Pratima K. Gupta, Member (J):-

1. This is the second round of litigation initiated by the present applicant. Earlier the applicant approached this Tribunal in OA No.539/2010 seeking quashing and setting aside of impugned order dated 06.07.2009, whereby the representation of the applicant was rejected by the respondents. The applicant had also challenged the recommendations of the DPC dated 04.08.2008, wherein, as alleged by him, certain officials were being promoted, though they were not eligible for promotion. This OA was allowed by the Tribunal on 15.11.2010, passing the following orders :-

“8. In the light of the above we are of the considered opinion that the DPC for regular promotions has been conducted in contravention of the instructions of the Department of Personnel and Training, adverted to above and its recommendations cannot be sustained. A natural corollary of this is that the Respondents have to be directed to convene a review DPC to consider the Applicant for promotion the instructions contained in the Office Memorandum dated 08.02.2002 and Office Memorandum dated 09.04.1996, already referred to above. The impugned order dated 06.07.2009 is quashed and set aside. The Respondents are directed to comply with the above directions as early as possible, but not later than four weeks from the receipt of a certified copy of this order. No costs.

9. Before we part with this order, it may be mentioned that the Respondents have tried to mislead this Tribunal by stating that the DPCS, both for regular promotions as well as for in situ promotions have followed the instructions of 03.06.2008. On scrutiny it was found to be contrary to the facts. We strongly deprecate such tendency on the part of the Respondents.”

2. As the respondents did not comply with the aforesaid order dated 15.11.2010 passed by the Tribunal, the applicant was persuaded to file a Contempt Petition No.211/2011. The CP was closed by an Order dated 21.03.2011, with a direction to the respondents to implement the order in OA within a period of two weeks from that day. In compliance of the Order of this Tribunal, the respondents issued an order dated 03.09.2012, whereby the applicant was granted Pay Band-4 of Rs.37,400-67,000 /- with Grade Pay of Rs.10,000/- on regular basis w.e.f. 15.01.2009 i.e. the date when the 1985 batch took over as Grade-III on the basis of approval of ACC. However, the applicant was not paid the arrears of pay and allowances from the relevant date i.e. 15.01.2009. In spite of repeated requests, the respondents did not take any steps and vide letter dated 09.05.2013, they communicated that matters of arrears of pay and allowances w.e.f. 15.01.2009 shall be decided by DACS and Personnel Division. Thereafter, on 22.01.2016, the respondents sought advice of the DOP&T on the said issue and by the impugned Memorandum dated 04.05.2016, it was communicated to the applicant that the arrears for the period 15.01.2009 to 29.07.2011 would not be admissible to him on the ground that his case for payment of arrears and allowances with effect from the relevant period could not be processed as per para 18.4.3 of the DOP&T OM dated 10.04.1989. Aggrieved by the same, applicant has preferred the instant OA seeking the following relief(s) :-

“(a) Set aside and quash Memorandum No.2/25/91-Pers.5-VI-6671 dt. 04.05.2016.

(b) Direct the Respondents to pay arrears of pay and allowances w.e.f. 15.01.2009 to 29.07.2011 to the Applicant for the rank of Joint Secretary.

(c) Direct the Respondents to pay the Applicant all the benefits along with interest @ 18% PA from the date the amount became due till the date of realization.

(d) Take necessary action against the Respondents for wrongly depriving the arrears of the pay and allowances to the Applicant with retrospective effect from 15.01.2009 to 29.07.2011 and for violation of promotion order.

(e) To allow this Application with costs of Rs.1,10,000/- in favour of the Applicant and against the Respondents.

(f) Pass such other & further reliefs as this Hon’ble Court may deem just and proper in the facts & circumstances of this case.”

3. Learned counsel for the applicant in support of his contentions has argued :

(i) That the issue involved in the present case was decided by this Tribunal in the matter of Dr. Lalchand Thakur Vs. Union of India on 24.08.2007, wherein the Tribunal was pleased to direct the respondents to pay arrears of pay and allowances to the applicant along with the consequential benefits. This order was passed by this Tribunal after following the judgment of the Hon’ble High Court of Delhi in Kalyan Singh Vs. Union of India & Ors. 2001 (1) AIS LJ 216. In support of his contentions, he has further relied on the judgment of Hon’ble Apex Court in the case of Ramesh Kumar Vs. Union of India 2015 AIR(SC) 2904.

(ii) That the respondents have incorrectly and illegally mis-interpreted para 18.4.3 of the DOP&T OM dated 10.04.1989 and have denied the arrears of pay and allowances, rather the said paragraph entitles the applicant for extension of arrears of the relevant period. As the applicant has already been promoted w.e.f. 15.01.2009 to the rank of Joint Secretary with retrospective effect, as a natural corollary, he was entitled to the consequential benefits. He submits that he has reproduced the said paragraph in para 7 of the OA and a bare reading of the same would indicate that these provisions support the cause of the applicant, as this is not a case of stepping up of pay or parity with the junior but fixation in an appropriate pay scale from the date of appointment and in this case, the appointment has been made by a Presidential order, after obtaining approval of the ACC.

4. Pursuant to notice, the respondents have filed detailed reply. Learned counsel for the respondents raises a preliminary objection with respect to res judicata. He has argued that the prayer in the instant OA was also a prayer in OA No.539/2010 under para ‘8(d)’ and this fact has since been concealed by the applicant, the OA be dismissed on the said ground itself. He further argues that the cause of the applicant was rejected by the respondents by an impugned order dated 04.05.2016 after seeking advice of the DOP&T wherein the DOP&T had categorically opined that in terms of para 18.4.3 of DOP&T OM dated 10.04.1989, pay and allowances were not admissible to the applicant . He states that since the OM has not been challenged by the applicant, OA does not warrant consideration.

5. In support of his contention, learned counsel for respondents places reliance on the judgment of Hon’ble Apex Court in Samir Kumar Majumder Vs. Union of India & Ors. Civil Appeal No.6027/2014, wherein the legal principle of res judicata elaborately outlined. He submits that the said Civil Appeal has also arisen out of a judgment of this Tribunal. He submits that res judicata is a public policy and “nobody could be vexed twice”. Additionally, he raises the objection of limitation highlighting that the OA is hopelessly time barred and no separate Application seeking condonation of delay is filed. He submits that the Hon’ble Guwahati High Court in WP (C) No. 4328/2014 decided on 15.10.2014 has held that the principles of res judicata are applicable for service jurisprudence. He submits that the Hon’ble Guwahati High Court has relied upon a judgment of the Hon’ble Supreme Court in holding that the doctrine of res judicata is a universal doctrine and hence, it would be incorrect to hold that the same would not be applicable.

6. In rejoinder, learned counsel for the applicant argues that the issue of res judicata has to be considered against the background of the fact that the prayer of the applicant was not adjudicated upon. Further, he clarifies that the Hon’ble Bombay High Court in WP (C) No 69/2001 vide order dated 01.03.2006 has held that the principles of res judicata cannot be made applicable to the proceedings before an Administrative Tribunal. He clarifies, quoting from the relevant extract of the said judgment that the principles do not apply on the proceedings before the Tribunal under Administrative Tribunals Act. The relevant extract quoted in the said judgment reads as under:

“6. We have considered the submissions made on behalf of the petitioner. Regarding the principles of res-judicata, as embodied by Section 11 of the Code of Civil Procedure, 1908, are concerned, they do not apply to proceedings before tribunal under the Administrative Tribunal Act, 1985. Section 22 of the Act prescribes procedure and powers of tribunals. Section 22 of the Act provides that a Tribunal shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908, but shall be guided by the principles of natural justice and other provisions of this Act. There is, therefore, no question of principles of resjudicata being made applicable to the proceedings before the tribunal. There is therefore no need to refer to several judgments of the Supreme Court cited before us as they proceeded on the fact that Section 11 was applicable in those cases. In one judgment, the Supreme Court talks of about Article 22 Clause 3 of the Constitution of India and draws parallel inference that the contents of Article 22(3) of the Constitution of India were analogous to Section 11 of the Code of Civil Procedure and, therefore, with reference to Article 20 a man cannot be required to be face trial after he is acquitted of the same set of charges.”

7. Learned counsel for the applicant places reliance on the judgments of Hon’ble Supreme Court in the matters of Sajjadanashin Sayed MD. B.E. EDR. (D) by LRs. Vs. Musa Dadabhai Ummer and Others 2000 AIR (SC) 1238; and Brahma Vart Sanatan Dharm Mahamandal Vs. Kanhyalal Bagla and Ors. 2001 AIR (SC) 3799. He explains that pursuant to a categorical order passed by this Tribunal in an earlier round of litigation in OA No. 539/2010, the respondents vide order dated 07.08.2012 promoted the applicant to Grade III in Group 'A' Executive Cadre of the Cabinet Secretariat on regular basis at par with RAS: 85 batch officers. It would be appropriate to reproduce this order verbatim:

"The President is pleased to appoint Ms. Amita Kumar, RAS:85 to Grade III in the Group 'A' Executive Cadre of the Cabinet Secretariat (R&AW) in the Pay Band-4 of Rs 37,400-67,000/- with Grade Pay Rs. 10,000/- on regular basis w.e.f. 15.01.2009, i.e. the date when RAS:85 batch officers took over as Grade III on the basis of approval of the ACC dated 15.01.2009 in pursuance of CAT Order dated 15.11.2010 in OA No.539/2010 and until further orders."

8. Concluding his arguments, he argues that once after obtaining the approval of ACC, the appointment of the applicant has been made w.e.f. 15.01.2009, she could not be deprived of the arrears, salary and allowances.

9. Heard the learned counsel for the parties on several occasions at length.

10. In order to decide this OA, we may examine the prayer of the applicant made in the OA No.539/2010 and prayer in the instant OA together.

“ Prayer clause in OA No.539/2010

(a) Call for the records of regular vacancies available in RAS for promotion from Director to Joint Secretary;

(b) The minutes of the DPC held on 04.08.2008 and the Rules governing these services for promotions to the post of Joint Secretary;

(c) To quash and set aside the order dtd. 06.07.2009 rejecting the representation dtd. 22.06.2009 of the Applicant on the ground of non-availability of vacancy as done in the case of Sh. Ashok Kapur and the Applicant be deemed to be promoted w.e.f. 15.01.2009 which is the date when all eligible persons took over on the basis DPC convene on 04.08.2008;

(d) Direction be passed that the arrears of pay and allowances in the rank of Joint Secretary be given to the Applicant w.e.f. 15.1.09.

Prayer Clause in the instant OA

(a) Set aside and quash Memorandum No.2/25/91-Pers.5-VI-6671 dt. 04.05.2016.

(b) Direct the Respondents to pay arrears of pay and allowances w.e.f. 15.01.2009 to 29.07.2011 to the Applicant for the rank of Joint Secretary.

(c) Direct the Respondents to pay the Applicant all the benefits along with interest @ 18% PA from the date the amount became due till the date of realization.

(d) Take necessary action against the Respondents for wrongly depriving the arrears of the pay and allowances to the Applicant with retrospective effect from 15.01.2009 to 29.07.2011 and for violation of promotion order.

(e) To allow this Application with costs of Rs.1,10,000/- in favour of the Applicant and against the Respondents.

(f) Pass such other & further reliefs as this Hon’ble Court may deem just and proper in the facts & circumstances of this case.”

11. From the above, it is clear that prayer 8(d) in OA No.539/2010 is identical to prayer 8(b) and (d) in the instant OA. While allowing the OA No.539/2010, respondents were directed to convene a review DPC to consider the applicant for promotion in terms of the instructions contained in the Office Memorandum dated 08.02.2002 and Office Memorandum dated 09.04.1996. By implication, either the prayer 8(d) was not considered or deemed to have been rejected. In any case, the conclusion is that the said prayer was not granted to the applicant by the Tribunal.

12. The issue at stake is whether the prayer in this OA which was part of the prayer in the earlier round of litigation is barred by the principles of constructive res judicata. We have gone through the judgment relied upon by the learned counsel for the applicant. In the facts before the Hon’ble High Court of Bombay, the applicant had approached for his rights to the competent Civil Court and the suit was allowed and thereafter he pursued his remedies before the CAT. In those circumstances, the Hon’ble High Court of Bombay had held that the principles of res judicata did not apply on the proceedings before the Tribunal, under the Administrative Tribunals Act. However, in the present OA, the applicant had approached the Tribunal itself in the earlier round of litigation and has preferred the instant OA, seeking the same relief. We are guided by the judgment of Hon’ble Apex Court in Civil Appeal No.6027/2014, which was filed against the orders of Hon’ble High Court at Calcutta wherein the judgment passed by the Tribunal at Guwahati Bench of this Tribunal was upheld. In paras 32 and 35, the Hon’ble Apex Court has recorded as under :-

“32. In the earlier round of proceedings culminating in the order of this Court dated 15.02.1996, this issue was never raised. His claim for absorption as an assistant teacher in the Higher Secondary Section is clearly barred by constructive res judicata. 

xxx xxx xxx xxx

Interest reipublicae ut sit finis litium:

35. The doctrine itself is based on public policy flowing from the age-old legal maxim interest reipublicae ut sit finis litium which means that in the interest of the State there should be an end to litigation and no party ought to be vexed twice in a litigation for one and the same cause (See M. Nagabhushana vs. State of Karnataka and Others, (2011) 3 SCC 408.”

13. While applying the principles of res judicata to the Order/Judgment passed by the CAT, the Hon’ble Apex Court has rejected the claim of the applicant clearly establishing that the principles of res judicata was applicable to the proceedings under the Administrative Tribunals Act. The Hon’ble Apex Court while detailing the law of constructive res judicata has observed in paras 33 and 34 as under :-

“Law on Constructive Res Judicata:

33. Almost two centuries ago, in Henderson vs. Henderson, (1843) 3 Hare, 100, the ViceChancellor Sir James Wigram felicitously puts the principle thus:-

“In trying this question I believe I state the rule of the Court correctly when I say that, where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward 20 their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time. ….”

34. This principle popularly known as the doctrine of constructive res judicata, based on the might and ought theory, has been recognized by this Court in several judgments. In Maharashtra Vikrikar Karamchari Sangathan vs. State of Maharashtra and Another, (2000) 2 SCC 552, this Court held as under

“22. It was then contended on behalf of the appellants that neither the Recruitment Rules of 1971 nor the Seniority Rules of 1982 provided for carrying forward the vacancies falling in either category. In the absence of such rules which specifically provide for carrying forward the vacancies falling in either category, no such carryforward rule could be implied either in the Recruitment Rules or in the Seniority Rules. This contention need not detain us any longer because such a contention was available to the appellants in the earlier proceedings, namely, Transfer Application No. 21 822 of 1991 and the same was not put in issue. That not having been done, it must follow that such a contention is barred by the principles of constructive res judicata. Neither the contesting respondents nor the appellants ever raised this contention at any stage of the proceedings in Transfer Petition No. 822 of 1991. It would, therefore, be too late to raise such a contention when the seniority list has been finalized pursuant to the judgment of MAT, Bombay Bench in Transfer Petition No. 822 of 1991.”

14. From the record before us, it is clear that the applicant has prayed the relief in the instant OA which was sought for by him in the earlier round of litigation and the same was not granted to him. The same invites principles of constructive res judicata. However, it cannot be ignored that while complying with the judgement in O.A. No.539/2010, the applicant has been promoted w.e.f. 15.01.2009, after the approval of the ACC.

15. In view of the aforesaid facts and circumstances, the instant O.A. stands dismissed. There shall be no order as to costs.