IN THE HIGH COURT OF DELHI AT NEW DELHI.

 

SUBJECT: MAINTAINABILITY OF SECOND WRIT PETITION

 

W.P. (C) No.1072/1992

 

Date on which reserved : 17th January, 2005

 

Date of  decision :     28th January, 2005

 

 

Mr.B.K. Sharma                                     ......... Petitioner

                                          Through :       Mr. R.K. Kapoor with

                                                              Mr. Sumit Kr. Khatri, Advocates.

 

 

                                                              Versus

 

1.        Union of India through The Secretary

                     Ministry of Urban Development,

   

2.                  The Lt. Governor of Delhi

 

3.                  The Delhi Development Authority through

                     Vice Chairman, Vikar Minar, ITO, New Delhi.

                                                              ......... Respondents

                                          Through :       Mr. Arun Birbal Advocate for DDA.

 

Anil Kumar, J.

                    

1.                  The main controversy in this writ petition is whether after dismissal of an earlier writ petition on merits in limine and dismissal of Special Leave petition and review application by the Supreme Court in limine, the petitioner can file another writ petition challenging his seniority of 1982 as Private Secretary and consequently his promotion to the post of Deputy Director and his seniority as Deputy Director in Delhi Development Authority.

 

2.                  The relevant facts are that petitioner was appointed as L.D.C in Delhi Development Authority, also referred to as DDA, in 1962. He was promoted as Junior Stenographer in July, 1964 and Senior Stenographer in June, 1968. On 7th January, 1976 he made a representation to DDA and in reply dated 21st January,1976 it was represented by the DDA to the petitioner that the proposal for filling up the vacancies of personal assistant will be taken up only after recruitment rules will be finalized.  Promotions from senior stenographers to personal assistant, however, were made in 1977 and two senior stenographers junior to petitioner were promoted as personal assistant. On 17th June, 1978 two more senior stenographers junior to petitioner were again promoted as personal assistant. The petitioner was promoted from senior stenographer to personal assistant on the basis of merit cum seniority on 26th March, 1979 though there were no rules. On 3rd August,1982 twelve personal assistants were promoted as private secretaries, out of which eight personal assistants were junior to  petitioner. The petitioner was, however, not promoted as personal secretary. The petitioner made representation and there after on the recommendation of the DPC, the petitioner was also promoted as personal secretary on 10th September, 1982. The petitioner did not challenge promotion of senior stenographer junior to him in 1977 and 1978 and promotion of personal assistants junior to him as private secretaries in 1982.

 

3.                  Thereafter promotions to the posts of Deputy Director were made from private secretaries by an order dated 29th August, 1986 on ad-hoc and temporary basis. According to the petitioner, it was done without framing any rules and regulations as contemplated under Section 56 & 57 of Delhi Development Act, 1957. According to petitioner, even no resolution had been passed laying down qualifications, criteria and basis for promotion. The petitioner, therefore, filed a writ petition no. 600 of 1987 titled B.K.Sharma Vs Union of India & ors challenging his super-session as personal assistant and private secretary and sought restoration of his original seniority to the post of personal assistant and private secretary and sought promotion to the post of Deputy Director with effect from 29th August,1986, the date from which his immediate junior was promoted to the post of Deputy Director. The relief claimed in the petition no. 600 of 1987, Sh. B.K. Sharma Vs. Union of India & Others by the petitioner were as follows: -

" I)                to quash the impugned order No.F.9(33)/79-GAT/pt. dated 21st October 1986 being illegal, inoperative, void and ineffective.

 

II)                 to restore the petitioner to his original seniority in the posts of P. As and Assistant Private Secretary with consequential benefits.

 

III)                to promote the petitioner as Deputy Director with effect from 29th August 1986, the date from which his immediate junior Mrs. Brij Bala Chadha, was promoted to that post.

 

IV)                that the petitioner may kindly be awarded the costs of the present writ petition.

 

V)                 that the petitioner may kindly be granted such other relief as this Hon'ble Court may deem fit and proper having regard to the facts and circumstances of the case."

 

4.                  The  writ petition of the petitioner was dismissed on merits in limine on 4th March,1987.  Aggrieved by the dismissal of his writ petition, where he had challenged his seniority to the post of personal assistant and private secretary, petitioner filed a special leave petition against the order dated 4th March, 1987 dismissing the writ petition on merits in limine.  However, the special leave petition was dismissed on 22nd November 1987.  A review petition was also filed by the petitioner which was also dismissed by order dated 2nd February, 1989.

 

5.                  The petitioner contended that after his special leave petition had been dismissed and an application for review of order of dismissal of Special leave petition in limine was pending when he made a representation dated 25th May, 1988 to the respondent. In reply to his representation, petitioner received a letter dated 14th July, 1988 from DDA informing him that his case for promotion to the post of Deputy Director had been examined and could not be considered as the matter was sub judice. After dismissal of his application for review by the Supreme Court, petitioner received a letter dated 29th July, 1991 conveying him that his case for restoration of seniority in the cadre of personal assistant and private secretary has been rejected. Thereafter Shri S.D.Arora and Shri A.D.Sadana were promoted on 24th January,1991 to the post of Deputy Director, who were senior to the petitioner as per seniority of private secretaries in 1982 but who were junior to the petitioner as per the seniority of personal assistants.

 

6.                  Petitioner, therefore, filed the present writ petition contending that in absence of any statutory rules, the DDA was bound to follow the principle of continuous length of service for determination of seniority in a given grade. Petitioner prayed that he be placed at appropriate place in the seniority list of private secretaries according to length of service and to promote him to the post of Deputy Director from 29.8.1986, the date when his juniors were promoted to the post of Deputy Director.

 

7.                  The petitioner contended that as his earlier writ petition was dismissed in limine and his special leave petition was also dismissed in limine, the cause of action for the present petition arose in his favor on 24th January,1991 when two private secretaries, Mr.S.D.Arora and Mr.A.N.Sadana who were junior to him as personal assistant were promoted as Deputy Director and the present writ petition was, therefore, filed in 1992. The petitioner claimed restoration of seniority as private secretary.

 

8.                  During the pendency of the writ petition, the petitioner was promoted as Deputy Director vide order dated 16th January,1998 of DDA and thereafter the petitioner was appointed as Director on 27th February,2004. The petitioner superannuated on 28th February, 2004 as a Director in DDA. The fact pertaining to the promotion of the petitioner as Deputy Director and then as Director during the pendency of the writ petition has not been denied by the respondent. During the pendency of the writ petition on an oral request of the petitioner, Shri S.D.Arora; Shri P.L.Gulani; Shri S.P.Thakural; Shri B.L.Makija; Shri H.R.Kapoor and Mr.O.P.Gupta were impleaded as party to the writ petition, however, by a subsequent order dated 25th March, 2003 on an application of the petitioner, respondent no.1 & 2, Union of India & Lt. Governor of Delhi were deleted as parties. The private respondents were also ordered to be removed from memo of parties despite order dated 27th March, 1995 whereby they were allowed to be impleaded as parties. Therefore, after 25th March, 2003 other respondents except Delhi Development Authority were not party to the writ petition. Consequently only respondent in the writ petition is Delhi Development Authority as order dated 27th March, 2003 was not challenged by the petitioner. The petitioner had also not amended the writ petition in 1995 seeking any relief against private respondents.

 

9.                  Petitioner contended that his present petition is maintainable as his earlier petition was dismissed in limine by the High Court as well as by Supreme Court and is not barred by res judicata. Reliance was placed on 1978 (3) SCC 199; Workmen of Cochin Port Trust Vs. Board of Trustees of the Cochin Port Trust and anr., on Union of India and anr. Vs. Sher Singh and ors.; AIR 1997 SC 1796 and Arati Ray Chodhury Vs. Union of India and Ors.; (1974) 1 SCC 87. It was contended by the petitioner that while dismissing his earlier writ petition on merits in limine no reasons were given and the special leave petition was also dismissed in limine and therefore, his present petition is maintainable. Petitioner placed reliance on Darayao Vs State of U.P (1962) 1 SCR 574 (592) and Hoshnath Vs. Union of India; AIR 1979 SC 1328.  . 

 

10.                In support of his contention that since there were no rules for promotion from the post of Private Secretary to the Deputy Director, therefore, promotion ought to have been made on the basis of length of service and not on the basis of merit cum seniority, reliance has been placed on Vasant Kumar Jaiswal Vs. State of Madhya Pradesh, JT 1987 (3) SC 550. The petitioner also relied on Satpal Antil Vs. Union of India and Anr.; AIR 1995 SC 1858 and Sant Ram Sharma Vs. State of Rajasthan and Anr.;  AIR 1968 SC 111 to contend that in absence of express provision in rules, generally principle of length of service amongst eligible candidates with qualifying service would be applicable and not merit cum seniority.

 

11.                The writ petition has been contested by the DDA contending that the earlier petition of the petitioner challenging his seniority in the grade of personal assistant and private secretary and claiming promotion to the post of Deputy Director was dismissed on merits in limine after due application of mind and therefore, present petition is barred by principles of res judicata and constructive res judicata. It was contended by the respondent that even if the present petition is not barred by res judicata, this petition is liable to dismissed as an abuse of process of law. The respondent contended that Shri S.D.Arora and Shri A.N.Sadana were placed senior to the petitioner in 1982 as private secretaries and this was challenged by the petitioner and his plea was rejected. Present petition again challenging the said seniority of private secretaries as in 1982 after about ten years is also liable to be rejected on the ground of delay and latches. The respondent relied on a division bench judgment 2001 (90) DLT 89,  Jhalani Tools (India) Ltd. Vs Union of India contending that after dismissal of the earlier writ petition subsequent petition seeking similar or same relief will be an abuse of process of law and will be liable for dismissal. The respondent also relied on Darayao Vs State of U.P,   (1962) 1 SCR 574 (592) to contend that present writ petition after dismissal of an earlier writ petition on merits is barred. The respondent also relied on 1978 (3) SCC 119,   Workmen of Cochin Port Trust Vs Board of Trustee of  Cochin Port Trust and Bansi  & anr Vs Addl. Director, Consolidation of holdings Rohtak and ors,  AIR 1967 Punjab 28 (FB) in support of his contention. 

 

12.                The respondent also contended that in absence of rules/regulations, a post could be declared as selection post by the appointing authority by an administrative order. The posts of personal assistant and private secretary had been treated as selection post and the petitioner was considered along with others. The recruitment rules for the post of PA to the Vice Chairman were adopted by resolution dated 11th October,1977 and these recruitment rules were considered for filling up other posts of personal  assistants also. As the post of personal assistant was a selection post, the next post of private secretary was also treated as selection post and accordingly DPC recommended the promotion on the basis of merit cum seniority although recruitment rules were not framed for the post of private secretary.

 

13.                From the perusal of the writ petition and supplementary affidavit filed by the petitioner, the contention of the petitioner is that he has been superceded consistently and his juniors have been arbitrarily and illegally promoted. As there were no rules and regulations, the promotion could only be on the basis of length of service and his juniors could not be placed above him.  Petitioner has claimed that he should be given appropriate place according to his seniority in the grade of Private Secretary and consequently he is entitled to promotion to the post of Deputy Director from 29th August, 1986 when juniors to him were promoted. Comparative Chart of the Seniority of the Petitioner as senior stenographer, personal assistant and private secretary  as in 1982 is as under:

 

S.

No.

Sr. Stenographer

S. No.

Personal Assistant

S. No.

Private Secretary

1

   Shri S. R. Sapra

5

   Smt. Brij Bala

4

  Shri N.N. Puri

2

  Sh. B.K. Sharma

6

  Shri N.N. Puri

5

  H.C. Chawla

3

  Mrs. Brij Bala

7

  H L Chawla

6

  S.C. Pahuja

4

  N.N. Puri

8

  S.C. Pahuja

7

  S.R. Sapra

5

  H.L Chawla

9

  S.R. Sapra

8

  S.D. Arora

6

  S.C. Pahuja

10

  B.K. Sharma

9

  P.L. Guliani

7

  Miss N K Adwani

11

  Miss N.K. Adwani

10

  A.N. Sadana

8

  S.P. Thakural

12

  S.S. Thakural

11

  S.P. Thakural

9

  S.D. Arora

13

  S.D. Arora

12

  Mrs. Santosh

10

  P.L. Guliani

14

  P.L. Guliani

13

  B.L. Makhija

11

  A.N. Sadana

15

  A.N. Sadana

14

  H.R. Kapoor

12

  O.P. Gupta

16

  O.P. Gupta

15

  B.B. Kundal

13

  O.P. Nagpal

17

  O.P. Nagpal

16

  O.P. Gupta

14

  Mrs. Natosh Katyal

18

  Mrs. Natosh Katyal

17

  Miss N.K. Adwani

15

  B.L. Makhija

19

  B.L. Makhija

18

  O.P. Gupta

16

  H.R. Kapoor

20

  H.R. Kapoor

19

  B.K. Sharma

 

 

 

 

20

  R.C. Dua

 

 

 

 

21

  H.K. Babber

 

 

 

 

22

  Bhavnesh Kumar

 

 

 

 

23

R.K. Verma

 

14.                It is apparent that on appointment of certain persons as Deputy Director in 1986, the petitioner challenged their appointment and sought recasting of his seniority as personal assistant and private secretary and sought promotion as Deputy Director from 29th August, 1986. The said writ petition no. 600 of 1987 was dismissed on merits in limine on 4th March 1987.  Aggrieved by the dismissal of the earlier writ petition, challenging his seniority to the post of Personal Assistant and Private Secretary, the petitioner filed a special leave petition against the order dated 4th March 1987 dismissing the writ petition on merits in limine,  however, the special leave petition was also dismissed on 22nd November 1987.  A review petition was also filed by the petitioner which was also dismissed by order dated 2nd February, 1989.

 

15.                The main points for consideration in the petition are whether the petitioner is entitled for reconsideration and fixation of his seniority as private secretary as in 1982 when according to him eight personal assistants junior to him were promoted as senior to him on the post of private secretary, after dismissal of his earlier petition claiming same relief.  Whether the present petition is barred by res judicata and principles of constructive res judicata and whether present subsequent petition seeking similar relief as in an earlier petition is an abuse of process of law or not.  The reliance of the petitioner on the 1978 (3) SCC 199; Workmen of Cochin Port Trust Vs. Board of Trustees of the Cochin Port Trust and anr is of no help to him as the said case is clearly distinguishable. In Workman of Cochin port trust (supra) the disputes of the workmen were referred to the Tribunal which decided in favor of workmen.  The respondent therein filed a special leave petition to the Supreme Court against the order of the Tribunal which was dismissed but no reasons were given in the order of dismissal.  Thereafter, respondent in the said case filed a writ petition in the High Court and the High Court set aside the order of Tribunal.  In an appeal to the Supreme Court, it was contended on behalf of workmen that the High Court should have dismissed the writ petition on the principle of res judicata.  It was held that the effect of a non-speaking order of dismissal without anything more indicating the grounds or reasons of dismissal must, by necessary implication, be taken to have decided only that it was not a fit case where special leave should be granted.    It was held that since order was not a speaking order while dismissing the special leave petition, the technical rule of res judicata, although a wholesome rule based upon public policy, can not be stretched too far to bar the trial of identical issue in a separate proceeding merely on an uncertain assumption that the issue must have been decided and in the circumstances the principle of res judicata was not extended to a petition filed under Article 226 of Constitution of India.   However, in the case of the petitioner, his petition was dismissed on merits though in limine. Against the said order the petitioner filed a special leave petition which was also dismissed. The facts of the case relied on by the petitioner are  clearly distinguishable.

 

16.                The petitioner can not take support from the ratio of case relied by him, Union of India and anr. Vs. Sher Singh and ors (supra).  In this matter, it was contended on behalf of respondents that since the Supreme Court had already dismissed a similar special leave petition, the appeal merit no consideration.  The contention of the respondent was rejected by the Supreme Court holding that one of the Benches had dismissed petition without any speaking order and, therefore, in view of legal position that the dismissal of special leave petition without speaking order does not constitute res judicata , the question of law had to be gone into, and had rejected the objection of the respondents.  The said case is clearly distinguishable from the facts of the petitioner whose writ petition was dismissed by the High Court on merits. Reliance by petition on Arati Ray Chodhury (supra) is also without beneficial consequence to the petitioner.  In that matter, the point for consideration before the Supreme Court was, whether a petition will be barred under Article 32 of the Constitution on account of dismissal of a writ petition under Article 226 which was not decided on merit and whether it applied to a person not party to previous writ petition.  Apparently, the ratio of the said case is not applicable to the facts of the petitioner as his writ petition seeking similar relief was dismissed on merit and special leave petition filed by him was also dismissed.  Even in  Hoshnath Vs. Union of India; AIR 1979 SC 1328 it was held that if after preferring an appeal or revision under the statue under which the right is claimed by a party, an order in an earlier  petition filed under Article 226 will merge into the order in appeal or revision and subsequent petition in the circumstances would not be barred by principle analogous to res judicata because the cause of action is entirely different and the merger of the order cannot stand in the way of  a party invoking the jurisdiction of the High Court under Article 226.  The case of the petitioner is substantially different. The petitioner is challenging the seniority as personal assistant and private secretary as in 1982 which was also challenged by him in his earlier writ petition which was dismissed on merits in limine. The ratio of Hosnath Vs Union of India (supra) can not be relied on by the petitioner as the petitioner's earlier writ petition was dismissed on merit and the present writ petition has not been filed against a new cause of action after preferring an appeal or revision after dismissal of his earlier writ petition.

 

17.                There are several decisions of Supreme Court dealing with the doctrine and principles of res judicata. In Daryao and others Vs. State of U.P. and others; 1962 Supreme Court Reporter (SCR) (1) 574 it was held that if a petition under Article 226 is considered on merits as a contested matter and dismissed, the decision pronounced is binding on the parties unless modified or reversed by appeal or other appropriate proceedings under the Constitution. It would not be open to a party to ignore the said judgment and move Supreme Court under Article 32 by an original petition made on the same facts and for obtaining the same or similar orders or writs. It was further held that where a petition under Article 226 is dismissed not on merits but because of latches of the parties applying for the writ or because any alternative remedy is available to them, such dismissal is no bar to a subsequent petition under Article 32. However, it was held that where the writ petition is dismissed in limine and order is pronounced in that behalf whether or not such a dismissal  will constitute a bar would depend on the nature of the order. If the order is on merits it would be a bar; if the order shows that the dismissal was for the reason that the petitioner was guilty of latches or that he had an alternative remedy, it would not be barred. If the petition is dismissed in limine without a speaking order, or is withdrawn, there will be no bar of res judicata.  The observation by the  Supreme Court is as under:

 

"We must now proceed to state our conclusion on the preliminary objection raised by the respondents.  We hold that if a writ petition filed by a party under Art. 226 is considered on the merits as a contested matter and is dismissed, the decision thus pronounced would continue to bind the parties unless it is otherwise modified or reversed by appeal or other appropriate proceedings permissible under the Constitution.  It would not be open to a party to ignore the said judgment and move this Court under Art.32 by an original petition made on the same facts and for obtaining the same or similar orders or writs.  If the petition filed in the High Court under Art. 226 is dismissed not on the merits but because of the latches of the party applying for the writ or because it is held that the party had an alternative remedy available to it, then the dismissal of the writ petition would not constitute a bar to a subsequent petition under Art. 32 except in cases where and if the facts thus found by the High Court may themselves be relevant even under Art.32.  If a writ petition is dismissed in limine and an order is pronounced in that behalf, whether or not the dismissal would constitute a bar would depend upon the nature of the order.  If the order is on the merits it would be a bar; if the order shows that the dismissal was for the reason that the petitioner was guilty of latches or that he had an alternative remedy it would not be a bar, except in cases which we have already indicated.  If the petition is dismissed in limine without passing a speaking order then such dismissal cannot be treated as creating a bar of res judicata.  It is true that, prima facie, dismissal in limine even without passing a speaking order in that behalf may strongly suggest that the Court took the view that there was no substance in the petition at all; but in the absence of a speaking order it would not be easy to decide what factors weighed in the mind of the court and that makes its difficult and unsafe to hold that such a summary dismissal is a dismissal on merits and as such constitutes a bar of res judicata against a similar petition filed under Art. 32.  If the petition is dismissed as withdrawn it cannot be a bar to a subsequent petition under Article 32, because in such a case there has been no decision on the merits by the Court.  We wish to make it clear that the conclusions thus reached by us are confined only to the point of res judicata which has been argued as a preliminary issue in these writ petitions and no other.  It is in the light of this decision that we will now proceed to examine the position in the six petitions before us." 

 

18.                Apparently, the petitioner can not rely on the ratio of this judgment.  The earlier writ petition of the petitioner was dismissed on merits as is apparent from the order though it was dismissed in limine and not by a speaking order.  After dismissal of the petition on merits in limine, the petitioner filed a special leave petition against the order of dismissal of earlier petition. The present writ petition is not a petition under Article 32 of the Constitution of India but another writ petition filed before the High Court seeking same relief which had dismissed earlier petition on merits.  Aggrieved by the order of dismissal of his earlier writ petition on merits without giving reasons, the petitioner had filed a special leave petition which was also dismissed and a review petition, thereafter, was also dismissed.

 

19.                In the matter of Bansi & ors. (supra) relied  on by the respondent, a full bench of the Punjab High Court had held that when a petition under Article 226 of the Constitution of India had been dismissed in limine, it cannot again be revived by the same petitioner by another petition in which substantially the same allegations are made. It was, however, clarified that such a dismissal in limine not on merits but for latches or  on the ground of availability of alternative remedy does not bar a second petition under Article 32, the reason being that an order made by the High Court under Article 226 is not final so far as the Supreme Court is concerned and not only such an order is appealable to the Supreme Court but the aggrieved party may in proper cases, after failing in the High Court approach the Supreme Court under Article 32 of the Constitution of India. The full bench of High Court did not accept the plea that the same principle could be extended by analogy to the case of a second or subsequent writ petition filed in the High Court after dismissal in limine of the previous writ petition under Article 226 of the Constitution of India containing same allegations. It was held:

 

                     "??? A question will always arise what has the High Court decided and what is the effect of the order. If, for example, the High Court declines to interfere because all the remedies open under law are not exhausted, the order of the High Court may not possess that finality which the Article contemplates. But the order would be final if the jurisdiction of a tribunal is questioned and the High Court either upholds it or does not. In either case the controversy in the High Court is finally decided. To Judge whether the order is final in that sense it is not always necessary to correlate the decision in every case with the facts in controversy especially where the question is one of the jurisdiction of the Court or tribunal. The answer to question whether the order is final or not will not depend on whether controversy is finally over but whether the controversy raised before the High Court is finally over or not. If it is, the order will be appealable provided the other conditions are satisfied, otherwise not.'

 

 

20.                It was thus held in the case of Bansi & ors (supra) that the dismissal in limine of previous writ petition amounted to affirming the jurisdiction and relying on Ramesh Vs Gendalal Motilal, AIR 1966 SC 1445 that order passed in earlier writ petition was final so far as the High Court was concerned and it could be challenged either by way of a review petition or by taking steps to file an appeal to the Supreme Court apart, of course from recourse to petition to the Supreme Court under Article 32 of the Constitution. To entertain the second petition on the same grounds would amount to bypassing these recognized legal procedure and will not be in consonance with established legal principles.

 

 

21.                The contention of the respondent also is that even if the present petition is not barred by res judicata or constructive res judicata it is an abuse of process of law. Reliance has been placed in this regard on Jhalani Tools (India) Limited (supra) to contend that the present writ petition of the petitioner is not maintainable after dismissal of his earlier writ petition on merits seeking similar relief and after dismissal of special leave petition dismissing the earlier writ petition on merit in limine. In Jhalani Tools (supra) an earlier writ petition was dismissed in limine.  Against the dismissal of the writ petition in limine, a special leave petition was filed which was also dismissed and thereafter another writ petition was filed.  It was held that once it is established that the relief sought in the subsequent writ petition was the relief claimed in the earlier writ petition, the submission that since the earlier writ petition was dismissed in limine and would not, therefore, operate as res judicata should not be accepted and was rejected. The Division Bench had held that re-litigation is an abuse of the process of the Court and had relied on K K Modi Vs. K N Modi and ors. reported (1998) 3 SCC 573 = II(1998) SLT 295 where the Supreme Court had stated the law on the point in the following words: 

 

                     "Under order 6, Rule 16, the Court may, at any stage of the proceeding, order to be struck out, inter alia, any matter in any pleading which is otherwise an abuse of the process of the Court.  Mulla in his treatise on the Code of Civil Procedure, (15th Edn. Vol.II,P.1179, note 7) has stated that power under Clause (c) of Order 6, Rule 16 of the Code is confined to cases where the abuse of the process of the Court is manifest from the pleadings; and that this power is unlike the power under Section 151 whereunder Courts have inherent power to strike out pleadings or to stay or dismiss proceedings which are an abuse of their process.  In the present case the High Court has held the suit to be an abuse of the process of the Court on the basis of what is stated in the plaint." 

                    

The Supreme Court Practice, 1995 published by Sweet and Maxwell in paragraphs 18/19/33 (P.344) explains the phrase "abuse of the process of the Court" thus:

"This term connotes that the process of the Court must be used bona fide and properly and must not be abused.  The Court will prevent improper use of its machinery and will in a proper case, summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation.

 

???The categories of conduct rendering a claim frivolous, vexatious or an abuse of process are not closed but depend on all the relevant circumstances. And for this purpose consideration of public policy and the interests of justice may be very material".

                    

 

 

22.                Thus for a party to re-litigate the same issue which has already been tried and decided earlier against him is an abuse of the process of the Court and contrary to justice and public policy.  The re-agitation may or may not be barred as res judicata but if the same issue is sought to be re-agitated, it amounts to an abuse of the process of the Court.  The Court has the power to stop such proceedings summarily and prevent the time of public in the Court being wasted. Undoubtedly, it is a matter of the Court's discretion whether such proceedings should be stopped or not and this discretion has to be exercised with a circumspection. 

 

23.                A perusal of the writ petition no. 600 of 1987 reveals that the petitioner in the said writ petition had impugned the ad hoc and provisional basis for promotion employed by the respondent for promotion to the post of Senior Stenographer, Personal Assistant and Private Secretaries on the ground that there were no rules and regulations for recruitment and seniority and promotion of the employees to the posts of Personal Assistant, Private Secretaries and Deputy Directors. The petitioner had sought recasting of seniority as personal assistant and as private secretary which was declined. The matter was dismissed on merit in limine. The writ petition was not dismissed merely on the ground of delay or latches or that the petitioner had another alternative remedy available to him. The High Court had exercised it jurisdiction and dismissed the writ petition on merits in limine. Since reasons were not given by the High Court while dismissing the writ petition on merits in limine, the order of dismissal on merit was challenged by the petitioner by filing a Special Leave Petition.  Consequently in the present petition, the petitioner can not seek that his seniority as private secretary as in 1982 should be re-determined and he should be placed above eight persons who were juniors to him. The said point was raised by the petitioner in his earlier writ petition which was considered and relief was declined to the petitioner on merit. Though the reasons were not given in the order, however, the petitioner filed a special leave petition which was dismissed and a review petition against dismissal of special leave petition was also dismissed. The petitioner, therefore, is not entitled to challenge his seniority as private Secretary in 1982 and impugn the promotion of Shri  S.D.Arora and Shri A.N.Sadana on the grounds that they were junior to him. The claim of the petitioner regarding his seniority as personal assistant and private secretary in 1982 and prior even if not strictly barred under the principles of res judicata as because no reasons were given at the time of dismissal of earlier writ petition on merits, however, in the present facts and circumstances petition seeking the same relief again will be an abuse of process of law and the petitioner is not entitled to relief claimed by him.

 

24.                  The other contention of the petitioner is that since there were no rules for selection from the post of Private Secretary to the Deputy Director, selection ought to have been made on the basis of length of service.  The petitioner has impugned the promotion of Shri S.D.Aroara and Shri A.N.Sadana on the ground that they were junior to him. The seniority as private secretary in 1982 shows, which can not be challenged by the petitioner now in this writ petition, that these two persons were not junior to the petitioner. Shri S.D.Arora was at serial no.8 and Shri A.N.Sadana was at serial no.10 whereas the petitioner was at serial no.19. In the present writ petition the petitioner has impugned the promotion of only these two persons as Deputy Director who were promoted in 1991.

 

25.                In support of his plea that the promotion ought to be on the basis of length of service and not on the basis of merit cum length of service, he has relied on Vasant Kumar Jaiswal Vs. State of Madhya Pradesh, JT 1987 (3) SC 550 where it was held that in absence of rule, seniority is to be determined on the basis of length of service.  The petitioner has placed reliance on Satpal Antil Vs. Union of India and Anr.; AIR 1995 SC 1858 where it was held that in absence of express provision in rules, generally principle of length of service amongst eligible candidates with qualifying service would be applicable.  The reliance has also been placed by the petitioner on Sant Ram Sharma Vs. State of Rajasthan and Anr.;  AIR 1968 SC 111 where it was held that the Government can not amend or supersede statutory rules by administrative instructions, if rules are silent on particular point, however, Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed.  It was further held that in order to have a reasonable prospect of advancement of all officials and at the same time to protect the public interest in having post filled by most able man, it is necessary to evolve a proper promotion policy so as to maintain correct balance between seniority and merit.  It was further held that as a matter of administrative practice, promotions to selection grade or selection posts in the Indian Police Service was based on merit and seniority was taken into consideration only when merit of candidate was otherwise equal and no other criterion was available. Consequently it was held that such a procedure does not in any way violate the guarantee under Articles 14 and 16 of the Constitution. 

 

26.                These pleas were also raised by the petitioner in the earlier petition CWP 600/1987.  The points raised in earlier petition if were not categorically treated as rejected, the appropriate remedy of the petitioner was to file an application for review or clarification or to file a special leave petition to the Supreme Court which was done by him. The petitioner filed a special leave petition which was dismissed and thereafter petitioner filed a review petition which was also dismissed by the Supreme Court.  In the case of Government of Andhra Pradesh Vs. N.Narasimha Murthi,  AIR 1991 SC 372, it was held that if a question is raised and not decided, it will be treaded as decided against the petitioner and would operate as res judicata.  The petitioner does not get support from the judgments of Sobhag Singh Vs. Jai Singh and ors. AIR SC 1328  and from Ashok Kumar Srivastav Vs. National Institute and another ,(1998) 4 SCC 361. The petitioner is, thus not entitled to raise the same pleas again in the present writ petition as his earlier writ petitions raising similar pleas was dismissed on merit. The pleas of the petitioner are barred by res judicata and present petition raising the same pleas again is an abuse of process of law.  

 

27.                The two employees whose promotion has been impugned by the petitioner in the writ petition were senior to him as private secretary as they were appointed on 3rd August,1982 and the petitioner was appointed as private secretary on 10th September, 1982. Even on the basis of his plea that the petitioner ought to have been promoted on the basis of length of service, petitioner can not succeed because the length of service of Shri S.D.Arora and Shri A.N.Sadana as private secretary was more than that of petitioner. The petitioner, therefore, can not succeed against these two persons even on this ground.  These two employees whose promotions have been challenged by the petitioner have not been impleaded as a party to the writ petition. They were impleaded as parties and by a subsequent order they were removed from memo of parties which order was not challenged by the petitioner. 

28.                The other employees of DDA who had been appointed as Deputy Directors have also not been impleaded. Though a memo of parties was filed impleading Shri S.D.Arora; Shri P.L.Gulani; Shri S.P.Thakural; Shri B.L.Makija; Shri H.R.Kapoor and Shri O.P.Gupta as parties to the writ petition, however, by a subsequent order dated 25th March,  2003 they were ordered to be removed as parties which order was not challenged by the petitioner. In the writ petition also no relief was sought against other employees other than Shri S.D.Arora and Shri A.N.Sadana. These other employees of the respondent DDA who were appointed as deputy director on the basis that the posts of personal assistant and private secretary and deputy director had been treated as selection post have not been impleaded. They are necessary parties.  The recruitment rules for the post of PA to the Vice Chairman were adopted by resolution dated 11th October,1977 and these recruitment rules were considered for filling up posts of personal  assistants also. As the post of personal assistant was a selection post, the next post of private secretary was also treated as selection post and accordingly the DPC recommended the promotion on the basis of merit cum seniority although recruitment rules were not framed for the post of private secretary. Similarly the posts of deputy Director had been filled on the basis of merit cum seniority. In the facts and circumstances in absence of necessary parties the petitioner can not be granted any relief against these persons who had been appointed as Deputy Director before the petitioner. As already held that even if the plea of the petitioner is accepted that the appointment could be only on the basis of length of service, the two private secretaries, Shri S.D. Arora and Shri A.N. Sadana whose appointment has been challenged by the petitioner, were senior to petitioner and so the petitioner is not entitled to any relief against them nor the petitioner can be appointed senior to them.  The petitioner is not entitled to promotion to the post of Deputy Director from 29.08.1986 nor he is entitled to promotion as Deputy Director from 24th January, 1991 when Mr.S.D.Arora & Mr.A.N.Sadana were promoted as Deputy Directors.  The petitioner, therefore, is not entitled for any relief.

 

29.                In the circumstances, the writ petition is dismissed, however, the parties are left to bear their own costs in the facts and circumstances of the case.

 

                                                                                     Anil Kumar, J.

January 28, 2005