STATE OF KEALA v. THE DIRECT

ADV. SRI.G.SASIDHARAN CHEMPAZHANTHIYIL SRI.MANOJ RAMASWAMY SRI.K.JAJU BABU SRI.THAMBI JACOB SRI.JOE KALLIATH SRI.BABU VARGHESE SRI.LEGY ABRAHAM SRI.RAGHAVAKUMAR V.S. SRI.BENOY THOMAS FOR ADDL.RESPONDENTS THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ALONG WITH W.A.NO.1063/2005 ON 08/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & K.SURENDRA MOHAN, JJ. ----------------------------------------- W.A. NOS. 849 & 1063/2005 ----------------------------------------- Dated 8th January, 2009. JUDGMENT Balakrishnan Nair, J. These appeals are directed against the judgment of the learned Single Judge in W.P.(C) No.25457/2003 and O.P.No.12371/2002 respectively, which were disposed of by a common judgment dated 1.7.2004 along with a few other writ petitions. One of them was O.P.No.10757/2002. The State filed W.A.No.206/2005 against the judgment in O.P.No.10757/2002. The said appeal was allowed by the Division Bench by judgment dated

1.6.2006 and vacated the directions issued by the learned Single Judge in the common judgment. In view of the said judgment, the present appeals are also liable to be allowed. But, the learned counsel for the party respondents submitted that the Government at the time of hearing W.A.No.206/2005 did not disclose before the Bench hearing the matter that these appeals were also pending. This Court was led to believe that only one appeal is pending and therefore, it disposed of the same. The Division Bench in that appeal found that during the pendency of the WA Nos.849 & 1063/05 2 appeal, purportedly in implementation of the judgment under appeal, the Government have issued certain directions, creating two posts of Lab Assistant in private aided higher secondary schools, where science subjects are taught. Since in many cases it was found that four Lab Assistants were appointed, the Government by another order permitted creation of supernumerary posts, for accommodating such persons. The maximum posts permitted in a school was four, which included supernumerary posts also. The Division Bench noticed that those orders were not subjected to challenge and therefore, they have become final as against the respondents therein. The learned counsel for the respondents in these appeals pointed out that in fact, some of the affected persons have challenged those orders before this Court by filing writ petitions. Finally, it was submitted that the judgment under appeal is a common judgment, disposing of 29 writ petitions. Appeals were preferred only in three cases. Therefore, the other judgments having become final, will operate as res judicata, in view of Explanation VI to Section 11 of the C.P.C. Though, Civil Procedure Code as such is not applicable to proceedings under Article 226 of the Constitution of India, now it is well-settled that the principles under Section 11 of the C.P.C will apply, it is submitted. In view of the above WA Nos.849 & 1063/05 3 preliminary objections raised, the learned counsel for the respondents prayed that the appeals may not be heard on merits and they may be dismissed at the threshold.

2. In support of the above submissions, the learned counsel for the respondents, who are the petitioners in the O.P./W.P.(C), relied on the decisions of the Apex Court in Siraj v. High Court of Kerala [2006(2) KLT 923(SC)] and Forward Construction Co. v. Prabhat Mandal (Regd.), Andheri [AIR 1986 SC 391].

3. The learned Government Pleader, appearing for the appellants, met the above preliminary objections, urging the following points. The non-mentioning of the pendency of these two appeals before the Bench which heard W.A. 206/2005 is only a bona fide mistake committed by the concerned Government Pleader, owing to lack of proper instructions in the matter. In fact, even in the absence of appeals in respect of other writ petitions, the Bench went on to hear the appeal filed filed against the judgment in one of the writ petitions. So, the view taken by the Division Bench in that matter will not, in any way, help the party respondents, it is submitted.

4. Regarding the second point concerning non-challenge of the WA Nos.849 & 1063/05 4 subsequent orders issued by the Government, it is pointed out that the party respondents in that Writ Appeal, in fact, have chosen not to challenge those orders. It is a fact noticed by the Division Bench. The observation regarding non-challenge or subsequent orders would not show that it was made based on any submission from the side of the appellants.

5. Regarding the third point, the learned Government Pleader submitted that since the common judgment disposes of different writ petitions of Lab Assistants working under different managements, it will not operate as res judicata. Explanation VI to Section 11 of the C.P.C does not have any application to the case on hand. It is also submitted that if some of the judgments have become final, it will be beneficial only to the parties therein. The learned Government Pleader in support of her submissions cited the decision in Sales Tax Officer v. M/s.Shree Durga Oil Mills [AIR 1998 SC 591]

6. We notice that for convenience, several writ petitions have been disposed of by a common judgment. They are not writ petitions between the same parties. Therefore, the concept of res judicata cannot, normally, be pressed into service. The decision relied on by the learned counsel for the respondents in Siraj's case (supra) has no application to the facts of this WA Nos.849 & 1063/05 5 case. One single judgment in an Original Petition gave rise to several Writ Appeals. Against the judgments in several appeals, only one S.L.P was moved before the Apex Court. In that context the observations in Siraj's case (supra) were made, which read as follows: “One more factor has also to be noticed in regard to the civil appeals filed by Mr.K.H.Siraj which, in our opinion, is also hit by res judicata. His Writ Petition in the High Court was O.P.No.5219 of 2002. That was partly allowed without giving him any relief for a direction for appointment. On the other hand, the High Court set aside the selection of candidates occupying Rank Nos.60, 62, 64, 66, 68 and 70. The High Court filed Writ Appeal No. 1496 of 2004 before the Division Bench. Mr.K.H.Siraj himself filed W.A. No. 1584 of 2004 against that part of the impugned judgment which was against him. Candidates occupying Rank Nos.60 etc., who are affected by the judgment had themselves filed W.A.Nos. 1498, 1510, 1526, 1527, 1541, 1588 and 1574 of 2004. All these appeals filed by the High Court and by those parties were allowed setting aside the judgment of the learned single Judge. Mr.K.H.Siraj's appeal (W.A.1584/2004) was dismissed. However, Mr.Siraj has chosen to file appeals only against the decision in W.A.No.1496/2004 filed by the High Court and W.A. No.1584 of 2004 filed by himself and has not chosen to file any appeal against the decision in the other appeals. W.A.No.1498 of 2004 etc., filed by the affected parties. The decision therein has become final and, therefore, operates as res judicata and Mr.K.H.Siraj's appeal is to be dismissed as such.” We feel that the above observations of the Apex Court do not apply to the facts of this case. WA Nos.849 & 1063/05 6

7. In Forward Construction Co. v. Prabhat Mandal (Regd.), Andheri [AIR 1986 SC 391], the Apex Court held as follows: “20. So far as the first reason is concerned, the High Court in our opinion was not right in holding that the earlier judgment would not operate as res judicata as one of the grounds taken in the present petition was conspicuous by its absence in the earlier petition. Explanation IV to S.11, C.P.C., 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. 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 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. The first reason, therefore, has absolutely no force. WA Nos.849 & 1063/05 7

21. The second reason given by the High Court, however, holds good. Explanation VI to S.11 provides: 'Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section be deemed to claim under the persons so litigating.' But, it is only when the conditions of Explanation VI are satisfied that a decision in the litigation will bind all persons interested in the right litigated and the onus of proving the want of bona fides in respect of the previous litigation is on the party seeking to avoid the decision. The words 'public right' have been added in Explanation VI in view of the new S.91, C.P.C., and to prevent multiplicity of litigation in respect of public right. In view of Explanation VI it cannot be disputed that S.11 applies to public interest litigation as well but it must be proved that the previous litigation was the public interest litigation, not by way of a private grievance. It has to be a bona fide litigation in respect of a right which is common and is agitated in common with others.” Going by the above observations, we feel that they will not, in any way, help the party respondents herein, as the cases concerned were not public interest litigations. Further, the observations in para 21 are, in fact, against them. So, the principles behind Explanation VI to Section 11 of the C.P.C are not applicable in this case. WA Nos.849 & 1063/05 8

8. In the decision in Sales Tax Officer v. M/s.Shree Durga Oil Mills [AIR 1998 SC 591] cited by the learned Government Pleader, it was observed as follows: “9. In our view this appeal cannot be shut out on the preliminary ground that no appeal was preferred against the two earlier decisions of the High Court which were followed in the instant case. It is for the Court to decide whether to entertain an appeal or not. In our view, the point of law raised in this case is of general public importance and this appeal cannot be dismissed in limine on the preliminary issue of maintainability. On behalf of the appellant, it has been pointed out that in the High Court itself, there has been a change in the perception of law in this regard.” Relying on the above decision, it is submitted by the State that even if appeal is not filed against other judgments and they were allowed to become final, nothing prevents the State from pursuing the appeals which have already been filed.

9. We are inclined to accept this submission of the learned Government Pleader. Even if judgments in some writ petitions have become final, nothing prevents the State from pursuing the appeals already filed by it against some others. We agree with the submissions of the State regarding the preliminary objections raised by the respondents and overrule them. On coming to the merits of the case, we would say, we are in full agreement with the reasons and conclusions of the Division Bench in WA Nos.849 & 1063/05 9 W.A.No.206/2005. Accordingly, these appeals are allowed and the writ petitions are dismissed. But, this judgment will not affect the rights, if any, of the party respondents to challenge any order issued by the Government during the pendency of the appeals. K.BALAKRISHNAN NAIR, JUDGE. K.SURENDRA MOHAN, JUDGE. Nm/