Janardhan Pandey Aged About 58 ... vs The State Of Jharkhand
2021 Latest Caselaw 737 Jhar

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

                    L.P.A No. 317 of 2019
Janardhan Pandey aged about 58 years Son of Late Dashrath Pandey resident
of Village Pandeydih, P.O. and P.S. Madhupur, District Deoghar, Assistant
Teacher of Ramyasho Roy Sanskrit High School, Madhupur, P.O. and P.S.
Madhupur, District-Deoghar.                      ......           Appellant
                        Versus
1.The State of Jharkhand.
2.The Commissioner-cum-Secretary, Human Resources Development
Department, Office at Project Building, Dhurwa, P.O. and P.S.Dhurwa,
District-Ranchi.
3.The Director, Secondary Education, Human Resources Development
Department, Telephone Bhawan, P.O. and P.S.Dhurwa, District-Ranchi.
4.The Regional Deputy Director, Dumka, P.O. and P.S.Dumka, District-
Dumka.
5.The District Education Officer, Deoghar, P.O. and P.S-Deoghar, District-
Deoghar.
6.Headmaster, Ramyasho Roy Sanskrit High School, Madhupur, P.O. and
P.S- Madhupur, District-Deoghar.                 ......          Respondents
                          ---------

CORAM:             HON'BLE THE CHIEF JUSTICE
             HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
                          ----------
For the Appellant         : Mr. Sudhir Kumar, Advocate
For the Respondents       : Mr. Anish Kumar Mishra, A.C to G.A-I.
                          -----------
Oral Judgment:
Order No.9/Dated: 17th February, 2021

1. With consent of the parties, hearing of the matter has been done

through video conferencing and there is no complaint whatsoever regarding

audio and visual quality.

2. The instant appeal under Clause 10 of the letters patent, is directed

against the order/judgment dated 03.01.2019 passed by learned Single Judge

of this Court in W.P.(S) No.7419 of 2017, whereby and whereunder the

relief sought for by the writ petitioner for issuance of direction upon the

respondents to issue salary to the petitioner from 01.06.2004 to 27.11.2005

and 28.11.2005 to 27.01.2017, i.e. the period for which the petitioner was

working as a teacher of Ramyasho Roy Sanskrit High School, Madhupur,

Deoghar, has been refused to be granted.

3. The brief fact of the case, which requires to be enumerated, reads

hereunder as:

The petitioner joined the post of Assistant Teacher (Sanskrit) on

07.12.1984 in the pay scale of Rs.850-30-1270 EB 30-1360 and approval

was also accorded by the authorities concerned regarding appointment of the

petitioner. After joining the post in the year 1984, the writ petitioner worked

continuously to the satisfaction of the authorities. The writ petitioner

subsequently, was deputed for taking examination in another school from

28.11.2005 to 05.12.2005.

It is the case of the writ petitioner that after the examination was over,

he returned back to his parent school but his joining was not accepted as the

Headmaster of the said school was not available and the concerned clerk did

not entertain the same. The matter was then forwarded by the District

Education Officer vide its letter no.19 dated 09.01.2006 to the Regional

Deputy Director to take necessary steps for accepting the joining of the writ

petitioner. The writ petitioner preferred several representations before the

authorities for acceptance of his joining, however, to no effect, being

aggrieved the writ petitioner preferred writ petition before this Court being

W.P.(S) No.601 of 2008 for a direction upon the respondents to accept his

joining and also for release of the salary and other consequential benefits

which was disposed of vide order dated 20.04.2016.

In compliance of the order dated 20.04.2016 passed in W.P.(S)

No.601 of 2008, the respondent authorities vide order dated 27.01.2017

accepted the joining of the writ petitioner. However, the writ petitioner,

being aggrieved of the non-payment of the arrears of salary, has again

approached this Court by way of filing writ petition being W.P.(S) No.7419

of 2017.

The writ petitioner tried to impress upon the writ Court that though

joining of the writ petitioner has been accepted but he is also entitled for

arrears of salary for the period for which he had worked but his joining was

not accepted. It has further been submitted that as per the order passed by

this Court in W.P.(S) No.601 of 2008, the writ petitioner is also entitled for

the salary of those period.

Per Contra, the respondent appeared and contested the case by filing

counter affidavit, wherein inter alia it has been submitted that the writ

petition itself is not maintainable being barred by principle of res judicata

since the writ petitioner earlier has approached to this Court for the same

relief in which the very claim of the writ petitioner, about disbursement of

the salary for the period in question, has already been negated and hence the

writ petition is fit to be dismissed.

The writ Court after considering the rival submissions of the parties

and taking into consideration the nature of order passed by this Court in

W.P.(S) No.601 of 2008, has dismissed the writ petition, against which the

present intra-court appeal has been preferred.

4. Mr. Sudhir Kumar, learned counsel for the writ petitioner-appellant

has submitted by assailing the impugned order that the learned Single Judge

while dismissing the writ petition, has not appreciated that there was no fault

on the part of the writ petitioner in not discharging the duty rather it is the

respondent authority who have not allowed the writ petitioner to render his

service and in that view of the matter since there is no laches on the part of

the writ petitioner, therefore, the salary of the said period cannot be denied.

He further submits that in the earlier writ petition the learned Single

Judge of this Court had not properly dealt with the issue and negated the

aforesaid claim but since the present writ petition is in continuation of the

earlier writ petition, the learned Single Judge ought to have been taken into

consideration the issue on merit instead of dismissing the writ petition on the

principle of res judicata.

In that view of the matter, according to the learned counsel for the writ

petitioner, the impugned order is not sustainable in the eye of law and as

such, the same may be quashed and set aside.

5. On the other hand, Mr. Anish Kumar Mishra, learned A.C to G.A-I

appearing for the respondent-State of Jharkhand has submitted that there is

no illegality in the impugned order as the writ petitioner's claim pertaining

to the disbursement of salary, has already been negated by another learned

Single Judge of this Court disposed of in W.P.(S) No.601 of 2008. But, the

said order has not been assailed by the writ petitioner rather the writ

petitioner has acted in pursuant to the said order by filing representation for

acceptance of his joining and when the joining has been accepted, the claim

for disbursement of the salary in question has again been raised, which

cannot be said to be justified on the part of the writ petitioner. Since after the

decision of the learned Single Judge, negating the claim of the disbursement

of the salary, he ought to have approached the higher forum but having not

done so, the learned Single Judge is right in holding the writ petition being

barred by the principle of res judicata. He, therefore, submits that the instant

appeal lacks merit and as such, the same may be dismissed.

6. Heard learned counsel appearing for the parties, perused the

documents available on record as also the finding recorded by the learned

Single Judge.

Before proceeding to the legality and propriety of the impugned order,

this Court deem it fit and proper to give reference of the order passed by this

Court in W.P.(S) No.601 of 2008 which was disposed of on 20.04.2016.

It is evident from the said order that the writ petitioner has approached

to this Court at that time for direction upon the respondents to accept the

joining in Ramyasho Roy Sanskrit High School, Madhupur, Deoghar with

effect from 06.12.2005. He has further prayed for direction upon the

respondents to consider the seniority of the writ petitioner as 'Headmaster'

being the senior most teacher of the aforesaid school and pay the salary and

all consequential benefits attached to the said post.

The State has contested the case and submitted that the writ petitioner

had been unauthorisedly absent from duty and as such, he is not entitled for

the relief claimed for in the writ petition. It was further the case of the State

that the writ petitioner again claimed seniority on the basis of first

appointment since he was terminated and subsequently given fresh

appointment and there being no continuity in service such seniority cannot

be claimed. So far as the salary for the period in question is concerned, the

plea was taken by the respondent-State that the salary was being claimed on

the basis of submission of his joining as according to the version of the writ

petitioner, he was on examination duty from 28.11.2005 to 05.12.2005. But

the said fact has been disputed by the respondent and the writ petitioner has

not brought on record any document to suggest that the purported

examination duty of the writ petitioner was on the basis of the order of

higher authority and as such, joining report of the writ petitioner itself being

in doubt, the question of salary and other consequential benefits which is

dependent on the joining of the petitioner, cannot be considered at this stage.

The writ Court, after taking into consideration such submission of the

respondent-State, has made observation to the effect that this Court is not

inclined to interfere with the writ petition filed by the writ petitioner but at

this juncture, it would be necessary to refer the counter affidavit filed on

behalf of the respondent no.5 wherein it has been stated that the respondent

no.5 is still ready to accept the joining of the writ petitioner but he shall not

be entitled to any back wages.

Considering the averments made in the counter affidavit of the

respondent no.5, it has been held therein that although the writ application is

devoid of any merit, but if any representation is filed by the petitioner before

the respondent no.4 with respect to his joining, the same shall be considered

by the respondent no.4 in the light of the averment made by the respondent

no.5 and necessary order shall be passed in accordance with law within a

period of four weeks from the date of submission of the representation.

It has further been observed making it clear that, the prayer made in

the writ application with respect to acceptance of his joining from

06.12.2005 as well as the consequential benefits and seniority of the writ

petitioner for being considered as the 'Headmaster' has been negated by this

Court and therefore, the respondent no.4 shall restrict himself only with

respect to representation if submitted by the writ petitioner for his joining as

has been indicated hereinabove.

The portion of the said order passed in W.P.(S) No.601 of 2008 is

referred as under:

"From the Supplementary affidavit which has been filed by the State, it appears that for the alleged absence on the part of the petitioner no charge has been framed against him. The dispute, therefore, remains with respect to the joining of the petitioner for which elaborate submission has been advanced by the learned Government Advocate as well as the learned counsel for the respondent no.5. It is not in dispute that the service of the petitioner was terminated in the year 1984 and subsequently he was given a fresh appointment which was also approved by the competent authority. The petitioner has claimed to have submitted his joining as according to his version he was on examination duty from 28.11.2005 to 05.12.2005. This fact however has been disputed by the respondents and nothing has been brought on record to suggest that the purported examination duty as claimed by the petitioner was on the basis of an order of the higher authority. Such circumstance does suggest that the reason for absence as shown by the petitioner is merely a ruse for accepting his joining. The joining report of the petitioner itself being in doubt the question of salary and all other consequential benefits

which are dependent on the joining of the petitioner cannot be considered at this stage. Much thrust has been made to the fact that no departmental proceeding has been initiated against the petitioner if at all he was unauthorizedly absent from duty but non-initiation of the departmental proceedings would not solidify the case of the petitioner as the foundational structure which forms the basis of such claim does not appear to be either on sound reasonings or facts. Although this Court is not inclined to interfere with writ application filed on behalf of the petitioner but at this juncture it would be necessary to refer to counter affidavit filed on behalf of the respondent no.5 wherein it has been specifically stated that the respondent no.5 is still ready to accept the joining of the petitioner but he shall not be entitled to any back wages.

Considering the averment made in the counter affidavit filed by the respondent no.5 and although the writ application is devoid of any merit but if any representation is filed before the respondent no.4 by the petitioner with respect to his joining the same shall be considered by the respondent no.4 in the light of the averment made by the respondent no.5 and necessary orders shall be passed in accordance with law within a period of four weeks from the date of submission of the representation.

It is made clear that the prayer made in the writ application with respect to acceptance of his joining from 06.12.2005 as well as the consequential benefits and seniority of the petitioner for being considered as the Headmaster has been negated by this Court and, therefore, the respondent no.4 shall restrict himself only with respect to the representation if submitted by the petitioner for his joining as has been indicated above."

It is evident from the aforesaid order that the claim for disbursement

of salary, seniority and other consequential benefits has been negated by the

writ Court while passing the order in W.P.(S) No.601 of 2008. The writ

petitioner thereafter, has made representation for acceptance of his joining

and the respondent authority has accepted the joining and then only the

present writ petition has been filed for disbursement of salary from

01.06.2004 to 27.11.2005 and 28.11.2005 to 27.01.2017 as evident from the

relief sought for in the prayer made in W.P.(S) No.7419 of 2017.

7. There is no dispute about the fact that in W.P(S) No.601 of 2008, the

prayer for disbursement of salary along with other consequential benefits

was also one of the prayers. It is further not in dispute that the writ Court

while disposing of the writ petition being W.P.(S) No.601 of 2008, has

negated the claim about the promotion, consequential benefits as also the

salary, save and except the direction for consideration of his representation

pertaining to joining to the said post.

It is further admitted fact that the order passed in W.P.(S) No.601 of

2008 has never been questioned by the writ petitioner and as such the same

has attained finality rather the writ petitioner has acted in terms of filing

representation before the concerned authority for acceptance of his joining.

The writ petitioner has again come before this Court, invoking the

jurisdiction conferred under Article 226 of the Constitution of India by filing

writ petition being W.P.(S) No.7419 of 2017 seeking the same relief which

was earlier sought and negated by this Court.

The learned Single, however, has dismissed the writ petition on the

ground of the result of the order passed in W.P.(S) No.601 of 2008 and the

direction as contained in the order passed in W.P.(S) No.601 of 2008 has

already been complied with after acceptance of joining of the writ petitioner.

The writ petitioner has also claimed for the arrear of salary for the period for

which he worked though joining was accepted.

This Court after hearing the parties has completely negated the relief

sought for by the petitioner, and for the same relief the petitioner has again

knocked the door of this Court.

The contention of the writ petitioner that his joining has been

accepted, therefore, he is entitled for the arrears of salary having not found to

be conceived in the order passed by this Court and since the joining has

already been accepted, therefore, the writ petition has been held to be

without any merit.

8. This Court, after going through the factual aspects as discussed

hereinabove as also the reasons assigned for dismissal of the writ petition, is

of the view that the learned Single Judge has committed no error in

dismissing the writ petition for the reason that the writ petitioner has

approached this Court earlier in W.P.(S) No.601 of 2008 but the said prayer

was negated by the learned Single Judge, against which no appeal has ever

been preferred, rather the said order has been accepted by filing

representation in acceptance of joining of the writ petitioner.

9. In that view of the matter, now the question is since the relief sought

for, which is the subject matter of the present proceeding will be allowed

then what will happen to the refusal of the claim of the writ petitioner in the

earlier round of writ petition (W.P.(S) No.601 of 2008). If the relief sought

for will be allowed by us, by making interference in the impugned order

passed by the learned Single Judge, it will amount to considering appeal to

the order passed by the learned Single Judge of this Court in W.P.(S) No.601

of 2008 which is not the subject of the present appeal.

In that view of the matter, the order passed by the learned Single

Judge regarding the finding that the issue fell for consideration in W.P.(S)

No.7419 of 2017 since has already been negated by another learned Single

of this Court in W.P.(S) No.601 of 2008, requires no interference.

Further, it is settled position of law that once the relief sought for in a

writ petition has already been negated, the second writ petition is not

maintainable.

10. This Court, after taking into consideration this aspect of the matter as

also the finding recorded by the learned Single Judge for dismissal of the

writ petition, is of view that no interference is required in the instant appeal.

11. Accordingly, the instant appeal fails and is dismissed.

(Dr. Ravi Ranjan, C.J.)

(Sujit Narayan Prasad, J.) Saket/-

A.F.R.