S.K. Bhandari And Anr. vs Union Of India (Uoi) And Ors. on 2 September, 2002
The point was raised again in the SLP but the Apex Court without going into the merits of the challenge and expressing no opinion left it open. The underlying idea of the order passed by the Apex Court in the presence of both the parties was that the vires of the seniority rule could be challenged before the appropriate forum. A point on which no decision on merits in the earlier OA was made could be agitated in the second OA in the background of the fact that the Apex Court left the question open and allowed the applicants to withdraw the SLP. To fortify the above conclusion we would do better to make a reference to a decision of the Apex Court in the case of N. Annappa v. State of Karnataka and Anr. JT 1999(9) SC 211. In that case, the Administrative Tribunal dismissed the Application challenging the gradation list for want of material "keeping open all the contentions raised." Subsequent Application filed before the Tribunal was dismissed on the ground that it was barred by the principle of res judicata. The High Court on appeal upheld the order of dismissal of the application. The mater was carried before the Apex Court. It was held that from the observation made in the earlier order that for want of material it is not possible to consider the application which was dismissed keeping open all the contentions raised, the Tribunal as well as High Court in rejecting the second application erred on the ground that it was barred by principle of constructive res judicata. It was observed that the earlier application was not dismissed on merits. The above decision would apply on all fours to the facts of the present case. As said above, the question of vires of the seniority rule was not decided in the earlier OA. The Apex Court left the question open without expressing any opinion about the validity or otherwise of the said rule. The order of the Hon'ble Supreme Court, in effect means that the SLP was allowed to be withdrawn with liberty to agitate the validity of the Seniority Rule in another OA. The present OA, therefore, cannot be dismissed on the ground that it is barred by the principle of res judicata.