High Court of Judicature At Patna Vs Madan Mohan Prasad .

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

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

2

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

3

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

4

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

5

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

6

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

7

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

8

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.

9

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

10

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

11

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

12

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,

13

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

14

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.

15

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

16

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

17

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

18

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

19

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,

20

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

21

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

22

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.

23

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

24

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

25

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

26

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

27

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

28

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

29

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

30

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

31

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

32

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

33

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

34

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

35

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.

36

…..…….……………..J. (J.M. PANCHAL)

…..…….……………..J. (H.L. GOKHALE)

NEW DELHI SEPTEMBER 05, 2011.

37

HIGH COURT OF JUDICATURE AT PATNA Vs MADAN MOHAN PRASAD .

HIGH COURT OF JUDICATURE AT PATNA Vs MADAN MOHAN PRASAD .