Karnataka High Court
Sri Vinaykumar S vs The State Of Karnataka on 18 August, 2022
Bench: Acting Chief Justice, Anil B Katti
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF AUGUST 2022
PRESENT
THE HON'BLE MR. ALOK ARADHE
ACTING CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE ANIL B. KATTI
W.A. NO.151 OF 2021 (S-RES)
IN
W.P.No.25266 OF 2016 (S-RES)
BETWEEN:
1. SRI. VINAYKUMAR .S
AGED ABOUT 40 YEARS
S/O SRINIVASA REDDY P
ASSISTANT ENGINEER
OFFICE OF THE AEE, SOUTH -3
BWS & SB, BTM LAYOUT
BANGALORE-562106.
2. SMT. N.S. HEMANTHKUMAR
AGED ABOUT 36 YEARS
D/O SIDDAPPAJI
ASSISTANT ENGINEER
OFFICE OF THE AEE, SOUTH WEST-1
SUB DIVISION, V.V. PURAM, BWS & SB
BANGALORE-04.
3. SMT. SMITHA G.V.
AGED ABOUT 33 YEARS
W/O PRABHU
ASSISTANT ENGINEER
OFFICE OF THE EXECUTIVE ENGINEER
NEW INITIATIVE AND PUBLIC
2
OUTRICH (N1 AND PO)
BWS & SB, 7TH FLOOR
CAUVERY BHAVAN, BANGALORE-09.
... APPELLANTS
(BY MR. MUKKANNAPPA S.B. ADV.,)
AND:
1. THE STATE OF KARNATAKA
REP. BY ITS ACS
DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT DPEARTMENT
M.S. BUILDING, DR. AMBEDKAR VEEDHI
BANGALORE-01.
2. THE CHAIRMAN
BANGALORE WATER SUPPLY AND
SEWERAGE BOARD
1ST FLOOR, CAUVERY BHAVAN
K.G. ROAD, BANGALORE-09.
3. THE CHIEF ADMINISTRATIVE OFFICER
AND SECRETARY
BANGALORE WATER SUPPLY AND
SEWERAGE BOARD, 1ST FLOOR
CAUVERY BHAVAN, K.G. ROAD
BANGALORE-09.
4. SRI. SUMANTH .N
AGED ABOUT 32 YEARS
S/O NAGARAJU K.H.
ASST. ENGINEER
O/O AEE -CMC-1-2
BWS & SB, ANANDA RAO CIRCLE
BANGALORE-01.
5. SRI. NARESH B.K.
AGED ABOUT 36 YEARS
S/O KADEGOWDA
ASST. ENGINEER
3
O/O AEE-CH-1, T.K. HALLI, BWS & SB
BANGALORE-01.
6. SRI. PAVAN .N
AGED ABOUT 34 YEARS
S/O NAGARAJ N.
ASST. ENGINEER, BWS & SB
O/O AEE -K-1-2, SHIMSHA BHAVAN
BANGALORE-01.
7. SMT. DIVYA P.S.
AGED ABOUT 39 YEARS
D/O P. SANJEEVAIAH
ASST. ENGINEER, BWS & SB
O/O AEE-K-4-2 MALLESHWARAM
BANGALORE-12.
8. SRI. CHANDRASHEKHAR .S
AGED ABOUT 40 YEARS
S/O SIDDARAMAIAH
ASST. ENGINEER, BWS & SB
O/O AEE-CMC-1-2, ANAND RAO CIRCLE
BANGALORE-09.
9. SMT. SOWMYARANI .M
AGED ABOUT 37 YEARS
D/O S.N. MAHADEV
ASST. ENGINEER, BWS & SB
O/O AEE-WWM-H1, 18TH CROSS
MARGOSA ROAD, MALLESHWARAM
BANGALORE-12.
10. R. SRINIVAS
AGED ABOUT 37 YEARS
S/O RAVINDRA D
ASST. EXECUTIVE ENGINEER, BWSSB
SW3, SUB D MNK PART, BANGALORE-12.
11. R. RAGHU
AGED ABOUT 37 YEARS
S/O RAJANNA
4
ASSISTANT ENGINEER OFFICE OF AEE
BWSSB, CENTRAL (2) SUB DIVISION
HIGH GROUND, BANGALORE-01.
... RESPONDENTS
(BY MRS. VANI H, AGA FOR R1
MR. B.L. SANJEEV, ADV., FOR R3
MR. JAYA KUMAR S. PATIL, SR. COUNSEL FOR
MR. KUMAR, ADV., FOR R4
MR. PUTTEGOWDA, ADV., FOR R5 & R6
MR. PRITHVEESH M.K. ADV., FOR R7-R9
R2, R10 & R11 SERVED)
---
THIS WRIT APPEAL IS FILED U/S 4 OF THE
KARNATAKA HIGH COURT ACT, PRAYING TO SET ASIDE THE
ORDER DATED 05/01/2021 PASSED BY THE LEARNED
SINGLE JUDGE IN WRIT PETITION NO.25266/2016 AND
CONSEQUENTLY ALLOW THE WRIT PETITION FILED BY THE
APPELLANTS.
THIS WRIT APPEAL COMING ON FOR ORDERS, THIS
DAY, ACTING CHIEF JUSTICE, DELIVERED THE
FOLLOWING:
JUDGMENT
This intra court appeal emanates from an order
dated 05.01.2021 passed by learned Single Judge in
W.P. No.25266/2016, by which writ petition preferred
by the appellants has been dismissed.
2. Facts leading to filing of this appeal briefly
stated are that a recruitment Notification was issued
by Bangalore Water Supply and Sewerage Board on
22.02.2008 and a final select list for Assistant
Engineer (Computer Science) and Assistant Engineer
(Mechanical) was published vide Notifications dated
08.04.2010 and 05.05.2010. The appellants were
directly recruited as Assistant Engineer (Civil) and the
final select list was published vide Notification dated
12.05.2010.
3. A provisional seniority list of graduate
Assistant Engineers and non-graduate Assistant
Engineers was published vide Notification dated
13.11.2013 and a final seniority list was published on
26.12.2013. The grievance of the appellants is that
respondent Nos.4 to 11 were shown senior to the
appellants in the final seniority list contrary to the
provisional seniority list. The appellants thereupon
submitted a representation on 06.01.2014 for
correction of seniority list. Thereafter, the appellants
filed the writ petition seeking inter alia a writ of
certiorari for quashment of seniority list in so far as it
pertains to the rankings assigned to respondent Nos.4
to 11. The appellants also sought a writ of
mandamus to redo the seniority list of Assistant
Engineers as on 01.04.2015 and to place the
appellants at an appropriate place in the seniority list.
4. The learned Single Judge by an order dated
05.01.2021 has dismissed the writ petition in view of
order dated 09.04.2014 passed in W.P. Nos.19518-
19533/2014, in which final gradation list of Assistant
Engineers was upheld. In the aforesaid factual
background, this intra court appeal has been filed.
5. Learned counsel for the appellants
submitted that Regulation 8(XIV) of the Bangalore
Water Supply and Sewerage Board Regulations, 1981
(hereinafter referred to as 'Regulation' for short) has
not been taken into account in the order dated
09.04.2014 passed in W.P. Nos.19518-19533/2014.
It is further submitted that the aforesaid judgment is
per incuriam and therefore, does not apply to the facts
of this case. In support of aforesaid submission,
reliance has been placed on decisions of Hon'ble
Supreme Court in AMALGAMATED COALFIELDS
LTD. & ANR v. JANAPADA SABHA CHINDWARA &
ORS - AIR 1964 SC 1013 and V KRISHAN RAO v.
NIHIL SUPER SPECIALITY HOSPITAL & ANR - 2010
(5) SCC 513.
6. On the other hand, learned Senior Counsel
for respondent No.4 has submitted that, in the
aforesaid judgment, the Regulations have been taken
into account. It is also submitted that since seniority
list was impugned in the said writ petition and the
writ petition has been dismissed. It is also pointed
out that the order passed by the learned Single Judge
has been upheld by the division bench of this Court
and has therefore attained finality.
7. We have considered the submissions made
on both sides and have perused the records. The
principles that finality should attach to binding
decision of Courts and individuals should not be
vexed twice over the same kind of litigation have been
held to form the foundation of general rule of res
judicata. The issue whether the principles of res
judicata apply to writ proceeding is no longer res
integra and has been answered in affirmative by the
Constitution Bench of the Hon'ble Supreme Court in
DARYAO v. STATE OF U.P. - AIR 1961 SC 1457,
VIRUDHUNAGAR STEEL ROLLING MILLS LTD v.
GOVERNMENT OF MADRAS - AIR 1968 SC 1996
AND SHANKAR COOPERATIVE HOUSING SOCIETY
LTD. v. M PRABHAKAR & ORS - (2011) 5 SCC 607.
Similarly, the principles of constructive res judicata
have been made applicable to writ proceedings (See:
DIRECT RECRUIT CLASS II ENGINEERING
OFFICERS' ASSOCIATION v. STATE OF
MAHARASHTRA - (1990) 2 SCC 715, S. NAGARAJ
(DEAD) BY LRS & ORS v. B R VASUDEVA MURTHY
AND ORS - (2010) 3 SCC 353, M NAGBHUSHANA v.
STATE OF KARNATAKA - (2011) 3 SCC 408 AND
UNION OF INDIA v. S P SHARMA - (2014) 6 SCC 351
8. It is equally well settled proposition that a
person affected by an order has to assail the same
within the time limit prescribed for doing so. We may
refer to the following passage from SMITH v. EAST
ELLOE RURAL DISTRICT COUNCIL - 1956 AC 736:
"... An order, even if not made in good
faith, is still an act capable of legal
consequences. It bears no brand of invalidity
on its forehead. Unless the necessary
proceedings are taken at law to establish the
cause of invalidity and to get it quashed or
otherwise upset, it will remain as effective for
its ostensible purpose as the most impeccable
of orders."
The aforesaid principle was approved by Hon'ble
Supreme Court in STATE OF KERALA v. M K
KUNHIKANNAN NAMBIAR MANJERI MANIKOTH,
NADUVIL (DEAD) & ORS. - (1996) 1 SCC 435 and
KRISHNADEVI MALCHAND KAMATHIA v. BOMBAY
ENVIRONMENTAL ACTION GROUP - (2011) 3 SCC
363.
9. In the instant case, admittedly, the validity
of the final gradation list of Assistant Engineers was
assailed in W.P. No.19518-19533/2014. Learned
Single Judge of this Court by an order dated
04.09.2014 by taking into account the Regulations
which have been referred to in paragraph Nos.5, 6 and
7 of the order, dismissed the writ petition. The
aforesaid order passed by the learned single Judge
was assailed in W.A. No.3291-3294/2016 and the
appeal preferred was dismissed vide judgment dated
17.10.2017 on the ground of delay and latches. The
issue pertaining to validity of the gradation list of
Assistant Engineers has attained finality and same
binds the parties. Therefore, challenge to the
gradation list in the writ petition was barred on the
principles of res judicata and the learned Single Judge
rightly declined to entertain the writ petition.
For the aforementioned reasons, we do not find
any merit in the appeal. The same fails and is hereby
dismissed.
In view of dismissal of the writ appeal, the
pending application do not survive for consideration
and is accordingly disposed of.
Sd/-
ACTING CHIEF JUSTICE
Sd/-
JUDGE
RV
