Hon'ble Alok Mathur,J.
(Delivered by Hon'ble Alok Mathur, J.)
1. Heard learned Additional Chief Standing Counsel for the petitioners and Sri Vijyant Nigam, learned counsel appearing for respondent no. 1.
2. The state of U.P has preferred the instant writ petition assailing the order of U.P Public Services Tribunal, Lucknow (hereinafter referred to as "the Tribunal"), dated 22/09/2017, whereby the Review Petition No. 70 of 2017, seeking review of the Tribunal's order dated 04/11/1992 has been dismissed on the ground of delay. The present writ petition has also been preferred after 2 years of passing of the order by the Tribunal.
3. After filing of the writ petition, the petitioners were permitted to file an application for condonation of delay in filing the writ petition and the delay was condoned by order dated 13/11/2018.
4. The private respondent was appointed on temporary basis on the post of Junior Clerk/Assistant on 16/11/1984. His services were terminated vide order dated 31/05/1985, against which he preferred a claim petition before the Tribunal being Claim Petition No.352F/III/1987. The said claim petition was allowed by means of judgment and order dated 04/11/1992. The Tribunal in its order recorded that the appointing authority of the respondent no. 1 was the District Magistrate /District Election Officer, while services were terminated by Deputy District Election Officer who was lower in rank than the appointing authority, and therefore, the termination order was held to be illegal and without jurisdiction and was accordingly quashed, giving the petitioner all the consequential benefits of continuity in service as well as salary.
5. The aforesaid judgement and order of the Tribunal dated 04/11/1992 was unsuccessfully challenged before the High Court, by means of Writ Petition no. 1515 (SB) of 1995, which was dismissed vide judgement dated 26/10/ 2007.
6. After the claim petition of the respondent was allowed, he had preferred Contempt Petition No. 221/1993, in order to get the order of the Tribunal dated 04/11/1992, implemented.
7. The petitioner approached the Hon'ble Supreme Court by filing a Special Leave Petition No.8270 of 2008, wherein the Apex Court by interim order dated 25/04/2011, clarified that it had not stayed the impugned judgement and directed the petitioners to consider the case of the respondent no. 1 favourably. On 22/01/2013 the Apex Court ensured the compliance of the order of the Tribunal, and observed that in case compliance of the impugned order has not been made by the petitioners, the same shall be made within 4 weeks from the date of judgment, as a consequence whereof the petitioner was reinstated by means of order dated 02/03/2013 on the post of Junior Assistant in the pay scale of Rs.5200-20200 in District Kasganj.
8. The special leave petition was finally heard and dismissed by means of order dated 23/07/2013, and it was observed by the Hon'ble Apex Court as under "we make it clear that the present order shall not come in the way of the competent authority to pass any order in accordance with law but before passing any such order, it shall take into consideration the fact that the respondent would be superannuated from service on attaining the age of 60 years in near future."
9. The private respondent retired from service after attaining the age of superannuation on 31/03/2016, and the consequential order for payment of post-retiral dues was passed on 26/07/2016 and 08/08/2016.
10. The respondent no. 1 has filed a counter affidavit, bringing on record the detailed order dated 02/05/2018, passed in the contempt petition which narrates all the developments of the case and orders passed therein. It records that that the petitioner/respondent no. 1 has been paid the arrears of salary, allowances and other benefits (including post-retiral benefits) but the benefit of pension has not been granted to him, as according to the petitioners, persons appointed subsequent to 07/04/2005 are not entitled to the benefit of UP Retirement Benefits Rules, 1961 and they have considered the petitioner to be appointed on 04/03/2013, and hence denied the benefit of pension. The Tribunal has recorded that the aforesaid action of the petitioners is clearly in the teeth of the judgement and order passed by the Tribunal as well as the Hon'ble Supreme Court. The Tribunal has further rejected the compliance report dated 28/02/2018, as well as the order dated 21/02/2018 and further directed the petitioners to file a compliance report in terms of its order dated 04/11/1992.
11. We have heard the counsel for the parties and perused the record .
12. The genesis of the entire controversy is the order of dismissal of the respondent no. 1 dated 29th May 1985 passed by Deputy District Election Officer, which was held to be illegal and arbitrary, as the private respondent was appointed by the District Magistrate/District Election Officer, and in view of the settled position of law, the services could not have been terminated by an authority lower in rank than the appointing authority. On this ground the Tribunal allowed the claim petition on 04/11/1992. The State Government challenged the aforesaid judgement and order before the High Court in Writ Petition No. 1515 (SB) of 1995 which was dismissed on 26/10/2007. The special leave petition filed by the petitioners before the Hon'ble Supreme Court against the judgement and order dated 26/10/2007 was dismissed by means of order dated 23/07/2013. The operative portion of the said judgement is quoted here in below:-
"Having regard to the fact that the services of the respondent were terminated by lower authorities and the appointing authority and on hearing the learned counsel appearing for the parties, we are not inclined to interfere with the impugned judgement passed by the High Court.
We make it clear that the present order shall not come in the way of the competent authority to pass any order in accordance with law but before passing any such order, it shall take into consideration the fact that the respondent would be superannuated from service on attaining the age of 60 years in the near future.
The special leave petition is dismissed the aforesaid observations."
13. The petitioners preferred a review petition before the Tribunal on 19/07/2017, on the ground that it has come to the knowledge that the respondent no. 1 had worked in various departments in the State Government and was also paid salary, and therefore, this amounts to material concealment of fact. They submitted that had the aforesaid facts been brought to the knowledge of the Tribunal, it could have given an occasion for the Tribunal to consider these facts before passing of the final judgment and therefore prayed before the Tribunal for allowing the review petition and to rehear the matter after setting aside the judgement dated 14/11/1992.
14. Along with the review petition the petitioners have also moved an application for condonation of delay wherein they have indicated that the new facts came to their knowledge only on 05/05/2015 and the decision for filing a review petition was taken by the legal department on 17/7/2017, and thereafter, the review petition has been presented. No further details have been stated in the said affidavit for condonation of delay of nearly 15 years.
15. The Tribunal by means of the impugned judgement and order dated 22/09/2017, rejected the review application of petitioners after examining the conditions in which the delay application was filed. It has been held that the petitioners have continuously denied the respondent no. 1 the benefit of the Tribunal's order dated 04/11/1992, despite the fact that the Writ Petition No. 1515/1995 was dismissed on 20/10/2007 and thereafter the SLP No. 8720/2008 was dismissed by the Hon'ble Supreme Court on 22/01/2013. Even after one and half years of passing of the order of the Hon'ble Supreme Court, the order was complied on 21/04/2015, by asking the respondent no. 1 regarding details of his employment in the intervening period. The reply was filed by the respondent no. 1 on 05/05/2015, but it took nearly 2 years to the petitioners file review petition for the Tribunal. After considering the entire facts, the Tribunal has held that the delay cannot be treated as bona fide and therefore did not find any justification to condone the delay, thereby dismissed the review petition as not maintainable.
16. The correctness of the order of the Tribunal has been questioned by the petitioners. A perusal of the writ petition would indicate that after dismissal of the special leave petition, the respondent no. 1 proceeded to implement Tribunal's order dated 04/11/1992 in the contempt petition in the year 1993, which remained pending since then due to its orders being challenged in the higher Courts. In the contempt proceedings the petitioners filed a compliance order dated 25/05/2015 whereby they had rejected the representation of the respondent dated 01/10/2013. The Tribunal by order dated 20/03/2017, rejected the order dated 25/05/2015, and yet again an order for compliance was passed by the petitioners on 24/05/2017, which was not to the satisfaction of the Tribunal, and the Chief Election Officer was directed to comply with the order or appear in person. Again an order purporting to be a compliance report dated 22.02.2018 was produced before the Tribunal, whereby it was stated that the respondent no. 1 has been given the salary, allowances and other post-retiral benefits, but has rightly been denied pension, which was rejected by the Tribunal vide its order dated 09/04/2018.
17. It is in the aforesaid circumstances that the petitioners decided to file a review petition before the Tribunal. Needless to say that the order of the Tribunal has been upheld right up to the Hon'ble Supreme Court, and the petitioners were duty bound to comply the judgment and order of the Tribunal dated 04/11/1992.
18. While dismissing the special leave petition of the petitioners, the Hon'ble Supreme Court vide judgment dated 23/07/2013, kept it open for the competent authority to pass any order in accordance with law. It is also admitted that no order was passed subsequently by the competent authority terminating the services of the petitioner, and the petitioners had allowed the respondent no. 1 to join duty on 04/03/2013, in pursuance to the specific directions of the Hon'ble Supreme Court dated 02/03/2013.
19. The questions which arise for determination of the controversy involved in the case in hand are, firstly, whether, the delay in filing of the review petition was bona fide, and whether the intervening circumstances as narrated by the petitioner in the review petition, as well as in the writ petition before us would have any bearing on the judgement dated 04/11/1992 passed by the tribunal? and secondly, was the review petition preferred by the State Government before the Tribunal maintainable in light of the fact that the Special Leave Petition preferred by them had already been dismissed by the Hon'ble Supreme Court?
20. The claim petition preferred by the respondent no. 1 in 1985 was finally allowed on 04/11/1992, and the termination order was set aside. The private respondent was not allowed to join in pursuance to the aforesaid judgement and order, as the order of the Tribunal was subjected to challenge before the High Court and further before the Hon'ble Supreme Court. The Hon'ble Supreme Court had to pass a specific order on 23/07/2013 for reinstatement of the private respondent, in pursuance to which he was allowed by the petitioners to join on 04/03/2013. In the aforesaid circumstances the Tribunal has rightly recorded that "it took nearly one and half years for the state to show an inclination to implement the final order when it issued a letter to the original petitioner on 2/04/2015 asking him details of employment in the intervening period. Reply of the letter was received on 05/05/2015 but it again took more than 2 years to file the current review petition." We have perused the application for condonation of delay filed before the Tribunal, and are satisfied that no explanation has been given except the fact that the new facts came to their knowledge on 05/05/2015. It has also been stated that the legal opinion was obtained on 17/07/2017, granting permission to file the review petition. No attempt has been made to explain the delay for the period from 05/05/2015 to 17/07/2017, i.e. more than 2 years.
21. The proof of sufficient cause is a condition precedent for excise of section for condonation of delay. What counts is not the length of the delay but the sufficiency of cause, and shortness of the delay is one of the circumstances to be taken into account in using the discretion. The expression "sufficient cause" must receive a liberal construction so as to advance substantial justice and generally delays in preparing appeal/review are required to be condoned in the interest of Justice, where there is no gross negligence or deliberate inaction or lack of bona fide is imputable to the party seeking condonation of delay.
22. The law of limitation is, no doubt, the same for private citizens as for Government authorities, who like any other litigant must take responsibility for the acts, omissions of its officers. In the present case, the review petition was to be preferred within a period of 30 days, but was in fact filed after more than 15 years, the cause shown was clearly not sufficient, coupled with the fact that there was every attempt not to comply with the final judgement and order of the Tribunal, in which the Tribunal has rightly recorded the finding about lack of bona fide on part of the petitioners.
23. We have also examined the facts regarding gainful employment of the respondent no. 1 in other departments of the State Government and would like to observe that, subsequent facts are not related to the competence of the authority, who terminated the services of the petitioner and therefore, would not alter the validity of the order of termination dated 29/05/1985, and even on merits the review petition was liable to be dismissed. Needless to say, the order of the Tribunal dated 04/11/1992 was upheld right up to the Hon'ble Supreme Court, and therefore the reasons stated in the review petition preferred after 15 years, did not disclose any reason for any interference in the settled proposition, with regard to the validity of the termination order, or the consequential relief granted to the respondent no. 1.
24. Rule 17 of the U.P Public Service Tribunal (Procedure) Rules, 1992 provides for review and is reads as follows:-
"17. Review Petition-(1) No petition for review shall be entertained unless it is filed within thirty days from the date of the order of which the review is so sought.
(2) A review petition shall ordinarily be heard by the same Bench which is passed the order, unless, for reasons to be recorded in writing, the Chairman directs that it be heard by any other Bench.
(3) Where a petition for review of the judgment or order has been disposed of, no further petition for further review shall lie."
25. In the case of State of Uttar Pradesh and another vs Amar Nath Yadav (2014) 2 SCC 422, the Hon'ble Supreme Court has considered the reason given by the State Government attributing the delay in moving a file from one department/officer to another, and has held as under :-
"2. This Court in Postmaster General v. Living Media India Ltd. [(2012) 3 SCC 563 : (2012) 2 SCC (Civ) 327 : (2012) 2 SCC (Cri) 580 : (2012) 1 SCC (L&S) 649] has deprecated such practices on the part of the government authorities/departments in the following words: (SCC pp. 573-74, paras 27-30) "27. It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us.
28. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bona fides, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody, including the Government.
29. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bona fide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for the government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few."
26. In the light of aforesaid factual matrix and settled legal position, the Tribunal has rightly considered all the aspects of the matter and concluded that the State has continuously denied the respondent no. 1 the benefit of the Tribunal's order dated 04.11.1992 and even the subsequent steps taken by the State clearly indicate considered and definite reluctance on the part of the petitioners to grant respondent no. 1, who is a Class III employee, the benefits of the Tribunal's order, and therefore, the delay cannot be treated as bonafide, and hence, there is no justification to condone the delay.
27. The 2nd question which arises for our consideration is whether the State Government could have preferred a review petition before the Tribunal after the order of the Tribunal dated 04/11/1992 was upheld by the High Court vide order dated 26/10/2007, and again, by the Apex Court when the special leave petition was dismissed on 23/07/2013. It is relevant to mention that the special leave petition was dismissed not in a summary manner but after recording reasons, and therefore in the said circumstances the order of the Tribunal would merge in the judgement of the Hon'ble Supreme Court dated 23/07/2013. The action of the State Government in moving the review petition before the Tribunal clearly amounts to abuse of process of law, and an attempt to disregard the judgments of the High Court as well as the Supreme Court.
28. In the case of Kunhayammed v. State of Kerala, (2000) 6 SCC 359, a three-Judge Bench of the Hon'ble Supreme Court considered the aforesaid aspect and held as under:-
"44. To sum up, our conclusions are:
(ii) The jurisdiction conferred by Article 136 of the Constitution is divisible into two stages. The first stage is upto the disposal of prayer for special leave to file an appeal. The second stage commences if and when the leave to appeal is granted and the special leave petition is converted into an appeal.
(iii) The doctrine of merger is not a doctrine of universal or unlimited application. It will depend on the nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or capable of being laid shall be determinative of the applicability of merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Under Article 136 of the Constitution the Supreme Court may reverse, modify or affirm the judgment-decree or order appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiction disposing of petition for special leave to appeal. The doctrine of merger can therefore be applied to the former and not to the latter.
(iv) An order refusing special leave to appeal may be a non-speaking order or a speaking one. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed.
(v) If the order refusing leave to appeal is a speaking order, i.e., gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the Apex Court of the country. But, this does not amount to saying that the order of the court, tribunal or authority below has stood merged in the order of the Supreme Court rejecting the special leave petition or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties.
(vi) Once leave to appeal has been granted and appellate jurisdiction of Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation.
(vii) On an appeal having been preferred or a petition seeking leave to appeal having been converted into an appeal before the Supreme Court the jurisdiction of High Court to entertain a review petition is lost thereafter as provided by sub-rule (1) of Rule 1 of Order 47 CPC."
29. Further the above law was restated in the case of Meghmala v. G. Narasimha Reddy, (2010) 8 SCC 383, wherein the Apex Court held as under :
"24. In Kumaran Silks Trade (P) Ltd. (2) v. Devendra [(2006) 8 SCC 555 : AIR 2007 SC 1185] this Court held as under: (SCC pp. 558-59, para 9) "9. ... As a matter of fact, at the earlier stage this Court did not consider the question whether one of the appeals against the order dismissing the review petition on merits was maintainable. At best the order of remand and the decision in Kunhayammed v. State of Kerala [(2000) 6 SCC 359 : AIR 2000 SC 2587] would enable the petitioner to get over the ratio of the three-Judge Bench decision in Abbai Maligai Partnership Firm v. K. Santhakumaran [(1998) 7 SCC 386 : AIR 1999 SC 1486] that the seeking of a review after the petition for special leave to appeal was dismissed without reserving any liberty in the petitioner was an abuse of process."
25. Thus, the law on the issue stands crystallised to the effect that in case a litigant files a review petition before filing the special leave petition before this Court and it remains pending till the special leave petition stands dismissed, the review petition deserves to be considered. In case it is filed subsequent to dismissal of the special leave petition, the process of filing review application amounts to abuse of process of the court.
26. In view of the above, we are of the considered opinion that filing of such a review application by the respondents at a belated stage amounts to abuse of process of the court and such an application is not maintainable. Thus, the High Court ought not to have entertained the writ petition against the order of dismissal of the review application by the Special Court and the order of the High Court to that extent is liable to be set aside."
30. In light of the law laid down by the Hon'ble Supreme Court and applying the ratio to the facts of the present case, we can safely conclude that filing of the review petition by the State Government, after lapse of more than 15 years, is nothing but an abuse of process of the law.
31. In the light of discussion made above, we affirm the finding of the Tribunal that the State Government did not move the aforesaid review petition in a bona fide manner, especially after the dismissal of the Special Leave Petition, whereby the Apex Court upheld the order of the Tribunal dated 04/11/1992. The judgment of the Tribunal merged with the judgment of the Hon'ble Supreme Court, and therefore, there was no occasion for the State to move an application for review of the judgment and order of the Tribunal, as the said judgment had already been affirmed by the highest Court of the country.
32. The writ petition is accordingly dismissed with cost of Rs. 75,000/- which shall be paid by the petitioners to the respondent no. 1 within a period of one month from today. The judgment of the Tribunal should be implemented in letter and spirit within the same period.
Order Date :- 24.01.2019 A. Verma