Deepak
S/O Yadavrao Gotefode vs Dy.Director(R) And Member ... on 4 December, 2015
Bench:
B.R. Gavai
WP.29.2014
IN THE
HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR
BENCH, NAGPUR.
Deepak s/o Yadavrao Gotefode,
Aged about 43 years, Occ. Service,
R/o Gopal Apartment, 3-B, Room
No. 7, 1st Floor, Vijay Nagar,
Kalyan (East), presently at
Nagpur. .... PETITIONER
// VERSUS //
1]
Dy. Director (R) & Member-
Secretary, Scheduled Tribe
Caste Certificate Scrutiny
Committee, Advisari Vikas
Bhavan, Giripeth, Nagpur,
2]
The Commissioner of Customs
(General), New Custom
House,
Ballard Estate, Mumbai-400 001.
.... RESPONDENT S
Shri S.R. Narnaware, Advocate for petitioner,
Smt. B. H. Dangre, Government Pleader
for respondent No.1.
Shri Rohit Deo, Assistant Solicitor
General of India for respondent
CORAM
: B.R. GAVAI & P.N. DESHMUKH, JJ.
DATED : DECEMBER 4, 2015.
ORAL JUDGMENT (PER B.R. GAVAI, J.).
1] Rule returnable forthwith. Heard the learned Counsel for
the parties finally by consent.
WP.29.14 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 (Annexure-10) 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 WP.29.14 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 ofMilind 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 WP.29.14order 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 WP.29.14 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 Deorao Nandanwar (Ku.) Vs. Chief Officer, Division Bench of this
Court in Vijaya 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 straight-jacket 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 WP.29.14 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 r ward Construction also relies on the judgment of
the Apex Court in the case of Fo 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 WP.29.14 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 WP.29.14 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 WP.29.14 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 WP.29.14 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 WP.29.14 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 underArticle 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 underArticle 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 underArticle 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.
WP.29.14 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 othersreported 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 resWP.29.14 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 re-agitate 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).
WP.29.14 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 WP.29.14 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.
WP.29.14
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 WP.29.14 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 20 th 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 WP.29.14 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 WP.29.14 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.
JUDGE
JUDGE
J.
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