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TMI Blog2011 (9) TMI 1218X X X X Extracts X X X X X X X X Extracts X X X X ..... f Respondent No. 1 from service. On the basis of recommendation made by the High Court, the State Government issued a Notification dated January 15, 1972, dismissing the Respondent No. 1 from service. Thereupon the Respondent No. 1 filed W.P. No. 121 of 1972 under Article 32 of the Constitution challenging his dismissal from service before this Court. The petition filed by the Respondent No. 1 was allowed vide judgment dated February 23, 1972 on the ground that the termination of service was stigmatic and was ordered without holding an enquiry. It may be mentioned that judgment of this Court rendered in the petition filed by the Respondent No. 1 is reported in (1973) 4 SCC 166. In view of the above mentioned judgment of this Court, the Respondent No. 1 was reinstated in service. However, he was suspended from service on April 12, 1974 and departmental proceedings were initiated against him. Suspension order was challenged by him by filing CWJC No. 820 of 1974 and initiation of departmental proceedings was challenged by filing CWJC No. 593 of 1975 in the High Court of Patna. Both the writ petitions were dismissed in the year 1977 by the High Court. Thereupon, he had filed SLP (C) No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Inquiry Officer was served upon him calling upon him to show cause as to why he should not be removed from service. The Respondent No. 1 did not file reply to the show cause notice. 4. When CWJC No. 1924 of 1982 had come up for hearing before the Court on February 24, 1983, the learned Additional Advocate General had informed the Court that the departmental proceedings had concluded and second show cause notice was served upon him, calling upon him to show cause as to why he should not be removed from service. Thereupon, the court had expressed the view that the Writ Petition had become in fructuous and dismissed the same accordingly by order dated February 24, 1983. After receipt of show cause notice dated January 12, 1983 the Respondent No. 1 instituted CWJC No. 2959 of 1984 to quash (i) notification dated August 19, 1982 issued by High Court initiating departmental proceedings against him (ii) inquiry report dated December 10, 1982 forwarded by the District Judge Darbhanga and (3) notice dated January 12, 1983 calling upon him to show cause as to why he should not be removed from service. 5. The learned Additional Advocate General who appeared for the Patna High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P (C) No. 8923 of 1983 filed against the said order was unconditionally withdrawn by the Respondent No. 1 on August 30, 1983. 7. Again the Respondent No. 1 had filed SLP (C) No. 8621 of 1985, against order dated February 26, 1985 dismissing CWJC No. 2059 of 1984 as having become in fructuous. During the pendency of the said SLP, a Resolution No. 10383 dated August 11, 1985 was passed forfeiting permanently pension payable to Respondent No. 1. The said Resolution was produced on the record of SLP (C) No. 8621 of 1985 on November 25, 1986. This Court had passed following order on November 25, 1986 in SLP (C) No. 8621 of 1985: The Special Leave Petition is dismissed, but we would direct the State of Bihar to restore within six weeks the pensions payable to the Petitioner with arrears due on the basis that he had superannuated from service from the date of superannuation. Provident Fund, Gratuity and leave salary as may be admissible to him on superannuation will also be paid to the Petitioner. 8. The above quoted order makes it evident that the special leave petition which was against order dated February 26, 1985 passed by the Division Bench of High Court in CWJC No. 2059 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considered the documents forming part of the appeal. 12. The contention advanced on behalf of the Appellant that writ petition was filed by the Respondent No. 1 on November 10, 1990 i.e. seven years after he had superannuated from service, and therefore, writ petition should have been dismissed on the ground of delay and latches cannot be accepted. The impugned judgment nowhere shows that such a point was argued by the Appellant before the High Court. No grievance is made in the memorandum of SLP, that point regarding delay and latches was argued before the High Court but the same was not dealt with by the High Court when impugned judgment was delivered. Further from the facts noticed, it becomes evident that by order dated November 9, 1989, passed in CWJC No. 4862 of 1987, the High Court had directed the Respondent No. 1 to submit representation to the High Court on its administrative side claiming benefits which were given to his juniors but were denied to him, pursuant to which the Respondent No. 1 had filed last representation on June 23, 1990 which was rejected by High Court on September 17, 1990. The question of delay and latches will have to be considered from the communi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not have been examined by the High Court. Thus, the impugned judgment is liable to be set aside on the ground that stale claim of promotions to different cadres was advanced by the Respondent No. 1 after great delay and that too without imp leading his juniors. 13. In P.S. Sadasivaswamy v. State of Tamil Nadu (1975) 1 SCC 152, this Court has laid down a firm proposition of law that a person aggrieved by an order promoting a junior over his head should approach the Court at least within 6 months or at the most a year of such promotion and the High Court can refuse to exercise its extraordinary powers under Article 226 in case the person aggrieved does not approach the Court expeditiously for appropriate relief and puts forward stale claim and tries to unsettle settled matters. Therefore, C.W.J.C. No. 6538 of 1990 in which stale claim of promotion was made by the Respondent No. 1 was liable to be dismissed. 14. The contention of the Respondent No. 1 that Interlocutory Application No. 1 of 2009 was filed for condonation of delay in filing SLP and delay was condoned without issuing notice to him though it is mandatorily provided in the proviso to Sub-rule (1) of Rule 10 of Order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application; (iv) where an application for leave to appeal to the High Court from the judgment of a single Judge of that Court has been made and refused, the period from the making of the application to the rejection thereof shall be excluded in computing the period under this Rule; (v) the Court may for sufficient cause extend the time on application made for the purpose. The Supreme Court Rules, 1950 were published in the Gazette of India Extra Ordinary dated January 28, 1950 and amended by the Supreme Court of India Notifications dated April 25, 1950, July 5, 1950, August 19, 1950, June 18, 1951, May 6, 1952, January 16, 1954, July 10, 1954, April 12, 1955, March 19, 1956, July 14, 1956, July 11, 1957, November 22, 1957, January 9, 1958 and April 8, 1959. After amendment Order XIII Rule 1 provided as under: 1. Subject to the provisions of Sections 4, 5, 12 and 14 of the Limitation Act, 1963 (36 of 1963) a Petition for Special Leave to Appeal shall be lodged in the Court in a case where a certificate for leave to appeal was refused by the High Court within sixty days from the date of the order of refusal and any other case within ninety days from the date of judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the High Court holding that Section 7A was unconstitutional was heard by this Court and the same was allowed by judgment dated August 2, 1961 and this Court held reversing the judgment of the High Court that Section 7A of the Act was valid. It would thus be seen that only point which the learned Judge considered and on which the revision petition of the landlord Respondent was allowed no longer subsisted and hence the Appellant was entitled to have the appeal allowed. As the learned single Judge did not consider the other objections raised by the first Respondent to the order of the Rent Controller fixing the standard fair rent payable by the Appellant, the appeal had to be remanded to the High Court for being dealt with according to law. However, a preliminary objection to the hearing of the appeal was raised by the learned Counsel for the landlord Respondent. His submission was that the special leave which was granted by this Court ex-parte should be revoked as having been improperly obtained. The judgment of the learned single Judge to appeal from which the leave was granted was dated January 5, 1955 and the application to this Court seeking leave was made on January 5, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the year 1950 were replaced by the present Rules, which are known as The Supreme Court Rules, 1966. They came into force with effect from January 15, 1966. The weighty recommendations made by the Constitution Bench in Ram Lal and Sons (P) Ltd. case (Supra) were taken into consideration and proviso to Sub-rule (1) of Rule 10 of Order XVI was enacted, which reads as under: 10 (1) Unless a caveat as prescribed by Rule 2 of Order XVIII has been lodged by the other parties, who appeared in the Court below, petitions for grant of special leave shall be put up for hearing ex-parte, but the Court, if it thinks fit, may direct issue of notice to the Respondent and adjourn the hearing of the petition: Provided that where a petition for special leave has been filed beyond the period of limitation prescribed therefor and is accompanied by an application for condonation of delay, the Court shall not condone the delay without notice to the Respondent. Naturally, the proviso requires that when a petition for special leave has been filed beyond the period of limitation prescribed therefore and is accompanied by an application for condonation of delay, the Court should not condone the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven in the additional affidavit did not explain the delay satisfactorily nor had the Appellant been diligent in filing the appeal. This Court heard the learned Counsel for the Appellant as well as the Respondent and having considered the reasons given for condonation of delay in the original affidavit as well as in the additional affidavit filed by the Appellant was of the opinion that the Appellant had not satisfactorily explained the delay in preferring the appeal. Therefore, accepting the contention of the Respondent this Court had revoked the leave granted on 12.7.2000 and consequently dismissed the SLP as barred by limitation. 20. In view of the course adopted by this Court in the above mentioned decision this Court had heard the Appellant and the Respondent to satisfy itself as to whether sufficient cause was made out for condonation of delay of eight days. At the beginning, the Respondent No. 1 had attempted to argue that there was unexplained delay of seven months and not of eight days, as was mentioned in the Office Report, but he could not make his submission good. It could not be pointed out to this Court that the calculation of delay of eight days made by the registr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omotion is not a matter of right much less a fundamental right, more particularly when promotion in the subordinate judiciary is to be dealt with by the High Court which has complete control over the subordinate judiciary in view of Article 235 of the Constitution. All rights and claims of the Respondent No. 1 got crystallized when this Court passed order dated November 25, 1986 in SLP (C) No. 8621 of 1985 read with order dated August 30, 1983 passed by this Court in SLP (C) No. 8923 of 1983. If the Respondent No. 1 had any other claim he ought to have made the same before this Court when the above numbered Special Leave Petitions were disposed of. In fact both the Special Leave Petitions were dismissed and therefore all his claims stood finally rejected, except the direction given to pay him the pension etc. mentioned in order dated November 25, 1986 passed in SLP (C) No. 8621 of 1985. No grievance was made by the Respondent No. 1 in C.W.J.C. No. 6538 of 1990 that the direction given by this Court on November 25, 1986 in SLP (C) No. 8621 of 1985 were not complied with by the Appellant. Neither at the time of disposal of SLP (C) No. 8923 of 1983 nor at the time of disposal of SLP ( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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