Lt.Cdr.G.S.Beniwal (Retd.) vs Union Of India & Ors.
2011 Latest Caselaw 3406 Del

A-2
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                Date of Decision: 18th July 2011.

+      W.P.(C) 4417/2010

       LT. CDR. G.S. BENIWAL (RETD.)            ..... Petitioner
                       Through: Dr.L.S. Chaudhary, Advocate

                        versus


       UNION OF INDIA & ORS.                          ..... Respondents

Through: Mr. S.K. Dubey and Mr. Nitin Kumar Sharma, Advocates for UOI

CORAM:

HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE RAJIV SHAKDHER

1. Whether the Reporters of local papers may be allowed to see the judgment?

2. To be referred to Reporter or not?

3. Whether the judgment should be reported in the Digest?

PRADEEP NANDRAJOG, J (Oral)

1. Learned counsel for the petitioner gives up prayer (i), in view of the decision of this court that opinions rendered by Armed Forces Tribunal would be subject to judicial review by High Court.

2. Learned counsel presses the writ petition pertaining to prayer (ii) and (iii).

3. Impugned order dated 20.5.2010 reads as under:-

"Heard.

W.P.(C) No. 4417/2010 Page | 1 There is no ground to interfere in the matter in view of decision of the Hon‟ble Supreme Court dated 26.10.2009 given in Special Leave to Appeal (Civil) No.16341/2008 filed by the petitioner titled as "G.S. Beniwal vs. Union of India & Ors.‟. Consequently, the petition is dismissed with no order as to costs."

4. It is apparent that the Tribunal had, at the back of its mind, the principles of „Constructive Res-Judicata‟ enshrined under Section 11 of the Code of Civil Procedure and as a principle of general law, applicable to proceedings other than suits.

5. Relevant facts are that on 3.7.1984, the petitioner was permitted to proceed on leave pending retirement, which was approved in June 1984. Petitioner retired with effect from 31.12.1984. His request for pension was declined in view of the fact that the respondents took the stand that as per the applicable Pension Regulations, petitioner had not rendered the minimum qualifying service.

6. Parties litigated when the petitioner filed a writ petition registered as W.P.(C) 2314/2005, which came to be dismissed by this court vide judgment and order dated 3.4.2008, holding that the Pension Regulations contemplated minimum 20 years of service to be rendered before pension could be granted. On a matter of fact it was noted that the petitioner had not rendered 20 years of service.

7. Petitioner‟s Special Leave To Appeal before the Supreme Court, came to be dismissed vide order dated 26.10.2009.

8. Thereafter, petitioner questioned the vires of the applicable regulation alleging that the regulations drew a hostile W.P.(C) No. 4417/2010 Page | 2 discrimination between late entrant officer. This was by way of a petition to the Tribunal, which has been dismissed vide order impugned.

9. The requirement of law is that when a cause accrues, all actions which are required to be taken based on the cause have to be in one proceedings unless leave of the court is sought and obtained under Order 2 Rule 2 of the Code of Civil Procedure.

10. The policy of law behind this rule is that it is in the interest of the State and the citizen that litigation is brought to an end at the earliest and that no person should be vexed twice on the same cause.

11. In view of the facts noted hereinabove it is apparent that cause to seek pension accrued when petitioner retired. All actions on which the cause could succeed had to be brought in one proceedings and not successively.

12. We concur with the view taken by the Tribunal, but make it express, since it has not been so done by the Tribunal that the bar of constructive res-judicata would come in the way of the petitioner.

13. The writ petition is dismissed.

14. No costs.

                                    PRADEEP NANDRAJOG, J



                                    RAJIV SHAKDHER, J
JULY 18, 2011
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W.P.(C) No. 4417/2010                                          Page | 3