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2016 DIGILAW 112 (UTT)

Asha Saxena v. State of Uttarakhand

2016-03-05

K.M.JOSEPH, V.K.BIST

body2016
JUDGMENT : K.M. JOSEPH, J. Petitioner seeks the following reliefs: “1. Issue a writ order or direction in the nature of mandamus directing the respondent to amend the Statute for enhancement of age of superannuation up to65 years as envisaged in the Scheme dated 31/12/2008, with effect from 11/11/2009 that is from the date of implementation of the said scheme in consonance with the mandate of the judgment of Hon’ble Supreme Court and Hon’ble High Court of Uttarakhand. 2. Issue a writ, order or direction in the nature of certiorari quashing the impugned orders dated 22.3.2011 by which her representation has been rejected and dated 30.6.2011 by which petitioner retired on 30.6.2011. 3. Issue a writ, order or direction in the nature of mandamus directing the respondents to permit the petitioner to join her services with all consequential benefits, at post as Associate Professor English, in Government Postgraduate Degree College, Ranikhet, Almora and pay her salary and other emoluments on month to month basis. 4. Issue a writ, order and direction in the nature of mandamus directing the respondents to pay all the arrears of her salary since July 2011 when she was wrongly retired for no-fault of hers along with all consequential benefits including promotion due.” 2. By order dated 31.12.2008, Government of India brought out a Scheme providing for certain benefits to the employees. It was, essentially, meant to apply to the employees of the Central Universities. Petitioner was working as Associate Professor in a Government College in the State of Uttarakhand. Going by the criterion of attaining 60 years, petitioner was due to retire in the year 2011. Petitioner stood retired with effect from the date she attained 60 years. Petitioner made reference to a judgment of this Court, wherein a Bench of this Court took the view that, if the Scheme propounded under order dated 31.12.2008 is to be implemented, it has to be implemented as a composite scheme and as a whole. Against the said judgment, there were appeals carried to the Hon’ble Apex Court. Petitioner also filed a writ petition under Article 32 of the Constitution of India before the Supreme Court. There were transfer petitions also. Against the said judgment, there were appeals carried to the Hon’ble Apex Court. Petitioner also filed a writ petition under Article 32 of the Constitution of India before the Supreme Court. There were transfer petitions also. All the cases came to be considered and decided by the judgment of the Hon’ble Apex Court rendered in the case of Jagdish Prasad Sharma & others vs. State of Bihar & others, reported in (2013) 8 SCC 633 . It is, at this juncture, necessary to refer to paragraph 80 of the said judgment, which reads as follows: “80. We, therefore, see no reason to interfere with the impugned judgment and order of the Division Bench of the High Court in all these matters in the light of the various submissions made on behalf of the respective parties. The several Appeals, Writ Petitions and the Transferred Case, which involve the same questions as considered in this batch of cases, are all dismissed. However, the Appeals filed by the State of Uttarakhand and Civil Appeals arising out of SLP(C) Nos. 6724, 13747 and 14676 of 2012 are allowed. As far as the Transfer Petition Nos. 1062-1068 OF 2012 are concerned, the same are allowed and the Transferred Cases are dismissed. The Contempt Petitions are disposed of by virtue of this judgment. However, persons who have continued to work on the basis of the interim orders passed by this Court or any other Court, shall not be denied the benefit of service during the said period. The Appeals and Petitions having been dismissed, both the State Authorities and the Central Authorities will be at liberty to work out their remedies in accordance with law.” 3. We have heard Mr. Praveen Kumar Rai, learned counsel for the petitioner and Mr. Anil Kumar Joshi, learned Additional Chief Standing Counsel for the State. 4. According to Mr. Praveen Kumar Rai, learned counsel for the petitioner, the Hon’ble Apex Court has laid down the principle and, therefore, the ratio decidendi to the effect that the UGC Scheme must be implemented as a whole. The implementation of the Scheme is optional as far as the State Governments are concerned; but, once the State Government takes a decision to implement the Scheme, then it becomes imperative that the Scheme is implemented as a whole. The implementation of the Scheme is optional as far as the State Governments are concerned; but, once the State Government takes a decision to implement the Scheme, then it becomes imperative that the Scheme is implemented as a whole. In this case, according to the learned counsel for the petitioner, the State Government has implemented the Scheme only partially. The partial implementation is done so as to avail of the monetary benefits flowing from the implementation of the Scheme. When it comes to the portion of the Scheme, which is, in a manner of speaking, detrimental to the State, namely, the enhancement of the age of superannuation, the State Government illegally did not implement the Scheme. The date of implementation of the enhanced age of superannuation is 04.09.2012. Admittedly, petitioner attained the age of 60 years prior to the said date, namely, in the year 2011. It is submitted that the Hon’ble Apex Court, in paragraph 79 of the judgment in the case of Jagdish Prasad Sharma & others vs. State of Bihar & others (supra), has, in fact, held as follows: “79. However, within this class of institutions there is a separate group where the State Governments themselves have taken a decision to adopt the scheme. In such cases, the consequences envisaged in the scheme itself would automatically follow.” 5. Therefore, he would submit that it is clear that the present writ petition claiming relief on the said basis is maintainable. 6. Per contra, Mr. A.K. Joshi, learned Additional Chief Standing Counsel, would submit that the petitioner having filed a writ petition claiming virtually the same relief and the said writ petition having been dismissed by the Hon’ble Supreme Court, as is evident from the portion of the judgment, which we have extracted herein before, it is not open to her to maintain this writ petition. 7. Confronted with this situation, learned counsel for the petitioner drew our attention to the judgment of the Hon’ble Apex Court rendered in the case of Sanjay Singh & another vs. U.P. Public Service Commission, Allahabad & another, reported in (2007) 3 SCC 720 . The learned counsel drew our attention to paragraph 10 of the said judgment, which reads as follows: “10. The contention of Commission also overlooks the fundamental difference between challenge to the final order forming part of the judgment and challenge to the ratio decidendi of the judgment. The learned counsel drew our attention to paragraph 10 of the said judgment, which reads as follows: “10. The contention of Commission also overlooks the fundamental difference between challenge to the final order forming part of the judgment and challenge to the ratio decidendi of the judgment. Broadly speaking, every judgment of superior courts has three segments, namely, (i) the facts and the point at issue; (ii) the reasons for the decision; and (iii) the final order containing the decision. The reasons for the decision or the ratio decidendi is not the final order containing the decision. In fact, in a judgment of this Court, though the ratio decidendi may point to a particular result, the decision (final order relating to relief) may be different and not a natural consequence of the ratio decidendi of the judgment. This may happen either on account of any subsequent event or the need to mould the relief to do complete justice in the matter. It is the ratio decidendi of a judgment and not the final order in the judgment, which forms a precedent. The term ‘judgment’ and ‘decision’ are used, rather loosely, to refer to the entire judgment or the final order or the ratio decidendi of a judgment. Rupa Ashok Hurra (supra) is of course, an authority for the proposition that a petition under Article 32 would not be maintainable to challenge or set aside or quash the final order contained in a judgment of this Court. It does not lay down a proposition that the ratio decidendi of any earlier decision cannot be examined or differed in another case. Where violation of a fundamental right of a citizen is alleged in a petition under Article 32, it cannot be dismissed, as not maintainable, merely because it seeks to distinguish or challenge the ratio decidendi of an earlier judgment, except where it is between the same parties and in respect of the same cause of action. Where a legal issue raised in a petition under Article 32 is covered by a decision of this Court, the Court may dismiss the petition following the ratio decidendi of the earlier decision. Such dismissal is not on the ground of ‘maintainability’ but on the ground that the issue raised is not tenable, in view of the law laid down in the earlier decision. Such dismissal is not on the ground of ‘maintainability’ but on the ground that the issue raised is not tenable, in view of the law laid down in the earlier decision. But if the court is satisfied that the issue raised in the later petition requires consideration and in that context the earlier decision requires re-examination, the court can certainly proceed to examine the matter (or refer the matter to a larger Bench, if the earlier decision is not of a smaller Bench). When the issue is re-examined and a view is taken different from the one taken earlier, a new ratio is laid down. When the ratio decidendi of the earlier decision undergoes such change, the final order of the earlier decision as applicable to the parties to the earlier decision, is in no way altered or disturbed. Therefore, the contention that a writ petition under Article 32 is barred or not maintainable with reference to an issue which is the subject-matter of an earlier decision, is rejected.” 8. Learned counsel for the petitioner would, further, submit that, in fact, orders of clarification have been issued by the Hon’ble Apex Court, which read as follows: “We have heard learned counsel for the applicants at length. In our opinion, the observations made in paragraph 19 of the judgment in Civil Appeal Nos. 5527-5543 of 2013, titled “Jagdish Prasad Sharma etc. etc. versus State of Bihar and others”, passed on July 17, 2013, reported in (2013) 8 SCC 633 are self speaking and do not require any further clarification / modification. The applicants are at liberty to seek their remedy on the basis of the observations made therein. The application is, accordingly, disposed of.” 9. But, learned counsel for the petitioner fairly admits that these orders have been passed on applications moved by others and, in fact, an application on similar lines is filed by the petitioner, which is pending consideration before the Hon’ble Apex Court (it is said that it is lying under defect). 10. It is necessary to notice the facts of the decision in Sanjay Singh & another vs. U.P. Public Service Commission, Allahabad & another (supra). 10. It is necessary to notice the facts of the decision in Sanjay Singh & another vs. U.P. Public Service Commission, Allahabad & another (supra). That is a case, where the writ petitions were filed under Article 32 of the Constitution of India by candidates, who were unsuccessful in selection to the post of Civil Judge (Junior Division) conducted by the Public Service Commission at the instance of the High Court of Allahabad. There was a selection done in an earlier year. The system of evaluation of merit of the candidates, namely, statistical scaling was the subject matter of the judgment rendered by the court in U.P. Public Service Commission vs. Subhash Chandra Dixit, reported in (2003) 12 SCC 701 . Therein, the Apex Court had upheld the system of scaling done by the Commission. The system of scaling, as was done earlier, which had been upheld by the Apex Court, was subject matter of criticism in the writ petitions filed in regard to the latter selection. It was, in the context of the said facts and the question as to whether a judgment of the Apex Court could be challenged under Article 32 and whether it could be reviewed, the Apex Court observed as follows: “8. It is true that a judgment of this Court cannot be challenged in a petition under Article 32. It can, however, be reviewed under Article 137 or in exceptional circumstances reconsidered in exercise of inherent power, on a curative petition (See Rupa Ashok Hurra). It is equally true that a final judgment of a High Court can be challenged only by an appeal under Articles 132 to 134 or by obtaining ’special leave’ under Article 136 and not by a petition under Article 32. But that is not the issue here.” 11. It is all the more important to notice that, in paragraph 10 of the judgment, the Hon’ble Apex Court has accepted the principle laid down in its application to an inter-party judgment (see underlined portion in paragraph 10 extracted above). 12. It is, undoubtedly, true that, when the Apex Court decides a case, it could lay down, in the facts of a speaking order, law within the meaning of Article 141. 12. It is, undoubtedly, true that, when the Apex Court decides a case, it could lay down, in the facts of a speaking order, law within the meaning of Article 141. Even if Article 141 was not there, under the theory of precedents, the law, which is laid down by the Supreme Court or the highest court, would be binding on all the courts. This principle has its relevance when it applies in the field of precedents. When a case is decided between two parties, the ratio decidendi, which is laid down therein being the law when it flows from the Supreme Court of India, is ordinarily applicable to all the courts other than the Supreme Court. As far as the Supreme Court, itself, is concerned, ordinarily, the Supreme Court would follow the ratio decidendi laid down by it. But, that would not prevent the Apex Court from taking a different view, provided that the matter is dealt with by appropriate number of judges, subject to the doctrine of stare decisis. But, this is a far cry from saying that, when a case is filed by a party before the Apex Court and the said case stands dismissed, the High Court is expected to explore the argument that the party can extricate itself from the binding nature of the decision on the party by virtue of the ratio decidendi being in its favour allegedly. We would think that we would be guilty of judicial indiscipline, besides also overlooking a binding inter-party judgment between the parties, as, in this case, the writ petition filed for virtually the same reliefs stands dismissed. Admittedly, petitioner has also sought a clarification apparently being advised about the legal effect of the actual disposal of the writ petition as contained in the judgment. 13. Therefore, in the light of this discussion, we see no merit in the writ petition. The writ petition will stand dismissed without any order as to costs.