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Judgment
Abdul Moin, J
Supplementary affidavit filed today by learned counsel for the petitioner be kept on record.
Heard Sri Divyashnu Sahay, learned counsel for the petitioner, learned Standing Counsel and Sri Himanshu Hemant Gupta, learned counsel appearing for the respondents/Corporation.
By means of the present petition, the petitioner has prayed for the following reliefs:-
"(i) Issue an appropriate writ mandamus direction or order to the Respondents directing them to disburse arrears of salary alongwith emoluments, gratuity, leave encashment as also annual increments to the petitioner in terms of the G.O. dated 10.7.1998 read with G.O. dated 17.12.1998 and Office Order dated 28.1.2017 (Annexure-16) and G.O. dated 08.12.2008 read with G.O. dated 29.12.2016 and Resolution dated 06.06.2018 of ITTUP (Annexure- 23) after giving benefit of the policy of Assured Career Progression notified by G.O. dated 02.12.2000; and dearness allowance payable in terms of G.O. dated 22.9.2005 but not paid since 01.01.2001.
(ii) Issue an appropriate mandamus direction or order to the Respondents pay interest at the rate of 15% p.a. to the arrears of salary due to the Petitioner on account of Fifth Pay Revision w.e.f. 01.01.1996, Sixth Pay Revision w.e.f. 1.01.2006, and dearness allowance withheld from 01.01.2001.
(iii) Allow the present writ mandamus with costs.
(iv) Pass any other order as this Hon'ble Court may deem fit and necessary in the interest of justice"
The case set forth by the petitioner is that the petitioner is an employee of the Institute of Tool Room Training U.P. (hereinafter referred to as the ITTUP) who retired on 30.4.2011. Earlier, the petitioner had filed Writ Petition No.375 of 1985 In re: Sharvan Kumar vs. Institute of Tool Room Training, U.P. and others before this Court praying for the following reliefs:-
"(i) issue a writ, order or direction in the nature of Mandamus commanding the opposite parties no.1 to 3 not to make any hostile discrimination between the petitioner and the opposite parties no.4 to 6 regarding grant of annual increments in the wage revision.
(ii) issue a writ, order or direction in the nature of Mandamus commanding the opposite parties no.1 to 3 to grant petitioner also atleast five annual increments.
(iii) issue any other writ, order or direction which this Hon'ble Court may deem fit in the circumstances of the case, in favour of the petitioner.
(iv) award costs of this petition to the petitioner."
The said writ petition was disposed of with a direction to the respondents to consider the representation of the petitioner. When the representation of the petitioner was rejected, the petitioner filed Writ Petition No.9651 of 1988 In re: Sharvan Kumar vs. State of U.P. and others, which writ petition was dismissed vide judgment and order of this Court dated 27.7.1999. Though the copy of the said judgments dated 27.7.1999 and 21.8.2008 have not been filed yet the learned counsel for the petitioner has passed on a copy of the said judgments which are taken on record. Upon a challenge being raised to the said judgment dated 27.7.1999 by the petitioner by filing Special Appeal No.354 of 1999, the said special appeal was also dismissed vide judgment and order dated 21.8.2008. The judgment and order dated 21.8.2008 passed in the special appeal was challenged by the petitioner by filing Civil Appeal No.8902 of 2010 In re: Sharwan Kumar vs. State of U.P. and others before the Hon'ble Apex Court. The Hon'ble Apex Court vide order dated 29.7.2015, a copy of which is Annexure-6 to the writ petition, did not interfere with the judgment dated 21.8.2008 passed in special appeal, but considering the submission of the learned counsel for the appellant that the salary of the appellant (Sharvan Kumar) was withheld for about 10 years and it was released only after the contempt petition was filed, directed the respondents to look into the matter and see that if the salary was not paid as per the revised pay scale and increments had not been given, the same would be calculated and released in favour of the appellant. For the sake of convenience, the order of the Hon'ble Apex Court dated 29.7.2015 is reproduced below:-
"This appeal by special leave is directed against the judgment and order dated 21.8.2008 passed by the High Court of Judicature at Allahabad, Lucknow Bench, Lucknow in Special Appeal No.354 (SB) of 1999.
After hearing learned counsel for the parties, we do not find any reason to interfere with the impugned order. This appeal is, accordingly, dismissed.
However, learned counsel appearing for the appellant submitted that the salary of the appellant was with-held for about 10 years and it was released only after the contempt petition was filed, that too, without giving any increment and revision of pay. The respondents are directed to took into the matter and see that if the salary was not paid, as per the revised pay scale and increments have not been given, the same shall be calculated and released in favour of the appellant within a period of two months from today."
It is contended that when the compliance of the said order of the Hon'ble Apex Court dated 29.7.2015 was not made, the petitioner was constrained to file Contempt Petition (C) No.111 of 2016 In re: Sharwan Kumar vs. Mahesh Kumar Gupta and others before the Hon'ble Apex Court. Incidentally in paragraphs 1 and 2 of the contempt petition, a copy of which has been filed as Annexure SA-4 to the supplementary affidavit 17.10.2019, following averments have been made:-
"1. That this Hon'ble Court vide its order dated 29.7.2015 passed in Civil Appeal No.8902 of 2010, inter alia, passed the following order:
"This appeal by special leave is directed against the judgment and order dated 21.8.2008 passed by the High Court of Judicature at Allahabad, Lucknow Bench, Lucknow in Special Appeal No.354 (SB) of 1999.
After hearing learned counsel for the parties, we do not find any reason to interfere with the impugned order. This appeal is, accordingly, dismissed.
However, learned counsel appearing for the appellant submitted that the salary of the appellant was withheld for about 10 years and it was released only after the contempt petition was filed, that too, without giving any increment and revision of pay. The respondents are directed to look into the matter and see that if the salary was not paid, as per the revised pay scale and increments have not been given, the same shall be calculated and released in favour of the appellant within a period of two months from today."
True copy of the order dated 29.7.2015 passed by this Hon'ble Court in Civil Appeal No.8902 of 2010 is filed herewith and marked as ANNEXURE P-1 (Pg.14 to 16.).
That present contempt petition has been filed as the aforesaid order has been violated by Alleged/Contemnor No.1, 2 & 3 by not paying the revised pay scales and increments to appellant as directed by this Hon'ble Court.".
A counter affidavit to the contempt petition was filed by the respondents to which a rejoinder affidavit was also filed and ultimately the contempt petition was disposed of by the Apex Court vide order dated 27.11.2017, a copy of which is Annexure-7 to the writ petition, whereby the Hon'ble Apex Court recorded its satisfaction that the order has been satisfactorily complied with. However, it was also provided that in case the petitioner is still aggrieved by the action taken, he can question it in the appropriate proceedings before the appropriate forum. For the sake of convenience, order of the Hon'ble Apex Court dated 27.11.2017 passed in contempt petition is reproduced below:-
"We have seen the reply filed by the respondent no.3.
We are satisfied that the order has been substantially complied with. In case the petitioner is still aggrieved by the action taken, he can question it in the appropriate proceedings before the appropriate forum. The contempt petition is hereby dismissed with the aforesaid observations."
Meanwhile, the petitioner filed Writ Petition (S/S) No.2766 of 2011 In re: Sharwan Kumar vs. State of U.P. and others challenging an order dated 18.4.2011 passed by the ITTUP whereby the petitioner was retired at the age of 58 years instead of 60 years. Apart from the other reliefs, the petitioner in the said writ petition had also prayed for payment of salary on the basis of 5th and 6th Pay Commission. The said writ petition was disposed of by this Court vide judgment and order dated 29.1.2014 with a direction to the Principal Secretary, Industrial Development Department as well as the Secretary of the Department of Technical Education to take a decision in the matter. Copy of the judgment and order dated 29.1.2014 is Annexure-1 to the writ petition.
Aggrieved against the said judgment and order dated 29.1.2014, the petitioner filed Special Leave to Appeal (Civil) No.12015 of 2014 In re: Sharwan Kumar vs. State of U.P. and others which was dismissed as withdrawn after extending the time to enable the petitioner to submit a representation in pursuance to the judgment of this Court vide order dated 8.5.2014, a copy of which has been filed as Annexure-2 to the writ petition.
When the representation of the petitioner was rejected, he filed Writ Petition (S/S) No.217 of 2015 In re: Sharwan Kumar vs. State of U.P. and others, inter alia, praying for the following reliefs:-
"i) issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 22.7.2014 passed by the opposite party no. 1and order dated 4.4.2014 passed by the opposite party no. 2 as contained in Annexure Nos. 1 and 2 respectively to this writ petition;
ii) issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 18.4.2011 passed by the opposite party no.8 and subsequent order dated 30.4.2011 passed by an incompetent authority on behalf of opposite party no.8 as contained in Annexure Nos. 3 and 4 respectively to this writ petition ;
iii) issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 23.5.2013 passed by opposite party no.8, order dated 2.7.2013 passed by the opposite party no.4, order dated 10.7.2013 passed by the opposite party no.8, order dated 29.7.2013 passed by the opposite party no.6 and order dated 12.8..2013 passed by opposite party no.8 as contained in Annexure 5,6,7,8 and 9 respectively to this writ petition;
iv) issue a writ, order or direction in the nature of mandamus directing the opposite parties to provide the benefits of retirement at the age of 60/62 years instead of 58 years ;
v) issue a writ, order or direction in the nature of mandamus directing the opposite parties to sanction and pay the difference amount of encashment of leave forthwith, along with compound interest @ 18% per annum since the due date till the actual payment to the petitioner ;
vi) issue a writ, order or direction in the nature of mandamus directing the opposite parties to sanction and give the benefits of 5th and 6th Pay Commission report as paid to the other diploma level technical institutions ;
vii) issue a writ, order or direction in the nature of mandamus directing the opposite party no. 1 and 4 to take action against the opposite party nos. 7 and 8 for not completing the norms of AICTE and Board of Technical Education U.P., and to direct the opposite party no. 3 to take action against the opposite party nos. 5 and 6 for not complying the norms of AICTE and Board of Technical Education, U.P."
In the said petition, a preliminary objection was taken by the learned counsel for the respondents/Corporation of the petition being not maintainable based on the principles of res-judicata and constructive res-judicata as regards the maintainability of the second writ petition. This Court, after considering all aspects of the matter disposed of the said writ petition vide judgment and order dated 28.1.2016, a copy of which is Annexure-5 to the writ petition. So far as the payment of revised pay scale was concerned, with which the present controversy is concerned, the Court was of the view that as this issue (i.e. issue of benefits of payment of 5th and 6th Pay Commission) was raised by the petitioner in the earlier writ petition, therefore, it was not open for the petitioner to raise it all over again as the same would be barred by the principles res-judicata or constructive res-judicata.
Now, by means of the present petition, the petitioner has prayed for the reliefs as have already been quoted above.
Sri Gupta, learned counsel for the respondents/Corporation has taken a preliminary objection that the present petition primarily seeks the same relief pertaining to the 5th and 6th Pay Commission which in the earlier round of litigation, more particularly in the judgment and order dated 28.1.2016, has already been held to be barred by principles of res-judicata or constructive res-judicata. As regards the prayer of the petitioner for payment of leave encashment, annual increments, assured career progression and dearness allowance, Sri Gupta contends that once the petitioner had retired from service on 30.4.2011 and had earlier approached this Court by filing two petitions and the aforesaid reliefs had not been prayed for by him in the said petitions, consequently taking into consideration the provisions of Order II Rule 2 of the C.P.C. which are applicable in writ proceedings also, the present petition praying for the aforesaid reliefs would not be maintainable.
Replying to the aforesaid, Sri Sahay submits that the present petition has been filed taking into consideration the liberty granted by the Apex Court in its order dated 27.11.2017 and in view of the fresh resolution of the ITTUP dated 6.6.2018, a copy of which is Annexure-23 to the writ petition, as well as the Office Memorandum dated 20.1.2017 along with letter dated 16.11.2015, copies of which have been filed as Annexure-16 and 15 respectively to the writ petition. It is also argued that this Court vide judgment and order dated 28.1.2016 had considered the order of Apex Court dated 29.7.2015 and had observed that the respondents are bound to comply with the same.
Replying to the aforesaid, Sri Gupta, learned counsel for the respondents/Corporation submits that the liberty dated 27.11.2017 as had been granted by the Hon'ble Apex Court has to be read in consonance to what had been directed by the Apex Court in its initial order against which the contempt petition had been filed. Sri Gupta submits that the earlier order of the Apex Court dated 29.7.2015, which has already been reproduced above, was for the purpose of payment of salary for a period of 10 years as per the revised pay scale and increments if not granted to the petitioner, which order had been passed in Civil Appeal No.8902 of 2010 against the order of this Court dated 27.7.1999 passed in Writ Petition No.9651 of 1988 as upheld in Special Appeal No.354 of 1999 vide judgment and order dated 21.8.2008. The petitioner when filed Contempt Petition (C) No.111 of 2016 although against the order dated 29.7.2015 yet has indicated before the Apex Court in the contempt petition that the contempt petition is being filed on account of the violation by the alleged contemnor by not paying the revised pay scales and increments to the appellant. Once there was no such order of the Apex Court for grant of revised pay scale rather the order was for grant of salary for a period of 10 years, consequently it is apparent that the correct pleading had not been made in the Apex Court while filing the contempt petition. Even otherwise, Sri Gupta argues, that even if the liberty granted by the Apex Court is seen, the said liberty was granted after seeing the reply of the respondents. In the meanwhile, the petitioner had already approached this Court praying for grant of 5th and 6th Pay Commission and two judgments had already been passed, although the first judgment only pertained to disposal of the representation but in the second petition itself it had been held conclusively by this Court that the prayer made by the petitioner for grant of 5th and 6th Pay Commission was barred by the principles of res-judicata and constructive res-judicata. Thus Sri Gupta argues that the liberty granted by the Apex Court through the order dated 27.11.2017 cannot be construed in the manner in which the learned counsel for the petitioner has argued.
To this, Sri Sahay argues that the order of the Apex Court dated 27.11.2017 has to be seen in the context of the order dated 23. 10.2017 that had been passed in the contempt petition, copy of which has been filed as Annexure SA-9 to the supplementary affidavit dated 17.10.2019, and the liberty cannot be seen in isolation. It is contended that the Apex Court was fully conscious while requiring the respondents to file reply to the issues before it and thus the said liberty dated 27.11.2017 would entail the petitioner to approach this Court again despite the earlier two rounds of litigation and in the judgment and order dated 28.1.2016 the writ Court having conclusively held that the reliefs of the petitioner so far as it pertains to grant of 5th and 6th Pay Commission was barred on the principles of res-judicata and constructive res-judicata. It is also contended that the judgment and order dated 28.1.2016 as passed by the writ Court had also been brought to the knowledge of the Apex Court and considering all the facts the said liberty had been granted. In this regard, Sri Sahay has placed reliance on a judgment of the Apex Court in the case of Union of India and others vs. Association of Unified Telecom Service Providers of India and others reported in (2011)10 SCC 543 to contend that once once a liberty has been granted by the Apex Court, consequently all issues are open to be agitated. Reliance has also been placed on the judgment of the Apex Court in the case of Union of India vs. Balbir Singh Turn reported in 2018(11) SCC 99 to argue that the relief of ACP prayed for by the petitioner is a part of pay structure as even if it was not prayed for in the earlier petitions and it is being a part of the pay structure, would also be covered by the liberty granted by the Apex Court vide order dated 27.11.2017.
Heard learned counsel for the parties and perused the record.
From a perusal of the pleadings on record and the arguments raised by the learned counsel for the contesting parties, it comes out that the petitioner had earlier filed writ petition in the year 1985 praying for being granted 5 annual increments. The said petition was disposed of with a direction to the respondents to consider the representation of the petitioner. On the representation being rejected, the petitioner challenged the said order by filing writ petition in the year 1988 namely Writ Petition No.9651 of 1988, which petition was dismissed vide judgment and order dated 27. 7.1999. Though a copy of the said writ petition has not been brought on record yet from a perusal of the judgment and order dated 27.7.1999 it comes out that the reliefs that had been prayed for by the petitioner in the said writ petition were for grant of increments in the wage revision, 5 annual increments and promotion, meaning thereby that there was no prayer for being granted the 5th and 6th Pay Revision as has been prayed for in the instant petition. Upon the said petition having been dismissed vide judgment and order dated 27.7.1999, the petitioner filed Special Appeal No.354 of 1999 which special appeal was also dismissed vide judgment and order dated 21.8.2008. The petitioner raised a challenge to the said judgment by filing Civil Appeal No.8902 of 2010 before the Apex Court and the Apex Court vide order dated 29. 7.2015 did not interfere with the judgment and order dated 21.8.2008 passed in the special appeal but considering the submission of the learned counsel for the appellant that his salary was withheld for about 10 years, directed the respondents to look into the matter and see that if the salary was not paid as per the revised pay scale and increments had not been given, the same would be calculated and released in favour of the appellant. Thus the order dated 29.7.2015 passed by the Apex court would have to be seen in the context of the reliefs that had been prayed for by the petitioner before the writ Court which were not for payment of the 5th and 6th pay revision but were for grant of annual increments in the wage revision, grant of 5 annual increments and for grant of promotion. When the compliance of the order passed by the Apex Court dated 29.7.2015 was not made, the petitioner filed Contempt Petition (C) No.111 of 2016 alleging contempt of the order dated 29.7.2015 passed by the Apex Court which could only have been to the extent of the reliefs that had been prayed for by the petitioner in the writ Court. However, the petitioner cleverly worded the contempt petition and indicated in paragraphs 1 and 2 of the contempt petition that the alleged violation by the respondents is by not paying the revised pay scale and increments to the appellant. At the risk of repetition, it is to be noted that in the writ Court in the petition of 1985 and thereafter in the year 1988, there was no prayer for payment of revised pay scales as per the 5th and 6th Pay Revision. After the Apex Court issued notice of contempt, the matter remained pending before the Apex Court. The petitioner being perfectly aware that no relief had either been prayed for by him in the writ petition of 1985 or 1988 for payment of the pay scales as per the 5th and 6th Pay Revision, filed Writ Petition (S/S) No.2766 of 2011 before this Court praying for various reliefs including payment of salary on the basis of 5th and 6th Pay Revision. Why this fact is essential is that the petitioner was perfectly conscious of the fact that the issue before the Apex Court in Civil Appeal No.8902 of 2010 was not covering the 5th and 6th Pay Revision and payment of salary on the basis of 5th and 6th Pay Revision. The said writ petition was disposed of by this Court vide judgment and order dated 29.1.2014 with a direction to the respondents to look into the matter. Being unsatisfied with the said order, the petitioner preferred Special Leave to Appeal (Civil) No.12015 of 2014 which was dismissed as withdrawn but after extending the time to enable the petitioner to present the matter in pursuance of the judgment of the writ Court. When the representation of the petitioner was rejected, he preferred another petition namely Writ Petition (S/S) No.217 of 2015, inter alia, praying for quashing the order whereby his representation was rejected as well as making a specific prayer, apart from other reliefs, of being given the benefits of 5th and 6th Pay Revision. Again, while filing the said petition, the petitioner was conscious of the fact that the issue before the Apex Court in Civil Appeal No.8902 of 2010 was not pertaining to 5th and 6th Pay Revision.
The writ Court in Writ Petition (S/S) No.217 of 2015 vide judgment and order dated 28.1.2016, so far as relief pertaining to revised pay scales was concerned, categorically held that it was not open for the petitioner to raise the said issue all over again as the same would be barred by principles of res-judicata and constructive res-judicata. However, considering the order dated 29.7.2015 passed by the Apex Court directing that the revised pay scale and increments shall be calculated and released in favour of the appellant, the writ Court observed that as there is already an order of the Apex Court, the respondents are bound to comply with the same. However, no positive mandamus was issued by the writ Court for compliance of any order. Sri Sahai has categorically stated that the judgment of this Court dated 28.1.2016 has attained finality as the same has not been challenged either before this Court by filing special appeal or before the Apex Court, hence the findings recorded therein pertaining to res-judicata or constructive res-judicata so far as it pertains to the 5th and 6th Pay Revision have attained finality. Subsequent thereto, the Apex Court decided the contempt petition after perusal of the reply filed by the respondents and being satisfied that the order (dated 29.7.2015) has been substantially complied with. However, it was provided that in case the petitioner is still aggrieved by the action taken, he can question it in the appropriate proceedings before the appropriate forum.
What would be relevant is that the order of the Apex Court dated 27.11.2017 has to be seen in the context of the order dated29.7.2015 against which the contempt petition had been filed by the petitioner. As already indicated above, the order dated29.7.2015 cannot be construed to be an order with respect to 5th and 6th Pay Revision as no such prayer had been made in the petition against which special leave petition had been filed by the petitioner. Thus, the liberty granted by the Apex Court vide order dated 27.11.2017 that in case the petitioner is still aggrieved by the action taken, he can question it in the appropriate proceedings, has to be seen in the context of what had been prayed for in the writ petition against the order in which initially order dated 29.7.2015 had been passed by the Apex Court, meaning thereby that neither before the writ Court in the year 1988 in Writ Petition No.9651 of 1998 or before the Apex Court, the 5th and 6th Pay Revision were involved. This would also be apparent from the conduct of the petitioner that he was perfectly conscious of the fact that the Apex Court while dealing with the Civil Appeal No.8902 of 2010 was not seized with the relief pertaining to 5th and 6th Pay Revision as in the interregnum period, the petitioner had already filed two writ petitions before the writ Court i.e. Writ Petition (S/S) No.2766 of 2011 and Writ Petition (S/S) No.217 of 2015 in which apart from other reliefs, the relief pertaining to 5th and 6th Pay Revision had also been prayed for. Thus, by no analogy or by any stretch of imagination can the liberty of the Apex Court dated 27.11.2017 be considered as giving liberty to the petitioner to again file a writ petition for grant of 5th and 6th Pay Revision in view of the detailed discussion made above.
Having thus summed up the litigations as entered into between the petitioner and the respondents and the issues involved therein, the preliminary objection pertaining to maintainability of the present petition would have to be seen.
The present petition, as already indicated above, has been filed for payment of salary along with emoluments, gratuity, leave encashment as also annual increments after giving benefit of the policy of Assured Career Progression, dearness allowance and for arrears of salary on account of 5th and 6th Pay Revision. The Orders as have been referred to by the petitioner as detailed above pertain to the orders that had been passed by the ITTUP for extending the benefit of 6th Pay Revision. Thus, primarily the reliefs as have been prayed for by the petitioner pertain to fixation of salary in terms of the 5th and 6th Pay Revision along with consequential benefits of dearness allowance, salary, gratuity, leave encashment, annual increments etc. The reliefs can be viewed in two ways. Firstly, when the petitioner had approached this Court by filing two petitions, namely, Writ Petition (S/S) No.2766 of 2011 and Writ Petition (S/S) No.217 of 2015 praying for being given the benefit of 5th and 6th Pay Revision and in Writ Petition (S/S) No.217 of 2015 it was categorically held that the said relief was barred on account of principle of res-judicata or constructive res-judicata, consequently the present petition would not be maintainable praying for the said relief. Once the ACP, dearness allowance, gratuity, leave encashment would all flow out after fixation of the pay of the petitioner in terms of the 5th and 6th Pay Revision keeping in view the judgment of the Apex Court in the case of Balbir Singh Turn (supra) but once the relief pertaining to 5th and 6th Pay Revision cannot be granted to the petitioner in the present petition keeping in view the judgment of this Court in Writ Petition (S/S) No.217 of 2015, consequently there cannot be any occasion for granting the consequences flowing therefrom in the present petition i.e. gratuity, leave encashment, annual increments, ACP etc.
Secondly, if the gratuity, leave encashment ACP and dearness allowance are said to not flow after giving benefit of 5th and 6th Pay Revision then too the present petition would not be maintainable taking into consideration the principle of Order II, Rule 2 of the CPC wherein in case the petitioner did not pray for any relief to the said effect in the earlier two petitions filed by him in the year 2011 and 2015, consequently he would be precluded from making the said prayer by means of the present petition. Thus in both the views, the present petition would not be maintainable taking into consideration the principle of res-judicata or constructive res-judicata and principle of Order II, Rule 2 of the C.P.C.
Suffice to state that it is no longer res-integra that the principle of constructive res-judicata enshrined in Order II, Rule 2 of the C.P.C. would also be applicable in writ proceedings. In this regard, the Full Bench of this Court in the case of Farhat Hussain Azad vs. State of U.P. and others reported in 2005((2) AWC 1221 has held as under:-
"69. What is, however, disturbing us is the fact that some of the petitioners had earlier filed writ petitions for quashing the seniority list dated 14.12.2001 and even though these petitions had been dismissed by a detailed judgment and order dated 27.2.2004, the said petitioners have again filed these writ petitions claiming in substance the same releifs, i.e., re-determination of the seniority as referred to above herein.
Even if it is accepted that these reliefs had not been prayed for earlier as sought now, as contended by the learned Counsel for the petitioners, we are of the view that petitions are barred by the principles of constructive res judicata enshrined in Order II, Rule 2 of the Code of Civil Procedure (hereinafter called 'CPC'). The said Rule provides that suit must include the whole claim. If a relief which could have been claimed is not claimed, party cannot claim it in a subsequent suit. (Mohd. Khalil Khan v. Mahbub Ali Mian, AIR 1949 PC 78).
The Rule is directed to securing the exhaustion of the relief in respect of a cause of action and not to the inclusion in one and the same action of different causes of action, even though they arise from the same transaction. One great criterion, when the question arises as to whether the cause of action in the subsequent suit is identical with that in the first suit, is whether the same evidence will maintain both actions.
A Constitution Bench of Hon'ble Supreme Court in Gurubux Singh v. Bhooralal, AIR 1964 SC 1810, held that even if a party does not pray for the relief in the earlier writ petition, which he ought to have claimed in the earlier petition, he cannot file a successive writ petition claiming that relief, as it would be barred by the principle of constructive res judicata enshrined in Explanation IV to Section 11 and Order I, Rule 2 of the Code of Civil Procedure. In Order II, Rule 2 CPC, as has been explained, in unambiguous and crystal clear language by the Hon'ble Supreme Court in D. Cawasji and Co. v. State of Mysore, AIR 1975 SC 813; Commissioner of Income Tax v. T.P. Kumaran, (1996) 10 SCC 561;Union of India and Ors. v. Punnilal and Ors., (1996) 11 SCC 112; Dilip Singh v. Mehar Singh Rathee and Ors., (2004) 7 SCC 650; and Executive Engineer ZP Engineering Division and Anr. v. Digambara Rao and Ors., (2004) 8 SCC 262.
It is settled proposition of law that what cannot be done "per directum is not permissible to be done per obliquum" meaning thereby, whatever is prohibited by law to be done, cannot legally be affected by an indirect and circuitous contrivance on the principle of "quando aliquid prohibetur, prohibetur at omne per quod devenitur ad ilud".
In Jagir Singh v. Ranbir Singh, AIR 1979 SC 381, the Apex Court has observed that an authority cannot be permitted to evade a law by "shift or contrivance". While deciding the said case, the Hon'ble Supreme Court placed reliance on the judgment in Fox v. Bishop of Chester, (1824) 2 B 7 C 635, wherein it has been observed as under :
"To carry out effectually the object of a statute, it must be considered as to defeat all attempts to do or avoid doing in an indirect or circuitous manner that; which it has prohibited or enjoined."
Law prohibits to do something indirectly which is prohibited to be done directly. [Vide Commissioner of Central Excise v. ACER India Ltd., (2004) 8 SCC 173]. Similar view has been reiterated by the Apex Court in M.C. Mehta v. Kamal Nath and Ors., AIR 2000 SC 1997, wherein it has been held that even the Supreme Court cannot achieve something indirectly which cannot be achieved directly by resorting to the provisions of Article 142 of the Constitution, which empowers the Court to pass any order in a case in order to do "complete justice."
In view of the above, it is not permissible to seek the relief indirectly, for which earlier petitions have already been dismissed/pending."
Recently, the Apex Court in the case of P. Bandopadhya vs. Union of India reported in 2019 SCC Online SC 398 has held as under:-
"61. The decision in S.V. Vasaikar & Ors. v. Union of India & Ors. [2003 (2) Mh. L.J. 691 : 2003 (4) Bom CR 79] was not challenged before the Supreme Court, and has since attained finality. Therefore, the relief sought by the Appellants before the High Court was barred by the principle of res judicata.
Reference can be made to the decision of the Constitution Bench in Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra & Ors. wherein Sharma, J., on behalf of the five-judge bench, held:
"35...It is well established that the principles of res judicata are applicable to writ petitions. The relief prayed for on behalf of the petitioner in the present case is the same as he would have, in the event of his success, obtained in the earlier writ petition before the High Court. The petitioner in reply contended that since the special leave petition before this Court was dismissed in limine without giving any reason, the order cannot be relied upon for a plea of res judicata. The answer is that it is not the order of this Court dismissing the special leave petition which is being relied upon; the plea of res judicata has been pressed on the basis of the High Court's judgment which became final after the dismissal of the special leave petition. In similar situation a Constitution Bench of this Court in Daryao v. State of UP held that where the High Court dismisses a writ petition under Article 226 of the Constitution after hearing the matter on the merits, a subsequent petition in the Supreme Court under Article 32 on the same facts and for the same reliefs filed by the same parties will be barred by the general principle of res judicata. The binding character of judgments of courts of competent jurisdiction is in essence a part of the rule of law on which the administration of justice, so much emphasised by the Constitution, is founded and a judgment of the High Court under Article 226 passed after a hearing on the merits must bind the parties till set aside in appeal as provided by the Constitution and cannot be permitted to be circumvented by a petition under Article 32..." (emphasis supplied)
Albeit the decision of the Constitution Bench was in the context of a Writ Petition filed under Article 32, it would apply with greater force to bar a Writ Petition filed under Article 226, like the one filed by the present Appellants, by the operation of the principle of res judicata.
So far as the judgment of the Apex Court in the case of Association of Unified Telecom Service Providers of India (supra), which has been cited by the learned counsel for the petitioner in order to argue that the present petition would be maintainable taking into consideration the liberty granted by the Apex Court, there cannot be any quarrel to what has been laid down by the Apex Court in the aforesaid judgment but then again the aforesaid judgment would not be applicable in facts of the present, as have already been indicated above, whereby the said liberty which forms the sheet anchor of the argument of the learned counsel for the petitioner for the purpose of maintainability of the present petition, would only have to be seen in the context of what was there before the Apex Court when the said liberty was granted.
So far as the argument of the learned counsel for the petitioner that as a fresh resolution dated 6.6.2018 has been issued by the ITTUP and further as the office memorandum dated 20.1.2017 along with letter dated 16.11.2015 have been issued by the respondents for the purpose of 6th Pay Revision and the approval has also been sought from the Government all which give rise to a fresh cause of action, suffice to state that when the present petition for grant of 5th and 6th Pay Revision would itself be not maintainable taking into consideration the earlier judgment of this Court which has attained finality, consequently even if certain resolutions have been passed for extension of the said benefit, the same would not give any fresh cause of action as the said orders can only be considered to be a consequence to the initial order of 5th and 6th Pay Revision. Thus all the aforesaid orders would not, in the opinion of this Court, give any fresh cause of action to the petitioner to maintain the present petition.
Accordingly, the preliminary objection raised by Sri Gupta, learned counsel for the respondents/Corporation is upheld. The writ petition is dismissed.