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Lal Mohar Ram v. Union Of India & Others - WRIT - A No. 35869 of 2001 [2005] RD-AH 5014 (27 October 2005)


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Civil Misc. Writ Petition No. 35869 of 2001

Lal Mohar Ram


The Union of India & Ors.

Hon'ble Dr. B.S. Chauhan, J.

Hon'ble Bharati Sapru, J.

In this petition, petitioner has made following prayers:-

"a) issue a writ, order or direction in the nature of certiorari quashing the impugned judgment and order dated 14.05.2001 passed by Hon'ble Tribunal (R.No.6);

b) issue a writ, order or direction in the nature of mandamus commanding the respondents to provide the petitioner his arrears of pay treating hi to be promoted since the date of promotion of the respondent no.4 after re-fixation of his salary in the light of the judgment and order dated 4.1.2000 passed by the Hon'ble Tribunal (R.No.6)."

We have heard learned counsel for the petitioner and also learned counsel for the respondents.

Upon a perusal of the impugned judgment and order dated 14.05.2001, it is apparent that the petitioner who was making a claim for notional promotion, is claiming both arrears of pay as well as re-fixation of his pension from the date he had notionally been promoted. The learned Tribunal, while hearing the case of the petitioner passed an order dated 14th May, 2001 recording the following findings:-

"However, he will not be entitled for any arrears of pay. He will be entitled only for refixation of his pension from the date he attend the age of superannuation and shall also be entitled for arrears of pension. In view of the aforesaid consensus reached among the counsel for parties, this contempt petition is disposed of finally."

Thus, it is abundantly clear that at the time of passing of the order, the petitioner obtained an order which was partly in his favour in respect of his pension by way of giving consent before the Hon'ble Tribunal. Therefore, it does not lie in the mouth of the petitioner now to say that consent was given by his counsel without obtaining his prior consent.  More so, as to whether the petitioner had given consent to his counsel or not is a question of fact which cannot be adjudicated upon in writ jurisdiction and this aspect cannot be dealt by this Court as neither the counsel who appeared before the Tribunal had filed his affidavit nor the petitioner had made any complaint against him before the U.P. Bar Council, Allahabad. Even today, he is not willing to take recourse to the appropriate remedies which are available to him, nor we can hold an enquiry as what was argued before the learned Tribunal and if petitioner was so aggrieved, he ought to have agitated the issue before the Tribunal itself. (Vide  State of  Maharashtra Vs. Ramdas Shriniwas Nayak & Anr; AIR 1982 SC 1249).

We also do not find any force in the submissions made by learned counsel for the petitioner that it was not permissible for the Tribunal to modify the relief granted to the petitioner while exercising powers under the Contempt of Courts Act particularly in view of the judgment of the Hon'ble Supreme Court in Shail (Smt.) Vs. Manoj Kumar  Ors., AIR 2004 SC 3210 and Surya Dev Rai Vs. Ram Chander Rai, AIR 2003 SC 3044, when his counsel plead for the same.

In view of the above, we do not see any reason to entertain this petition in discretionary equitable jurisdiction. Petition is accordingly dismissed.




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