Himachal Pradesh High Court
Ravinder Kumar Barwal vs Barwal Were Ex-Army Personnel And ... on 4 January, 2022
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 4th DAY OF JANUARY, 2022
BEFORE
.
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN
CIVIL WRIT PETITION NO. 469/2020
BETWEEN:
RAVINDER KUMAR BARWAL,
S/O K. S. BARWAL,
R/O VILLAGE KALTRI,
P.O. KOTHUWAN, TEHSIL SANDHOLE,
DISTRICT MANDI, H.P.,
PRESENTLY WORKING AS
DISTRICT ATTORNEY,
VIGILANCE HEADQUARTER,
CRAIG GARDEN,
SHIMLA-171002, H.P,.
....PETITIONER
(BY SH. HARDEEP VERMA, ADVOCATE)
AND
1. STATE OF H.P.,
THROUGH THE ADDL. CHIEF SECRETARY
(HOME), GOVT. OF H.P.,
SHIMLA-1,H.P.
2. THE ADDITIONAL CHIEF SECRETARY
(PERSONNEL), GOVT. OF H.P.,
SHIMLA-1, H.P.
3. THE DIRECTOR OF PROSECUTION,
S.D.A. COMPLEX,
KASUMPTI, SHIMLA-9, H.P.
...RESPONDENTS
(BY SH. ASHOK SHARMA, A.G.
WITH SH. RJINDER DOGRA, SR. ADDL. A.G.,
SH. VINOD THAKUR, ADDL. A.G\.
AND SH. RAJAT CHAUHAN, DY.A.G.)
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2
CIVIL WRIT PETITION (ORIGINAL APPLICATION)
NO. 4488/2020
BETWEEN:
.
1. SH. SOHAN SINGH KAUNDAL,
S/O SH. DAYA RAM KAUNDAL,
R/O VILLAGE BAH-RANOUTAN,
P.O. MASSOUR, TEHSIL GHUMARWIN,
DISTRICT BILASPUR, PRESENTLY WORKING
AS DISTRICT ATTORNEY,
CSK AGRICULTURE UNIVERSITY,
PALAMPUR, DISTRICT KANGRA, HP.
2. DR. DHARAM SINGH PARMAR,
S/O LATE SH. MUNSHI RAM,
R/O VILLAGE BUHAR, P.O. JEJWIN,
TEHSIL JHANDUTTA,
DISTRICT BILASPUR, H.P.,
PRESENTLY WORKING AS
DISTRICT ATTORNEY ON DEPUTATION
WITH S.JVN, SANHAN SHIMLA, HP
3. SH. RAVINDER KUMAR BARWAL,
S/O LATE SH. K.S. BARWAL,
R/O VILLAGE KALTRI,
P.O. KOTHUWAN, TEHSIL SANDHOLE,
DISTRICT MANDI, H.P., PRESENTLY
WORKING AS JOINT DIRECTOR,
HPPWD, NIGAM VIHAR, SHIMLA, HP.
4. SH. S.S. PATHANIA,
S/O SH. CHATTER SINGH,
R/O VILLAGE GHOLI, P.O. LOHARA,
TEHSIL FATEHPUR, DISTRICT KANGRA, (HP),
PRESENTLY WORKING AS
JOINT DIRECTOR, PROSECUTION,
DHARAMSHALA (NORTH ZONE), (HP).
...PETITIONERS
(BY SH. ONKAR JAIRATH, ADVOCATE)
AND
1. THE STATE OF HIMACHAL PRADESH
THROUGH PRINCIPAL SECRETARY (HOME)
TO THE GOVERNMENT OF HIMACHAL PRADESH,
SHIMLA-2.
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2. THE STATE OF HIMACHAL PRADESH
THROUGH PRINCIPAL SECRETARY (PERSONNEL)
TO THE GOVERNMENT OF HIMACHAL PRADESH,
SHIMLA-2.
3. THE DIRECTOR OF PROSECUTION,
SDA-COMPLEX, KASUMPTI,
.
SHIMLA-09.
4. SH. GIRI RAJ SINGH
5. SH. SANJEEV KATOCH
6. SH. SUNIL KUTHIALA
7. SH. JAGDISH KANWAR
8. KULBIR SINGH CHAUHAN
9. SUNIL DUTT VASUDEVA
10. SURENDER NEGI
11. RANDIP PARMAR
12. UMESH MOHAN
13. NARAIN SINGH VERMA
14. ASHOK KUMAR -II
15. RAM DEV
16.
RAJESH KUMAR VERMA
17. MOHINDER KUMAR SHARMA
18. RITU SOOD
19. SANDEEP ATRI
20. SURESH HELTA
21. CHANDER MOHAN
22. GIAN CHAND RANA
23. NETAR SINGH KATOCH
24. GULAB DEVI
25. SANJEEV BHARWAL
26. BHIMA NAND
27. MUKTA NAND
28. ANOOP SHARMA
29. HARISH CHANDER NEGI
30. SANJAY KUMAR
31. DIGVIJAY SINGH
32. SURINDER SINGH PATHANIA
33. CHANDER SHEKHAR BHATIA
34. RITU MALIK
35. SHARAD KUMAR LAGWAL
36. BHUVNESH AWASTHI
37. SANJEEV SINGH RANA
38. VINOD BHARDWAJ
39. NARAIN SINGH CHAUHAN
40. BHUVNESH
41. VIJAY KUMAR
42. BHISHAM JAWAL BADRESH CHAND
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43. KULBHUSHAL GAUTAM
44. SUDEEP SINGH
45. KAPIL DEV
46. JITENDER KUMAR
47. UMESH KUMAR SHARMA
48. NAVEEN CHANDER
.
49. YASH PAL SINGH
50. RAJESHWAR DUTT
51. SHEETAL BANSAL
52. CHAMPA DEVI
53. SANDEEP KUMAR
54. EKLAVYA
RESPONDENTS NO.4 TO 54 THROUGH RESPONDENT NO.3
THE DIRECTOR OF PROSECUTION, SDA-COMPLEX,
KASUMPTI, SHIMLA-09
...RESPONDENTS
(BY SH. ASHOK SHARMA, A.G.
WITH SH. RJINDER DOGRA, SR. ADDL. A.G.,
SH. VINOD THAKUR, ADDL. A.G\.
AND SH. RAJAT CHAUHAN, DY.A.G. FOR R-1 TO R-3)
RESERVED ON: 30.12.2021
__________________________________________________________________
These petitions coming on for admission after notice
this day, the court passed the following:
ORDER
At one stage, all litigations must come to an end, more
so, in a case of present nature, wherein some of the petitioners,
having unsuccessfully agitated their claims even after the Hon'ble
Supreme Court's decision yet undeterred have resorted to
multiple litigations only to harass the opposite party, knowing
fully well that by filing repeated petitions, they are only flogging a
dead horse. One of such petitioners is Ravinder Kumar Barwal,
who happens to be the sole petitioner in CWP No. 469/2020.
2 Since relief sought for in CWP No. 469/2020 is
virtually a fallout of the earlier petition being CWPOA No.
4488/2020, titled as Sohan Singh Kaundal & ors. vs. State of
.
H.P. & ors., therefore, in order to maintain clarity, the Court
would proceed on the basis of facts set out in that petition i.e.
CWOA No. 4488/2020.
3 According to the averments made therein, all the four
petitioners therein including the petitioner Ravinder Kumar
Barwal were ex-army personnel and were appointed by the
respondent-Department as Assistant District Attorney against the
posts reserved for ex-servicemen. Thereafter, during the course of
their employment, they attained promotions at different times.
4 The State enacted the Demobilized Armed Forces
Personnel (Reservation of vacancies in Himachal Pradesh Non-
Technical Services) Rules, 1972 and as per Rule 5(1) thereof, they
were granted the benefit of counting of approved military service
towards seniority in civil employment as well as pay fixation.
5 However, some of the employees, who were aggrieved
by the fixation of seniority of ex-servicemen in civil employment,
filed petitions before the learned erstwhile Tribunal as well before
this Court laying challenge to Rule 5(1) (supra) to the extent it
conferred benefit of counting of past military service for the
purpose of seniority in the civil employment to all the ex-
servicemen.
6. After going through several rounds of litigation, the
.
controversy was finally settled, as far as this Court is concerned,
in its judgment dated 29.12.2008 in V.K. Behal vs. State of
H.P., 2009 Labour Industrial Cases 1812, wherein it was held
that the benefit of counting of military service for purpose of
seniority in civil employment can only be conferred to ex-
servicemen who joined the armed forces during the time of
emergency. It was further held that the benefit could only be
conferred with effect from the date when such ex-servicemen
attain minimum educational qualification as prescribed in the
Rules.
7 One of the petitioners herein R. K. Barwal assailed the
aforesaid judgment by filing an SLP before the Hon'ble Supreme
Court, which came to be dismissed vide judgment dated
25.8.2017, reported in R. K. Barwal & ors. vs. The State of
Himachal Pradesh & ors., 2018 (16) SCC 833.
8 The respondent-Secretary (Personnel) to the
government of Himachal Pradesh, re-drew the seniority list in all
cadres as per directions of the Hon'ble Supreme Court as well as
this Court vide notification dated 14.5.2018. However, the
petitioners take exception to fixing of their seniority solely on the
basis of certain directions passed by the Hon'ble Supreme Court
in exercise of its power under Article 142 of the Constitution of
India, more particularly, in case titled as A.C. Thalwal vs. High
.
Court of H.P. (2000) 7 SCC 1 and have filed the petition
(CWPOA No. 4488/2020) for grant of following substantive relief:
"That the impugned notification dated 14.5.2018 (Annexure
A-6) may very kindly be quashed and set aside and the
respondents may be directed to restore the date of
promotion of the applicants as it was prior to the issuance
of the impugned notification i.e. fixed vide order dated
22.4.2011."
9 As regards CWP No. 469/2020, the petitioner therein
is aggrieved by the notification dated 25.2.2019, whereby the
respondents have rejected the claim of the petitioner for creation
of supernumerary post of Joint Director. In order to lay claim on
the said post, the petitioner has again repeated the same history
and has claimed that his seniority was never challenged and
having long service, he should have been promoted on the basis
of original seniority to the post of Joint Director.
10 I have heard the learned counsel for the parties and
have also gone through the material placed on record.
11 To say the least, these petitions are gross abuse of
process of the court as the issue having attained finality not only
before this Court, but even before the Hon'ble Supreme Court is
sought to be raked up for no reason or rhyme, that too, at the
instance of the persons, who are presumed to be law knowing.
12 It also needs to be noticed that the judgment of the
.
Hon'ble Supreme Court in R. K. Barwal's case (supra) has
thereafter been affirmed by the Three-Jude Bench of the Hon'ble
Supreme Court in Jagmohan Singh Dhillon vs. Satwant
Singh AIR 2021 SC 2001.
13 Once the petitioners have lost upto the Hon'ble
Supreme Court, obviously their seniority was required to be fixed
in terms of the mandate of the directions passed by this Court as
well as Hon'ble Supreme Court. This is what precisely, the official
respondents have done.
14 Therefore, in such circumstances, in case the
petitioners had no cause of action whatsoever to maintain these
petitions and in case the petitioners wanted to save their
seniority, then request ought to have been made before the
Hon'ble Supreme Court as this court cannot go into the said
issue after having attained finality and even otherwise this Court
has no power akin to powers vested with Hon'ble Supreme Court
under article 142 of the Constitution. Thus, this court cannot
give any direction, which is contrary to law.
15 In coming to such conclusion, I am fortified by the
decision rendered by Hon'ble Supreme Court in Asha Sharma
vs. Chandigarh Administration and ors. (2011) 10 SCC 86
and Union Bank of India vs. Rajat Infrastructure Private
Limited and ors., (2020) 3 SCC 770.
.
16 The Rule of estoppel prevents re-litigation of an issue
which has been determined by a competent Court of law and has
attained finality. It has to be remembered that the Court
proceedings are sacrosanct and cannot therefore be permitted to
be polluted. Judicial system cannot be allowed to be abused and
brought to its knees by unscrupulous litigants.
17 It is more than settled that if in any Court of
competent jurisdiction, a decision is reached, a party is
estopped from questioning it in new proceedings. This
principle extends to any point whether on fact or law.
Therefore, it is not a case where the Court lacked inherent
jurisdiction so as to render its decision void, ab initio and
null and void.
18 Here it was a Court of competent jurisdiction
which has rendered a decision and therefore, the
appellant/plaintiff was estopped from questioning this
decision in new legal proceedings. This principle is embodied
in Section 11 of the C.P.C. (for short the 'Code') The principle
of res judicata is a fundamental principle based on the view
that there must be an end to litigation, where a question has
been decided by a Court of competent jurisdiction in a lis,
then those parties are estopped for reopening the same
.
question in subsequent proceedings between themselves.
19 The re-assertion of cause of action is fraud upon
the Court. The reason for this, as a proper rule of evidence,
is that two objectives are sought to be achieved. Firstly, the
final termination of disputes is in the general interest of the
community as a matter of public policy. Secondly, the
interest of opposite party is to be protected against
multiplicity of litigation.
20 As observed above, a statutory manifestation of
this rule is to be found in Section 11 of the Code,
whereunder there is a bar for trying any suit, in which the
matter has directly and substantially in issue in a former
suit between the same parties and the former suit has been
conclusively decided by a competent Court.
21 The principles of Section 11 of the Code also bar
the adjudication of an issue in subsequent proceedings,
which issue could have been raised in the earlier
proceedings. The idea behind this provision is to prohibit
multiplicity of litigation.
22 Apart from the statutory manifestation of the said
principle, the said principle is recognized in judicial decision
from which it can be seen that the Courts refuse to entertain
.
a dispute or a plea which amounts to or is an abuse of the
process of the law. The Court will not grant relief to the
petitioner if he had adopted previous proceedings in which
he could have asked for relief, which he is now trying to seek
by adopting successive proceedings.
23 From the aforesaid discussion, it is evidently clear
that the petitions filed by the petitioners are not only
misconceived but amount to re-litigation time and again,
which is not only impermissible, but is also abuse of the
process of Court and against the principle of finality of
litigation.
24 It is more than settled that re-agitation may or
may not be barred by res judicata, but if the same issue is
sought to be re-agitated, it would amount to abuse of the
process of Court.
25 This aspect of the matter has been dealt with by the
Hon'ble Supreme Court in K. K. Modi vs. K.N.Modi and others,
(1998) 3 SCC 573, in detail, with the proposition as to what
would constitute an abuse of the process of the Court, one of
which pertains to re-litigation. It has been held at paragraphs 43
to 46 as follows:
43. The Supreme Court Practice 1995 published by Sweet
& Maxwell in paragraph 18/19/33 (page 344) explains the
.
phrase "abuse of the process of the Court" thus:
"This terms connotes that the process of the Court must
be used bona fide and properly and must not be
abused. The Court will prevent improper use of its
machinery and will in a proper case, summarily
prevent its machinery from being used as a means of
vexation and oppression in the process of litigation. . .
The categories of conduct rendering a claim frivolous,
vexatious or an abuse of process are not closed but
depend on all the relevant circumstances. And for this
r purpose considerations of public policy and the
interests of justice may be very material."
44. One of the examples cited as an abuse of the process of
Court is re-litigation. It is an abuse of the process of the
Court and contrary to justice and public policy for a party
to re-litigate the same issue which has already been tried
and decided earlier against him. The re-agitation may or
may not be barred as res judicata. But if the same issue is
sought to be re-agitated, it also amounts to an abuse of the
process of the Court. A proceeding being filed for a
collateral purpose, or a spurious claim being made in
litigation may also in a given set of facts amount to an
abuse of the process of the Court. Frivolous or vexatious
proceedings may also amount to an abuse of the process of
Court especially where the proceedings are absolutely
groundless. The Court then has the power to stop such
proceedings summarily and prevent the time of the public
and the Court from being wasted. Undoubtedly, it is a
matter of Courts' discretion whether such proceedings
should be stopped or not; and this discretion has to be
exercised with circumspection. It is a jurisdiction which
should be sparingly exercised, and exercised only in
special cases. The Court should also be satisfied that there
is no chance of the suit succeeding. 45. In the case of
.
Greenhalgh v. Mallard (1947) 2 All ER 255, the Court had
to consider different proceedings on the same cause of
action for conspiracy, but supported by different
averments. The Court held that if the plaintiff has chosen to
put his case in one way, he cannot thereafter bring the
same transaction before the Court, put his case in another
way and say that he is relying on a new cause of action. In
such circumstances he can be met with the plea of res
judicata or the statement or plaint may be struck out on the
ground that the action is frivolous and vexatious and an
abuse of the process of the Court.
46. In Mcllkenny v. Chief Constable of West Midlands
Police Force (1980) 2 All ER 227, the Court of Appeal in
England struck out the pleading on the ground that the
action was an abuse of the process of the Court since it
raised an issue identical to that which had been finally
determined at the plaintiffs ' earlier criminal trial. The Court
said even when it is not possible to strike out the plaint on
the ground of issue estoppel, the action can be struck out
as an abuse of the process of the Court because it is an
abuse for a party to relitigate a question or issue which has
already been decided against him even though the other
party cannot satisfy the strict rule of res judicata or the
requirement of issue estoppels.
26 Similarly, the Hon'ble Supreme Court in Kishore
Samrite vs. State of Uttar Pradesh and others, (2013(2) SCC
398, has dealt in detail with "abuse of process of Court" in the
following terms:
Abuse of the process of Court :
"31. Now, we shall deal with the question whether both or
.
any of the petitioners in Civil Writ Petition Nos. 111/2011
and 125/2011 are guilty of suppression of material facts,
not approaching the Court with clean hands, and thereby
abusing the process of the Court. Before we dwell upon the
facts and circumstances of the case in hand, let us refer to
some case laws which would help us in dealing with the
present situation with greater precision.
32. The cases of abuse of the process of court and such
allied matters have been arising before the Courts
consistently. This Court has had many occasions where it
dealt with the cases of this kind and it has clearly stated
the principles that would govern the obligations of a litigant
while approaching the court for redressal of any grievance
and the consequences of abuse of the process of court. We
may recapitulate and state some of the principles. It is
difficult to state such principles exhaustively and with such
accuracy that would uniformly apply to a variety of cases.
These are:
32.1. Courts have, over the centuries, frowned upon
litigants who, with intent to deceive and mislead the
Courts, initiated proceedings without full disclosure of
facts and came to the courts with 'unclean hands'.
Courts have held that such litigants are neither entitled
to be heard on the merits of the case nor entitled to any
relief.
32.2. The people, who approach the Court for relief on
an ex parte statement, are under a contract with the
court that they would state the whole case fully and
fairly to the court and where the litigant has broken
such faith, the discretion of the court cannot be
exercised in favour of such a litigant.
32.3. The obligation to approach the Court with clean
hands is an absolute obligation and has repeatedly
been reiterated by this Court. 32.4. Quests for personal
.
gains have become so intense that those involved in
litigation do not hesitate to take shelter of falsehood
and misrepresent and suppress facts in the court
proceedings. Materialism, opportunism and malicious
intent have over-shadowed the old ethos of litigative
values for small gains.
32.5. A litigant who attempts to pollute the stream of
justice or who touches the pure fountain of justice with
tainted hands is not entitled to any relief, interim or
final.
32.6. The Court must ensure that its process is not
abused and in order to prevent abuse of the process
the court, it would be justified even in insisting on
furnishing of security and in cases of serious abuse,
the Court would be duty bound to impose heavy costs.
32.7. Wherever a public interest is invoked, the Court
must examine the petition carefully to ensure that there
is genuine public interest involved. The stream of
justice should not be allowed to be polluted by
unscrupulous litigants.
32.8. The Court, especially the Supreme Court, has to
maintain strictest vigilance over the abuse of the
process of court and ordinarily meddlesome
bystanders should not be granted "visa". Many
societal pollutants create new problems of unredressed
grievances and the Court should endure to take cases
where the justice of the lis well-justifies it. [Refer :
Dalip Singh v. State of U.P. & Ors. (2010) 2 SCC 114;
Amar Singh v. Union of India & Ors. (2011) 7 SCC 69
and State of Uttaranchal v Balwant Singh Chaufal &
Ors. (2010) 3 SCC 402].
33. Access jurisprudence requires Courts to deal with the
legitimate litigation whatever be its form but decline to
exercise jurisdiction, if such litigation is an abuse of the
process of the Court. In P.S.R.Sadhanantham v.
Arunachalam & Anr. (1980) 3 SCC 141, the Court held:
.
"15. The crucial significance of access jurisprudence
has been best expressed by Cappelletti:
"The right of effective access to justice has emerged
with the new social rights. Indeed, it is of paramount
importance among these new rights since, clearly, the
enjoyment of traditional as well as new social rights
presupposes mechanisms for their effective protection.
Such protection, moreover, is best assured be a
workable remedy within the framework of the judicial
system. Effective access to justice can thus be seen as
the most basic requirement the most basic 'human-
right' of a system which purports to guarantee legal
rights." .....................................
12. The further question which now arises is as to how to
curb this tendency of abuse of process of court. As
suggested in Kishore Samrita (supra), one of the ways to
curb this tendency is to impose realistic or punitive costs.
The Hon'ble Supreme Court in Ramrameshwari Devi and
others Vs. Nirmala Devi and others, (2011) 8 Supreme
Court Cases 249 took judicial notice of the fact that the
courts are flooded with these kinds of cases because there
is an inherent profit for the wrongdoers and stressed for
imposition of actual, realistic or proper costs and it was
held:-
"52. The main question which arises for our
consideration is whether the prevailing delay in civil
litigation can be curbed? In our considered opinion the
existing system can be drastically changed or improved
if the following steps are taken by the trial courts while
dealing with the civil trials:
A. Pleadings are the foundation of the claims of parties.
Civil litigation is largely based on documents. It is the
bounden duty and obligation of the trial Judge to
carefully scrutinize, check and verify the pleadings and
the documents filed by the parties. This must be done
.
immediately after civil suits are filed.
B. The court should resort to discovery and production
of documents and interrogatories at the earliest
according to the object of the Act. If this exercise is
carefully carried out, it would focus the controversies
involved in the case and help the court in arriving at the
truth of the matter and doing substantial justice.
C . Imposition of actual, realistic or proper costs and/or
ordering prosecution would go a long way in controlling
the tendency of introducing false pleadings and forged
and fabricated documents by the litigants. Imposition of
heavy costs would also control unnecessary
adjournments by the parties. In appropriate cases the
courts may consider ordering prosecution otherwise it
may not be possible to maintain purity and sanctity of
judicial proceedings.
D. The court must adopt realistic and pragmatic
approach in granting mesne profits. The court must
carefully keep in view the ground realities while
granting mesne profits.
E. The courts should be extremely careful and cautious
in granting ex parte ad interim injunctions or stay
orders. Ordinarily short notice should be issued to the
defendants or respondents and only after hearing the
parties concerned appropriate orders should be passed.
F. Litigants who obtained ex parte ad interim injunction
on the strength of false pleadings and forged documents
should be adequately punished. No One should be
allowed to abuse the process of the court. G. The
principle of restitution be fully applied in a pragmatic
manner in order to do real and substantial justice.
H. Every case emanates from a human or a commercial
problem and the court must make serious endeavour to
resolve the problem within the framework of law and in
accordance with the well-settled principles of law and
justice.
.
I. If in a given case, ex parte injunction is granted, then
the said application for grant of injunction should be
disposed of on merits, after hearing both sides as
expeditiously as may be possible on a priority basis
and undue adjournments should be avoided.
J. At the time of filing of the plaint, the trial court should
prepare a complete schedule and fix dates for all the
stages of the suit, right form filing of the written
statement till pronouncement of the judgment and the
courts should strictly adhere to the said dates and the
said timetable as far as possible. If any interlocutory
application is filed then the same be disposed of in
between the said dates of hearing fixed in the said suit
itself so that the date fixed for the main suit may not be
disturbed."
27 The case in hand shows that frivolous litigation has
been filed by the petitioners and the same is a calculated venture
involving no risk situation.
28 In view of aforesaid discussions, I not only do not find
any merit in both these petitions, but I am of the firm view that
the petitioners have abused the process of court and, therefore,
made themselves liable for imposition of costs.
29 Accordingly, CWPOA No. 4488/2020 is dismissed
with costs of Rs.1,00,000/- to be paid equally by the petitioners
i.e. Rs. 25,000/- each to respondent No.3, within a period of 90
days. As regards CWP No. 469/2020, the same is dismissed with
costs of Rs.50,000/- to be paid by the petitioner again to
respondent No.3, within the aforesaid period. Pending
application(s), if any also stands disposed of.
.
For compliance, list on 5.4.2022.
(Tarlok Singh Chauhan)
Judge
4.1.2022
(pankaj)
r to
