Pradeep Kumar Shrivastava vs State Of Chhattisgarh
2024 Latest Caselaw 153 Chatt

Chattisgarh High Court

Pradeep Kumar Shrivastava vs State Of Chhattisgarh on 25 June, 2024

Author: Parth Prateem Sahu

Bench: Parth Prateem Sahu

                                                                   NAFR
        HIGH COURT OF CHHATTISGARH, BILASPUR
                        WPS No. 6391 of 2018
   • Pradeep Kumar Shrivastava S/o Late Shri R.C.Sjeovatava
     Aged About 67 Years R/o 14 Sbi Colony Police Station Kotwali
     Rajnandgaon Pin 491441 Chhattisgarh, District : Raipur,
     Chhattisgarh
                                                          ---- Petitioner
                                 Versus
  1. State Of Chhattisgarh Through The Principal Secretary
     Department Of Law And Legislative Affairs Mahanadi Bhawan
     Mantralaya Naya Raipur Pin 492002 Chhattisgarh, District :
     Raipur, Chhattisgarh
  2. High Court Of Chhattisgarh Through Registrar Genral High
     Courtd Of Chhattisgarh Bilaspur Pin 495001 Chhattisgarh,
     District : Bilaspur, Chhattisgarh
                                                      ---- Respondents


For Petitioner            :    Petitioner in Person.
For Respondent No.1       :    Mr. Sangharsh Pandey, Govt. Advocate
For Respondent No.2       :    Mr. Prasoon Bhaudri, Advocate

         DB: Hon'ble Mr. Ramesh Sinha, Chief Justice
                Hon'ble Mr. Parth Prateem Sahu, Judge
                              Order On Board
Per Parth Prateem Sahu, J

25/06/2024

1. Heard Petitioner in person and also Mr. Sangharsh Pandey,

learned Government Advocate, appearing for the respondent-

State and Mr. Prasoon Bhaduri, Advocate for respondent

No.2.

2. Petitioner has filed this writ petition seeking following reliefs:-

"(a) Issue a appropriate writ, order or direction declaring the Rules 13 of the Chhattisgarh Higher Judicial Service (Recruitment and Condition of Service) Rules 2006 as unconstitutional, void, ineffective and inoperative provision of law.

(b) Issue a appropriate writ, order or direction for quashing the Order No.2850/1062/XXI-B/CG/09 dated 23-4-2009 issued by the Principal Secretary, Law & Legislative Department Raipur by which the petitioner was compulsorily retired at the age of 58 years.

(c) Issue a appropriate writ, order or direction in the nature of Mandamus commanding the Respondents to grant all the monetary benefits of continuing service till, the Petitioner retired in normal course on attaining the age of 60 years, according to law applicable.

(d) Pass any such further order (s) and grant such other further and /or consequential relief as this Hon'ble Court may deemed fit and proper in the facts and circumstances of the case in the interest of justice."

3. Facts of the case, in brief, are that petitioner was initially

appointed as Civil Judge Class-II in the erstwhile State of

Madhya Pradesh and posted at Durg where he joined on

12.10.1981. After reorganization of the State of Madhya

Pradesh, his services were allocated to newly carved out

State of Chhattisgarh where he worked as a judicial officer till

he was compulsorily retired from service vide order dated

23.4.2008 after attaining the age of 58 years.

4. Petitioner, who appears in person, submits that he throughout

his service carrier has discharged the duties with due

diligence and impeccable integrity, therefore, there was no

occasion or ground to compulsorily retire him in the public

interest invoking provisions of Rule 56 (2) of the Fundamental

Rules. He submits that his service condition as to the age and

mode of retirement are governed by Rule 56 of the Fundamental Rules and the same could not be varied except

with prior approval of the Central Government, as provided

under Section 69 (1) of the MP Reorganization Act, 2000. He

submits that any previous approval of the Central Government

has not been obtained while framing proviso to Rule 13 (1) as

well as sub-rule (3) of the Chhattisgarh Higher Judicial Service

(Recruitment and Condition of Service) Rules, 2000

(henceforth 'the Rules of 2006') and therefore, not only the

Rule 13 (2) of the Rules of 2006 being violative to Article 309

of the Constitution of India, it is unconstitutional, ineffective

and inoperative provision of law and as such, the order

impugned issued in purported exercise of Rule 13 (1) of the

Rules of 2006 is void and non est.

5. Learned counsel appearing on behalf of respondent No.2

raised an objection with regard to maintainability of writ

petition on the ground that present petition is hit by principle of

res judicata. He submits that earlier writ petition bearing WPS

No.2286/2012 was filed by petitioner seeking almost identical

reliefs, as claimed in this writ petition, and the said writ petition

came to be dismissed on 13.11.2024. Review petition bearing

No.70/2015 seeking review of the order dated 13.11.2024 was

also dismissed vide order dated 1.10.2015. Since the subject

matter of present petition and earlier writ petition filed by

petitioner are one and same, therefore, this writ petition is not

maintainable being hit by principle of res judicata. In support

of his submission, he places reliance on the decision in the

matter of Union of India vs. S.P. Sharma, AIR Online 2014 SC 72.

6. He next contended that the petitioner has sought relief that

Rule 13 of the Rules of 2006 be declared unconstitutional,

void, inoperative and ineffective provision of law. Similar issue

came up for considering in WPS No.462/2013 (Phool Singh

Penkra vs. State of CG & anr), and the Division Bench vide

order dated 24.10.2019 dismissed writ petition rejecting the

contention of petitioner therein that Rule 13 (2) of the Rules of

2006 is ultra vires as not tenable. The order passed by

Division Bench was put to challenge by filing Special Leave

Petition bearing No.10885/2021 and the Hon'ble Apex Court

also dismissed the special leave petition vide order dated

06.08.2021. Hence also there is no merit in this petition.

7. At this stage, petitioner submits that the fact of filing of

previous writ petition is already pleaded in this writ petition.

He, however, submits that in the present petition he has

prayed for relief of enforcement of his fundamental rights

guaranteed under Article 14 read with Article 16 (1) of the

Constitution of India and therefore, the principle of res judicata

will not apply in the present petition. In support of his

submission, he places reliance on the decision in the case of

Ashok Kumar Srivastava vs. National Insurance Company

Ltd. & others, reported in (1998) 4 SCC 361 and Daryao &

ors vs. The State of UP & ors, reported in AIR 1961 SC

1457.

8. Perused the impugned order and other documents appended

with writ petition.

9. On a query being put by the Court whether he has preferred

any appeal against the order passed by Division Bench in

WPS No.2286/2012 or order passed in review petition, he

fairly submits that he has not challenged the order passed in

earlier writ petition as well as review petition before the

Supreme Court.

10. Perusal of the order dated 13.11.2014 (Annexure P-17)

passed in WPS No.2286/2012 would show that there was

challenge to the Rule for compulsory retirement contained in

the Rules of 2006 i.e. Rule 13. The said writ petition came to

be dismissed by the Division Bench dismissed in following

manner;-

"2. The petitioner, who appears in person, was a member of the Higher Judicial Service and was retired compulsorily on attaining 58 years of age under the Proviso to Rule 13 (1) of the Chhattisgarh Higher Judicial Service (Recruitment and Conditions of Service) Rules, 2006.

3.The petitioner, who was a Senior Judicial officer originally filed the writ application without any substantive challenge to the order for his compulsorily retirement on merits. When it was pointed out to him he sought adjournments to file a supplementary amendment. In the amendment application again no substantive challenge has been laid to the order for compulsory retirement or that it was contrary to his service records, punitive in nature etc. There is a bald challenge to the Rules itself contending that compulsory retirement was unconstitutional.

4. The law with regard to compulsory retirement stands well settled in Service Jurisprudence as a mechanism to remove dead wood without casting any aspersions. No specific grounds have been stated as to why and how the Rule for compulsory retirement was unconstitutional. We therefore find no reason to interfere as compulsory retirement has been ordered after full consideration by the screening committee of the service records of the Petitioner."

11. Section 11 of the Civil Procedure code, which deals with the

question of res judicata, which reads as follows:

"No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court."

12. In case of P. Bandopadhya vs. Union of India, reported in

2019 (13) SCC 42, the issue of applicability of res judicata has

come up for consideration and the Hon'ble Supreme Court

has observed thus:-

"8.11. The decision in S.V. Vasaikar & ors v. Union of India [2003 (2) Mh. L.J. 691 : 2003 (4) Bom CR 79] was not challenged before the Supreme Court, and has since attained finality. Therefore, the relief sought by the Appellants before the High Court was barred by the principle of res judicata. Reference can be made to the decision of the Constitution Bench in Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra & ors2 wherein Sharma, J., on behalf of the fivejudge bench, held:

"35...It is well established that the principles of res judicata are applicable to writ petitions. The relief prayed for on behalf of the petitioner in the present case is the same as he would have, in the event of his success, obtained in the earlier writ petition before the High Court. The petitioner in reply contended that since the special leave petition before this Court was dismissed in limine without giving any reason, the order cannot be relied upon for a plea of res judicata. The answer is that it is not the order of this Court dismissing the special leave petition which is being relied upon; the plea of res judicata has been pressed on the basis of the High Court's judgment which became final after the dismissal of the special leave petition. In similar situation a Constitution Bench of this Court in Daryao v. State of UP3 held that where the High Court dismisses a writ petition under Article 226 of the Constitution after hearing the matter on the merits, a subsequent petition in the Supreme Court under Article 32 on the same facts and for the same reliefs filed by the same parties will be barred by the general principle of res judicata. The binding character of judgments of courts of competent jurisdiction is in essence a part of the rule of law on which the administration of justice, so much emphasised by the Constitution, is founded and a judgment of the High Court under Article 226 passed after a hearing on the merits must bind the parties till set aside in appeal as provided by the Constitution and cannot be permitted to be circumvented by a petition under Article 32."

13. In case of Central Bank of India & ors vs. Dragendra Singh

Jadon, reported in (2022) 8 SCC 378, the Hon'ble Supreme

Court while dealing with the objection with respect to

maintainability of writ proceeding on the ground of res judicata

has observed thus:-

"15. The principles of res judicata are attracted where the matter in issue in the later proceedings have directly and substantially been in issue in earlier proceedings, between the same parties, in a competent forum having jurisdiction. Res judicata debars the Court from exercising jurisdiction to determine the lis, if it has attained finality between the parties. There is a distinction between res judicata and issue estoppel. In the case of issue estoppel, a party against whom an issue has been decided would be estopped from raising the same issue again.

16. Where an issue could have been raised in earlier proceedings, but has not been raised, the principle of constructive res judicata would be attracted to deny relief, for it is not the policy of law that multiple proceedings should be initiated in Court in relation to the same cause of action. Where the cause of action for initiation of proceedings is a distinctive cause of action, the principles of res judicata would not apply."

14. Considering the above decisions of Hon'ble Supreme Court,

the provision of Section 11 CPC and the fact that the relief

prayed for on behalf of the petitioner in the present case is

similar to the relief claimed by him in earlier writ petition filed

by him i.e. setting aside of the order of compulsory retirement

and declaring Rule 13 (2) of the Rules of 2006 to be ultra vires

to the Constitution of India, in the considered opinion of this

Court, principle of res judicata is very much applicable to the

facts and circumstances of the present case and being so, this

petition in its present form is not maintainable being hit by

principle of res judicata.

15. Accordingly, the writ petition is dismissed.

       Sd/-                                        Sd/-
(Parth Prateem Sahu)                           (Ramesh Sinha)
     Judge                                       Chief Justice
roshan/-