Rashtriya Sanskrit Sansthan vs Dr.K.Sarala Devi
2021 Latest Caselaw 14186 Ker

WA No.289/2020                     -1-

            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT
         THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
                                   &
                 THE HONOURABLE MR. JUSTICE GOPINATH P.
      THURSDAY, THE 8TH DAY OF JULY 2021 / 17TH ASHADHA, 1943
                           WA NO. 289 OF 2020
AGAINST THE JUDGMENT IN WP(C) 17004/2012 OF HIGH COURT OF KERALA
APPELLANT/2nd RESPONDENT:

            RASHTRIYA SANSKRIT SANSTHAN,
            (DEEMED UNIVERSITY), 56-57 INSTITUTIONAL
            AREA,JANAKAPURI, NEW DELHI - 110 058, REP. BY ITS
            REGISTRAR.
            BY ADV SRI.N.M.MADHU,SC,RASHTRIYA SANKRI SD UT


RESPONDENTS/PETITIONER/1ST RESPONDENT:

     1      DR.K.SARALA DEVI,
            RETIRED ASSISTANT PROFESSOR, RASHTRIYA SANSKRIT
            SANSTHAN, GURUVAYOOR CAMPUS, PURANATTUKARA P.O.,
            THRISSUR - 680 551, RESIDING AT KEERTHANA,
            DR.V.K.NARAYANA MENON ROAD, THRISSUR - 680 005.
     2      THE UNION OF INDIA,
            REP. BY ITS SECRETARY, DEPARTMENT OF EDUCATION,
            MINISTRY OF HUMAN RESOURCES DEVELOPMENT, NEW DELHI -
            110 001.
            BY ADVS.
            SRI.S.P.ARAVINDAKSHAN PILLAY AND SMT.N.SANTHA
            SHRI.P.VIJAYAKUMAR, ASG OF INDIA
            SRI.PETER JOSE CHRISTO
            SRI.S.A.ANAND
            SMT.K.N.REMYA

THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 08.07.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WA No.289/2020                            -2-

                                                                                 'C.R.'
                                    JUDGMENT

Gopinath, J.

This appeal arises out of the judgment of a learned single Judge of this

Court in W.P.(C)No.17004/2012. The appellant was the 2nd respondent in that

Writ Petition.

2. The writ petitioner was appointed as a Lecturer by an institution

known as 'Guruvayoor Sahithya Deepika Sanskrit Vidya Peetham', in the year

1974. The said institution was taken over by the appellant, a deemed University,

in the year 1979. The writ petitioner earlier approached this Court through W.P.

(C)No.7261/2007, which was disposed of by Ext.P1 judgment dated 30.10.2007

finding that the writ petitioner was entitled to be absorbed as a Lecturer, on the

take over of the Vidya Peetham by the appellant. It is also found that, if the writ

petitioner is, based on such absorption as Lecturer, entitled to continue in

service till the age of 62, she shall be allowed to continue in service till the age of

62. It is not disputed that this judgment has become final. The writ petitioner,

thereafter, filed representations claiming successive promotion as Associate

Professor, Reader and Professor under the career advancement scheme (CAS) of

the University Grants Commission (UGC). Ext.P.1 judgment was implemented

through Annexure.R(1)(a) and by Annexure-R1(a) dated 03.03.2010, the writ

petitioner and one other Lecturer were also granted senior scale on completion

of eight years of regular service from the date of absorption. It is the case of the

writ petitioner that she is entitled to be granted the benefits of Lecturer

(Selection Grade) with effect from 16.7.1995, that of Reader with effect from

10.5.1996 and thereafter to the category of Professor under the provisions of the

career advancement scheme of the University Grants Commission. The

representation submitted by the writ petitioner as Ext.P5, on 9.3.2012 was

rejected by the appellant University through Ext.P6 communication dated

14.6.2012. The writ petition was, therefore, filed challenging Ext.P6 and Ext.P.8

(minutes of the selection committee) which considered and rejected the case of

the writ petitioner for placement in the post of Selection Grade Lecturer/Reader

under the career advancement scheme of the University Grants Commission.

3. On a consideration of the matter, the learned single Judge found

that the reasons mentioned for denying the benefits under the career

advancement scheme for Selection Grade Lecturer/Reader etc., (which was

primarily that the refresher courses undertaken by the Writ Petitioner in the year

1992 and 1995 could not be reckoned as she had not undertaken the refresher

courses after placement in the senior course and after the requisite period of

service) was found unsustainable. The learned Single Judge also found that

persons similarly placed had been granted the benefits and it will be arbitrary

and unlawful to deny such benefits to the writ petitioner.

4. We have heard Sri. N.M. Madhu, the learned Standing Counsel

appearing for the appellant University and Sri. S.P. Aravindakshan Pillay, the

learned counsel appearing for the 1st respondent /writ petitioner.

5. It is the primary contention of the learned counsel for the appellant

that the writ petition filed by the 1st respondent was clearly not maintainable as it

is hit by the principles of res judicata and/ or constructive res judicata. He

would also submit that the claims raised by the writ petitioner cannot be

considered on account of the fact that, as is evident from the prayer made in the

writ petition itself, the writ petitioner was claiming placement as Selection

Grade Lecturer with effect from 16.7.1995 and as a Reader from 10.5.1996 in a

writ petition, which has been filed only in 2012 and after the retirement of the

writ petitioner. He would submit that the reliefs sought in the writ petition

cannot be considered or granted on the principles akin to that contained in

Order II Rule 2 of the Code of Civil Procedure in as much as the claims as raised

in the present writ petition, out of which this appeal arises, were very much

available at the time when the earlier writ petition, namely W.P.

(C)No.7261/2007 was filed in this Court. Failure, if any, of the writ petitioner to

raise appropriate claims at that point of time constitutes, according to him, an

omission to sue. On the merits of the claim, he would refer to the contentions

taken in the counter affidavit to demonstrate that the writ petitioner was not

eligible for placement in the scale of Selection Grade Lecturer/Reader etc., in

terms of the provisions contained in the career advancement scheme of the

University Grants Commission. Regarding the claim that similarly placed

persons had been granted the benefit, the learned counsel submits that, firstly,

those persons had raised claims for placement at an appropriate time and

without delay and further that it is only after finding those persons were eligible

in terms of the scheme that they were given such placements. He also says that

there were no proper pleadings in the Writ Petition regarding the grant of benefit

to similar persons. The learned counsel for the appellant has placed reliance on

the judgment of this Court in Puthiyottil Kunhava and others v.

Kaniaattilchalil Mammadkutty; AIR 1990 Kerala 132, to contend that in

considering a plea of res judicata, the Court should not stand on hyper

technicalities and when the Court has reason to think that a suit or any issue is

barred by res judicata, the absence of a specific plea in that regard should not

stand in the way of the Court considering whether such an issue arises in the

matter. He would submit relying on the judgment of the Supreme Court in

Nagabhushana v. State of Karnataka & others; 2001 (3) SCC 408 that

the principle of res judicata is a doctrine to be invoked in public interest in as

much as it is a fundamental principle of law that no one ought to be vexed twice

in litigation on what is, essentially, the same cause of action. He places reliance

on the judgment of the Supreme Court in Nand Ram (Dead) Through Lrs.

and others v. Jagdish Prasad (Dead) Through Lrs; 2020(9) SCC 393 to

contend that the claim as now raised by the writ petitioner is not something

which arose collaterally or incidentally in the earlier proceedings and that where

such issues were directly involved, the earlier proceeding would be a bar for

entertaining the subsequent proceedings. He placed reliance on the judgment of

a Division Bench of this Court in State of Kerala and others v. Babu. S

and others; 2020 (1) KHC 137 to contend that where there is a substantial

delay in claiming a particular benefit and where such a claim is not in respect of

a continuing wrong, the monetary claim for pay fixation and other benefits could

not be raised. He also relied on Union of India v. C. Girija, (2019) 15 SCC

633 to contend that stale claims which are hit by delays and latches cannot be

adjudicated. Finally, he relies on a Division Bench judgment of this Court in

State of Kerala v. Bhaskaran Pillai; 2003 KHC 10 to contend that a

person, who did not diligently prosecute his cause cannot claim any monetary

benefit from an anterior date. He also placed reliance on the judgment of the

Supreme Court in S.Krishnamurthy v. General Manager, Southern

Railway; 1976(4) SCC 825 for the same proposition.

6. The learned counsel for the writ petitioner submits that a reading of

Ext.P1 judgment itself would suggest that the appellant University was acting in

a vindictive manner in considering the claims of the writ petitioner. He submits

that Ext.P1 judgment was implemented only after the University lost the writ

appeal filed before a Division Bench and after a Special Leave Petition

challenging that judgment was dismissed and further after attempting a review

petition in the matter. He refers to Annexure-R1(b), which has been placed on

record in the writ appeal together with an affidavit dated 29.6.2021 to show that

Ext.P1 judgment was implemented only on 30.9.2008 and also refers to the very

same document to contend that his client was assured that all other claims for

further promotion/placement would be considered on fulfilment of the

guidelines prescribed by the University Grants Commission. He submits with

reference to Exts.P5 representation and P6 order rejecting that representation

that there is no delay in approaching this Court as Ext.P5 was rejected only on

14.6.2012 through Ext.P6. In response to the contention of the learned counsel

for the appellant that the claim regarding similar benefit extended to others, the

learned counsel for the writ petitioner relies on Ext.P5(a), which is a

representation submitted on 1.3.2011. He refers to the judgment of this Court in

Sucheendran v. State of Kerala; 2005(3) KLT 499 to submit that the

contention of the learned counsel for the appellant that the writ petitioner is

claiming the benefit attached to the post in which she was never worked is

completely fallacious. The learned counsel refers to the judgment of the

Supreme Court in Ram Harakh (Dead) by Lrs. v. Hamid Ahmed Khan

(Dead) by Lrs.; 1998 (7) SCC 484 to contend that a new plea of res judicata or

constructive res judicata which was not raised in the proceedings before the

learned Single Judge should not be permitted to be raised at the appellate stage.

To the same effect, he says, is the judgment of the Supreme Court in the State

of Haryana and Ors. v. Johnson Matthey India Pvt. Ltd.; 2009 (17)

SCC 558. He also refers to a judgment of a Division Bench of this Court in

Balakrishnan @ Balan v. Venugopalan @ Venu; 2006(1) KLJ 577 to

contend for the proposition that a plea of res judicata cannot be determined in

the absence of the production of complete pleadings in the earlier proceedings.

In other words, he contends that a plea of res judicata, which was never raised

earlier, cannot be considered in an intra court appeal under Section 5 of the

Kerala High Court Act. The learned counsel for the writ petition has also relied

on Nand Ram (supra) to contend that the earlier proceedings will never

constitute res judicata in the present case. He also placed reliance on Indian

Oil Corporation Ltd. v. Joseph Paul; 2016(4) KLT 692 to contend that the

mere fact that prayer for placement as Reader was made in the earlier

proceedings will not bar the present relief as a mere finding in an earlier

proceeding will not constitute res judicata unless and until there was a right of

appeal against the judgment in the earlier proceeding. In other words, he

submits that in the earlier writ petition, his client had completely succeeded and

there was no reason for him to file an appeal against that judgment. He also

submits that there has been no delay in claiming any relief. He submits that the

appellant University had denied rightful promotion/placement etc., for years

together which had prompted him to approach this Court through W.P.

(C)No.7261/2007. He says that on this Court finding that the writ petitioner was

entitled to absorption as a Lecturer with effect from 1979, all further

promotions/placements etc. flowing out of such right for absorption ought to

have been granted by the appellant University. He also submits that findings in

Exts.P6 and P8 that his client was not entitled to placement as

Lecturer/Selection Grade Lecturer/ Reader etc. in terms of the career

advancement scheme of the University Grants Commission are incorrect.

7. We have considered the submissions. To examine the question as to

whether the present writ petition, out of which this writ appeal arises, was barred

by the principles of res judicata or constructive res judicata or the principles

contained in Order II, Rule 2 CPC, we called for the Judges' Papers in W.P.

(C)No.7261/2007. We notice from the pleadings in that writ petition that a

specific prayer was made regarding appointment/placement as Reader and

further that the claim as raised now was definitely available to be raised at the

time when W.P.(C)No.7261/2007 was filed in this Court. Indeed, the plea of res

judicata was not raised in the proceedings before the learned single Judge.

While it would have been appropriate for the appellant University to raise such

plea in the proceedings before the learned single Judge, it having been raised

before us in an intra court appeal under Section 5 of the Kerala High Court Act,

we believe that such a plea must be examined despite the passionate plea of the

learned counsel for the writ petitioner that we should not, in the absence of such

a plea before the learned single Judge, entertain the same at the appellate stage.

In Canara Bank v. N.G. Subbaraya Setty, (2018) 16 SCC 228 it was held:-

"3. This Court in Daryao v. State of U.P. [Daryao v. State of U.P., (1962) 1 SCR 574 : AIR 1961 SC 1457] , put it very well when it said: (SCR pp. 583-84 : AIR p. 1462, para 10) "10. In considering the essential elements of res judicata one inevitably harks back to the judgment of Sir William De Grey (afterwards Lord Walsingham) in the leading Duchess of Kingston case [Duchess of Kingston case, In re, (1776) 2 Smith LC 644 (13th Edn.) : 168 ER 175 : (1776) 1 Leach 146] pp. 644-45. Said William De Grey, (afterwards Lord Walsingham) "from the variety of cases relative to judgments being

given in evidence in civil suits, these two deductions seem to follow as generally true: First, that the judgment of a court of concurrent jurisdiction, directly upon the point, is as a plea, a bar, or as evidence, conclusive between the same parties, upon the same matter, directly in question in another court; Secondly, that the judgment of a court of exclusive jurisdiction, directly upon the point, is in like manner conclusive upon the same matter, between the same parties, coming incidentally in question in another court for a different purpose". As has been observed by Halsbury, 'the doctrine of res judicata is not a technical doctrine applicable only to records; it is a fundamental doctrine of all courts that there must be an end of litigation'. [Halsbury's Laws of England, 3rd Edn., Vol. 15, Para 357, p. 185]'. Halsbury also adds that the doctrine applies equally in all courts, and it is immaterial in what court the former proceeding was taken, provided only that it was a court of competent jurisdiction, or what form the proceeding took, provided it was really for the same cause (p. 187, Para 362). "Res judicata", it is observed in Corpus Juris, "is a rule of universal law pervading every well-regulated system of jurisprudence, and is put upon two grounds, embodied in various maxims of the common law; the one, public policy and necessity, which makes it to the interest of the State that there should be an end to litigation -- interest reipublicae ut sit finis litium; the other, the hardship on the individual that he should be vexed twice for the same cause -- nemo debet bis vexari pro eadem causa" [Corpus Juris, Vol. 34, p. 743]. In this sense the recognised basis of the rule of res judicata is different from that of technical estoppel. 'Estoppel rests on equitable principles and res judicata rests on maxims which are taken from the Roman Law' [Ibid p. 745]. Therefore, the argument that res judicata is a technical rule and as such is irrelevant in dealing with petitions under Article 32 cannot be accepted."

The decisions in Ram Harakh (supra) and Johnson Matthey India Pvt.

Ltd. (supra) on which considerable reliance was placed by the Learned Counsel

for the Writ Petitioner do not, in our opinion, lay down the proposition that a

plea of res judicata cannot be raised in an intra court appeal, as in this case. The

facts in Ram Harakh (supra) which led to the finding that a plea of res

judicata could not be raised were completely different as is evident from a

reading of paragraph 7 of the report (SCC). For the sake of clarity, we deem it

appropriate to extract paragraph 7 of Ram Harakh (supra) (to the extent it is

relevant) which reads:-

"7. So far as the second contention on the plea of res judicata is concerned, it is true that a certified copy of the judgment dated 10-9-1953 of the first civil court was produced before the consolidation authorities. However, nothing was argued on that basis for getting an order from the consolidation authority in the first instance nor was that judgment pointed out before the appellate authority or the revisional authority nor even before the High Court. Such a contention was also not taken in the memo of the special leave petitions. Under these circumstances, therefore, the questions whether the earlier decree was by a competent court or not or whether it was ever taken in appeal or not will raise highly disputed factual controversies. It is also interesting to note that if two suits were filed on the same day for the same lands against the same defendants in two courts and if the first suit had already got disposed of on 10-9-1953 and was in favour of the respondents in respect of 7 plots and for the rest of the plots it was in favour of the appellants, then when the second suit reached for hearing before the trial court after seven long years in 1960, it could have been easily pointed out by the appellants before the second court that the proceedings before the second court were barred on the principle of res judicata in view of the fact that the decision in the first court had been rendered seven years back by another competent civil court. But they failed to do so. Therefore, the moot question arises for consideration whether there was really a decree of a

competent court in the first suit rendered by the civil court and whether it had become final. All these aspects would be required to be considered before the plea of res judicata could be entertained. Such a contention of res judicata based on mixed questions of law and facts, therefore, cannot be entertained by us for the first time at this stage. ......"

Johnson Matthey India Pvt. Ltd. (supra) was a case where, in the absence

of a specific plea, the matter was remanded to the High Court for fresh

consideration. These precedents have no application here. The Division Bench

judgment of this Court in Balakrishnan @ Balan (supra) also cannot come to

the aid of the Writ Petitioner. As already indicated we have examined the issue

after calling for the Judge's papers in W.P.(C)No.7261/2007. Therefore the

question of non-production of the pleadings or the inability of the Court to take

note of the same (in the case of its non-production) does not arise here. Nand

Ram (supra) is authority for the proposition that "......if a matter was only

"collaterally or incidentally" in issue and decided in an earlier proceeding, the

finding therein would not ordinarily be res judicata in a latter proceeding

where the matter is directly and substantially in issue." This is not the case

here. Therefore, Nand Ram (supra) has no application to the facts of this case.

We have no hesitation to reject the plea, built upon the ratio of Indian Oil

Corporation Ltd. (supra) (which in turn relies on the judgment of the

Supreme Court in Ramesh Chandra v. Shiv Charan Dass & Ors. - AIR

1991 SC 264) that the principle of res judicata should not be applied as the writ

petitioner did not have a chance to file any appeal against Ext.P.1 judgment in

W.P.(C)No.7261/2007. As we have already noticed, the writ petitioner had a

specific prayer in W.P.(C)No.7261/2007 for placement in the post of Reader

under CAS. If that prayer was not granted in Ext.P.1 judgment, it was always

open to the Writ Petitioner to file an appeal against the denial of such relief. It

was, however, not open to the Writ Petitioner to file W.P.(C)No.17004/2012

seeking the same relief, after several years.

8. Even if we were to hold that the principle of res judicata was not

applicable, considering the nature of the relief sought in W.P.(C)No.7261/2007,

the principle of constructive res judicata will certainly apply. We have already

noticed that the writ petitioner was claiming placement as Selection Grade

Lecturer with effect from 16.7.1995 and as a Reader from 10.5.1996. These

prayers were open to be agitated in W.P.(C)No.7261/2007. In Direct Recruit

Class II Engineering Officers' Association v. State of Maharashtra,

(1990) 2 SCC 715, a Constitution Bench of the Supreme Court reiterated the

principle of constructive res judicata after referring to Forward

Construction Co. v. Prabhat Mandal, (1986) 1 SCC 100 thus:

".....The decision in Forward Construction Co. v. Prabhat Mandal (Regd.), Andheri [(1986) 1 SCC 100: 1985 Supp 3 SCR 766] , further clarified the position by holding 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. Thus, the principle of constructive res judicata underlying Explanation IV of

Section 11 of the Code of Civil Procedure was applied to writ case. We, accordingly hold that the writ case is fit to be dismissed on the ground of res judicata."

Thus even if the prayers sought in W.P.(C)No.17004/2012 (out of which this

appeal arises) were different from the prayers sought in W.P.(C)No.7261/2007,

the later writ petition was hit by the principle of constructive res judicata.

9. Order II Rule 2 of the Code of Civil Procedure deals with the

principle of 'omission to sue'. Though the Code of Civil Procedure, 1908 does not,

in terms apply to proceedings under Article 226 of the Constitution of India, the

principles thereof are certainly applicable. In the facts of the present case, the

learned counsel for the appellant is quite right in suggesting that at any rate there

is an 'omission to sue' for reliefs that could have been sought in W.P.

(C)No.7261/2007 and therefore that W.P.(C)No.17004/2012 could not be

maintained seeking reliefs which could have been but were not sought in W.P.

(C)No.7261/2007.

10. Further the writ petitioner is guilty of unexplained delay and latches.

The prayer for placement as Reader from 10.5.1996 was first sought in a writ

petition filed in the year 2007 (W.P.(C)No.7261/2007). However, that relief was

not granted in that Writ Petition. Thereafter W.P.(C)No.17004/2012 was filed in

the year 2012, with a prayer for placement as Selection Grade Lecturer with

effect from 16.7.1995 and as a Reader from 10.5.1996. In Union of India v. C.

Girija (supra) it was held:-

"18. Again, this Court in State of Uttaranchal v. Shiv Charan Singh Bhandari [State of Uttaranchal v. Shiv Charan Singh Bhandari, (2013) 12 SCC 179 : (2014) 3 SCC (L&S) 32] had occasion to consider question of delay in challenging the promotion. The Court further held that representations relating to a stale claim or dead grievance does not give rise to a fresh cause of action. In paras 19 and 23 following was laid down : (SCC pp. 184-85) "19. From the aforesaid authorities it is clear as crystal that even if the court or tribunal directs for consideration of representations relating to a stale claim or dead grievance it does not give rise to a fresh cause of action. The dead cause of action cannot rise like a phoenix. Similarly, a mere submission of representation to the competent authority does not arrest time."

***

23. In State of T.N. v. Seshachalam [State of T.N. v. Seshachalam, (2007) 10 SCC 137 : (2008) 1 SCC (L&S) 475] , this Court, testing the equality clause on the bedrock of delay and laches pertaining to grant of service benefit, has ruled thus : (SCC p. 145, para 16) '16. ... filing of representations alone would not save the period of limitation. Delay or laches is a relevant factor for a court of law to determine the question as to whether the claim made by an applicant deserves consideration. Delay and/or laches on the part of a government servant may deprive him of the benefit which had been given to others. Article 14 of the Constitution of India would not, in a situation of that nature, be attracted as it is well known that law leans in favour of those who are alert and vigilant.'"

Thus even if we were to ignore the prayer made in 2007 and hold that the W.P.

(C)No.17004/2012 is not hit by the principles of res judicata or constructive res

judicata, we would have to hold that W.P.(C)No.17004/2012 was barred on

account of delay and latches.

11. In the light of the aforesaid findings, we do not deem it necessary to

consider the merits of the claim raised by the Writ Petitioner.

12. In the result, we allow this appeal setting aside the judgment of the

learned Single Judge in W.P.(C)No.17004/2012. That Writ Petition will stand

dismissed. No costs.

sd/-

A.K.JAYASANKARAN NAMBIAR JUDGE

sd/-

GOPINATH P.

JUDGE acd