In the Supreme Court of India
|Name of the Case||Har Swarup v. The General Manager, Central Railway|
|Citation||AIR 1975 SC 202|
|Year of the Case||1974|
|Respondent||Respondent No. 1- General Manager, Central Railways, Bombay. |
Respondent No. 2- General Manager, Western Railways. Respondent No. 3- Union of India, Ministry of Railways, Railway Board, New Delhi.
Respondent No. 4- Shri C.S. Patanker.
|Bench/ Judges||K Mathew (J); N Untwalia (J)|
|Acts Involved||Constitution of India|
|Important Sections||Article 32, Constitution of India|
The petitioner was first appointed as an ‘Inspector of Works’ in the Western Railways in the year 1947. However, the petitioner alleged that starting from the year 1949, his promotion was reverted, enquires were initiated against him, and several malicious charges were framed against him. He was even denied promotion to the post of Asst. Engineer, for which he was selected.
Subsequently, his name was removed from the panel of ‘Inspector of Works’. Further, even after civil suits, and appeals to the Railway Board, the petitioner alleged that he did not get relief. Therefore, he preferred this writ to the Supreme Court under Article 32 of the Constitution of India.
This Petition was, however, dismissed by the Court on the ground of delay, laches of the petitioner, and on account of his claim being stale and barred by res judicata.
- Laches- Unreasonable delay in asserting a claim
- Stale- No longer fresh and pleasant
- Revert- Return to
- Interpolate- Insert (something of a different nature) into something else
- Exonerate- Absolve from blame for a fault or wrongdoing
The Petitioner moved the Bombay High Court in 1971 praying to direct the Railway administration to place him as Asst. Engineer above respondent No. 4 in the panel, and promote him in the year 1955 for all purposes of seniority, fixation of pay, arrears of pay, pension, and to give him further promotions as if the inquiry against the petitioner was never initiated. However, the writ petition was dismissed. The petitioner wanted a certificate from that court to appeal to the Supreme Court, but it was refused. He then went to the Supreme Court for special leave but it was also dismissed as withdrawn.
Thereafter, the petitioner bled this Writ petition for the same reliefs.
The petitioner was appointed in the year 1947 as ‘Inspector of Works’ in the grade of Rs. 200 – 300 in the old BB & CI Railway which subsequently became Western Railway. From 1-10-1948 he was promoted to officiate in the grade of Rs. 360-500. However, he was reverted to a substantive grade of Rs. 200-300 in the post of ‘Inspector of Works’ with effect from 1.12.1949.
On 17.5.1952 the petitioner was selected for promotion to the post of Assistant Engineer, Class II, and his name was placed for short-term vacancies. The petitioner alleged that two persons who had scored lessor number of marks than him were placed above him.
The petitioner’s case further was that on 3.12.1952 he was posted as an Assistant Engineer by the General Manager (G.M), Western Railways, telegraphically. He was posted to officiate as Assistant Engineer, Udaipur in the pay scale of Rs. 350-900. But the Regional Engineer, Ajmer wrote a letter to the Chief Engineer, objecting to the petitioner’s posting, as a result of which, the petitioner’s promotion was wrongly withheld. The petitioner claimed that the action of the Regional Engineer was motivated. Due to this claim, An inquiry was started against the petitioner in November 1952 by the G.M for his alleged acts of making false allegations against his superiors. However, the inquiry was dropped after some intervention by the then Railway Minister, but he did not get his promotion.
The petitioner was not called for any selection procedures that took place during 1953-1954. On 1-10-1954, however, the petitioner was promoted in the post of ‘Inspector of Works’ in the grade of Rs. 260-350. But, he still did not get his promotion.
In October 1955 the services of the petitioner were transferred from Western Railways to ‘Inspector of Works’ in the grade of Rs. 260-350 at Jabalpur in the Central Railways. According to the petitioner, at various times, after selection procedures, some other persons who were junior to him were placed in higher grades and roles than him.
In 1957, the petitioner’s name was removed even from the panel of ‘Inspector of Works’. This order was challenged by the petitioner in the Bombay High Court and the Court set aside the order of the Railway administration. However, the G.M, Central Railways again started an inquiry against the petitioner, and the petitioner was harassed. The ‘Railway Establishment Code’ was also amended to provide that removal of name from the panel of a Railway employee would not amount to a penalty.
In 1958, the petitioner also filed a civil suit claiming promotion to the post of Assistant Engineer. The suit was, however, dismissed in the year 1960 inter alia on the ground of lack of jurisdiction.
The petitioner further stated that he preferred an appeal to the Railway Board from the decision of the authorities concerned for removing his name from the panel of ‘Inspector of Works’. The Railway Board, however, rejected the petitioner’s appeal. The petitioner, thereupon, filed Special C.A. 19 of 1962 before the Nagpur Bench of the Bombay High Court for getting relief against the removal of his name from the panel of the higher grade of ‘Inspector of Works’. The petition was dismissed as withdrawn on the ground of jurisdiction.
The petitioner’s grievance further was that during the period 1952 to 1969 several false and malicious charge-sheets were framed against him. The departmental inquiries were abnormally delayed and in all the departmental proceedings the petitioner was completely exonerated.
After the dismissal at Nagpur on the ground of want of jurisdiction, the petitioner moved the Delhi Bench of the Punjab High Court seeking relief against the removal of his name from the panel and for his pay, seniority, and further promotion. This petition was also dismissed by the Delhi Bench of the Punjab High Court after the final hearing.
In July 1968, the petitioner moved the Bombay High Court to quash the proceedings initiated against him by a memo dated 30-8-1963 and to allow promotion as Assistant Engineer and in the highest grade of Rs. 450-575 in the post of ‘Inspector of Works’. When the said petition was pending in the Bombay High Court, the Divisional Officer again charge-sheeted the petitioner. He was also placed under suspension.
Thereupon, the petitioner filed another Special C.A. No. 2268 of 68 praying to quash the order of inquiry and to place him in the post of Assistant Engineer for all purposes of his pay, seniority, etc. and in the grade of Rs. 450-575 as ‘Inspector of Works’. By its judgment and order, the Bombay High Court directed the Railway authorities to consider the petitioner for promotion to the post of Asst. Engineer, Class II following the order dated 26-10-1965 and if found suitable to interpolate his name in the panel above his juniors.
The petitioner, however, did not get relief. He again moved the Bombay High Court praying to direct the Railway administration to place him as Asst. Engineer above his juniors in the panel and promote him in the year 1955 for all purposes of seniority, fixation of pay, arrears of pay, pension, and to give him further promotions as if the inquiry against the petitioner was never initiated. However, this writ petition too was dismissed.
He then moved to the Supreme Court by the way of special leave, but the special leave application was also dismissed as withdrawn. Thereafter the petitioner preferred this writ petition for the same reliefs.
The issue was whether a writ of mandamus is issued to the respondents, to place the petitioner as an Executive Engineer for seniority, pay, grade, arrears of pay, and further promotions to higher posts; and also whether a writ of mandamus to place the petitioner in the grade of Rs. 450-575 in the post of ‘Inspector of Works’ for all purposes, should be issued.
Article 32, Constitution of India
Article 32 of the Constitution provides for remedies in case the fundamental rights of a citizen are infringed. It guarantees to every citizen, the right to move the Supreme Court by appropriate proceeding for the enforcement of the fundamental rights. It also gives power to the Supreme Court to issue directions or orders or writs, including writs like habeas corpus, mandamus, prohibition, quo warranto, and certiorari, for the enforcement of such rights.
Writ of Mandamus:
A writ of mandamus is a command given by any High Court or Supreme Court to the lower court or any tribunal or board or to any other public authority to perform their public duty imposed upon them by law. The purpose of mandamus is to remedy the defects of justice.
However, it cannot be issued to force the lower authorities to act or do something which is against the law. It must also be noted that the writ of mandamus can only be issued if there exists a ‘legal right’. In other words, any person seeking a writ of mandamus must show that he has a ‘legal right’ to overpower the opponent against whom writ will be issued, to do or not to do some specific act. The legal right of the petitioner is a condition precedent.
The term has been derived from a Latin phrase meaning “a matter decided”. It is used to refer to the matters or cases that have already been decided by another Court. This concept is used in both, civil as well as criminal matters.
This doctrine is also meant to bar re-litigation of a claim between the same parties. This is to prevent injustice to the parties of a case supposedly finished, but perhaps mostly to avoid unnecessary waste of resources and time of the Judicial System. Once a final judgment has been announced in a lawsuit, the subsequent judges who are confronted with a suit that is identical to or substantially the same as the earlier one would apply the Res Judicata doctrine ‘to preserve the effect of the first judgment’.
The Supreme Court, while observing that the prayer made in the present writ application was exactly in the terms of the prayer made before the Bombay High Court in 1971, held that:
“…the petitioner has made out no case to enable him to get any relief from this Court. The claims made by him are all stale. This Court cannot examine them after the delay of about a decade or two. Of and on the petitioner has been ventilating his grievances and sometimes with success too. Whatever relief he got from the Bombay High Court in its judgment was given effect to. Nothing further can be directed to be done by this Court. The judgment of the Bombay High Court operates as res judicata and disentitles the petitioner from claiming any further relief from this Court.
It would appear that the reliefs claimed by the petitioner in the case before Bombay High Court was the same as in the present case. The grounds covered were also identical. The High Court held that the petitioner was not entitled to any relief and dismissed his writ application. He failed in getting a chance to appeal to this Court from the judgment of the Bombay High Court. In such a situation it has got to be held that the petitioner’s claim is barred by the principles of res judicata.”