# HIGH COURT OF JUDICATURE AT PATNA v. MADAN MOHAN PRASAD & ORS

- **Citation:** [2011] 13 S.C.R. 972
- **Court:** Supreme Court of India
- **Decided:** 2011-09-05
- **Case number:** Civil Appeal No. 7630 of 2011
- **Bench:** J.M. Panchal, H.L. Gokhale
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/high-court-of-judicature-at-patna-v-madan-mohan-prasad-ors-27350
- **Pages:** 28

## Headnote

Service Law - Promotion and grant of consequential
benefits - Respondent-Munsif in State Judicial Services,
c suspended from service - Thereafter, writ petitions and SLPs
filed - Suspension order as well as departmental proceedings
withdrawn - Notification issued posting the respondent as
Additional Munsif (lowest post) - Challenged by respondent
- He sought direction to the High Court on its administrative
0 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 - Thereafter,
respondent retired from service - Various petitions as also
representations filed - Finally in a writ petition, the Division
E Bench directed the appellant-High Court on its administrative
side to consider the case of promotion of the respondent as
also consequential benefit in accordance with Jaw - On
appeal, held: Promotion is not a matter of right much less a
fundamental right, more particularly when promotion in the
subordinate judiciary is to be dealt with by the High Court
F which has complete control over the subordinate judiciary in
view of Article 235 - On facts, respondent was claiming
promotions to the post of Civil Judge, 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
G 1971, 1974 and 1978 respectively- Record shows that till the
respondent had superannuated from service, he was
discharging duties as Additional Munsif and was never
confirmed in the cadre of Munsif -
Thus, his claim for
H
972
HIGH COURT OF JUDICATURE AT PATNA v. MADAN 973
MOHAN PRASAD & ORS.
promotion to higher post could not have been considered A
unless and until he was confirmed on the posfof Munsif -
Claim of promotion was stale one and could not have been
entertained by the High Court-Juniors to the respondent who
were given benefits of promotion were not impleaded as
parties - In their absence, claim of the respondent could not B
be examined - Earlier the respondent had filed petition
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
imm~diate juniors was dismissed and also attained finality c
and thus, would operate as res judicata - Also all rights and
claims of respondent got crystallized - Neither at the time of
disposal of SLP respondent claimed any other relief nor
obtained permission to claim relief of promotion in future -
Thus, the High Court erred in directing appellant to consider D
the case of respondent for promotion - Order of the High
Court set aside.
Supreme Court Rules, 1966 - Or. XVI r. 10(1) proviso -
Requirement of - Held: When a petition for special leave is
filed beyond the period of limitation prescribed and is
E
accompanied by an application for condonation of delay, the
Court should not condone the delay without notice to the
respondent - Once the Court forms an opinion that sufficient
cause is made out for condonation of delay then issuance of
notice to the respondent to show cause as to why delay should
F
not be condoned may become an empty formality - In order
to see that the respondent does not incur unnecessary
expenditure for coming to Delhi from far off places and
engage an advocate for contesting the said application, delay
is condoned ex-parte - However, if the respondent is not G
issued a notice, 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 delay and that the leave, if granted, should
be revoked or notice issued should be dismissed.
H
974
SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.
A
Respondent No.1-Munsif in State Judicial Service
filed a writ petition challenging his dismissal from service
and he was reinstated in service. However, two years
later he was suspended from service and departmental
proceedings were initiated

## Text

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(2011] 13 (ADDL.) S.C.R. 972
A
HIGH COURT OF JUDICATURE AT PATNA
B
v.
MADAN MOHAN PRASAD & ORS.
(Civil Appeal No. 7630 of 2011)
SEPTEMBER 05, 2011
[J.M. PANCHAL AND H.L. GOKHALE, JJ.]
Service Law - Promotion and grant of consequential
benefits - Respondent-Munsif in State Judicial Services,
c suspended from service - Thereafter, writ petitions and SLPs
filed - Suspension order as well as departmental proceedings
withdrawn - Notification issued posting the respondent as
Additional Munsif (lowest post) - Challenged by respondent
- He sought direction to the High Court on its administrative
0 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 - Thereafter,
respondent retired from service - Various petitions as also
representations filed - Finally in a writ petition, the Division
E Bench directed the appellant-High Court on its administrative
side to consider the case of promotion of the respondent as
also consequential benefit in accordance with Jaw - On
appeal, held: Promotion is not a matter of right much less a
fundamental right, more particularly when promotion in the
subordinate judiciary is to be dealt with by the High Court
F which has complete control over the subordinate judiciary in
view of Article 235 - On facts, respondent was claiming
promotions to the post of Civil Judge, 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
G 1971, 1974 and 1978 respectively- Record shows that till the
respondent had superannuated from service, he was
discharging duties as Additional Munsif and was never
confirmed in the cadre of Munsif -
Thus, his claim for
H
972
HIGH COURT OF JUDICATURE AT PATNA v. MADAN 973
MOHAN PRASAD & ORS.
promotion to higher post could not have been considered A
unless and until he was confirmed on the posfof Munsif -
Claim of promotion was stale one and could not have been
entertained by the High Court-Juniors to the respondent who
were given benefits of promotion were not impleaded as
parties - In their absence, claim of the respondent could not B
be examined - Earlier the respondent had filed petition
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
imm~diate juniors was dismissed and also attained finality c
and thus, would operate as res judicata - Also all rights and
claims of respondent got crystallized - Neither at the time of
disposal of SLP respondent claimed any other relief nor
obtained permission to claim relief of promotion in future -
Thus, the High Court erred in directing appellant to consider D
the case of respondent for promotion - Order of the High
Court set aside.
Supreme Court Rules, 1966 - Or. XVI r. 10(1) proviso -
Requirement of - Held: When a petition for special leave is
filed beyond the period of limitation prescribed and is
E
accompanied by an application for condonation of delay, the
Court should not condone the delay without notice to the
respondent - Once the Court forms an opinion that sufficient
cause is made out for condonation of delay then issuance of
notice to the respondent to show cause as to why delay should
F
not be condoned may become an empty formality - In order
to see that the respondent does not incur unnecessary
expenditure for coming to Delhi from far off places and
engage an advocate for contesting the said application, delay
is condoned ex-parte - However, if the respondent is not G
issued a notice, 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 delay and that the leave, if granted, should
be revoked or notice issued should be dismissed.
H
974
SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.
A
Respondent No.1-Munsif in State Judicial Service
filed a writ petition challenging his dismissal from service
and he was reinstated in service. However, two years
later he was suspended from service and departmental
proceedings were initiated against him. Aggrieved,
B respondent No. 1 filed writ petitions and the. same were
dismissed. Thereafter, respondent No. 1 filed SLPs.
During pendency thereof, the High Court issued a
Notification suspending respondent No. 1 from service.
This Court directed the High Court to withdraw the
c suspension order passed against the resp9ndent No.1 as
well as departmental proceedings initiated against him.
By Notification dated October 12, 1981, respondent No.1
was posted as Additional Munsif (lowest post) which he
had joined initially. Subsequently by another Notification
0 dated December 10, 1981 he was posted as Additi.onal
Mun!iif at place 'D'. Meanwhile he made various
representations to release his dues and to keep one post
of appropriate rank reserved for him but did not receive
any reply. He then filed CWJC No.1924 of 1982 for
quashing Notification dated December 10, 1981 and
E seeking direction to 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. The charge sheet was amended and fresh
F departmental proceedings were initiated against
respondent No. 1 on August 19, 1982. Respondent No.1
retired from service on September 1, 1983. Various
petitions which were filed became !nfructuous and were
disposed of as withdrawn. Thereafter, in one of the SLP,
G this Court directed the State Government 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
H
HIGH COURT OF JUDICATURE AT PATNA v. MADAN 975
MOHAN PRASAD & ORS.
admissible to him on superannuation. However, no A
direction was given to the appellant to consider the case
of the respondent No.1 with retrospective effect with all
benefits. Pension matter of respondent No.1 was
finalized. Thereafter, he filed CWJC No. 4862 of 1987 in
the High Court for lawful claims as were given to his B
juniors. The said petition was disposed of with a direction
to the respondent No.1 to submit representation to the
High Court on its administrative side. Pursuant thereto,
the respondent No.1 submitted representations and the
same were rejected. Respondent No.1 then filed CWJC c
No. 6538 of 1990 in the High Court. The Division Bench
directed the appellant - High Court of Patna on its
administrative side to consider the case of promotion of
the respondent No.1 as also consequential benefit in
accordance with law. Therefore, the appellant filed the 0
instant appeal.
Disposing of the appeal, the Court
HELD: 1.1. The submission that writ petition was filed
by the respondent No.1 on November 10, 1990 i.e. seven E
years after he had superannuated from service, and
therefore, writ petition should have been dismissed on
the ground of delay and !aches, cannot be accepted. The
impugned judgment nowhere shows that such a point
was argued by the appellant before the High Court. No
F
grievance is made in the memorandum of SLP, that point
regarding delay and !aches was argued before the High
Court but the same was not dealt with by the High Court
when impugned judgment was delivered. Further it
becomes evident that by the order passed in CWJC No. G
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, H
976
SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.
A 1990 which was rejected by High Court on September 17,
1990. The question of delay and !aches would 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
B 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 laches in filing writ petition after his
superannuation from service. [Para 12] [987-C-G]
1.2. It is clear from C.W.J.C. No. 6538of1990 that the
C 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. The record shows that
D 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
E was confirmed on the post of Munsif. 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. The juniors to the
respondent No.1 who were given benefits of promotion
F 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. [Para 12] [988-D-F-G-H]
G
P.S. Sadasivaswamy vs. State of Tamil Nadu (1975) 1
SCC 152: 1975(2) SCR 356 - referred to.
H
1.3. The submission of the respondent No.1 that
Interlocutory Application No. 1 of 2009 was filed for
HIGH COURT OF JUDICATURE AT PATNA v. MADAN 977
condonation of delay in filing SLP and delay was A
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 the Supreme Court Rules that there
shall be no condonation of delay without notice to the
respondent and therefore, the SLP should be dismissed B
as barred by limitation cannot be accepted. The Office
Report on limitation 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 refiling the petition. [Para 14) [989-D-F]
c
1.4. The proviso to sub-rule (1) of Rule 10 of Or. XVI
of the Supreme Court Rules, 1996 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 D
not condone the delay without notice to the respondent.
However, it is noticed that it is consistent practice of this
Court even .after 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 E
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 F
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 G
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 H
978
SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.
A petition. However, if the respondent is not issued a notice,
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 delay and that the leave, if granted, should
be revoked or notice issued should be dismissed. [Para
B 18] [995-C-G]
c
Mis. Ram Lal Kapur and Sons (P) Ltd. vs. Ram Nath and
Ors. AIR1963
SC
1060:1963
Suppl.
SCR
242;
Commissioner of Customs vs. Rangi International (2003) 11
sec 366 - referred to.
1.5. At the beginning, 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
D 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
E 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
F Court. On the facts and in the circumstances of the case,
this Court was justified in condoning the delay when the
special leave petition was placed for preliminary hearing
and was also justified in issuing notice to the respondent.
Thus, the submission relating to condonation of delay,
G which was caused in filing the special leave petition is
rejected. [Para 20] [996-G-H; 997-A-C]
1.6. 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,
H benefits and increments in various cadres from various
HIGH COURT OF JUDICATURE AT PATNA v. MADAN 979
MOHAN PRASAD & ORS.
dates as and when they had accrued and were given to
A .
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 s
him as District Judge. His another prayer in the writ
petition was to quash Notification dated December 10,
1981 by which he was posted as Additional Munsif. The
writ petition was dismissed by the High Court as having
become infructuous. Feeling aggrieved, the respondent c
No.1 filed SLP (C) No.8923 of 1983 in this Court which
was dismissed as withdrawn. Thus, the order 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 0
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. [Para 21) [997-DH; 998-A]
1.7. Promotion is not a matter of right much less a
fundamental right, more particularly when promotion in
E
the subordinate judiciary is to be dealt with by the High
Court which has complete control over the subordinate
judiciary in view of Article 235 of the Constitution. All
F
rights and claims of the respondent No.1 got crystallized
when order was passed in SLP (C) No.8621 of 1985 read
with the order was passed 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
G
said Spe~ial 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
the order passed in SLP (C) No.8621 of 1985. No
H
980
SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.
A grievance was made by the respondent No.1 in C.W.J.C.
No. 6538 of 1990 that the direction given in SLP (C)
No.8621 of 1985 were not complied with by the appellant.
Neither at the time of disposal of SLP (C) No.8923of1983
nor at the time of disposal of SLP (C) No. 8621 of 1985,
B 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. [Para 22] [9988-F]
c
1.8. 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 the order
D of the High Court in CWJC No. 2059 of 1984 was
dismissed and the only relief granted was to direct the
State 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
E was issued to pay him Provident Fund, Gratuity and leave
salary as might be admissible to him on superannuation.
It was never directed that the High Court on its
administrative side should consider the claim of the
respondent No.1 regarding deemed promotions. [Para
F 23] [998-G-H; 999-A-B]
1.9. The Division Bench of the High Court erred in law
in directing the appellant to consider the case of
respondent No.1 for promotion as also the consequential
benefits in accordance with law by the impugned
G judgment. Thus, the impugned judgment is set aside.
[Para 24] [999-C-D]
Case Law Reference:
H
1975 (2) SCR 356
Referred to.
Para 13
HIGH COURT OF JUDICATURE AT PATNA v. MADAN 981
MOHAN PRASAD & ORS.
1963 Suppl. SCR 242
Referred to.
Para 17, 18
A
(2003) 11 SCC 366
Referred to.
Para 19
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
7630 of 2011.
From the Judgment & Order dated 27.6.2008 of the High
Court of Judicature at Patna in C.W.J.C. No. 6538 of 1990.
P.H. Parekh, Ajay Kr. Jha, Pallavi Srivastava, Praekh &
Co. for the Appellant.
Gopal Singh, Rudreshwar Singh, Gaurav Sharma, Anjani
Aiyagari, Sushma Suri Respondent-In-Person for the
Respondent.
The Judgment of the Court was delivered by
J.M. PANCHAL, J. 1. Leave Granted
2. This appeal by grant of special leave, is directed against
judgment dated June 27, 2008, rendered by the Division Bench
B
c
D
of High Court of Judicature at Patna in Civil Writ Jurisdiction
E
No. 6538 of 1990 by which the High Court of Patna on its
administrative side is directed to consider th'e 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
F
the basis of recommendation made by the High Court, the
State Government issued a Notification dated January 15,
G
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
H
982
SUPREME COURT REPORTS [2011) 13 (ADDL.) S.C.R.
A that the termination of service was stigmatic and was ordered
without holding an enquiry. It may be 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
B 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
c 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
D 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
service. On March 01, 1978 this Court admitted both these
E 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
F 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
G 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 rele.ase his dues and to keep one post of
appropriate rank reserved for him. He did not receive any reply
H to those representations. Therefore, he filed CWJC No.1924
HIGH COURT OF JUDICATURE AT PATNA v. MADAN 983
MOHAN PRASAD & ORS. [J.M. PANCHAL, J.]
of 1982 on May 6, 1982 for quashing Notification dated
A
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 promutedduring the period 1970 to 1981, with all increments and other
B
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 c
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 Officer was
0
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
E
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
F
infructuous and dismissed th~ 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
G
quash (i) notification dated August 19, 1982 issued by High
Court initiating departmental proceedings against him (ii) inquiry
report dated December 10, 1982 forwarded by the District
Judge Darbhanga and (3) notice dated January 12, 1983 calling
H
984
SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.
A 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
8
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
C 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
D respect. The Division Bench hearing CWJC No. 2059 of 1984
was of the view that writ petition as filed had become
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
E 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.
F
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
G dated February 24, 1983 dismissing CWJC No. 1924of1982,
as having become infructuous. The said SLP was listed for
hearing on August 30, 1983. It was brougt-• 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 retire from
service on August 31, 1983 i.e. the next day when SLP (C) No.
H
HIGH COURT OF JUDICATURE AT PAI NA v. MADAN 985
MOHAN PRASAD & ORS. [J.M. PANCHAL, J.]
8923 of 2003 was taken up for hearing on August 30, 1983.
A
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.
B
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
C
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
D
CWJC No. 2059of1984 as having become infructuous. During
the pendency of the said SLP, a Resolution No. 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
E
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
F
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
G
No. 2059 of 1984 was dismissed. The learned counsel for the
petitioner states at the bar that the respondent No.1 was a
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986
SUPREME COURT REPORTS [2011) 13 (ADDL.) S.C.R.
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 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
B 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
c 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. 4862of1987 in the High Court for
D 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 above mentioned direction, the
E 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.
F
10. Again respondent No.1 had sent representation dated
April 30, 1990 repeating his prayer to grant him his lawful claims
as were given tQ his juniors. The same was rejeded by High
Court on its Administrative side vide order dated May 25, 1990.
The respondent No.1 had made third representation dated June
G 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 Di11ision Bench hearing
the same has directed the appellant High Court to consider the
case of promotion of the respondent No.1 as also
H
HIGH COURT OF JUDICATURE AT PATNA v. MADAN 987
MOHAN PRASAD & ORS. [J.M. PANCHAL, J.]
consequential benefit in accordance with law vide judgment
A
dated June 27, 2008 which has given rise to the instant appeal.
11. This Court has heard the learned counsel for the
appell::int and the respondent No.1 who has appeared in
person. The Court has also considered the documents forming
8
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
C
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
D
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, 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
E
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
F
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
G
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
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988
SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.
A due dates as were given to his juniors in the years 1971, 1974
and 1978. In C.W.J.C. No. 6538of1990 from which the present
appeal arises the petitioner had claimed following relief in
paragraph 20 of the writ petition :
B
c
"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
D 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, 197 4 and 1978 respectively.
E
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
F 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
G in C.W.J.C. No. 6538of1990 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
H by the respondent No.1 could not have been examined by the
HIGH COURT OF JUDICATURE AT PATNA v. MADAN 989
MOHAN PRASAD & ORS. [J.M. PANCHAL, J.]
High Court. Thus, the impugned judgment is liable to be set
A
aside on the ground that stale claim of promotions to differen't
cadres was advanced by the respondent No.1 after great delay
and that too without impleading his juniors.
13. In P.S. Sadasivaswamy Vs. State of Tamil Nadu
8
(1975) 1 sec 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 C
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 dis~issed. D
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 subrule(1) of rule 10 of Order XVI of the Supreme Court Rules that
E
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
F
delay of eight days in filing SLP and delay of nine days in refiling 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."
G
H
A
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SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.
15. In order to deal with the contention raised by the
respondent No. 1 it wo'.lld be necessary to refer to the Scheme
envisaged by the Supreme Court Rules, 1950, which was
subsequently amended and the Scheme contemplated by the
Supreme Court Rules, 1966 as well as certain relevant
B decisions on the point.
16. The Supreme Court of India, in the exercise of its rulemaking powers, and with the approval of the President, had
made the Supreme CoJrt Rules, 1950. Order XIII of the Rules
C 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
D
certificate by the High Court or within ninety days from the
date of the judgment sought to be appealed from,
whichever is longer:
E
F
G
H
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 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
HIGH COURT OF JWDICATURE AT PATNA v. MADAN 991
MOHAN PRASAD & ORS. [J.M. PANCHAL, J.]
judgment sought to be appealed from and not from
A
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
8
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."
C
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,
D
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, 1959. After amendment
Order XIII Rule 1 provided as under: -
·1. Subject to the provisions of Sections 4; 5, 12 and 14
E
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
F
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
G
notice to the respondent.
17. At this stage, it would be relevant to notice a
Constitution Bench judgment of this Court in Mis. 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
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992
SUPREME COURT REPORTS [2011) 13 (ADDL.) S.C.R.
A owner of a building in Delhi of which the 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
B 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
c 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.