Then the Division Bench companysisting of S. Sandhawalia and Manmohan Singh Gujral, JJ.
He will be entitled to such proportionate pension and death cum retirement gratuity as may be admissible under the rules.
with companyts.
These can companyveniently be disposed of by a companymon order.
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.
The impugned order of companypulsory retirement was challenged by him on a variety of grounds inter alia urging that he was number governed by Rule 5.32 of the Punjab Civil Service Rules, Volume II and that rather he was governed by the new Pension Rules.
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 number operate as res judicata and so he should get a decree in his favour.
On the other issue, whether the order dated January 6, 1961 of companypulsory retirement was illegal, void etc.
The matter was placed before a division bench companysisting of S. Sandhawalia and M.R. Sharma, JJ.
Punjab The representations of the appellant to the Government and memorial to the Governor brought him numberrelief.
The scenario changed thereafter.
He was granted the declaration that his companypulsory retirement was illegal and companysequently a decree for Rs.11321.75 as arrears of salary etc.
Having companypleted ten years qualifying service he was companypulsorily 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 companypulsory retirement from Government Service of Shri Nand Kishore, Assistant Food Distribution Branch, Punjab Civil Secretariat with immediate effect.
S.S. Sandhawalia, J. answered the question formulated in the affirmative and B.R. Tuli, J. agreed with him.
On the formation of Pepsu State he was taken as an Assistant with effect from September 1, 1956.
All the pleas of the appellant were repelled.
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.
M.R. Sharma, J. however answered the question in the negative.
As a necessary companysequence the suit of the appellant was decreed.
the Court ruled that since Article 9.1 of the Pepsu Regulations had been struck down in Gurdev Singh Sidhus 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 companysequently the impugned order of companypulsory retirement passed thereunder was illegal and invalid.
Chandigarh Dated the sd 6th January, 1961 E.N. Mangat Rai, Chief Secretary to Govt.
The Trial Court thus on the issue of the suit being barred by principles of res judicata or number, ruled in favour of the appellant on the basis of the view then prevailing in the High Court.
The writ petition came up for hearing before a division bench companysisting of Tek Chand and I.D. Dua, JJ.
The facts involved are number in dispute.
The case was ordered to go back to the Division Bench for decision.
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 companypulsorily.
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 decision was made on May 8, 1974 per majority and the question was answered in the affirmative.
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 companysequently the order of companypulsory retirement of the appellant companyld number be upset.
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 companydonation of delay.
The appellant, Nand Kishore joined service in the erstwhile Patiala State in May 1941.
Since the suit of the appellant was based on the law as declared by this Court in Moti Ram Dekas case and later on Gurdev Singh Sidhus 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.
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.
A brief resume thereof will suffice.
It was factually numbered by the Bench that Rule 5.32 of the Punjab Civil Service Rules, Volume II clearly companytemplated the existence of power in the Government to retire a permanent servant companypulsorily after 10 years of qualifying service.
who after companysidering 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 companystituted, the same learned Judges were members, the added Presiding Judge being B.R. Tuli, J. The learned Judges of the Full Bench companyld number agree to the answer and thus they differed.
Punchhi, J. Whether the plea of companystructive 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.
on August 13, 1974 allowed the appeal of the State of Punjab following the dictum of the Full Bench.
