Akshay Lal Sah v. The State Of Bihar & Ors.

ORAL ORDER (Per: HONOURABLE MR. JUSTICE NAVIN SINHA) 2 20-09-2013 Heard learned Counsel for the appellant and the respondents. The present appeal arises from the order dated 6.2.2013 dismissing CWJC No. 10946 of 2013 declining to grant relief for retrospective seniority from the date that he was originally denied appointment and other notional benefits. Learned Counsel for the appellant submits that he was an applicant as Assistant Teacher in the subject of Civics under Advertisement No. 2 of 1991. He was visually handicapped. 3% of the vacancies were required to be reserved for Physically Handicapped Persons under Section 33 of the Persons with Disabilities (Equal Opportunity etc.) Act, 1995. He was denied appointment on the specocious plea that the advertisement did not contain any reservation for the physically handicapped. In CWJC No. 12104 of 2002 directions were given for his appointment. He was then Patna High Court LPA No.522 of 2013 (2) dt.20-09-2013 2 appointed on 18.1.2006. The delay in the appointment being attributable to the respondents, the appellant cannot be visited with the consequences for denial of consequential seniority and other notional benefits. He does not claim salary from the retrospective date. Counsel for the State has opposed the appeal. Our attention is drawn to the order in CWJC No. 12104 of 2002 to submit that the appellant relied on LPA No. 1570 of 2000 arising out of recruitment in the same transaction. Learned Single judge noticed that relief came to be granted in the latter under exceptional circumstances as one time measure to commemorate International Handicapped Year. The advertisement did not contain any separate provision for the handicapped. A concession was granted to the Appellant by the learned Single Judge when he was otherwise satisfied that the appellant had no case. We have considered the submission on behalf of the parties. In the event that a person is wrongly denied appointment without valid justification and the appointment is made at a later date, circumstances so justifying, he may be entitled to claim seniority and other notional benefits from the date that the appointment should have been made. But this is not a universal principle for application under all circumstances. In the present case we find two exceptions why that principle cannot be applied to the appellant. In CWJC No. 12104 of 2002 learned Single judge distinguished the order in LPA No. 1570 of 2000 observing that attention of the Division Bench was not drawn to the fact that the government instruction dated 7.6.1986 was a special one issued in the International year of the handicapped. Carving out an exception in reasoning but in judicial propriety, sitting single, following the order of the Division Bench relief was granted to the appellant. The learned Single Judge was otherwise satisfied that appointment had not been denied Patna High Court LPA No.522 of 2013 (2) dt.20-09-2013 3 wrongly. This finding of the learned Single Judge attained finality when the appellant never questioned it. The second ground on which we do not find any reason to interfere is the principle of constructive res judicata. It implies that a person must take all objections direct or incidental in one case filed by him. He cannot be permitted to urge different grounds at different times arising out of the same transaction. The principle is salutary that no one can be vexed more than once on the same issue. No explanation is forthcoming on behalf of the appellant that if relief was granted to him in CWJC No. 12104 of 2002 why he did not make a specific prayer at that stage itself to grant him consequential seniority and notional benefit from the date that the appointment was wrongly denied to him. An attempt was made to persuade us in a circuitous manner that there are materials to suggest that he did. It does not appeal to us. The ground had to be specific. In (1962) 1 SCR 574 (Daryao v. State of U.P.) explain the doctrine it was observed:- “9. ……..Now, the rule of res judicata as indicated in S. 11 of the Code of Civil Procedure has no doubt some technical aspects, for instance the rule of constructive res judicata may be said to be technical; but the basis on which the said rule rests is founded on considerations of public policy. It is in the interest of the public at large that a the binding decisions pronounced by Courts of competent jurisdiction, and it is also in the public interest that individuals should not be vexed twice over with the same kind of litigation…….” finality should attach We find a third reason also. The appointment was provided to the appellant on 18.1.2006. There has to be some reason why he chose to sit over the matter for three years, before seeking seniority retrospectively. In (1975) 1 SCC 152 (P.S. Sadasivaswamy v. State of T.N.), delay as a ground to deny relief of seniority was considered holding:- “2. ………A person aggrieved by an order of promoting Patna High Court LPA No.522 of 2013 (2) dt.20-09-2013 4 a junior over his head should approach the Court at least within six months or at the most a year of such promotion. It is not that there is any period of limitation for the Courts to exercise their powers under Article 226 nor is it that there can never be a case where the Courts cannot interfere in a matter after the passage of a certain length of time. But it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the Court to put forward stale claims and try to unsettle settled matters. The petitioner’s petition should, therefore, have been dismissed in limine. Entertaining such petitions is a waste of time of the Court. It clogs the work of the Court and impedes the work of the Court in considering legitimate grievances as also its normal work…….” We find no reason to interfere with the order under appeal for the reasons as discussed by us. The appeal is dismissed. Snkumar/- (Navin Sinha, J) (Vikash Jain, J)