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Judgment
Abdul Hadi, J.—WA No. 506/91 is by the 3rd respondent in WP 3105/86 and against the order dt. March 21, 1991 in the said writ
petition allowing the same. The said writ petition is by one D. Dayal, possessing Engineering Degree qualification and working in the Madras
Corporation, the 2nd respondent in the said writ petition and 3rd respondent herein. The 1st respondent in the said writ petition, who is the 2nd
respondent in this appeal, is the State of Tamilnadu. The writ petitioner is the 1st respondent in this appeal. The 3rd respondent-appellant is a
Diploma Holder in the service of the said Corporation.
The question in the writ petition relates to the promotion to the post of Assistant Executive Engineer (who was earlier called Assistant Engineer)
other than Assistant Engineer (Electrical) in the said Corporation Engineering Service. As per Rule 4 of the relevant rules, viz., Madras
Corporation Engineering Service Rules, 1969 (hereinafter referred to as ''the Rules'') framed by the State Government, in exercise of its powers
conferred by Section 86(1) and Section 347(2)(a) of the Madras City Municipal Corporation Act, 1919, eligibility to the aforesaid post of Asst.
Engineer, other than Assistant Engineer (Electrical), is B.E. Degree and service as Asst Engineer (Supervisor) in the Corporation Engineering
Subordinate service, Municipal Engineer Grade III, Junior Engineer or Supervisor (Public Health) for a period of not less than 5 years on duty.
However, if the person to be promoted is an Engineering Diploma Holder in Engineering (and not an Engineering Degree Holder as above stated),
Clause (i)(d) of the abovesaid Rule relating to promotion to Category 3 post, viz., the post of Asst. Engineer, other than Assistant Engineer
(Electrical), provides the service qualification as follows :-
(d) Diploma in civil or Mechanical Engineering ...... Provided that Draftsmen, Overseers and Surveyors of the Corporation Engineering
Subordinate Service promoted as Supervisors in the same service, Head Surveyors and Head Draftsmen of the Corporation Engineering
Subordinate Service, Municipal Engineer, Grade III or Supervisor (Public Health) possessing the qualifications referred to in item (d) above shall
be eligible for appointment as Assistant Engineers only if they have put in a total service of not less than 10 years in one or more categories or as
Municipal Engineer, Grade III, or as Supervisor (Public Health).
Further, according to the said Rule 4 in either of the two cases, that is, Degree holder case or Diploma holder case, the relevant Account Test
should also have been passed. Thus, for promotion to the post of Assistant Executive Engineer (Asst. Engineer) in so far as Engineering Degree
Holders are concerned, the feeder category posts are Asst. Engineer (Supervisor) and in that feeder category, five years service must have been
put in to claim eligibility for promotion. Then for the Diploma Holders, the feeder category posts are; Supervisors who are called Junior Engineers,
Head Surveyors and Head Draftsmen, who were promoted from the lower category posts of Overseers, Surveyors and Draftsmen. In this latter
case, ten years service is prescribed as against the five years service prescribed for Degree Holders as stated above.
But the only controversy in W.P. No. 3105 of 1986 is whether the abovesaid ten years service would include even the period of service
rendered in the above said lower category posts and not merely the period of service rendered in the feeder category posts. As stated above, the
abovesaid Rule contained in the above said proviso, while prescribing qualification for eligibility for the abovesaid Promotion, says that the said
Diploma Holders must have put in ""a total service of not less than 10 years in one or more categories"". The whole question in this writ petition, only
relates to the interpretation of the abovesaid term ""one or more categories,"" that is, whether the said term means only the abovesaid feeder
category post of Junior Engineer (Supervisor) or Head Surveyor or Head Draftsman or would also include lower category post, viz., Overseer,
Surveyor or Draftsman. In this connection the 2nd respondent State has issued the impugned memorandum dated August 14, 1978, inter alia
interpreting in paragraph (2) point 11 of the abovesaid memorandum, the abovesaid term ""one or more categories"" as to include even the lower
category posts of Overseers, Surveyors or Draftsmen (and not simply Junior Engineers (Supervisors) Head Surveyors or Head Draftsmen).
Aggrieved by the said interpretation in the said memorandum, the writ petitioner has filed the abovesaid writ petition (1) to quash the abovesaid
portion of the memorandum, viz., the abovesaid paragraph 2 point (11) thereof, on the ground that the abovesaid term would mean only the
service rendered in the abovesaid feeder category of the Junior Engineer (Supervisor), Head surveyor or Head Draftsman and not the lower
category post of Overseer, Surveyor or Draftsman and (2) to direct the respondents-State and the Corporation accordingly to take into account
for the purpose of computing the qualifying service and seniority etc., only of the abovesaid feeder category posts for the purpose of promotion as
Assistant Executive Engineer.
The learned Single Judge, who decided the said writ petition, along with certain other writ petitions, has accepted the abovesaid contention of
the writ petitioner in WP No. 3105/86 and has allowed the writ petition, by his Common Order, dt. March 21, 1991. Aggrieved by the said
Order, this writ appeal has been filed by the 3rd respondent in the said writ petition, whose contention is that the abovesaid term ""one or more
categories"" means not only any one of the abovesaid feeder category posts, but also any one of the abovesaid lower category posts.
Subsequent to the said order dt. March 21, 1991 in favour of the abovesaid Degree Holders, the above said WP No. 3938/92 has been filed
by a Degree Holder in the service of Madras Metropolitan Water Supply and Sewerage Board, which sought to adopt the above said
memorandum dt. August 14, 1978 of the State Government in relation to its Service Rules also relating to similar promotions. The said writ
petition, pursuant to the abovesaid order dt. March 21, 1991 in WP 3105/85 sought to for-bear the said Board, the respondent in the writ petition
from relying on the abovesaid memorandum dt. August 14, 1978 for considering the promotion to the post of Assistant Executive Engineer in the
abovesaid Board''s Technical Service. Thus, the decision to be given in the abovesaid writ appeal will automatically apply to this subsequent WP
3938/92 also. The learned counsel for the writ petitioner in WP 3938/92 who is also the counsel for the 1st respondent in the writ appeal (writ
petitioner in WP 3105/86) also submitted so. Therefore, the averments in the affidavit in WP 3938/92 are not adverted to in any detail.
The reasonings of the learned Single Judge in allowing the Writ Petition 3105/86 are as follows :-
(i) If one examines the above referred to Rule 4, he can say that five years of service as a Municipal Engineer Grade III in respect of Degree
Holders is considered as equal to ten years as Municipal Engineer Grade III in respect of Diploma Holders and therefore, the length of service
which the Rule contemplates, is in the feeder category posts alone, viz., Junior Engineers, Head Surveyors or Head Draftsmen in the Madras
Corporation Engineering Subordinate Service.
(ii) Even a proper reading of the abovesaid proviso itself suggests that the reference to Draftsmen, Overseers and Surveyors of the Corporation
Engineering Subordinate Service is made only because such persons, ""when"" promoted to the feeder category of Junior Engineers, Head
Surveyors, Head Draftsmen are required to put in ten years of service to become eligible to the post of Assistant Executive Engineers.
(iii) Even on fundamental principle, when qualifications are prescribed for the post of Assistant Executive Engineer, they will refer only to the feeder
category. It would be uncommon to include the services in the lower category, unless there are specific indications;
(iv) No doubt it is for the Government to say as to the length of service, which is necessary for a person to get himself qualified for promotion. But,
when the statutory Rules are clear, it would not be proper for the Government to clarify the Rule by way of an executive direction, giving a different
inter pretation to the Rules.
(v) The anomaly, if the interpretation given in memorandum is accepted, may be as follows :- When, a person in the lower category of Draftsmen,
Overseers or Surveyors puts in 10 years of service in the lower category and is promoted to the feeder category of Junior Engineers, Head
Surveyors or Head Draftsmen, then without putting any length of service in the feeder category, he becomes eligible to the higher post of Assistant
Executive Engineer. This could not be the intention of the rule making authority when the said proviso was introduced.
Before dealing with the main submissions of learned counsel for the appellant, one other submission made by him, but not very much pressed
into service, is the submission relating to the latches, in filing the Writ Petition 3105/86 by the 1st respondent in the appeal, only in 1986 though the
impugned memorandum was of the year 1978. No doubt in paragraph 8 of the affidavit filed in support of the said writ petition, the petitioner
Dayal avers as follows :
The said Memorandum was never officially communicated to the petitioner and it is only when the petitioner came to know of the recent move of
the respondents to implement the same that the petitioner is obliged to challenge the same. Consequently, there was no occasion for the petitioner
to challenge the same earlier"".
In view of this averment, the judgment of the learned Single Judge says that writ petitioner came to know of the memorandum when the
respondents sought to implement the memorandum and that the writ petition cannot be dismissed on the ground of latches. But we find that the said
averment does not actually say when the writ petitioner came to know of the said memorandum. He only says that when the writ petitioner came to
know of the recent move of the respondents to implement the same that the petitioner is obliged to challenge the same. It appears that the writ
petitioner did not deliberately aver therein when actually he came to know of the said memorandum but cleverly worded the abovesaid averment in
such a way that it may lead to the abovesaid conclusion reached by the learned Single Judge. In fact, as pointed out by the Learned counsel for the
appellant, in an earlier affidavit sworn to on March 26, 1979 and in support of WMP 2414/79 (in an earlier writ petition No. WP 2810/78) filed
by the Madras Corporation Graduate Engineers Association represented by the present writ petitioner Dayal himself, the said Dayal deposed as
follows :- ""The state Government in and by its R.D. & L.A. Department Memorandum No. 14357 (A) M.VI/78-3 dt. August 14, 1978 clarified
the position in regard to the 5 years service rule as B.E. Degree holder in the following terms.
However, since the learned counsel for the appellant, in fairness, expressed that he did not press for a decision on this technical ground of laches
we are not giving further consideration to the said question and proceed to deal with the case on merits.
Then, we may now deal with the abovesaid reasonings of the learned Single Judge in the light of the submissions made before us. No doubt
according to the abovesaid rule, five years of service as Municipal Engineer Grade III in respect of Degree Holders is considered as equal to ten
years as Municipal Engineer Grade III in respect of Diploma Holders. In view of this fact, the learned Single Judge concludes thus :-
Therefore, the length of service which the Rules contemplate is in the feeder category"".
It is so in the case of the feeder category of Municipal Engineer Grade III. But, the question is (whether) the said conclusion could be reached even
in the case of Draftsmen, Overseers or Surveyors of the Corporation Engineering Subordinate Service, promoted as Junior Engineers, Head
Surveyors or Head Draftsmen of the same service, while considering their eligibility for promotion, to the same post of Assistant Executive
Engineers. Here, what is stipulated in the abovesaid proviso is ""only if they have put in a total service of not less than ten years in one or more
categories"", they will be so eligible. In other words, in this case, it is not mentioned thus :-
Only if they have put in a total service of not less than ten years as Junior Engineers, Head Surveyors or Head Draftsmen of the Corporation
Engineering Subordinate Service.
According to the learned counsel for the appellant, this difference in the expression used in the promotion rule in relation to the abovesaid
Corporation Engineering Subordinate Service employees, only indicates a deviation from the corresponding rule applicable to the abovesaid
Municipal Engineer Grade III or the other employees, Supervisor (Public Health) referred to in the proviso. According to the said counsel, there is
an inherent evidence in the said proviso itself suggesting the abovesaid deviation from the rule applicable to the other persons, viz., the abovesaid
Municipal Engineer Grade III and Supervisor (Public Health).
Further, the said learned counsel also points out that the abovesaid second reasoning of the learned Single Judge is not correct. The said
second reasoning is that even a proper reading of the proviso itself suggests that the reference to Draftsmen, Overseers and Surveyors of the
Corporation Engineering Subordinate Service is made only for the purpose of pointing out that such persons ""when promoted"" to the feeder
category of Junior Engineers, Head Surveyors, Head Draftsmen are required to put in 10 years service to become eligible to the post of Assistant
Executive Engineers. According to the learned counsel, the abovesaid reasoning of the learned Single Judge amounts to reading something into the
Rule, which is not there. We also see force in this argument also. A plain reading of the Rule would only mean that the Draftsmen etc., promoted to
the feeder category of Junior Engineers, etc., are eligible for promotion to the post of Assistant Executive Engineer if they have put in a total service
of not less than 10 years in one or more categories. In the abovesaid context, the term ""one or more categories"" cannot be restricted only to the
feeder category, viz., Junior Engineers, Head Surveyors or Head Draftsmen, but it would include even the lower category of Draftsmen, Overseers
and Surveyors because the term ""they"" used in the expression ""only if they have put in a total service"" would grammatically refer to Draftsmen,
Overseers and Surveyors who are promoted as Junior Engineers, Head Surveyors or Head Draftsmen. No doubt, in the case of Municipal
Engineer Grade III, the Rule specifically says that in the case of Diploma holder, he should have put in 10 years of service ""as Municipal Engineer
Grade III"". Likewise, in the case of Supervisor (Public Health) also. But, in the case now in question, the Rule does not say that total service of not
less ten years ""as Junior Engineer, Head Surveyor and Head Draftsman"" but uses a different phraseology, viz., ""total service of not less than 10
years in one or more categories"". In the context in which the abovesaid different phraseology is used, we think the rule making authority, viz., the
State Government deliberately wanted to make a deviation from the other two cases of Municipal Engineer Grade III or Supervisor (Public
Health).
Therefore, dealing with the other reasoning of the learned Single Judge that even on fundamental principles when qualifications are prescribed
for the post of Assistant Executive Engineer, they will only refer to the qualifications in the feeder category and it would be uncommon to include
the services in the lower category, unless there are specific indications, we would like to point out that there are such specific indications in the
present case, that is, in the case of the abovesaid Draftsmen, Overseers and Surveyors promoted as Junior Engineers, Head Surveyors or Head
Draftsmen No doubt, the other reasoning of the learned Single Judge is that the Government cannot by executive instructions, give a different
interpretation to a Rule framed by it, though it could amend the rule, so that it gives a different meaning. But, as stated above, we do not think that
the Government in the present case, by issuing the abovesaid impugned memorandum, has given a different interpretation to the earlier Rule framed
by it. In fact, the learned counsel for the appellant points out that if a clarification of a Rule framed by the Government is give by the Government
itself, it should normally clinch the matter. In this connection, the learned counsel cited the following observation of the Supreme Court given in
Ajeet Singh Singhvi v. State of Rajasthan (1991 - II - LLJ - 336 at 342) :
Besides the Government being the Author of the rule, has kept to itself, as a matter of prudence, the right to remove any ambiguity about the
identification of any post including the highest post/posts. The stance of the Government in this regard should have clinched the matter but since the
same had been put forth as a defense in the High Court, its view nonetheless in entitled to great weight and the burden of the appellants to lift that
weight, an uphill task by all means, has remained unfulfilled.
Further, in order to emphasize that the plain reading should be adopted in interpreting the Rule, the learned counsel relies on the decision an
Authorised Officer, Thanjavur v. Naganatha Ayyar AIR 1979 S.C. 1478. No doubt, the learned Single Judge also points out, as stated above, an
anomaly"" if the interpretation given in the impugned memorandum is accepted, that is, when a person in the abovesaid lower category puts in 10
years of service in the said category itself and is promoted to the abovesaid feeder category, then, without putting any length of service in the
feeder category, he becomes eligible to the higher post of Asst. Executive Engineer. According to the learned Single Judge, this could not be the
intention of the rule making Authority. But, when, according to us, the language used in the proviso is clear in so far as the lower category of
employees promoted to the abovesaid feeder category, we do not think that there is really any anomaly, since the rule-making authority has
deliberately framed the Rule in that way in so far as those persons are concerned.
In fact, the learned counsel for the appellant points out two decisions of the Supreme Court which have held that experience gained in such
lower category also can be an acceptable qualification. One of the two decisions, A.S. Parmar and Others Vs. State of Haryana and Others,
observes as follows :
While we are aware of the difference between the proficiency of a person with a degree who enters service by direct recruitment and of a person
who is promoted after he has acquired certain experience in the same kind of work in a lower cadre, we should state that in administrative and
professional services a combination of high educational qualifications and long experience is always preferred so that the service may be efficient by
each of them supplementing the other"".
Dealing with a similar situation, the Supreme Court also observed as follows :-
This extra experience of three years appears to have been treated as being sufficient to make good the deficiency, if any, that may arise by
reasons of the Assistant Engineer in the Class II Service possessing only a diploma and not a degree.
In the other decision in B.N. Saxena Vs. New Delhi Municipal Committee and others, , the Supreme Court has observed in a similar situation as
follows :-
The second limb of the rule was evidently to benefit all those persons who have gained sufficient experience as Senior and Junior Draftsmen
without possessing any qualification. Experience gained for a considerable length of time is itself a qualification (See the observation in State of
U.P. v. J. P. Chaurasia 1989 I LLJ - 309
No doubt, the learned counsel for the respondents posed the question why should the abovesaid Overseer, Surveyors and Draftsmen of the
Corporation Engineering Subordinate Service promoted to the above feeder category posts alone, should be treated differently from the above
said Municipal Engineer Grade III and Supervisor (Public Health). But a plain reading of the said proviso, as stated above, leads to the conclusion
that the intention of the Government is to give a different treatment in respect of the above said employees of Corporation Subordinate Engineering
Service. Further, we are not concerned with the validity of the said Rule contained in the proviso. All that we have to decide in this writ petition is
whether the interpretation given in the above said impugned memorandum is correct or not.
Further, the above said Rules of 1969 relating to the Corporation Engineering Service of Class I-A, I-B and II Officers, framed by the State
Government pursuant to Section 86(1)(i) of the Madras City Municipal Corporation Act, 1919, while the Madras Corporation Engineering
Subordinate Service Bye-laws 1981 relating to Class III and IV employees of the Corporation are made pursuant to Section 86(1)(ii) of the
above said Act. In the latter by-laws, we find from bye-law No. 2 therein that the above said Supervisors, Head Draftsmen, Head Surveyors are
grouped under one category, viz., Category I and the abovesaid Overseers, Surveyors and Draftsmen are grouped under another ""category"", viz.,
Category II. So also we think what is meant by the abovesaid expression ""one or more categories"" is the abovesaid both the groups. No doubt it
was pointed out by the learned counsel for respondents that in the abovesaid Rules, 1969 at one place Supervisors, Head Draftsmen and Head
Surveyors belonging to the same category are referred to as ""categories"". But, we also find that generally in the same Rules, posts of different levels
in Class II, like Executive Engineer, Senior Assistant Electrical Engineer, Assistant Engineer other than Assistant Engineer (Electrical) are referred
to as falling under different ""Categories"", viz., Category 1, Category 2 and Category 3. So, we think that the term ""one or more categories
appearing in the above referred to proviso should be held to mean one or more categories of not only the higher level employees, viz., Supervisors,
Head Surveyors and Head Draftsmen, but also lower level employees of Overseers, Surveyors and Draftsmen.
No doubt the learned counsel for the respondents also points out that as per the said rules qualifying service of five years stipulated for Degree
Holders is only in the feeder category and not in the lower category of Overseers etc., even though there is no bar for the degree holders to enter
the service initially in that lower category. But rarely degree holders would opt for joining as Overseer etc., initially, while they are entitled to be
straightway taken in the higher posts as Supervisor (Assistant Engineer), Head Draftsmen, Head Surveyor, which right admittedly is not available
to diploma holders since they can join the service only as Overseers etc., and they only can be promoted to Supervisor (Junior Engineer),
Surveyor or Draftsman. This may be the reason for the abovesaid rule. Anyway, since the rule relating to 10 years service of diploma holders as
stated above, is plain, we do not think that the rule relating to the abovesaid five year service of degree holders could influence the interpretation of
the rule relating to qualifying service of 10 years in respect of diploma holders.
Further, the decision of the Andhra Pradesh High Court in V. Ramachandra Moorthy v. The Government of A.P. 1971 APLJ 439` cited by
the learned counsel for the appellant in interpreting a similar rule, it has been observed as follows :-
The total service put in by Supervisors even in a lower category has to be taken into consideration for purposes of determination of the qualifying
service.
This decision of a single judge of the Andhra Pradesh High Court has also been confirmed by a Division Bench of the said court in M. Raghavalu
v. Govt. of A.P. 1973 (2) SLR 229, and where the reasoning of the said Division Bench is as follows :-
We are inclined to agree with his view not only for the reason which the learned Judge has given but also because if 10 years or 20 years service
as Supervisors was intended, nothing could have been simpler than to mention it as was done in the same provision, earlier. Except in very few and
rare cases, no Supervisor having the Upper Subordinate qualification could ever expect to become, Assistant Engineer after completing 10 years''
service as such. The same reasoning but with greater force applies to a Supervisor who has merely a diploma of Lower Subordinate. It is not
possible for many of them to complete 20 years of service as Supervisor with a view to get promotion as Assistant Engineer. The omission of the
words ''in that category or service'' as such brings out the intention of the farmers prominently that persons possessing lower qualifications should
have more experience in order to earn promotion to the post of Assistant Engineer. Thus, while a Graduate Engineer is required to put in 5 years''
service, a Supervisor possessing lower qualification is required to put in three or four times service though not in the same category as Supervisor"".
Further, State of Andhra Pradesh Vs. Dr. N. Ramachandra Rao and Others, cited by the said counsel also indicates that service in lower category
should be included in determining the seniority.
The learned counsel for the appellant also brought to our notice that in the Rules relating to Public Works Department of the State Government
also, there was a similar proviso as follows :-
Provided that Draftsmen and Overseers of the Madras Engineering Subordinate Service promoted as Supervisors in the same service and Head
Draftsmen and Draftsmen I Grade of the Madras Engineering Subordinate Service possessing the qualifications referred to above shall be eligible
for appointment as Assistant Engineers, only if they have put in a total service of not less than 15 years and 10 years respectively in one or more of
the categories.
But, subsequently when the said Rule was amended, the said Rule was amended as follows :-
Provided that Draftsmen and Overseers of the Tamilnadu Engineering Subordinate Service promoted as Supervisors in the same service
possessing the qualifications referred to above shall be eligible for appointment as Assistant Engineers only if they have put in a total service of not
less than ten years, of which atleast five years shall be as Section Officers in the Public Works Department.
So, according to the learned counsel, whenever the Government wanted to specify that for the purpose of promotion, qualifying period of service
must be in the feeder service fully or partly, it specifically says so, as is found in the above said amended proviso of the Tamilnadu Engineering
Service Rules. We see force in this argument also.
Further, the learned counsel also submits that when such similar Rules are there in other Departments like the abovesaid Public Works
Department, it has to be presumed that the Government when it framed the above referred to Rules of Corporation Engineering Service in 1969,
was aware of the meaning it has given to the abovesaid term ""in one or more categories"" used in the abovesaid proviso in question. In this
connection he relied on the following passage in page 436 of Crawford''s Interpretation of Laws, 1989 Reprint :-
We must presume that the Legislature passes each and every statute with a knowledge of existing law"".
He also referred to the following passage in State of Tamil Nadu Vs. Mahi Traders and Others, :-
It has been pointed out by this court in Desh Bandhu Gupta and Co. and Others Vs. Delhi Stock Exchange Association Ltd., and K.P. Varghese
Vs. Income Tax Officer, Ernakulam and Another, that a contemporaneous exposition by the administrative authorities is a very useful and relevant
guide to the interpretation of the expressions used in a statute.
We see force in this argument of the learned counsel for the appellant also. So, on a pure interpretation of the abovesaid rule, we hold that the term
one or more categories"" in the abovesaid proviso would also include the above said lower category posts as stated in the impugned memorandum
and that this writ petition should be dismissed.
The other submission of the learned counsel for the appellant is that the writ petitioner cannot have the relief claimed by him in this writ petition
since his present claim is barred by res judicata, in view of the earlier decision given by this court on April 4, 1983 in W.P. No. 4457/79 filed by
the appellant herein against the Corporation of Madras and others including the writ petitioner herein and the decision given on December 21,
1989 in the appeal therefrom in WA No. 154/85. That earlier writ petition was filed to quash an order of the Corporation of Madras promoting 18
persons consisting of 14 Engineering Degree holders and 4 Engineering Diploma holders as Assistant Executive Engineers adopting the ratio of 3:1
as between the Degree holders and Diploma holders. According to the writ petitioner therein (the appellant herein), he entered the service as
Overseer and thereafter was promoted as Supervisor, having put in, in all, a total service of more than ten years at the time when the said writ
petition was filed. Further, according to him, he is fully qualified for promotion, but the abovesaid 14 Engineering Degree holders have not
completed their required qualified service of five years and the relaxation of the said 5 year rule is bad. He also attacked the amendment made in
the Rules fixing the above said ratio of 3:1. Hence the writ petitioner therein sought for quashing the relevant order of the Corporation of Madras.
The said writ petition was considered by this court along with other similar writ petitions and in the above said order dt. April 8, 1983 it was held
that the abovesaid impugned promotions were purely on temporary basis and that hence the said writ petitioner (appellant herein) and the other
connected writ petitioners could not have any legitimate grievance. However, in the appeal therefrom, this court held by the abovesaid order dt.
December 21, 1989 that the abovesaid promotions, having been continued for over ten years, could not be treated as temporary promotions, so
as to come under the relevant Section 87(4) of the City Municipal Corporation Act and that the above fixation of 3:1 ratio and the (promotion),
without amending the Rules, is bad. Therefore, in the writ appeal, the impugned order of promotion was truck down and the writ appeal of the
present appellant and the other connected writ appeals were allowed by this court and direction was given to revise the seniority and consider
promotions strictly in accordance with the statutory Rules framed u/s 86 of the above said Act.
Now the question is whether the abovesaid decision in the earlier proceeding would bar the present petition on the principle of res judicata.
The learned counsel for the appellant relies on Explanation IV to Section 11 CPC and the decision in The Direct Recruit Class-II Engineering
Officers'' Association and others Vs. State of Maharashtra and others, . His submission is that the present issue in this writ petition though was not
directly and substantially in issue in the above said earlier proceeding, the present writ petitioner, who was respondent in the earlier proceeding,
should have raised the question at issue in the present case, as a defence to the abovesaid earlier writ petition and that, therefore, the principle
underlying Explanation IV to Section 11 CPC would apply. The said Explanation IV no doubt says 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 the latter suit.
Further, the above referred to The Direct Recruit Class-II Engineering Officers'' Association and others Vs. State of Maharashtra and others, has
also held as follows :-
The decision in Forward Construction Co. v. Prabhat Mandal (Regd.) Andheri (1986) 1 SCC 100) further clarified the position by holding that
an adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to
have litigated and have had decided as incidental to or essentially connected with subject matter of litigation and every matter coming into the
legitimate purview of the original action both in respect of the matters of claim and defence. Thus, the principle of constructive res judicata
underlying Explanation IV of Section 11 of the CPC was applied to writ case. We, accordingly, hold that the writ case is fit to be dismissed on the
ground of res judicata"".
But, on the other hand, the learned counsel for the respondents points out that as per Section 11 CPC the bar of res judicata will come in only if
the parties were ""litigating under the same title"". But, we are unable to see how the parties were not litigating under the same title in the above said
earlier proceeding and the present proceeding. In the abovesaid earlier writ petition of the present appellant, the present writ petitioner was one of
the respondents and both of them were litigating only in their individual capacities, both in the earlier proceeding and in this proceeding. No doubt,
one of the questions involved in the earlier proceeding was whether the relaxation effected to the abovesaid five year valued relating to the degree
holders-respondents therein was proper, while in the present writ petition the question is whether the diploma holder writ petitioner herein is eligible
for promotion even though he has not completed the required ten year qualifying service in the abovesaid feeder category alone. But, in answer to
the earlier writ petition, the degree holder respondent therein (in writ petitioner Dayal herein) could have pleaded that the writ petitioner
Gomathinayagem therein himself was not having the required qualification of ten year service in the abovesaid feeder category post itself.
Admittedly in June, 1979, when the promotions impugned in the earlier writ petition of Gomathinayagam (the appellant herein), the said
Gomathinayagem, a Diploma holder had not completed the required ten year service in the feeder category of Supervisor, but had completed the
said ten years service only after taking into account the lower category post earlier held by him also. So the said Dayal could have easily taken the
defence in the earlier writ petition to non-suit Gommathinayagem therein. So, we think the principle underlying Explanation IV to Section 11 CPC
would apply.
Even in Workmen of Cochin Port Trust Vs. Board of Trustees of The Cochin Port Trust and Another, cited by the learned counsel for the
respondents, it is observed as follows (p. 165) :
The principle of res judicata also comes into play when by the judgment and order a decision of a particular issue is implicit in it, that is, it must be
deemed to have been necessarily decided by implication; then also the principle of res judicata on that issue is directly applicable. When any matter
which might and ought to have been made a ground of defence or attack in a former proceeding but was not so made, then such a matter in the
eye of law, to avoid multiplicity of litigation and to bring about finality in it, is deemed to have been constructively in issue and, therefore, is taken as
decided ..... But the technical rule of res judicata, although a wholesome rule based upon public policy, cannot be stretched too far to bar the trial
of identical issues in a separate proceeding merely on an uncertain assumption that the issues must have been decided. It is not safe to extend the
principle of res judicata to such an extent so as to found it on mere guess work. To illustrate our view point, we may take an example. Suppose a
writ petition is filed in a High Court for grant of a writ of certiorari to challenges some order or decision on several grounds. If the writ petition is
dismissed after contest by a speaking order, obviously it will operate as res judicata in any other proceeding, such as, of suit, Art. 32 or Art. 136
directed from the same order or decision. If the writ petition is dismissed by a speaking order either at the threshold or after contest, say, only on
the ground of laches or the availability of an alternative remedy, then another remedy open in law either by way of suit or any other proceeding
obviously will not be barred on the principle of res judicata. Of course, a second writ petition on the same cause of action either filed in the same
High Court or in another will not be maintainable because the dismissal of one petition will operate as a bar in the entertainment of another writ
petition. Similarly even if one writ petition is dismissed in limine by a non-speaking one word order ""dismissed"" another writ petition would not be
maintainable because even the one word order, as we have indicated above, must necessarily be taken to have decided impliedly that the case is
not a fit one for exercise of the writ jurisdiction of the High Court. Another writ petition from the same order or decision will not lie. But the
position is substantially different when a writ petition is dismissed either at the threshold or after contest without expressing any opinion on the
merits of the matter, then no merit can be deemed to have been necessarily and impliedly decided and any another remedy of suit or other
proceeding will not be barred on the principle of res judicata
Following the above said observation of the Supreme Court, we think the principle of res judicata can very well be applied to the present writ
petition also since it is neither a different ""proceeding'' spoken to by the Supreme Court in the above said observation, nor there is ""uncertain
assumption"" spoken to therein. On the other hand, it can be safely held that the issue figuring in this writ petition can be ""deemed to have been
constructively in issue and, therefore, is taken as decided"", in the earlier writ petition. So, for this reason also, the present writ petition should be
dismissed.
For all these reasons, the writ appeal is allowed, the order of the learned single judge is set aside and the writ petition is dismissed. However,
in the circumstances, there will be no order as to costs throughout. Consequent on the above said decision, WP 3938/92 is also dismissed. But the
additional reasoning based on the principle of res judicata will not apply to this case No costs.