High Court of Punjab and HaryanaCWP/7956/2017dismissed

Subhash Chander v. State Of Haryana And ANR

2024-01-08Mr. Justice Harsimran Singh Sethi24 pages

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+ "8.7. 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 . /

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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 .72 3

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-%+). 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

4 set a.side in appeal a.s 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." (5

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" + "37. On the question, as to whether after the withdrawal of a suit claiming the same relief without having permission to institute fresh one for the same relief, a writ petition will be maintainable before the Court, the guidance is available from the judgment of this Court in

:62

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-( +%(, wherein the principle of constructive res judicata was applied. The case concerns a litigant who sought to file a fresh writ petition after withdrawal of the earlier writ petition filed for the same relief without permission to file fresh one. The Court held that the principles contained in Order 23, Rule 1 CPC are applicable even in writ proceedings. Para 15 thereof is extracted below:

"15. In these circumstances, we feel that when this issue was raised and abandoned in the first writ petition which was dismissed as withdrawn, the principles of constructive res judicata which are laid down under Order 23 Rule 1 of the Code of Civil Procedure, 1908, and which principles are extendable to writ proceedings as well as held by this in 0; 62

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"25. However, upon change in the political set up and upon an objective consideration of the entire matter vis:a:vis the need and interest of the State, the cadre strength was fixed at 230. No serious challenge has been made to this part of the judgment of the High Court.

We also do not see any reason to interfere with the impugned notification dated 13.05.2005. What would be the need of the State and how an administration shall be run is within the exclusive domain of the State. The power of judicial review in such matter is very limited. The superior judiciary ordinarily would not interfere in a matter involving policy decision. We do not mean to say that the policy decision of the State is beyond the realm of judicial review. However, power of judicial review can be exercised only on the basis of known legal principles. [See Cellular Operators Assn. of India and Others v. Union of India and Others, (2003)3 SCC 186 , Bombay Dyeing & Mfg. Co. Ltd. (3) v. Bombay Environmental Action Group and Others, (2006)3 SCC 434 and Sarbananda Sonowal v. Union of India, (2007)1 SCC 174 ] We, however, in the fact situation obtaining herein cannot opine that any case has been made out where the court shall delve deep into the aforementioned question. xxx xxx xxx xxx

30. The legal principle obtaining herein is not in dispute that the selectees do not have any legal right of appointment subject, inter alia , to bonafide action on the part of the State. We may notice some of the precedents operating in the field.

In Shankarsan Dash v. Union of India, 1991(2) SCT 194 : [(1991)3 SCC 47] , this Court held :

( "7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bonafide for appropriate reasons.

And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subhash Chander Marwaha, AIR 1973 Supreme Court 2216 , Neelima Shangla v. State of Haryana, AIR 1987 Supreme Court 169 or Jatendra Kumar v. State of Punjab, 1985(1) SCC 122.

Yet again in R.S. Mittal v. Union of India, 1995(3) SCT 284 : [1995 Supp (2) SCC 230] , this Court held : "...It is no doubt correct that a person on the select panel has no vested right to be appointed to the post for which he has been selected. He has a right to be considered for appointment. But at the same time, the appointing authority cannot ignore the select panel or

(( decline to make the appointment on its whims. When a person has been selected by the Selection Board and there is a vacancy which can be offered to him, keeping in view his merit position, then, ordinarily, there is no justification to ignore him for appointment. There has to be a justifiable reason to decline to appoint a person who is on the select panel. In the present case, there has been a mere inaction on the part of the Government. No reason whatsoever, not to talk of a justifiable reason, was given as to why the appointments were not offered to the candidates expeditiously and in accordance with law. The appointment should have been offered to Mr Murgad within a reasonable time of availability of the vacancy and thereafter to the next candidate. The Central Government's approach in this case was wholly unjustified."

(Emphasis supplied) In Asha Kaul (Mrs.) and Another v. State of Jammu and Kashmir, 1993(2) SCT 744 : [(1993)2 SCC 573] , this Court held :

"8. It is true that mere inclusion in the select list does not confer upon the candidates included therein an indefeasible right to appointment (State of Haryana v. Subhash Chander Marwaha ; Mani Subrat Jain v. State of Haryana, AIR 1977 Supreme Court 276 ; State of Kerala v. A. Lakshmikutty, (1986(4) SCC 632) but that is only one aspect of the matter. The other aspect is the obligation of the Government to act fairly. The whole exercise cannot be reduced to a farce. Having sent a requisition/request to the Commission to select a particular number of

(6 candidates for a particular category, : in pursuance of which the Commission issues a notification, holds a written test, conducts interviews, prepares a select list and then communicates to the Government the Government cannot quietly and without good and valid reasons nullify the whole exercise and tell the candidates when they complain that they have no legal right to appointment. We do not think that any Government can adopt such a stand with any justification today...."

[See also A.P. Aggarwal v. Govt. of NCT of Delhi and Another, (2000)1 SCC 600 ] In Food Corpn. Of India and Others v. Bhanu Lodh and Others, 2005(2) SCT : 151 : [(2005)3 SCC 618] , this Court held :

"14. Merely because vacancies are notified, the State is not obliged to fill up all the vacancies unless there is some provision to the contrary in the applicable rules. However, there is no doubt that the decision not to fill up the vacancies, has to be taken bonafide and must pass the test of reasonableness so as not to fail on the touchstone of Article 14 of the Constitution. Again, if the vacancies are proposed to be filled, then the State is obliged to fill them in accordance with merit from the list of the selected candidates. Whether to fill up or not to fill up a post, is a policy decision, and unless it is infected with the vice of arbitrariness, there is no scope for interference in judicial review." 6:

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Whether speaking/reasoned : Yes/No Whether reportable : Yes/No