Research › Search › Judgment

Himachal Pradesh High Court · body

2016 DIGILAW 2152 (HP)

State of Himachal Pradesh v. Virendra Kumar

2016-10-04

MANSOOR AHMAD MIR, TARLOK SINGH CHAUHAN

body2016
Tarlok Singh Chauhan, J. This Letters Patent Appeal is directed against the judgment rendered by the learned writ Court on 02.11.2010 whereby it allowed the writ petition filed by the respondent herein and directed the appellants herein to consider his case for fixation of pay under FR 22 (a) (i) on 1.3.1986 in the pay scale of Rs.2100-3700, for re-fixation of his pay on 1.1.1987 under FR 22-C, for fixation of his pay under FR 22 (a) (i) on 4.4.1987 in the pay scale of Rs.2400-4000 and for re-fixation on 1.1.1988 under FR 22-C. 2. Before proceeding any further, it would be necessary to set out in brief the undisputed facts. 3. The respondent/writ petitioner (hereinafter referred to as the ‘writ petitioner’) on 31.12.1965 was appointed as Lecturer with the respondent. In the year 1986 the Higher Secondary System of School Education was done away with and instead Senior Secondary School stood established. The writ petitioner continued to work on the post of Lecturer till 3.4.1987 and it was thereafter that he was appointed and posted as Principal and joined as such on 4.4.1987 at Govt. Senior Secondary School, Banikhet, District Chamba. However, the writ petitioner sought volunteer retirement which was granted by the appellants/ writ respondents (hereinafter referred to as the ‘writ respondents’) and he accordingly retired on 16.3.1991. 4. The writ petitioner initially filed CWP No.598 of 1984 which upon creation of the Administrative Tribunal came to be transferred to the said Tribunal and was assigned T.A. No. 81/1987, wherein he claimed the following substantive reliefs: (a) That the respondent may be directed to modify the pay scale of Rs.825-25-850-30-1000-40-1200-50-1400-60-1580 to Rs.825-25-850-30-1000-40-1200-50-1400-60-1880 by increasing the maximum of pay scale by 5 increments. (b) That the respondent may be directed to fix the pay of the petitioner in the higher pay scale of Rs.400-800 under Fundamental Rule 22-C. 5. However, before the above petition could be decided and after the petitioner having stood voluntarily retired from service, again approached this Court by way of CWP No. 680 of 1994, which too was transferred to the Administrative Tribunal and registered as T.A. No.85/1987 and the substantive relief claimed therein reads thus: (a) That the petitioners be held entitled to the award of pay scale of Rs.400-800 on the basis of 25% of their strength from 1.11.1966 instead of 31.12.1977. (b) That the respondent may kindly be directed to award the pay scale of Rs. 700-1100 to 15% Lecturers of Government Higher Secondary Schools with effect from the date it was awarded to the Headmasters/Headmistresses of Government High Schools. 6. Both the aforesaid T.As. No.81/1987 and 85/1987 were decided by the Tribunal on 8.1.1992 by a common judgment, the operative portion whereof read thus: “TA -81/87 and TA 85/87 have been filed by Shri Virender Kumar. Initially, inTA-85/87 Shri Ganga Parshad was also one of the co-petitioner with Shri Virender Kumar, whose name was deleted vide order dated May 23, 1986 and as such, the petitioner Virender Kumar is entitled to the relief only in one of the petitions and we award the same to him in TA-81/87 on the basis of TA-83/87 in which we direct the respondent to fix the petitioner in the revised pay scale of Rs.700-1580/- with effect from January 1, 1978. Shri Ram Prakash in TA-83/87 and Virender Kumar in TA-81/87 were both Lecturers posted in Government Higher Secondary School, Matiana and as such in the case of Virender Kumar TA-81/87 and TA-85/87 we direct the respondent to fix the petitioner in the revised pay scale of Rs.700-1580/- with effect from January 1, 1978 and pay him the arrears to which he may be found entitled to within a period of three months in view of the directions given and accordingly the petitioner is entitled to all the consequential benefits to which he may be found eligible with no order as to costs.” 7. The writ petitioner thereafter again approached the learned Administrative Tribunal by way of O.A. No. 941 of 1996 wherein he prayed for the following reliefs: (i) Respondents be directed to fix the pay of the applicant in the pay scale of Rs.700-1580 w.e.f. 1.1.1978 in terms of the judgment of the Hon’ble Admn. Tribunal in T.A. Nos. 83/87 and 85/87 delivered on 8.1.1992. (ii) Respondent be directed to treat the applicant as Lecturer w.e.f. 31.12.1965 to 7.4.1987 and grant him 2 Prop. Increments of Rs.100/- each on 1.1.1986 as the applicant has worked as Lecturer since 31.12.1965 to 3.4.1987. Tribunal in T.A. Nos. 83/87 and 85/87 delivered on 8.1.1992. (ii) Respondent be directed to treat the applicant as Lecturer w.e.f. 31.12.1965 to 7.4.1987 and grant him 2 Prop. Increments of Rs.100/- each on 1.1.1986 as the applicant has worked as Lecturer since 31.12.1965 to 3.4.1987. (iii) Respondent be directed to fix the pay of the applicant in the next promotion grade of Rs.2100-3700 by applying FR 22 (c ) on 4.4.1987 the date the applicant got the Class II (gazetted) post and started discharging the duties in the higher Class II post (gazetted). (iv) Respondent be directed to award the revised pay scale of Rs.2400-4000 of Principal to the applicant w.e.f. 1.3.1990 and fixing the pay under FR 22-C. (v) Respondents be directed to treat Rs.150/- Sp. Pay as pay in calculating the applicant’s pension. (vi) Respondent be directed to revise the applicant’s pension and pay him the enhanced pension and other consequential retirement benefits like gratuity, leave encashment, commuted value of pension with all arrears due. (vii) Direct the respondent to pay penal interest to the applicant at market value to the applicant under sub para (i) to (iv) and w.e.f. 29.12.1995 on amount which become payable to the applicant under sub paras (v) and (vi) till the date of realisation.” 8. However, the learned Administrative Tribunal dismissed the Original Application No. 941 of 1996 on 8.8.1996 by observing as under: “We have heard the petitioner in person. The claim sought for by him has already been granted to him in the earlier applications TA-81/87 and TA-85/87 with consequential benefits as detailed in the operating part of the decision of this Tribunal dated January 8, 1992. His grouse is that the said order has not been implemented as arrears arisen from the consequential benefits therein have not been paid. The applicant is entitled to move an application for execution in terms of Section 27 of the Administrative Tribunal Act but he cannot claim the benefits herein as the earlier judgment dated January 8, 1992 has become final. This application thus is not maintainable on the same cause of action seeking the same relief. Accordingly this application is dismissed in limine. This application thus is not maintainable on the same cause of action seeking the same relief. Accordingly this application is dismissed in limine. Before parting we may observe that this dismissal shall not in any way bar the applicant from getting the earlier judgment of this Tribunal dated January 8, 1992 implemented through this Tribunal in terms of Section 227 of ATA to above.” 9. Admittedly, the writ petitioner did not assail the said decision, but surprisingly, filed another O.A. No. 759 of 1998 before the learned Tribunal claiming therein virtually the same reliefs as had been earlier claimed by him in O.A. No. 941 of 1996 as is evident from the relief clause which is extracted below: (i) The pay of the applicant be fixed under F.R. 22 (a) (i) on 01.03.1986 in the pay scale of Rs.2100-3700 and refixed on 01.01.1987 under F.R. 22-C. (ii) The pay of the applicant be fixed under F.R. 22 (a) (i) on 04.04.1987 in the pay scale of Rs.2400-4000 and re-fixed on 01.01.1988 under F.R. 22-C. (iii) The respondent be directed to pay the arrears of higher salaries to the applicant. (iv) Interest be paid to the applicant @ 18% per annum on the amount of arrears on account of fixation of his pay, when he was deemed to have been appointed to the higher post of Lecturer, Senior Secondary School, beginning three months after pay-revision order dated 23.03.1989, that is from 23-06-1989 to date of payment. (v) Interest be paid to the applicant @ 18% per annum on the amount of arrears of higher salaries on account of fixation of pay, when he was appointed to the post of Principal, Senior Secondary School from the lower post of Lecturer, Senior Secondary School, beginning three months of joining of the said higher post on 04.04.1987, that is from 04.07.1987 to date of payment. (vi) Further grant the applicant all consequential benefits. (vii) Cost in the case be awarded to the applicant.” 10. It is this petition, which upon closure of the Tribunal came to be transferred to this Court and was registered as CWP (T) No. 5053 of 2008 and has been allowed by the learned Single Judge of this Court. 11. (vi) Further grant the applicant all consequential benefits. (vii) Cost in the case be awarded to the applicant.” 10. It is this petition, which upon closure of the Tribunal came to be transferred to this Court and was registered as CWP (T) No. 5053 of 2008 and has been allowed by the learned Single Judge of this Court. 11. The respondents filed their reply raising preliminary submissions regarding non-maintainability of the petition on the ground that the writ petitioner had sought the same relief in O.A. No. 941/1996 which had already been rejected by the learned Tribunal. In addition to that, it was averred that on account of the writ petitioner having filed Contempt Petition No. 1/2001 in Execution Petition No. 15/96 in TA No. 1/87 and 85/87 and contempt petition No.55/97 in Execution Petition No. 15/96 in TA No. 81/87 and 85/87 and both the contempt petitions having been withdrawn by the writ petitioner on 28.03.2001 the instant petition was not maintainable. Lastly, the maintainability of the petition was further questioned on the ground of delay and laches. 12. It is evidently clear from the aforesaid sequence of events that the reliefs now claimed in O.A. No. 759 of 1998 which was registered as CWP (T) No. 5053 of 2008, were identical and same to those sought for in OA No. 941 of 1996, which was dismissed by the learned Tribunal and such dismissal has attained finality and thus was barred by principles of res judicata. 13. It is well settled that cause of action once agitated leaves no scope for fresh proceedings to be initiated as the same are barred by the principles of res judicata. Although, the Code of Civil Procedure, does not apply but the principles enshrined therein would certainly supply as held by the Hon’ble Supreme Court in Gulabchand Chhotalal Parikh v. State of Gujarat AIR 1965 SC 1153 , Babubhai Muljibhai Patel vs. Nandlak Khodidas Barot (1974) 2 SCC 706 and Sarguja Transport Service vs. STAT (1987) 1 SCC 5 ). 14. The position of law being settled, leaves no manner of doubt that the O.A. No.759 of 1998 registered as CWP (T) No. 5053 of 2008 was in fact not maintainable. 15. 14. The position of law being settled, leaves no manner of doubt that the O.A. No.759 of 1998 registered as CWP (T) No. 5053 of 2008 was in fact not maintainable. 15. In addition to above, it would be noticed that though the writ petitioner sought volunteer retirement on 16.3.1991, however, the instant petition was filed only in the year 1998 and was thus clearly barred by limitation as prescribed under Section 21 of the Administrative Tribunals Act, 1985 (for short ‘Act’), which reads as thus: “21. Limitation. -(1) A Tribunal shall not admit an application,— (a) in a case where a final order such as is mentioned in clause (a) of sub-section (2) of section 20 has been made in connection with the grievance unless the application is made, within one year from the date on which such final order has been made; (b) in a case where an appeal or representation such as is mentioned in clause (b) of sub-section (2) of section 20 has been made and a period of six months had expired thereafter without such final order having been made, within one year from the date of expiry of the said period of six months. (2) Notwithstanding anything contained in sub-section (1), where— (a) the grievance in respect of which an application is made had arisen by reason of any order made at any time during the period of three years immediately preceding the date on which the jurisdiction, powers and authority of the Tribunal becomes exercisable under this Act in respect of the matter to which such order relates; and (b) no proceedings for the redressal of such grievance had been commenced before the said date before any High Court, the application shall be entertained by the Tribunal if it is made within the period referred to in clause (a), or, as the case may be, clause (b), of sub-section (1) or within a period of six months from the said date, whichever period expires later. (3) Notwithstanding anything contained in sub-section (1) or subsection (2), an application may be admitted after the period of one year specified in clause (a) or clause (b) of sub-section (1) or, as the case may be, the period of six months specified in sub-section (2), if the applicant satisfies the Tribunal that he had sufficient cause for not making the application within such period.” 16. While considering the aforesaid Section, the Hon’ble Supreme Court in D.C.S. Negi vs. Union of India and others, decided on 07.03.2011 in SLP (C) No.7956 of 2011, has very clearly delineated the powers of the Tribunal in respect of limitation and it was held that Section 21 of the Act unambiguously mandates the period within which Government employee has to agitate before the Tribunal for consideration and adjudication of his case and it is apt to reproduce the following observations: “A reading of the plain language of the above reproduced Section makes it clear that the Tribunal cannot admit an application unless the same is made within the time specified in clauses (a) and (b) of Section 21 (1) or Section 21 (2) or an order is passed in terms of sub-section (3) for entertaining the application after the prescribed period. Since Section 21 (1) is couched in negative form, it is the duty of the Tribunal to first consider whether the application is within limitation. An application can be admitted only if the same is found to have been made within the prescribed period or sufficient cause is shown for not doing so within the prescribed period and an order is passed under Section 21 (3). In the present case, the Tribunal entertained and decided the application without even adverting to the issue of limitation. Learned counsel for the petitioner tried to explain this omission by pointing out that in the reply filed on behalf of the respondents, no such objection was raised but we have not felt impressed. In our view, the Tribunal cannot abdicates its duty to act in accordance with the statute under which it is established and the fact that an objection of limitation is not raised by the respondent / non-applicant is not at all relevant.” 17. In the present case, the learned writ Court entertained and decided the application (petition) without even adverting to the issue of limitation, though it had been specifically raised. This course obviously was not permissible in the teeth of the provisions contained in Section 21 of the Act. 18. In the present case, the learned writ Court entertained and decided the application (petition) without even adverting to the issue of limitation, though it had been specifically raised. This course obviously was not permissible in the teeth of the provisions contained in Section 21 of the Act. 18. As we have already held that the Original Application No. 759 of 1998 (CWP [T] No. 5053 of 2008) to be not maintainable, therefore, there was no jurisdiction vested in the learned Writ Court to have proceeded to determine the case on merits and decide the same, more particularly when the petition on the same cause of action had already been dismissed by the learned Tribunal on 8.8.1996 and the said order had attained finality. 19. In view of the aforesaid discussion, we find merit in this appeal and the same is accordingly allowed and the order passed by the learned writ Court dated 02.11.2010 is set-aside and O.A. No. 759 of 1998 (CWP [T] No. 5053 of 2008) filed by the writ petitioner is ordered to be dismissed, so also the pending application(s) if any, leaving the parties to bear their own costs.