Surrender Kumar, Ex.Petty ... vs Union Of India & Ors.
2012 Latest Caselaw 454 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           WP(C) No.478/2012

%                       Date of Decision: 23.01.2012

Surrender Kumar, Ex.Petty Officer                       .... Petitioner

                    Through Mr.Sukhjinder Singh, Advocate.

                                Versus

Union of India & Ors.                                .... Respondents

                    Through Mr.Ravinder Aggarwal, Advocate

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE J.R.MIDHA


ANIL KUMAR, J.

*

1. The petitioner has sought the quashing of orders dated 20th

November, 2008, 25th August, 2010 and 4th May, 2011 and has also

sought directions to promote the petitioner w.e.f. 1st June, 2006 with

all the consequential benefits and deem that the petitioner has

completed 10 months in the rank of Chief Petty Officer pursuant to

the respondents‟ communication dated 24th January, 2007 in terms

of Section 16 (b) of the Navy Act, 1957.

2. The petitioner filed an original application before the Armed

Forces Tribunal, contending, inter-alia that he had joined the Indian

Navy on 9th January, 1986. The petitioner had rendered 21 years of

service and was eventually promoted to the rank of Petty Officer

w.e.f. 11th November, 1999.

3. In his last posting, he was borne in INS Angre, Mumbai and on

7th January, 2007, he was transferred to Commodore Bureau of

Sailors in the "Release Centre", for carrying out release formalities.

4. The petitioner alleged that by communication dated 24th

January, 2007, it was intimated to him that he would be promoted

as a Chief Petty Officer w.e.f. 1st June, 2006 and therefore the

petitioner was required to be re-engaged for two months to complete

10 months service to enable him to earn pension in the rank of Chief

Petty Officer.

5. According to the petitioner, he applied for two months

extension on 29th January, 2007 which was allegedly duly approved

and acted upon and he was informed that he would now retire on

31st March, 2007 and that his release from the service would be kept

in abeyance.

6. On account of this alleged assurance, the petitioner alleged

that he was to be deemed to have been re-enrolled for two months in

terms of Section 16 (b) of the Navy Act, 1957 and the Regulations

made thereunder.

7. The petitioner contended that, however, to his utter shock he

was retired on 31st January, 2007 without assigning any reason and

without intimating the fate of his request/application for grant of

extension of two months service to enable him to complete the

requisite 10 months to earn the pension of the rank of Chief Petty

Officer.

8. It was further alleged that the Bureau of Sailors, suo moto

brought out in the communication dated 24th January, 2007 that the

Petty Officer to the Chief Petty Officer roster is supposed to run on 1st

January, 2007 and would be effective for the period from 1st October,

2006 to 30th September, 2007 and that the Sailors retiring in the

month of January, 2007 batch would be affected by the new roster.

9. Aggrieved by the order of his discharge dated 31st January,

2007, the petitioner had filed a writ petition being W.P.(C)

1789/2007 in the High Court of Bombay.

10. According to the petitioner, the Bombay High Court allowed

the petitioner to withdraw the writ petition for making appropriate

representations to the respondents by order dated 16th July, 2008.

The petitioner, accordingly, appealed to the Central Government and

Chief Naval Staff, through respondent No.3, the Commodore Bureau

of Sailors, by his representation dated 1st August, 2008 which was

rejected by the respondents by communication dated 20th November,

2008.

11. Against the order dated 20th November, 2008, the petitioner

filed a writ petition in the High Court of Bombay being W.P.(C)

No.101/2009, which was dismissed by order dated 8th April, 2009.

The petitioner alleged that on 8th April, 2009, the advocate of the

petitioner could not appear on account of the death of his relative.

The petitioner, therefore, filed a review petition No.21 of 2009 which

was disposed of by order dated 11th December, 2009 directing the

petitioner to approach the respondents.

12. The grievance of the petitioner is that thereafter he approached

the respondents by petition dated 11th June, 2010, however the same

has not been disposed of till date.

13. The petitioner, therefore, filed an original application being OA

No.507/2010, titled as „Surrender Kumar Ex.Petty Officer v. Union of

India & Ors.,‟ before the Principal Bench of the Armed Forces

Tribunal.

14. The petition before the Armed Forces Tribunal was contested

by the respondents contending, inter-alia that the petitioner was

promoted from time to time up to the rank of Petty Officer and on the

expiry of his initial engagement on 31st January, 2001, he was

granted a re-engagement for three years up to 31st January, 2004.

The petitioner, thereafter, had sought re-engagement for a further

period of three years from 1st February, 2004 to 31st January, 2007

with Lesser Period Certificate (LPC) which was also granted.

15. The petitioner had thereafter again sought further re-

engagement for five years w.e.f. 1st February, 2007 seeking an

extension of service up to 26 years, which was, however, duly turned

down as the permissible limit of service in the rank of PO(MER) is 23

years. The petitioner had also sought re-engagement for a further

period of two years which was also declined since as per para 12 of

the NO(Str) 17/96 it does not provide for further re-engagement of a

sailor who has submitted the Lesser Period Certificate (LPC), and

consequently, the petitioner was released from service in the rank of

Petty Officer on 31st January, 2007.

16. The respondents emphasized that aggrieved by the order of his

release w.e.f. 31st January, 2007, the petitioner had filed a petition in

the Bombay High court, which was dismissed. Another petition was

filed by the petitioner based on the Staff Minute Sheet dated 24th

January, 2007 which was also dismissed. The writ petition that was

filed by the petitioner as well as the review petition was disposed of.

The respondents contended that in the OA before the Tribunal, the

petitioner has again raised the same issues which had been declined

twice by the Bombay High Court. It was also contended that the

liberty granted to the petitioner to approach the respondents was

thoroughly examined and duly replied to. Therefore allegation that

the representation of the petitioner was not taken into consideration

is not correct as the same was taken into account while computing

the applicants‟ roster position at 82 as against the 70 vacancies

available for promotion till 31st March, 2007. The respondents

pleaded that no legal right of the petitioner has been jeopardized and

that the petitioner is not entitled for any relief.

17. The Armed Forces Tribunal, Principal Bench, dismissed the

original application of the petitioner‟s by order dated 4th May, 2011

holding that the Division Bench of the Bombay High Court had

considered the pleas and contentions of the petitioner and relied on

para 4 of the reply affidavit of the respondents detailing the Staff

Minute Sheet dated 24th January, 2007 which was not disputed and

it was stated to be in the order of merit. Consequently it was held

that the grievances of the petitioner do not survive and therefore the

petition was dismissed. The Tribunal, therefore, held that the

grievances of the petitioner had already been taken into

consideration and adjudicated upon. It was also held that since the

decision of the Bombay High Court operates as a judicial precedent,

on account of the principle of res judicata the same could not be

interfered with by the Tribunal.

18. Aggrieved by the order of the Tribunal, the petitioner has filed

the present writ petition, contending, inter-alia that the Tribunal has

erred in passing a non-speaking and laconic order after admitting

the OA and on completion of the pleadings. The petitioner contended

that the Bombay High Court did not dispose of his petition by a

speaking order and in any case in the review petition, the liberty to

approach the respondents was granted to the petitioner regarding

the non-appearance of the petitioner‟s name on the promotion roster.

19. The petitioner has alleged that he approached the respondents

by letter dated 11th June, 2010 which was declined by the

respondents by their letter dated 25th August, 2010 and thus, the

petitioner has a fresh cause of action in his favour. The petitioner

further emphasized that his case had not been heard on merit by the

Bombay High Court.

20. The petitioner has contended that the order passed by the

Bombay High Court was too laconic and does not fall within the

ambit of the definition of a judgment. In support of this submission

the petitioner relied on Balraj Taneja v. Sunil Madan, (1999) 8 SCC

396. The petitioner has also placed reliance on Cellular Operators

Association of India & Ors. v. Union of India, (2003) 3 SCC 186.

According to the petitioner, the dismissal of the writ petition by a

non-speaking order neither attracts the doctrine of res judicata, or

the doctrine of merger and therefore it is required to be heard on

merits.

21. Learned counsel for the respondents who appears on advance

notice has contended that the writ petition filed by the petitioner was

decided by the Bombay High Court on merits as the Minute Sheet

dated 24th January, 2007 was considered and held to be not

disputed and was found to be in the order of merit and thus, it was

consequently held that the grievances of the petitioner does not

survive. It is contended by the learned counsel that though the order

may be laconic, but it cannot be inferred that it is not on merits, and

therefore, the plea of the petitioner that the principle of res judicata,

as has been held by the Armed Forces Tribunal, shall not apply, is

not correct.

22. This Court has heard the learned counsel for the parties. This

is not disputed and cannot be disputed that by order dated 16th July,

2008 the Bombay High Court had held that the issue of re-

engagement of the petitioner in the service does not arise as the

petitioner has already retired. Regarding his grievance of promotion,

it was held that he has an alternate remedy to approach the

competent authority by making appropriate representation. The

order dated 16th July, 2008 passed by the Bombay High court in

W.P.(C) No.1789/2007, titled as Surrender Kumar PO (UC-I) v. Union

of India & Ors., is as under:-

"P.C.:

1. Heard.

2. In view of the fact that the petitioner has retired, the issue of re-engagement in service does not survive. In so far as the grievance of the petitioner relating to his promotion is concerned, he has alternative remedy to approach competent authority in the matter by making appropriate representation. Therefore, we are not inclined to entertain the Writ Petition. Petition is dismissed as withdrawn with liberty to represent his case for seeking promotion which according to him he is eligible and entitled during the course of his service."

23. The petitioner, thereafter, made a presentation which was also

declined by the respondents. The petitioner, therefore, filed another

writ petition being W.P.(C) No.101 of 2009 which was also disposed

of by the Bombay High Court by order dated 8th April, 2009. The

Bombay High Court had held that on taking into consideration the

Minutes of the Staff Sheet dated 24th January, 2007 and finding it to

be in the order of merit, the grievance of the petitioner does not

survive. The writ petition was not dismissed in default of appearance

of the petitioner and his counsel but was disposed of on merit

considering the pleas raised on behalf of the petitioner. The order

passed by the Bombay High Court on 8th April, 2009 is as under:-

"P.C.:

Nobody is present on behalf of the petitioner. In view of the statement made in para 4 of the reply affidavit wherein the Staff Minute Sheet dated 24th January, 2007 is not disputed and is stated to be in order of merit, grievance of the petitioner does not survive. There is no merit in the petition and the same is dismissed."

24. Aggrieved by the order dated 8th April, 2009, the petitioner had

filed a review petition which was disposed of holding that there are

no grounds to review the order dated 8th April, 2009. The order

passed in the review application of the petitioner dated 11th

December, 2009 is as under:-

"P.C.:

We have heard learned counsel appearing for the parties. We find no appropriate justifiable ground for review of the order in question. It is contended by learned counsel appearing for the petitioner that his name does not appear on the roster. If that be so, he is

at liberty to approach the respondents. The Petition is accordingly disposed of."

25. The learned counsel for the petitioner has relied on Balraj

Taneja (supra), in which case a suit for specific performance was filed

for an agreement for sale. In the suit, despite time given in

accordance with law, the written statement was not filed within the

time granted by the Court, therefore, the suit for specific

performance was decreed under Order VIII Rule 10 of the Code of the

Civil Procedure. The review application which was filed against the

judgment/decree was dismissed and the appeal filed against the

judgment/ decree and the dismissal of the review application was

also dismissed. While decreeing the suit, the Court had held as

under:

"Defendants are adopting this tactics only to protract the proceedings and have not filed the written statement and reply to the application in spite of sufficient opportunity having been given. Accordingly, the suit is decreed for specific performance in favour of the plaintiff and against the defendants with directions to plaintiff to deposit the balance amount of Rs. 3,00,000/- (three lakhs only) in this Court within six weeks from today. If the amount is deposited within six weeks, it will be open for the plaintiff to apply for appointment of a Commissioner for the execution of the sale deed. The defendants are also directed to pay the cost of the suit."

The Supreme Court noticed that while decreeing the suit

neither the facts were set out, nor were the reasons on the basis of

which the Court felt that case of the plaintiff was true and stood

proved were detailed. In the circumstances, it was held that the

judgment was not a judgment as defined in Section 2 (9) of the Code

of Civil Procedure. It was further held by the Supreme Court that the

Court is not absolved in its obligation to write the judgment as

understood in common parlance as a judge cannot merely say "Suit

decreed" or "Suit dismissed". In these circumstances, the decree for

specific performance passed by the High Court was set aside.

26. The case of the petitioner is apparently distinguishable and the

petitioner cannot contend that the judgments passed by the Bombay

High Court are not judgments as per the provisions of the CPC. In

any case, the judgments passed in the writ petitions cannot be

equated with the judgments passed in the suits which are governed

by Section 2(9) of the Code of Civil Procedure. Some of the provisions

of the Code of Civil Procedure may be applicable to the proceedings

of the writ petition, however, the Code of Civil Procedure cannot be

applied so strictly for writ petitions.

27. In any case, the judgments dated 16th July, 2008 and 8th April,

2009 passed in W.P.(C) No.1789/2007 and W.P.(C) No.101/2009 are

judgments, as the reasons given by the Bombay High Court,

howsoever, laconic they may be are based on some rationale. While

passing the order dated 8th April, 2009, it had been held that in view

of the statement made in para 4 of the reply affidavit pertaining to

Staff Minute Sheet dated 24th January, 2007 the grievance of the

petitioner does not survive. By relying on the ratio of Balraj Taneja

(supra), the petitioner cannot contend that the judgments of the

Bombay High Court are not the judgments in the facts and

circumstances, and consequently, the principle of res judicata will

not be applicable.

28. Though, it is correct that in the application for the review filed

by the petitioner he was given liberty to approach the respondents on

the statement of the petitioner that his name did not appear in the

roster but at the same time, the Bombay High Court upheld its

judgment dated 8th April, 2009 holding that the petition of the

petitioner had no merit and thereby dismissed the same.

29. The petitioner pursuant to order of the Bombay High Court

giving him liberty to make a representation to the respondents, had

filed the representation dated 11th June, 2010 which has been duly

considered by the respondents. It was held that the name of the

petitioner was identified to be in the promotion zone, as about 20%

of the sailors beyond the stipulated vacancies were also checked and

considered to be in the promotion zone in order to meet the

eventuality of sailors in higher roster position getting rejected for

promotion. This has also been categorically contended that the „Red

Recommendation‟ of the petitioner was considered and the roster

position of the petitioner was moved from 95 to 82. The petitioner,

however, could not be promoted as there were only 70 vacancies till

March, 2007 and therefore, even after taking into account the "Red

Recommendation", the petitioner could not be promoted to the Chief

Petty Officer (CPO) rank.

30. In the circumstances, the allegation of the petitioner that his

name does not appear on the roster is not substantiated. The name

of the petitioner appeared on the roster and his `Red

recommendation‟ was also considered and still on account of the

petitioner being lower in the roster position and there being less

number of vacancies, he was not promoted.

31. While disposing of the representation, the respondents have

also considered the allegation of discrimination, however, the learned

counsel for the petitioner has not raised any plea with regard to the

alleged discrimination.

32. In the totality of the facts and circumstances, neither the order

dated 25th August, 2010 rejecting the representation of the petitioner

can be faulted, nor can the order of the Tribunal, Principal Bench

declining to interfere with the orders of the respondents in view of

the judgments of the Bombay High Court be faulted. Learned counsel

for the petitioner is unable to point out any such illegality,

irregularity, perversity or jurisdictional errors in the orders of the

respondents which shall require any interference by this Court in

exercise of its jurisdiction under Article 226 of the Constitution of

India. The writ petition is without any merit, and it is, therefore,

dismissed.

ANIL KUMAR, J.

J.R.MIDHA, J.

January 23, 2012 vk