ARDHENDU BIKASH BHATTACHARJEE Vs. UNION OF INDIA

JUDGEMENT

(1.) :- Facts: There was a dispute with regard to the age of the petitioner, which he sought to correct in 1995, by producing a Certificate issued by the Board of Education of Bangladesh correcting the date of birth in the original Matriculation Certificate, which the petitioner had produced in 1957, recording his date of birth as on 31st Dec., 1938. The respondents/authorities did not correct the age on the basis of such Certificate. The petitioner moved a writ petition. Ultimately, by an order dated 12th Sept., 2000 passed in W.P. No. 1655 of 1998, the respondents were restrained from, retiring the petitioner on superannuation on any date except on a date on calculation of his age treating the date of birth of the petitioner as 26th Jan., 1943 and Annexure-V dated 29th May, 1998 to the said writ petition was quashed. Admittedly, the petitioner was retired with effect from 1st Jan., 1997. He did not work on the basis thereof. However, the respondents had preferred an appeal against the said order dated 12th Sept., 2000. The Appeal Court, while directing filing of Paper Books and granting leave in terms of prayer (a), refused to pass any order of stay. In the circumstances, the petitioner was allowed to join in the post, in which he was working and he is being paid his salaries from the date of his joining and the period, during which he did not work, was treated as 'dies non'. The petitioner had moved an application being G.A. No. 993 of 2001 seeking to implement the order dated 12th Sept., 2000. By an order dated 26th March, 2001, the said application was dismissed as not maintainable. Now the petitioner has come up with this writ petition claiming the service benefits for the period from 1st Jan., 1997 including due promotions and other entitlements on the basis of continuation of service. Submission on behalf of the Petitioner :

(2.) Mr. Sarkar, learned Counsel for the petitioner, contends that on the interpretation of the order dated 12th Sept., 2000, there is no other alternative interpretation except that the petitioner could not be retired prior to a date calculated from 26th Jan., 1943. As such for all intent and purpose the petitioner shall be deemed to be in service and entitled to all service benefits since the Appeal Court has declined stay. The petitioner is entitled to get relief as prayed for. Submission on behalf of the Respondents:

(3.) Mr. Mazumder, learned Counsel for the respondents, on the other hand, points out that the order dated 12th Sept., 2000 is silent about the status of the period, during which the petitioner did not work. As such the petitioner cannot claim any benefit for the said period. According to him, if the Court remains silent in respect of a particular claim and if no clear and specific direction is given to the end, in that even, it is to be deemed that the relief, that could have been claimed by the petitioner, has since been refused and it will be hit by the principles of constructive res judicata. Secondly, he contends that this writ petition is, in fact, in the nature of execution of an order dated 12th Sept., 2000, passed by this Court. The writ jurisdiction cannot be utilised for the purpose of execution of an order passed by a Court. The remedy of the petitioner could have been through a proceeding under the provisions of the Contempt of Courts Act or Art. 215 of the Constitution of India, as the case may be. The writ petition cannot be maintained. The third point that has been raised by Mr. Mazumder, is to the extent, that the appeal having been pending, all these question would be subject to the result of the appeal and can be thrashed out in the appeal itself. As such this matter being sub- judice before the Appeal Court, this Court should refrain from exercising its jurisdiction in respect of a matter, which is subject to appeal and pending decision by the Division Bench. He also clarified that the stay that was refused was related to the question of resumption of duty by the petitioner, which was declined. By reason thereof, the petitioner was allowed to join. The period treated as 'dies non' by the respondent relates to a question, which is complicated and can be decided in the appeal itself. Any decision passed in this writ petition might be in conflict or be an encroachment in respect of matter, which is within the domain and jurisdiction of the Appeal Court. Reply on behalf of the Petitioner :