Saroj Kumar Sharma vs Principal Secretary The State Of ...
2022 Latest Caselaw 2127 MP

                                        WP No.4701/2010

                          1



 IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR

                     BEFORE
       HON'BLE SHRI JUSTICE SUSHRUT ARVIND
                 DHARMADHIKARI

            ON THE 16th OF FEBRUARY, 2022
            WRIT PETITION No. 4701 of 2010




     Between:-
     SAROJ KUMAR SHARMA S/O SHRI
     RAM SURESH SHARMA , AGED
     ABOUT 47 YEARS, OCCUPATION:
     ASSTT. SUB INSPECTOR THANA
     KOTHI , DISTT. SATNA. (MADHYA
     PRADESH)


                                     .....PETITIONER
     (SHRI KAILASH CHANDRA GHILDIYAL, LEARNED
     COUNSEL FOR THE PETITIONER)

     AND
1.   PRINCIPAL SECRETARY THE STATE
     OF MADHYA PRADESH HOME
     (POLICE) DEPTT. MANTRALAYA
     VALLABH     BHAVAN    BHOPAL
     (MADHYA PRADESH)


2.   DIRECTOR GENERAL OF POLICE
     POLICE HEAD QUARTER BHOPAL
     (M.P.) (MADHYA PRADESH)


3.   ADDITIONAL DIRECTOR GENERAL
     OF POLICE SPECIAL BRANCH
     (GENERAL)    POLICE      HEAD
     QUARTER BHOPAL (M.P.) (MADHYA
     PRADESH)


4.   INSPECTOR GENERAL OF POLICE
                                                            WP No.4701/2010

                                       2



        ZONE REWA             (M.P.)       (MADHYA
        PRADESH)


5.      MALLU              KANNOUJIYA
        OCCUPATION: HEAD CONSTABLE
        (AT THAT TIME) PRESENTLY
        WORKING AS A INSPECTOR OF
        SPECIAL THROUGH ITS SPECIAL
        BRANCH, POLICE HEAD QUARTER,
        BHOPAL (M.P.) (MADHYA PRADESH)


6.      SHIV    SINGH     OCCUPATION:
        THROUGH ITS ADMINISTRATION
        OF POLICE HEAD QUARTER,
        BHOPAL (M.P.) HEAD CONSTABLE
        (AT THAT TIME) PRESENTLY
        WORKING AS A A.S.I. IN DIVISION
        OF (MADHYA PRADESH)


                                       .....RESPONDENTS
        (SHRI ANUJ SHRIVASTAVA, LEARNED PANEL
        LAWYER FOR THE RESPONDENTS/STATE)



      This petition coming for final hearing on this day, the court
passed the following:

                                 ORDER

Heard finally with the consent of both the parties. By filing this petition under Article 226 of the Constitution of India, the petitioner has prayed for following reliefs:-

"7.1 To issue a writ in the nature of certiorari Hon'ble Court may kindly be pleased to call for the records pertaining to consideration of the head constable who have passed the departmental promotional examination for inclusion of their name in the fit list of head constable to be promoted on the post of assistant sub inspector, and be further pleased to examine the said record to command the respondents to grant his seniority with all WP No.4701/2010

consequential benefits from the date of benefits of the promotion of juniors.

7.2 Any other relief which this Hon'ble Court deems fit and proper may also be given to the petitioner, in the interest of justice."

2. Brief facts leading to filing of this petition are that the petitioner was initially appointed on the post of Constable on 07.03.1982. Thereafter, he was promoted on the post of Head Constable on 01.02.1988. Thereafter, the petitioner worked in the Special Branch as a Head Constable at Sidhi w.e.f. 19.01.1991 to 05.08.1994. The petitioner made an application for his mutual transfer to the District Police Force, Sidhi in the year 1993-1994. The limited Departmental Examination was conducted in the year 1993 to fill up the post of Assistant Sub Inspector. The petitioner took part in the said examination and was qualified in the written test and was sent for training. The result was notified on 04.01.1994 and the petitioner was declared successful in the said examination and his name was placed at Sr.No.52 in the said list. The name of the petitioner was included in the fit list of the Head Constables who were to be promoted on the post of Assistant Sub Inspector. In the year, 1994, the petitioner was transferred from Special Branch to District Police Force, Sidhi. Subsequently, the petitioner learnt that by an order dated 22.08.1994, the name of the petitioner was excluded from the fit list dated 29.07.1994. Being aggrieved, the petitioner filed a representation but no action whatsoever was taken. Being aggrieved, the petitioner approached this Court in Writ Petition No.19870/2003, which was dismissed by the learned Single Judge vide order dated 16.07.2007 and the following order was passed:-

"16.7.2007

Petitioner by Shri K.K. Trivedi, Advocate Respondents by Shri Harish Aunihotri, G.A.

Petitloner by way of filing this application before the tribunal has claimed that his name was wrongly excluded from the fit list prepared by the respondents which is Annexure A/3. The petitioner against the same submitted a representation which ultimately was decided by the respondents on 8.5.2000. The present application was WP No.4701/2010

filed before the tribunal on 11.8.2002. The limitation which is provided under Section 21 of the Administrative Tribunals Act is of one year from the date of passing of the final order. Apparently, the application before the tribunal was preferred after the period of one year. No delay has been explained. Thus, the application preferred before the tribunal is barred by limitation.

In the petition, the claim of the petitioner is that his name should have been included in the fit list which is Annexure A/3. After when the petitioner's name is included in the fit list if the claim of the petitioner is allowed then one person out of the said list Shri Shiv Singh has to be excluded. He was a necessary party but the petitioner has not chosen to implead him as a necessary party in the array of respondents.

The Apex Court in 1996 (2) SCC 19 Rajbir Singh Vs. State of Haryana and another and 1996(7) SCC 759 (V.P. Shrivastava Vs. State of M.P. and Others) has held that there cannot be effective adjudication in the absence of necessary parties as respondents and accordingly the petition suffers with non joinder of necessary parties as the respondents.

Thus, the petition even otherwise suffers with undue delay and laches. Apart from the aforesaid, challenge of the petitioner in the laches. Apart from the aforesaid, challenge of the petitioner in the petition is in fact wrong preparation of the fit list by which his name wrongly has not been included in the fit list. The validity period of the select list is one year. The petition even itself was preferred in the year 2002. Representation was rejected on 8.5.2000, thus much before the filing of the petition, the validity period of the select list has already expired.

Under the circumstances, no relief can be granted to the petitioner and the petition is misconceived and is dismissed."

3. Being aggrieved by the said order, the petitioner filed Writ Appeal No.1197/2007, which was also decided by the Division Bench vide order dated 06.08.2007 and passed the following order rejecting the appeal.

{

"6th August, 2007

Heard Mr. K.K. Trivedi, learned senior counsel along with Mr. Devendra Gangrade, learned counsel for the appellant.

The appellant-petitioner (hereinafter referred to as 'the appellant') was posted as a Head Constable in the Special Branch of Police at Sidhi. A limited departmental competitive examination was held in the year 1993 in which the appellant became successful. He was sent for training on the basis of the fit list prepared. In the year, 1995, some persons were appointed as Assistant Sub Inspectors for which the examination was held and the fit list was prepared. The appellant in the meantime was transferred to District Police Force. As the appellant was not aware of the promotions conferred on other persons, he could not take any action immediately. After coming to know about it, he submitted a representation before the competent authority in the year 1997, which WP No.4701/2010

was rejected on 23.1.1998. Thereafter, he submitted a memorial which also suffered a dismissal on 08.05.2000. As no fruitful purpose was served, the appellant approached the M.P. Administrative Tribunal (for short 'the Tribunal') by filing an original application under Section 19 of the Administrative Tribunal Act, 1985. After abolition of the Tribunal, by operation of law, the appellant's matter stood transferred and registered as a writ petition to this Court. The learned Single Judge has dismissed the said writ petition on the ground of delay and latches.

We have heard Mr. K.K. Trivedi, learned senior counsel along with Mr. Devendra Gangrade, learned counsel for the appellant.

Without entering into the facet of delay and latches, we permitted Mr. K.K. Trivedi, learned senior counsel to address ourselves on merits of the case. It is not in dispute that none of the juniors has been promoted to the post of Assistant Sub Inspector. Had any junior been promoted, possibly, the matter would have been different and further had the said persons been arrayed as the respondents, there could have been adjudication. On a verification of the record, it is evident that the alleged juniors have not been arrayed as parties. Indubitably, they are necessary parties and in their absence no relief can be granted.

Mr. K.K. Trivedi, learned senior counsel along with Mr. Devendra Gangrade, learned counsel for the appellant submitted that certain persons have been entered into the fit list, whose names could not have been considered.

Be that as it may, unless they are parties before the writ Court, no relief can be granted. Quite apart from the above, the doctrine of delay and latches in filing the writ petition, as we are inclined to think, has been correctly decided on the ground of non joinder of necessary party.

In the result, the writ appeal, being devoid of merit, stands dismissed in limine. There shall be no order as to costs."

4. Learned counsel for the petitioner contended that since the earlier petition was dismissed on the ground of non-joinder of necessary parties without going into the merits of the case, the petitioner has preferred the instant writ petition. He further submitted that it is well settled in law that dismissal of the earlier petition on technical ground of non-joinder of party without adjudication on merit of the matter any how would not operate as res-judicata so as to bar the subsequent petition.

5. Learned counsel for the petitioner relied on the decision of the Apex Court in the case of State of Maharashtra and another vs. National Construction Company, Bombay and Another, (1996) 1 SCC 735 held as under...

"6. We may first dispose of the plea based on Section 11, Explanation IV, of the Code. That section deals with the doctrine of res judicata and provides that any matter which might or ought to have been made a ground for defence or attack in the former suit WP No.4701/2010

shall be deemed to have been a matter directly and substantially in issue in such suit. Since the plea of res judicata can be disposed of on a narrow ground, it is not necessary to examine the ambit of Explanation IV. The main text of Section 11 reads thus:

"11. Res Judicata.-- No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court."

The important words are "has been heard and finally decided". The bar applies only if the matter directly and substantially in issue in the former suit has been heard and finally decided by a court competent to try such suit. That clearly means that on the matter or issue in question there has been an application of the judicial mind and a final adjudication made. If the former suit is dismissed without any adjudication on the matter in issue merely on a technical ground of non-joinder, that cannot operate as res judicata."

6. Learned counsel for the petitioner further relied on the Apex Court judgment in the case of Sarguja Transport Service vs. State Transport Appellate Authority of M.P., Gwalior and others, (1987) 1 SCC 5 held as under:-

"9. The point for consideration is whether a petitioner after withdrawing a writ petition filed by him in the High Court under Article 226 of the Constitution of India without the permission to institute a fresh petition can file a fresh writ petition in the High Court under that article. On this point the decision in Daryao case [AIR 1961 SC 1457 : (1962) 1 SCR 574] is of no assistance. But we are of the view that the principle underlying Rule 1 of Order XXIII of the Code should be extended in the interests of administration of justice to cases of withdrawal of writ petition also, not on the ground of res judicata but on the ground of public policy as explained above. It would also discourage the litigant from indulging in bench-hunting tactics. In any event there is no justifiable reason in such a case to permit a petitioner to invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution once again. While the withdrawal of a writ petition filed in a High Court without permission to file a fresh writ petition may not bar other remedies like a suit or a petition under Article 32 of the Constitution of India since such withdrawal does not amount to res judicata, the remedy under Article 226 of the Constitution of India should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the writ petition when he withdraws it without such permission. In the instant case the High Court was right in holding that a fresh writ petition was not maintainable before it in respect of the same subject-matter since the earlier writ petition had been withdrawn without permission to file a fresh petition. We, however, make it clear that whatever we have stated in this WP No.4701/2010

order may not be considered as being applicable to a writ petition involving the personal liberty of an individual in which the petitioner prays for the issue of a writ in the nature of habeas corpus or seeks to enforce the fundamental rignt guaranteed under Article 21 of the Constitution since such a case stands on a different footing altogether. We, however leave this question open.

7. Learned counsel for the petitioner further submitted that in view of the aforesaid, the instant writ petition filed by the petitioner is maintainable and is not hit by the principle of res-judicata.

8. Per contra, learned Panel Lawyer for the respondents/State opposed the prayer on the ground of res-judicata and submitted that from the relief claimed, it can be seen that the petitioner has prayed for inclusion of his name in the fit list of Head Constable to be promoted to the post of Assistant Sub Inspector prepared somewhere in the year 1994, to be precise on 28.07.1994. The grievance of the petitioner is that his name should be included in the fit list of Head Constable working in the Special Branch to be promoted. However, the same was not included because the same was prepared zone wise and at that time the petitioner was not working in Special Branch Zone. Apart from that the instant writ petition is not maintainable since on earlier occasion, the petitioner had claimed the same relief and approached the then State Administrative Tribunal by filing Original Application, which was subsequently transferred to this Court and was registered as Writ Petition No.19870/2003.

9. On perusal of the order dated 16.06.2007, it can be seen that the petition was considered on merit and the same was dismissed. The writ appeal was also dismissed holding that unless the selected candidates are parties before the writ Court, no relief can be granted. Quite apart from the above, the doctrine of delay and laches in filing the writ petition is applicable. Moreover, the benefit has been rightly denied on the ground of non-joinder of necessary party. On perusal of the order dated 16.07.2007 passed in Writ Petition No.19870/2003, it can be very well seen that the petition was also considered on merits as well as the appelate Court also dwelt upon the merits of the case and rejected the appeal.

WP No.4701/2010

10. In the circumstances, the decision in the case of National Construction Company (supra) relied by the petitioner is not applicable to the facts and circumstances of the present case as both the Courts have dwelt upon merits of the case. So far as Sarguja Transport Service (supra) is concerned, the same relates to withdrawal or abandonment of the petition under Article 226/227 with permission to file a fresh petition whereas in the present case, both the Courts have dwelt upon the merits and dismissed the same. In such circumstances, principle of res-judicata is very much applicable to the facts and circumstances of the present case. The petition is hit by the principle of res-judicata.

11. Accordingly, the same is hereby dismissed.

(S. A. DHARMADHIKARI) JUDGE vinay* VINAY KUMAR BURMAN 2022.02.18 10:23:06 +05'30'