Central Administrative Tribunal - Delhi
Ms. Priti vs South Delhi Municipal Corporation on 17 September, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No. 1197/2012 New Delhi this the 17th day of September, 2014 Honble Mr. A.K.Bhardwaj, Member (J) Honble Mr. V.N.Gaur, Member (A) Ms. Priti, D/o Shri S.Ravinder Kumar, R/o 3152, 3rd Floor, Mahendra Park, Rani Bagh, New Delhi-110034 Applicant (By Advocate Mr. M.Rais Farooqui) VERSUS 1. South Delhi Municipal Corporation, Through its Commissioner, Dr. Shyama Prasad Mukherjee Civil Centre, Jawahar Lal Nehru Road, Delhi-110002 2. Delhi Subordinate Services Selection Board (DSSSB), through its Chairman, 3rd Floor, UTCS Building, Vishwas Nagar, Shahdara, Delhi-110032 3. Govt. of National Capital Territory of Delhi Through its Chief Secretary, New Secretariat, I.P.Estate, New Delhi. Respondents (By Advocate Ms. Rashmi Chopra and Mr.Rahul Singh) O R D E R Honble Mr. A.K. Bhardwaj, Member (J) :
On indenting by Municipal Corporation of Delhi, the Delhi Subordinate Services Selection Board (DSSSB) issued advertisement No. 02/2008 inviting applications from eligible candidates for appointment to 1000 (UR-505, OBC 270, SC 150, ST 75) vacant posts of Teacher (Primary) under post code No.016/08. The closing date for submission of application was 12.08.2008. The maximum age limit prescribed for the post was 27 years. The examination for the post was held on 15.02.2009 and the result was declared on 6.10.2009.
The Recruitment Rules (RRs) notified on 13.07.2007 had been challenged before Honble Delhi High Court and in the Writ Petition filed before it, the Honble High Court passed order dated 28.08.2008 as follows:
To conclude the language and marks criteria (namely passing of Hindi subject at primary level and minimum 50% marks in Senior Secondary Examination) are upheld in their entirety. Even the age criteria (namely minimum eligibility age as 20-27 years respectively) is upheld but with a view to ameliorate the hardship of already enrolled students in ETE courses, it is directed that the respondents would permit all those candidates who have completed the ETE courses either in the year 2006 or 2007 or 2008 to appear in the examination conducted by the Respondents for the posts of Assistant Teacher (Primary) once each of the respondents i.e. MCD and Govt. of NCT of Delhi provided they do not exceed the upper age limit of 32 years for males and 42 years for females and also fulfill all other eligibility conditions. As the applicant had not passed the ETE course in the year 2006, 2007 and 2008 and had exceeded the maximum age limit mentioned in the RRs, her candidature was not considered for appointment to the post in question. Thus, she filed OA No. 1139/2010 before this Tribunal, praying therein:-
Direct the respondents to consider the candidature of the applicant by way of age relaxation in terms of the protection granted in para 59 of the final judgment and Order dated 28.08.2003 in W.P ( C ) No.7277 of 2007 titled Sachin Gupta & Ors Vs. Delhi Subordinate Service Selection Board and Others and that have been considered by the respondents despite being overage, vis-`-vis the enormous number of vacancies in the respondents organizations with all other consequential benefits associated with such appointment. In the said OA, learned counsel for the applicant produced the order passed by Honble Delhi High Court of Delhi in W.P (C) No.228/2010 and also the judgment dated 18.03.2010 passed by the Tribunal in OA No. 2983/2009, wherein it had been held thus:-
7. Even though the right to employment may not have par-taken the character of fundamental rights under our Constitution, yet appointment cannot be denied arbitrarily or malafidely which would amount to violation of Articles 14 and 16. Further, as has been held by the Apex Court in a catena of judgments that though a candidate does not have any indefeasible legally enforceable right, the right for a fair consideration as per rules, instructions and law laid down by judicial pronouncements has been upheld. The applicant before us is resting her claim on the basis of the exception carved out in Sachin Guptas case. Whereas the Respondents have tended to take literal interpretation of this judgment, the applicants counsel has brought to our notice a subsequent decision of the Honble High Court of Delhis decision dated 14.1.2010 in the Writ Petition (Civil) No.228/2010 in which the purport of this one time relaxation in Sachin Guptas case got clarified. On a careful perusal, we find the same as extremely relevant to the issues raised before us in the instant OA:
Prior to notifications dated 08.05.2006 and 13.07.2007, the upper age limit for the post of Assistant Teacher (Primary) in case of females was 42 years and in case of males, it was 32 years. Vide notifications dated 08.05.2006 and 13.07.2007, the upper age limit for the post of Assistant Teacher (Primary) was reduced to 27 years both for males and females and this was upheld by the Division Bench of this Court in Sachin Guptas case (supra). However, since the upper age limit for admission in ETE courses at that time was 30 years and it was reduced to 24 years w.e.f. 30.09.2007, the Division Bench directed to give relaxation in the upper age limit for recruitment to the post of Assistant Teacher (Primary) till the year 2008 so that no prejudice is caused to those who had done ETE courses based on the earlier upper age limit of 30 years for admission. This relaxation in the upper age limit up to the year 2008 was given to protect the interest of all those ETE candidates who have taken admission based on the earlier upper age limit of 30 years. After 2008, the benefit of relaxation was not to apply in terms of directions of the Division Bench of this Court in Sachin. (emphasis supplied)
8. Considering the facts of the case, we are of the considered view that the case of the applicant is entitled to be considered under the relaxation accorded by the Delhi High Court in Sachin Guptas case. This would mean that the rejection of her candidature on the ground of being over-aged at the critical date of 29.10.2007 would not be tenable. Since as per the information under the RTI Act the applicant has secured more marks than the last selected candidate, denial of appointment to her would also not be fair or reasonable. In view of these substantive facts which favour the case of the applicant, we would not set store by the technical pleas raised on behalf of the Respondent-MCD.
9. In view of the foregoing, the OA is allowed with a direction to the Respondents to reconsider the applicants case for appointment as Assistant Teacher (Primary) under the MCD. Considering the totality of the circumstances, the prayer for a retrospective appointment with seniority and other consequential benefits does not find favour with us and the appointment when offered should be with a prospective effect. These directions are to be complied within a period of three months from the date of receipt of a copy of this Order. No costs. Following the aforementioned judgments, this Tribunal disposed of the OA of the applicant with direction to the respondents to consider the OA itself as a supplementary representation and decide the same by passing a reasoned and speaking order, keeping in view the judgments noted in the order (ibid).
2. In implementation of the aforementioned order, the respondents passed Order No.F/1 (151)/CC-II/DSSSB/2009/PF/9182 dated 13.08.2010 (Annexure A to the rejoinder). In the said order, the Deputy Secretary (CC-II), Government of NCT of Delhi (DSSSB) viewed that the order passed in OA No.2983/2009 relied upon by the Tribunal while disposing of OA of the applicant, i.e. OA No.1139/2010 had been challenged before Honble High Court in Writ Petition (C) No.4677/2010 (Delhi Subordinate Services Selection Board Vs. Parul Dhingra) and had been stayed, thus the case of the applicant could be examined after final outcome of the said Writ Petition. The relevant excerpt of the order reads as under:-
Whereas, Honble Division Bench of High Court of Delhi vide its order dated 16.07.2010 admitting the appeal case title Delhi Subordinate Services Selection Board Vs. Parul Dhingra W.P ( C ) No.4677/2010, has stayed the operation of order dated 18.03.2010 as passed by Ld.CAT in OA 2983/2009. Next date of hearing in the court case is 10.09.2010.
Now keeping in view above facts, the competent authority dispose off the representation/supplementary representation of Ms.Preeti, without going into merit of the case, which can only be examined on final outcome of litigation on the issue, pending before the Honble High Court of Delhi, in the case of Ms. Parul Dhingra. In Writ Petition (C) No. 4677/2010 (Delhi Subordinate Service Selection Board Vs. Parul Dhingra and Anr ), Honble Delhi High Court viewed that the ratio of the decision dated 28.08.2008 in Sachin Guptas case is that the candidates who had completed the ETE course either in the year 2006 or 2007 or were enrolled in the ETE course in the year 2008 would be eligible to be appointed as Assistant Teacher (Primary) as long as males had not crossed the age of 32 years and females had not crossed the age of 42 years and the order would not cover those cases where the candidates had obtained ETE diploma in the year 2002. The denouement read as under:-
9. The Division Bench of this Court held that it was the prerogative of the executive to prescribe the maximum age and hence there was nothing illegal in the notification dated W.P.(C) No.4677/2010 Page 2 of 4 13.7.2007. However, with respect to candidates who had completed the ETE course or were enrolled for the said course only during the years 2006 or 2007 or 2008 it was directed, in para 64 as under:-
"64. To conclude, the language and marks criteria (namely passing of Hindi subject at primary level and minimum 50% marks in senior secondary examination) are upheld in their entirety. Even the age criteria (namely minimum and maximum eligibility age as 20-27 years respectively) is upheld but with a view to ameliorate the hardship of already enrolled students in ETE courses, it is directed that the respondents would permit all those candidates who have completed the ETE course either in the year 2006 or 2007 or 2008 to appear in the examination conducted by the Respondents for the posts of Assistant Teachers (Primary) once each of the Respondents i.e. MCD and Govt. of NCT of Delhi provided they do not exceed the upper age limit of 32 years for males and 42 years for females and also fulfill all other eligibility conditions. This would also apply to candidates, who have already taken the examination as permitted by this Court. This relaxation will be independent of the relaxation applicable to reserved categories. However, the Relaxation will be independent of the relaxation applicable to reserved categories. However, the Relaxation granted by this Court shall ceases to operate for ETE courses after 2008 i.e. commencing from 2009 as from 30th September, 2007 the maximum age limit for ETE course has been reduced from 30 years to 24 years. Except to the above extent, legality and validity of the impugned RRs are upheld and accordingly the entire batch of writ petitions are disposes of in the above terms with no order as to costs."
10. The direction was issued following the ratio of law laid down in the decision reported as Anuj Johri Vs. UOI & Ors. 2005 III AD (Delhi) 614.
11. Suffice would it be to state that the ratio of law is that candidates who had completed the ETE course either in the years 2006 or 2007 or were enrolled for the ETE course in the W.P.(C) No.4677/2010 Page 3 of 4 year 2008, undertook the course on the legitimate expectation that they would be eligible to be appointed as Assistant Teacher (Primary) as long as males had not crossed the age of 32 years and females had not crossed the age of 42 years. It was thus held that to ameliorate the hardship to only such candidates i.e. those who had enrolled and obtained ETE diplomas in the year 2006, 2007 and 2008, equity required that qua them age limit would be 32 years for males and 42 years for females.
12. As regards the others, no such equity was found. It may be true that Parul Dhingra, who obtained the ETE diploma in the year 2002 may have thought that she could apply for and obtain appointment to the post of Assistant Teacher (Primary) at any point of time till she attained the age of 42 years, but in view of the law being that nobody has a vested right to be appointed to a post under the Government and it is within the domain of the executive to prescribe and amend the eligibility conditions, including age limit, no relief can be granted to Parul Dhingra. In view of the aforementioned order of Honble Delhi High Court, the applicant was no longer entitled to the age relaxation at the strength of the judgment in Writ Petition No. 7297/2007 (Sachin Gupta and Others Vs. Delhi Subordinate Service Selection Board). Now having not challenge the order dated 13.08.2010, the applicant has filed the present Original Application for consideration of her candidature for the post of Teacher (Primary) giving her age relaxation on the grounds that:
she is departmental candidate;
she should be given the benefit of contractual length of service while determining her maximum age.
3. During the course of hearing, learned counsel for the applicant espoused the claim of the applicant with reference to certain judgments of this Tribunal.
4. On the other hand, Ms.Rashmi Chopra, learned counsel for DSSSB submitted that the cause of action, if any, had accrued to the applicant in the year 2009 when the result of the written examination was declared and the applicant was not considered eligible for the post, thus, the present OA filed in the year 2012 is barred by limitation. She further submitted that the applicant had earlier approached the Tribunal by filing OA No. 1139/2010, which was disposed of on 28.04.2010 and once in implementation of the directions issued in the said OA, the DSSSB passed order dated 13.08.2010, in the absence of any challenge to said order, the present OA is barred by res judicata.
5. We heard learned counsel for parties and perused the record. Apparently, in OA 1139/2010, the applicant sought age relaxation on the ground that she had qualified the ETE course in the year 2002 and in terms of the law declared by Honble Delhi High Court in the case of Sachin Guptas (ibid), she was eligible for the post in question as long as she had not crossed the age limit of 42 years. The OA was disposed of with direction to respondents to examine her plea and take a final decision. In the order passed by them on 13.08.2010, the respondents preferred to await the decision of Honble High Court in Writ Petition (C) No. 4677/2010 wherein the Honble High Court passed order dated 2.11.2010 taking the view that only such candidates who had passed ETE in the years 2006, 2007 and 2008 were entitled to the benefit of judgment in the case of Sachin Gupta (ibid) and not those who had passed such test in the year 2002. Thus, with such view taken by Honble High Court, the issue of age relaxation raised by the applicant in OA No. 1139/2010 was finally determined. Now the applicant has again raised the same issue by filing the fresh OA without challenging the order dated 13.08.2010. Obviously in the present Original Application, the applicant has raised the grounds different from those raised in OA 1139/2010 to claim age relaxation for appointment to the post of Teacher (Primary). There was nothing to prevent the applicant from raising these grounds in OA 1139/23010 itself. It is settled position of law that any matter which might and ought to have been made ground of defence or attack in a former suit should be deemed to have been a matter directly and substantially involved therein and any suit based on such grounds filed subsequently would be barred by constructive res judicata. The brief order passed by Honble Supreme Court in Commissioner of Income Tax, Bombay Vs. T.P.Kumaran on 16.08.1996 (1996( 5) SLR 675), while examining the correctness of the order passed by this Tribunal taking such view read as under:-
Leave granted.
2. We have heard learned counsel for the parties.
3. This appeal by special leave arises against an order of the Central Administrative Tribunal, Ernakulam made on 16.8.1994 in OA No. 2026/93. The admitted position is that while the respondent was working as Income-tax Officer, he was dismissed from service. He laid a suit against the order of dismissal. The suit came to be decreed and he was consequently reinstated. Since the arrears were not paid, he filed a writ petition in the High Court. The High Court by order dated August 16, 1992 directed the applicant to pay all the arrears. That order came final. Consequently, arrears came be paid. Then the respondent filed an OA claiming interest at 18% p.a. The Administrative Tribunal in the impugned order directed the payment of interest. Thus, this appeal by special leave.
4. The Tribunal has committed a gross error law in directing the payment. The claim is barred by constructive res judicata under Section11. Explanation IV, CPC which envisages that any matter which might and ought to have been made ground of defence or attack in a former suit, shall be deemed to have been a matter directly and substantially in issue in a subsequent suit. Hence when the claim was made on earlier occasion, he should have or might have sought and secured decree for interest. He did not set and, therefore, it operates as res judicata. Even otherwise, when he filed a suit and specifically did not claim the same, Order 2 Rule 2,CPC prohibits the petitioner to seek the remedy separately. In either event, the OA is not sustainable.
5. The appeal is accordingly allowed. No costs. Also in Union of India Vs. Punnilal & Ors ( 1997 (1) SLR 33), it has been held that if a relief could be sought in the previous proceedings and is not granted therein then the subsequent proceeding for the same relief would be barred by constructive res judicata. The denouement read as under:-
1. Delay condoned
2. Leave granted
3. We have heard learned counsel on both sides
4. This appeal by special leave arises from the order of the central Administrative tribunal, Allahabad made on 2/3/1995 in OA No. 617 of 1990
5. The admitted position is that while the respondent was working as a Shunter in 1980 he had filed a civil suit bearing No. 329 of 1983 in the court of Additional District Munsif, Allahabad for declaration that the defendants, their agents and servants be directed to consider his promotion to the category of Driver 'C' in the pay scale ofRs 330-560 from 10/12/1980 when his immediate juniors were promoted to that category of employees. The decree came to be passed by the trial court on 24/3/1984. On appeal, the Additional District Judge, Allahabad confirmed it on 18/7/1985. In compliance thereof, the respondent was promoted as Driver 'C' on 10/6/1986. Thereafter, the respondent filed the application under Section 15 of the Payment of Wages Act on 8/7/1986. The prescribed authority directed by order dated 7/12/1988 payment of back wages in a sum of Rs. 30,220.00. The Union of India filed an appeal before the Additional District Judge which was dismissed. Thereafter, the OA was filed in the central Administrative tribunal which has been dismissed by the impugned order. When the matter had come up for hearing, notice was directed subject to the appellant's depositing a sum of Rs. 5,000.00 towards the legal expenses incurred by the respondent. Pursuant thereto, the amount came to be deposited
6. It is contended by Mr Dhruv Mehta, learned counsel for the respondent, that since the prescribed authority and the appellate authority under the Payment of Wages Act are not the authorities subordinate to the Administrative tribunal, the OA is not maintainable. We find force in the contention. But, nonetheless, the material question that arises for consideration is whether the authority under the Payment of Wages Act has the jurisdiction under Section 15 of the Act to compute back wages on promotion of the respondent as Driver 'C'. Admittedly, when the respondent had the relief in the suit by way of declaration for promotion and the declaration having been given and become final, therein the respondent had not sought any relief for payment of back wages. Consequently, by operation of Order 2 Rule 2 of the Code of Civil Procedure the respondent is debarred to claim the relief of back wages. The authority under the Payment of Wages Act, therefore, has no inherent jurisdiction in the matter to entertain the claim for payment of back wages and for grant of the order
7. The appeal is accordingly allowed. The order of the authority under the Payment of Wages Act stands set aside. No costs. The aforementioned denouements were followed by this Tribunal while deciding the OA 4334/2001 with OA 4492/2011, the relevant excerpt of which read as under:-
The principle of res judicata also comes into play when in the former judgment and order a decision on a particular issue is implicit. Further 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 litigation and to bring about finality is deemed to have been constructively in issue and is taken as decided. In Workmen of Cochin Port Trust Vs. The Board of Trustees of the Cochin Port Trust and another ( AIR 1978 SC page 1283), Honble Supreme Court ruled:-
8. It is well-known that the doctrine of res judicata is codified in S. 11 of the Code of Civil Procedure but it is not exhaustive. Section 11 generally comes into play in relation to civil suits. But apart from the codified law the doctrine of res judicata or the principle of res judicata has been applied since long in various other kinds of proceedings and situations by Courts in England, India and other countries. The rule of constructive res judicata is engrafted in Explanation IV of S. 11 of the Code of Civil Procedure and in many other situations also principles not only of direct res judicata but of constructive res judicata are also applied. If by nay judgment or order any matter in issue has been directly and explicitly decided the decision operates as res judicata and bars the trial of an identical issue in a subsequent proceeding between the same parties. 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.
9. In the instant case the award of the Tribunal, no doubt, was challenged in the special leave petition filed in this Court, on almost all grounds which were in the subsequent writ proceeding agitated in the High Court. There is no question, therefore, of applying the principles of constructive res judicata in this case. What is, however, to be seen is whether from the order dismissing the special leave petition in limine it can be inferred that all the matters agitated in the said petition were either explicitly or implicitly decided against the respondent.
In Tukaram Govindrao Telang Vs. Union of India and Ors (ATJ Vol.32 2000 (3) 557), Mumbai Bench of this Tribunal viewed as under:-
10. 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. ( The Workmen of Cochin Port Trust V/s the Board of Trustees of the Cochin Port Trust and Anr (AIR1978b SC 1283) and Forward Construction Co. and Ors. V/s Prabhat Mandal (Regd) Andheri and Ors ( 1986 (1) SCC 100).
Thus, though it does not so appear, as the Division Bench of Honble High Court passed a detailed order dealing with the issues, but even if the applicants could not have raised the ground of regularization of unqualified persons, possibility of relaxation of Rules, inter alia before Honble High Court, the said grounds are deemed taken and rejected. As has been held by the Calcutta Bench of this Tribunal in Sabita Majumdar and Ors Vs. Union of India and Ors (ATJ Vol.21 1996 (2) 82), even if a particular relief is declined on the ground of delay, the order passed with such view still operate as resjudicata in subsequent proceedings. Para 17 of the order reads as under:-
17. We are afraid we cannot agree with these contentions. The Tribunals previous decisions in relation to the petitioners prayers at least on ground of limitation had been finally affirmed by the Honble Supreme Court by dismissing the SLP filed by the petitioners themselves. Under the Circumstances, whatever case they may have got on merits, the matter is res judicata so far as the issue of limitation is concerned and the petitioners cannot approach any court to seek directions/relief on the same cause of action. Similarly, their argument for claiming the benefits of other judgments is of no avail as long as their right to approach any court on the same issue remains extinguished. If a litigant has failed to secure his relief in totality in earlier OA, it will not be open to him to keep on pursuing the matter through several OAs by rephrasing the reliefs or reordering the same differently. We must recall the orders of the Supreme Court in the case of Commissioner of Income Tax Bombay vs. T.P.Kumaran ( 1996 (5) SLR 675 (SC) and the case of Union of India vs. Punnilal and others ( 1997 (1) SLR 33 (SC). In the case of Commissioner of Income Tax, Bombay (supra), the Supreme Court had held that in matter which might and ought to have been made ground of defence or attack in a former suit would be deemed to have been a matter directly and substantially in issue in a subsequent suit. In the case of Punnilal (supra), the back wages were also denied to him on similar grounds (See the CAT (Chandigarh Bench in Shri Uma Shankar Bhagat Vs. Union of India and Ors.) In Pondicherry Khadi & Vill. Industries Board Vs. P.Kulothangan and Anr (2004 (1)SCSLJ, page 127), Honble Supreme Court viewed that although the entire code is not applicable to industrial adjudication, the principles of resjudicata laid down under Section 11 of the code are applicable including the constructive res judicata. Paras 10 and 11 of the judgment read as under:-
10. In our opinion, the appellant has correctly contended that the industrial dispute pertained to the same subject-matter dealt with in the earlier writ proceedings and was barred by the principles of res judicata. It is well established that although the entire Civil Procedure Code is not applicable to industrial adjudication, the principles of res judicata laid down under Section 11 of the code, are applicable(1)including the principles of constructive res judicata. Thus in State of U.P. v. Nawab Hussain ( 1977) 2 SCC 806), it was held that the dismissal of a writ petition challenging disciplinary proceedings on the ground that the charged officer had not been afforded reasonable opportunity to meet the allegations against him, operated as res judicata in respect of the subsequent suit in which the order of dismissal was challenged on the ground that it was incompetently passed. This Court also held:
".........it may be that the same set of facts may give rise to two or more causes of action. If in such a case a person is allowed to choose and sue upon one cause of action at one time and to reserve the other for subsequent litigation, that would aggravate the burden of litigation. Courts have, therefore, treated such a course of action as an abuse of its process." (P. 808)
11. The principle of res judicata operates on the Court. It is the Courts which are prohibited from trying the issue which was directly and substantially in issue in the earlier proceedings between the same parties, provided the Court trying the subsequent proceeding is satisfied that the earlier Court was competent to dispose of the earlier proceedings and that the matter had been heard and finally decided by such Court. Here the parties to the writ petition filed by the respondent in the Madras High Court and the industrial dispute were the same. The cause of action in both was the refusal of the appellant to allow the respondent to rejoin service. The Madras High Court was competent to decide the issue which it did with a reasoned order on the merits and after a contested hearing. This was not a case where the earlier proceedings had been disposed of on any technical ground as was the case in Workmen of Cochin Port Trust v. Board of Trustees of the Cochin Port Trust and Anr.(3); Smt. Pujari Bai v. Madan Gopal (dead) L.Rs.(4)The "lesser relief" of reinstatement which was the subject-matter of the industrial dispute had already been claimed by the respondent in the writ petition. This was refused by the High Court. The correctness of the decision in the writ proceedings has not been challenged by the respondent. The decision was, therefore, final. Having got an adverse order in the writ petition, it was not open to the respondent to re-agitate the issue before the Labour Court and the Labour Court was incompetent to entertain the dispute raised by the respondent and re-decide the matter in the face of the earlier decision of the High Court in the writ proceedings In the present case obviously the applicant has filed earlier OA No.1139/2010 seeking consideration for appointment to the post of Teacher (Primary) with age relaxation on the ground that she had passed ETE in 2002. As has been viewed hereinabove, there was nothing to prevent her from seeking age relaxation also on the ground that she worked as contractual teacher from 2003 and was entitled to be considered departmental candidate and was further entitled to age relaxation to the extent of contractual service rendered by her. We do not find such ground addressed to in OA 1139/2011. In terms of the principle of constructive res judicata, the grounds/relief not espoused in the previous proceedings or espoused and not adjudicated are deemed as decided and such ground/relief raised in subsequent proceeding would be barred by principle of constructive res judicata.
6. In the circumstances, we have no hesitation in taking a view that the present OA filed by the applicant for the relief prayed in OA No. 1139/2010 on a fresh ground is hit by constructive res judicata. Further since cause of action had accrued to her in the year 2009, in the absence of challenge to order dated 13.08.2010 the same is also barred by limitation and is accordingly dismissed. No costs.
( V.N.Gaur ) (A.K.Bhardwaj) Member (A) Member (J) sk .