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PETITIONER: NAND KISHORE

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT21/09/1995

BENCH: PUNCHHI, M.M. BENCH: PUNCHHI, M.M. AHMADI A.M. (CJ)

CITATION:  1995 SCC  (6) 614        JT 1995 (7)    69  1995 SCALE  (5)582

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T Punchhi, J.      Whether the  plea  of  constructive  res  judicata  was rightly raised  against the  appellant,  in  the  facts  and circumstances of  this case,  is the  significant  question, which arises  for determination  in this  appeal by  special leave, against  the judgment  and decree  dated 13-8-1974 of the Punjab  and Haryana High Court at Chandigarh, in Regular First Appeal No.156 of 1965.      Supportive of  the abovesaid appeal is a highly belated special leave  petition, invited  by this Court on 6-12-1990 from the  appellant, against the judgment and order dated 5- 2-1962 of  the Punjab  High  Court  at  Chandigarh  in  Writ Application (Civil)  No.1061 of 1961, in circumstances which we will mention later.      These can  conveniently be  disposed  of  by  a  common order.      The facts  involved are  not in dispute. A brief resume thereof will  suffice. The  appellant, Nand  Kishore  joined service in  the erstwhile  Patiala State in May 1941. On the formation of  Pepsu State  he was taken as an Assistant with effect from  September 1,  1956. On the merger of Pepsu with the State  of Punjab,  he was  integrated as an Assistant in the Punjab  Civil Secretariat  at Chandigarh,  in  the  Food Distribution Branch.  Having completed  ten years qualifying service he  was compulsorily retired on January 6, 1961 from the service by an order in the following terms:      "ORDER OF THE GOVERNOR OF PUNJAB           Sanction  is   accorded  under  the      provisions of Rule 5.32(b) of the Punjab      Civil Services  Rules, Volume II, to the      compulsory  retirement  from  Government      Service of  Shri Nand Kishore, Assistant      Food Distribution  Branch, Punjab  Civil      Secretariat with immediate effect.

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    2.   He  will   be  entitled   to   such      proportionate  pension   and  death-cum-      retirement gratuity as may be admissible      under the rules.      Chandigarh      Dated the sd/-      6th January, 1961   E.N. Mangat Rai,                      Chief Secretary to Govt.                           Punjab"      The representations  of the appellant to the Government and  memorial   to  the  Governor  brought  him  no  relief. Thereafter  he   moved  the   Punjab  High   Court  in  Writ Application No.1061  of 1961  praying for  quashing  of  the order dated  January 6,  1961 retiring him compulsorily. The writ petition  came up  for hearing  before a division bench consisting of Tek Chand and I.D. Dua, JJ. The impugned order of compulsory  retirement was challenged by him on a variety of grounds  inter-alia urging  that he  was not  governed by Rule 5.32  of the  Punjab Civil Service Rules, Volume II and that rather  he was  governed by  the new Pension Rules. All the pleas  of the  appellant were repelled. It was factually noted by  the Bench  that Rule  5.32  of  the  Punjab  Civil Service Rules,  Volume II clearly contemplated the existence of power  in the  Government to  retire a  permanent servant compulsorily after  10 years of qualifying service. The writ petition was  dismissed on  February 2,  1962. It  is  worth bearing in  mind that  the appellant  did not  at that stage question the validity of Rule 5.32 and the High Court too on its own  did not  engage itself  to the question. The matter rested there.      The scenario  changed thereafter.  In Moti  Ram Deka  & ors. v.  N.E. Frontier Railway & ors. [AIR 1964 SC 600] this Court was  called upon  to consider  the validity  of  Rules 148(3) of  the Railway  Rules. These  Rules  authorised  the termination of  service of  the railway  employee by serving him with  a notice  for a  requisite period,  or paying  him salary for  the said  period, in  lieu of notice. This Court held that  a person who substantively holds a permanent post had  a   right  to   continue  in  service  subject  to  two exceptions, i.e.,  (i) superannuation;  and (ii)  compulsory retirement. The  second exception was affirmed by this Court with the  reservation that  Rules of  compulsory  retirement would  be   valid  if   having  fixed   a  proper   age   of superannuation,  they  permit  compulsory  retirement  after putting in  a minimum period of service. This Court observed that if the compulsory retirement permitted the authority to retire a public servant at a very early stage of his career, the question  whether such  a Rule would be valid might have to be considered on a proper occasion.      Encouraged by the decision in Moti Ram Deka’s case, the appellant on February 24, 1964, filed a suit in the Court of Senior Subordinate Judge, Patiala for a declaration that the order of compulsory retirement dated January 6, 1961, passed as it was under Rule 5.32 of the Punjab Civil Service Rules, Volume II,  after  ten  years  of  qualifying  service,  was invalid, and  that he should be treated to have continued in the service  of the  Punjab  Government,  enjoying  all  the necessary rights  and benefits  thereof. He also claimed the additional relief regarding payment of pay etc.      Shortly after  the institution of the suit, on April 1, 1964, this  Court in  Gurdev Singh  Sidhu v. State of Punjab and Anr.  [1964(7) SCR 587] got the opportunity to apply the principles evolved  in Moti  Ram Deka’s case to a compulsory retirement case  under the  second proviso to Article 9.1 of the Pepsu  Service Regulations  as amended by a notification

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dated January  19, 1960.  The  said  proviso  empowered  the Government  retaining   an  absolute  right  to  retire  any Government  servant   after  he   had  completed   10  years qualifying  service   without  giving  any  reason  and  the government servant  any right  to claim special compensation on this  account. This right however was not to be exercised by the  Government except  when it was in public interest to dispense with further services of a Government servant, such as on  account of  inefficiency, dishonesty,  corruption  or infamous conduct.  This Court  took the view that it was not permissible for  a State while reserving to itself the power of compulsory  retirement by  framing  Rules  prescribing  a proper age  of superannuation to frame another one giving it the  power  to  compulsory  retire  a  permanent  government servant at  the end  of ten  years service,  for  that  Rule cannot fall outside Article 311(2) of the Constitution.      Undisputably  the  Pepsu  Regulation  in  question  was identical to  Rule 5.32  of the  Punjab Civil Service Rules, Volume II.  Since the suit of the appellant was based on the law as  declared by  this Court  in Moti Ram Deka’s case and later on Gurdev Singh Sidhu’s case, the State of Punjab took up the  plea in its written statement that the suit, because of the  earlier decision in the writ application, was barred by principles  of res-judicata. The appellant reacted to the defence by  stating that  the prevailing  view of the Punjab High Court  was that  a judgment  in a writ petition did not operate as res-judicata and so he should get a decree in his favour. The  Trial Court thus on the issue of the suit being barred by principles of res-judicata or not, ruled in favour of the appellant on the basis of the view then prevailing in the High  Court. On the other issue, whether the order dated January 6,  1961 of  compulsory retirement was illegal, void etc. the  Court ruled  that since  Article 9.1  of the Pepsu Regulations had  been struck  down in  Gurdev Singh  Sidhu’s case and  since Rule 5.32 of the Punjab Civil Service Rules, Volume II was identical in nature, the latter Rule therefore was  invalid   and  consequently   the  impugned   order  of compulsory retirement  passed  thereunder  was  illegal  and invalid.  As   a  necessary  consequence  the  suit  of  the appellant was  decreed. He  was granted the declaration that his compulsory  retirement was  illegal and  consequently  a decree for Rs.11321.75 as arrears of salary etc. with costs.      The State  of Punjab  went up  in Regular  First Appeal before the Punjab and Haryana High Court raising one and the only one  point that the suit of the appellant was barred by principles of  res-judicata, and  consequently the  order of compulsory retirement  of the  appellant could not be upset. The matter  was placed before a division bench consisting of S.S. Sandhawalia  and M.R. Sharma, JJ. who after considering the matter,  on the basis of the case law by then developed, referred the  following question  of law  for decision  by a Full Bench:      "Whether the  decision of the High Court      declining to issue a writ of mandamus on      the assumption that a statutory rule was      valid, operates  as  res-judicata  in  a      subsequent  suit  instituted  after  the      statutory  rule  had  been  declared  as      unconstitutional by the Supreme Court of      India"      In the  Full Bench constituted, the same learned Judges were members,  the added Presiding Judge being B.R. Tuli, J. The learned  Judges of the Full Bench could not agree to the answer and thus they differed. S.S. Sandhawalia, J. answered the question formulated in the affirmative and B.R. Tuli, J.

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agreed with  him.  M.R.  Sharma,  J.  however  answered  the question in  the negative.  The decision  was made on May 8, 1974 per  majority and  the question  was  answered  in  the affirmative. The case was ordered to go back to the Division Bench for  decision. Then  the Division  Bench consisting of S.S. Sandhawalia  and Manmohan  Singh Gujral,  JJ. on August 13, 1974 allowed the appeal of the State of Punjab following the dictum  of the  Full Bench.  Aggrieved against  the said decision, the  appellant sought  leave and  so Civil  Appeal No.632 of  1975 is  before us  to challenge  principally the view of the Full Bench of the High Court.      The aforesaid  appeal appears  to have  been heard  for quite sometime  on 6-12-1990  by a  three-member  Bench,  as would appear from the Court Proceedings extracted below. The bench was  goaded to  invite a special leave petition by the appellant against  the order  dated 5-2-1962  of the  Punjab High Court  in Writ  Application No.1061 of 1961 accompanied by an  appropriate application for condonation of delay. The Court Proceedings dated 6-12-1990 read thus:      "We have  heard  this  appeal  for  some      time. In  the meantime  we think it will      be better  if the  petitioner is advised      to file  a special  leave petition  from      the  order   of  the  High  Court  dated      5.2.1962  in  writ  petition  No.1061/61      with  an   appropriate  application  for      condonation of  delay. If  that petition      were to be accepted then perhaps many of      the points  which  are  raised  in  this      civil appeal  may not be necessary to be      gone into.  In this  view of the matter,      we adjourn this appeal for a period of 8      weeks.  Counsel   should  file  the  SLP      within three  weeks from today and serve      a copy  on the  counsel for the State of      Punjab. The  counsel will so arrange the      papers that  when the  matter is listed,      both the  civil appeal and SLP are ready      for final hearing."      The step of the three-member Bench so taken reveals its mind as  reflected in the above proceedings. Their Lordships wanted to  do substantial  justice. It was thought better to advise the  petitioner to  file a special leave petition. As we view  this order,  having invited  the petitioner to file the special  leave petition,  it is  no longer  advisable or appropriate for  us to  retrace back the step put forward by the three-member Bench. It is significant to recall that the writ application  was dismissed  on February 5, 1962 and the moment Moti  Ram Deka’s  case appeared  on  the  scene,  the appellant on  February 24,  1964, within limitation, brought forward his  suit which  got strengthened  by Gurdev Singh’s case appearing  within a couple of months of its filing. The appellant-special  leave   petitioner  was   thus   bonafide pursuing an appropriate remedy for all these years. In these circumstances,  we   think  that  an  appropriate  case  for condonation of delay of the intervening period has been made out. We,  therefore, allow  CC 11644/91 and condone the long durated delay  in these  exceptional circumstances. On doing so, we  grant leave  to appeal.  The appeal thus arising and the Civil  Appeal No.632  of 1975  may now  be  disposed  of together.      As said  before it  has never  been disputed  that Rule 5.32 of  the  Punjab  Civil  Service  Rules,  Volume  II  is identical in text, terms and purport with the second proviso to Article  9.1 of  the Pepsu  Service  Regulations.  Gurdev

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Singh’s case thus would mandate us to hold that Rule 5.32 of the Punjab  Civil Service  Rules, Volume  II should meet the same fate,  holding that  the Rule be struck down as invalid since it  contravenes Article  311(2) of  the  Constitution. Holding  so  the  order  of  compulsory  retirement  of  the appellant dated  January 6,  1961 is  struck  down  and  the appellant is  held entitled  to restoration of the decree of the Trial Court.      Putting aside  for the moment the course above-adopted, let us  otherwise examine  the view of the Hon’ble Judges of the Full  Bench of  Punjab and  Haryana High  Court  on  the question formulated.  It is  well  known  that  the  general principle  underlying   the  doctrine   of  res-judicate  is ultimately based  on considerations  of public  policy.  One important  consideration   of  public  policy  is  that  the decisions pronounced  by courts  of  competent  jurisdiction should be  final, unless  they are  modified or  reversed by appellate authorities,  and the  other principle  is that no one should be made to face the same kind of litigation twice over,  because   such  a   process  would   be  contrary  to considerations of  fairplay and  justice.  These  principles stand enunciated in Daryao and others v. The State of U.P. & Others [1962(1)  SCR 574].  This court  in  The  Amalgamated Coalfields Ltd.  & Anr.  v. The  Janapada Sabha,  Chhindwara [1963 (Supp.)(1)  SCR 172]  opined  that  constructive  res- judicata was  an artificial  form of res-judicata enacted by Section 11  of the Code of Civil Procedure and it should not be generally  applied to  writ petitions filed under Article 32 and  Article 226  of the Constitution. The court then had the occasion  to point  out that  when a  matter related  to taxation and  assessment levied  for a  different year,  the doctrine of res-judicata was itself inapplicable. This Court still spelled  out the  binding effect  of a  decision  made under Article 141 of the Constitution as follows:      "If for  instance,  the  validity  of  a      taxing  statute   is  impeached   by  an      assessee who is called upon to pay a tax      for a  particular year and the matter is      taken  to  the  High  Court  or  brought      before this  Court and  it is  held that      the taxing  statute is valid, it may not      be easy  to hold  that the  decision  on      this basic  and material issue would not      operate  as  res  judicata  against  the      assessee for  a subsequent  year.  That,      however, is  a matter  on  which  it  is      unnecessary  for   us  to   pronounce  a      definite opinion in the present case. In      this connection, it would be relevant to      add that  even if  a direct  decision of      this Court  on a  point of  law does not      operate as res judicata in a dispute for      a  subsequent   year,  such  a  decision      would, under  Art.141,  have  a  binding      effect not  only on  the parties  to it,      but also  on all  courts in  India as  a      precedent in  which the  law is declared      by this  Court. The  question about  the      applicability of  res judicata to such a      decision  would  thus  be  a  matter  of      merely academic significance."      Gajendragadkar, C.J.  who authored  the judgment in the above-quoted case of The Amalgamated Coal Fields Ltd’s case, later in  Devilal Modi v. Sales Tax Officer, Ratlam & Others [1965(1) SCR 636] yet applied the principles of res judicata

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holding that  if the  doctrine of  constructive res judicata was not  applied to  writ proceedings, it would be open to a party to  take one  proceeding after  another and  urge  new grounds every  time, which was plainly inconsistent with the considerations of  public policy. This decision was followed in State of U.P. v. Nawab Hussain [1977(3) SCR 428].      On another facet of res judicata, this Court in Mathura Prasad Bajoo  Jaiswal &  Ors. v.  Dossibai  N.B.  Jeejeebhoy [1970(3) SCR 830] had the occasion to observe as under:      "A pure  question of  law  unrelated  to      facts which give rise to a right, cannot      be   deemed    to   be   a   matter   in      issue.......A decision  on an  issue  of      law will be res judicata in a subsequent      proceeding between  the same parties, if      the cause  of action  of the  subsequent      proceeding  be   the  same   as  in  the      previous proceedings,  but not  when the      cause of  action is  different, nor when      the law  has since  the earlier decision      been altered  by a  competent authority,      nor when  the decision  relates  to  the      jurisdiction of  the Court  to  try  the      earlier proceeding, nor when the earlier      decision declares  valid  a  transaction      which is  prohibited by  law." (emphasis      supplied) When this  Court strikes  down a statutory provision holding it to be unconstitutional, it derives its authority to do so under the  Constitution. Under Article 141, the law declared by it is of a binding character and as commandful as the law made by  a legislative body or an authorised delegee of such body. The  Court is  thus a "competent authority" within the scope of  the words  above emphasised. On the other hand the majority view expressed in the Full Bench decision that "the Courts of  record including the Supreme Court only interpret the law  as it  stands but do not purport to amend the same. Their Lordship’s  decisions declare  the existing law but do not enact any fresh law", is not in keeping with the plenary function of  the Supreme  Court under  Article  141  of  the Constitution, for the Court is not merely the interpreter of the law  as existing  but much  beyond that.  The Court as a wing of  the State  is by itself a source of law. The law is what the Court says it is. Patently the High Court fell into an error in its appreciation of the role of this Court.      Bearing the  above principles  in mind what at best was said by  the State  of Punjab  was that failure to raise the constitutionality  of   Rule  5.32   in  the  writ  petition preferred by  the appellant would imply, on the principle of "might and ought", that the opportunity of controverting the matter had been lost and that it should on the principles of constructive res  judicata be taken that the matter had been actually  raised  and  adversely  decided.  But  in  Forward Construction Co.  and Others.  v. Prabhat  Mandal and Others [1986(1) SCC  100], this Court has taken the view that where a matter has been constructive in issue it cannot be said to have been  actually heard  and decided.  It  could  only  be deemed to have been heard and decided.      It would  then have  to be  seen the  twin play  of the notion of  deemed constitutionality  and bar of constructive res judicata.  Raising the  constitutionality of a provision of law,  as it  appears to us, stands on a different footing than raising  a matter  on a  bare question of law, or mixed question of law and fact, or on fact. There is a presumption always in  favour of  constitutionality of the law. The onus

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is heavy  on  the  person  challenging  it.  It  is  by  the discharge of  onus that the presumption of constitutionality can be crossed over. When a person enters a Court for relief and does  not challenge  the constitutionality  of  the  law governing the  matters directly  and substantially in issue, it only means and implies that he goes by the presumption of constitutionality. He  cannot on  this stance  be deemed  to have  raised  the  question  of  constitutionality  and  the question of  constitutionality to  have been decided against him and  such matter to have been directly and substantially in issue.  The constitutionality  of the  Rule  relating  to compulsory  retirement   cannot  be   deemed  to  have  been questioned  and   decided  against   the  appellant  on  the principles of  "might and  ought" or  it being "directly and substantially in  issue". It  cannot be taken as a rule that one of  the pleas, either by the plaintiff or the defendant, in every suit or proceeding, must of necessity relate to the constitutionality of  the law  on which the cause is founded or defended in order to obviate the plea of constructive res judicata being  raised in  an eventuality. It cannot also be taken as  a rule  that constitutionality of the law involved is a  matter directly and substantially in issue, and if not raised  renders   a  mute   decision  in   favour   of   its constitutionality  barring   the  plea  being  raised  in  a subsequent suit.  If there  be read such a rule in all civil litigation, it  would, to our mind, be against public policy vexing  and   burdening  the   courts   to   go   into   the constitutionality of  provisions of  law in every case. When under the  impugned rule,  the Government  assumed to itself the power  to compulsorily  retire  a  permanent  government servant after  ten years  of qualifying service, the court’s act of  striking that  Rule as  unconstitutional is  the law which  appeared   on  the  scene,  not  only  to  break  the presumption of  constitutionality but to declare it void. In a sense  the offending  provision was never there and in the other it was henceforth not there. In either event, it would be within  the ambit  of the  emphasised  words  in  Mathura Prasad’s case.      It thus  seems to us that the view of the Full Bench of the High  Court was  erroneous on  first principles.  In the question referred  to the Full Bench, no assumption could be made that a statutory Rule was valid when the court declined to issue  a writ  of mandamus,  or its  being treated as res judicata for  the purpose  of the  subsequent suit.  Mathura Prasad’s case  did not merely stop at dealing with decisions relating to the jurisdiction of the Court trying the earlier proceeding, but  had further gone to say that the principles of constructive  res judicata  would not  apply when the law has since  the earlier  decision been altered by a competent authority. And  in the  context, this  Court is  a competent authority to  alter the  law  when  it  declares  it  to  be unconstitutional. Alteration  does not limit alone to change therein but is inclusive of the power of striking down. Thus even if  we  were  to  decline  the  belated  special  leave petition of  the appellant against the judgment and order of the High  Court dated  5-2-1962 passed  in Writ  Application No.1061 of  1962, the appellant would be entitled to succeed in having  the impugned  order of  the High  Court upset  in Civil Appeal  No.632 of  1975, for the suit of the appellant could not,  in any event, be held to be barred by principles of res judicata.      Accordingly  we   would  compositely   allow  both  the appeals, set  aside the  respective judgments  and orders of the  High   Court  holding  that  the  order  of  compulsory retirement of  the appellant  under Rule  5.32 was  void and

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inoperative and  the appellant  entitled to  the  meaningful relief of  arrears etc. as claimed by him in the plaint, and in accordance  with the  judgment of  the Trial  Court.  The appellant shall  get his  costs  throughout  only  in  Civil Appeal No.632 of 1985.