Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7630 OF 2011
(Arising out of SLP(C) No. 4339 of 2009)
High Court of Judicature at Patna ...Appellant
Versus
Madan Mohan Prasad & Ors. ...Respondents
JUDGEMENT
J.M. PANCHAL, J.
Leave Granted
2. This appeal by grant of special leave, is directed
against judgment dated June 27, 2008, rendered by
the Division Bench of High Court of Judicature at
Patna in Civil Writ Jurisdiction No. 6538 of 1990 by
2
which the High Court of Patna on its administrative
side is directed to consider the case of promotion of
the respondent No.1 as also grant of consequential
benefits to him in accordance with law.
3. The respondent No.1 was appointed to the Bihar
Judicial Service as Munsif at Hajipur on January 13,
1955. On May 9, 1970, High Court of Patna
recommended to the State Government the dismissal
of respondent No.1 from service. On the basis of
recommendation made by the High Court, the State
Government issued a Notification dated January 15,
1972, dismissing the respondent No.1 from service.
Thereupon the respondent No.1 filed W.P. No.121 of
1972 under Article 32 of the Constitution challenging
his dismissal from service before this Court. The
petition filed by the respondent No.1 was allowed vide
judgment dated February 23, 1972 on the ground that
the termination of service was stigmatic and was
ordered without holding an enquiry. It may be
3
mentioned that judgment of this Court rendered in the
petition filed by the respondent No.1 is reported in
(1973) 4 SCC 166. In view of the above mentioned
judgment of this Court, the respondent No.1 was
reinstated in service. However, he was suspended
from service on April 12, 1974 and departmental
proceedings were initiated against him. Suspension
order was challenged by him by filing CWJC No. 820 of
1974 and initiation of departmental proceedings was
challenged by filing CWJC No. 593 of 1975 in the High
Court of Patna. Both the writ petitions were dismissed
in the year 1977 by the High Court. Thereupon, he
had filed SLP (C) No.4344 of 1977 challenging
dismissal of writ petition filed against suspension
order and SLP (C) No. 4345 of 1977 challenging the
decision in CWJC No. 593 of 1975 by which his prayer
to set aside departmental proceedings was rejected.
During the pendency of above numbered two SLPs
another Notification dated January 30, 1978 was
issued by the High Court suspending him from
4
service. On March 01, 1978 this Court admitted both
these Special Leave Petitions which were then
converted into C.A. No.525 of 1978 and 526 of 1978
respectively. This Court by judgment dated
24.09.1981 directed the High Court of Patna to
withdraw the suspension order dated January 30,
1978 passed against the respondent No.1 as well as
departmental proceedings initiated against him and
granted liberty to the High Court to amend the charge
sheet before initiating departmental proceedings and
to consider the question of his suspension from service
afresh. By Notification dated October 12, 1981, the
respondent No.1 was posted at Sasaram as Additional
Munsif, which is the lowest post in judiciary and
which post he had joined initially on January 13,
1955. Another Notification was issued on December
10, 1981 posting him at Darbhanga as Additional
Munsif. Meanwhile he made various representations
to release his dues and to keep one post of appropriate
rank reserved for him. He did not receive any reply to
5
those representations. Therefore, he filed CWJC
No.1924 of 1982 on May 6, 1982 for quashing
Notification dated December 10, 1981 issued by High
Court posting him as Additional Munsif in Darbhanga
and prayed to direct the High Court on its
administrative side to give him promotions from the
dates when his juniors named in the petition were
promoted during the period 1970 to 1981, with all
increments and other benefits. He also prayed to
direct the High Court to issue a revised notification
incorporating therein all the promotions to be given to
him from due dates and to post him as a District
Judge. After necessary amendment in the charge
sheet, fresh departmental proceedings were initiated
against him on August 19, 1982. No reply was filed by
the respondent No.1 before the Inquiry Officer. After
inquiry, the Inquiry Officer submitted his report dated
December 10, 1982 holding that the charges levelled
against him were proved. Thereupon, notice dated
January 12, 1983 with copy of the report of Inquiry
6
Officer was served upon him calling upon him to show
cause as to why he should not be removed from
service. The respondent No.1 did not file reply to the
show cause notice.
4. When CWJC No.1924 of 1982 had come up for hearing
before the Court on February 24, 1983, the learned
Additional Advocate General had informed the Court
that the departmental proceedings had concluded and
second show cause notice was served upon him,
calling upon him to show cause as to why he should
not be removed from service. Thereupon, the court
had expressed the view that the Writ Petition had
become infructuous and dismissed the same
accordingly by order dated February 24, 1983.
After receipt of show cause notice dated January 12,
1983 the respondent No.1 instituted CWJC No. 2959 of
1984 to quash (i) notification dated August 19, 1982 issued
by High Court initiating departmental proceedings against
him (ii) inquiry report dated December 10, 1982 forwarded
7
by the District Judge Darbhanga and (3) notice dated
January 12, 1983 calling upon him to show cause as to why
he should not be removed from service.
5. The learned Additional Advocate General who appeared
for the Patna High Court in CWJC No. 2059 of 1984 had
informed the Court on February 26, 1985 that the
respondent No.1 had retired from service on September
1, 1983 and after his retirement the High Court had
considered the question of penalty to be imposed on him
and by Memorandum dated June 11, 1984, he was
directed to show cause as to why the High Court should
not make a recommendation to the State Government for
withholding his pension permanently, and as no cause
was shown by the respondent No.1, the High Court had
recommended to the State Government for withholding
his pension permanently but no final decision was yet
taken by the State Government in that respect. The
Division Bench hearing CWJC No. 2059 of 1984 was of
the view that writ petition as filed had become
8
infructuous and an opinion was expressed that
respondent No.1 should wait till the final decision was
taken by the State Government about finalization of
pension. Accordingly, writ petition was dismissed as
having become infructuous by judgment dated February
26, 1985 reserving liberty to the respondent No.1 to
renew his prayer for monetary claims after finalization of
pension matter.
6. The grievance of the respondent No.1 was that his claim
for promotion from the various dates when his immediate
juniors were promoted was not considered by the High
Court nor was he paid benefits. Under the
circumstances, he had approached this Court by filing
SLP (C) No. 8923 of 1983 against order dated February
24, 1983 dismissing CWJC No. 1924 of 1982, as having
become infructuous. The said SLP was listed for hearing
on August 30, 1983. It was brought to the notice of this
Court that second show cause notice had been issued to
the respondent No.1 and that the respondent No.1 was to
9
retire from service on August 31, 1983 i.e. the next day
when SLP (C) No. 8923 of 2003 was taken up for hearing
on August 30, 1983. The respondent No.1 had
thereupon stated before the Court that the SLP had
become infructuous and sought permission to withdraw
the same. In view of the statement of the respondent
No.1, the SLP was disposed of as withdrawn by order
dated August 30, 1983.
Thus, there is no manner of doubt that order dated
February 24, 1983 passed by the Division Bench of Patna
High Court in CWJC No. 1924 of 1983 refusing to grant
relief of promotion with deemed dates and monetary
benefits had attained finality when SLP (C) No. 8923 of
1983 filed against the said order was unconditionally
withdrawn by the respondent No.1 on August 30, 1983.
7. Again the respondent No.1 had filed SLP (C) No. 8621 of
1985, against order dated February 26, 1985 dismissing
CWJC No. 2059 of 1984 as having become infructuous.
During the pendency of the said SLP, a Resolution No.
10
10383 dated August 11, 1985 was passed forfeiting
permanently pension payable to respondent No.1. The
said Resolution was produced on the record of SLP (C)
No. 8621 of 1985 on November 25, 1986. This Court had
passed following order on November 25, 1986 in SLP (C)
No. 8621 of 1985 :-
"The Special Leave Petition is dismissed, but
we would direct the State of Bihar to restore
within six weeks the pensions payable to the
petitioner with arrears due on the basis that
he had superannuated from service from the
date of superannuation. Provident Fund,
Gratuity and leave salary as may be
admissible to him on superannuation will
also be paid to the petitioner."
8. The above quoted order makes it evident that the special
leave petition which was against order dated February
26, 1985 passed by the Division Bench of High Court in
CWJC No. 2059 of 1984 was dismissed. The learned
counsel for the petitioner states at the bar that the
respondent No.1 was a Judicial Officer and therefore,
when it was brought to the notice of this Court that his
pension had been forfeited permanently, this Court had
11
shown compassion, concern, sympathy and clemency to
the respondent No.1 and had directed the State of Bihar
to restore pension payable to him and pay arrears due on
the basis that he had superannuated from service from
the date of superannuation, and a direction was given to
pay him Provident Fund, Gratuity and leave salary as
might be admissible to him on superannuation.
However, it is relevant to notice that no direction was
given to the appellant to consider the case of the
respondent No.1 with retrospective effect with all
benefits.
9. According to the respondent No.1 his pension matter was
finalized on July 14, 1987. After finalization of pension
matter, he filed CWJC No. 4862 of 1987 in the High
Court for lawful claims as were given to his juniors. The
said petition was disposed of on November 9, 1989 with a
direction to the respondent No.1 to submit representation
to the High Court on its administrative side for legitimate
claims as were given to his juniors. Pursuant to the
12
above mentioned direction, the respondent No.1 had
submitted representation dated February 12, 1990. The
said representation was considered by the Standing
Committee of the Patna High Court and was rejected on
March 30, 1990.
10.Again respondent No.1 had sent representation dated
April 30, 1990 repeating his prayer to grant him his
lawful claims as were given to his juniors. The same was
rejected by High Court on its Administrative side vide
order dated May 25, 1990. The respondent No.1 had
made third representation dated June 23, 1990 to the
same effect which was rejected by the High Court vide
communication dated September 17, 1990. Thereupon
the respondent No.1 had filed CWJC No. 6538 of 1990 in
the High Court of Patna. The Division Bench hearing the
same has directed the appellant High Court to consider
the case of promotion of the respondent No.1 as also
consequential benefit in accordance with law vide
13
judgment dated June 27, 2008 which has given rise to
the instant appeal.
11.This Court has heard the learned counsel for the
appellant and the respondent No.1 who has appeared in
person. The Court has also considered the documents
forming part of the appeal.
12.The contention advanced on behalf of the appellant that
writ petition was filed by the respondent No.1 on
November 10, 1990 i.e. seven years after he had
superannuated from service, and therefore, writ petition
should have been dismissed on the ground of delay and
latches cannot be accepted. The impugned judgment
nowhere shows that such a point was argued by the
appellant before the High Court. No grievance is made in
the memorandum of SLP, that point regarding delay and
latches was argued before the High Court but the same
was not dealt with by the High Court when impugned
judgment was delivered. Further from the facts noticed,
it becomes evident that by order dated November 9,
14
1989, passed in CWJC No. 4862 of 1987, the High Court
had directed the respondent No.1 to submit
representation to the High Court on its administrative
side claiming benefits which were given to his juniors but
were denied to him, pursuant to which the respondent
No.1 had filed last representation on June 23, 1990
which was rejected by High Court on September 17,
1990. The question of delay and latches will have to be
considered from the communication dated September 17,
1990 by which claim made by the respondent No.1 to
give him benefits which were given to his juniors was
rejected and not from the date of superannuation. Thus,
the respondent No.1 is not liable to be non-suited on the
ground of delay and latches in filing writ petition after his
superannuation from service.
However, there is no manner of doubt that the
respondent No.1 is claiming promotions to different cadres
from the post of Additional Munsif as well as promotional
benefits from the due dates as were given to his juniors in
15
the years 1971, 1974 and 1978. In C.W.J.C. No. 6538 of
1990 from which the present appeal arises the petitioner
had claimed following relief in paragraph 20 of the writ
petition :
"It is therefore respectfully prayed Your
Lordship may be graciously pleased to
admit this Writ Petition and may be pleased
to direct the respondent Nos. 1 and 2 to give
all the service claims of this petitioner as
given to his juniors during the period he
was illegally kept out of service and
adequate compensation for having ruined
the career of petitioner as fully stated in
para 1 and 4 of this writ petition and may
be pleased to pass such other order or
orders as may be considered fit and proper".
If one looks to the averments made in the petition it
becomes at once clear that the petitioner is claiming
promotions to the post of Civil Judge, Senior Division,
thereafter to the post of Additional District Judge and finally
to the post of District Judge when his juniors were given
such benefits in the years 1971, 1974 and 1978
respectively.
16
The record shows that till the respondent No.1 had
superannuated from service on August 31, 1983, he was
discharging duties as Additional Munsif and was never
confirmed in the cadre of Munsif. Therefore, his claim for
promotion to higher post could not have been considered
unless and until he was confirmed on the post of Munsif.
On this ground alone, the writ petition filed by him was
liable to be dismissed.
There is no manner of doubt that claim of promotion
made in C.W.J.C. No. 6538 of 1990 was stale one and could
not have been entertained by the High Court. Further
juniors to the respondent No.1 who were given benefits of
promotion in the years 1971, 1974 and 1978 were not
impleaded as respondents in the petition. In their absence,
claim advanced by the respondent No.1 could not have been
examined by the High Court. Thus, the impugned
judgment is liable to be set aside on the ground that stale
claim of promotions to different cadres was advanced by the
17
respondent No.1 after great delay and that too without
impleading his juniors.
13. In P.S. Sadasivaswamy Vs. State of Tamil Nadu
(1975) 1 SCC 152, this court has laid down a firm
proposition of law that a person aggrieved by an order
promoting a junior over his head should approach the
Court at least within 6 months or at the most a year of such
promotion and the High Court can refuse to exercise its
extraordinary powers under Article 226 in case the person
aggrieved does not approach the Court expeditiously for
appropriate relief and puts forward stale claim and tries to
unsettle settled matters. Therefore, C.W.J.C. No. 6538 of
1990 in which stale claim of promotion was made by the
respondent No.1 was liable to be dismissed.
14.The contention of the respondent No.1 that Interlocutory
Application No. 1 of 2009 was filed for condonation of
delay in filing SLP and delay was condoned without
issuing notice to him though it is mandatorily provided
in the proviso to sub-rule(1) of rule 10 of Order XVI of
18
the Supreme Court Rules that there shall be no
condonation of delay without notice to the respondent
and therefore, the SLP should be dismissed as barred by
limitation has no substance. The Office Report on
limitation dated December 24, 2008 which was placed
before this Court along with papers of SLP indicated that
there was delay of eight days in filing SLP and delay of
nine days in re-filing the petition. The SLP was placed
for preliminary hearing before the Court on February 9,
2009 and after hearing the learned counsel for the
petitioner, following order was passed :-
"Delay condoned.
Issue notice.
There shall be interim stay of the
impugned order until further orders."
15.In order to deal with the contention raised by the
respondent No. 1 it would be necessary to refer to the
Scheme envisaged by the Supreme Court Rules, 1950,
which was subsequently amended and the Scheme
19
contemplated by the Supreme Court Rules, 1966 as well
as certain relevant decisions on the point.
16.The Supreme Court of India, in the exercise of its rule-
making powers, and with the approval of the President,
had made the Supreme Court Rules, 1950. Order XIII of
the Rules of 1950 dealt with appeals by special leave.
Rule 1, which is relevant for the purpose of deciding the
issue raised in this appeal by the respondent No. 1, was
reading as under: -
"1. A petition for special leave to appeal
shall be lodged in the Court within sixty
days from the date of refusal of a
certificate by the High Court or within
ninety days from the date of the judgment
sought to be appealed from, whichever is
longer:
Provided that
(i) in computing the period of ninety days
the time requisite for obtaining a
certified copy of the judgment sought to
be appealed from shall be excluded;
(ii) where the period of limitation claimed is
sixty days from the date of the refusal of
a certificate, the time taken subsequent
to the date of refusal in obtaining a
certified copy of the judgment (in cases
20
where no certified copy of the judgment
had been obtained prior to the date of
such refusal) shall be excluded in
computing the period of sixty days;
(iii) where an application for certificate
made to the High Court is dismissed as
being out of time the period of limitation
shall count from the date of the
judgment sought to be appealed from
and not from the date of the dismissal of
the said application;
(iv) where an application for leave to appeal
to the High Court from the judgment of
a single Judge of that Court has been
made and refused, the period from the
making of the application to the
rejection thereof shall be excluded in
computing the period under this Rule;
(v) the Court may for sufficient cause
extend the time on application made for
the purpose."
The Supreme Court Rules, 1950 were published in the
Gazette of India Extra Ordinary dated January 28, 1950
and amended by the Supreme Court of India Notifications
dated April 25, 1950, July 5, 1950, August 19, 1950, June
18, 1951, May 6, 1952, January 16, 1954, July 10, 1954,
April 12, 1955, March 19, 1956, July 14, 1956, July 11,
1957, November 22, 1957, January 9, 1958 and April 8,
21
1959. After amendment Order XIII Rule 1 provided as
under: -
"1. Subject to the provisions of Sections
4, 5, 12 and 14 of the Limitation Act, 1963
(36 of 1963) a Petition for Special Leave to
Appeal shall be lodged in the Court in a
case where a certificate for leave to appeal
was refused by the High Court within sixty
days from the date of the order of refusal
and any other case within ninety days
from the date of judgment or order sought
to be appealed from."
Till the Supreme Court Rules 1966 were made
by the Supreme Court, it was the practice of this
Court to condone the delay caused in filing Special
Leave Petition, without issuing notice to the
respondent.
17. At this stage, it would be relevant to notice a
Constitution Bench judgment of this Court in M/s. Ram
Lal Kapur and Sons (P) Ltd. vs. Ram Nath and others AIR
1963 SC 1060. In the said case the first respondent Ram
Nath was owner of a building in Delhi of which the
22
appellant company was one of the tenants. The appellant
moved the Rent Controller, Delhi under Section 7A of the
Delhi and Ajmer Rent Control Act, 1947 for fixation of the
fair rent of the portion in its occupation. The Rent
Controller, Delhi computed the fair rent for the entire
building at Rs.565/- per month and the fair rent payable by
the appellant at Rs.146/- per month. The respondent
landlord preferred an appeal against the order of the Rent
Controller to the learned District Judge, Delhi, but the
appeal was dismissed. Thereafter, he moved the High Court
of the Punjab under Article 227 of the Constitution
challenging the correctness and propriety of every finding by
the Rent Controller and of the District Judge on appeal.
The petition came on for hearing before a learned single
Judge of the High Court. A Division Bench of the High
Court had sometime previously held in another batch of
cases that Section 7A was unconstitutional and void.
Following this decision the learned single Judge allowed the
petition of the first respondent Ram Nath and set aside the
order of the Rent Controller as without jurisdiction, without
23
considering the other matters which would arise if the
Section was valid and the Rent Controller had jurisdiction.
From this decision of the learned single Judge the appellant
preferred an appeal under the Letters Patent to a Division
Bench.
Meanwhile, the judgment of the Division Bench
holding that Section 7A was unconstitutional was brought
up by way of appeal to this Court. As the said appeal was
getting ready to be heard, the appellant, i.e., M/s. Ram Lal
and Sons (P) Ltd. applied for and obtained special leave to
appeal to this Court though the appeal filed by the
appellant before the High Court was pending. Letters
Patent Appeal was thereafter withdrawn by the appellant.
An appeal against judgment of the Division Bench of the
High Court holding that Section 7A was unconstitutional
was heard by this Court and the same was allowed by
judgment dated August 2, 1961 and this Court held
reversing the judgment of the High Court that Section 7A of
the Act was valid.
24
It would thus be seen that only point which the
learned Judge considered and on which the revision petition
of the landlord respondent was allowed no longer subsisted
and hence the appellant was entitled to have the appeal
allowed. As the learned single Judge did not consider the
other objections raised by the first respondent to the order
of the Rent Controller fixing the standard fair rent payable
by the appellant, the appeal had to be remanded to the High
Court for being dealt with according to law.
However, a preliminary objection to the hearing of the
appeal was raised by the learned counsel for the landlord
respondent. His submission was that the special leave
which was granted by this Court ex-parte should be revoked
as having been improperly obtained. The judgment of the
learned single Judge to appeal from which the leave was
granted was dated January 5, 1955 and the application to
this Court seeking leave was made on January 5, 1959, i.e.,
after a lapse of four years. It was obvious that it was a
petition which had been filed far beyond the period of
25
limitation prescribed by the Rules of this Court. The
learned counsel for the respondent urged that there were no
sufficient grounds for condoning that long delay and that
this Court should, therefore, revoke the leave. The
Constitution Bench of this Court was not disposed to
accede to this request for revoking the leave. The learned
counsel had drawn attention of the Constitution Bench to a
few decisions in which leave granted ex-parte was revoked
at the stage of hearing of the appeal on an objection raised
by the respondent. However, the Constitution Bench did
not consider that the facts of the appeal before it was
bearing any analogy to those in the decisions cited. The
Five Judge Constitution Bench was of the opinion that in
fact the grant of special leave in the circumstances of the
case merely served to shorten the proceedings and this
Court had acceded to the petition for leave obviously
because the appeals in this Court from judgments in the
cases where view was taken that Section 7A was
unconstitutional, were getting ready for hearing and there
was some advantage if the appellant was in a position to
26
intervene in those other appeals. However, the Constitution
Bench made following pertinent observations in paragraph
9 of the reported decision. They are as under: -
"9. Nevertheless, we consider that we
should add that, except in very rare cases, if
not invariably, it should be proper that this
Court should adopt as a settled rule that
the delay in making an application for
special leave should not be condoned ex
parte but that before granting leave in such
cases notice should be served on the
respondent and the latter afforded an
opportunity to resist the grant of the leave.
Such a course besides being just, would be
preferable to having to decide applications
for revoking leave on the ground that the
delay in making the same was improperly
condoned years after the grant of the leave
when the Court naturally feels embarrassed
by the injustice which would be caused to
the appellant if leave were then revoked
when he would be deprived of the
opportunity of pursuing other remedies if
leave had been refused earlier. We would
suggest that the rules of the Court should
be amended suitably to achieve this
purpose."
18. The Rules framed in the year 1950 were replaced by
the present Rules, which are known as The Supreme Court
Rules, 1966. They came into force with effect from January
27
15, 1966. The weighty recommendations made by the
Constitution Bench in Ram Lal and Sons (P) Ltd. case
(Supra) were taken into consideration and proviso to sub-
rule (1) of Rule 10 of Order XVI was enacted, which reads as
under:-
"10 (1) Unless a caveat as prescribed by
rule 2 of Order XVIII has been lodged by the
other parties, who appeared in the Court
below, petitions for grant of special leave
shall be put up for hearing ex-parte, but the
Court, if it thinks fit, may direct issue of
notice to the respondent and adjourn the
hearing of the petition:
Provided that where a petition for
special leave has been filed beyond the
period of limitation prescribed therefor and
is accompanied by an application for
condonation of delay, the Court shall not
condone the delay without notice to the
respondent."
Naturally, the proviso requires that when a petition for
special leave has been filed beyond the period of limitation
prescribed therefore and is accompanied by an application
for condonation of delay, the Court should not condone the
delay without notice to the respondent. However, it is
noticed that it is consistent practice of this Court even after
28
framing of Rules of 1966 that delay is condoned ex-parte
without issuing notice to the respondent, if the Court
hearing the special leave petition is of the opinion that
sufficient cause is made out for condonation of delay and
the petitioner has good case on merits. There is no manner
of doubt that once the Court forms an opinion that
sufficient cause is made out for condonation of delay then
issuance of notice to the respondent calling upon him to
show cause as to why delay should not be condoned may
become an empty formality and in order to see that the
respondent has not to incur unnecessary expenditure for
coming to Delhi from far off places and engage an advocate
for contesting application for condonation of delay, delay is
condoned ex-parte. However, in view of requirements of
proviso to sub-rule (1) of Rule 10 of Order XVI of 1966
Rules, it may be prudent to issue notice to the respondent
before condoning the delay caused in filing the special leave
petition. However, if the respondent is not noticed, then a
right would be available to him at the stage of hearing to
point out that the Court was not justified in condoning the
29
delay and that the leave, if granted, should be revoked or
notice issued should be dismissed.
19. In Commissioner of Customs vs. Rangi
International (2003) 11 SCC 366, the SLP from
which the appeal arose was filed after a delay of 246
days. When the matter came up for preliminary
hearing, it was found that without noticing the
provisions of Supreme Court Rules in regard to the
condonation of delay, this Court on 12.7.2000, had
condoned the delay ex-parte and granted leave. On
2.4.2002, when the respondent appeared before the
Court, a preliminary objection was raised that the
condonation of delay was contrary to the Supreme
Court Rules. Therefore, the Court hearing the appeal
had looked to the papers. The Court found that proper
particulars were not given in the application for
condonation of delay. Therefore, the Court hearing the
appeal had called upon the appellant to file an
additional affidavit in support of the application for
30
condonation of delay. Accordingly, the appellant had
filed additional affidavit. To this the respondent had
filed a counter pointing out that the explanation given
by the appellant even in the additional affidavit did not
explain the delay satisfactorily nor had the appellant
been diligent in filing the appeal. This Court heard the
learned counsel for the appellant as well as the
respondent and having considered the reasons given
for condonation of delay in the original affidavit as well
as in the additional affidavit filed by the appellant was
of the opinion that the appellant had not satisfactorily
explained the delay in preferring the appeal.
Therefore, accepting the contention of the respondent
this Court had revoked the leave granted on 12.7.2000
and consequently dismissed the SLP as barred by
limitation.
20. In view of the course adopted by this Court in the
above mentioned decision this Court had heard the
appellant and the respondent to satisfy itself as to
31
whether sufficient cause was made out for
condonation of delay of eight days. At the beginning,
the respondent No. 1 had attempted to argue that
there was unexplained delay of seven months and not
of eight days, as was mentioned in the Office Report,
but he could not make his submission good. It could
not be pointed out to this Court that the calculation of
delay of eight days made by the registry was
erroneous. The explanation offered by the appellant
High Court in the application for condonation of delay
is plausible and acceptable. The averments made in
the application for condonation of delay would not
indicate that the appellant High Court was either
negligent or diligent in prosecuting the matter nor the
record indicates that the High Court had given up lis
and acquiesced in the impugned judgment of the High
Court. On the facts and in the circumstances of the
case this Court is of the opinion that this Court was
justified in condoning the delay when the special leave
petition was placed for preliminary hearing and was
32
also justified in issuing notice to the respondent.
Thus, this Court does not find any substance in the
contention raised by the respondent No. 1 relating to
condonation of delay, which was caused in filing the
special leave petition and, therefore, the same is
hereby rejected.
21. Coming to the merits of the matter this Court finds
that earlier the respondent No.1 had filed CWJC No.
1924 of 1982 in the High Court of Patna claiming
promotions from retrospective dates with all claims,
benefits and increments in various cadres from
various dates as and when they had accrued and were
given to his immediate juniors. His prayer was to
direct the High Court on its administrative side to
issue a revised notification incorporating all the
promotions to which he was entitled to from various
dates as they had accrued when his immediate juniors
were promoted and to post him as District Judge. His
another prayer in the writ petition was to quash
33
Notification dated December 10, 1981 by which he was
posted as Additional Munsif in Darbhanga. The writ
petition was dismissed by the High Court vide order
dated February 24, 1983 as having become
infructuous. Feeling aggrieved, the respondent No.1
had filed SLP (C) No.8923 of 1983 in this Court which
was dismissed as withdrawn by order dated August
30, 1983. Thus the order dated February 24, 1983
passed in CWJC No. 1924 of 1982 had attained finality
when SLP filed against the said order was dismissed
as withdrawn. There is no manner of doubt that the
order dated February 24, 1983 passed in CWJC No.
1924 of 1982 refusing to grant promotions with
retrospective dates read with order passed by this
Court in SLP (C) No. 8923 of 1983, would operate as
res judicata.
22. It is well settled that promotion is not a matter of right
much less a fundamental right, more particularly
when promotion in the subordinate judiciary is to be
34
dealt with by the High Court which has complete
control over the subordinate judiciary in view of Article
235 of the Constitution. All rights and claims of the
respondent No.1 got crystallized when this Court
passed order dated November 25, 1986 in SLP (C)
No.8621 of 1985 read with order dated August 30,
1983 passed by this Court in SLP (C) No. 8923 of
1983. If the respondent No. 1 had any other claim he
ought to have made the same before this Court when
the above numbered Special Leave Petitions were
disposed of. In fact both the Special Leave Petitions
were dismissed and therefore all his claims stood
finally rejected, except the direction given to pay him
the pension etc. mentioned in order dated November
25, 1986 passed in SLP (C) No.8621 of 1985. No
grievance was made by the respondent No.1 in
C.W.J.C. No. 6538 of 1990 that the direction given by
this Court on November 25, 1986 in SLP (C) No.8621
of 1985 were not complied with by the appellant.
Neither at the time of disposal of SLP (C) No.8923 of
35
1983 nor at the time of disposal of SLP (C) No. 8621 of
1985 the respondent No.1 had claimed any other relief
and had not obtained permission to claim relief of
promotion in future. Therefore, the relief claimed in
C.W.J.C. No.6538 of 1990 could not have been granted
by the Court.
23. It is evident that, CWJC No. 6538 of 1990 was filed for
the same reliefs which were claimed in CWJC No. 1924
of 1982 and were rejected, and therefore, it could not
have been entertained. Further SLP No. 8261 of 1985
which was filed by the respondent No.1 against
judgment and order dated February 26, 1985 of the
High Court of Judicature at Patna in CWJC No. 2059
of 1984 was dismissed and the only relief granted by
this Court was to direct the State of Bihar to restore
pension payable to him with arrears due on the basis
that he had superannuated from service from the date
of superannuation and a further direction was issued
to pay him Provident Fund, Gratuity and leave salary
36
as might be admissible to him on superannuation.
This court had never directed that the High Court of
Patna on its administrative side should consider the
claim of the respondent No.1 regarding deemed
promotions.
24. In view of the above discussion, this Court is of the
opinion that the High Court has erred in law in
directing the original respondent No.2 i.e. present
appellant to consider the case of promotion of
respondent No.1 as also the consequential benefits in
accordance with law by the impugned judgment. Thus
the impugned judgment is liable to be set aside.
For the foregoing reasons the appeal succeeds. The
judgment dated June 27, 2008 rendered by the Division
Bench of High Court of Judicature at Patna in CWJC No.
6578 of 1990, directing the present appellant to consider
the case of respondent No.1 for promotion as also
consequential benefits, is hereby set aside. The appeal
accordingly stands disposed of.
37
.............................J.
(J.M. PANCHAL)
.............................J.
(H.L. GOKHALE)
NEW DELHI
SEPTEMBER 05, 2011.
