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Judgment
A.K.Jayasankaran Nambiar, J.
We have gone through the averments in the Review Petition as also the decisions mentioned therein, which lay down the proposition that once a matter in controversy in a suit has received judicial determination and the defendant in the suit obtains a vested right consequent to the decree, it is only in exceptional circumstances that the suit itself should be permitted to be withdrawn at the appellate stage.
In the case at hand, we had taken into account the submissions made on behalf of the learned counsel for the appellants/writ petitioners that in the Writ Petition, a challenge against the applicable Service Rules had not been raised, and in view of the subsequent decisions of the Supreme Court which had already decided the issue on merits against the writ petitioners, sans a challenge to the Rules, he would be left without a remedy if the appeal was dismissed based on the contentions raised in the writ petition. We felt that since the issue raised in the writ petition was already decided against the writ petitioners under circumstances where the service rules had not been challenged, they could be permitted to test the validity of the rule in fresh proceedings without falling foul of the rule of constructive res judicata. We therefore permitted the appellants/writ petitioners to withdraw the Writ Petition itself so that they could file a fresh Writ Petition challenging the applicable Service Rules.
We also find that at any rate, pursuant to the judgment under review, the appellants/writ petitioners have already filed a fresh Writ Petition, which is pending consideration before a learned Single Judge of this Court. Under the said circumstances, we see no reason to now review our earlier judgment dated 17.11.2022 in W.A.No.1687 of 2022. The Review Petition therefore fails and is accordingly dismissed.