Rajkumar And Another vs State Of Uttarakhand And Others

Ramesh Ranganathan, CJ

Heard Mr. M.C. Pant, learned counsel for the petitioners and Mr. Pradeep Joshi, learned Standing Counsel appearing on behalf of the State of Uttarakhand and, with their consent, the Writ Petition is disposed of at this stage.

The petitioners herein invoked the jurisdiction of the Uttarakhand Public Service Tribunal (for short "the Tribunal"), by filing Claim Petition No. 49/SB/2014, seeking an order or direction to quash the order dated 09.08.2010 issued by the fourth respondent therein; an order or direction to the respondents to give them seniority w.e.f. 17.04.2002; and to grant them the benefits of salary along with allowances treating them to have been selected on 17.04.2002 etc.

In its order, in Claim Petition No. 49/SB/2014 dated 07.03.2018, the Tribunal took note of the order passed by this Court in Jagdish Ram and others v. State of Uttarakhand and others (order in Writ Petition (S/S) No. 1466 of 2011 dated 03.07.2013), and the subsequent Government Order dated 31.03.2015 by which the Director General of Police, Uttarakhand was directed to comply with the order of the High Court. The Tribunal, thereafter, observed that, after arguing for some time, the learned counsel for the petitioners had confined his prayer only to the extent that the petitioners may be allowed to make a representation to the respondents, who may be directed to decide the representation at the earliest. Recording the no objection of the Assistant Presenting Officer, appearing on behalf of the State Government, Claim Petition No. 49/SB/2014 was disposed of by the Tribunal, by its order dated 07.03.2018, granting the petitioners two weeks' time to move a representation to the respondents therein; and the respondents were directed to decide such a representation by passing a reasoned order.

The order of the Tribunal, passed in Claim Petition No. 49/SB/2014 dated 07.03.2018, is subjected to challenge in this Writ Petition by Mr. M.C. Pant, learned counsel appearing on behalf of the petitioners, contending that the petitioners herein did not confine their prayer only for the representation to be decided; and, in the light of the judgment of this Court in Sanjay Shah v. Kumaon Mandal Vikas Nigam and others (Order of the Division Bench in Writ Petition (S/B) No. 169 of 2017 dated 28.03.2018), the Tribunal lacks jurisdiction to direct the respondents to consider the representation, and is obligated in law to decide the Claim Petition on its merits.

On the question, whether this Court can examine whether or not the petitioners had conceded before the Tribunal that their prayer be confined only to the extent that the State Government be directed to consider their representation, the Supreme Court, in State of Maharashtra v. Ramdas Shrinivas Nayak : (1982) 2 SCC 463, held thus :

"......When we drew the attention of the learned Attorney-General to the concession made before the High Court, Shri A.K. Sen, who appeared for the State of Maharashtra before the High Court and led the arguments for the respondents there and who appeared for Shri Antulay before us intervened and protested that he never made any such concession and invited us to peruse the written submissions made by him in the High Court. We are afraid that we cannot launch into an enquiry as to what transpired in the High Court. It is simply not done. Public policy bars us. Judicial decorum restrains us. Matters of judicial record are unquestionable. They are not open to doubt. Judges cannot be dragged into the arena. "Judgments cannot be treated as mere counters in the game of litigation." We are bound to accept the statement of the Judges recorded in their judgment, as to what transpired in court. We cannot allow the statement of the Judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the Judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject. The principle is well-settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the Judges, to call the attention of the very Judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error. That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. Of course a party may resile and an appellate court may permit him in rare and appropriate cases to resile from a concession on the ground that the concession was made on a wrong appreciation of the law and had led to gross injustice; but, he may not call in question the very fact of making the concession as recorded in the judgment.

In R v. Mellor : (1858) 7 Cox CC 454 : 6 WR 322 169 ER 1084 Martin, B. was reported to have said:

"We must consider the statement of the learned Judge as absolute verity and we ought to take his statement precisely as a record and act on it in the same manner as on a record of Court which of itself implies an absolute verity."

In King-Emperor v. Barendra Kumar Ghose : 28 Cal WN 170 : AIR 1924 Cal 257, Page, J. said:

"... these proceedings emphasise the importance of rigidly maintaining the rule that a statement by a learned Judge as to what took place during the course of a trial before him is final and decisive : It is not to be criticized or circumvented; much less is it to be exposed to animadversion."

In Sarat Chandra Maiti v. Bibhabati Debi : 34 Cal LJ 302 : AIR 1921 Cal 584 : 66 iC 433 Sir Asutosh Mookerjee explained what had to be done:

"... It is plain that in cases of this character where a litigant feels aggrieved by the statement in a judgment that an admission has been made, the most convenient and satisfactory course to follow, wherever practicable, is to apply to the Judge without delay and ask for rectification or review of the judgment..."

So the Judges' record is conclusive. Neither lawyer nor litigant may claim to contradict it, except before the Judge himself, but nowhere else......"

(emphasis supplied)

In the light of the law declared by the Supreme Court, in State of Maharashtra v. Ramdas Shrinivas Nayak : (1982) 2 SCC 463 , we are bound to accept the statement, as recorded in the order of the Tribunal. In case the petitioners are of the view that their statement has been wrongly recorded by the Tribunal, their only remedy is to approach the Tribunal seeking review of its order.

Since we are not inclined to entertain this Writ Petition on this ground, we see no reason to examine the petitioners' claim that the Tribunal lacks jurisdiction to direct the respondents to consider their representation. In the light of the law declared by the Supreme Court, in State of Maharashtra v. Ramdas Shrinivas Nayak : (1982) 2 SCC 463, it would be wholly inappropriate for us to examine whether or not the Tribunal lacks jurisdiction to direct the respondents to consider their representation for, if what is recorded in the order passed by the Tribunal is true, then such a direction was sought by the petitioners themselves and, having sought such a relief, the petitioners cannot, thereafter, be permitted to resile therefrom, and turn around and contend that the Tribunal lacks jurisdiction to pass an order directing the respondents to consider their representation. In any event, since the petitioners are being relegated to avail their remedy of a review, suffice it to leave this question open to be agitated by the petitioners before the Tribunal in case they invoke its review jurisdiction.

Mr. M.C. Pant, learned counsel for the petitioners, would refer to Rule 17(1) of the Uttar Pradesh Public Services Tribunal (Procedure) Rules, 1992 to submit that the Tribunal lacks jurisdiction to entertain a petition for review unless it is filed within thirty days from the date of the order of which the review is so sought.

Since the question, whether or not the petitioners had given such a concession before the Tribunal, cannot be agitated in a Writ Petition filed against the order passed by the Tribunal, and the only remedy available to the petitioners is to seek review of the order passed by the Tribunal and request it to correct its record, we request the Tribunal to entertain the Review Application without taking into consideration the period of limitation, prescribed under Rule 17(1) of the of the Uttar Pradesh Public Services Tribunal (Procedure) Rules, 1992, in the peculiar facts and circumstances of the present case, more so since this Writ Petition has been pending on the file of this Court for the past more than a year.

Subject to the aforesaid observations, the Writ Petition fails and is, accordingly, dismissed. No costs.