Mahesh Kumar Singh vs The Union Of India & Ors.
2017 Latest Caselaw 2990 Del

*   IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                        Date of Decision: 4th July, 2017

%                             W.P.(C.) No. 7584/2015


    MAHESH KUMAR SINGH                         ..... Petitioner
               Through:             Mr.Kripa Shankar Prasad &
                                    Mr.Mohd.     Ainul       Ansari,
                                    Advocates.

                              Versus

    THE UNION OF INDIA & ORS.           .....Respondent
                  Through: Mr.Vivekanand Mishra,
                            Advocate for R-1, 2 & 4.
                            Mr.Naresh Kaushik, with
                            Mr.Gaurav Sharma, Advocate
                            for R-3.
                          Mr.Surender Singh Hooda,
                           Advocate for R-5.

    CORAM:
    HON'BLE MR. JUSTICE VIPIN SANGHI
    HON'BLE MS. JUSTICE REKHA PALLI

    REKHA PALLI, J. (ORAL)

1. The Petitioner has by the present writ petition, impugned

the order dated 3rd July, 2015, passed by the Central

Administrative Tribunal, Principal Bench, New Delhi in OA

No.3757/2011 whereby the original application filed by the

Petitioner (Applicant) has been dismissed.

2. The admitted facts as noticed by the Tribunal, are that the

Petitioner (Applicant therein), had been appointed as an ad hoc

Lecturer (now known as Assistant Professor) on 10th September,

1999 in the Department of History, Army Cadet College which

is a wing of the Indian Military Academy, Dehradun, pursuant

to the selection based on an advertisement published in the

Employment News. The Petitioner continued in service with

some breaks when the Respondents issued an advertisement

dated 15th April, 2001 inviting applications for ad hoc

appointment to posts of Lecturers in various subjects including

the post of Lecturer (History) which the Petitioner had been

holding on ad hoc basis w.e.f. 10th September, 1999.

3. Being aggrieved by the issuance of advertisement issued

by the Respondents for appointing fresh persons on ad hoc basis

by terminating the already appointed adhoc Lecturers, a batch

of OAs were filed by the ad hoc lecturers including the

Petitioner before the Tribunal. The Tribunal after considering

the batch of OAs including OA No.1348/2001 filed by the

Petitioner, came to the conclusion that an ad hoc lecturer could

not be replaced by anyone other than a regularly selected

lecturer and, therefore vide its order dated 13th December, 2001,

quashed the advertisement dated 15th April, 2001 inviting

applications for appointment to the post of ad hoc lecturer,

including the post which the present Petitioner had been

holding. In its order, the Tribunal further directed that the

Petitioner and other similarly placed persons, should be

permitted to continue to work on the posts which they were

holding on ad hoc basis, without being subjected to any fresh

selection or interviews, for holding such ad hoc posts till such

time they are replaced by regularly selected lecturers, and also

directed that all the Applicants therein (including the present

Petitioner) would be entitled to appear for selection for regular

appointment in accordance with the Rules.

4. Pursuant to the aforesaid order passed by the Tribunal,

the Petitioner continued to work as an ad hoc Lecturer (History)

for the next many years when the Respondent no.3 issued an

advertisement published in the Employment News dated 8th to

14th January, 2011 for filling up posts of Assistant Professors in

various subjects and stated therein that the post of Assistant

Professor (History) was reserved for scheduled caste candidates.

5. Feeling aggrieved, the Petitioner who belongs to General

Category and had been precluded from applying for regular

appointment to the post of Assistant Professor (History),

approached the Tribunal by way of Original Application

No.3757/2011 for quashing the aforesaid advertisement dated 8-

14 January, 2011 whereby the solitary post of Assistant

Professor (History) in the Army Cadet College, Indian Military

Academy, Dehradun, had been reserved for scheduled caste

candidates.

6. The contention of the Petitioner before the Tribunal was

that there was only one post of Assistant Professor in the

Department of History, ACC, IMA and as such, there could not

be any reservation for the said post. In support of his

contention before the Tribunal, the Petitioner relied upon the

judgment of the Hon'ble Apex Court in the case of State of

Karnataka and Anr. Vs. K. Govindappa & Anr. reported at

(2009) 1 SCC 1.

7. Before the Tribunal, the Petitioner had further contended

that the advertisement had wrongly prescribed an upper age

limit of 35 years, though, as per the UGC guidelines, there was

no upper age limit for the recruitment of Assistant Professor in

colleges.

8. In the counter affidavit filed by the Respondent nos.1, 2

& 4 before the Tribunal, the main defence taken by these

Respondents was that consequent upon change in reservation

policy and also on inclusion of reservation for OBCs in the

Government service, the reservation points had been re-drawn

and the reservation roster was being maintained for all the

fifteen posts of lecturers, and was no longer being maintained

with reference to subjects. The Respondents had, therefore,

contended that as a result of re-casting of roster, the post of

Lecturer (History) had fallen in the slot of reservation

earmarked for SC/ST and had, therefore, been rightly shown as

reserved for SC category in the advertisement issued in January,

2011.

9. It transpires from the record that the Tribunal had vide its

interim order dated 19th October, 2011, while permitting the

Respondent nos.1 to 4 to go ahead with the selection of

Assistant Professor (History) on the basis of the impugned

advertisement, stayed the replacement of the Petitioner.

Respondents 1 to 4 proceeded with the selection for the post of

Assistant Professor (History) by considering only SC candidates

in which Respondent No.5 was selected and he joined service as

Assistant Professor (History) on 24th April, 2012.

10. In his counter affidavit, the Respondent no.5 reiterated

the stand of the official Respondents and contended that the

post of Assistant Professor (History) had been correctly

reserved for scheduled caste candidates by the official

Respondents. Respondent no.5 had subsequently filed written

submissions before the Tribunal wherein he had contended that

the Petitioner herein was overage at the time of advertisement

and was therefore, even otherwise, not eligible for the post. It

further appears from the judgment that at the time of final

hearing, the counsels for the Respondents had also raised the

plea that in view of the decision in the earlier OA No.1348/2001

filed by the petitioner, the present Original Application filed by

the Petitioner was barred by res judicata. Upon consideration of

the rival contentions by the parties, the Tribunal formulated four

questions for determination which are being reproduced

hereinbelow:-

"(a) Whether the post of Lecturer (History) was to be considered as a separate cadre or the part of the cadre of Lecturers (Assistant Professors)?

(b) Whether there can be a reservation against single isolated vacancy?

(c) Whether the applicant can be nixed consideration for regularization being overage?

(d) Whether the original Application is barred by res judicata?"

11. The Tribunal after considering the admitted facts and the

judgment of the Apex Court, came to a categorical conclusion

in para 14 of its judgment that the single post of the Assistant

Professor (Lecturer (History)) could not have been kept

reserved for SC category and the applicant (Petitioner herein)

could not have been nixed consideration for appointment to the

same on the ground that he did not belong to the reserved

category.

12. After coming to the conclusion that the post of Assistant

Professor (Lecturer (History)) had been wrongly reserved for

SC category, the Tribunal considered the plea raised by the

Respondent no.5 that the Petitioner was overage and was not

entitled to seek age relaxation on the principles of res judicata,

as his earlier petition being OA 1348/2001 seeking regular

appointment had already been decided by the Tribunal vide its

order dated 15th April, 2001, without granting him any age

relaxation for the period of ad hoc services already rendered by

him. Agreeing with the contention raised by the Respondent

no.5, the Tribunal proceeded to hold that in the wake of

directions given in its earlier order dated 15th April, 2001 passed

in OA No.1348/2001, the proposition whether the Petitioner

should be considered for the post in question with relaxed age

or with relaxation of age limited to the extent of ad hoc service

rendered by him or not, could not be decided by the Tribunal in

the OA.

13. The Tribunal while accepting the plea of constructive res

judicata raised by the Respondents, was of the view that the

question of the Petitioner's regular appointment was an issue in

the earlier OA and, therefore, the question of age relaxation to

the extent of ad hoc service rendered by him, ought to have

been addressed in the earlier OA itself and, therefore, it could

not adjudicate the proposition whether the Petitioner should be

considered for the post with relaxed age or relaxation of age

limit.

14. The Tribunal agreed with the plea raised by the

Respondent no.5, that as on the cut-off date, the Petitioner was

beyond the maximum age limit of 35 years, and, therefore,

while holding that though it could have given directions to the

Respondents to hold a fresh selection for the post of Lecturer

(History), but since it was inclined to accept the plea of

Respondent no.5 that the Petitioner herein was overage for the

post in question, and no relief could be granted to him, it was

refraining from venturing into the area of public interest and nix

the relief sought in the OA. Thus, though the Tribunal came to

a categorical conclusion that the single post of Assistant

Professor (Lecturer (History)) had been wrongly reserved for

SC category and directions could have been given to the

Respondents to hold a fresh selection for the said post, but by

applying the principles of constructive res judicata, it dismissed

the application filed by the Petitioner.

15. Aggrieved by the impugned order, whereby the Tribunal

has even after holding that the sole post of Assistant Professor

(Lecturer (History)) had been wrongly reserved for SC

category, the Petitioner has filed the present writ petition.

16. We have heard the arguments of the learned counsel for

the parties including, the counsel for Respondent no.5, and have

given our thoughtful consideration to the issues raised on the

petition.

17. The admitted facts which emerge from the documents on

record are that the sole post of Assistant Professor (History) was

wrongly reserved for SC category precluding the Petitioner and

other aspirants from unreserved category to apply for the same.

It also clearly emerges that the Petitioner has been denied relief

only because the Tribunal came to a conclusion that it could not

adjudicate the proposition whether he should be considered for

the post in question with relaxed age or with relaxation of age

limit.

18. Upon a consideration of the rival contentions raised by

the parties, we are of the view that the main question which

arises for our consideration, is as to whether the principle of

constructive res judicata is applicable in the facts of the case so

as to warrant dismissal of the OA and also as to whether the

question of age relaxation arose in the previous OA filed by the

Petitioner.

19. As noticed above, the Tribunal dismissed the OA filed by

the Petitioner only because it was inclined to accept the plea

raised by Respondent no.5, in its written submissions, that the

Petitioner was over age for the post in question.

20. The principle of constructive res judicata being a special

and artificial form of res judicata enacted by Section 11 of the

CPC, in our opinion, can be applied only when the issues which

ought to have been raised in the earlier proceedings, were not

raised in the said proceedings. But the said principle cannot be

applied merely because the issue could have been raised in the

earlier proceedings, but was not raised.

21. There is a clear distinction between proceedings where

the issue could have been raised, and proceedings where issue

should have been raised. In our opinion, the principle of

constructive res judicata cannot be applied to bar an

adjudication on an issue which was neither necessary to be

raised, nor averted to by the court in the earlier proceedings.

22. We are fortified in the view which we are taking by a

decision of the Apex Court in case of Ramachandra Dagdu

Sonavane (Dead) by LRs Vs. Vithu Hira Mahar (Dead) by

LRs & Ors. Reported in AIR 2010 SC 818. In para 31 which is

reproduced hereinbelow, the Apex Court explained the meaning

and ambit of the doctrine of constructive res judicata as under:-

31) Res-judicata and Code of Civil Procedure :- It is well known that the doctrine of res- judicata is codified in Section 11 of the Code of Civil Procedure. Section 11 generally

comes into play in relation to civil suits. But apart from the codified law, the doctrine of res-judicata or the principle of the res-judicata has been applied since long in various other kinds of proceedings and situations by courts in England, India and other countries. The rule of constructive res-judicata is engrafted in Explanation IV of Section 11 of the Code of Civil Procedure and in many other situations also Principles not only of direct res-judicata but of constructive res-judicata are also applied, if by any judgment or order any matter in issue has been directly and explicitly decided, the decision operates as res-judicata and bars the trial of an identical issue in a subsequent proceedings between the same parties. The Principle of res- judicata comes into play when by judgment and order a decision of a particular issue is implicit in it, that is, it must be deemed to have been necessarily decided by implications even then the Principle of res- judicata on that issue is directly applicable. When any matter which might and ought to have been made a ground of defence or attack in a former proceeding but was not so made, then such a matter in the eye of law, to avoid multiplicity of litigation and to bring about finality in it, is deemed to have been constructively in issue and, therefore, is taken as decided [See AIR 1978 SC 1283]."

23. To decide whether the Tribunal was justified in declining

to grant any relief to the Petitioner by holding that in the wake

of the earlier OA No.1348/2001, it was not possible to

adjudicate the proposition whether the Petitioner should be

considered for the post in question, it would be apt to reproduce

the directions given by the Tribunal in the aforesaid OA first

filed by the Petitioner, which reads as follows:-

"(a) The impugned advertisement dated 15.04.2001 inviting applications for ad hoc appointment for the post of Lecturer, which the applicants have been holding, is quashed and set aside.

(b) The Respondents shall permit all the applicants to continue to work in the post they are/were holding on ad hoc basis without subjecting them to any fresh selections or interviews for holding such ad hoc post till such time, replacement regularly selected by the UPSC arrive to join duty.

(c) If the services of any one of the applicants have been terminated, he/she should be re-engaged and permitted to continue till regular appointee is report for duty, though such persons would not be entitled for back wages during the period between their dis-engagement and re- appointment.

(d) All the applicants would be entitled for monetary benefits like pay and allowances, increments and service benefits like leave etc. as are granted to a regular staff.

(e) The applicants shall also be permitted to appear for selection for regular

appointment in accordance with the Rules. No costs."

24. We have deliberately extracted the directions given in the

earlier OA filed by the Petitioner as the same clearly show that

the question of grant of age relaxation to the Petitioner or his

being overage, was neither put in issue before the Tribunal nor

there was any determination of the same and in fact in our view,

it was not even necessary for the Tribunal in the earlier

proceedings to decide the said question. The Petitioner had not

reached that bridge, and it was not necessary for him to have

crossed it then. The Tribunal, while deciding OA No.1348 of

2001, had merely directed that the Petitioner would be

permitted to continue on ad hoc basis till he is replaced by a

regularly selected lecturer, and had further directed that he

along with other applicants therein, who were also working as

ad hoc lecturers would also be permitted to appear for selection

for regular appointment in accordance with the rules.

25. It is, thus, evident that the Tribunal in the earlier OA

decided on 13th December, 2001 had, while issuing directions,

specifically stated that the Petitioner and other similarly placed

ad hoc lecturers were entitled to continue to work on ad hoc

basis only till such time they are replaced by regularly selected

candidates and, thus, neither there was any issue regarding grant

of any age relaxation to the Petitioner, nor the same could have

been adjudicated in the said OA as the said decision was based

only on the principle that an ad hoc employee could not be

replaced by another ad hoc employee. The issue of age

relaxation did not arise then, since the process for selection of

regular lecturers was not notified. Only after such a process

were to be notified, the question of age relaxation would have

arisen, in the context of the facts which would then arise for

consideration.

26. In the facts of the case, in our view, the Tribunal has not

appreciated the aforesaid position and dismissed the OA by

wrongly applying the principles of constructive res judicata.

Even otherwise, we are also of the view that even in the present

OA, there was no necessity for the Tribunal to decide the issue

whether the Petitioner was entitled to any age relaxation, as the

question of age relaxation, would arise only once the post in

question is re-advertised.

27. We are of the considered opinion, that in the present case,

once the Tribunal came to an inescapable conclusion that the

sole post of Assistant Professor (Lecturer (History)) had been

erroneously reserved for SC candidates, in the advertisement

published in Employment News dated 8th to 14th January, 2011

for the post of Assistant Professor (History), the advertisement

was liable to be quashed with direction to the respondent Nos.1

to 4 to hold a fresh selection for the post of Lecturer (History).

28. Accordingly, the impugned order is set aside insofar as it

dismissed the original OA of the Petitioner. The impugned

advertisement issued in the Employment News dated 8th to 14th

January, 2011 for the post of Assistant Professor (History) and

all consequential actions taken pursuant thereto, are set aside

and the Respondents are directed to hold a fresh selection for

the post of Assistant Professor/Lecturer (History) in ACC, IMA,

as expeditiously as possible by treating the said post as an

unreserved post and all eligible candidates from unreserved

category including the Petitioner, would have liberty to apply

for the same and seek age relaxation, if any, as per the rules.

29. The writ petition is allowed in the aforesaid terms without

any order as to costs.

(REKHA PALLI) JUDGE

(VIPIN SANGHI) JUDGE JULY 04, 2017/aa