Andhra HC (Pre-Telangana)
South Central Railway Employees ... vs B. Yashodabai And Ors. on 14 August, 2002
Equivalent citations: 2002(5)ALD687
JUDGMENT S.R. Nayak, J.
1. This writ appeal is filed by the South Central Railway Employees Co-op. Credit Society Employees Union, the 5th respondent in the writ petition, assailing the correctness of the order of the learned single Judge dated 6-8-1996 made in WP No. 17756 of 1998. The above writ petition was filed by respondents 1 to 7 herein praying for a writ of Certiorari to quash the proceedings No. CC.5/14/Court/ Resn/1998 dated 12-6-1998 issued by the 4th respondent in the writ petition on the ground that the proceeding was issued in violation of Articles 14, 16 and 313 of the Constitution of India apart from being violative of principles of natural justice and for a consequential direction to the appellant herein to implement the earlier proceedings dated 1-4-1998 issued by the appellant itself.
2. The facts of the case be noted briefly as under: The South Central Railway Employees Co-op. Credit Society (for short, the Society), the 4th respondent in the writ petition, which is 11th respondent in this writ appeal, is a Society registered under the A.P. Co-op. Societies Act, 1964 (for short, the Act) consisting of the employees of the South Central Railway as its members. The respondents 1 to 7 herein, who belong to Scheduled Caste, filed the above writ petition assailing the validity of the order of the Secretary of the appellant-Union seeking to revert them in the purported exercise of implementing the judgment of the Supreme Court in Civil Appeal No. 4343 of 1998 dated 13-1-1998 in the case of South Central Employees Co-op. Employees Union, Secunderabad v. Registrar of Co-op. Societies.
3. The 34th Annual General Body Meeting of the appellant-Union, at its meeting held on 29-6-1959, had passed an unanimous resolution to apply the Service Rules of the Railways to its employees also. Resolution No. 21 so passed by the annual General Body reads as follows:
"Resolved that with effect from 1-12-1962 the rules applicable to the employees of the society in respect of superannuation, leave, discipline and conduct shall be similar to those in force in the Railways.
Subsequently, the appellant-Union entered into an agreement with the Managing Committee of the Society on 7-4-1979. Item No. 3 of the agreement relates to implementation of the reservation policy. It reads as follows:
"Quota and implementation :--Rest is to be maintained as per the instructions contained I in the brochure followed by the Railways if there is any backlog on this account. This has to be cleared by adjusting against the future vacancies."
4. It is not in dispute that by the time the resolution was adopted, the Central Government, its undertakings were following the rule of reservation in appointments by promotion also. In terms of the reservation policy and in implementation of the same, the writ petitioners were promoted.
5. While things stood thus, the Act was amended by Amendment Act 19 of 1976. In the Amending Act, new Section 116-B was introduced dealing with reservation to be implemented by the Co-operative Societies governed by the Act. Section 116-B, as introduced, reads as follows:
"116-B: Power of Government to give directions to societies etc :-- The Government may give directions, to a society or class of societies or an appointment committee constituted under Section 116A to make provision,--
(a) for the reservation of appointments or posts under any such society in any cadre created under the said section in favour of, or
(b) for the grant of any special concessions in the matter of appointment to any such posts or cadre to, the Scheduled Castes, the Scheduled Tribes and Backward Classes and the society or appointment committee shall be bound to comply with such directions and to give effect to any provision so made."
6. In exercise of the power conferred under Section 116-B of the Act, the Government of Andhra Pradesh issued G.O. Ms. No. 55, dated 1-2-1977 directing implementation of the reservation in appointment to all posts in co-operative institutions to be filled up by direct recruitment on temporary/regular basis. Subsequently, the Registrar of Co-operative Societies issued a circular stating that rule of reservation is not applicable in promotion and it is applicable only in the case of direct recruitment. The said circular issued by the Registrar of Co-operative Societies was questioned by the writ petitioners herein in WP No. 8051 of 1982 in this Court. A learned single Judge of this Court in that writ petition held that appointment includes appointment by promotion also and, therefore, the Registrar of Co-operative Societies is not justified in issuing the clarification that the rule of reservation is not applicable in the case of promotion. So opining, the learned single Judge allowed the writ petition by order dated 10-11-1983. The correctness of the order of the learned single Judge was questioned in WA No. 1064 of 1983 before a Division Bench of this Court and the opinion of the learned single Judge was affirmed by a Division Bench of this Court. Aggrieved by the said judgment of the Division Bench, the 5th respondent-Union filed CA No.4343 of 1998 before the Apex Court. The Apex Court, differing with the opinion of the Division Bench of this Court, held that reservation would apply only in the case of appointment by direct recruitment and not to appointments by way of promotion. So opining, the Apex Court allowed CA No.4343 of 1998 filed by the appellant-Union on 13-1-1988. After the disposal of CA No.4343 of 1998 by the Apex Court, the Secretary of the Society issued the impugned proceedings dated 12-6-1998. It reads as follows:
"S.C.RAILWAY EMPLOYEES' CO-OP.
CREDIT SOCIETY LTD., SECUNDERABAD No.CCS/14/Court/Resn/1998 dated 12-6-1998 To Kum. B.Yashoda Bai, Asst. Secretary Sri V. Jesurathnam, OS I Sri P. Chander Rao, OS I Sri D.S. Mahender, OS I Sri Mukund Kamble, Head Clerk Sri D.M. Narender Rao, Head Clerk Sri K.L. Jangaiah, Head Clerk Sub:--Process of implementation of Supreme Court judgment delivered during January, 1998 with regard to Reservations in Society.
Consequent upon the judgment of the Supreme Court on the above subject, in the process of implementation of the same, you are hereby informed that you are likely to be reverted by one or more position from the existing scales which you hold or as the case may be depending upon the revised seniority list published vide letter dated 11-6-1998. Further you may also please note that as per legal opinion you will not be entitled for any pay protection.
This is for your information and due caution.
Sd/-
Secretary"
7. The learned single Judge having opined that under Section 30 of the Act the ultimate authority of the Co-op. Society vests in the General Body of the Society and, therefore, having regard to Resolution No. 21 passed by the 34th General Body at its meeting held on 29-6-1959 providing for reservation in the matter of recruitment to posts by promotion also and since the said resolution was not placed before the Apex Court in CA No. 4343 of 1998, now it is not permissible for the Management of the Society to revert the employees to the lower posts, allowed the writ petition. Hence this writ appeal by the appellant-Union.
8. We have heard Sri Vedula Srinivas, learned Counsel for the appellant and Mr. T. Lakshminarayana for respondents 1 to 7. Sri Vedula Srinivas contended that having regard to the finality reached in the previous writ proceedings culminating in the order of the Apex Court in CA No.4343 of 1998 holding that, the notification issued by the Government by virtue of the power conferred under Section 116-B of the Act provides reservation only in the case of direct recruitment and not recruitment by way of promotion, the writ petitioners are liable to be reverted to the lower posts, because, admittedly they were appointed to the present posts by way of promotion by applying the reservation rule and, therefore, the impugned action is justified and that the impugned action taken by the management of the Society is quite legal and is intended to implement the order of the Supreme Court in CA No.4343 of 1998. Mr. Srinivas also contended that the plea raised by the writ petitioners that on the basis of Resolution No. 21 passed by the 34th Annual General Body in its meeting held on 29.6.1959 entitles them to seek application of reservation rule in the matter of recruitment by promotion also, is hit by the principle of constructive res judicata, inasmuch as the said plea was very much available when they resorted to legal remedies. Mr. Srinivas pointed out that this plea was, in fact, specifically taken in the Review Petition (Civil) No. 1292 of 1998 in CA No.4343 of 1998 filed before the Apex Court by the petitioners though that plea was not dealt with by the Supreme Court and, therefore, the petitioners are not entitled to raise that plea in the present writ proceedings.
9. Sri T. Lakshminarayana, learned Counsel for the respondents 1 to 7, on the other hand, supported the decision of the learned single Judge and contended that the resolution passed by the 34th Annual General Body of the appellant Union dated 29-6-1959 was not brought to the notice of the Supreme Court in the earlier writ proceedings; the said judgment of the Supreme Court would not come in the way of the writ petitioners from claiming their right to promotions on the basis of Resolution No.21 dated 29-5-1959 and questioning the validity of the impugned action in seeking to revert them to lower posts and, therefore, the principle of constructive res judicata is not applicable.
10. Before considering the rival contentions of the learned Counsel for the parties, it is appropriate to notice the service particulars of the writ petitioners/ respondents 1 to 7 in the writ appeal. The 1st respondent was appointed as Junior Clerk on 1-10-1959 and he was latter promoted to the posts of Senior Clerk, Head Clerk, Chief Clerk, Office Superintendent-1 and Assistant Secretary, and at the time of filing the writ petition he was serving as Assistant Secretary. The respondents 2, 3 and 4 were initially appointed as peon on 1-8-1970, 1-3-1973 and 18-7-1974 respectively and latter they were promoted to the posts of Record Tracer, Junior Clerk, Senior Clerk, Head Clerk, Office Superintendent-II and Office Superintendent-I and at the time of filing of the writ petition they were serving as Office Superintendent-I. The respondents 5, 6 and 7 were initially appointed as peon on 15-9-1976, 29-9-1981 and 15-10-1981 respectively and latter they were promoted to the posts of Record Tracer, Senior Record Tracer, Junior Clerk, Senior Clerk and Head Clerk and at the time of filing of the writ petition they were serving as Head Clerks.
11. At the threshold, it needs to be noticed that what fell for decision in the earlier writ proceedings (WP No. 8051 of 1982 and WA No. 1064 of 1993) ultimately resulting in the judgment of the Apex Court in Civil Appeal No. 4343 of 1988 was whether in terms of G.O. Ms. No. 55, Food and Agriculture Department, dated 1-2-1977, the rule of reservation is applicable in the case of promotion also or it is confined to direct recruitment. In that case, the Government in exercise of the power conferred under Section 116-B of the Act had issued G.O. Ms. No. 55 Food and Agriculture Department dated 1-2-1977. Relevant portion of the said G.O. reads as follows:
"In exercise of the powers conferred by Section 116-B of the Andhra Pradesh Cooperative Societies Act, 1964 (Act 7 of 1964), the Government of Andhra Pradesh hereby directs the societies and the appointment committee constituted under Section 116-A of the said Act that the instructions specified in the appendix hereto shall be followed with regard to reservation of appointments to all posts in all Co-operative institutions to be filled by direct recruitment on temporary or regular basis."
The above Government Order was followed by a circular of the Registrar of the Cooperative Societies clarifying that rule of reservation is not applicable in the case of promotion and it is applicable only in the case of direct recruitment. When that circular issued by the Registrar of Co-operative Societies was assailed in WP No. 8051 of 1982, both the learned single Judge as well as the Division Bench of this Court held that rule of reservation applies in the case of promotion also in terms of G.O. Ms. No. 55 dated 1-2-1977. The Apex Court, after noticing the contents of G.O. Ms. No. 55 and while reversing the judgment of this Court held-
"On a plain reading of the aforesaid notification it is crystal clear that the direction of the Governor was to follow the principle of reservation in appointments to all posts in all co-operative institutions to be filled by direct recruitment either on temporary or on regular basis. It is undisputed before us that the promotional posts in the societies cannot be filled up by direct recruitment and, therefore, the only conclusion that can be arrived at is that the aforesaid direction of the Government to apply the principles of reservation is only in respect of appointments in the initial cadre and not to any appointments in the promotional cadre. The Division Bench of the High Court while giving wide interpretation to the expression 'appointment' in the notification have completely overlooked the later part of the said notification to the effect "to be filled by direct recruitment on temporary or regular basis." The interpretation given by the High Court to the notification only by giving a wide interpretation to the word 'appointment' makes the later part of the notification wholly redundant or surplusage. It is a cardinal principle of construction not to brush aside words used in a statute or in a notification issued under a statute and full effect must be given to the entire words of an instrument. Applying the said principle to the notification, which is for consideration before us, we had no hesitation to come to the conclusion that under the said notification no direction has been given by the Governor to apply the policy of reservation in appointments to the promotional posts. The High Court, therefore, committed serious error of law in interpreting the aforesaid notification and by holding that the policy of reservation has been made applicable to the promotional posts also. We accordingly set aside the impugned judgment of the High Court as well as the judgment of the learned single Judge and hold that though it was open to the Government to apply the principle of reservation but by the impugned notification it has not been made applicable to the promotional posts available in the society."
Thus, it could be seen that the Apex Court, while reversing the judgment of the Division Bench of this Court handed down in WA No. 1064 of 1993, held that as per G.O. Ms. No. 55, dated 1-2-1977, reservation rule could be applied only in the case of direct recruitment and not in the case of promotions. There is no serious dispute between the parties about this position though Sri V. Srinivas; learned Counsel for the appellant contended that respondents 1 to 7 in this appeal, who are the petitioners in WP No. 17556 of 1998, in the Review Petition (C) No. 1292 of 1998 filed by them before the Apex Court had taken the plea that in terms of Resolution No. 21 passed by the 34th Annual General Body of the appellant Union in its meeting held on 26-9-1959, reservation rule was required to be implemented not only in the case of direct recruitment but also in the case of promotions. Even assuming that such a plea was raised in the review petition before the Apex Court, since the Apex Court has not at all referred to or dealt with that plea on merit in its order made in the review petition, merely because the review petition was dismissed by the Apex Court, it cannot be said that the order of the Supreme Court operates as a binding precedent and, therefore, it would attract the provisions of Article 141 of the Constitution of India. Firstly, ratio decidendi is a rationale of the judgment and Order of a Court and not the relief granted by such Court. It is well settled that any conclusion of the Court not preceded by reasoning or rationale could not be treated as a law declared to have a binding effect under Article 141 of the Constitution. In State of U.P. v. Synthetics and Chemicals Limited, , the Supreme Court held in paras (40) and (41) as under:
" 'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratium. English Courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and, ignored if it is rendered, 'in ignoratium of a statute or other binding authority'. (Young v. Bristol Aeroplane Co. Ltd., (1944) 1 KB 718 = (1944) 2 All ER 293. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, , this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Laws of England incorporating one of the exceptions when the decision of an appellate Court is not binding.
Does this principle extend and apply to a conclusion of law, which was neither raised nor preceded by any consideration. In other words can such conclusions be considered as declaration of law? Here again the English Courts and jurists have carved out an exception to the rule of precedents. It has been explained as rule of sub-silentio. "A decision passes sub-silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind." (Salmond on Jurisprudence 12th Edn., p. 153). In Lancaster Motor Company (London) Ltd. v. Bremith Ltd., (1941) 1 KB 675, 677 = (1941) 2 All ER 11, the Court did not feel bound by earlier decision as it was rendered 'without any argument, without reference to the crucial words of the rule and without any citation of the authority'. It was approved by this Court in Municipal Corporation of Delhi v. Gurnam Kaur, . The Bench held that, 'precedents sub-silentio and without argument are of no moment'. The Courts thus have taken recourse to this principle for relieving from injustice perpetrated by unjust precedents. A decision which is not expressed and is not founded on reasons nor it proceeds on consideration of issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141. Uniformity and consistency are core of judicial discipline. But that which escapes in the judgment without any occasion is not ratio decidendi. In B. Shama Rao v. Union Territory of Pondicherry, - it was observed, 'it is trite to say that a decision is binding not because of its conclusions but in regard to its ratio and the principles, laid down therein'. Any declaration or conclusion arrived without application of mind or preceded without any reason cannot be deemed to be declaration of law or authority of a general nature binding as a precedent. Restraint in dissenting or overruling is for sake of stability and uniformity but rigidity beyond reasonable limits is inimical to the growth of law".
12. It is also not in dispute that the General Body of the appellant Union has power under the Bye-laws of the Society to apply reservation rule in the case of promotion of its employees also. Sri Srinivas, learned Counsel for the appellant quite fairly did not question the power of the General Body of the appellant Union to apply reservation in the case of promotion also under Section 30 of the Act. As pointed out supra, the 34th General Body of the appellant Union at its meeting held on 26-5-1959, had passed an unanimous resolution to apply the service rules of the Railways which provide, among other things, the rule of reservation in promotions also to its (the Society's) employees. The above policy decision taken in the 34th Annual General Body meeting of the appellant Union does not offend any of the provisions of the Constitution or any statute or the notification issued by the Government under Section 116-B of the Act. Undoubtedly, the State Government under Section 116-B of the Act, has the power to issue directions to a society or a class of societies or an appointment committee to make provision for reservation of appointments or posts in any cadre. By virtue of that power, it is permissible for the Government to direct the societies to make provision for reservation both in the case of direct recruitment and/or in the case of promotion. In the instant case, the Government issued the notification under Section 116-B of the Act directing the co-operative societies, which include the appellant-Union, to make provision for reservation only in the case of direct recruitment. Therefore, claim of an employee of the appellant Union for appointment to a post by way of promotion cannot rest on the basis of the reservation rule incorporated in G.O. Ms. No.55, dated 1-2-1977. However, that does not mean that de hors G.O. Ms. No. 55 issued by the State Government under Section 116-B of the Act, the Management of the appellant-Union, cannot make provision for reservation in the case of recruitment by promotion also. In fact, in the instant case, provision was made for applying the rule of reservation in the case of recruitment by promotion also as far back, as in the year 3959 itself, that is to say, long before the State Government issued G.O. Ms. No.55 dated 1-2-1977 after the insertion of Section 116-B of the Act by Amendment Act 19 of 1976.
13. Without disputing the above undisputable position, Sri Srinivas, learned Counsel for the appellant, however, contended that this very ground was very much available for the writ petitioners in the earlier writ proceedings, WP No. 8051 of 1982 and since the petitioners failed to take that plea in the earlier writ proceedings, such a plea cannot be permitted to be raised now and it is hit by rule of constructive res judicata. Sri Srinivas placing reliance on the judgments of the Supreme Court in Union of India v. Nanak Singh, , Devilal Modi v. STO, , Forward Construction Co. v. Prabhat Mandal (Regd), , P.K. Vijayan v. Kamalakshi Amma, , contended that in view of Explanation IV to Section 11 CPC, it could not be said the earlier judgment in Civil Appeal No.4343 of 1998 of the Apex Court would not operate as res judicata as the ground now taken by the respondents 1 to 7 in this appeal based on the Resolution No.21 passed at the Annual General Body Meeting held on 29-6-1959 was conspicuous by its absence in the earlier writ proceedings culminating in the judgment of the Apex Court in Civil Appeal No.4343 of 1998 in favour of the appellant Union. Sri Srinivas contended 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 it decided as incidental to or essentially connected with the subject matter of the litigation and every matter coming within the legitimate purview of the original action both in respect of the matters and claim or defence.
14. It is well settled by the judgments of the Apex Court in Drayo v. State of U.P., , and G.K. Tudhavi v. S.D. Sharma, , that the principles of res judicata and constructive res judicata apply to writ proceedings also. The principle of res judicata is laid down in Section 11 of the Code of Civil Procedure and the principle underlying it, expressed the maxim "interest rei publicae ut sit finis litium" is founded on sound public policy and is of universal application. "The rule of res judicata is dictated" observed Sir Lawrence Jenkins CJ, in Sheoparsan Singh v. Ramnandan Prasad Narayan Singh, 43 Ind App 91 = ILR 43 Cal 694 = AIR 1916 78 (C), "by a wisdom which is for all time". Explanation IV to Section 11 of CPC provides 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 such suit. Although by reason of the Explanation which was inserted in Section 141 of CPC by the Amendment Act of 1976, Section 11 of CPC does not in terms apply to any proceedings under Article 226 of the Constitution, as held by the Apex Court in S.D. Sharma 's case (supra), the principle of res judicata applies to all writ proceedings under Article 226 of the Constitution.
15. 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 it decided as incidental or essentially connected with the subject-matter of the litigation and every matter coming within the legitimate purview of the original action both in respect of the matter of claim or defence. The principle underlying Explanation IV is that where the parties have had an opportunity of controverting a matter that should be taken to be the same thing as if the matter had been actually controverted and decided. It is true that where a matter has been constructively in issue, it cannot be said to have been actually heard and decided; it could only be deemed to have been heard and decided. In other words, principle of constructive res judicata is a point which ought to be taken, if not taken, could also be covered by the principle of res judicata. The rationale behind the principle of constructive res judicata is that unless as aforesaid is done, a party for the same relief, may seek his redressal on few grounds and being unsuccessful on those grounds could, in the second innings by filing fresh petition again raise the remaining grounds for the same relief. It is for the Court to see whether the subsequent proceedings arise out of the same cause of action or different. If cause of action is the same, second proceedings would not be maintainable. Whether the matter in dispute in a subsequent case had earlier been directly and substantially in issue between the same parties, and whether the same matter had been heard and finally decided by the Court, will be on pertinent consideration and will have to be determined by the Court before holding in a particular case that the principle of res judicata is attracted to it. However, while applying the principle of res judicata, extreme technical considerations, usually invoked in civil proceedings may not be allowed to outweigh substantial justice to the parties in other jurisdictions. The Supreme Court in Workmen v. Straw Board Mfg. Co., , has observed:
"27. Some distinction, of whatever shade or magnitude, may have to be borne in mind in application of the principles of res judicata in industrial adjudication in contra-distinction to civil proceeding. Extremely technical considerations, usually invoked in civil proceedings, may not be allowed to outweigh substantial justice to the parties in an industrial adjudication."
The same thing could be said in this case also. It is constitutional duty of the State which includes Judiciary also to take into consideration the claims of the members of the Scheduled Castes and Scheduled Tribes in the matter of appointment subject, of course to the consideration of the efficiency of the administration. This duty is to be exercised by the Court also, being an organ of the State, in keeping with the Directive Principle laid down in Article 46 of the Constitution to promote with special care, the educational and economic interest of the Scheduled Castes and Scheduled Tribes, and to protect them from social injustice and all forms of exploitation. It may be that the appellant Union is not a State within the meaning of Article 12 of the Constitution of India and, therefore, it is not the constitutional obligation of the appellant Union to provide reservation either in the case of direct recruitment or in the case of promotion. At the same time, the power to provide such reservation is very much within the domain of the power vested in the General Body of the appellant Union. Under Section 30 of the Act, the ultimate authority of the Co-operative Society shall vest in the General Body of the society, of course, subject to the provisions of the Act, rules and bye-laws made thereunder. When the General Body of the appellant Union in its wisdom and discretion has chosen to pass an unanimpus resolution providing reservation not only in the case of direct recruitment, but also, in the case of promotions, it becomes the duty of the Court to sustain the rights of the members of the Scheduled Castes and Scheduled Tribes flowing from such resolution keeping in mind the social objective embodied in the Directive Principle laid down in Article 46 of the Constitution and goals of social justice and that their rights cannot be allowed to be defeated by applying technical rules like constructive res judicata. Further, it needs to be noticed that the right flowing from the unanimous resolution of the General Body dated 29-6-1959 passed to promote the social and economic interests of the scheduled castes and scheduled tribes persons was not one-time measure and that right is a right available to them at all times, that is to say, in the past, in the present and in the future as long as that resolution of the General Body of the appellant Union stands and operates. It is also pertinent to notice that it is nobody's case that the Resolution No. 21, passed at the 34th Annual General Body Meeting of the appellant Union at its meeting held on 29-6-1959 providing for reservation in all methods/forms of recruitment was subsequently modified or cancelled by the General Body of the Union itself or otherwise nullified by an order of the Court. If the contention of the learned Counsel for the appellant Union is accepted, it would tantamount to the Court indirectly quashing the Resolution No.21 dated 29-6-1959. Such a course is totally impermissible in law and is opposed to public/constitutional policy embodied in Articles 46 and 335 of the Constitution.
16. There are certain classes of cases, such as, disputes regarding wage structure, service conditions etc., which arise as circumstances change and new situation arise which may not be barred from being re-agitated by the rule of res judicata. (See Management Shahdara (Delhi) Saharanpur Light Railways Co. Limited v. S.S. Railway Workers' Union, . In Bharat Barrel and Drum Manufacturing Company Private Limited v. Bharat Barrel Employees Union, , the Supreme Court while holding that the rule of res judicata applies to proceedings before the Industrial Tribunals in para (12) held as under:
"12. We would hasten to add that the above observations do not mean that a question which is once decided can never be reagitated. There are certain classes of cases like disputes regarding wage structure, service conditions etc., which arise as circumstances change and new situations arise which may not be barred by the rule of res judicata. The disputes which arose for consideration in Workmen v. Balmer Lawrie and Co., and in Associated Cement Staff Union v. Associated Cement Co., - belong to this category of cases."
17. In Kirit Kumar v. Union of India, , it was held that the principles of constructive res judicata do not apply in cases where the points were not agitated in writ proceedings under Article 226 of the Constitution of India, but are raised for the first time in a writ proceeding before the Supreme Court under Article 32 of the Constitution of India. In para (10) of the judgment, the Supreme Court held:
"10. Apart from the cases discussed above there is another ground on which the argument of Mr. Phadke for respondents must be rejected. The doctrine of finality of judgment or the principles of res judicata are founded on the basic principle that where a Court of competent jurisdiction has decided an issue, the same ought not allowed to be agitated again and again. Such a doctrine would be wholly inapplicable to cases where the two forums have separate and independent jurisdictions. In the instant case, the High Court decided the petition of the detenu under Article 226 which was a discretionary jurisdiction whereas the jurisdiction to grant relief in a petition under Article 32 filed in the Supreme Court is guaranteed by the Constitution and once the Court finds that there has been a violation of Article 22(5) of the Constitution, then it has no discretion in the matter but is bound to grant the relief to the detenu by setting aside the order of detention. The doctrine of res judicata or the principles of finality of judgment cannot be allowed to whittle down or override the express constitutional mandate to the Supreme Court enshrined in Article 32 of the Constitution. In a recent decision in the case of Santosh Anand v. Union of India, - this Court has pointed out that the concept of liberty has now been widened by Maneka Gandhi case, , where Article 21 as construed by this Court as added new dimensions to the various features and concepts of liberty as enshrined in Articles 21 and 22 of the Constitution. For these reasons, therefore, we overruled the preliminary objection taken by the respondents."
18. We are also not inclined to apply the technical rule of constructive res judicata to the present case for the one more weighty reason. In earlier writ proceedings, starting from WP No. 8051 of 1982, what fell for consideration before this Court and the Supreme Court was the interpretation of the Government Order G.O. Ms. No.55, Food and Agriculture Department dated 1-2-1977 issued under Section 116-B of the Act and the clarificatory circular issued by the Registrar of Co-operative Societies. The only question addressed to this Court and the Supreme Court was whether in terms of G.O. Ms. No.55, Food and Agriculture Department dated 1-2-1977, the Scheduled Castes and Schedule Tribes employees could seek reservation in promotions also or reservation is restricted to direct recruitment only. In those proceedings, neither this Court nor the Supreme Court had any occasion to examine the legal rights of the Scheduled Castes and Scheduled Tribes employees of the appellant Union for reservation in the case of promotions also flowing from the Resolution passed by the Annual General Body of the appellant Union at its meeting held on 29-6-1959. In other words, the cause of action for earlier writ proceedings and the cause of action for the present writ proceedings are different. In other words, the present writ proceedings do not arise out of the same cause of action on the basis of which Writ Petition No. 8051 of 1982 was filed in this Court on earlier occasion.
19. Before concluding, it needs to be noticed as pointed out by the learned single Judge that it appears that the Correct Resolution No. 21 dated 29-6-1959 passed by the Annual General Body of the appellant Union was not brought to the notice of the Apex Court in Civil Appeal No.4343 of 1988. We say this because, in the judgment of the Hon'ble Supreme Court, it is observed thus:
"By law 33 of the society empowered the committee of management to frame service regulation pertaining to the service conditions of the officers and the employees of the society. Pursuant to the aforesaid power the society has framed a set of rules with the approval of the Registrar of Co-operative Societies determining the service conditions of the employees of the society. The said rules of society categorically provided that there should be no reservation in promotions of the employees of the society."
The above observation of the Apex Court does not reflect the correct factual position, because, as seen above, the Resolution No.21 dated 29-6-1959 passed by the Annual General Body and subsequent agreement entered into between the appellant Union and the management of the society on 7-4-1979 make it very clear that reservation is provided to the Scheduled Castes and Scheduled Tribes employees both in direct recruitments as well as in recruitment by way of promotions.
The learned single Judge in the course of the order has stated that the learned Counsel for the appellant Union was not able to show any bye-law of the appellant Union prohibiting reservation in promotions.
20. Another circumstance germane to the decision in the present writ appeal has to be noticed. The writ petitioners-respondents 1 to 7 were promoted long after the Registrar issued the clarification by issuing the circular on 23-8-1982. Obviously, the management of the appellant Union despite the clarification issued by the Registrar of Co-operative Societies on 23-8-1982 promoted the writ petitioners placing reliance on the Resolution No.21 passed by the Annual General Body of the appellant Union at its meeting held on 29-6-1959. Looking from that angle also, it is totally unfair and irrational on the part of the management of the appellant Union to revert the writ petitioners to the feeder cadre on the basis of the judgment of the Apex Court in Civil Appeal No.4343 of 1988. As already pointed out, the Hon'ble Supreme Court in Civil Appeal No.4343 of 1988 was not called upon to decide the applicability of Resolution No.21 to the Scheduled Castes and Scheduled Tribes employees serving in the appellant Union.
21. In conclusion, we do not find any substantive ground to interfere with the just and equitable order passed by the learned single Judge. Writ appeal is devoid of merit and it is accordingly dismissed with no order as to costs.