Construction Co. and others .vs. Prabhat Mandal (Regd.), Andheri (cited supra)
have observed thus in paragraph no. 20 :
“20. So far as the first reason is concerned, the High Court in
our opinion was not right in holding that the earlier judgment would not
operate as res judicata as one of the grounds taken in the present
petition was conspicuous by its absence in the earlier petition.
Explanation IV to s.11 C.P.C. provides that any matter which might and
ought to have been made ground of defence or attack in such former
suit shall be deemed to have been a matter directly and substantially in
issue in such suit. An adjudication is conclusive and final not only as to
the actual matter determined but as to every other matter which the
parties might and ought to have litigated and have had it decided as
incidental to or essentially connected with the subject matter of the
litigation and every matter coming with the legitimate purview of the
original action both in respect of the matters of claim or defence. The
principle underlying Explanation IV is that where the parties have had an
opportunity of controverting a matter that should be taken to be the
same thing as if the matter had been actually controverted and decided.
It is true that where a matter has been constructively in issue it cannot
be said to have been actually heard and decided. It could only be
deemed to have been heard and decided. The first reason, therefore,
has absolutely no force.”
It could thus be seen that the Hon'ble Apex Court has clearly held that any matter
which might or ought to have been made a ground of defence or attack in the earlier
proceedings will be deemed to have been matter directly and substantially in issue in
such proceedings. It has further been held that an adjudication is conclusive and
final not only as to the actual matter determined but as to every other matter which
the parties might and ought to have litigated and have had it decided.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 29 OF 2014
Deepak Yadavrao Gotefode, Vs Dy. Director (R) & MemberSecretary, Scheduled Tribe Caste Certificate ScrutinyCommittee,
CORAM : B.R. GAVAI & P.N. DESHMUKH, JJ.
DATED : DECEMBER 4, 2015.
Citation;2016(3)ALLMR58
2] The petitioner has approached this Court mainly praying for the
following reliefs :
i. “protect the services of the petitioner in view of Office Memorandum dated
10.8.2010 issued by Government of India (Annexure10) and Kavita
Solunke's case by quashing and setting aside the termination dated
25.8.2004 issued by the respondent No.2, i.e. The Commissioner of
Customs (General), New Custom House, Ballard Estate, Mumbai (Annexure
4) and reinstating the petitioner in the services as Lower Division Clerk, in
the interest of justice,
ii. quash and set aside the impugned order dated 03.10.2013 passed by the
respondent No.2, i.e. The Commissioner of Customs (General), New Custom
House, Ballard Estate, Mumbai (Annexure No.9) in the interest of justice.”
3] The petition has a chequered history. The petitioner came to be
appointed as Lower Division Clerk on 6.6.1995 on the establishment of the
respondent no.2 against a post reserved for Scheduled Tribe, since the petitioner
claimed to be belonging to Halba Scheduled Tribe. The petitioner's claim was based
on the certificate issued to him on 23.8.1998 by the Executive Magistrate, Bhandara.
Since the petitioner was appointed against the post reserved for Scheduled Tribe,
his claim came to be forwarded to the respondent Scrutiny Committee for
scrutinizing the validity of the same. Vide the order dated 24.6.2004 the respondent
No.1 Scrutiny Committee invalidated the claim of the petitioner. Since the
petitioner's claim was invalidated, his services came to be terminated vide order
dated 25.8.2004.
4] The petitioner filed Original Application being O.A. No. 612/04. The
said O.A. was allowed vide judgment and order of the learned Tribunal dated
20.4.2006. The learned Tribunal held that the petitioner was entitled to protection in
view of the judgment of the Apex Court in the case of Milind Katware .vs. State of
Maharashtra reported in 2001(1) Mh.L.J. 1.
5] Being aggrieved thereby, the respondent no.2 filed a petition at the
Principal Seat. The Division Bench of this Court allowed the said petition, being Writ
Petition No. 853/07, vide judgment and order dated 21.8.2007 and set aside the
judgment and order passed by the learned Tribunal. The petitioner had also filed an
application for review of the said order. The same was also dismissed.
6] It appears that thereafter in view of the judgment of the Apex Court in
the case of Milind Katware .vs. State of Maharashtra (cited supra) the petitioner
filed a Writ Petition being Writ Petition No. 5305/10. In the said petition, the
petitioner had sought prayer for protection in view of the Office Memorandum dated
10.8.2010 and had also challenged the order passed by the Scrutiny Committee.
The said petition was dismissed by Division Bench of this Court vide judgment and
order dated 19.3.2012. The petitioner again filed a Review Application seeking
review of the said judgment. However, when they were listed before this Court the
petitioner sought liberty to withdraw the said M.C.As. with further liberty to file
substantive petition. The said liberty was granted vide judgment and order dated
17.10.2012.
7] The petitioner thereafter filed another petition before this Court, i.e. Writ
Petition No. 5733/12. In the said petition also, the petitioner had sought relief of
protection as well as for quashing of the termination order. However, in the said
petition also, the learned Counsel for the petitioner sought liberty to withdraw the
petition with liberty to make a representation to the respondent no. 2. As such, the
petition was disposed of by granting liberty to the petitioner, vide order dated
21.8.2013. Accordingly, the petitioner made a representation to respondent no.2.
The representation made by the petitioner was also rejected. Hence, the petitioner
has filed this fourth petition.
8] Shri S.R. Narnaware, learned Counsel for the petitioner, submits that
in view of the law laid down by the Apex Court in the case of Kavita Solunke .vs.
State of Maharashtra and others (AIR 2012 SC 3016 submits that in view of the
judgment of the Apex Court in the case of Kavita Solunke, the controversy as to
whether the powers exercised by the Apex Court in the case of Milind Katware were
exercised under Article 142 or Article 141 of the Constitution of India came to be
settled wherein it was held that the powers exercised were under Article 141. The
learned Counsel, therefore, submits that since the law was settled in case of Kavita
Solunke, the petitioner approached this Court by way of present petition.
9] The learned Counsel relying on the judgment of the Apex Court and the
Division Bench of this Court in Vijaya Deorao Nandanwar (Ku.) Vs. Chief Officer,
Municipal Council, Wardha – 2013 (5) Mh.L.J. 153 submits that in the similar facts
and circumstances, i.e. dismissal of earlier petitions, this Court has granted the
protection on the ground of parity and on the ground of equality. The learned
Counsel submits that the Division Bench has clearly held that the issue regarding
resjudicata is only procedural issue and cannot come in the way of constitutional
Courts protecting the rights of the citizens.
10] The learned Counsel further submits that even the Larger Bench of this
Court in Arun s/o Vishwanath Sonone .vs. State of Maharashtra and others
reported in 2015(I) Mh. L.J. 457 has held that there cannot be a straightjacket
formula and as to whether the decision in the earlier proceedings would operate as
resjudicata or not, would depend upon the facts of each case. The learned Counsel
submits that since in the present case there is no finding that the petitioner had
played fraud, he would be entitled to get the protection. He submits that in the
similar facts the Division Bench of this Court vide order dated 11.8.2015 in Writ
Petition No. 1793/15 has permitted the said Writ Petition to be converted into Review
Application in Writ Petition No. 5430/11 which review application has been finally
allowed, thereby granting protection to the petitioner therein.
11] Shri Rohit Deo, learned Assistant Solicitor General of India for
respondent No.2, on the contrary submits that the present petition is totally hit by the
principles of resjudicata. He submits that when a lis between the same parties has
reached finality, it is not permissible to reopen the same. The learned Assistant
Solicitor General of India relies on the judgment of the Constitutional Bench of the
Apex Court in the case of Daryao and others .vs. State of U.P. and others
reported in AIR 1961 SC 1457. The learned Assistant Solicitor General of India
also relies on the judgment of the Apex Court in the case of Fo r ward Construction
Co. and others .vs. Prabhat Mandal (Regd.), Andheri and others reported in
(1986) 1 SCC 100 in support of the proposition, that where the parties have the
opportunity of controverting the matter, that should be taken to be the same thing as
if the matter had been actually controverted and decided. The learned Counsel
submits that the petitioner in the first round of litigation had approached the learned
Central Administrative Tribunal and the Division Bench at the Principal Seat and
issue with regard to grant of protection was directly and substantially in issue in the
said proceedings and there has been adjudication thereof. It is submitted that in the
second round of litigation, i.e. Writ Petition No. 5305/10 also the prayer for grant of
protection in view of Office Memorandum dated 10.6.2010 and with regard to setting
aside the termination was raised by the petitioner. He submits that it will have,
therefore, to be deemed that the issue was heard and decided by this Court in the
said proceedings. He submits that a Review Application seeking review of the said
order has also been withdrawn with liberty to file a substantive petition. He submits
that taking umbrella of the order passed in Review Application, a third petition is filed
which is also sought to be withdrawn with liberty to make a representation. It is
submitted that now after rejection of that representation, the fourth petition is filed
seeking the same reliefs which have been finally denied to the petitioner.
12] No doubt that the Larger Bench of this Court in the case of Arun s/o
Vishwanath Sonone .vs. State of Maharashtra (cited supra) in paragraph 76 has
observed thus :
“76. On the question No.2 framed for the decision by the Full
Bench, we must express that the question of res judicata, including
the constructive res judicata, may involve adjudication of facts and
law both. Merely because a petition was filed claiming the
relief of protection and that was either withdrawn or dismissed by the
Court, that by itself would not follow that the subsequent petition
claiming the same relief would be barred by the principle of
res judicata. Similarly, in spite of invalidation of the caste claim
by the Scrutiny Committee, there may not be occasion to claim
protection in employment in a petition challenging the order of the
Scrutiny Committee, if by the time the petition is decided, no
action is taken by the employer to terminate the services on the
basis of the order of the Scrutiny Committee. In such a situation,
claiming the relief of setting aside the termination would be premature
and the bar of constructive res judicata may not come in the
way. It, therefore, depends upon several factors, like the fresh cause
of action arising because of intervening events requiring either to
review the earlier decision rendered or to adjudicate the
controversy or prematurely claiming the relief of protection, etc. We do
not think that any further opinion need to be expressed by the Full
Bench on this aspect. We leave this point to be open and decided by
the appropriate Division Bench, keeping in view the facts and
circumstances of each case. The question No.2 is, therefore,
answered accordingly.”
The Larger Bench has held that merely because a petition was filed claiming the
relief of protection and that was either withdrawn or dismissed by the Court, that
itself would not follow that subsequent petition claiming the same relief would be
barred by the principle of resjudicata. The Larger Bench further observes that as to
whether the earlier dismissal or withdrawal of the petition operates as a constructive
resjudicata or not, would depend on several factors like fresh cause of action arising
because of intervening events, requiring either to review the earlier decision
rendered or to adjudicate the controversy or prematurely claiming the relief of
protection, etc. The Larger bench had kept the issue open to be decided by the
appropriate Division Benches keeping in view the facts and circumstances of each
case.
13] It will be relevant to refer to the judgment of the Constitutional Bench of
the Apex Court in the case of Daryao and others .vs. State of U.P (cited supra).
Their Lordships of the Apex Court were considering the issue as to whether rejection
of earlier petition by the High Court under Article 226 would operate as resjudicata
for filing another petition under Article 32 before the Apex Court. Their Lordships
have observed thus in paragraph No. 19 :
“19. We, must now proceed to state our conclusion on the
preliminary objection raised by the respondents. We hold that if a writ
petition filed by a party under Art. 226 is considered on the merits as &
contested matter, and is dismissed the decision thus pronounced would
continue to bind the parties unless it is otherwise modified or reversed by
appeal or other appropriate proceedings permissible under the
Constitution. It would not be open to a party to ignore the said judgment
and move this Court under Art. 32 by an original petition made on the
same facts and for obtaining the same or similar orders or writs. If the
petition filed in the High Court under Art. 226 is dismissed not on the
merits but because of the laches of the party applying for the writ or
because it is held that the party had an alternative remedy available to it,
then the dismissal of the writ petition would not constitute a bar to a
subsequent petition under Art. 32 except in cases where and if the facts
thus found by the High Court may themselves be relevant even under
Art. 32. If a writ petition is dismissed in limine and an order is pronounced
in that behalf, whether or not the dismissal would constitute a bar would
depend upon the nature of the order. If the order is on the merits it would
be a bar; if the order shows that the dismissal was for the reason that the
petitioner was guilty of laches or that he had an alternative remedy it
would not be a bar, except in cases which we have already indicated. If
the petition is dismissed in limine without passing a speaking order then
such dismissal cannot be treated as creating a bar of res judicata. It is
true that, prima facie, dismissal in limine even without passing a speaking
order in that behalf may strongly suggest that the Court took the view that
there was no substance in the petition at all; but in the absence of a
speaking order it would not be easy to decide what factors weighed in the
mind of the Court and that makes it difficult and unsafe to hold that such
a summary dismissal is a dismissal on merits and as such constitutes a
bar of res judicata against a similar The petition filed under Art. 32.
If the petition is dismissed as withdrawn it cannot be a bar
to a subsequent Gaj petition under Art. 32, because in such a case there
has been no decision on the merits by the Court. We wish to make it
clear that the conclusions thus reached by us are confined only to the
point of res judicata which has been argued as a preliminary issue in
these writ petitions and no other. It is in the light of this decision that we
will now proceed to examine the position in the six petitions before us.”
It could thus be seen that the Apex Court in clear terms has held that, if the Writ
Petition filed by a party under Article 226 is considered on merits as a contested
matter, and is dismissed, the decision thus pronounced would continue to bind the
parties, unless it is otherwise modified or reversed by appellate or other appropriate
proceedings permissible under the Constitution. It has been held that it would not
be open to a party to ignore the said judgment and move under Article 32 by a
original petition on the same facts and for obtaining the same or similar order or
writs. It has further been held that if the petition filed in the High Court under Article
226 is dismissed not on merits but because of laches of the party applying for the
writ, or on the ground of availability of alternate remedy, then the dismissal of the
Writ Petition would not constitute a bar to the subsequent petition under Article 32. It
has further been held that if the Writ Petition is dismissed in limine and where an
order is pronounced in that behalf, whether that would operate as resjudicata or not
would depend upon the nature of the order passed. If the order is on the merits, it
would be a bar, otherwise it would not be. It has further been held that if the petition
has been dismissed as withdrawn, it would not operate as a bar to subsequent
petition under Article 32.
14] It could thus be seen that Their Lordships of the Apex Court, have
culled out following categories for consideration as to whether the earlier
proceedings before the High Court under Article 226 would operate as bar for
subsequent original proceedings under Article 32 before the Apex Court :
I. Where the matter is contested between the parties and the Court has
decided the petition under Article 226 on merits, the same would bind the
parties, unless modified or reversed by the Appellate Court. In such a case, it
would not be open to parties to ignore the said judgment and move the Apex
Court under Article 32 by a original petition.
II. Where the petition is dismissed merely on the ground of laches or
availability of alternate remedy, the same would not operate as a bar for
subsequent proceedings.
III. When the petition is dismissed in limine and the order is passed in that
behalf, whether such a dismissal would constitute a bar or not would depend
upon the nature of the order passed by the High Court,
IV. When the petition is withdrawn, the same would not operate as a bar.
15] We find that when the aforesaid guidelines are laid by Their Lordships
for entertaining subsequent original petition under Article 32, the same would also
apply to the subsequent petition under Article 226 before this Court.
16] The question as to whether the subsequent interpretation of a provision
of law would have the effect of reopening the matter which was concluded between
the parties, fell for consideration before Their lordships in the case of Kalinga
Mining Corporation .vs. Union of India and others reported in (2013) 5 SCC
252. It will be relevant to refer to the following observations of the Apex Court in
paragraph no. 44, which read as under :
“44. Even though, strictly speaking, res judicata may not be
applicable to the proceedings before the Central Government, the High
Court in exercise of its power under Article 226 was certainly entitled to
take into consideration the previous history of the litigation inter partes
to decline the relief to the appellant. Merely because the High Court has
used the expression that the claim of the appellant is barred by res
judicata would not necessarily result in nullifying the conclusion which in
fact is based on considerations of equity and justice. Given the history
of litigation between the parties, which commenced in 1950s, the High
Court was justified in finally giving a quietus to the same. The
subsequent interpretation of Rule 25A by this Court, that it would have
only prospective operation, in the case of Saligram (supra), would not
have the effect of reopening the matter which was concluded between
the parties. In our opinion, if the parties are allowed to reagitate issues
which have been decided by a Court of competent jurisdiction on a
subsequent change in the law then all earlier litigation relevant thereto
would always remain in a state of flux. In such circumstances, every
time either a statute or a provision thereof is declared ultra vires, it
would have the result of reopening of the decided matters within the
period of limitation following the date of such decision. In this case not
only the High Court had rejected the objection of the appellant to the
substitution of the legal heirs of Dr. Sarojini Pradhan in her place but the
SLP from the said judgment has also been dismissed. Even though,
strictly speaking, the dismissal of the SLP would not result in the merger
of the judgment of the High Court in the order of this Court, the same
cannot be said to be wholly irrelevant. The High Court, in our opinion,
committed no error in taking the same into consideration in the peculiar
facts of this case. Ultimately, the decision of the High Court was clearly
based on the facts and circumstances of this case. The High Court
clearly came to the conclusion that the appellant had accepted the locus
standi of the LRs of Dr. Sarojini Pradhan to pursue the application for
the mining lease before the Central Government, as well as in the High
Court.” (emphasis supplied).
17] It could thus be seen that Their Lordships of the Apex Court, have held
that subsequent interpretation of statutory provision would not have the effect of
reopening the matters which was concluded between the parties. It has been held
that if this is allowed, then all earlier litigations would always remain in a state of flux.
It has been held that every time either a statute or provision thereof is declared ultra
vires, it would have the result of reopening the decided matters within the period of
limitation following the date of such decision.
18] Their Lordships of the Apex Court in the case of Forward
Construction Co. and others .vs. Prabhat Mandal (Regd.), Andheri (cited supra)
have observed thus in paragraph no. 20 :
“20. So far as the first reason is concerned, the High Court in
our opinion was not right in holding that the earlier judgment would not
operate as res judicata as one of the grounds taken in the present
petition was conspicuous by its absence in the earlier petition.
Explanation IV to s.11 C.P.C. provides that any matter which might and
ought to have been made ground of defence or attack in such former
suit shall be deemed to have been a matter directly and substantially in
issue in such suit. An adjudication is conclusive and final not only as to
the actual matter determined but as to every other matter which the
parties might and ought to have litigated and have had it decided as
incidental to or essentially connected with the subject matter of the
litigation and every matter coming with the legitimate purview of the
original action both in respect of the matters of claim or defence. The
principle underlying Explanation IV is that where the parties have had an
opportunity of controverting a matter that should be taken to be the
same thing as if the matter had been actually controverted and decided.
It is true that where a matter has been constructively in issue it cannot
be said to have been actually heard and decided. It could only be
deemed to have been heard and decided. The first reason, therefore,
has absolutely no force.”
It could thus be seen that the Hon'ble Apex Court has clearly held that any matter
which might or ought to have been made a ground of defence or attack in the earlier
proceedings will be deemed to have been matter directly and substantially in issue in
such proceedings. It has further been held that an adjudication is conclusive and
final not only as to the actual matter determined but as to every other matter which
the parties might and ought to have litigated and have had it decided.
19] In the present case, it will be relevant to refer to the following
observations of the learned Central Administrative Tribunal in its judgment dated
20.4.2006 :
“10. …........The case of present applicant is squarely covered by the
observations made by the Apex court in the case of Milind Katware
(supra). The same has been followed in the matter of Ku. Sanjivini
(supra) in protecting her appointment.
11. In the facts and circumstances of the case and following the law
laid down by the Hon'ble Apex Court as followed in the case of Sanjivini
(supra), we quash and set aside the impugned order Ex. A dated
25.8.2004 and declare that applicant's appointment to the post of LDC
under the respondents is legal and valid and stands protected by the
observations made by the Hon'ble Apex Court in Milind Katware's case
(supra)...........”
It could thus be seen that the learned Tribunal held that in view of the judgment of
the Apex Court in the case of Milind Katware, the petitioner's appointment as LDC
was legal and valid and it stood protected.
20] The respondent no.2 being aggrieved thereby, approached the
Principal Seat of this Court at Mumbai. The Division Bench presided over by the
then Chief Justice vide judgment and order dated 21.8.2007 allowed the petition and
set aside the order passed by the School Tribunal. It will be relevant to refer to para
no.5 of the judgment of the Division Bench of this Court in the said petition :
“5. In view of the above reasoning, we are of the considered
view that the respondent obtained appointment by annexing an incorrect
certificate and his subsequent conduct disentitles him from claiming any
equitable relief. The respondent has deprived a genuine person
belonging to Halba Scheduled Tribe, from getting appointment and thus
cannot be protected to take advantage of his own wrong. There is no
reason for the Court to disturb the finding of facts arrived at by the
Scrutiny Committee and no reason whatsoever has been given in the
impugned judgment for not accepting the view of the Committee. The
Court or the Tribunal would not embark upon the jurisdiction which is
vested in the Scrutiny Committee. The view taken by the Committee
calls for no interference. Resultantly, this writ petition is allowed. The
impugned judgment of the Tribunal dated 20th April, 2006 is set aside.
The petitioners are at liberty to take action against the respondent in
accordance with law.”
It could thus be seen that the Division Bench in unequivocal terms has held that
the conduct of the petitioner disentitled him from claiming any equitable relief. It
could thus be seen that the issue as to whether the petitioner was entitled to
protection or not was an issue directly in contest between the parties which was
held in favour of the petitioner herein by the learned Tribunal but reversed by a
Division Bench of this Court. Undisputedly, the petitioner has not challenged the
said findings and as such, the said findings have reached finality.
21] We find that the petitioner's case would fall in category (I) of the
cases which have been carved out by Their Lordships of the Apex Court in the
case of Daryao (cited supra). In view of the orders passed in Writ Petition No.
853/07, we find that the subsequent petition, i.e. Writ Petition No. 5305/10 itself
was not tenable. Be that as it may, the prayer for grant of protection to the
petitioner's service and for setting aside the termination were specifically made
by the petitioner. Though there are no findings with regard to that in the said
judgment by the Division Bench dated 19.3.2012, in view of the judgment of the
Apex Court in the case of Forward Constructions (cited supra), it will have to be
held that the said issue was considered and decided by the Court. The matter
does not stop at that. The petitioner thereafter files a Review Application
seeking review of the said judgment and order dated 19.3.2012; however, seeks
liberty from this Court on 17.10.2012 to withdraw the Miscellaneous Civil
Application for review with liberty to file substantive petition. Taking umbrella of
the said liberty, the petitioner files the third petition wherein again an issue
regarding protection and termination of the services is brought in issue. The
petitioner does not press that petition also and seeks liberty to withdraw the
petition with liberty to make a representation. After the representation having
been rejected and after the judgment is delivered in the case of Kavita Solunke,
the petitioner has now filed this fourth petition. It is pertinent to note that the
judgment in the case of Kavita Solunke was delivered by Their Lordships of the
Supreme Court on 9.8.2012. It could thus be seen that the date on which the
Review Application was withdrawn, i.e. 17.10.2012 as well as the date on which
the Writ Petition No. 5733/12 was withdrawn, i.e. 21.8.2013 the judgment in the
case of Kavita Solunke was very much available to the petitioner. However, the
petitioner for the reasons best known has neither pressed into service the
Review in Writ Petition No. 5305/10 nor the Writ Petition No. 5733/12.
22] In any case, we find that after the issue between the petitioner and
the respondent with respect to protection of his services was contested and had
attained finality by the judgment and order passed by Division Bench of this
Court at Principal Seat in Writ Petition No. 853/07 dated 21.8.2007, no further
petitions could have been entertained by this Court in view of the law laid down
by the Apex Court in the case of Daryao (cited supra). As already discussed
hereinabove, where a matter is contested between the parties and issue is
decided on merits by the Court, it is binding on the parties and operates as a bar
to the subsequent proceedings.
23] In that view of the matter, we are of the considered view that the
present proceedings are not tenable in law, inasmuch as the judgment of the
Division Bench of this Court at Principal Seat in Writ Petition No. 853/07 dated
21.8.2007 shall operate as a bar to subsequent original proceedings before this
Court.
24] The petition is, therefore, found to be without merit and as such,
rejected.
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 29 OF 2014
Deepak Yadavrao Gotefode, Vs Dy. Director (R) & MemberSecretary, Scheduled Tribe Caste Certificate ScrutinyCommittee,
CORAM : B.R. GAVAI & P.N. DESHMUKH, JJ.
DATED : DECEMBER 4, 2015.
Citation;2016(3)ALLMR58
2] The petitioner has approached this Court mainly praying for the
following reliefs :
i. “protect the services of the petitioner in view of Office Memorandum dated
10.8.2010 issued by Government of India (Annexure10) and Kavita
Solunke's case by quashing and setting aside the termination dated
25.8.2004 issued by the respondent No.2, i.e. The Commissioner of
Customs (General), New Custom House, Ballard Estate, Mumbai (Annexure
4) and reinstating the petitioner in the services as Lower Division Clerk, in
the interest of justice,
ii. quash and set aside the impugned order dated 03.10.2013 passed by the
respondent No.2, i.e. The Commissioner of Customs (General), New Custom
House, Ballard Estate, Mumbai (Annexure No.9) in the interest of justice.”
3] The petition has a chequered history. The petitioner came to be
appointed as Lower Division Clerk on 6.6.1995 on the establishment of the
respondent no.2 against a post reserved for Scheduled Tribe, since the petitioner
claimed to be belonging to Halba Scheduled Tribe. The petitioner's claim was based
on the certificate issued to him on 23.8.1998 by the Executive Magistrate, Bhandara.
Since the petitioner was appointed against the post reserved for Scheduled Tribe,
his claim came to be forwarded to the respondent Scrutiny Committee for
scrutinizing the validity of the same. Vide the order dated 24.6.2004 the respondent
No.1 Scrutiny Committee invalidated the claim of the petitioner. Since the
petitioner's claim was invalidated, his services came to be terminated vide order
dated 25.8.2004.
4] The petitioner filed Original Application being O.A. No. 612/04. The
said O.A. was allowed vide judgment and order of the learned Tribunal dated
20.4.2006. The learned Tribunal held that the petitioner was entitled to protection in
view of the judgment of the Apex Court in the case of Milind Katware .vs. State of
Maharashtra reported in 2001(1) Mh.L.J. 1.
5] Being aggrieved thereby, the respondent no.2 filed a petition at the
Principal Seat. The Division Bench of this Court allowed the said petition, being Writ
Petition No. 853/07, vide judgment and order dated 21.8.2007 and set aside the
judgment and order passed by the learned Tribunal. The petitioner had also filed an
application for review of the said order. The same was also dismissed.
6] It appears that thereafter in view of the judgment of the Apex Court in
the case of Milind Katware .vs. State of Maharashtra (cited supra) the petitioner
filed a Writ Petition being Writ Petition No. 5305/10. In the said petition, the
petitioner had sought prayer for protection in view of the Office Memorandum dated
10.8.2010 and had also challenged the order passed by the Scrutiny Committee.
The said petition was dismissed by Division Bench of this Court vide judgment and
order dated 19.3.2012. The petitioner again filed a Review Application seeking
review of the said judgment. However, when they were listed before this Court the
petitioner sought liberty to withdraw the said M.C.As. with further liberty to file
substantive petition. The said liberty was granted vide judgment and order dated
17.10.2012.
7] The petitioner thereafter filed another petition before this Court, i.e. Writ
Petition No. 5733/12. In the said petition also, the petitioner had sought relief of
protection as well as for quashing of the termination order. However, in the said
petition also, the learned Counsel for the petitioner sought liberty to withdraw the
petition with liberty to make a representation to the respondent no. 2. As such, the
petition was disposed of by granting liberty to the petitioner, vide order dated
21.8.2013. Accordingly, the petitioner made a representation to respondent no.2.
The representation made by the petitioner was also rejected. Hence, the petitioner
has filed this fourth petition.
8] Shri S.R. Narnaware, learned Counsel for the petitioner, submits that
in view of the law laid down by the Apex Court in the case of Kavita Solunke .vs.
State of Maharashtra and others (AIR 2012 SC 3016 submits that in view of the
judgment of the Apex Court in the case of Kavita Solunke, the controversy as to
whether the powers exercised by the Apex Court in the case of Milind Katware were
exercised under Article 142 or Article 141 of the Constitution of India came to be
settled wherein it was held that the powers exercised were under Article 141. The
learned Counsel, therefore, submits that since the law was settled in case of Kavita
Solunke, the petitioner approached this Court by way of present petition.
9] The learned Counsel relying on the judgment of the Apex Court and the
Division Bench of this Court in Vijaya Deorao Nandanwar (Ku.) Vs. Chief Officer,
Municipal Council, Wardha – 2013 (5) Mh.L.J. 153 submits that in the similar facts
and circumstances, i.e. dismissal of earlier petitions, this Court has granted the
protection on the ground of parity and on the ground of equality. The learned
Counsel submits that the Division Bench has clearly held that the issue regarding
resjudicata is only procedural issue and cannot come in the way of constitutional
Courts protecting the rights of the citizens.
10] The learned Counsel further submits that even the Larger Bench of this
Court in Arun s/o Vishwanath Sonone .vs. State of Maharashtra and others
reported in 2015(I) Mh. L.J. 457 has held that there cannot be a straightjacket
formula and as to whether the decision in the earlier proceedings would operate as
resjudicata or not, would depend upon the facts of each case. The learned Counsel
submits that since in the present case there is no finding that the petitioner had
played fraud, he would be entitled to get the protection. He submits that in the
similar facts the Division Bench of this Court vide order dated 11.8.2015 in Writ
Petition No. 1793/15 has permitted the said Writ Petition to be converted into Review
Application in Writ Petition No. 5430/11 which review application has been finally
allowed, thereby granting protection to the petitioner therein.
11] Shri Rohit Deo, learned Assistant Solicitor General of India for
respondent No.2, on the contrary submits that the present petition is totally hit by the
principles of resjudicata. He submits that when a lis between the same parties has
reached finality, it is not permissible to reopen the same. The learned Assistant
Solicitor General of India relies on the judgment of the Constitutional Bench of the
Apex Court in the case of Daryao and others .vs. State of U.P. and others
reported in AIR 1961 SC 1457. The learned Assistant Solicitor General of India
also relies on the judgment of the Apex Court in the case of Fo r ward Construction
Co. and others .vs. Prabhat Mandal (Regd.), Andheri and others reported in
(1986) 1 SCC 100 in support of the proposition, that where the parties have the
opportunity of controverting the matter, that should be taken to be the same thing as
if the matter had been actually controverted and decided. The learned Counsel
submits that the petitioner in the first round of litigation had approached the learned
Central Administrative Tribunal and the Division Bench at the Principal Seat and
issue with regard to grant of protection was directly and substantially in issue in the
said proceedings and there has been adjudication thereof. It is submitted that in the
second round of litigation, i.e. Writ Petition No. 5305/10 also the prayer for grant of
protection in view of Office Memorandum dated 10.6.2010 and with regard to setting
aside the termination was raised by the petitioner. He submits that it will have,
therefore, to be deemed that the issue was heard and decided by this Court in the
said proceedings. He submits that a Review Application seeking review of the said
order has also been withdrawn with liberty to file a substantive petition. He submits
that taking umbrella of the order passed in Review Application, a third petition is filed
which is also sought to be withdrawn with liberty to make a representation. It is
submitted that now after rejection of that representation, the fourth petition is filed
seeking the same reliefs which have been finally denied to the petitioner.
12] No doubt that the Larger Bench of this Court in the case of Arun s/o
Vishwanath Sonone .vs. State of Maharashtra (cited supra) in paragraph 76 has
observed thus :
“76. On the question No.2 framed for the decision by the Full
Bench, we must express that the question of res judicata, including
the constructive res judicata, may involve adjudication of facts and
law both. Merely because a petition was filed claiming the
relief of protection and that was either withdrawn or dismissed by the
Court, that by itself would not follow that the subsequent petition
claiming the same relief would be barred by the principle of
res judicata. Similarly, in spite of invalidation of the caste claim
by the Scrutiny Committee, there may not be occasion to claim
protection in employment in a petition challenging the order of the
Scrutiny Committee, if by the time the petition is decided, no
action is taken by the employer to terminate the services on the
basis of the order of the Scrutiny Committee. In such a situation,
claiming the relief of setting aside the termination would be premature
and the bar of constructive res judicata may not come in the
way. It, therefore, depends upon several factors, like the fresh cause
of action arising because of intervening events requiring either to
review the earlier decision rendered or to adjudicate the
controversy or prematurely claiming the relief of protection, etc. We do
not think that any further opinion need to be expressed by the Full
Bench on this aspect. We leave this point to be open and decided by
the appropriate Division Bench, keeping in view the facts and
circumstances of each case. The question No.2 is, therefore,
answered accordingly.”
The Larger Bench has held that merely because a petition was filed claiming the
relief of protection and that was either withdrawn or dismissed by the Court, that
itself would not follow that subsequent petition claiming the same relief would be
barred by the principle of resjudicata. The Larger Bench further observes that as to
whether the earlier dismissal or withdrawal of the petition operates as a constructive
resjudicata or not, would depend on several factors like fresh cause of action arising
because of intervening events, requiring either to review the earlier decision
rendered or to adjudicate the controversy or prematurely claiming the relief of
protection, etc. The Larger bench had kept the issue open to be decided by the
appropriate Division Benches keeping in view the facts and circumstances of each
case.
13] It will be relevant to refer to the judgment of the Constitutional Bench of
the Apex Court in the case of Daryao and others .vs. State of U.P (cited supra).
Their Lordships of the Apex Court were considering the issue as to whether rejection
of earlier petition by the High Court under Article 226 would operate as resjudicata
for filing another petition under Article 32 before the Apex Court. Their Lordships
have observed thus in paragraph No. 19 :
“19. We, must now proceed to state our conclusion on the
preliminary objection raised by the respondents. We hold that if a writ
petition filed by a party under Art. 226 is considered on the merits as &
contested matter, and is dismissed the decision thus pronounced would
continue to bind the parties unless it is otherwise modified or reversed by
appeal or other appropriate proceedings permissible under the
Constitution. It would not be open to a party to ignore the said judgment
and move this Court under Art. 32 by an original petition made on the
same facts and for obtaining the same or similar orders or writs. If the
petition filed in the High Court under Art. 226 is dismissed not on the
merits but because of the laches of the party applying for the writ or
because it is held that the party had an alternative remedy available to it,
then the dismissal of the writ petition would not constitute a bar to a
subsequent petition under Art. 32 except in cases where and if the facts
thus found by the High Court may themselves be relevant even under
Art. 32. If a writ petition is dismissed in limine and an order is pronounced
in that behalf, whether or not the dismissal would constitute a bar would
depend upon the nature of the order. If the order is on the merits it would
be a bar; if the order shows that the dismissal was for the reason that the
petitioner was guilty of laches or that he had an alternative remedy it
would not be a bar, except in cases which we have already indicated. If
the petition is dismissed in limine without passing a speaking order then
such dismissal cannot be treated as creating a bar of res judicata. It is
true that, prima facie, dismissal in limine even without passing a speaking
order in that behalf may strongly suggest that the Court took the view that
there was no substance in the petition at all; but in the absence of a
speaking order it would not be easy to decide what factors weighed in the
mind of the Court and that makes it difficult and unsafe to hold that such
a summary dismissal is a dismissal on merits and as such constitutes a
bar of res judicata against a similar The petition filed under Art. 32.
If the petition is dismissed as withdrawn it cannot be a bar
to a subsequent Gaj petition under Art. 32, because in such a case there
has been no decision on the merits by the Court. We wish to make it
clear that the conclusions thus reached by us are confined only to the
point of res judicata which has been argued as a preliminary issue in
these writ petitions and no other. It is in the light of this decision that we
will now proceed to examine the position in the six petitions before us.”
It could thus be seen that the Apex Court in clear terms has held that, if the Writ
Petition filed by a party under Article 226 is considered on merits as a contested
matter, and is dismissed, the decision thus pronounced would continue to bind the
parties, unless it is otherwise modified or reversed by appellate or other appropriate
proceedings permissible under the Constitution. It has been held that it would not
be open to a party to ignore the said judgment and move under Article 32 by a
original petition on the same facts and for obtaining the same or similar order or
writs. It has further been held that if the petition filed in the High Court under Article
226 is dismissed not on merits but because of laches of the party applying for the
writ, or on the ground of availability of alternate remedy, then the dismissal of the
Writ Petition would not constitute a bar to the subsequent petition under Article 32. It
has further been held that if the Writ Petition is dismissed in limine and where an
order is pronounced in that behalf, whether that would operate as resjudicata or not
would depend upon the nature of the order passed. If the order is on the merits, it
would be a bar, otherwise it would not be. It has further been held that if the petition
has been dismissed as withdrawn, it would not operate as a bar to subsequent
petition under Article 32.
14] It could thus be seen that Their Lordships of the Apex Court, have
culled out following categories for consideration as to whether the earlier
proceedings before the High Court under Article 226 would operate as bar for
subsequent original proceedings under Article 32 before the Apex Court :
I. Where the matter is contested between the parties and the Court has
decided the petition under Article 226 on merits, the same would bind the
parties, unless modified or reversed by the Appellate Court. In such a case, it
would not be open to parties to ignore the said judgment and move the Apex
Court under Article 32 by a original petition.
II. Where the petition is dismissed merely on the ground of laches or
availability of alternate remedy, the same would not operate as a bar for
subsequent proceedings.
III. When the petition is dismissed in limine and the order is passed in that
behalf, whether such a dismissal would constitute a bar or not would depend
upon the nature of the order passed by the High Court,
IV. When the petition is withdrawn, the same would not operate as a bar.
15] We find that when the aforesaid guidelines are laid by Their Lordships
for entertaining subsequent original petition under Article 32, the same would also
apply to the subsequent petition under Article 226 before this Court.
16] The question as to whether the subsequent interpretation of a provision
of law would have the effect of reopening the matter which was concluded between
the parties, fell for consideration before Their lordships in the case of Kalinga
Mining Corporation .vs. Union of India and others reported in (2013) 5 SCC
252. It will be relevant to refer to the following observations of the Apex Court in
paragraph no. 44, which read as under :
“44. Even though, strictly speaking, res judicata may not be
applicable to the proceedings before the Central Government, the High
Court in exercise of its power under Article 226 was certainly entitled to
take into consideration the previous history of the litigation inter partes
to decline the relief to the appellant. Merely because the High Court has
used the expression that the claim of the appellant is barred by res
judicata would not necessarily result in nullifying the conclusion which in
fact is based on considerations of equity and justice. Given the history
of litigation between the parties, which commenced in 1950s, the High
Court was justified in finally giving a quietus to the same. The
subsequent interpretation of Rule 25A by this Court, that it would have
only prospective operation, in the case of Saligram (supra), would not
have the effect of reopening the matter which was concluded between
the parties. In our opinion, if the parties are allowed to reagitate issues
which have been decided by a Court of competent jurisdiction on a
subsequent change in the law then all earlier litigation relevant thereto
would always remain in a state of flux. In such circumstances, every
time either a statute or a provision thereof is declared ultra vires, it
would have the result of reopening of the decided matters within the
period of limitation following the date of such decision. In this case not
only the High Court had rejected the objection of the appellant to the
substitution of the legal heirs of Dr. Sarojini Pradhan in her place but the
SLP from the said judgment has also been dismissed. Even though,
strictly speaking, the dismissal of the SLP would not result in the merger
of the judgment of the High Court in the order of this Court, the same
cannot be said to be wholly irrelevant. The High Court, in our opinion,
committed no error in taking the same into consideration in the peculiar
facts of this case. Ultimately, the decision of the High Court was clearly
based on the facts and circumstances of this case. The High Court
clearly came to the conclusion that the appellant had accepted the locus
standi of the LRs of Dr. Sarojini Pradhan to pursue the application for
the mining lease before the Central Government, as well as in the High
Court.” (emphasis supplied).
17] It could thus be seen that Their Lordships of the Apex Court, have held
that subsequent interpretation of statutory provision would not have the effect of
reopening the matters which was concluded between the parties. It has been held
that if this is allowed, then all earlier litigations would always remain in a state of flux.
It has been held that every time either a statute or provision thereof is declared ultra
vires, it would have the result of reopening the decided matters within the period of
limitation following the date of such decision.
18] Their Lordships of the Apex Court in the case of Forward
Construction Co. and others .vs. Prabhat Mandal (Regd.), Andheri (cited supra)
have observed thus in paragraph no. 20 :
“20. So far as the first reason is concerned, the High Court in
our opinion was not right in holding that the earlier judgment would not
operate as res judicata as one of the grounds taken in the present
petition was conspicuous by its absence in the earlier petition.
Explanation IV to s.11 C.P.C. provides that any matter which might and
ought to have been made ground of defence or attack in such former
suit shall be deemed to have been a matter directly and substantially in
issue in such suit. An adjudication is conclusive and final not only as to
the actual matter determined but as to every other matter which the
parties might and ought to have litigated and have had it decided as
incidental to or essentially connected with the subject matter of the
litigation and every matter coming with the legitimate purview of the
original action both in respect of the matters of claim or defence. The
principle underlying Explanation IV is that where the parties have had an
opportunity of controverting a matter that should be taken to be the
same thing as if the matter had been actually controverted and decided.
It is true that where a matter has been constructively in issue it cannot
be said to have been actually heard and decided. It could only be
deemed to have been heard and decided. The first reason, therefore,
has absolutely no force.”
It could thus be seen that the Hon'ble Apex Court has clearly held that any matter
which might or ought to have been made a ground of defence or attack in the earlier
proceedings will be deemed to have been matter directly and substantially in issue in
such proceedings. It has further been held that an adjudication is conclusive and
final not only as to the actual matter determined but as to every other matter which
the parties might and ought to have litigated and have had it decided.
19] In the present case, it will be relevant to refer to the following
observations of the learned Central Administrative Tribunal in its judgment dated
20.4.2006 :
“10. …........The case of present applicant is squarely covered by the
observations made by the Apex court in the case of Milind Katware
(supra). The same has been followed in the matter of Ku. Sanjivini
(supra) in protecting her appointment.
11. In the facts and circumstances of the case and following the law
laid down by the Hon'ble Apex Court as followed in the case of Sanjivini
(supra), we quash and set aside the impugned order Ex. A dated
25.8.2004 and declare that applicant's appointment to the post of LDC
under the respondents is legal and valid and stands protected by the
observations made by the Hon'ble Apex Court in Milind Katware's case
(supra)...........”
It could thus be seen that the learned Tribunal held that in view of the judgment of
the Apex Court in the case of Milind Katware, the petitioner's appointment as LDC
was legal and valid and it stood protected.
20] The respondent no.2 being aggrieved thereby, approached the
Principal Seat of this Court at Mumbai. The Division Bench presided over by the
then Chief Justice vide judgment and order dated 21.8.2007 allowed the petition and
set aside the order passed by the School Tribunal. It will be relevant to refer to para
no.5 of the judgment of the Division Bench of this Court in the said petition :
“5. In view of the above reasoning, we are of the considered
view that the respondent obtained appointment by annexing an incorrect
certificate and his subsequent conduct disentitles him from claiming any
equitable relief. The respondent has deprived a genuine person
belonging to Halba Scheduled Tribe, from getting appointment and thus
cannot be protected to take advantage of his own wrong. There is no
reason for the Court to disturb the finding of facts arrived at by the
Scrutiny Committee and no reason whatsoever has been given in the
impugned judgment for not accepting the view of the Committee. The
Court or the Tribunal would not embark upon the jurisdiction which is
vested in the Scrutiny Committee. The view taken by the Committee
calls for no interference. Resultantly, this writ petition is allowed. The
impugned judgment of the Tribunal dated 20th April, 2006 is set aside.
The petitioners are at liberty to take action against the respondent in
accordance with law.”
It could thus be seen that the Division Bench in unequivocal terms has held that
the conduct of the petitioner disentitled him from claiming any equitable relief. It
could thus be seen that the issue as to whether the petitioner was entitled to
protection or not was an issue directly in contest between the parties which was
held in favour of the petitioner herein by the learned Tribunal but reversed by a
Division Bench of this Court. Undisputedly, the petitioner has not challenged the
said findings and as such, the said findings have reached finality.
21] We find that the petitioner's case would fall in category (I) of the
cases which have been carved out by Their Lordships of the Apex Court in the
case of Daryao (cited supra). In view of the orders passed in Writ Petition No.
853/07, we find that the subsequent petition, i.e. Writ Petition No. 5305/10 itself
was not tenable. Be that as it may, the prayer for grant of protection to the
petitioner's service and for setting aside the termination were specifically made
by the petitioner. Though there are no findings with regard to that in the said
judgment by the Division Bench dated 19.3.2012, in view of the judgment of the
Apex Court in the case of Forward Constructions (cited supra), it will have to be
held that the said issue was considered and decided by the Court. The matter
does not stop at that. The petitioner thereafter files a Review Application
seeking review of the said judgment and order dated 19.3.2012; however, seeks
liberty from this Court on 17.10.2012 to withdraw the Miscellaneous Civil
Application for review with liberty to file substantive petition. Taking umbrella of
the said liberty, the petitioner files the third petition wherein again an issue
regarding protection and termination of the services is brought in issue. The
petitioner does not press that petition also and seeks liberty to withdraw the
petition with liberty to make a representation. After the representation having
been rejected and after the judgment is delivered in the case of Kavita Solunke,
the petitioner has now filed this fourth petition. It is pertinent to note that the
judgment in the case of Kavita Solunke was delivered by Their Lordships of the
Supreme Court on 9.8.2012. It could thus be seen that the date on which the
Review Application was withdrawn, i.e. 17.10.2012 as well as the date on which
the Writ Petition No. 5733/12 was withdrawn, i.e. 21.8.2013 the judgment in the
case of Kavita Solunke was very much available to the petitioner. However, the
petitioner for the reasons best known has neither pressed into service the
Review in Writ Petition No. 5305/10 nor the Writ Petition No. 5733/12.
22] In any case, we find that after the issue between the petitioner and
the respondent with respect to protection of his services was contested and had
attained finality by the judgment and order passed by Division Bench of this
Court at Principal Seat in Writ Petition No. 853/07 dated 21.8.2007, no further
petitions could have been entertained by this Court in view of the law laid down
by the Apex Court in the case of Daryao (cited supra). As already discussed
hereinabove, where a matter is contested between the parties and issue is
decided on merits by the Court, it is binding on the parties and operates as a bar
to the subsequent proceedings.
23] In that view of the matter, we are of the considered view that the
present proceedings are not tenable in law, inasmuch as the judgment of the
Division Bench of this Court at Principal Seat in Writ Petition No. 853/07 dated
21.8.2007 shall operate as a bar to subsequent original proceedings before this
Court.
24] The petition is, therefore, found to be without merit and as such,
rejected.
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