Sadanand Mukherji vs State of U.P. and others

V. D. Chaturvedi, J.

Heard Sri Hemendra Pratap Singh learned counsel for the petitioner and the learned standing counsel.

The present writ petition has been filed against the judgment and order dated 23.10.2007 passed by the U.P. State Public Services Tribunal Lucknow, dismissing the claim petitionhas been dismissed.

Learned counsel for the petitioner submits that in the year 1988 the petitioner filed claim petition No.140/F/IV/1988, which was partly allowed by the judgment and order dated 27.9.1994 and the respondents were directed to consider the petitioner''s case for promotion to the post of the Executive Engineer from the date the junior to the petitioner was promoted. After decision of the Tribunal, the petitioner''s case was considered by the respondents and by the impugned order dated 29.5.1995, the petitioner''s claim was rejected. Feeling aggrieved, the petitioner again approached the Tribunal. The Tribunal after keeping the matter pending for about 9 years, dismissed the claim petition of the petitioner on the ground that the claim petitioner is barred by principles of res judicata. The petitioner filed Writ Petition No.1381 (S/B) of 2005 which was allowed by the judgment and order dated 23.8.2005 contained in Annexure No.5 to the writ petition, and while directing the Tribunal to restore the claim petition of the petitioner to its original number and decide the same on merits within three months from the date a certified copy of the order was produced, this Court observed that since the petition was filed for another cause of action, the claim petition was maintainable. The relevant portion of the said judgment and order dated 23.8.2005 is reproduced as under:

"...A perusal of the impugned judgment and order also reveals that no written statement was filed by the opposite parties and a fresh cause of action was accrued to the petitioner after 29.51995. The impugned judgment and order dated 14.7.2005 passed by the Tribunal is legally not sustainable."

In the result the writ petition succeeds and the impugned judgment and order dated 14.7.2005 passed by the State Public Services Tribunal, Lucknow is set aside and a writ in the nature of mandamus is issued directing the opposite party no.3 to restore the claim petition preferred by the petitioner to its original number and decide the same on merits within three months from the date a certified copy of this order is produced as the petitioner is more than 80 years of age."

Now, while deciding the present controversy learned Tribunal recorded a finding that the claim petition is not maintainable for the same relief, when this Court while remitting back the case to the Tribunal directed the Tribunal to decide the same on merit, it was not open for the Tribunal to make observation that the claim petition was barred by principle of res judicata and not maintainable. Once the writ petition was allowed by the Division Bench of this Court, then Tribunal should have decided the case on merit alone and not on any other ground like being barred by principle of res judicata. It is for the second time that the Tribunal while recording the finding that the claim petition is barred by principle of res judicata. has dismissed the claim petition in violation of the judgment and order of this Court dated 23.8.2005 passed in Writ Petition No.1381 (S/B) of 2005.

In the hierarchy of system, the power of superintendence on all subordinate courts, authorities and tribunals is vested under Article 227 of the Constitution of India. After remitting of matter by this Court by the judgment and order dated 23.8.2005, it was not open for the Tribunal to reject the petitioner''s case with the finding that the claim petition is barred by res judicata. Learned member of the Tribunal while recording such finding have over stepped jurisdiction vested in them which at the face of record, amounts to contempt of this Court. Both the members of the Tribunal ought to have been cautious of the settled principles of law that they should not have rejected the claim petition in contravention of directions issued by this Court.

In view of the above, we allow the writ petition. A writ in the nature of certiorari is issued quashing the judgment and order dated 23.10.2007 passed by the U.P. Public Services Tribunal contained in Annexure No.1 to the writ petition. The U.P. State Public Service Tribunal is directed to restore the Claim Petition No.1601/1996: Sadanand Mukerji. Vs. State of U.P. and another, to its original number and decide the same on merit expeditiously and preferably, within a period of two months from the date of receipt of a certified copy of this judgment and order. We have been informed that Sri K.K. Upadhyaya Member (A) has left for heavenly abode. Accordingly, we direct that the case shall not be decided by a bench of which Sri Nayaz Ahmad Member (J), is member. The Chairman of the Tribunal shall constitute a bench consisting of either himself and/or by another member/s of the Tribunal other than Sri Nayaz Ahmad (J).

We are constrained to give a word of cautious to the member of the Tribunal that they should remain cautious in future while deciding the cases without violating the judgment and orders of this Court. Needless to say that a copy of this judgment and order shall be sent to Sri Nayaz Ahmad Member (J) of the Tribunal.

The writ petition is allowed accordingly. No orders as to costs.