Delhi High Court
K.S. Jawatkar vs The Chancellor Prof. Yash Pal & ... on 3 March, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No. 884/2013
% Reserved on: 1st February, 2017
Pronounced on: 3rd March, 2017
K.S. JAWATKAR ..... Petitioner
Through: In person.
versus
THE CHANCELLOR PROF. YASH PAL & ORS. ..... Respondents
Through: Ms. Monika Arora, Advocate for JNU.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J
1. Petitioner, Dr. K.S. Jawatkar has filed this writ petition
under Article 226 of the Constitution of India seeking the following
reliefs:-
"(a) Declare 1993 amendment to Clause 6 of Academic Ordinance of JNU
Act, 1966, vide Res. No.5.6/EC/4.10.1993, as illegal, null and void and
ultra-vires the JNU Act, 1966, its Statues and Ordinances and violative of
the Petitioner‟s Fundamental Rights under Article 14, 16, 19(1)(g) and 21 of
the Constitution of India;
(b) Direct the Chancellor and the respondent-University to grant statutory
promotion to the petitioner as Professor w.e.f. 1.1.1992 and/or alternatively
Appardorai Chair as contemplated in its order dated 27.7.1984 on the
benefits of emoluments as well as seniority and promotions implicit in its
final judgment dated 12.5.1989: JNU v. Dr. K.S. Jawatkar & Ors. AIR
1989 SC 1577: [1989] 3 SCR 273 and do complete justice under Article 142
of the Constitution;
(c) Direct the Chancellor and the respondent-University the petitioner be
deemed to have continued in service up to the age of 65 years in terms of
W.P. (C) No.884/2013 Page 1 of 24
statutory provision of Clause 6 of Academic Ordinance vide Res.
No.4(h)/EC/19.4.1976;
(d) Direct the Chancellor and the respondent-University to pay the
petitioner entire arrears of salaries up to 31 August 2003 and other statutory
dues with interest thereon;
(e) Direct the Chancellor and the respondent-University to grant
consequential benefits of service to the petitioner, including the benefits of
emoluments, designation, scale of pay, increment, provident fund,
retirement benefits, pension etc. in terms of prayers (b), (c) and (d) above
with interest thereon;
(f) Pass such and further order, which this Hon‟ble Court may deem fit and
proper in the facts and circumstances of the case; and
(g) Award the costs to the petitioner."
2. The aforesaid relief clauses show that petitioner seeks two
reliefs. First relief sought is of continuation in service up to the age of
65 years i.e the petitioner not being retired at the age of 62/63 years.
Prayers (a) and (c) to (e) are all relevant to this prayer of the petitioner
being entitled to continue in service till the age of 65 years instead of
62 years. Petitioner has retired at the age of 62/63 years on 31.8.2001.
It is relevant to note that the age of superannuation in the
employer/Jawaharlal Nehru University (JNU) was increased from 60 to
62 years, however in the period just before increase of the retirement
age to 62 years there was a provision for re-employment of three years
after superannuation and which option since was exercised by the
petitioner, he retired at the age of 63 years instead of 62 years, on
account of the judgment dated 20.11.2003 in W.P. (C) No. 6107/2000
filed by the petitioner. The second relief which the petitioner seeks is
W.P. (C) No.884/2013 Page 2 of 24
prayer (b) and which is for granting of promotion to the petitioner as
Professor with effect from 1.1.1992 and/or alternatively the Appadorai
Chair.
3. The present writ petition, as the discussion given
hereinafter will show, is hopelessly barred by the principles of res
judicata. In fact the filing of the present writ petition is a gross abuse
of process of law because the present writ petition is not the first writ
petition seeking the reliefs of benefits of higher age of retirement to 65
years and for grant of promotion to the post of Professor/Appadorai
Chair, but is in fact the third writ petition filed by the same petitioner
on the same subjects and in which earlier petitions the petitioner was
unsuccessful. Putting it in other words, inspite of the issues raised
having been decided in one earlier writ petition, the petitioner
thereafter inspite of the bar of principles of res judicata filed yet
another second writ petition seeking the same reliefs and which was
held to be barred by the principles of res judicata in terms of the
judgment dated 16.9.2011 in W.P. (C) No. 911/2007. Petitioner has
however once again filed this present third writ petition for the same
reliefs and which thus is liable to be dismissed as being barred by the
principles of res judicata. The details of the earlier two writ petitions
are given below and it is to be noted that each time the petitioner
W.P. (C) No.884/2013 Page 3 of 24
carried the issue after dismissal of the earlier two writ petitions by the
learned Single Judges of this Court, firstly by filing an appeal to a
Division Bench of this Court which was dismissed, and then thereafter
filing Special Leave Petitions (SLPs) before the Supreme Court, and
which SLPs were also dismissed.
4. The first writ petition which was filed by the petitioner
was W.P. (C) No. 6107/2000. This writ petition was disposed of in
terms of the judgment dated 20.11.2003. In this W.P. (C) No.
6107/2000 the following prayers were made by the petitioner:-
"(a) Issue an appropriate Writ, or Order or direction, including a Writ of
certiorari, to quash recommendation of the Selection Committee for
appointment of respondent No.10 to Process A.Appadorai Chair in
International Relations without interview as ultra vires the JNU Act, 1966,
its Statutes and the petitioner‟s Fundamental Rights under Article 14, 16(1),
19(1)(g) and 21of the Constitution of India;
(b) Issue Mandamus directing the respondent University & its Vice-
Chancellor to reconstitute the Selection Committee with due regard to
specialization i.e. International Relations in accordance with relevant Statute
and reasoning provided for amending the said Statute having regard to the
recommendation of the Ganendragadkar Committee on Governance of
Universities and Colleges;
(c) Direct the respondent University and its Vice-Chancellor to comply
with Academic Council Resolution No.5-AC(b) Dated 12.2.1993 for
rotating Appadorai Chair among all (seven) Centres of the School (SIS);
(d) Quash Office Order No.630 Dated 15.5.2000 (sic. 15.6.2000) (Annex.
P-9) and direct the respondent University to continue services of the
petitioner until he attain the age of 65 years as per Academic Ordinance
No.1, Clause 6.3.;
(e) Direct the respondents, 1 and 2 to produce the original file relating to
interview dated 16th August, 1995 for Professor Appardorai Chair in
International Relations, including attendance sheet of candidates appeared
for interview and bio-data of Selection Committee Members as well as
candidates in this Hon‟ble Court;
W.P. (C) No.884/2013 Page 4 of 24
(f) Pass any such further and other Orders as this Hon‟ble Court may deem
fit and proper on the facts and in the circumstances of the case; and
(g) Award costs to the petitioner."
5. A reading of the aforesaid prayer clauses of W.P. (C) No.
6107/2000 shows that petitioner had prayed for continuation in
services up to the age of 65 years and benefit of Appadorai Chair/post
of Professor. This writ petition when was disposed of in terms of the
judgment dated 20.11.2003 by the learned Single Judge of this Court
whereby the petitioner was granted the benefit of continuation in his
post of Assistant Professor up to the age of 63 years by granting re-
employment for a period of three years, however, the petitioner‟s claim
for appointment to the post of Professor/Appadorai Chair was rejected.
The relevant operative paras of the judgment dated 20.11.2003 in W.P.
(C) 6107/2000 are paras 12 to 15 and which read as under:-
"12. The Respondent's case on this issue is untenable and is an ipse dixi.
No material has seen the light of day indicating that the Petitioner had
accepted "the first alternative" of his superannuating at 62 years. On 1st
September, 1998, the decision of the Ministry of Human Resource
Development dated 27.7.98 had not been implemented and enforced. This
took place only on October 23, 1998 on the issuance of the Circular
reproduced herein above. Therefore on 1st September, 1998, there could not
have been any question of the Petitioner continuing in service other than as
a reemployed teacher. It has been contended by learned counsel for the
Respondent that there was same oral understanding between the parties to
the effect that the Petitioner would be governed by the H.R.D. Ministry
decision dated 27.7.98. This contention is wholly incredible. If it was known
to all concerned that the age of superannuation had stood increased to 62
years, in the hiatus between the 27.7.98 and 31.8.98, the earlier decision of
reemployment could have been cancelled by the Respondents. This has not
been done, and for obvious reasons the HRD decision was applied to
teachers of the Respondent University as late as on October 23, 1998 albeit
W.P. (C) No.884/2013 Page 5 of 24
with retrospective effect relating back to 27.7.98. There is no document
evidencing the Respondent's case that the Petitioner had agreed to be
regulated by the Circular dated October 23, 1998. In the Office Order No.
630 dated June 15, 2000, there is no reference to any previous
communications or understandings. I am of the considered opinion that the
offer of reemployment, which was accepted and acted upon by the Petitioner
whereby the service of the Petitioner would continue for a period of three
years had come into operation and could not have been altered without the
consent of the Petitioner by virtue of the Circular dated October 23, 1998. It
is also not open to the Petitioner to contend otherwise viz. that he had opted
to continue in regular service till his attaining the age of 62 years. In the
absence of any clear evidence of an agreement or understanding having
been arrived at on or after October 23, 1998, such contentions, or either
complexion, would be anachronistic. The effect is that the Petitioner has a
right to be considered to have been continued in service till the expiry of the
period of reemployment for three years i.e. 31st August, 2001 in accordance
with the then extant regimes. The Petitioner shall be entitled to all
consequential benefits, which should be paid to him within two months.
13. That leaves to be considered the period when the Petitioner's
reemployment had expired on his attaining 63 years or three years from his
superannuation, i.e. 1st September, 2001 till his reaching the age of 65
years. The Rules applicable on the date of his superannuation in 1998 as
well as in 2001 envisaged reemployment till the age of 65 years. The
Petitioner was considered but the Vice Chancellor did not recommend his
case. This Court ought not to review the decision of whether the Petitioner's
continued service was in the "interests" of the University. I do not find any
infraction of Ordinance 6 or Regulation 16. It is not for the Court to
circumscribe the manner in which the Vice Chancellor is to exercise his
discretion or to superintend the body of his advisors, especially where no
mala fides are evident.
14. Arguments have been heard at great length because every
indulgence has been granted to the Petitioner who argued in person. The
plethoric case law relied upon by him has been taken into consideration
together with all written submissions. If each and every argument advanced
by the Petitioner is to be taken up separately, this judgment will become
needlessly and excruciatingly prolix and lengthy. It may, therefore, be
deemed that every contention raised in the written argument has been
considered and rejected to the extent not accepted above.
15. The conclusion is that the Petitioner has no right to be considered
for appointment to the A. Appadorai Chair in International Relations. There
is no legal impropriety in the Chair having been left vacant. The Petitioner
also has no right to be reemployed till his having attained the age of 65
years. The Petitioner, however, shall be deemed to have continued in
service, on reemployment, till 30th August, 2001 i.e. three years after his
having superannuated. Salary and consequential benefits be paid to the
Petitioner by the Respondent within two months." (underlining added)
W.P. (C) No.884/2013 Page 6 of 24
6. (i) The petitioner challenged the judgment dated 20.11.2003
which denied the petitioner‟s right to be re-employed till 65 years and
also denied the claim of the petitioner to Appadorai Chair by filing
LPA No. 68/2004 before a Division Bench of this Court. This writ
appeal/LPA was dismissed by a Division Bench of this Court vide its
judgment dated 21.1.2004, and the relevant para of the judgment of the
Division Bench reads as under:-
"Arguing in person, he again invoked the University Order dated 22nd May
1998 to claim that he was entitled to re-employment for three years and
remain in service up to the age of 65 years. No other issue was taken by
him.
Apart from the reasoning given by the writ Court, we find that appellant‟s
claims suffers from serious misconception. He overlooks that he was
initially to retire in August, 1998 on attaining 60 years of age and it was in
that context, that he was offered reemployment for three years from 1 st
September 1998. And since meanwhile retirement age was raised on which
basis he remained in service till he attained 62 years of age on 30.8.2000,
the question of giving effect to a previous University Order dated 22nd May
1998 which was passed in the light of his retirement due on attaining 60
years of age, therefore, did not arise. On the other issue of appointment to
the A. Appadorai Chair, we find ourselves unable to disagree with the
reasoning of the learned Single Judge. Appeal is accordingly dismissed."
(ii) Petitioner challenged the judgment dated 21.1.2004 of the
Division Bench by filing SLP (Civil) No. 4427/2004 in the Supreme
Court. This SLP was dismissed by the Supreme Court in limine on
16.11.2004.
7. Therefore the issues with respect to the entitlement of the
petitioner to seek enhancement of age up to 65 years and for petitioner
W.P. (C) No.884/2013 Page 7 of 24
to be appointed as Professor/Appadorai Chair achieved finality against
the petitioner in terms of the judgment dated 20.11.2003 in W.P. (C)
No. 6107/2000 and the finality of which judgment stood affirmed by
dismissal of the appeal filed by the petitioner before the Division
Bench and thereafter dismissal of the SLP filed in the Supreme Court.
8. (i) Petitioner remained undeterred by dismissal of W.P. (C)
No. 6107/2000, and he then filed W.P. (C) No. 911/2007 seeking same
reliefs of retirement at 65 years and promotion to the post of
Professor/Appadorai Chair. This W.P. (C) No. 911/2007 was decided
by a learned Single Judge of this Court by the judgment dated
16.9.2011. By the judgment dated 16.9.2011 another writ petition
being W.P. (C) No. 2044/1992 was also decided by a learned Single
Judge of this Court, but we are not concerned with the same and hence
the facts of the said case are not stated herein. It is, however, relevant
to note that though the W.P. (C) No. 911/2007 was disposed of finally
by the judgment dated 16.9.2011 of a learned Single Judge of this
Court, however, the prayer clauses (b), (c) and (d) of W.P. (C) No.
911/2007, were in fact rejected by an earlier detailed order dated
19.11.2008 by another learned Single Judge of this Court and as will
be detailed hereinafter.
(ii) The prayer clauses of W.P. (C) No. 911/2007 read as under:-
W.P. (C) No.884/2013 Page 8 of 24
"(a) Direct the Chancellor and respondent-University to grant statutory
promotion to the petitioner as Professor w.e.f. 1-1-1992 and/or alternatively
Appadorai Chair in International Relations w.e.f. 1995 as contemplated in
Supreme Court order dated 27th July 1984 on the benefits of emoluments as
well as seniority and promotions and its final judgment dated 12th May
1989; JNU v. Dr. K.S. Jawatkar & Ors. AIR 1989 SC 1577: (1989) 3 SCR
273 and do complete justice;
(b) Direct the Chancellor and respondent-University the petitioner be
deemed to have continued in service up to the age of 65 years in terms of
statutory provision of Clause 6 of Academic Ordinance relating to
conditions of service of University appointed teachers as stood on the
Statute Book vide Resolution No.4(h)/EC/19.4.1976;
(c) Direct the Chancellor and respondent University to pay the entire arrears
of salaries up to 31st August 2003 and other statutory dues, including
pension w.e.f. 1st September 2003 with interest thereon;
(d) Direct the Chancellor and respondent-University to grant consequential
benefits to the petitioner, including the benefits of emoluments,
designations, scale of pay, increment, provident fund, retirement benefits,
pensions etc. in terms of prayers(a) to (c) with interest thereon; and
(e) Pass such and further orders, which this Hon‟ble Court may deem fit
and proper in the facts and circumstances of the case."
9. It is seen that the prayer clauses (b), (c) and (d) of W.P.
(C) No. 911/2007 were the same prayers of the earlier W.P. (C) No.
6107/2000 of petitioner being granted continuation of service up to the
age of 65 years with consequential benefits. Since this prayer was
already dismissed right till the Supreme Court in the earlier W.P. (C)
No. 6107/2000, a learned Single Judge of this Court while hearing
W.P. (C) No. 911/2007 by his order dated 19.11.2008 rejected the
prayers (b) to (d). This order dated 19.11.2008 of the learned Single
Judge in W.P. (C) No. 911/2007 reads as under:-
"CM No.15733/2008 in W.P.(C) No. 911/2007
W.P. (C) No.884/2013 Page 9 of 24
This is an application under Section 151 CPC filed by the petitioner seeking
to place on record certain judgments which according to him are relevant for
deciding the present case. The judgments annexed by the petitioner along
with this application are taken on record.
The instant application stands disposed of accordingly.
W.P.(C) No. 911/2007
The petitioner has filed this writ petition seeking the following prayers:-
"(a) Direct the Chancellor and respondent-University to grant statutory
promotion to the petitioner as Professor w.e.f. 1-1-1992 and/or
alternatively Appadorai Chair in International Relations w.e.f. 1995 as
contemplated in Supreme Court order dated 27th July 1984 on the
benefits of emoluments as well as seniority and promotions and its final
judgment dated 12th May 1989: JNU V. Dr. K.S. Jawatkar & Ors. AIR
1989 SC 1577: (1989) 3 SCR 273 and do complete justice;
(b) Direct the Chancellor and respondent-University the petitioner be
deemed to have continued in service up to the age of 65 years in terms of
statutory provision of Clause 6 of the Academic Ordinance relating to
conditions of service of University appointed teachers as stood on the
Statute Book vide Resolution no.4(h)/EC/19.4.1976;
(c) Direct the Chancellor and respondent University to pay the entire
arrears of salaries up to 31st August 2003 and other statutory dues,
including pension w.e.f 1st September 2003 with interest thereon;
(d) Direct the Chancellor and respondent-University to grant
consequential benefits to the petitioner, including the benefits of
emoluments, designations, scale of pay, increment, provident fund,
retirement benefits, pensions etc. in terms of prayers (a) to (c) with
interest thereon; and
(e) Pass such and further orders, which this Hon‟ble Court may deem
fit and proper in the facts and circumstances of the case."
Mr. S.C. Dhanda, learned counsel appearing on behalf of the respondents
says that prayers „b‟, „c‟ and „d‟ made by the petitioners in the present writ
petition have already been considered and decided against the petitioner
upto the Hon‟ble Supreme Court and in support of his said contention he has
referred to the judgment of the learned Single Judge at page 63, judgment of
the Division Bench at page 89 and has filed the copy of the order of the
Supreme Court by which SLP of the petitioner against the order of Division
Bench in LPA was also dismissed.
The operative part of the order of Division Bench dated 21.1.2004 in Writ
Appeal No. 68/2004 reads as under:-
"Apart from the reasoning given by the writ Court, we find that
appellant‟s claims suffers from serious misconception. He overlooks that
he was initially to retire in August, 1998 or attaining 60 years of age and
it was in that context, that he was offered reemployment for three years
from 1st September 1998. And since meanwhile retirement age was
W.P. (C) No.884/2013 Page 10 of 24
raised on which basis he remained in service till he attained 62 years of
age on 30.8.2000, the question of giving effect to a previous University
Order dated 22nd May, 1998, which was passed in the light of his
retirement due on attaining 60 years of age, therefore did not arise. On
the other issue of appointment to the A.Appadorai Chair, we find
ourselves unable to disagree with the reasoning of the learned Single
Judge. Appeal is accordingly dismissed."
The SLP filed by the petitioner against the above order of the Division
Bench was dismissed by the Hon‟ble Supreme Court vide order dated
16.11.2004 in SLP(Civil) No. 4427/2004.
This Court is of the opinion that since the question regarding extension of
retirement age of the petitioner upto 65 years has already been considered
and decided against the petitioner upto the Hon‟ble Supreme Court, this
question cannot be allowed to be re-agitated in this fresh round of litigation.
Hence, the prayers „b‟, „c‟ and „d‟ made by the petitioner in this writ petition
are not maintainable.
This petition is now restricted only to prayer „a‟ made by the petitioner for
his promotion.
Issue notice of this writ petition to the respondents restricted only to prayer
„a‟. Mr. S.C. Dhanda accepts notice on behalf of the respondents and he
request for time for filing of counter-affidavit in the matter. Counter
affidavit be filed within four weeks. Rejoinder, if any, be filed within three
weeks thereafter.
List on 12.3.2009."
10. The order of the learned Single Judge dated 19.11.2008
rejecting prayers (b) to (d) as being barred by principles of res judicata
was challenged by the petitioner by filing an appeal before a Division
Bench of this Court being LPA No. 1/2009. This LPA No. 1/2009 was
dismissed by the Division Bench of this Court vide its order dated
6.1.2009. Petitioner challenged the order of the Division Bench by
filing of an SLP being SLP No. 10313/2009 and which was also
dismissed by the Supreme Court by passing the following order:-
"Delay condoned.
W.P. (C) No.884/2013 Page 11 of 24
Having heard the Petitioner-in-person, we are not inclined to entertain the
special leave petition since the question sought to be agitated herein appears
to have been gone into in earlier proceedings. The basic relief sought for by
the Petitioner is that he ought to have been retired at the age of 65 years and
not at the age of 60 years, as has been done in this case. The said question,
in our view, is no longer res integra on account of the fact that the same was
decided by the Division Bench of the High Court in Writ Appeal No. 68 of
2004 and the special leave petition filed against the said decision was also
dismissed.
However, we are informed by the Petitioner that there is some matter
pending before the High Court. If that be so, the same may be pursued and
be disposed of at an early date.
The Special Leave Petition is dismissed."
11. A reading of the remaining prayer (a) of W.P. (C) No.
911/2007 shows that the same pertains to the claim of promotion to be
granted to the petitioner with effect from 1.1.1992 and/or alternatively
Appadorai Chair with effect from 1995. This relief was declined by a
learned Single Judge of this Court vide his judgment dated 16.9.2011
holding the same barred by res judicata. In this judgment dated
16.9.2011 a learned Single Judge has noted all the detailed facts with
respect to the fact that reliefs (b), (c) and (d) in W.P. (C) No. 911.2007
as prayed for were not maintainable on account of dismissal of the
earlier W.P. (C) No. 6107/2000 as also the detailed order dated
19.11.2008 in the same W.P. (C) No. 911/2007 and challenge against
which order dated 19.11.2008 stood dismissed right till the Supreme
Court.
W.P. (C) No.884/2013 Page 12 of 24
12. As regards prayer (a) in W.P. (C) No. 911/2007 of the
claim of petitioner to the appointment to the post of
Professor/Appadorai Chair, the learned Single Judge dismissed that
claim as being barred by res judicata by observing as under in paras 32
to 35 of the judgment dated 16.9.2011, and which paras read as under:-
"Prayer (a) in W.P. (C) No. 911 of 2007
"32. Prayer (a) in W.P. (C) No. 911 of 2007 concerns the Petitioner‟s
claim to be appointed to the Professor Appadorai Chair in International
Relations. After the order dated 20th November 2003 of this Court in W.P.
(C) No. 6107 of 2000, which was affirmed by the Division Bench by its
order dated 21st January 2004 dismissing the Petitioner‟s Writ Appeal No.
68 of 2004, the issue already stands answered against the Petitioner. Both
orders were affirmed by the Supreme Court when it dismissed the
Petitioner‟s S.L.P (C) No. 4427 of 2004 on 16th November 2004. The
Petitioner cannot be permitted to reagitate the same issue all over again.
33. As regards the claim to the appointment as Professor, the JNU by
its additional affidavit filed on 12th April 2010, placed on record the
minutes of the Meeting of the Selection Committee dated 30th August 1996
which recommend that the Petitioner should be considered for such
promotion after two years. It is stated that the Petitioner did not submit his
work for reassessment thereafter till his retirement. Therefore, he could not
be considered for promotion. The Petitioner retired on 31st August 2000
without such promotion being granted. This was the position when the
Petitioner filed W.P. (C) No. 6107 of 2000. However he did not at that time
raise the issue of non-grant of promotion as Professor. His entire focus, at
that stage, was on the Professor Appadorai Chair. There is no explanation
why the Petitioner chose to wait for seven years thereafter to file the present
writ petition claiming merit promotion to the post of Professor.
34. The Petitioner urged that his claim for promotion as Professor with
effect from 1st January 1992 was not barred by res judicata or under Order
II Rule 2, CPC. He relied upon the decisions of the Supreme Court in State
of Maharashtra v. National Construction Company, Bombay AIR 1996
SC 2367, and Deva Ram v. Ishwar Chand AIR 1996 SC 378. According to
him, even the earlier litigation would not constitute as res judicata. He
stated that W.P. (C) No. 6107 of 2000 was based on the 1993 amendment to
Clause 6 of the Academic Ordinances which was not applicable to him by
virtue of Clause 7 thereof. He relied upon the decisions of the Supreme
Court in Joseph Pothen v. State of Kerala AIR 1965 SC 1514 and
Municipal Committee, Amritsar v. State of Punjab AIR 1969 SC 1100.
W.P. (C) No.884/2013 Page 13 of 24
35. After the order dated 19th November 2008 of this Court limiting
the scope of W.P. (C) No. 911 of 2007 to prayer (a), the Petitioner cannot be
heard to urge the issue concerning Clause 6 of the Academic Ordinances.
This Court therefore cannot entertain the claim of the Petitioner that he
should be declared to have continued up to the age of 65 years. Both issues
have already been answered against the Petitioner by this Court earlier.
Even assuming that such plea is not barred by res judicata it is barred by
laches. Consequently, this Court finds no merit in prayer „a‟ of W.P. (C) No.
911 of 2007 and it is rejected as such." (underlining added)
13. The judgment of the learned Single Judge dated 16.9.2011
was challenged by the petitioner by filing a writ appeal being LPA No.
93/2012. This LPA was dismissed by a Division Bench of this Court
as per its judgment dated 13.7.2012. Against the judgment of the
Division Bench in LPA No. 93/2012 the petitioner filed SLP (Civil)
No. 26924/2012 and that SLP was dismissed by the Supreme Court on
21.9.2012 by passing the following order:-
" After arguing the matters for quite some time, the petitioner, appearing in
person, seeks permission to withdraw these petitions. Permission granted.
The petitions are, accordingly, dismissed as withdrawn."
14. In fact, the petitioner again challenged the judgment of the
Division Bench of this Court dated 13.7.2012 in another SLP (Civil)
No. 34653/2012 and this SLP was dismissed by the Supreme Court
vide its order dated 2.1.2013. By the same order a W.P. (C) No.
499/2012 which was filed by the petitioner directly before the Supreme
Court seeking the same reliefs as stated in this writ petition was also
dismissed but the Supreme Court observed that petitioner if so advised
W.P. (C) No.884/2013 Page 14 of 24
may approach the High Court under Article 226 of the Constitution of
India and that the High Court shall decide the petition when filed in
accordance with law. This order of the Supreme Court dated 2.1.2013
reads as under:-
"UPON hearing counsel the Court made the following
ORDER
SLP(C)No.34653/2012: Petitioner, appearing in person, had earlier filed
SLP(C)No.26924 of 2012 challenging the judgment and order dated
13.7.2012 of the High Court of Delhi in Letters Patent Appeal No.93 of
2012, which was dismissed by us on 21.9.2012 passing the following
order:
"After arguing the matters for quite some time, the petitioner,
appearing in person, seeks permission to withdraw these petitions.
Permission granted.
The petitions are, accordingly, dismissed as withdrawn."
Petitioner has now filed present SLP(C)No.34653 of 2012 challenging the
same order dated 13.7.2012 of the High Court of Delhi, which cannot be
entertained since earlier special leave petition was already dismissed and no
liberty was granted by this Court. The special leave petition is
accordingly dismissed.
As a sequel to this, interlocutory application for impleadment also stands
dismissed.
Writ Petition (C) No.499 of 2012: This writ petition has been preferred
under Article 32 of the Constitution seeking following reliefs:
"(a) Declare 1993 amendment to Clause 6 of Academic Ordinance
of JNU Act, 1966, vide Res.No.5.6/EC/4.10.1993, as illegal, null and
void and ultra vires the JNU Act, 1966, its Statues and Ordinances
and violative of the Petitioner's Fundamental Rights under Article
14, 16, 19(1)(g) and 21 of the Constitution of India;
(b) Direct the Chancellor and the respondent-University to grant
statutory promotion to the petitioner as Professor w.e.f. 1.1.1992 and/or
alternatively Appadorai Chair as contemplated in its order dated
27.7.1984 on the benefits of emoluments as well as seniority and
promotions implicit in its final judgment dated 12.5.1989: JNU v. Dr.
K.S. Jawatkar & Ors. AIR 1989 SC 1577: [1989] 3 SCR 273 and do
complete justice under Article 142 of the Constitution;
(c) Direct the Chancellor and the respondent-University the petitioner be
deemed to have continued in service up to the age of 65 years in terms of
statutory provision of clause 6 of Academic Ordinance vide Res.No.4
(h)/EC/19.4.1976;
(d) Direct the Chancellor and the respondent-University to pay the
petitioner entire arrears of salaries up to 31 August 2003 and other
statutory dues with interest thereon;
(e) Direct the Chancellor and the respondent-University to grant
consequential benefits of service to the petitioner, including the benefits
of emoluments, designation, scale of pay, increment, provident fund,
retirement benefits, pensions etc. in terms of prayers (b),(c) and (d)
above with interest thereon;
(f) Pass such and further orders, which this Hon'ble Court may deem fit
and proper in the facts and circumstances of the case; and (g) Award the
costs to the petitioner."
We find no reason to entertain this writ petition, which is accordingly
dismissed. However, if so advised, the petitioner may approach the High
Court by way of filing writ petition under Article 226 of the Constitution,
which shall be decided in accordance with law, on which we express no
opinion. In other words, we leave it entirely to the discretion of the High
Court."
15. The petitioner, therefore, filed the present and sequentially
the third writ petition in view of the order of the Supreme Court dated
2.1.2013. It is already noted that it is not as if Supreme Court by its
order dated 2.1.2013 held that petitioner has a right to file a writ
petition in this Court which will be decided on merits, inasmuch as, the
Supreme Court has specifically observed in the order dated 2.1.2013
that it expresses no opinion on the matter and the High Court was to
decide the writ petition in accordance with law.
16. In view of the above discussion it is seen that the
petitioner is a habitual litigant. Inspite of causes of action and subject
matters of writ petitions achieving finality right till the Supreme Court,
petitioner is habituated of indulging in unnecessary repeated litigations
inspite of the principles of res judicata operating against the petitioner.
The reliefs as prayed for in this writ petition of entitlement of the
petitioner to be continued till the age of 65 years with consequential
benefits to the petitioner and for the petitioner to be appointed to the
post of Professor/Appadorai Chair have achieved finality against the
petitioner repeatedly as per the various writ petitions which have been
decided by this Court, LPAs of the petitioner which have been
dismissed by the Division Benches of this Court, and thereafter the
SLPs filed by the petitioner being dismissed by the Supreme Court.
17. Therefore the present writ petition is a clear cut and a
gross abuse of the process of law.
18. The only remaining issue to be considered is that whether
petitioner by now seeking to challenge the 1993 Amendment to Clause
6 of the Academic Ordinance of the Jawaharlal Nehru University Act,
1966 can now claim that there is a different and valid cause of action
for filing of this writ petition for seeking retirement age of 65 years.
The answer is a categorically no and the reasons are given hereinafter.
19. The Petitioner cannot claim by urging prayer (a) of this
writ petition for grant of retirement age of 65 years to the petitioner by
questioning the validity of 1993 Amendment to Clause 6 of the
Academic Ordinance of the Jawaharlal Nehru University Act on
account of the fact that petitioner would be barred by the principles of
constructive res judicata. As per Section 11 Explanation IV of the
Code of Civil Procedure, 1908 (CPC) any matter which might and
ought to have been made a ground of attack in an earlier proceeding
will be deemed to be directly and substantially in issue in the earlier
proceedings. The object of law is that for the same relief a person is
bound to take up all entitlements together, and a person cannot use
different entitlements for the same reliefs by filing repeated
proceedings. CPC no doubt does not apply to writ petitions, however,
the principles of res judicata are not only because of CPC because the
principles of res judicata are matters of general public policy. In fact,
it has also been held for this very reason that Section 11 of CPC is not
a sole repository of the doctrine of res judicata vide Gulam Abbas and
Others Vs. State of Uttar Pradesh and Others (1982) 1 SCC 71.
20. The relief as regards prayer (a) and for seeking retirement
age of 65 years is also barred by doctrine of delay and laches, and also
so held in the judgment dated 16.9.2011 in W.P. (C) No. 911/2007.
21. Therefore, the writ petition is barred for prayer (a) on the
ground of res judicata and also doctrine of delay and laches.
22. Even if I examine prayer (a) independently, it is seen that
this prayer (a) is predicated on the petitioner pleading that the
amendment which is made to Clause 6 of the Academic Ordinance
results in terms of service being adversely taken against the petitioner
and the terms of the services of the petitioner cannot be degraded. For
this purpose petitioner has pleaded the following paras 32 to 35 in the
writ petition and which paras read as under:-
"32. In 1993 during the pendency of this writ petition, original Clause 6
of Academic Ordinance of 1976 of the JNU Act relating to conditions of
service of University appointed teachers was amended. Under the Act, no
change could be made in terms and conditions of service of a teacher after
his/her appointment so as to adversely affect him by virtue of Clause 7
which reads:
"7.Variations in terms and conditions of service:
Every teacher of the University shall be bound by the Statutes,
Ordinances and Regulations for the time being in force in the University:
Provided that no change in the terms and conditions of service of a
teacher shall be made after his/her appointment in regard to
designation, scale of pay, increment, provident fund, retirement
benefits, age of retirement, probation, confirmation, leave, leave salary
and removal from service so as to adversely affect him.
33. The relevant provisions of Clause 6 of Academic Ordinance of
JNU Act relating to conditions of service of University appointed teachers
vide Res. No.4(h)/EC/19.4.1976 and Amended provision of Clause 6 of
Academic Ordinance vide Res. No.5.6/EC/4.10.1993 reads:
6. Age of retirement (vide Res. 6. Age of Retirement (Amended
No.4 (h)/EC/19-4-1976 vide Res. No. 5.6/EC/4-10-1993
Subject to the provision of 6.1 Subject to the provision of
Statute 30, every teacher Statute 30, every teacher in the
confirmed in the service in such service of the University shall
service until he/she attains the retire from service on the
age of 60 years: afternoon of the last date of the
month in which he/she attains the
Provided if the Executives age of 60 years;
Council is satisfied that such an
appointment is in the interest of 6.2 If the Executive Council is
the University it may on the satisfied that such an
recommendation of the Vice appointment is in the interest of
Chancellor make ex-cadre the University, it may on the
appointment in respect of a recommendation of the Vice-
teacher of the University in Chancellor, re-employ a teacher
sound health, who has attained on the superannuation against the
the age of 60 years and is able post held by him if he is in sound
to perform his duties health and is able to perform his
satisfactorily, on such terms and duties satisfactorily, on such
conditions as the Executive terms and conditions as the
Council may specify, for a Executive Council may specify,
period not exceeding three for a period not exceeding three
years in the first instance. years in the first instance.
Provided further that no further 6.3 Where the date of
contract of extension shall be superannuation, or the expiry of
granted to a teacher who has the terms of re-employment of a
attained the age of 65 years. teacher falls due during the
course of a semester the
Executive Council may, on the
recommendation of the Vice-
Chancellor, allow a teacher to
continue in service on re-
employment basis till the end of
the academic year.
Provided that such re-
employment shall not be granted
to a teacher beyond the date on
which he attains the age of 65
years.
6.4 A re-employed teacher shall
not be eligible to be appointed as
Chairperson of a Centre or Dean
of a School or for any other
administrative assignment such
as Dean of Students, Chief
Proctor, Provost, etc.
34. The effect of 1993 amendment of Clause 6 of Academic Ordinance
was to reduce the age of retirement of University teachers to 60 years (per
Clause 6.1), which is not applicable to the Petitioner by virtue of Clause 7.
Originally Clause 6 did not have sub-clauses like present one viz.6.1, 6.2,
6.3 and 6.4. This apart, the language of original Clause 6 is now altered.
Expressions/words "shall continue in service" occurring in original Clause 6
is changed to "shall retire from service" in amended Clause 6.1.
Amendment also introduces word/expression "superannuation" per Clause
6.2, 6.3 for the first time, which was not originally there, apart from deleting
the word "confirmed" from Clause 6, which was originally there. Besides
this, original expression "Age of retirement" was to be found in the title or
heading of the statute only. Now, word/expression "retire" is right in
Clause 6.1. Original Clause 6 uses an expression/phrase "ex-cadre
appointment". Now this phrase is deleted and instead an expression/phrase
"re-employ a teacher", "re-employment" is inserted (per Clause 6.2 and
6.3).
35. The Petitioner submits that the 1993 amendment to Clause 6 of
Academic Ordinance of JNU Act, 1966, relating to conditions of service of
University appointed teachers is ultra vires the JNU Act, its Statutes and
Ordinances. It is also violative of the petitioner‟s Fundamental Rights under
Articles 14, 16, 19(1) (g) and 21 of the Constitution of India. The said
amended Academic Ordinance relating to conditions of service vide Res.
No.5.6/EC/4.10.1993 is flagged hereto and marked as Annexure P-14
pp.114-117."
23. A reading of paras 32 to 35 of the writ petition show that
petitioner except indulging in semantics is doing nothing else. By
amending Clause 6 of Academic Ordinance in 1993 it is not as if the
service conditions have been amended to the detriment of the
petitioner. Even as per the unamended Clause 6 the age of retirement
was 60 years and as per the amended Clause 6 the age of retirement
remained at 60 years. As per unamended Clause 6 there was an
entitlement of re-employment of three years and which entitlement is
continued in terms of Clause 6.2 of the amended Clause 6 of the
Academic Ordinance. As per the unamended Clause 6 the entitlement
of a teacher to continue was till the maximum period of 65 years and
which also continues by virtue of Clause 6.3 of the amended Clause 6
of the Academic Ordinance. Bar some language changes in reality
there is almost no substantial change in the consequences of the
unamended Clause 6 and the amended Clause 6 of the Academic
Ordinance of the respondent no. 4/employer/Jawaharlal Nehru
University. The fact that petitioner himself admits that there is no
substantial and effective change in the unamended and the amended
Clause 6 becomes clear from para 34 of the writ petition, which has
been reproduced above, and which para only seeks to make out a
mountain of a mole hill out of minor changes in the language of
unamended Clause 6 and amended Clause 6, but which language
changes have no bearing and effect to the main three aspects of
ordinary age of retirement of 60 years, re-employment being granted
for a period not exceeding three years in the first instance and that
finally the maximum age for re-employment shall not be beyond 65
years of age. Petitioner therefore by pleadings contained in paras 32 to
35 of the writ petition is only seeking to plead an imaginary cause of
action, and which really does not exist.
24. In view of the aforesaid discussion, it is seen that the writ
petition, with all its prayer clauses, is barred by the principles of res
judicata, inasmuch as, the same issues have been decided not once but
twice earlier. Petition is also barred by delay and laches. Petitioner,
therefore, cannot seek retirement at the age of 65 years. Petitioner also
cannot claim appointment to the post of Professor/Appadorai Chair as
prayed in this writ petition and which issue has been decided against
him in two earlier writ petitions being W.P. (C) Nos. 6107/2000 and
911/2007. The petitioner has made a very lame attempt to plead a new
cause of action in paras 32 to 35 of this writ petition but such pleadings
show no different or fresh cause of action for seeking the relief of
petitioner being retired only at the age of 65 years and not earlier. In
any case, the doctrine of constructive res judicata also stares the
petitioner in his face.
25. Since the petitioner is found to be indulging in and is
habitual of unnecessary repeated litigations, although the issues argued
and urged have achieved finality, the only way to stop the petitioner
from indulging in repeated litigations is to impose costs upon the
petitioner. Although, the facts of the present case require that in view
of wastage of valuable judicial time of this Court, and unnecessary
expenditure to the employer/JNU, the writ petition must be dismissed
with costs of at least Rs. 2,00,000/- with Rs.1,00,000/- being payable to
the Prime Minister‟s National Relief Fund and Rs.1,00,000/- to the
employer/JNU, however, considering that the petitioner was a teacher
in JNU, this writ petition is dismissed with costs of only Rs.60,000/-,
out of which Rs.30,000/- shall be paid to the respondent no.
4/employer/JNU and costs of Rs.30,000/- being deposited with
Friendicoes, No. 271 & 273, Defence Colony, Flyover Market,
Jangpura Side, New Delhi-110024. Costs be paid in six weeks failing
which the same can be recovered as per law.
MARCH 03, 2017 VALMIKI J. MEHTA, J
AK/ib/Ne
