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Judgment
,,,
Abhijit Gangopadhyay, J.",,,
The petitioners in this writ application have prayed for fixation of their pay scale following ROPA Rules 1998 and ROPA Rules 2009 and payment,,,
of current salaries and admissible allowance as per ROPA Rules, 2009. They have not pressed any other prayers made in the writ application. The",,,
petitioners are teachers of NTPC High School which, according to NTPC, has been named DAV public school .",,,
The relevant facts of the case are as follows.,,,
National Thermal Power Corporation (NTPC, in short, hereafter) wanted to establish a school with the approval of the Government of West Bengal",,,
and for that purpose, inter alia, gave an undertaking to the Director of School Education (SE), West Bengal on November 2nd, 1987. The undertaking",,,
is as follows.,,,
“No financial help from the state Govt. will be required at any time and that the scales of pay of the staff of this school will be the same/not less,,,
than as have been introduced by the State Govt. for Non-Govt schools.â€,,,
This undertaking of NTPC was signed by the General Manager of NTPC on 2nd November, 1987.",,,
On the basis of such undertaking the West Bengal Board of Secondary Education (WBBSE, in short, hereafter) granted the recognition, on",,,
conditions, inter alia, that “the salaries and other allowances of the teaching and non-teaching staff of the institution shall not be less than those",,,
allowed to their counter parts in recognized aided non-govt secondary institutions of this State.â€,,,
Another condition of WBBSE for granting recognition was “the retirement benefit of the staff shall not be lower than that of the staff of the,,,
aided non-govt secondary institutionsâ€.,,,
Thus, it is evident that recognition was conditional and against the recognition WBBSE wanted full protection of the teaching and non-teaching staff",,,
of the school so far as their salaries, allowances and retirement benefits are concerned.",,,
Accepting such conditions N.T.P.C started the school namely National Thermal Power Corporation High School (the School, in short, hereafter)",,,
and constituted Organising Committee of the school which was allowed to function maximum upto April 30th, 1990 with a direction that first Managing",,,
Committee of the school was to be constituted within the above date granted and the Managing Committee was to be constituted according to the,,,
Management of recognized Non-Govt Institutions (Aided and Unaided) Rules, 1969 framed under the WBBSE Act as amended.",,,
NTPC on February 2, 1988 published an advertisement for recruitment of Teachers in the school wherein it has been specified in clause 3 (three)",,,
of the advertisement that “The pay scales for all the categories shall be as per the West Bengal Board of Secondary Education and/or Rules laid,,,
down by the Govt. Of West Bengal for Aided and recognised non-Govt. School in West Bengal†The petitioners participated in the said recruitment,,,
process and were appointed as teachers of the school.,,,
Petitioners’ allegation is that though NTPC gave the undertaking dated November 2, 1987 and accepted the condition of the WBBSE as",,,
aforesaid and made advertisements as aforesaid, NTPC has not extended the benefit of the ROPA rules of 1998 and ROPA Rules of 2009.",,,
ROPA Rules are Revision of Pay and Allowances Rules framed by the Government of West Bengal for giving effect to the pay commission,,,
recommendation so far as the same is accepted and extends the benefit of such rules are extended to Government employees and also extended to,,,
School Teachers including teachers of non-government schools.,,,
The petitioners allege that they have been denied by NTPC the pay and allowances as per ROPA Rules of 1998 and of 2009 and they are not,,,
getting pay and allowances which are “same/not less than as have been introduced by the State Government for non-Government schools.â€,,,
contrary to the undertaking and the condition and the advertisement as aforesaid.,,,
NTPC and DAV college Managing Committee, (DAV, in short) are the two main respondents of the matter and they have filed their affidavits-in-",,,
opposition to which affidavits-in-reply have also been filed by the petitioner which have been perused by me.,,,
In its affidavit-in-opposition NTPC has raised a preliminary objection by contending that the writ application is liable to be dismissed in-limine as,,,
the same is barred by the principle of constructive resjudicata. This is the main objection of NTPC. DAV also has raised identical preliminary,,,
objection in its affidavit-in-opposition. According to NTPC and DAV, the petitioners filed another writ application in the year 1998 being W.P. No.",,,
2521 (W) of 1998 before this Hon’ble Court which was dismissed by this Hon’ble Court on 30.08.2000. The present writ petitioners were,,,
amongst the writ petitioners of the former writ application and they challenged the said order dated 30.08.2000 by filing an intra Court appeal which,,,
was dismissed.,,,
It has been submitted by the petitioners that the appeal was withdrawn as it became infructuous because in the meantime NTPC entered into an,,,
agreement with DAV for running the school.,,,
The said respondents submit that the prayers made and issued raised in the present writ application might and ought to have been made in the,,,
former writ application but were not done and in such a situation principle of constructive res judicata applies and the later writ application being the,,,
present writ application should be dismissed. Such allegation of the said respondents have been denied and disputed by the petitioners and they have,,,
made submissions in this regard.,,,
The preliminary objection of NTPC and DAV is required to be dealt with first.,,,
Explanation IV of section 11 of Code of Civil Procedure is known as constructive resjudicata.,,,
To put it simply, a matter which might and ought to have been made a ground of attack or defence in the former suit but was not done so by any of",,,
the parties, will also be deemed to have been a matter directly and substantially in issue in the later suit and the rules of res judicata will equally apply",,,
to it. Such a matter is regarded as having been constructively in issue and since the parties had an opportunity to put forward the issues, it is",,,
considered as having been actually controverted and decided.,,,
Principles of constructive res judicata apply even in a proceeding under Article 226 of the Constitution of India.,,,
It is settled law that the bar of constructive res judicata will only apply if a party omits to include one of the several causes of action arising out of,,,
the same set of facts and not when different and independent causes of action arise out of altogether different set of facts.,,,
In applying the doctrine of constructive res judicata identity of issues, and not identity of subject matter, is relevant. The mere fact that the plaintiff",,,
might or could have included his claim, is not sufficient; it must also be shown that he ought to have included it in the previous suit i.e. that he was",,,
bound to do so.,,,
One important test is to see whether by raising the question the decree which was passed in the previous suit could have been defeated, varied or",,,
in any way affected.,,,
If a matter could have been set up as a ground of attack in the former suit and if its introduction into that suit was necessary for a complete and,,,
final decision of the right claimed by the plaintiff therein, it will be deemed to be a matter which ought to have been made a ground of attack in that",,,
suit, unless the matter in that and the subsequent suit are so dissimilar that their union might lead to confusion or would have been incongruous to the",,,
matter in suit or if the inclusion of the present plea in the former suit would have been irrelevant.,,,
Now the question is what was the matter directly and substantially in issue in the former writ application between the parties herein?,,,
In the former writ application the teachers of the School made prayer for being treated as employees of NTPC and wanted service status, benefits",,,
and facilities as available to them as the employees of NTPC. The petitioners also prayed for a mandamus for not transferring the said school to any,,,
private organisation. A Writ of certiorari was prayed also. These were the main prayers. In the former writ application the Court held that the writ,,,
petitioners/teachers could not claim themselves to be the employees of NTPC. The Court also held that the policy of transfer of the said School was a,,,
decision of the organising committee (of the School) and not of NTPC. From the prayers made in the former writ application the issues involved,,,
therein become clear which gets emphasis from the decision of the Court. Appeal against the order of the former writ application was dismissed for,,,
non- prosecution and the dismissal was not on merit.,,,
The later writ application i.e. the present writ application relates to fixation of pay scale following ROPA rules 1998 and ROPA rules 2009 and,,,
payment of salaries accordingly. Here the issue is whether the petitioners are entitled to get and NTPC is liable to give the petitioners pay scale and,,,
allowances following the abovementioned ROPA rules.,,,
Thus the issue and the matter in the former writ application were completely different from the later writ application i.e. the present writ application.,,,
Here, from the wholly different matter in issue in the former writ application the question of omitting to include one of the several causes of action",,,
arising out of the same set of facts does not arise. Here, in the present case causes of action arise out of altogether different set of facts.",,,
The issue in the later writ application comparing to the former is so dissimilar that their union in the former writ application would have led to,,,
confusion and would have been incongruous and also the inclusion of the present plea in the former writ application would have been irrelevant. In the,,,
former writ application the teachers/petitioners wanted to be considered as employees of NTPC and claimed facilities and benefits similar to the,,,
NTPC employees. NTPC is a government company under the union of India and not under the state of West Bengal. The pay scale and other,,,
benefits of NTPC employees are not guided by the ROPA rules of State of West Bengal. Thus in the former writ application prayer made for the pay,,,
scale and other benefits similar to NTPC employees was a completely different matter and the issue raised therein is irrelevant to the present matter.,,,
Issue of paying the teachers following the abovementioned ROPA rules could not have been raised in the former writ application. Had such issue,,,
been raised in the former writ application it would have definitely led to confusion and would have been incongruous to the matter of the former writ,,,
application beside being irrelevant.,,,
The issues raised in the present writ application are so incongruous and so irrelevant to the matter raised in the former application that there was no,,,
scope to raise the present issue in the former writ application and thus the order that was passed in the former writ application could not have been,,,
defeated, varied or in any way affected.",,,
Thus, applying the above principles as to applicability of constructive res judicata it is found that the objection of constructive res judicata as has",,,
been raised by the respondents is of no merit.,,,
Thus in the back drop of the principles applicable for deciding if a former writ application creates a bar of constructive res judicata for a later writ,,,
application, I hold that the former writ application does not create a bar for the later writ petition i.e. the present writ application.",,,
Now the relevant points as mentioned in the affidavit-in-opposition of NTPC and also the affidavit-in-opposition of DAV may be seen.,,,
NTPC in its affidavit in opposition has, inter alia, stated as follows:",,,
(i) The School was transferred to DAV by agreement dated November 8, 2001.",,,
(ii) All expenditure of recurring nature are met by the School management Committee and any short fall of recurring nature is met up by NTPC as a,,,
grant to DAV.,,,
(iii) The School shall be renamed and will be known as DAV public School, NTPC, Farraka, affiliated to West Bengal Board of Secondary Education",,,
and West Bengal Council of Higher Secondary Education.,,,
(iv) NTPC will provide DAV:,,,
(a) School building consisting the class rooms.,,,
(b) Furniture and other facilities required to run the School.,,,
(c) Computers, laboratories for Physics, Chemistry, Biology and activity room etc.",,,
(d) Play ground.,,,
(e) Electricity, drinking water facility and adequate toilet facility.",,,
(f) Maintenance of the School building and furniture.,,,
(g) Official assistance for purchase of library books.,,,
(h) Assistance for purchase of Laboratory items etc.,,,
(i) residential accommodation for the Head of the school,",,,
(j) residential accommodation for teachers and other staff subject to availability of the same.,,,
(k) Medical facility for the family members of the staff of the school.,,,
(l) Recreation facility etc.,,,
(v) A peculiar and strange situation has arisen in the School as there are two types of staff in the School, one set under the direct control of School",,,
Management Committee (those who did not join the services under the DAV CMC society) and the other set recruited by DAV CMC society.,,,
(vi) NTPC does not retain any control over the management of DAV public High School and thus NTPC is not a necessary or proper party of the,,,
writ application.,,,
(vii) The conditions of affiliation granted by WBBSE are presently binding on the School management and not upon NTPC.,,,
DAV in its affidavit-in-opposition has, inter alia, stated as follows:",,,
(i) DAV society entered into an agreement with NTPC on 8.11.2001. As per the agreement the erstwhile staff of the School were to appear in an,,,
interview conducted by the DAV CMC Society but none of them including the petitioners appeared in the interview conducted by the DAV CMC,,,
Society creating a peculiar situation where two sets of employees have now come into existence (a) one of the erstwhile management and (b) those,,,
recruited by DAV CMC society by following a regular selection process.,,,
(ii) The Society will constitute a Local Managing Committee (LMC) for looking after, co-ordinating and managing the affairs of the school as per",,,
WBBSE & WBCHSE (West Bengal Council for Higher Secondary Education) requirement/ norms.,,,
The President of the Society or his nominee will be the Chairman of the Local Managing Committee of the school. The General Manager/Head of the,,,
Project, NTPC Farakka or his nominee will be the Vice-Chairman of the School. In addition, General Manager/ Head of the Project, NTPC Farakka",,,
will nominate 3 (Three) more members from NTPC and Society shall nominate 4 (Four) more members to be the member of the said Local Managing,,,
Committee. Members shall be appointed/ nominated as per WBBSE/WBCHSE norms.,,,
DAV public School, NTPC, Farakka will function under the supervision of Local Managing Committee of the school subject to over all control of",,,
Society. (iii) The staff of the existing school functioning under present School Management Committee will not be the liability of the DAV Society and,,,
the Society will not be bound to absorb the employees of the existing school, however, the staff members under the existing School Management i.e.",,,
the present School Managing Committe will be given a chance to attend the interview conducted by DAV CMC to select the staff for the school,,,
under reference. If any staff members at present employed by the present School Management Committee for the existing school is found suitable,",,,
may be given employment afresh by the DAV Management. In such an event the concerned employee(s) will resign from the present School,,,
Management Committee and the payment of all dues for the period of earlier service with the present School Management Committee will be the,,,
liability of the Enterprise.,,,
(iv) It is very unfortunate that even after several advertisements for appointment of teachers in the year 2002, 2003, 2005, 2006 for different subject",,,
none of the writ petitioners applied for or they were ready to appear in such recruitment process of teachers of DAV public School, NTPC, Farakka",,,
as such the writ petitioners and some like teachers never became teachers of DAV public School, NTPC, Farakka rather on the request of NTPC",,,
Farakka Management and on humanitarian ground those teachers were continued to be given the salary as was drawn by them earlier as teacher of,,,
the NTPC High School (Bengali Medium) with some enhancement and a separate set of teachers were appointed by the DAV college Trust and,,,
Management Society as teachers of DAV public school, NTPC, Farakka and the teachers of the DAV public School, NTPC, Farakka draw the",,,
salary as per the norms of DAV College Trust Management Society.,,,
(v) As per clause 6 of the agreement the liability with respect to the previous teachers of the NTPC High School (Bengali Medium) has been,,,
determined, the specific points to be noted that the National Thermal Power Corporation Limited has several Projects all over India and in several",,,
Project there are some schools like the NTPC High School(Bengali Medium) run by some local Managing committee and as per the information the,,,
existing teachers of the year 2001 of NTPC High School (Bengali Medium) were offered two options at that time either ‘to transfer in other,,,
Schools in other state project run Schools’ or ‘the staff members under the existing School Management i.e. the present School Managing,,,
Committee will be given a chance to attend the interview conducted by DAV CMC to select the staff for the school under reference.,,,
The relevant terms of the agreement between NTPC and DAV are required to be noted which are as follows:,,,
“Clause 2. That under the terms and conditions, hereinafter set forth, the society agrees to manage and control the functioning of the school as a",,,
composite-co-educational Senior Secondary School in Bengali Medium on Public School lines affiliated to the West Bengal Board of Secondary,,,
Education & West Bengal Council for Higher Secondary Education hereinafter called WBBSE& WBCHSE.â€,,,
“Clause 14. That the LMC and NTPC, Farakka shall ensure continued affiliation of the school with WBBSE & WBCHSE.â€",,,
From a reading of the affidavits of NTPC and of DAV it is found that:,,,
(i) The teachers recruited by NTPC for NTPC High School, Farraka is nobody’s responsibility. The service conditions including pay and",,,
allowances of teachers of the School recognized by WBBSE have been altered by way of an agreement between NTPC and DAV wherein teachers,,,
of the School (i.e. NTPC High School) had no say though they were the persons most affected by such alteration.,,,
(ii) They are not being paid according to the undertaking, the condition put by WBBSE for recognition and following the advertisement of NTPC in",,,
1988 for recruitment of Teachers.,,,
In this regard considering the facts and circumstances of the case, I hold that because of the undertaking given by NTPC to the Director of Schools",,,
(SE), Government of West Bengal and after accepting the recognition by NTPC from the WBBSE (which both NTPC and DAV want to continue as",,,
Serial No.,Date of Advertisements,Name of Newspaper,For which School :
1.,25.03.2003,Anandabazar Patrika,"N T P C High School,
Farakka
2.,27.04.2004,Anandabazar Patrika,"N T P C High School,
Farakka
3.,03.05.2005,Sambad Pratidin,"N T P C High School,
Farakka
4.,11.07.2005,Dainik Statesmen,"N T P C High School,
Farakka
5.,20.09.2005,Anandabazar Patrika,"N T P C High School,
Farakka
6.,04.04.2006,Anandabazar Patrika,"N T P C High School,
Farakka
to teachers of all other non-government school recognised by WBBSE. This was also admitted by NTPC in its advertisement dated February 4, 1988",,,
which appears term annexure P-5 of the writ application. NTPC in making such changes acted with highhandedness in the matter of the petitioners,,,
who are the teachers of the School and not the serfs of NTPC who can be transferred in the hand of a different master whenever the authority( here,,,
NTPC) so thinks.,,,
In the facts and circumstances as aforesaid the writ application is allowed. This court directs NTPC to fully comply with the undertaking given to,,,
the Director of School Education (SE), Government of West Bengal on 2nd November, 1987 and to act fully following the conditions given by WBBSE",,,
in its recognition letter dated 11.05.1989 which was accepted by NTPC which recognition is still being used by NTPC and DAV. I further direct,,,
NTPC to pay the salary and allowances to the petitioners in terms of the ROPA Rules 1998 with all consequential benefits arising therefrom and also,,,
the ROPA Rules 2009 with all consequential benefits arising therefrom, from December 01, 2018 and to pay arrear pay and allowances which was",,,
required to be paid to the petitioners from the date when the pay and allowances equal to the salaries of the Assistant Teachers of non-government,,,
Schools were stopped, with interest at the rate of 8% on the total arrear amount from that day till the date of payment. Such arrear salary and",,,
allowances must be paid by NTPC within a period of three months from the date of pronouncement of this judgment.,,,
In the affidavit-in-opposition of both NTPC and DAV I have found that they have tried to take advantage of the order passed in W.P. No. 2521,,,
(W) of 1998 on August 13, 2000 to deny the pay scale and allowances of the petitioners as was required to be paid to them as per the undertaking, the",,,
conditions imposed by WBBSE and the advertisement issued by NTPC for recruiting teachers in the year 1988. NTPC and DAV has tried to cover,,,
its illegal act of denying the above pay scale to the petitioners by using the said order dated August 8, 2000 being totally oblivious that no order of a",,,
court let alone order of a writ court gives liberty to any of parties to act illegally using the order.,,,
As retiral benefits are a consequence of qualified service of an employee, NTPC is also directed to pay retiral benefit to all the petitioners after",,,
their retirement from the school.,,,
NTPC is directed to pay cost to each of the petitioners an amount of Rs. 20,000/- (twenty thousand) within a period of two months from date and",,,
further cost is imposed on NTPC for making statements to mislead the court and for making incorrect statements in its affidavit-in-opposition knowing,,,
the same to be incorrect, a cost of Rs. 1,00,000/- which is to be paid to the West Bengal Legal Services Authority within a period of two months from",,,
date.,,,
By the above order the writ application is allowed.,,,