo no. 5181 which is at Annexure-B to the counter affidavit of the respondent-State filed on 8.8.2011 and has never been challenged. The aforesaid fact was suppressed by the petitioner in the writ petition. Apart from that after his retirement the instant plea raised by him in the present writ application for grant of salary for the promoted post and consequential revision of pensionary benefits accruing thereupon were also available to him to agitate in the writ petition filed by him in 2010 itself i.e. W.P.S. 1593 of 2010. Petitioner may have consciously or inadvertently not raised the plea in the said writ petition. Petitioner may have consciously or inadvertently not raised the plea in the said writ petition. However, in either of the case, the present writ petition is barred by the Principle of Constructive Res-judicata which has been explained in several judgment of the Hon'ble Supreme Court as also in the Privy Council and the Courts of England. The whole object and purpose behind the said principle is that the litigant should not be encouraged to split one cause of action and re-agitate it one after another, as it is not only in the interest of the republic that a litigation should attain finality but also in the interest of the individual, who should also not be vexed again and again for the same cause of action available to the concerned party at the first occasion itself. 5. The principle of Constructive Res-judicata has been beautifully explained by the Hon'ble Supreme Court in the judgment rendered in the case of State of U.P. v. Nawab Hussain reported in (1977) 2 SCC 806 , Para 3 and 4 of which is reproduced herein below:- “Para 3:-The principle of estoppel per rem judicatam is a rule of evidence. As has been stated in Marginson v. Blackburn Borough Council, it may be said to be “the broader rule of evidence which prohibits the reassertion of a cause of action”. This doctrine is based on two theories: (i) the finality and conclusiveness of judicial decisions for the final termination of disputes in the general interest of the community as a matter of public policy, and (ii) the interest of the individual that he should be protected from multiplication of litigation. It therefore serves not only a public but also a private purpose by obstructing the reopening of matters which have once been adjudicated upon. It is thus not permissible to obtain a second judgment for the same civil relief on the same cause of action, for otherwise the spirit of contentiousness may give rise to conflicting judgments of equal authority, lead to multiplicity of actions and bring the administration of justice into disrepute. It is the cause of action which gives rise to an action, and that is why it is necessary for the courts to recognise that a cause of action which results in a judgment must lose its identity and vitality and merge in the judgment when pronounced. It is the cause of action which gives rise to an action, and that is why it is necessary for the courts to recognise that a cause of action which results in a judgment must lose its identity and vitality and merge in the judgment when pronounced. It cannot therefore survive the judgment, or give rise to another cause of action on the same facts. This is what is known as the general principle of res judicata. Para 4:-But it may be that the same set of facts may give rise to two or more causes of action. If in such a case a person is allowed to choose and sue upon one cause of action at one time and to reserve the other for subsequent litigation, that would aggravate the burden of litigation. Courts have therefore treated such a course of action as an abuse of its process and Somervell, L.J., has answered it as follows in Greenhalgh v. Mallard: “I think that on the authorities to which I will refer it would be accurate to say that res judicata for this purpose is not confined to the issues which the court is actually asked to decide, but that it covers issues or facts which are so clearly part of the subject-matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them.” This is therefore another and an equally necessary and efficacious aspect of the same principle, for it helps in raising the bar of res judicata by suitably construing the general principle of subduing a cantankerous litigant. That is why this other rule has some times been referred to as constructive res judicata which in reality, is an aspect or amplification of the general principle.” 6. In these circumstances, therefore, the instant writ petition being hit by the principle of Constructive res-judicata as also on the Principles of suppressio veri suggestio falsi cannot be entertained and is accordingly dismissed.