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Madhya Pradesh High Court · body

2016 DIGILAW 901 (MP)

Govind Prasad Saini v. M. P. State Electricity Board

2016-10-05

SUJOY PAUL

body2016
ORDER : Sujoy Paul, J. This petition filed under Article 226 of the Constitution challenges the order dated 13-05-2011 (Annexure P/14) whereby the petitioner's claim for compassionate appointment is rejected by the respondents. 2. Draped in brevity, the admitted facts between the parties are that the petitioner's father was working as Line Assistant Grade-1 and died in harness on 11-11-1998. The petitioner preferred an application for grant of compassionate appointment on 17-12-1998. This application was followed by another application filed on 14-01-1999 in a prescribed format. The petitioner's claim for grant of compassionate appointment was not considered by the respondents on the strength of a decision taken by Circular dated 01-09-2000. The department by communication dated 22-03-2001 (Annexure P/3), informed the petitioner that because of financial crunch faced by department, by Circular dated 01-09-2000 the ban is being imposed on grant of compassionate appointment. This is also admitted between the parties that certain retiral dues of deceased employee were given to the petitioner. The petitioner filed WP. No. 15114/06 before this Court which was decided on 27-10-2006. This Court followed the Division Bench judgment of this Court in the case of T. Swamy Dass v. Union of India 2002 (3) MPLJ 242 in WP. No. 6246/02 (Smt. Anupama @ Sadhna Pawar v. Chairman, MPSEB and others). In the said judgment, it was held that the policy which was prevailing at the time of death of an employee and at the time when the petitioner preferred the application for grant of compassionate appointment should be the basis for consideration of petitioner's claim. This Court in petitioner's case WP. No.15114/06 followed the ratio decidendi of T. Swamy Dass and Smt. Anupama @ Sadhna Pawar (supra) and directed the respondents to consider the case of the petitioner in the light of aforesaid judgments. In turn, the respondents rejected the claim of the petitioner by communication dated 23-01-2007. This order was again challenged by the petitioner by filing WP. No. 1928/07. This WP was disposed of by order dated 01-03-2011. This Court set aside the order dated 23-01-2007 and directed the respondents to pass a reasoned order within two months. In turn, the impugned order dated 13-05-2011 (Annexure P/14) is passed. 3. Shri Sanjayram Tamrakar, learned counsel for the petitioner contends that the respondents are bound by the order passed in WP. No.15114/06. This Court set aside the order dated 23-01-2007 and directed the respondents to pass a reasoned order within two months. In turn, the impugned order dated 13-05-2011 (Annexure P/14) is passed. 3. Shri Sanjayram Tamrakar, learned counsel for the petitioner contends that the respondents are bound by the order passed in WP. No.15114/06. Thus, the policy of compassionate appointment which was prevailing at the time of submission of application for grant of compassionate appointment will prevail. The respondents did not take a decision on the said application promptly. If the decision would have been taken promptly before imposition of ban w.e.f. 01-09-2000, the petitioner's right of consideration would not have been denied. Reliance is placed on (2015) 7 SCC 412 (Canara Bank and another v. M. Mahesh Kumar). 4. Shri Prateek Dubey, learned counsel for the respondents-employer supported the order dated 13-05-2011. He submits that as per subsequent Full Bench judgment of this Court in the case of 2010 (3) MPLJ 213 (Bank of Maharashtra & Anr. v. Manoj K. Deharia & Anr.), the judgments of T. Swamy Dass and Anupama @ Sadhna Pawar (supra) are overruled. As per this Full Bench judgment, the right of consideration will be as per the policy which was prevailing on the date of consideration and not as per policy which was prevailing on the date of death of employee or on the date the application for grant of compassionate appointment was preferred. 5. No other point is pressed by the parties. 6. I have bestowed my anxious consideration on the rival contentions of the parties and perused the record. 7. It is seen that in the relief clause 7 (ii), the petitioner has made an incorrect prayer. It is totally foreign to the controversy in hand. However, in Para 1 of the petition, the petitioner has disclosed the date of impugned order and reply of the respondents also shows that the respondents have clearly understood that the order dated 13-05-2011 is under challenge. Hence, in the peculiar facts of this case, I deem it proper to examine the propriety and validity of order dated 13-05-2011. 8. The contention of learned counsel for the respondents is solely based on the aforesaid Full Bench decision. It is seen that the order passed by this Court in WP. No.15114/06 has attained finality. This judgment is not called in question by either side. 8. The contention of learned counsel for the respondents is solely based on the aforesaid Full Bench decision. It is seen that the order passed by this Court in WP. No.15114/06 has attained finality. This judgment is not called in question by either side. If the Full Bench has taken a different view in a different matter subsequently, that will not have an effect of nullifying the previous order passed in WP. No. 15114/06. The order passed in WP. No.15114/06 has attained finality between the parties inter se. No doubt, Full Bench judgment will hold the field, so far as legal proposition is concerned, but the said judgment will not negate a previous judgment which has attained finality between the parties inter se. The question whether an issue in a case between the same parties, which had been finally determined, could be negated relying upon the interpretation of law given subsequently in some other case, the answer on this question is given by Supreme Court in negative. In Satyadhyan Ghosal v. Deorajin Debi AIR 1960 SC 941 , the Apex Court held that the principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a res is judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation. When a matter whether on a question of fact or a question of law has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again. This principle of res judicata is embodied in relation to suits in Section 11 of the Code of Civil Procedure; but even where Section 11 does not apply, the principle of res judicata has been applied by courts for the purpose of achieving finality in litigation. The result of this is that the original court as well as any higher court must in any future litigation proceed on the basis that the previous decision was correct. The result of this is that the original court as well as any higher court must in any future litigation proceed on the basis that the previous decision was correct. Similar view is taken by Supreme Court in the case of Daryao v. State of U.P. AIR 1961 SC 1457 , Greater Cochin Development Authority v. Leelamma Valson (2002) 2 SCC 573 , Bhanu Kumar Jain v. Archana Kumar (2005) 1 SCC 787 and Gulabchand Chhotalal Parikh v. State of Gujarat AIR 1965 SC 1153 . The Constitution Bench of Supreme Court in Amalgamated Coalfields Ltd. v. Janapada Sabha Chhindwara, AIR 1964 SC 1013 made it clear that general principle of res judicata applies to writ petition filed under Article 32 or 226 of Constitution. The aforesaid principle is followed by Supreme court in (2014) 5 SCC 75 (Dr. Subramanian Swamy v. State of Tamilnadu and others). Thus, the sole reason canvassed by Shri Prateek Dubey, cannot be accepted. 9. Resultantly, the order dated 13-05-2011 is set aside. The respondents are directed to consider the case of the petitioner as directed in previous case WP. No. 15114/06 within two months. The outcome of such consideration shall be communicated to petitioner within aforesaid time. 10. The petition is allowed. No cost.