Raj Kumar vs H.P.K.V.V. and Others

Deepak Gupta, J.—The Petitioner herein had filed Original Application No. 537 of 1998 before the erstwhile State Administrative Tribunal. Since the Tribunal stands abolished vide notification issued by the Central Government, the case has been transferred to this Court in terms of the Himachal Pradesh Administrative Tribunal (Transfer of Decided and Pending Cases and Applications) Act, 2008. The matter has, therefore, been taken up by this Court and now registered as CWP(T) No. 5003 of 2008.

By means of this petition, the Petitioner has prayed for the grant of following amongst other reliefs:

That the applicant be held entitled to promotion as Assistant Engineer with effect from 11.4.1988 and the merit of the applicant be fixed above the Respondents No. 3, 4 and 5 alongwith consequential seniority. Annexure A-3 dated 11.4.1988 be quashed and the Respondent No. 1 University be directed to amend the Office Order, dated 19.7.90, Annexure A-7 accordingly.

That the applicant be held entitled to the seniority over and above Respondents No. 3 to 5 in the category of Assistant Engineers and the seniority list, Annexure A-9 to the contrary be quashed/set aside.

That the applicant be held entitled to all consequential benefits of antedating of promotion as Assistant Engineer w.e.f. 11.4.88 and seniority over Respondents No. 3 to 5 in that category and the Respondent No. 1 University be directed to calculate and pay to the applicant all the consequential benefits within a time bound period of three months.

It is thus obvious that the main relief claimed by the Petitioner was that he should be held entitled to promotion as Assistant Engineer w.e.f. 11.4.1988.

In para 6(18) of the petition, the Petitioner made the following averments:

That the CWP No. 616/88 claiming the same reliefs, inter-alia, which have been prayed in this Original Application was filed in the Hon''ble High Court of Himachal Pradesh which was eventually dismissed on 2.6.97 is not maintainable on the point of jurisdiction in the Hon''ble High Court of Himachal Pradesh. Hence, this Original Application.

Reply to the petition was filed and a preliminary objection was taken that a wrong statement has been made and the writ petition No. 616/88 filed by the present Petitioner was in fact, disposed of by this Court on merits. The Respondent-University alongwith its reply annexed a copy of the order passed by this Court in CWP No. 616/88, relevant portion of which reads as follows:

In such circumstances, nothing survives in this writ petition, as the complaint of the Petitioner was only against his non-promotion on the ground of remarks made against him recorded in the ACR for the year 1983-84. If subsequently the Petitioner had been promoted, then he has no grievance to be placed before the Court. If on the other hand, the Petitioner was not promoted he would have worked out his rights by way of subsequent writ petition or otherwise against the subsequent order. In so far as this writ petition is concerned, nothing survives in it and it is dismissed. No costs.

A perusal of the operative portion of the judgment of this Court clearly shows that the case was disposed of on merits. This Court held that if the Petitioner had been promoted then he has no grievance left and in case, he had not been promoted then he should file a fresh petition or any other proceedings against a subsequent order. The second petition would lie only against the subsequent order.

The Petitioner in my view was guilty of making false averments in the petition. His petition had not been dismissed on the issue of lack of jurisdiction but on merits. The decision of this High Court may be right or wrong but no party can mislead another Court by stating that his case was not disposed of on merits but on the ground of jurisdiction. The second impediment in the way of the Petitioner is that the Petitioner was given the right to file a fresh petition or any other proceeding only if had challenged some subsequent order. No subsequent order has been challenged in this petition and the reliefs claimed are virtually identical to the reliefs claimed in the original petition. The seniority list of 1.1.1996 was already in existence when the order was passed by this Court and if the Petitioner wanted to challenge the same, he should have reserved his right before this Court.

In view of the above discussion and especially in view of the fact that the Petitioner is guilty of making false statement on affidavit, I am of the view that the Petitioner is not entitled to any relief. The petition is, therefore, rejected. No order as to costs.