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2011 Supreme(Cal) 953
High Court Of Calcutta
Biswanath Somadder, J.
Saroj Kumar Maity - Appellants
Vs
State Of West Bengal - Respondents
W.P. No. 1949 OF 2000, GA NO. 1506 OF 2010
Decided on: July 19, 2011
Ranajit Chatterjee, L.C. Behani, Saikat Banerji
A previous judgment of the court, even if erroneous, operates as res judicata and is binding on the parties in subsequent proceedings. A break in service caused by administrative laches on the part of the concerned college authorities cannot be attributed to the employee's fault and used to deny them service benefits.
Headnote:
EDUCATION - SERVICE - REGULARITY - SERVICE BEFORE RECOMMENDATION OF COLLEGE SERVICE COMMISSION - SUBSEQUENT REGULARISATION - BREAK IN SERVICE - INADVERTENT DELAY IN ISSUANCE OF APPOINTMENT LETTER - WRIT PETITION - RES JUDICATA - EFFECT OF EARLIER JUDGMENT - ERRONEOUS DECISION - BINDING EFFECT - FIXATION OF SENIORITY - SERVICE BENEFITS - CAREER ADVANCEMENT SCHEME - ENTITLEMENT - DELAY IN GRANT OF BENEFITS - CONSEQUENTIAL BENEFITS - WRIT PETITION - DISPOSAL.
Fact of the Case:
The petitioner, a lecturer in Chemistry, was appointed on a leave vacancy at Nabadwip Vidyasagar College from 06.07.1981 to 17.07.1984. Subsequently, he was appointed as a regular lecturer in Vidyanagar College on 01.08.1984. The petitioner sought to include his service at Nabadwip Vidyasagar College for the purpose of pay fixation, pensionary benefits, and the Career Advancement Scheme. The Director of Public Instruction initially rejected the petitioner's request but later issued memos recognizing his service for pensionary benefits and qualifying service. However, the petitioner's pay fixation at Chakdah College, where he was currently working, was not done on the basis of his last pay drawn at Vidyanagar College, and he was denied the benefits of the Career Advancement Scheme due to a break in service between 18.07.1984 and 31.07.1984.
Finding of the Court:
The court held that the petitioner's initial appointment at Nabadwip Vidyasagar College, though not made on the recommendation of the West Bengal College Service Commission, was deemed to be regular service due to a previous judgment of the court in W.P. No. 494 of 1994. The court held that the break in service between 18.07.1984 and 31.07.1984, caused by the delay in issuing the appointment letter by Vidyanagar College, was not attributable to the petitioner's fault and could not be used to deny him the benefits of the Career Advancement Scheme. The court set aside the impugned memos and directed the authorities to grant the petitioner the benefits of the Career Advancement Scheme with effect from 27.07.1998, along with consequential benefits.
Issues: 1. Whether the petitioner's service at Nabadwip Vidyasagar College, though not initially recommended by the West Bengal College Service Commission, could be considered regular service due to a previous judgment of the court. 2. Whether the break in service between 18.07.1984 and 31.07.1984, caused by the delay in issuing the appointment letter by Vidyanagar College, could be attributed to the petitioner's fault and used to deny him the benefits of the Career Advancement Scheme.
Ratio Decidendi: 1. The principle of res judicata applies to both past and future litigation, and a decision, whether correct or erroneous, is binding on the parties in subsequent proceedings. (Satyadhyan Ghosal and Ors. v. Smt. Deorajin Debi and Anr., AIR 1960 SC 941) 2. Even an erroneous decision on a question of law operates as res judicata between the parties to it. (Mohanlal Goenka v. Benoy Kishna Mukherjee and Ors., AIR 1953 SC 65) 3. Conditions of service cannot be altered or modified to the prejudice of an employee by subsequent administrative instructions. ((1972) 4 SCC 765 (Ex-Major N.C. Singhal v. Director General, Armed Forces Medical Services, New Delhi and Anr.) and (1984) 3 SCC 281 (Ex-Capt. K.C. Arora and Anr. v. State of Haryana and Ors.)) 4. A final judgment cannot be set at naught by subsequent legislative enactment, far less any Government order or executive instruction. (S.R. Bhagwat and Ors. v. The State of Mysore reported in JT 1995(6) SC 444) 5. A break in service caused by administrative laches on the part of the concerned college authorities cannot be attributed to the employee's fault and used to deny them service benefits.
Final Decision: The writ petition was allowed. The impugned memos were set aside, and the petitioner was directed to be granted the benefits of the Career Advancement Scheme with effect from 27.07.1998, along with consequential benefits.
1. THE writ petitioner was appointed as a lecturer in Chemistry in Nabadwip Vidyasagar College on 06th July, 1981, on leave vacancy, and continued till 17th July, 1984. Subsequently, he was appointed as lecturer in Vidyanagar College as a lecturer in Chemistry on 01st August, 1984, on a regular basis in a permanent post, through the College Service Commission.
2. THE writ petitioner initially moved this court praying, inter alia, for benefit of his three years service in Nabadwip Vidyasagar College between 06th July, 1981 and 17th July, 1984. By an order dated 06th October, 1993, that writ petition was disposed of with a direction upon the Director of Public Instruction to consider the writ application and after hearing the petitioner pass a reasoned order in the matter within a time frame as stated in that order. Consequently, the Director of Public Instruction passed a reasoned order observing, inter alia, that the previous service of the writ petitioner as a lecturer in Nabadwip Vidyasagar College, Nadia, for the period between 06th July, 1981 and 17th July, 1984, would not be taken into account for the purpose of protection of the petitioner’s pay and/or for placing the petitioner in senior grade/selection grade scale/reader’s post and accordingly disposed of the matter. This order of the Director of public Instruction dated 29th December, 1993, was challenged by the writ petitioner in another writ proceeding, being W.P. No. 494 of 1994, which was disposed of by an order dated 05th November, 1997, whereby the order passed by the Director of Public Instruction dated 29th December, 1993, stood quashed.
3. ACCORDING to the writ petitioner, the order dated 05th November, 1997, passed in W.P. No. 494 of 1994, was accepted by the respondents and no appeal or review was preferred against the said order. In the meanwhile, alleging wilful and deliberate violation of the said order dated 05th November, 1997, the petitioner filed a contempt application. During pendency of the contempt application, the Director of Public Instruction, West Bengal, issued a memo dated 30th June, 1998, addressed to the Principal, Vidyanagar College, wherein it was stated that the petitioner’s past service as lecturer in Nabadwip Vidyasagar College could be considered for the purpose of pensionary benefits only.
4. SUBSEQUENTLY, by another memo dated 18th November, 1998, the Director of Public Instruction, West Bengal, wrote to the Principal, Vidyanagar College asking him to treat the earlier memo dated 30th June, 1998, as cancelled. On 19th February, 1999, when the contempt petition came up for final hearing, the Court took note of a memo issued by the Director of Public Instruction dated 18th June, 1998, whereby it was intimated that the service period of the writ petitioner, between 06th July, 1981 and 17th July, 1984, was taken note for the purpose of calculating the said period as “qualifying service”. The Court also observed that the contention of the writ petitioner for inclusion of the service benefit of “Career Advancement Scheme” need not be gone into, but, if the petitioner was found otherwise eligible, then the department was to take care of it giving benefits to him. It was further observed by the Court that the three years period which was directed to be noted for the purpose of “qualifying service” was to be included in the service book so that the petitioner was to get all service benefits at the time of retirement.
5. THE writ petitioner has referred to a memo dated 17th January, 1997, and stated that it could be clear therefrom that the period of service rendered prior to regular appointment should be counted for the purpose of retirement benefits, provided, there was no break in service for more than three months. It has also been stated by the writ petitioner that though his pay fixation at Vidyanagar College was made taking into account his three years service at Nabadwip Vidyasagar College in terms of the memo dated 18th June,
