Shambhoo Nath Verma vs State Of U.P.Through Secy Family ...
2023 Latest Caselaw 24831 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


Reserved On 28.08.2023
 
Neutral Citation No. - 2023:AHC-LKO:59005-DB
 
 Court No. - 9
 
Case :- WRIT - A No. - 2001776 of 2004
 
Petitioner :- Shambhoo Nath Verma
 
Respondent :- State Of U.P.Through Secy Family Welfare And Anors
 
Counsel for Petitioner :- S.S.L.Srivastava
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Rajan Roy,J.

Hon'ble Saurabh Lavania,J.

(Review Application No. 15821 of 2021)

Heard Sri S.S.L. Srivastava, learned Counsel for the petitioner- applicant and learned State Counsel on the application for review, under issue, as also on merits of the case.

The instant review application has been filed under Chapter 5 Rule XII of High Court Rules, 1952 in relation to the judgment and order dated 23.07.2019 passed in Writ Petition No. 1776(S/B) of 2004 (Shambhoo Nath Verma Versus State of U.P. and another).

In order to decide the present review application this Court finds it appropriate to narrate some relevant facts of the case.

Admittedly, the petitioner-applicant was appointed on the post of 'Punch Operator' in 'Rajya Swasthya Pariwar Kalyan Sansthan, Uttar Pradesh' (in short 'Sansthan'), Indira Nagar, Lucknow on 15.06.1976 and no rule or Government Order related to 'Sansthan' has been referred indicated by the petitioner-applicant (who admittedly does not possess the essential qualification prescribed for the post of 'Machine Operator' i.e. Graduation with Certificate or Diploma in Machine Operation), according to which 'Punch Operator' appointed in 'Sansthan' can be promoted on the post of 'Machine Operator' in the 'Sansthan'.

In the aforesaid factual background, the petitioner-applicant initially preferred a Claim Petition No. 289/II/1981 before the U.P. State Public Services Tribunal (in short "Tribunal"), wherein one of the main prayers was to the effect that petitioner-applicant be promoted on the post of 'Machine Operator'. This Claim Petition No. 289/II/1981, was dismissed vide order dated 08.11.1983.

In the order dated 08.11.1983, the Tribunal categorically observed that "petitioner-applicant had passed his B.A. examination in English, History and Geography, therefore he did not have the necessary education qualification for the post of Computor and consequently he has not educationally qualified for the post of Computor" as also observed that petitioner did not possess the requisite educational and technical qualification for the post of 'Machine Operator' and 'Computor'.

The order dated 08.11.1983 was challenged before this Court in Writ Petition No. 694 of 1984 (Shambhoo Nath Verma Versus State of U.P. and Others) and this Court dismissed the petition vide judgment and order dated 30.03.1987.

In the judgment and order dated 30.03.1987, this Court observed that "I have no hesitation in holding that the petitioner has miserably failed to make out any case for his candidature to the post of Machine Operator. He does not fulfill the requisite qualifications as envisaged and required as per notification dated 12.08.1977".

After the aforesaid the petitioner-applicant was provided selection grade of Rs. 454-600 after completing 10 years of service w.e.f. 01.06.1986 and after completing 16 years of service the 'next higher pay scale' of Rs. 950-1600 (not the pay scale of 'Machine Operator'), was also provided to the petitioner-applicant in terms of Government Order dated 16.05.1996.

Thereafter, the petitioner-applicant preferred a representation praying therein that he may be granted pay scale of the post of 'Machine Operator' (pay scale of alleged next promotional post). This representation of the petitioner-applicant was rejected vide order dated 12.01.1999. Thereafter challenging the order dated 12.01.1999 and other reliefs, the petitioner-applicant preferred a Claim Petition No. 303/1999.

The Tribunal dismissed the Claim Petition No. 303 of 1999 vide order dated 14.02.2003. The relevant portion of the order dated 14.02.2003, reads as under:-

"This claim petition has been filed by Sri S.N.Verma against the order of U.P. Govt. dated 12.1.1999 (Annexure-7) rejecting the review application of the petitioner for being given promotional higher scale after completing 16 years of service.

2. The claim of the petitioner is that he should either be promoted or given promotional scale of pay.

3. Heard the learned counsel for the petitioner, the learned Presenting Officer and have perused the record.

4. The Presenting Officer has pointed out that the petitioner was allowed selection grade after completing 10 years of service and was further allowed next higher pay-scale after completing 16 years of service in accordance with the order, dated 5.6.1996 (Annexure WS-1).

5. Às regards the petitioner's claim for promotion to the post of Machine Operator, the learned Presenting Officer has pointed out that the essential qualification is graduation with certificate or diploma and that the petitioner does not posses this assential qualification. It has elso been pointed out that the petitioner had filed a claim petition earlier also and In that petition no. 289/II/81, the Tribunal had dismissed the claim petition vide order dated 8.11.83 (Annexure WS-5). The petitioner had filed a writ petition no.694 of 1984 before the Hon'ble High Court against the aforesaid judgement and order of the Tribunal and the same was dismissed by the Hon'ble High Court on 30.3.1987 (Annexure WS-6) at the admission stage itself.

6. The petitioner's counsel has admitted that the claim for promotion has already been rejected by the Tribunal and Hon'ble High Court also but has still argued for promotional scale of pay. The petitioner's counsel has not been able to show under which Government order or rules, he is entitled for the promotional scale. He has already been given two promotional scales as indicated earlier. The petitioner is thus not entitled to any promotion or higher promotional scale of pay and his claim in this respect is liable to be dismissed."

Thereafter the review application was filed, which was also dismissed by the Tribunal vide order dated 24.08.2004. The relevant portion of the order dated 24.08.2003 reads as under:-

"The claim petition was preferred by the petitioner seeking promotion or promotional pay scale on completion of 16 years of service in accordance with G,O. dated 5.6.96. The Tribunal has after hearing both the parties, recorded findings that the matter was raised before the Hon'ble

High' Court and It was held by the Hon'ble High Court in writ petition no. 694/84 that the petitioner was not entitled to promotion. The Hon'ble High Court has in the judgment to promotion passed in writ petition no. 694/84 which was filed alongwith the CA/WS of the opposite parties, gave a categorical finding that the petitioner was not entitled to promotion since he does not fulfill the required qualifications.

 4. The aforementioned judgment of the Hon'ble High court was binding on the parties on the general principles of res judicata. The contentions raised by the petitioner were examined by the Tribunal and It was found on the basis of the judgment of the Hon 'ble High Court and from the perusal of the material on record that the petitioner was not entitled to promotion or promotional scale of pay. The present review petition has no merit and therefore deserves to be rejected."

Challenging both the orders of Tribunal dated 14.02.2003 and 24.08.2003, the present petition was filed by the petitioner-applicant and the same was dismissed vide order dated 23.07.2019, under review, which reads as under:-

"We have heard the learned counsel for the parties and gone through the record.

Vide order dated 14.02.2003, the State Public Services Tribunal dismissed the claim petition No. 303 of 1999 with the following observation:-

"The Presenting Officer has pointed out that the petitioner was allowed selection grade after completing 10 years of service and was further allowed next higher pay-scale after completing 16 years of service in accordance with the Government Order dated 05.06.1996 (Annexure WS-1).

As regards the petitioner's claim for promotion to the post of Machine Operator, the learned Presenting Officer has pointed out that the essential qualification if graduation with certificate or diploma and that the petitioner does not possess this essential qualification. It has also been pointed out that the petitioner had filed a claim petition earlier also and in that petition no. 289/81, the Tribunal had dismissed the claim petition vide order dated 08.11.83 (Annexure WS-5). The petitioner had filed a writ petition no. 694 of 1984 before the Hon'ble High Court against the aforesaid judgment and order of the Tribunal and the same was dismissed by the Hon'ble High Court on 30.03.1987 (Annexure WS-6) at the admission stage itself.

The petitioner's counsel has admitted that the claim for promotion has already been rejected by the Tribunal and Hon'ble High Court also but has still argued for promotional scale of pay. The petitioner's counsel has not been able to show under which Government order or rules, he is entitled for the promotional scale. He has already been given two promotional scales as indicated earlier. The petitioner is thus not entitled to any promotion or higher promotional scale of pay and his claim in this respect is liable to be dismissed."

Thereafter, the petitioner has filed a Review Petition No. 11/03, which was also dismissed.

After going through the record, the position which emerges out is to the effect that in respect of the claim of the petitioner, he has earlier approached before the Tribunal by means of the claim petition No. 289 of 1981, which was dismissed by the order dated 08.11.1983 against which the petitioner had filed the Writ Petition No. 694 of 1984, which was also dismissed by the order dated 30.03.1987and for the same cause, the petitioner again approached the State Public Services Tribunal.

A second suit or proceedings for the same cause is not maintainable. This cardinal rule of public policy to discourage multiplicity of proceedings, also incorporated in Section 11, Order 2 Rule 2 and Order 23 of the Code of Civil Procedure. The principle whereof, in our view, would also apply to the claim petition and is too well settled to merit any elaboration. For this, it will be sufficient to refer to the judgments in B.N. Singh v. State of U.P. 1979 ALJ 1184 Dr. Ramji Dwivedi v. State of and Ors. equivalent to 1983 UPLBEC 426; Niranjan Rai v.District Inspector of Schools (1991) 2 UPLBEC 1416; Sahib Ram v. State of Haryana ; Harish Chandra Srivastava v. State of U.P. and Ors. (1967) 3 UPLBEC 1840 (DB); Keshav Tripathi v. State of U.N.P. and Ors. 1997 ALJ 28 (DB) and S.L. Bathla v. State Bank of India (1999) 1 UPLBEC 233. This rule was succinctly explained in State of U.P. and Anr. v. Labh Chand, AIR 1994 SC 754 by the Apex Court in paragraph 20 as follows:-

"20. When a Judge of Single Judge Bench of a High Court is required to entertain a second writ petition of a person on a matter, he cannot, as a matter of course, entertain such petition, if an earlier writ petition of the same person on the same matter had been dismissed already by another Single Judge Bench or a Division Bench of the same High Court, even if such dismissal was on the ground of laches or on the ground of non availing of alternative remedy. Second writ petition cannot be so entertained not because the learned Single Judge has no jurisdiction to entertain the same, but because entertaining of such a second writ petition would render the order of the same court dismissing the earlier writ petition redundant and nugatory, although not reviewed by it in exercise of the recognized power. Besides, if a learned Single Judge could entertain a second writ petition of a person respecting a matter on which his first writ petition was dismissed in limine by another learned Single Judge or a Division Bench of the same court, it would encourage an unsuccessful writ petition to go on filing writ petition after writ petition in the same matter in the same High Court, and have it brought up for consideration before one Judge and another. Such a thing, if is allowed to happen, it could result in giving full scope and encouragement to an unscrupulous litigant to abuse the process of the High Court exercising its writ jurisdiction under Article 226 of the Constitution in that any order of any bench of such court refusing to entertain a writ petition could be ignored by him with impunity and relief sought in the same matter by filing a fresh writ petition. This would only lead to introduction of disorder, confusion and chaos relating to exercise of writ jurisdiction by Judges of the High Court for there could be no finality for an order of the court refusing to entertain a writ petition. It is why, the rule of judicial practice and procedure that a second writ petition shall not be entertained by the High Court on the subject matter respecting which the first writ petition of the same person was dismissed by the same court even if the order of such dismissal was in limine, be it on the ground of laches or on the ground of non-exhaustion of alternative remedy, has come to the accepted and followed as salutary rule in exercise of writ jurisdiction of courts."

We find that after taking into consideration all the facts, the Tribunal dismissed the claim petition of the petitioner, which is in accordance with law.

Thus, for the reasons aforesaid, the impugned orders are not liable to be interfered in exercise of power provided under Article 226 of the Constitution of India.

In view of the above, we do not find any illegality or infirmity in the order passed by the Tribunal. The writ petition for it lacks merit. Hence, dismissed."

From the final order passed by Tribunal dated 14.02.2003, it is apparent that the subsequent Claim Petition No. 399 of 1999 was filed claiming promotion on the post of 'Machine Operator' as also for promotional pay scale.

It would be apt to indicate at this stage that the recitals regarding petitioner's claim for promotion in the order dated 14.02.2003 passed by the Tribunal have not been refuted in specific terms in the petition. Need to refer this has occurred on account of the fact that in the prayer no. 2 of the claim petition (Annexure No.4 to the present petition) preferred before the Tribunal, there is a cutting on this aspect of the case. However, this cutting does not bear the signature of Counsel for the petitioner-applicant before Tribunal and neither it bears the signature of the petitioner-applicant, nor it bears the signature with seal of Oath Commissioner.

Earlier Claim Petition No.289/2/1981, wherein, one of the reliefs sought was that the direction be issued to promote the petitioner-applicant on the post of 'Machine Operator' was dismissed and accordingly, second claim petition for the same relief was not maintainable. As such, the order of the Tribunal and also the order, under review, are justified so far as it relate to claim of petitioner-applicant for promotion on the post of 'Machine Operator'.

In regard to the claim of the petitioner-applicant seeking 'promotional pay scale' in place of 'next higher pay scale', the Tribunal rejected the claim of the petitioner-applicant vide order dated 24.08.2003 and it appears from the order dated 24.08.2003 that before the Tribunal, the petitioner-applicant failed to justify his claim by placing relevant Government Order or Rules.

In the present petition also neither the Service Rules of 'Sansthan' nor any Notification/Government Order related to 'Sansthan' has been referred from where it can be deduced that the promotional post of 'Punch Operator' at relevant time, was 'Machine Operator' and on the other hand, specific averments made in the counter affidavit, which are to the effect that post of 'Machine Operator' is not promotional post for 'Punch Operator', which is hundred per cent direct recruitment post, has not been specifically denied either in the rejoinder affidavit or in the supplementary affidavit filed by the petitioner-applicant.

The claim of the petitioner-applicant is based on the Rules applicable in other departments of State of U.P., as appears from paragraph no. 4.14 of the claim petition (Anexure No. 4 to the present petition) and accordingly to the view of this Court, the claim of the petitioner-applicant for 'next promotional pay scale' (pay scale of the post of 'Machine Operator') is completely misconceived and accordingly, it appears that at the time of deciding the present petition vide judgment and order dated 23.07.2019, under review, the learned counsel for the petitioner-applicant did not press the claim of petitioner-applicant for grant of 'promotional pay scale' in place of 'next higher pay scale' and as such, to the view of this Court, the petitioner-applicant relinquished/waived his claim for grant of 'promotional pay scale' in place of 'next higher pay scale' at relevant time and as such the same cannot be re-opened in review jurisdiction.

It would not be out of place to state here that the law on the subject is settled. It is settled principle of law that if promotional post is not provided under the relevant Service Rules, then in that eventuality, 'next higher pay scale' would be provided and the petitioner-applicant has failed to establish his case that the 'Punch Operator' in the 'Sansthan' can be promoted to the post of 'Machine Operator'. Whereas, the post of 'Machine Operator' in 'Sansthan' is not promotional post for 'Punch Operator' and this fact has not been specifically refuted and as per the law, if promotional post/promotional avenue is not available in the applicable relevant Service Rules or Government Order, as the case may be, then only 'next higher pay scale' would be provided. As such in absence of any promotional post, the petitioner as per law was entitled for 'next higher pay scale' after completion of 16 years, which was provided.

For the reasons aforesaid, this Court is of the view that the judgment is not liable to be reviewed. There are no grounds available for reviewing our judgment based on principles contained in Order 47 Rule 1 CPC and Rules of the Court. In the garb of review application re-hearing is not permissible.

It is accordingly, dismissed. No order as to costs.

Order Date :-14.09.2023

Jyoti/-

    (Saurabh Lavania,J.)     (Rajan Roy,J.)