Andhra Pradesh High Court - Amravati
Kankata Alla Basha,Vijayawada, ... vs The Dy.Commissioner, Ct, ... on 19 October, 2023
*HON'BLE SRI JUSTICE RAVI NATH TILHARI
AND
*HON'BLE SRI JUSTICE B. V. L. N. CHAKRAVARTHI
+WRIT PETITION No.26215 OF 2006
% 19.10.2023
# Kankata Alla Basha,
S/o Kasim,
Aged 57 years,
Working as Senior Assistant in
the Office of Commercial Tax
Officer, Nandigam Circle,
Dolphin Bar Road,
Bhavanipuram, VIJAYAWADA,
Krishna District.
......Petitioners
And:
$1. The Deputy Commissioner
(Commercial Taxes), No.I
Division, Vijayawada,
Krishna District and others.
....Respondents.
<Gist:
>Head Note:
? Cases referred:
1. 1970 (1) SCC 613
2. AIR 1990 SC 1607
3. AIR 1961 SC 1457
4. (2004) 1 SCC 551
HIGH COURT OF ANDHRA PRADESH
WRIT PETITION No. 26215 of 2006
# Kankata Alla Basha,
S/o Kasim,
Aged 57 years,
Working as Senior Assistant in
the Office of Commercial Tax
Officer, Nandigam Circle,
Dolphin Bar Road,
Bhavanipuram, VIJAYAWADA,
Krishna District.
......Petitioner
And:
$1. The Deputy Commissioner
(Commercial Taxes), No.I
Division, Vijayawada,
Krishna District and others.
....Respondents
DATE OF JUDGMENT PRONOUNCED: .2023.
SUBMITTED FOR APPROVAL:
THE HON'BLE SRI JUSTICE RAVI NATH TILHARI
AND
THE HON'BLE SRI JUSTICE B. V. L. N. CHAKRAVARTHI
1. Whether Reporters of Local newspapers may Yes/No
be allowed to see the Judgments?
2. Whether the copies of judgment may be marked
to Law Reporters/Journals? Yes/No
3. Whether Your Lordships wish to see the fair
Copy of the Judgment?
Yes/No
___________________
RAVI NATH TILHARI, J
_______________________
B. V. L. N. CHAKRAVARTHI, J
THE HON'BLE SRI JUSTICE RAVI NATH TILHARI
AND
THE HON'BLE SRI JUSTICE B. V. L. N. CHAKRAVARTHI
WRIT PETITION NO.26215 of 2006
ORDER:- (per Hon'ble Sri Justice Ravi Nath Tilhari)
Heard Sri P.Koteswara Rao, learned counsel representing
Sri E.Venkata Rao, learned counsel for the petitioners and the
learned Government Pleader for Services-I for the respondents.
2. This Writ Petition under article 226 of the Constitution of
India has been filed for the following relief:-
"to issue writ, order or direction more in the nature of
certiorari call for the records relating to and in connection
with the order in OA No.8346 of 2002 dated 24.08.2006
on the file of the A.P.Administrative Tribunal and to
declare the same as illegal, arbitrary, contrary to Articles
14 & 16 of Constitution of India and consequentially to
quash the same while granting seniority and other
consequential benefits to the petitioner from the date of his
initial appointment and to pass such other order or
orders..."
3. The petitioner was temporarily appointed as Junior
Assistant in District Treasury Office, by the District Treasury
Officer, Krishna District, in the Department of Excise,
Treasuries and Revenue, under Rule 10 (a)(i) of the Andhra
Pradesh State and Subordinate Service Rules, 1996, (in short
„General Rules, 1996‟) and he joined on 23.07.1974.
Subsequently, he appeared before the District Selection
Committee (in short DSC) in 1976. On selection, he was allotted
to the Commercial Tax Department with other candidates, who
were working in that Department in the month of November,
1976. The seniority of the petitioner was fixed in the category of
Junior Assistant based on the date of initial appointment.
Against the same, some individuals raised objections.
Thereafter, Provisional seniority list was prepared and the
objections were invited. The revised seniority list was issued
placing the petitioner in the seniority list from the date of his
appointment in the Commercial Tax Department. The services
rendered by the petitioner, pursuant to his appointment under
Rule 10 (a)(i) of the General Rules, 1996, was not taken into
account. The petitioner filed R.P.No.5801 of 1987 before the
Andhra Pradesh Administrative Tribunal (in short „the Tribunal‟)
which was dismissed by judgment and order dated 19.01.1988.
4. The Tribunal, in R.P.No.5801 of 1987, recorded that there
was no reason to quash the impugned seniority order. However,
finding that the regularization of two persons namely
Sri.K.L.N.S.Murthy and Sri.N.Mohan Rao, was not in order, the
Tribunal directed the State Government to take suitable
corrective action as per the General Rules, 1996.
5. Thereafter, the petitioner filed O.A.No.8346 of 2002, inter
alia, submitting that the Government issued G.O.Ms.No.711
dated 28.08.1996 and G.O.Ms.No.714 dated 29.08.1996
admitting that the services of the LDCs/Typists/L.D.Stenos,
working in the Commercial Tax Department in 1976 be
regularized with consequential benefits from the date of their
initial appointment in the category of LDCs/Typists/L.D.Stenos,
subject to the condition that such regularization does not affect
the seniority of others, whose services had already been
regularized in the category, before the selection made by the
District Selection Committee in 1976. In the case of the
employees, who opted for transfers to Commercial Tax
Department from the other Departments, their old services will
be regularized from the date of their entry into the Commercial
Tax Department. The petitioner further submitted before the
Tribunal that the said G.O.Ms.No.711 dated 28.08.1996 and
G.O.Ms.No.714 dated 29.08.1996 were challenged in
O.A.No.5855 of 1996 by some of the affected persons, and the
Tribunal set aside those G.O.Ms.No.711 dated 28.08.1996 and
G.O.Ms.No.714 dated 29.08.1996 and the order of the Tribunal
was maintained by the Andhra Pradesh High Court by
dismissing W.P.No.28245 of 1998 and in W.P.No.19636 of 1999.
The petitioner, before the Tribunal in O.A.No.8346 of 2002
submitted that since the G.O.Ms.Nos.711 dated 28.08.1996 &
714 dated 29.08.1996 were struck down, the petitioner‟s
seniority be counted from the date of his initial appointment in
whatever Department he was appointed and the rejection of the
petitioners representation vide order dated 10.08.2002 was
illegal.
6. In the O.A.No.8346 of 2002, the petitioner made the
following prayer:-
"It is prayed to declare he impugned proceedings in
CCT's Ref No.E-5/362/2002 dated 10.08.2002 of the 2nd
respondent in rejecting the request of the applicants for
regularization of their services from the date of their initial
appointment, as illegal and arbitrary and also contrary to the
Judgments in Writ Petition.Nos.28245 of 1998 and 19636 of
1999 and consequently, to set aside the same and pass
appropriate orders with all consequential benefits".
7. The Tribunal dismissed O.A.No.8346 of 2002 vide
Judgment dated 24.08.2006, holding that the G.O.Ms.Nos.711
& 714 were issued for regularization of services of
LDCs/Typists/L.D.Stenos, who were working in Commercial
Tax Department as on 1976, from the date of their initial
appointment in their respective categories in the Commercial
Tax Department, subject to the condition that such
regularization does not affect the seniority position of others
whose services were already regularized in that category before
the selection made by the DSC in 1976. In case of employees,
who opted for transfer to the Commercial Tax Department, their
services were regularized only from the date of their entry into
the Commercial Tax Department. The petitioner was not the
beneficiary of G.O.Ms.Nos.711 & 714. The said GOs were also
quashed by the Tribunal as also by the High Court.
Consequently, the petitioner was not entitled for any benefit of
the G.O.Ms.Nos.711 & 714 or of the judgment of the High
Court. The Tribunal further held that the petitioner previously
approached the Tribunal in R.P.No.5801 of 1987, which was
rejected on merits with regard to the same question of the
petitioner‟s seniority and it was not open, to reopen the issue
settled by the Tribunal in R.P.No.5801 of 1987, which attained
finality.
8. Challenging the Judgment of the Tribunal, the present
writ petition has been filed for the reliefs as referred above.
9. Learned counsel for the petitioner submitted that the
Tribunal erred in dismissing the O.A. The earlier decision of the
Tribunal in R.P.No.5801 of 1987, did not operate as res
judicata. He submitted that the selection by the DSC to the
Commercial Tax Department was done as per the rules.
Therefore, under Section 27 (ii) of the Andhra Pradesh
Ministerial Rules, 1998, the petitioner‟s services must be
regularized from the date of his initial appointment as District
Treasury Officer irrespective of the appointment being under
Rule 10 (a)(i) of the General Rules, 1996.
10. Learned counsel for the petitioner placed reliance in the
cases of Mathura Prasad Bajoo Jaiswal & Ors.,v. Dossibai
N.B.JeeJeeBhoy,1 and The Direct Recruit Class-II
Engineering Officers' Association & Ors v. State of
Maharastra & Ors2 to contend that the earlier decision of the
Tribunal in R.P.No.5801/1987 would not operate as res
judicata.
11. Learned counsel for the petitioner placing reliance in Para
44 (b) of The Direct Recruit Class-II (supra) submitted that
where the initial appointment is not made by following the
procedure laid down by the rules but the appointee continues in
the post uninterruptedly till the regularization of his service, he
is entitled for counting of his officiating services.
12. Learned Government Pleader submitted that the matter
Stands concluded finally by the judgment of the Tribunal in
R.P.No.5801 of 1987, which attained finality. The order as
impugned in the present writ petition of the Tribunal does not
1970 (1) SCC 613
AIR 1990 SC 1607
call for any interference. The writ petition deserves to be
dismissed.
13. We have considered the aforesaid submissions and
perused the material on record.
14. The judgment in R.P.No.5801 of 1987 shows that
previously also the dispute of seniority was adjudicated in
R.P.No.472 of 1981, R.P.No.1878 of 1984 and R.P.No.1354 of
1984, the contentions as raised in these petitions were raised in
R.P.No.5801 of 1987 and the Tribunal, considering Rule 10
(a)(i), 23, 33 & 42 of the General Rules, as also the previous
orders of the Tribunal in previous R.Ps, dismissed R.P.No.5801
of 1987 on 19.01.2008.
15. In our view, a fresh petition on different grounds with
respect to the same cause of action and for the same relief
would not be maintainable. The order of the Tribunal in
R.P.No.5801 of 1987 attained finality. Consequently, the
Tribunal did not commit any illegality, in dismissing the
petitioner‟s O.A.No.8346 of 2002 by the order impugned in the
writ petition.
16. On our specific query, learned counsel for the petitioner
submitted that the petitioner was not entitled for any benefit
under G.O.Ms.Nos.711 or/and 714 on the point of seniority.
17. Consequently, this aspect; that the G.O.Ms.Nos.711 &
714 were issued after the judgment of the Tribunal in
R.P.No.5801 of 1987, is of no consequence. The petitioner
cannot claim any fresh cause of action to maintain the O.A.,
after the judgment in previous R.P.No.5801 of 1987. Besides,
those G.Os were quashed by the Tribunal in O.A.No.8346 of
2002 and the order was affirmed by this Court in
W.P.Nos.28245 of 1998 & 19636 of 1999. As per the judgment
of the Tribunal, the benefit, which was granted to
Sri.K.L.N.Murthy and Sri.N.Mohan Rao, previously, based upon
which the petitioner filed R.P.No.5801 of 1987, was also
withdrawn by the Government, later on.
18. The Tribunal observed in Para 12 of its impugned
Judgment that "obviously, the applicants are not the
beneficiaries of G.O.Ms.No.711 and G.O.Ms.No.714, they are
reverse of those who are working in Commercial Tax
Department, prior to selection by the DSC in 1976. In as much
as the said G.O. was made applicable only to those who are
working in Commercial Tax Department prior to 1976, it is
extremely difficult to accept the contention that setting aside of
G.O.Ms.No.711 would have impact on the service conditions of
the applicants in these O.As."
19. In Mathura Prasad (supra), on which learned counsel for
the petitioner placed reliance, to contend that the judgment in
R.P.No.5801 of 1987 does not operate as res judicata, the
Hon‟ble Apex Court held that, where the law is altered since the
earlier decision, the earlier decision will not operate as res
judicata between the same parties.
20. It is apt to refer Paragraphs 5, 7, 9 & 10, of Mathura
Prasad (supra) as under:-
"5. But the doctrine of res judicata belongs to
the domain of procedure : it cannot be exalted to the
status of a legislative direction between the parties so
as to determine the question relating to the
interpretation of enactment affecting the jurisdiction of
a Court finally between them, even though no question
of fact or mixed question of law and fact and relating to
the right in dispute between the parties has been
determined thereby. A decision of a competent Court on
a matter in issue may be res judicata in another
proceeding between the same parties: the "matter in
issue" may be an issue of fact, an issue of law, or one
of mixed law and fact. An issue of fact or an issue of
mixed law and fact decided by a competent court is
finally determined between the parties and cannot be
re-opened between them in another proceeding. The
previous decision on a matter in issue alone is res
judicata : the reasons for the decision are not res
judicata. A matter in issue between the parties is the
right claimed by one party and denied by the other,
and the claim of right from its very nature depends
upon proof of facts and application of the relevant law
thereto. A pure question of law unrelated to facts which
give rise to a right, cannot be deemed to be a matter in
issue. When it is said that a previous decision is res
judicata, it is meant that the right claimed has been
adjudicated upon and cannot again be placed in
contest between the same parties. A previous decision
of a competent Court on facts which are the foundation
of the right and the relevant law applicable to the
determination of the , transaction which is the
foundation of the right and the relevant law applicable
to the determination of the transactions which is the
soured of the right is res judicata. A previous decision
on a matter in issue is a composite decision: the
decision of law cannot be dissociated from the decision
on facts on which the right is founded. A decision on
an issue of law will be as res judicata in a subsequent
proceeding between the same parties, if the cause of
action of the subsequent Proceeding be the same as in
the previous proceeding, but not when the cause of
action is different, nor when the law has since the
earlier decision been altered by a competent authority,
nor when the decision relates to the jurisdiction of the
Court to try the earlier proceeding, nor when the earlier
decision declares valid a transaction which is
prohibited by law.
7. Where the law is altered since the earlier
decision, the earlier decision will not operate as res
judicata between the same, parties : Tarini Charan
Bhattacharjee's case(1). It is obvious that the matter in
issue in a subsequent proceeding is not the same as in
the previous proceeding, because the law interpreted is
different.
9. A question of jurisdiction of the Court, or of
procedure, or a pure question of law unrelated to the
right of the parties to a previous suit, is not res judicata
in the subsequent suit. Rankin, observed in Tarini
Charan Bhattacharjee's case(1) :
"The object of the doctrine of res judicata is not
to fasten upon parties special principles of law as
applicable to them inter se, but to ascertain their rights
and the facts upon which these rights directly and
substantially depend; and to prevent this
ascertainment from becoming nugatory by precluding
the parties from reopening or recontesting that which
has 'been finally decided."
10. A question relating to the jurisdiction of a
Court cannot be deemed to have been finally
determined by an erroneous decision of the Court. If by
an erroneous interpretation of the statute the Court
holds that it has no jurisdiction, the question would
not, in our judgment, operate as res judicata. Similarly
by an erroneous decision if the Court assumes
jurisdiction which it does. not possess under the
statute, the question cannot operate as res judicata
between the same parties, whether the cause of action
in the subsequent litigation is the same or otherwise."
21. In Mathura Prasad (supra), the facts were that the
appellants therein had constructed a building on the land and
had submitted an application for determination of standard rent
under Section 11 of the Bombay Rents, Hotels and Lodging
House Rents Control Act, 1947. The application was rejected by
the learned Civil Judge, on the ground that the Act did not
apply to open land let out for constructing building for
residence, education, business, trade or storage. The order was
confirmed by the High Court. Later on, in some other cases, the
High Court of Bombay held that the question whether
Section 6(1) of the Act, 1947, applies to any particular lease
must be determined on its terms, and a building lease in
respect of an open plot is not excluded from Section 6 (1) of the
Act, 1947, solely because open land may be used for residence
or educational purposes only after a structure is built thereon.
Relying upon this later judgment, the appellant therein filed a
fresh petition in the Court of the Small Causes, Bombay, for an
order determining the standard rent of the premises. The Trial
Judge rejected the application applying „res judicata‟ since the
matter had been finally decided by the High Court between the
same parties in respect of the same land in the earlier
proceedings for fixation of standard rents. The order of the Trial
Judge was confirmed firstly by a Bench of the Court of Small
Causes and then by the High Court of Bombay. In special
appeal, the Hon‟ble Apex Court held that where the law is
altered since the earlier decision, the earlier decision will not
operate as res judicata between the same parties.
22. The Hon‟ble Apex Court in Mathura Prasad (supra) held
in Para 35, that it is well established that the principles of res
judicata are also applicable to writ petitions. In that case, a plea
was taken, that the dismissal of the Special Leave Petition was
in limine without giving any reason, against the judgment of the
High Court, and therefore, the order of the High Court could not
be relied upon for a plea of res judicata. The Hon‟ble Apex Court
held that the order of the Apex Court in dismissing the SLP in
limine cannot be relied upon for a plea of res judicata but it was
on the basis of the judgment of the High Court, which became
final after the dismissal of the subject writ petition.
23. In Mathura Prasad (supra) the Hon‟ble Apex Court
referred to Daryao v. State of Uttar Pradesh3, in which it was
held that where the High Court dismisses a writ petition under
Article 226 of the Constitution of India after hearing the matter
on merits, a subsequent petition in the Supreme Court under
Article 32 on the same facts and for the same relief filed by the
same parties will be barred by the general principles of res
judicata. The binding character of the Judgments of Courts of
competent jurisdiction, is in essence a part of the rule of law on
AIR 1961 SC 1457
which the administration of justice, so much emphasized by the
Constitution, is founded and a Judgment of the High Court
under Article 226 of the Constitution of India passed after
hearing on the merits must bind the parties till set aside in
appeal as provided by the constitution.
24. The Hon‟ble Apex Court in Daryao (supra) further 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 decided
as incidental to or essentially connected with subject matter of
the litigation and every matter coming into the legitimate
purview of the original action both in respect of the matters of
claim and defence. The Hon‟ble Apex Court held that the
principle of constructive res judicata underlying explanation IV
of Section 11 of the Code of Civil Procedure was applicable to
the writ case.
25. It could not be pointed out by the learned counsel for the
petitioner as to what change in law has been made in Andhra
Pradesh State and Subordinate Service Rules, since, the
rejection of the petitioners R.P.No.5801 of 1987, or on
interpretation of those rules by any judicial pronouncement.
26. In the case of V.Rajeswari v. T.C.Saravanabava4 with
respect to the plea of res judicata, the Hon‟ble Apex Court held
that the plea of res judicata is founded on proof of certain facts
and then by applying the law to the facts so found. It is
therefore necessary that the foundations for the plea must be
laid in the pleadings and then an issue must be framed and
tried. A plea not properly raised in the pleadings or in issues at
the stage of the trial would not be permitted to be raised for the
first time at the stage of appeal.
27. It is apt to refer Para Nos.12 & 13 of V.Rajeswari (supra)
as under.
"12. The plea of res judicata is founded on proof of
certain facts and then by applying the law to the facts so
found. It is, therefore, necessary that the foundation for the
plea must be laid in the pleadings and then an issue must
be framed and tried. A plea not properly raised in the
pleadings or in issues at the stage of the trial, would not be
permitted to be raised for the first time at the stage of
appeal (See: (Raja) Jagadish Chandra Deo Dhabal Deb Vs.
Gour Hari Mahato & Ors. AIR 1936 Privy Council 258,
Medapati Surayya & Ors. Vs. Tondapu Bala Gangadhara
Ramakrishna Reddi & Ors. AIR 1948 Privy Council 3,
Katragadda China Anjaneyulu & Anr. Vs. Kattragadda
China Ramayya & Ors. AIR 1965 A.P. 177 Full Bench). The
view taken by the Privy Council was cited with approval
before this Court in The State of Punjab Vs. Bua Das
Kaushal (1970) 3 SCC 656. However, an exception was
carved out by this Court and the plea was permitted to be
raised, though not taken in the pleadings nor covered by
any issue, because the necessary facts were present to the
mind of the parties and were gone into by the Trial Court.
The opposite party had ample opportunity of leading the
evidence in rebuttal of the plea. The Court concluded that
(2004) 1 SCC 551
the point of res judicata had throughout been in
consideration and discussion and so the want of pleadings
or plea of waiver of res judicata cannot be allowed to be
urged.
13. Not only the plea has to be taken, it has to be
substantiated by producing the copies of the pleadings,
issues and judgment in the previous case. May be in a given
case only copy of judgment in previous suit is filed in proof
of plea of res judicata and the judgment contains exhaustive
or in requisite details the statement of pleadings and the
issues which may be taken as enough proof. But as pointed
out in Syed Mohd. Salie Labbai (Dead) By Lrs. & Ors. Vs.
Mohd. Hanifa (Dead) by Lrs. & Ors. (1976) 4 SCC 780, the
basic method to decide the question of res judicata is first to
determine the case of the parties as put forward in their
respective pleadings of their previous suit and then to find
out as to what had been decided by the judgment which
operates as res judicata. It is risky to speculate about the
pleadings merely by a summary of recitals of the allegations
made in the pleadings mentioned in the judgment. The
Constitution Bench in Gurbux Singh Vs. Bhooralal (1964) 7
SCR 831, placing on a par the plea of res judicata and the
plea of estoppel under Order II Rule 2 of the Code of Civil
Procedure, held that proof of the plaint in the previous suit
which is set to create the bar, ought to be brought on record.
The plea is basically founded on the identity of the cause of
action in the two suits and, therefore, it is necessary for the
defence which raises the bar to establish the cause of action
in the previous suit. Such pleas cannot be left to be
determined by mere speculation or inferring by a process of
deduction what were the facts stated in the previous
pleadings. Their Lordships of the Privy Council in Kali
Krishna Tagore Vs. Secretary of State For India in Council &
Anr. (1887-88) 15 Indian Appeals 186, pointed out that the
plea of res judicata cannot be determined without
ascertaining what were the matters in issues in the
previous suit and what was heard and decided. Needless to
say these can be found out only by looking into the
pleadings, the issues and the judgment in the previous
suit."
28. In view of the aforesaid principles of law laid down with
respect to the res judicata, in the present case, once the
petitioner‟s R.P.No.5801 of 1987 was dismissed on merits
considering the legal provisions of the service rules as well, if
the petitioner‟s case is that the said judgment did not operate as
res judicata in subsequent O.A.No.8346 of 2002, the petitioner
must have laid the foundation for such submission. The
petitioner‟s case here is that if there is change in the rule the
res judicata will not apply. So, the petitioner must have raised
the pleadings before the Tribunal as to what was the law when
R.P.No.5801 of 1987 was decided, what change took place in
the law in such service rules and as to how that materially
affected the petitioner‟s case so as to entitle him now, for the
benefit, if any, to overcome the bar of res judicata or the bar of
finality of judgment in R.P.No.5801 of 1987.
29. Learned counsel for the petitioner could not show, if any
such plea of no res judicata was taken before the Tribunal in
O.A.No.8346 of 2002. A perusal of the judgment shows that no
such plea was taken or a plea regarding change in law. Here
also it could not be shown as to what is the change in law with
respect to the determination of the seniority, under the relevant
service rules governing the petitioner‟s service. There is no
dispute on the proposition of law on the subject of „res judicata‟,
but its no-applicability in the present case, could not be
established to substantiate the argument raised before us.
30. So far as the reliance placed in The Direct Recruit
Class-II (supra) is concerned, learned counsel for the petitioner
referred to Paragraph No.44(B). In paragraph 44, the Hon‟ble
Apex Court, while summing up, held as under:-
"(A) Once an incumbent is appointed to a post according to
rule, his seniority has to be counted from the date of his
appointment and not according to the date of his
confirmation. The corollary of the above rule is that where
the initial appointment is only ad hoc and not according to
rules and made as a stop-gap arrangement, the officiation
in such post cannot be taken into account for considering
the seniority.
(B) If the initial appointment is not made by following the
procedure laid down by the rules but the appointee
continues in the post uninterruptedly till the regularisation
of his service in accordance with the rules, the period of
officiating service will be counted.
(C) When appointments are made from more than one
source, it is permissible to fix the ratio for recruitment from
the different sources, and if rules are framed in this regard
they must ordinarily be followed strictly.
(D) If it becomes impossible to adhere to the existing quota
rule, it should be substituted by an appropriate rule to meet
the needs of the situation. In case, however, the quota rule
is not followed continuously for a number of years because
it was impossible to do so the inference is irresistible that
the quota rule had broken down.
(E) Where the quota rule has broken down and the appoint-
ments are made from one source in excess of the quota, but
are made after following the procedure prescribed by the
rules for the appointment, the appointees should not be
pushed down below the appointees from the other source
inducted in the service at a later date.
(F) Where the rules permit the authorities to relax the
provisions relating to the quota, ordinarily a presumption
should be raised that there was such relaxation when there
is a deviation from the quota rule.
(G) The quota for recruitment from the different sources may
be prescribed by executive instructions, if the rules are
silent on the subject.
(H) If the quota rule is prescribed by an executive
instruction, and is not followed continuously for a number of
years, the inference is that the executive instruction has
ceased to remain operative.
(I) The posts held by the permanent Deputy Engineers as
well as the officiating Deputy Engineers under the State of
Maharashtra belonged to the single cadre of Deputy
Engineers.
(J) The decision dealing with important questions concerning
a particular service given after careful consideration should
be respected rather than scrutinised for finding out any
possible error. It is not in the interest of Service to unsettle a
settled position.
With respect to Writ Petition No. 1327 of 1982, we further
hold:
(K) That a dispute raised by an application under article 32
of the Constitution must be held to be barred by principles of
res judicata including the rule of constructive res judicata if
the same has been earlier decided by a competent court by
a judgment which became final."
31. So far as, the submission based on Paragraph 44 (B) is
concerned, the Tribunal in the Judgment dated 19.01.1988 in
R.P.No.5801 of 1987, considering Rule 23 (a) of the General
Rules, clearly observed in Para No.6 of its judgment, as under:-
"It is clear that unless temporary service is regularized
as per rule 23 (a) of the General Rules, it cannot be
counted for regularization. There was no order issued for
regularization of the temporary services of the petitioners.
As such their temporary services cannot be counted for
regularization. It has been made clear in the judgment in
R.P.No.472/81 that in the absence of stipulations,
normally an order of regularization under rule 23 (a) will
also mean an order indicative of seniority under rule 33
(a) of the General Rules. The provisions of rule 33 (b)
cannot be invoked to alter an order of seniority."
32. In view of the above, there being no order of regularization
of the petitioner‟s temporary services, in previous department
and the petitioner having been appointed after fresh DSC in the
Commercial Tax Department, the Tribunal did not commit any
illegality in dismissing the O.A.No.8346 of 2002 vide impugned
judgment dated 24.08.2006.
33. In The Direct Recruit Class-II (supra), the Hon‟ble Apex
Court clearly laid down in Paragraph 44 (J) that the decision
dealing with important questions concerning a particular service
given after careful consideration should be respected rather than
scrutinised for finding out any possible error. It is not in the
interest of Service to unsettle a settled position.
34. We are of the considered view that the matter with respect
to the seniority and the counting of the past services, having
been settled by the Tribunal in R.P.No.5801 of 1987 which order
attained finality, the settled position could not be unsettled.
35. We are of the considered view that the impugned
judgment by the Tribunal does not suffer from any illegality.
36. The writ petition lacks merit and is accordingly dismissed.
There shall be no order as to costs.
As a sequel thereto, miscellaneous petitions, if any
pending, shall also stand closed.
__________________________
RAVI NATH TILHARI, J
________________________________
B. V. L. N. CHAKRAVARTHI, J
Date: .10.2023
Note:-
L.R copy to be marked
B/o:-
RKS
