Binod Kumar Roy and R.N. Prasad, JJ.
1. In this writ application, the petitioner, who at the relevant time was an officiating Subordinate Judge posted as Additional Subordinate Judge, Ranchi and who was found guilty of the charges levelled against him, prays for issuance of an appropriate writ, direction or order for treating the order contained in Memo No. 380 V-92/dated Patna the 29th March, 1983 of this Court (Respondent No.2) as contained in Annexure-l as non-est void, inoperative, arbitrary, un-constitutional and violative of his fundamental rights guaranteed under Articles 14, 16 and 21 of the Constitution of India and to issue a writ of mandamus directing the Respondents to treat him to be promoted as an Additional District Judge and District Judge retrospectively in view Of the notification dated 25-2-1979 of the Department of Personal and Administrative Reforms of the Government of Bihar as contained in Annexure-2 and also to grant consequential benefits of promotion and other advantages which he would hive been entitled in due course and to pay all salaries and allowances during the period in .which he was under suspension and to award compensation of rupees ten lacs to him.
2. The petitioner asserts that he was appointed as Munsif in the Bihar Civil Service (Judical Branch) in the year 1958 and was promoted as an Additional Subordinate Judge, in July, 1972, he crossed his first efficiency bar in the year 1973 and the second efficiency bar in 1975 with effect from l1-2-1974, ho was also Chief Judicial Magistrate and Assistant Sessions Judge, Nawadah from April, 1974 and was drawing maximum salary of Subordinate Judge and his confidential remark for the year 1975-76 was excellent ; that his trouble started in the year 1976 when he incurred the displeasure of the then Hon'ble Judge, Administrative Department of this Court on account of his pretest, when the name of his relation was recommended for the special post of Under Secretary, Law Department, Government of Bihar against his rightful claim and seniority ; that in January, 1976 several Subordinate Judges were confirmed except him though he was fit to be confirmed against several vacancies existing at that time ; that further in August, 1976 names of some Subordinate Judges above him were recommended for promotion to the post of Additional District Judge leaving some posts vacant for his promotion but his name was not recommended at that time ; that on 2-5-1977 he was superceded though eligible and no adverse report of any kind was communicated to him ; that no reason was assigned by this Court for his supersession and hence Respondent No. 1, the State of Bihar, after examining the excellent service record and finding that the Officers having inferior service record than the petitioner, were recommended for promotion as Additional District Judge, demanded reasons from this Court for superceding him but this Court vide letter .dated 2-8-1977 refused to disclose the reasons and took a stand that the Government has no authority to ask for reasons for supersession from this Court ; that respondent No. 1 did not accept the stand of this Court and insisted for disclosing the reasons ; that on 9-2-1978 this Court confirmed the Subordinate Judges, junior to him and took up a stand before the Government that since he is not a confirmed Subordinate Judge, he could not be promoted as an Additional District Judge : that the Government was not convinced as the names of all the un-confirmed Subordinate Judges were recommended for promotion and accordingly vide notification dated 25-2-1978, as contained in Annexure-2, kept one post reserved for him and asked this Court to disclose reasons for supersession or to recommend his name for promotion as an Additional District Judge ; that as this Court did not recommend his name for promotion, he filed a writ application under Article 32 of the Constitution of India before the Hon'ble Supreme Court which was dismissed in the year 1979 as the petitioner had the opportunity of representing him before the Governor and the post of an Additional District Judge was kept reserved for him ; on 20-2-1980 the petitioner filed representation to the Governor that on 21-2-1980 a departmental proceeding was started against him under Rule 55 of the Civil Services (Control, Classification and Appeal) Rules, 1930 (hereinatfer referred to as the 'Rules' and he was put under pension by this Court ; that the proceeding was initiated relating to some manufactured anonymous letters of the year 1975-76, the contents of which was not disclosed to him nor was he supplied copies thereof, when demanded ; that he also challenged the order of his suspension as illegal and arbitrary submitting his written statement within a fortnight stating further, inter alia, that the enquiry was illegal and bebarred under the Government circular besides the allegations made in the judicial orders of the year 1974-75 could not be enquired into in such proceedings ; that the petitioner demanded copies of the alleged anoymous letter enquired into cofidentially and the relevant materials including the evidence of the witnesses collected against him but were not supplied to him nor was he served with the notice of hearing of the proceeding ; that the departmental enquiry was delayed for more than six months against the Government circular and thus the petitioner filed a writ petition before this Court bearing C.W.J.C. No. 3068 of 1980 ; that in the aforementioned writ application this Court passed an order on 16-3-1980 directing the Judicial Commissioner of Ranchi, who was enquiring officer, to conclude the departmental proceeding and send his report to this Court ; that at that time Sri A.P. Sinha was the Judicial Commissioner, Ranchi, who had examined two witnesses during enquiry but despite the aforementioned direction of the Judicial side of this Court did not conclude the enquiry and submit a report ; that later on Shri B.P. Griyaghey, another Judicial Commissioner, concluded the enquiry ex parte and submitted report on 4-9-1981 even without examining a single material witness or without even discussing
the written statement filed by him holding that the charges have been proved ; that on 30-3-1982 this Court issued second show-cause notice of dismissal to him, as contained in Annexure-5 ; that C.W.J.C. No. 3068 of 1980 was dismissed by this Court without considering his plea that the second show-cause notice was illegal and without jurisdiction ; that the petitioner filed his reply to the second show-cause on the administrative side of this Court ; which was rejected on 25-3-1983 vide Annexure-1 without giving reasons awarding punishment of censor, withholding of increments and promotion for two years and salary for the period of suspension, though withholding of salary for suspension period after re-instatement is not provided in the Rules ; that against the aforementioned order, the petitioner preferred an appeal before the Governor of Bihar on 10-5-1983 but this Court refused to forward the same to the Governor of Bihar, who was his appointing authority ; that thereafter Respondent No. 1 took opinion of Shri K.P. Verma, the then Advocate-General but took no decision even after his representation dated 28-4-1985 ; that thereafter the petitioner filed Writ Petition No. 12263 of 1985, before the Hon'ble Supreme Court, which was allowed to be withdrawn with liberty to move this Court for grant of writ in the nature of mandamus of other appropiate directions and orders under Article 226 of the Constitution, vide order dated 31-10-1985, as contained in Annexure 6 ; that thereafter the petitioner filed a writ application bearing C.W.J.C. No. 6215 of 1985 before this Court which was dismissed on 17-2-1986 holding, inter alia, that no appeal lies before the Governor against the administrative order of this Court ; that petitioner thereafter filed Special Leave Petition (Civil) No. 3723 of 1986 before the Hon'ble Supreme Court in which by order dated 10-9-1986 (as contained in Annexure-7) Special Leave was granted, though confined to the question whether an appeal lies to the Governor against the order dated 16-9-1986 of the High Court, the Leave Petition was converted as Civil Appeal No. 3535 of 1986 during hearing of which the learned Counsel for this Court took up a stand that the Rules aforesaid do not apply to the members of Judicial Service, and the appeal was dismissed vide order dated 16-7-1987, as contained in Annexure-8. observing, inter alia, that neither party was able to indicate as to what was the Rule which will govern the judicial service to which he belonged and that the present regrettable state of confusion mus be ended ; that thereafter the petitioner filed another Writ Petition No. 448 of 1988 before the Hon'ble Supreme Court for quashing the order of this Court dated 25-3-1983, which by order dated 26-3-1990, as contained in Annexure-9, was permitted to be withdrawn with liberty to him to approach this Court and hence this writ application.
3. In the counter-affidavit filed on behalf of Respondent No. 2, it has been stated, inter alia, that the points raised in this writ application have already been raised earlier in this Court as well as in the Hon'ble Supreme , Court of India and all have been negatived and is not maintainable as the prayers made have already been rejected by this Court as well as by the Hon'ble Supreme Court ; that this Court is the final authority to recommend the name of the suitable Judicial Officers for promotion and it is absolutely false to say that there was nothing against the petitioner ; that the allegations made against him, after due enquiry, were found to be correct ; that the services of the Officers of the Subordinate Courts are governed by the Civil Services (Classification, Control and Appeal) Rules, 1930 and that full facts regarding application of the said Rules were not brought to the notice of the Hon'ble Supreme Court ; that the petitioner was found guilty in the departmental proceedings and' the punishment was inflicted in the enquiry which had to be concluded exparte because the petitioner opted not to appear before the Enquiring Officer ; that the control over the Judicial Officers of Courts subordinate to the High Court has been vested in the High Court under Article 235 of the Constitution of India, which is absolute and complete, subject only to limitation as is imposed in Article 235 of the Constitution of India itself and the High Court can hold enquiry against such Judicial Officers, impose punishment, other than dismissal or removal or reduction in rank ; that any law or rule taking away or impairing the jurisdiction of the High Court under Article 235 of the Constitution being in conflict with Article 235 has to be read down ; that the control of the High Court being absolute any punishment other than the one in which High Court has to recommend to the State Government for final order, is absolute and any other authority has no jurisdiction to interfere with such order in any manner and it is, therefore, obvious that provision of Appeal against the order of punishment, other than dismissal, removal or reduction in rank passed by the High Court, is inconsistent with the object of Article 235 and, therefore, has to be held to be in-applicable and the provision for appeal in the rules is redundant as the order passed by the High Court is final and binding and no other authority can interfere with the same, be in appeal or otherwise, and accordingly the obvious conclusion is that no right of appeal survives to the judicial officers against the order imposing minor punishment of the category referred to above ; and that there is no merit in the writ petition and it is fit to be dismissed. Several statements have been made in the counter-affidavit on the merits of the claim of the petitioner supported by various documents but we do not consider necessary to State all of them.
4. Mr. Basudeva Prasad, learned Counsel appearing for Respondent No. 2, at the outset submitted that the earlier writ application having been dismissed by this Court, rejecting the petitioner's claim, the instant writ application is barred on account of res judicata/contructive res judicata and is liable to be dismissed as not maintainable on that account. He placed strong reliance in the connection on a decision of the Hon'ble Supreme court in Forward Construction Co. v. Prabhat Mandal, reported in : AIR1986SC391 , wherein it was laid down as follows :
So far as the first reason is concerned, the High Court in our opinion was not right in holding that the earlier judgment would not operate as res judicata as one of the grounds taken in the present petition was conspicuous by its absence in the earlier petition. Explanation IV to Section 11, C.P.C. provides that any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have bean a matter directly and substantially in issue in such suit. An adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had it decided as incidental to or essentially connected with the subject-matter of litigation and every matter coming within the legitimate purview of the original action both in respect of the matters of claim or defence. The principle underlying Explanation IV is that where the parties have had an opportunity of controverting a matter that should be taken to be the same thing as if the matter had been actually controverted and decided. It is true that where a matter has been constructively in issue, it cannot be said to have been actually heard and decided. It could only be deemed to have been beard and decided. The first reason, therefore, has absolutely no force.
5. Mr. P.N. Singh, learned Counsel appearing on behalf of the petitioner, submitted as follows : (i) The instant writ application has been filed in view of the direction given by the Hon'ble Supreme Court as contained in Annexure-6 and is not at all barred either by res judicata or constructive res judicata. (ii) The point of applicability of the entire Rules did not arise before the Hon'ble Surptne Court because this Court held that certain provisions of the Civil Services (Classification, Control and Appeal) Rules, 1930 are not applicable to the Judicial Officers and the learned Counsel of this Court (Now one of us) had argued that those Rules do not apply to the Judicial Officers of Bihar and accordingly the proceedings started against the petitioner under Rule 55 of the Rules and the punishment awarded under and Rule 49 of the Rules, in view of the pronouncement of the Hon'ble Supreme Court in which merged the Judgment of this Court becomes null and void. (iii) As the petitioner was an Assistant Sessions Judge, he was not under the control of this Court, (iv) The petitioner has got a fresh cause of action accordingly to move this Court. Mr. Singh in support of his submission also placed reliance on a number of decisions of the Hon'ble Supreme Court in Antulay v. R.S. Nayek : 1988CriLJ1661 ; Baradakanarata Mishra v. High Court of Orlssa : AIR1976SC1899 ; M/s, Andhra Industrial Workers v. Chief Controller of Imports : [1975]1SCR321 ; Union of India(UOI) v. All India Judges' Association : (1993)IILLJ776SC ; Pratap Singh v. The State of Punjab : (1966)ILLJ458SC ; The State of Assam v. Kuseswar Salkia : [1970]2SCR928 ; Bandhwa Mukti Morcha v. Union of India(UOI) : [1984]2SCR67 ; M.C. Mehta v. Union of India(UOI) : [1987]1SCR819 ; Smt. Menaka Gandhi v. Union of India(UOI) : [1978]2SCR621 and ,S.S. Rathore v. State of Madhya Pradesh : 1989(43)ELT790(SC) .
6. Mr. Basudeva Prasad, learned Counsel in his reply reiterated that the writ petition is not maintainable being barred on account of res judicata. The order impugned as contained in Annexure-1 was assailed by the petitioner before this Court in C.W.J.C. No. 6215 of 1985 in which a Division Bench of this Court after going through the entire evidence was pleased to hold vide judgment and order dated 17-2-1986 that there is no substance in the attack to the validity or propriety of the said order and that it was difficult to quash the same on any account. This Court also rejected the prayer of the petitioner to quash the enquiry report and his claim for promotion. This Court in regard to the question of withholding an appeal held that the forum of appeal under Rule 57(5) of the Rules was available so a Civil Servant under the administrative control of the local Government against an order passed by the local Government whereas the petitioner was under the administrative control of this Court in terms of Article 235 of the Constitution of India and not under the local Government and that the impugned order having been passed by the High Court and not by the local Government, the Court was justified in refusing to forward the appeal of the petitioner. The learned Counsel for the petitioner was also equally guilty in not pointing out to the Hon'ble Supreme Court that the Rules were really applicable. Even assuming that the petitioner has fresh grounds but he is not entitled to file a second writ application in view of the patent fact that the order of this Court stood tacitly affirmed by grant of restricted Rule in the Special Leave Petition. The petitioner cannot challenge the judgment of the Hon'ble Supreme Court to which he was a party and his remedy, if at all, was to move the Hou'ble Supreme Court for review of the said judgment making out valid grounds before the Hon'ble Supreme Court and that the decisions relied upon by Mr. Singh do not support his contention.
7. Mr. Singh further reiterated that he being the President of the Bihar Judicial Service Association is more eager to know the stand of this Court as to whether the Rule aforesaid governs the service conditions of the Judicial Officers of this State though he has no doubt that the Rules aforesaid governs them.
8. Surprisingly no one appeared on behalf of the Respondent No. 1, the State of Bihar, during hearing which continued in part, because of paucity of time, on several days.
9. We take up first the question of applicability of res judicata/constructive res judicata.
10. We find that a five Judges Constitution Bench of the Hon'ble Supreme Court in the Direct Recruit Class II Engineering Officers' Association and Ors. v. State of Maharashtra and Ors. : [1990]2SCR900 (at pages 1624-25, paragraph 35) laid down as follows :
It is well-established that the principles of res judicata are applicable to writ petitions. The relief prayed for on behalf of the petitioner in the present case is the same as he would have, in the event of his success, obtained in the earlier writ petition before the High Court, The petitioner in reply contended since the special leave petition before this Court was dismissed in limine without giving any reason, the order cannot be relied upon for a plea of res judicata. The answer is that it is not the order of this Court dismissing the special leave petition which is being relied upon ; the plea of resjudicata has been pressed on the basis of the High Court's judgment which became final after the dismissal of the special leave petition. In similar situation a Constitution Bench of this Court in Daryao v. State of U. P. : [1962]1SCR574 held that where the High Court dismisses a writ petition under Article 226 of the Constitution after hearing the matter on the merits, a subsequent petition in the Supreme Court under Article 32 on the same facts and for the same relief filed by the same parties will be barred by the general principle of res judicata. The binding character of judgments' of courts of competent jurisdiction is in essence a part of the rule of law on which the administration of justice, so much emphasised by the Constitution, is founded and a judgment of the High Court under Article 226 passed after a hearing on the merits must bind the parties till set aside in appeal as provided by the Constitution and cannot be permitted to be circumvented by a petition under Article 32. An attempted change in the form of the petition or the grounds cannot be allowed to defeat the plea as was observed at page 595 (of SCR) : (at page 1967 of AIR) of the resported Judgment, thus :
'We are satisfied that a change in the form of attack against the impugned statute would make no difference to the true legal position that the writ petition in the High Court and the present writ petition are directed against the same statute and the grounds raised by the petitioner in that behalf are subsequently the same'.
The decision in Forward Construction Co. v. Prabhat Mandal (Regd), Andheri : AIR1986SC391 . further clarified the position by holding that an adjudication is Conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have bad decided as incidental to of essentially connected with subject-matter of the litigation and every matter coming into the legitimate purview of the original action both in respect of the matters of claim and defence. Thus, the principle of constructive res judicata underlying Explanation IV of Section 11 of the Code of Civil Procedure was applied to writ case. We, accordingly, hold that the writ case is fit to be dismissed on the ground of res judicata.
11. We further find that in Supreme Court Employees Welfare Association v. Union of India reported in : (1989)IILLJ506SC it was laid down as follows :
The doctrine of res judicata is a universal doctrine laying down the finality of litigation between the parties. When a particular decision has become final and binding between the parties, it cannot be set at naught on the ground that such a decision is violative of Article 14. So far the parties are concerned they will always be bound by the said decision. In other words, either of the parties will not be permitted to re-open the issue decided by such decision on the ground that such decision violates the equality clause under the Constitution.
12. True it is that in the aforesaid decision the 7 Judges decision in A.R Antulay (supra) strongly relied upon by Mr. Singh has not been considered. The Majority judgment in this case noted that earlier the Supreme Court was not called upon and did not decide the express limitation on the power conferred by Section 407 of the Code which includes offences by public servants mentioned in the 1952 Act to be over ridden in the manner sought to be followed as the consequential directions of the Supreme Court which were alleged to have been issued without observing the principles Of audi alterem parten and when that fact is brought to the notice, the Supreme Court, it can remedy the situation and that the rules of res judicata would not apply in correcting its error, which has the effect of depriving an accused of his fundamental rights particularly life and liberty ; under its inherent jurisdiction without insisting on the formalities of a review petition. However, here the position is different which will appear from the facts below, besides Mr. Singh submits that no review is sought for of the earlier judgment rather a declaration is sought for that the earlier judgment is void and nullity and accordingly non-est.
13. We have been taken through the brief of the earlier writ petition (C.W.J.C. No. 6215 of 1985) by Mr. Singh, Paragraph 1 of the earlier writ petition, which is relevant, reads thus :
That the prayer in this writ application are that the Hon'ble Court may be pleased to issue appropriate writ, direction, or orders to the respondents to consider the case of petitioner for retrospective promotion to the rank of Additional District and Sessions Judges, a claim accuring to the petitioner since 6th of October, 1976 when by notification of respondent No. 1 six Additional District Judges were appointed and also thereafter when on 25th February, 1958 vide Annexure-1, Respondent No. 1 reserved one post for the petitioner, Respondent No. 2, without valid rhyme or reason and under extraneous consideration, in arbitrary and discriminatory manner offending Articles 14 and 16 of the Constitution of India, did not recommend petitioner's name for promotion as Additional District Judge.
(ii) To quash the inquiry report dated 4-9-1981 submitted by Sri B.P. Griyaghey placed at Annexure-5 as well as the show-cause notice dated 30th March, 1982 placed at Annexure-6, as well as the order of the High Court vide letter dated 25-3-1983 the true copy placed at Annexure-8 because these orders are illegal, perverse and against the materials on the record.
(ii) To quash the letter dated 9th July, 1983 of Respondent No. 2 communicated to petitioner vide District Judge Letter No. 22, dated 17th August, 83 placed at Annexure-9 holding that no appeal against the order of punishment passed by the High Court lies before the Governor.
(iv) To quash letter No. 15363, dated 5-9-1985 of Respondent No. 2, true copy placed at Annexure-11 whereby petitioner has been communicated dead and stale adverse remarks giving reason for non-confirmation of the petitioner as Sub-Judge.
14. While dismissing the aforementioned writ application this Court vide its judgment and order dated 17-2-1986 had recorded the following findings :
(i) The word 'control' appearing under Article 235 of the Constitution has been the subject-matter of interpretation by the Supreme Court on several occasions. It is now well-established that 'control' includes something in addition to the mere superintendence of the Court. The control is over the conduct and discipline of Judges short of dismissal, removal or reduction in rank ... The power of the High Court, therefore, to impose the punishments contained in Annexure-8 cannot be doubted.
( ii) He did not allege malice as a fact against any Judge or Chief Justice of this Court, but submitted that the impugned order was mala fide in law. It must be stated that the petitioner made a wild reference of some malice on the part of Mr. Shambhu Prasad Singh, the then Judge Incharge Administration. That insinuation or assertion is of no consequence in deciding the validity of the punishments imposed upon the petitioner. The malice attributed to him is too far fetched and appears to have been invented only for the sake of litigation. Apart from it at the time the impugned order (Annexure-8) was passed Mr. Shambhu Prasad Singh was not a Judge of this Court at all.
(iii) As a malice in law, learned Counsel for the petitioner failed to advance any substantial argument except suggesting that there was non-application of mind. This submission has absolutely no substance and must be rejected. Annexure-8 is quite a lengthy document. It is not one line order as is done by the Executive. This had been preceded by calling upon the petitioner to show cause against his dismissal. That notice was preceded by a detailed departmental proceeding conducted by Judicial Commissioner, Ranchi. If there had been non-application of mind, an order of dismissal or removal would have followed and not the punishment mentioned above. In fact, it is father surprising that upon the findings of the Judicial Commissioner that the petitioner should have been let off only with the punishment incorporated in Annexure-8. A detailed departmental proceeding was conducted by Judicial Commissioner, Ranchi. The petitioner refused to take part in it. The Judicial Commissioner, found all charges levelled against him established. , If the verdict went against the petitioner, he had himself to thank for it. We are unable to find any malice in fact or in law. The order (Annexure-8) is not vitiated on that score.
(iv) Learned Counsel for the petitioner submitted that the impugned punishment was vitiated as Mr. B.P. Griyaghey, now a Judge of this Court, was not competent to hold the departmental enquiry.
This submission as well has no substance.'... 'Submission in
regard to the want of power in B.P. Griyaghey to hold the departmental proceeding has only to be stated to be rejected.
(v) Learned Counsel for the petitioner tried to take us through the entire evidence as if we were a Court of Appeal. We had to suffer his long arguments, but that has out no ice. We are unable to convert ourselves into a Court of Appeal against the findings of Mr. B.P. Griyagber or the order of the High Court. In our writ jurisdiction we cannot convert ourselves into a Court of facts. In that view of the matter, we find no substance in the attack at the validity or propriety of Annexure-8. It is difficult to quash Annexure-8 on any Court.
(vi) The attack on Annexure-8 having been found to be without substance, the prayer for quashing Annexures-5 and 6 also must be rejected. Annexure-5 is the report of Mr. B.P. Griyaghey in the departmental proceeding. We wonder how a report can be quashed. It is not definitive. It is only a report into certain allegations. Nothing has been brought to light to persuade us to hold that the petitioner was denied reasonable opportunity of defending himself. Annexure-6 is only a notice calling upon the petitioner to show cause why he should not be dismissed. He has not been dismissed or removed. We have come much ahead of the notice. Notice and report cannot be quashed. In that view of the matter, the prayer to quash Annexures-5 and 6 has no substance and must be rejected.
(vii) The petitioner has also prayed for quashing Annexure-11. These are some adverse remarks in the character roll of the petitioner. The petitioner's stand is that these should not have been communicated to him. If that is his stand, he may ignore it. The High Court was not communicating adverse remarks to Judicial Officers in the past. Now it seeks to correct itself and every adverse order is being communicated to every Judicial Officer. In that background Annexure-11 was issued. These remarks have now lost significance. The petitioner is about to superannuate within a couple of--so stated learned Counsel for the petitioner. Whether the remarks can be taken into consideration or not are of only academic interest.
(viii) Learned Counsel for the petitioner, has submitted and prayed that his case for promotion should be considered because the punishment imposed upon him debarred his promotion only for two years. It is true that that was the punishment. But what is there in his favour between 1980, the date of suspension and 1985, the date of imposition of the punishment to merit a promotion. He was always under suspension and has not done any work. The question of his consideration for promotion does not arise. If he had a longer tenure of service left, his case Could well have been considered upon his performance after the passing of Annexure-8. In that view of the matter, there is no substance in this prayer as well.
(ix) In this case we are concerned only with Rule 57(5) which reads as follows :
(5) A member of a Provincial Service, or member of Specialist Service under the administrative control of the Local Government of Governor's Province, may appeal to the Governor from an order passed by the local Government :
Provided that any such person was appointed by the Secretary of State in Council shall be entitled as an alternative to appeal to the Governor General in Council, and if, his pay as defined - in the Fundamental Rules is not less than Rs. 501 per mensem, thereafter to be Secretary of State in Council :
Provided also that any Deputy Collector to whom the provisions of Section 25 of Bengal Regulation IX of 1833 apply shall be entitled as an alternative to the appeal to the Governor to appeal to be Governor-General in Council :
Provided also that any officer holding the King's Commission on the active list of the Regular Army, the Royal Air Force, or the Royal Indian Navy may appeal to the Governor in Council, and thereafter to the Secretary of State in Council.
From the above provisions, it will be seen that an appeal lies to the Governor from an order passed by Local Government. This is not a case of order being passed by a Local Government. The order was passed by the High Court. Surely, it cannot be contended that the High Court is Local Government or Subordinate to it. Further the above provision shows that the right of appeal is provided to a civil servant under the administrative control of the Local Government. It is patent that the petitioner is not under the administrative control of Local Government. The control is of the High Court in terms of Article 235 of the Constitution. From the above discussions it will be obvious that the petitioner had no right of appeal to the Governor. Only specified categories of civil servants have been given that right. The petitioner does not fill that category. In our view, therefore, the High Court was fully justified in refusing to forward the appeal filed by the petitioner to the State Government. In that view of the matter, there is no substance in this submission as well.
15. We have been taken Mr. Singh through a copy of the Special Leave Petition No. 3723 of 1986 of the petitioner, from perusal of which it appears that the petitioner took up the following grounds therein :
That this Court ought to have taken into consideration the decision reported in B.S. Yadav v. State of Haryana : (1981)ILLJ280SC , wherein it has been laid down that the second part of Article 235 of the Constitution will not deprive a Judicial Officer of the right of appeal conferred upon him by a law made by the Legislature regulating his condition of service and accordingly he has statutory right of appeal under Article 235 read with Rule 56 and 58 and Rule 2, 3, 21 and Appendix III of the Bihar Service Code ; that this Court ought to have taken into account that the second show cause notice of dismissal dated 30-3-1982 was beyond its jurisdiction, the power being vested in the Governor only ; that once the initial order is held to be void, the subsequent order passed by the authority becomes void and illegal ; that this Court has erred in not taking into account that the report of the Enquiry Officer was ex-parte, invalid and has omitted to refer the evidence of material witnesses. Further it does not even mention about the written statement of the petitioner which was on the record and the charges said to have been proved were not the charges in the eyes of law and hence cannot be considered as even misconduct ; that this Court has failed to take into account that the order dated 25-3-1983 of punishment was not a reasoned or speaking order which is the basic demand of natural Justice ; that this Court has committed a serious error in mis-reading and concluding the submissions about its power ; that this Court has also committed serious error of record wherein it concluded that the question of promotion does not arise in the case of the petitioner who has not done judicial work since 1980-85 inasmuch as the petitioner was reinstated by order dated 25-3-1983 and working till date ; that this Court has committed another serious error of fact inasmuch as even though the petitioner is due to retire on 1-9-1987, it was concluded that he is to retire within two months and hence the consideration of remark is only of academic interest ; even though Rule 11 has nothing to do with the case of the petitioner, this Court has wrongly quoted Section 11 of the Service Rules ; and that this Court has wrongly relied on Rule 49 which no where provides withholding of pay.
While granting leave to appeal to the petitioner, the Hon'ble Supreme Court had passed the following orders :
Special Leave granted confined to the question whether appeal lies to the Governor against the impugned order of the High Court.
(Emphasis added).
16. The Hon'ble Supreme Coutt finally dismissed the Civil Appeal of the petitioner vide Judgment and order dated 16-7-1987 (reported in JT 1987 (3) SC 84, a copy of order has been appended as Annexure-8) observing, inter alias as follows :
(i) The appellant filed a writ petition in the High Court challenging the order of punishment on several grounds but did not succeed.
* * * *
(ii) On 16 September, 1986 this Court granted Special Leave to the appellant confined to the question whether an appeal lay to the Governor against the order of the High Court. That is the sole question for consideration before us.
(iii) To support his claim to a right of appeal the appellant relies on the Civil Services (Classification, Control and Appeal) Rules, 1930. It is pointed out that these Civil Services Rules of 1930 have been kept in force by the State Government by notification No. III/RI/ 101/63-8051-A, dated-3 July, 1963 issued under the Proviso to Article 309 of the Constitution. The submission of the appellant is that, the right of appeal is saved by Article 235 of the Constitution. Article 235 of the Constitution provides that the control over District Courts and Courts subordinate thereto, including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of the State and holding any post inferior to the post of District Judge shall be vested in the High Court but that nothing in that Article may be construed as taking away from any such person any right of appeal which he may have under the law regulating the conditions of service.
(5) The question is whether the appellant is governed by the Civil Services Rules of 1930. Rule 14 classifies the Public Services in India into a number of categories, and one such category is constituted of the Provincial Services. Rule 18 declares that the Provincial Services shall consist of such services under the administrative control of the Local Government of a Governors' Province as the Local Government may from time to time declare, by notification in the local official Gazette, to be included in the Provincial Services of that Province. Rule 49 specifies the penalties which could be imposed upon members of the Services specified in Rule 14. Rule 56 confers a right of appeal on a person belonging to any of the classified Services specified in Rule14 agninst an order imposing any of the penalties specified in Rule 49. Rule 57(5) provides.
'A member of a Provincial Service ...may appeal to the Governor from an order passed by the Local Government.'
We enquired of learned Counsel for the parties whether a Notification had been issued designating the Subordinate Judicial Service, of which the appellant is a member, as one of the Provincial Services specified in Rule 14. Neither counsel was able to refer to any Notification in that behalf. In the absence of positive material providing that the Subordinate Judicial Service can be regarded as having been brought within the scope of the Civil Services Rules of 1930, it is not open to the appellant to rely on the right of appeal created by those Rules.
(6) Our attention has been drawn to the fact that the Civil Services Rules of 1930 were continued with effect from 22 December, 1956, by Notification No. lll/Rl/l0l/63-8051-A, dated 3 July, 1963. That does not advance the case of the appellant any further because the Notification can take effect in respect of such service only as has already been brought within the scope of those Rules.
(7) Before leaving this case, we must give expression to our great disappointment that neither party was able to indicate what were the Rules which governed the judicial service to which the appellant belonged. If no Notification was issued applying the Civil Service Rules of 1930 to such Judicial Service, there must surely be some other body of Rules which does apply. And if there is none, it is time that such body of Rules was framed. The present regrettable state of confusion must be ended. It would certainly be a matter of gratification for the Judicial Officers of the State of Bihar to know where they stand.
(8).In the result, the appeal fails and is dismissed but in the circum stances we make no order as to cost.
17. Mr. Singh submitted that the order allowing the petitioner to withdraw his Writ Petition (Civil) No. 448 of 1988 by the Honb'le Supreme Court with liberty to him the approach this Court, nullifies the bar of res-judicata/ Constructive res-judicata. We, however, do not find that the Hon'ble Supreme Court had held that the doctrine of res judicata will not stand as a bar to the maintainability of this writ petition. Permitting a writ petition filed under Article 32 of the Constitution to be withdrawn only with liberty to file a writ petition under Article 226 of the Constitution cannot mean that the doctrine of res judicata/Constructive res judicata will not applicable if it applies.
18. We do not find any force in the submission that since the petitioner was an Assistant Sessions Judge, he was not under the control of this Court. Article 235 is clear in this regard and needs no repetition and any elaborate discussion. The reliance of Mr. Singh in this regard on the State of Assam v. Kuseshwar Salkia AIR 1970 SC 1617 (supra) is misplaced and in any event cannot be gone into. It was/is for, the petitioner to move the Hon'ble Supreme Court, if he thinks that on that score the impugned order was without jurisdiction.
19. Much grievance was made by Mr. Singh that the learned Counsel for this Court in the aforesaid Civil Appeal bad misled the Hon'ble Supreme Court that the Rules aforesaid do not apply pointing out that in the counter-affidavit this Court has taken a categorical stand that the Rules apply and perusal of the judgment of the Hon'ble Supreme Court shows that the petitioner's counsel had equally failed to point out the relevant notification. The mistake of the Counsel in not pointing out the finding recorded earlier that by virtue of Rule 3 of the Rules, the Rules are applicable to the Judicial servants of the State, which is binding on us, does not lead any where.
20. Mr. Singh also submitted that in any view of the matter the earlier judgment of this Court having merged in the judgment of the Hon'ble Supreme Court holding that the Rules do not apply will prevail and is binding on Respondent No. 2, This question so far as the petitioner is concerned, is academic but we will consider it in the last. In this context yet another submission of Mr. Singh is that the judgment of this Court has become in percurium or nullity and void ab initio in view of the findings recorded by the Hon'ble Supreme Court. This question, according to us stands, answered by the decla ration of the Hon'ble Supreme Court in State of Punjab v. Gurdeo Singh AIR 1991 SC 2219, holding that an order which is ulta vires, against the principles of natural justice and void for atleast a de facto operation unless and until it is declared to be void or nullity by a competent body or Court and the party aggrieved by the invalidity of the order hag to approach for the relief of declaration that the rule against him is in-operative and not binding upon him. The petitioner earlier had moved this Court for such a declaration which was negatived. Now he cannot be allowed to urge the same question through another writ petition.
21. Mr. Singh, however, had placed strong reliance on a seven Judges judgment of the Hon'ble Supreme Court in S.S. Rathore v. State of Madhya Pradesh : 1989(43)ELT790(SC) , and submitted that in cases of service dispute the cause of action must be taken to arise not from the date on which the original adverse order was made but from the date on which the higher statutory makes an order and accordingly the cause of action for the petitioner arose when the Hon'ble Supreme Court passed its judgment and order on 16th July, 1987 and accordingly no res judicata applies.
22. In our view there is no merit in this submission. The Hon'ble Supreme Court was considering the period of limitation stated in Article 58 of the Limitation Act to obtain any declaration from the Civil Court as three yean and in that context held that the period of three years has to be reckoned from the date when the higher statutory authority makes its order. The order passed by this Court on the administrative side had not merged in the judgment and order of this Court passed under Articles 226 and 227 of the Constitution in the earlier Writ Petition of the petitioner and subsequently in the judgment and order dated 16th My, 1987 of the Hon'ble Supreme Court in the Civil Appeal of the petitioner. Our view stands supported by the latest judgment of the Hon'ble Supreme Court in Laxman Marotrao Navakhare v. Keshavrao : [1993]2SCR167 . The Hon'ble Supreme Court, when a question arose whether, when an appeal on special leave, is denied by this Court, the decree of the High Court merges in the decree of this Court and amounts to passing a decree in the connected suit, through a Division Bench laid down that 'it can not be held that after having entertained a Special Leave Petition against any final or interlocutory order, this Court converts itself into a Court of appeal for hearing of the dispute involved and as such when the appeal is dismissed the decree passed by the High Court merges into the decree of this Court and in that situation amounts to passing a decree for eviction.'
It is significant to note that even the Orissa High Court had with held the appeal of Baradakanta Mishra, an Additional District and Session Judge of Orissa, and refused to forward it to the Governor, when he was suspended as a disciplinary enquiry was decided to be instituted against him, since in the opinion of the High Court to appeal lay to the Governor against an order of suspension passed by the High Court. (See paragraph 2 of Baradakanta Mlshra v. Mr. Justice Gati Krishna Mishra, C. J. of the Orissa High Court : 1975CriLJ1 ). I am also conscious that when he (Bradakanta Mishra) was reduced in rank and dismissed subsequently by the Orissa High Court and his appeal preferred before the Governor under the Civil Services (Classification, Control and Appeal) Rules, 1962, framed under Article 309 of the Constitution, dismissed and his writ petition dismissed, the Hon'ble Supreme Court (See AIR 1976 SC 1899) quashed both orders of the Orissa High Court holding that the major punishment of reduction in rank is exercisable by the appointing authority, namely, the Governor and accordingly reducing him in rank is un-constitutional and that the confirmation of the order of dismissal passed by the Governor, cannot have any legal effect because that which is void, cannot be confirmed. In our view the decision in Baradakanta Mishra (supra) AIR 1976 SC 1899 relied upon by Mr. Singh is again of no help to the petitioner in view of the findings recorded by this Court earlier that the punishments inflcted on petitioner were not major which are dinding on us.
24. It is, thus, clear that the findings of this Court on merits recorded against the petitioner, which were not set aside by the Hon'ble Supreme Court, in our view, operates as res judicata/constructive res judicata.
25. Despite our finding as above, we proceed to examine the validity of the other submission of Mr. Singh that as no appeal has been provided under the Rules the impugned order (as contained in Annexure-1) ultra vires Articles 14, 16 and 21 of the Constitution.
26. In Smt. Ganga Bai v. Vijoy Kumar : [1974]3SCR882 , the Hon'ble Supreme Court held that 'the right of appeal infers in no one.' In Anant Mills v. State of Gujarat : [1975]3SCR220 , the Hon'ble Supreme Court held as follows :
The right of appeal is a creature of Statute. Without a statutory provision creating such a right, the person aggrieved is not entitled to file an appeal.
In Mst. Narendra Devi v. Ram Nagendar Singh 1986. P. L. J. R. 175. our Full Bench held as follows :
Even on a large principle it is manifest that the right of appeal it not a guaranteed or a constitutional right. There is nothing what-so-ever in the Constitution which may even remotely vest any such un-alinable right to the Citizen. It is axiomatic that such a right is not a fundamental right nor a constitutional one. That being so, it is equally evident that there is no internal claim or right to appeal from an original forum.' The Full Beach before which the vires of an amending Act taking away the right of appeal was challenged, held further that the abolition of a right of appeal by the competent legislation does not attack equity clause of Article 14.....
Similarly in Vijay Prakash D. Mehta v. Collector of Customs (Preventive) Bombay : [1989]175ITR540(SC) the Hon'ble Supreme Court held that 'right to appeal is neither an absolute nor an ingredient of natural Justice, the principles of which must be followed in all judicial and quasi-judicial adjudication.' Thus there is no merit in the submission of Mr. Singh that in the absence of the appeal. Rule 55 of the Rules ultra vires Articles 14, 16 and 21 of the Constitution of India. In D.N Taneja v. Bhajtn Lal (1988)3 SCC 26 (Paragraph 12), the Hon'ble Supreme Court held that 'right of appeal is creature of Statute and the question whether there is a right of appeal or not will have to be construed on an interpretation of the provision of the Statute and not on the ground of propriety or any other consideration.' Even in Shri Shy am Mishra v. Municipal Corporation of Delhi : AIR1992SC2279 , the Hon'ble Supreme Court reiterated that right of appeal is neither an absolute nor an ingredient of natural Justice rather a statutory right.
27. In Darshan Singh v. Ram Lal Singh : AIR1991SC1654 , the Hon'ble Supreme Court made a distinction between the right to counter and the right to appeal holding that the former is a customary right whereas the latter is always a creature of statute. In the instant case, the petitioner was given an opportunity to contest the charges which he, however, did not avail.
28. In Maganlal Chhaganlat (P) Ltd. v. Municipal Corporation of Greater Bombay : [1975]1SCR1 , a Seven Judges Constitution Bench of Hon'ble Supreme Court, speaking through majority, held to the effect that the provisions of Articles 226 and 227 of the Constitution of India, are no less effective than a Second Appeal (See paragraph 19). Accordingly this Court, on its judicial side can well examine the validity of an order passed on its administrative side and in absence of any appeal under Rule 57(5) read with Rule 56 it cannot beheld that Rules l1 and 49 ultra vires Articles 14, 16 and 21 of the Constitution of India, No vice of discrimination could be pointed out between (he same class of judicial officers qua the Rules when minor punishments are inflicted on them under this Rule.
29. At this stage it is relevant to refer to paragraphs 7 to 9 of the recent decision of the Hon'ble Supreme Court in All Judges Association and Ors. v. Union of India and Ors. : (1993)IILLJ776SC strongly relied upon by Mr. Singh.
30. Paragraphs 7 to 9 of the judgment aforeside runs as follows :
7. It is not necessary to repeat here what has been stated in the Judgment under review while dealing with the same contentions raised there. We cannot, however, help observing that the failure to realize the distinction between the judicial service and the other services is at the bottom of the hostility displayed by the review petitioners to the directions given in the Judgment. The Judicial service is not service in the sense of 'employment'. The Judges are not employees. As members of the judiciary, they exercise the sovereign judicial power of the State, They are holders of public offices in the same way as the members of the council of ministers and the members of the Legislature. When it is said that in a democracy such as ours, the'executive, the Legislature and the judiciary constitute the three pillars of the State, what is intended to be conveyed is that the three essential functions of the State are entrusted to the three organs of the State and each one of them in turn represents the an authority of the State. However, those who exercise the State-power are the ministers, the legislators and the Judges, and not the members of their staff who implement or assist in implementing their decisions. The council of ministers or the political executive is different from the secretarial staff or the administrative executive which carries out the decisions of the political executive, Similary, the legislators are different from the legislative staff. So also the Judges from the judicial staff. The parity is between the political executive, the legislators and the judges and not between the Judges and the administrative executive. In some democracies like the U. S. A, members of some State judiciaries are elected as much as the members of the Legislature and the heads of the State. The Judges, at whatever level they may be, represent the State and its authority unlike the administrative executive or the members of the other services. The members of the other services, therefore, cannot be placed on par with the members of the judiciary, either constitutionally or functionally.
8.This distinction between the Judges and the members of the other services hrs to be constantly kept in mind for yet another important reason. Judicial independence cannot be secured by marking mere solemn proclamations about it. It has to be secured both in substance and in practice. It is strite to say that those who are in want cannot be free. Self-reliance is the foundation of independence. The society has a stake in ensuring the independence of the judiciary, and no price is took heavy to secure it. To keep the Judges in want of the essential accoutrements and thus to impede them in the proper discharge of their duties, is to impair and whittle away justice itself.
9. So much for the contention of the review petitioners that the directions given by this Court would lead to the demand from the members of the other services for similar service conditions. It is high time that all concerned appreciated that for the reasons pointed out above there cannot be any link between the service conditions of the judges and those of the members of the other services. It is true that under Article 309 of the Constitution, the recruitment and conditions of service of the members of the subordinate judiciary are to be regulated by the Acts of the appropriate Legislature and pending such legislation, the President and the Governor or their nominees, as the case may be, are empowered to make rules regulating their recruitment and the conditions of service. It is also true that after the Council of States makes the necessary declaration under Article 312, it is the Parliament which in empowered to create an All India Judicial Service which will include posts not inferior to the post of District Judge as defined under Article 236. However, this does not mean that while determining the service conditions of the members of the judiciary, a distinction should not be made between them and the members of the other services or that the service conditions of the members of the all Services should be the same. As it is, even among the other services, a distinction is drawn in the matter of their service conditions. This Court has in the judgment under review, pointed out that the linkage between the service conditions of the judiciary and that of the administrative executive was an historical accident. The erstwhile rulers constituted, only one service, viz., the Indian Civil Service for recruiting candidates for the judicial as well as the Adminsitrative Service and it is from among the successful candidates in the examination held for such recruitment, that some were sent to the administrave side while others to the judicial side. Initially, there was also no clear demarcation between the judicial and executive services and the same officers used to perform judicial and executive functions. Since the then Government had failed to make the distinction , between the two services right from the stage of the recruitment, its logical consequences in terms of the service conditions could not be avoided. With the inaugration of the Constitution and the separation of the State power distributed among the three branches, the continuation of the linkage has become anachronistic and is inconsistent with the constitutional provisions. As pointed out earlier, the parity in status is no longer between the judiciary and the administrate executive but between the judiciary and the political executive. Under the Constitution, the judiciary is above the administrative executive and any attempt to place it on par with the administrative executive has to be discouraged. The failure to grasp this simple truth is responsible for the contention that the service conditions of the judiciary must be comparable to those of the administrative executive and any amelioration in the service conditions of the former must necessarily lead to the comparable improvement in the service conditions of the latter.
31. Before we part, in view of the controversy raised, certain provisions of the Rules, which were examined by the Division Bench earlier and held that 'Rules 3 lay down that those Rules apply to every Government servant', which is binding on us, needs re-examination in the light of the aforesaid observations of the Hon'ble Supreme Court in All India Judges' Association (Supra) which are elaborate and illusrative and do not call far any further comment of ours except that the interference of the executive stood reduced to minimal after the coming into force of the Constitution in regard te the Judicial Services lave and except categorically stated in the Constitution.
32. The relevant Rules runs as follows :
2. For the purposes of these rules, unless there is anything repugnant in the subject or context :
(a) 'Government means-The Governor General or a Local 'Government' as the circumstances require.'
(Emphasis supplied by us)
**
3. These rules shall apply to every person in the whole-time civil employment of a Government in India (other than a person so employed only occasionally or subject to discharge at one month's notice or less) except ;
(a) persons for whose appointment and conditions of employment special provisions made by or under any law for the time being force ;
(b) (i) railway servant as defined in Section 3 of the Indian Rail ways Act. 189O ;
(ii) persons holding posts in the Railway Board who are subject to the Railway Services (Classification, Control and Appeal) Rules ; and
(iii) other persons holding posts under the administrative control of the Railway Board or of the Financial Commissioner of Railways ;
(c) Persons in respect of whose conditions of service, pay and allowances, pension, discipline and conduct, or any of them, special provision has been made by agreement entered into before these rules were made or entered into thereafter in pursuance of the provisions of Rule 46 :
Provided that in respect of any matter not covered by the provisions applicable to him, his service or his post these rules shall apply to any person coming within the scope of exceptions (a) or (c) above to whom but for these exceptions the rules would otherwise apply :
Provided also that these rules shall apply to any person temporarily transferred to a service or post coming within exception (b) to whom but for such transfer, these rules would otherwise apply.
(Emphasis supplied by us)
14. The public services in India shall be classified as follows :
******
(1) the All India Services ;
(2) the Central Services, Class I ;
(3) the Central Services, Class II ;
(4) the Provincial Services ;
(5) the Specialist Services ;
(6) the Suboroinate Services.
** **
18. The Provincial Services shall consist of such services (other than the services included in Schedule I),,under the administrative control of the Local Government of a Governor's Province as the Local Government may from time to time declare, by notification in the local official Gazette, to be included in the Provincial Services of that province :
Provided that one of the services so included shall be entitled the the General Service.
30. We have perused the Bihar and Orissa Gazette No. 24, Patna, Wednesday, June 19, 1935 in which notification dated the 13th June, 1935 has been printed, the relevant portion of which runs as follows :
No. 1977 A.R.--In exercise of the powers conferred by Rule 18 of the Civil Services (Classification, Control and Appeal) Rules, the following rule is made by the Governor-in-Council in so far as it affects Government Servants employed in the Reserved Departments, and by the Governor acting with his Ministers in to far as it affects Government servants employed in the Transferred Departments :
The Provincial Services shall consist of the services included in the Schedule annexed to this rule--
Schedule
1. Bihar Civil Service(Executive and Judicial Branches)
34. In the counter-affidavit of Respondent No. 2 it has been stated that the Government of Bihar vide notification dated 3-7-1963 (referred to in the judgment of the Hon'ble Supreme Court) in exercise of its power under Article 309 of the Constitution of India had applied the 1930 Rules to all Class I and Class II Officers in the service of the State of Bihar which is also apparent from the subsequent notification dated 31-3-1986 as contained in Annexure-C - to the counter-affidavit. That apart a combined perusal of Rules 2 and 3 shows that the 1930 Rules applies to the Provincial Judicial Service being in the whole time Civil employment of the State Government. True it is that Rules 18 talk of a declaration by notification of the Local Government but absence of a further notification has not made Rule 18 repugnant in the subject or context as referred to in Rule 2. In any view of the matter, from 26-1-1950, the day on which Chapter IV of the Constitution of India came into force, the Judicial service ceased to be in the administrative control of the State Government, for the apparent reason that under Article 235 the control of the Subordinate Judicial Service was withdrawn by the Constitution from the State Government and vested in the hands of the High Courts. The rasio extracted aforesaid also supports tacitly our conclusion.
35. Accordingly, we do not find any merit in the submissions of Mr. Singh rather accept that of Mr. Prasad and hold that the petitioner is not entitled to any relief from this Court.
36. In the result we dismiss this writ application but having regard to the peculiar facts and circumstances without cost.
.