Aneetha A G, Jelson J. Edampadam, K.P Satheesan, K.Sudhinkumar, P.Mohandas, Pirappancode V S Sudhir, S.Vibheeshanan, Advocates for the appearing parties.

Judgment/Order

Dama Seshadri Naidu, JIntroduction:

In a Review Petition in a Review Petition in a Writ Petition, so to say, the pleadings run into 50 pages: the facts confuse, the pleas confound, the parties multiply, the claims conflict. Confounding this is a writ appeal. As a result, we tread carefully-so carefully that at times we retrace our steps- and may sound repetitive, not to be lost in the maze.

2. In this multi-layered saga, many employees have litigated at various stages of these cases. So, to avoid chaotic cross references, we identify the parties on either side as two sets of employees and call them "the First Batch" and "the Second Batch." Either of these batches may have many employees coming together or fighting alone. But each batch of employees has a distinct character and claim. First they fought for appoint, later for seniority.

3. To get at a needle of right, we must rake through a haystack of litigation. We will.

I. Case in Brief:

4. Kerala State Electricity Board ("the Board") is the employer. One of the cadres in its service ranks is Assistant Engineer (Electrical) . For that post, the method of appointment follows the ratio 50 : 30 : 20. That is, 50% direct recruits; 30% diploma holders; and 20% certificate holders. And of that 50% reserved for the direct recruits, the Boards in-service engineering graduates can apply for 10%. The in-service candidates incumbent cadre assumes no importance-only their length of service and qualification do.

5. In September 2001, the Government issued Ext.P1 and P2 circulars, inviting applications from engineering graduates working in the Board. By then, a set of employees (the First Batch) was qualified. So in the Ext.P3 list, prepared as per those circulars, contained the names of the first batch employees. In January 2002, the Board issued another circular proposing to appoint 38 employees; very soon, it issued Ext.P4 circular adding 37 more employees for appointment: all from the First Batch.

6. None of was appointed. Instead, the Board decided to entrust the task to the Kerala Public Service Commission ("PSC") . With the governments leave, the Board amended the recruitment rules, too.

7. The employees feared that the changed recruitment policy would affect their service prospects. Fourteen of them-M. T. Ajithkumar and others-filed WP (C) No.22628 of 2003. Before the writ petition could be disposed of, the Board felt acute shortage of staff. In May 2004, the Board invited applications from the eligible in-service candidates. Thus, it provisionally appointed 81 in-service candidates as Assistant Engineers, under an order, dt.15.6.2004. It appointed another 14 employees under order, dt.1.1.2005. Eventually, this Court disposed of the writ petition through its judgment, dt. 21.06.2005: that the new recruitment-policy would apply prospectively and that the vacancies existing by then should be filled up through the old policy; that is, without reference to the PSC.

8. First, complaining of official inaction, the First Batch filed Contempt Case No. 1382 of 2005. But the Board, on its part, filed a writ appeal: W.A. No. 2564 of 2005. The writ appeal and the contempt case pending, Mohammad Rafi and 24 others (the Second Batch) , filed W.P. (C) No.33726 of 2005; similarly, William Vinayan Raj and 12 others (of the same Second Batch) filed 33749 of 2005. Both sets of employees in the two writ petitions claimed that they had been identically placed with the First Batch; that is, the petitioners in W.P. (C) No.22628 of 2003. And they wanted the same relief as was given in W.P. (C) No.22628 of 2003.

9. In the meanwhile, the Government and the Board filed W.A. No.2564 of 2005; close on the heels of Contempt Case (COC) No.1170 of 2007 filed by the first Batch. In the appeal, five from the Second Batch- Mohammad Rafi, Saju R.L., Ajayakumar V. P., (from W.P. (C) No.33726 of 2005) , and William Vinayan Raj and Partha Radha K.S (from W.P. (C) No.33749 of 2005) -impleaded themselves as additional respondents. As a result, a Division Bench directed the new writ petitions to be posted along with the writ appeal and the COC.

10. Eventually, in November 2006, the Division Bench dismissed the writ appeal: the First Batchs claim stood affirmed. On the same day, it took up the COC and the two writ petitions. Through a common judgment, the Division Bench allowed the two writ petitions, applying the judgment in the First Batchs WP (C) No.22628 of 2003; it closed the contempt case, however.

11. The Division Bench has held that the vacancies "which had arisen up to 31st January 2005 are to be filled up by the method which was being followed, " till the Government introduced the new recruitment policy. It has also observed that "nothing stands in the way of this group of persons similarly situated like the petitioners being given regularization from appropriate dates."

12. Not to lose track, we may recapitulate: the First Batch filed WP (C) No. 22628 of 2003. The Court held the new recruitment policy to be prospective. The appeal against it-W.A. No. 2564 of 2005-was dismissed. To the Second Batch in the next two writ petitions-WPC Nos.33726 and 33749 of 2005-the Court extended the same benefit: to fill up the existing posts under the old recruitment policy and to adopt the new recruitment policy only prospectively; the Court put no fetters against regularization of those that had been provisionally recruited.

(a) First Review:

13. In 2006 the Board filed RP No. 847 of 2006, requiring the Court to review the judgment in W.A. No. 2564 of 2005. The Board contended that in 2003 itself it refused to regularize those who had been appointed provisionally.

14. In January 2007, the review petition was allowed: the writ appeal was restored. So was the fate of W.P.(c) Nos.33726 of 2005 and 33749 of 2005. That is, two other review petitions had the common judgment set aside and the writ petitions restored. The additional respondents in the writ appeal -that is, five of the petitioners in the two writ petitions-filed S.L.P.No.5478 of 2007 before the Supreme Court, but could not succeed. The restored writ appeal and the two writ petitions, once more, were heard together. Again, in June 2007, the writ appeal was dismissed, and the writ petitions were allowed.

15. As no time frame was fixed in the judgment, to have it implemented, the Second Batch filed interlocutory applications in both the writ petitions and got a declaration that they were entitled for "regularization in the post of AE (Ele.) with retrospective effect from the respective dates of occurrence of vacancies, with all consequential benefits." These modified directions have merged with and become part of the main commonjudgment; so we will not refer to them separately. In other words, wherever we refer to the common judgment, we meant the modified one.

16. Given the latest directives, which remained unimplemented, the petitioners filed COC No.658 of 2008. The Court eventually closed the contempt case, recording the Boards willingness to implement the judgment with no further delay.

17. In tabulation we may present the last phase of litigation, for easy appreciation:

Writ Petition Result Writ Appeal Result Review SLP WP No. 22628 of 2003 New recruitment policy only prospective 2564/2005 Dismissed on 12.11.2006 R.P. 847/2006 (allowed) S.L.P.No.5478/ 2007 (dismissed) W.P. No. 33726 of 2005 Clubbed with WA, but allowed on 12.11.2006 R.P.No.902/ 2008 (allowed) S.L.P(Civ) .209 74 of 2009 R.P.No. 1099/2008 (allowed) W.P. No. 33749 of 2005 R.P.No. 242/2008 (allowed) The Result: Through a common judgment, dt.21.06.2007, the DB dismissed the WA and allowed the WPs, once again. I.As WP 33726/2005 I.A. No.15546/07 Both the IAs were allowed: the petitioners in those WPs are eligible to be regularized AEs (Ele.) with retrospective effect, i.e., from the WP 33749/2005 IA. No.15586/07 ZR.P.No.29/17 & connected cases 8 date the vacancies arose.

(b) Second Review:

18. As seen above, WA No.2564 of 2005 and both the WPs-W.P.(C) No.33726 of 2005 and W.P. (C) No.33749 of 2005-were disposed of through a common judgment, dt.21.06.2007. One employee from the First Batch, Anil Kumar B.S., being a petitioner in WP (C) No.22628 of 2003, filed Review Petition No.902 of 2008 and sought the Court to review the judgment only in W.P.(c) No.33726 of 2005. The judgment(s) in W. P. (C) No.33749 of 2005 and WA No.2564 of 2005 remained untouched.

19. Two more from the First Batch, Prathapan and Haridas, being the petitioners in WP (C) No.22628 of 2003, filed R.P.No.1099/2008 in W.P. (c) No.33726/2005, too, sought the same judgment reviewed, leaving, likewise, the other writ petition and writ appeal.

20. Yet another person from the First Batch, being a petitioner in WP (C) No.22628 of 2003, filed R.P.No.242 of 2008. He wanted the Court to review the judgment in W.P.(c) No.33749 of 2005, He left the judgment(s) in W.P.(c) No.33726 of 2005 and W.A.No.2564 of 2005 untouched, though.

21. In the meanwhile, because of repeated contempt cases before this Court, the Board, by order dated 22.8.2008, decided to comply with the common judgment, as modified by the interlocutory orders we mentioned above: to regularize the in-service candidates with retrospective effect. In short, 66 persons were regularized.

22. Consolidating all the three RPs, the Division Bench, through a common judgment, dt.17.06.2009, vacated the Courts earlier direction (given through Interlocutory Applications) to regularize the petitioners in W.P.(c) No.33726 of 2005 and 33749 of 2005. It also directed the Board to fill up those vacancies "in accordance with law, " in the light of the Rules then in force, by inviting fresh applications.

23. The Second Batch-that is, the petitioners in WP (C) No.33726 of 2005 and WP (C) No.33749 of 2005-challenged the judgment, dt.17.06.2009; they filed S.L.P(Civil) . Nos.20974, 23544, 23548 of 2009, before the Honble Supreme Court. By a common order, dated 1.5.2017, the Supreme Court dismissed all the three SLPs.

24. Later, met with failure in the SLPs., the review petitioners filed these unnumbered RPs. The Registry refusing to number them-for it is a review petition in a review petition-the aggrieved petitioners have the matters "called on Bench."

Writ Petition Review Petition Result SLP Result Review Petition WP No. 33726 of 2005 RP.No. 902/2008 Allowed 20974 of 2009 Dismisse d Unnumbered Review Petition RP. No. 1099/2008 -do23544 of 2009 -do- -doWP. No.33749 of 2005 RP No. 242/2008 -do- 23548 of 2009 -do- -doII. Writ Appeal: (B) Facts:

25. Swapna S and Balachandran P, from the First Batch, are the petitioners in WP (C) No.3655 of 2016. Suresh Kumar S, the appellant (from the Second Batch) , is the third respondent. They all are now Asst. Engineers, directly recruited under the 5% quota meant for the in-service candidates. The First Batch employees acquired the qualification, degree in engineering, earlier than the Second Batch employees. But the Second Batch employees have more length of service. So there arose a dispute about seniority.

26. In-Service candidates from both the batches appointed, the Board allegedly issued a seniority list, showing the initially-qualified persons above the later-qualified persons. In other words, the Board took the qualification as the reckoning point for determining the seniority. But later, it is said to have revised the seniority list. Then, aggrieved, from the First Batch Swapna and Balachandran, like some other similarly placed persons, came to the court. These two persons filed WP (C) No. 3655 of 2016.

27. A learned single judge, through judgment, on 20 January 2017, allowed the writ petition. In turn, Suresh Kumar from the Second Batch, being the third respondent, filed this writ appeal.

Submissions:

The Review Petitioners:

28. Sri Sudheer, the learned counsel for the review petitioners, has contended that the judgments under review suffer from very serious mistakes and errors of law apparent on the face of the records; so they are liable to be reviewed. He has also asserted that the respondents 1 and 2 can have no cause for grievance because they were not qualified on the date the vacancy occurred or on the date the review petitioners were promoted.

29. Sri Sudheer has further submitted that the respondents filed the earlier review petitions separately to have the common judgment in W.P. Nos.33726, 33749 and 33749 of 2005 reviewed. According to him, they have been barred by res judicata.

The Respondents:

30. Dr. K. P. Satheesan, the learned Senior Counsel for the respondents has submitted that there can be no review in a review. According to him, the review petitioners have resorted to sheer abuse of process of law. Besides drawing our attention to Order 47, Rule 9 of CPC, the learned Senior Counsel has also elaborated on common law principles to hammer home his contention that the registry had been justified in not numbering the review petitions.

31. Both the counsel, in fact, relied on a host of precedents, which we will refer to at an appropriate stage of our discussion.

In Writ Appeal:

Appellants:

32. Succinctly stated, Sri Sudheer has contended that the respondents filed the writ petition suppressing the material facts. According to him, the same persons were party to an earlier writ petition in which they could not get any relief. So they indulged in filing successive writ petition.

33. The learned counsel has also contended that Ext.P18 cannot be termed a valid seniority list; it has not been circulated, much less objections were invited. To conclude, he has submitted that the Board has followed established Departmental Rules and determined the seniority, which the impugned judgment ought not to have disturbed.

Contesting Respondents:

34. Dr. K. P. Satheesan, the learned Senior Counsel, has submitted that the respondents have not suppressed any material facts, nor have they resorted to any abuse of process. According to him, Ext.P19 was unavailable when they filed the earlier writ petition. He has also contended that the Second Batch employees possessed no qualification when the Board intended to fill the vacancies.

35. Ext.P18 has stood, Dr. Satheesan has further submitted, undisturbed for eight years to the fullest knowledge of the Second Batch, including the appellant. The Board, he further contends, has not shown any justifiable reasons how it could upset Ext.P18 seniority list and issue Ext.P19. The learned Senior Counsel has alternatively submitted that the First Batch could take recourse to sit-back theory for their seniority remained unquestioned for long. And they have acquired a vested right that cannot be easily interfered with. To support his contention, the learned Senior Counsel has relied on a plethora of precedents, which we will refer to at an appropriate stage.

The Governments and the Boards:

36. Both the learned Government Pleader and the Standing Counsel of the Board submitted that the Board had earlier rejected the First Batchs repeated requests to have their seniority with effect from the date their names had been included in Exts.P2 and P3 and P4 lists-that is, 19.10.2001, 30.04.2002 and 01.06.2002, respectively. They further maintained that the Board had issued a circular, dated 17.05.12004, inviting applications from among the qualified personals on or before 10.06.2004, but not to act upon Exts. P2, P3 and P4 lists.

37. Drawing our attention to Ext. P10 judgment, they contend that it has only held that the persons included in Exts.P3 and P4 select list shall be considered eligible and qualified for appointment against the 10% vacancies fell vacant before 31.01.2005, provided these lists are otherwise valid and operative. According to the learned counsel, the First Batchs effort to claim seniority from the date of Exts. P2 to P4 is sheer abuse of process of law. They have further asserted that in Ext.P10 judgment, the First Batchs eligibility and entitlement alone were decided. And the Court did not, the counsel further pointed out, hold that they are entitled for promotion or appointment before 15.06.2004. So, to conclude, both the counsel have argued that when the First Batch cannot have any right to be appointed with effect from the date of Exts. P3 and P4, any person included in Ext.P2 to P4 lists cannot even remotely claim appointment with effect from those dates.

Discussion:

Review in Review:

38. Procedurally, appeal and revision are cognate concepts; they revisit a judicial decision. The similarity ends there. In appeal, the impugned judgment is looked through; in revision, it is looked at. The former concerns the process and substance; the later, the process alone.

39. Limited in its scope, ambit, and application, a review petition, as a device for error correction, faces severe restrictions. Merit of the matter is the last thing it deals with. It is more to correct the errors committed by the court or to prevent miscarriage of justice, when it is so apparent and otherwise invidious to be left uncorrected, than to reassess a proposition of fact or law. As a court of plenary jurisdiction, the High Court can review its judgment is rendered under Article 226. In Shivdeo Singh v. State of Punjab, , (1963) AIR(Supreme Court) 1909 the oft-quoted judgment, a constitution Bench of the Supreme Court has held that there is nothing in Art. 226 of the Constitution to preclude a High Court from exercising the power of review, which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it.

40. But there are definitive limits, observes the Supreme Court in Aribam Tuleshwar Sharma vs. Aribam Pishak Sharma, (1979) 4 SCC 389 [LQ/SC/1979/73] to the courts exercising the power of review. It may be exercised on the courts discovering "new and important matter or evidence" which, despite diligence effort, "was not within the knowledge of the person seeking the review or could not be produced by him" when the order was made. The power of review "may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground." But it may not be exercised claiming that the decision was erroneous on merits. In short, a review can correct a mistake apparent, but cannot substitute a view, which lies in the province of an appeal.

41. Order 47, Rule 1, read with Section 114, of CPC., contemplates three contingencies to review a judgment: (i) discovery of new and important matter or evidence, which was either unavailable or unknown, when the decree or order was passed; (ii) mistake or error apparent on the face of the record, and (iii) for "any other sufficient reason". In Moran Mar Basselios Cathlicos v. Mar Poulose Athanasius, (1954) AIR(Supreme Court) 526, the Supreme Court has interpreted "any other sufficient reason". It has held that "any other sufficient reason" cannot be "any sufficient reason", but a reason, which is "sufficient" and, at the same time, at least, "analogous" to one of the two reasons; that is (i) discovery of new and important matter or evidence or (ii) mistake or error apparent on the face of the record.

42. To sum up, we may say the courts, through a catena of cases, have crystalized the principles of review: (a) that the power of review is a creation of statute and not an inherent power, (b) that no power of review can be exercised if not given to a court or tribunal either specifically or by necessary implication; and (c) that under the guise of review jurisdiction, merit of a decision cannot be examined. Indeed, the additional principle is that an act of the court shall prejudice none (actus curiae neminem gravabit) . If a courts inadvertent errors affects a party and makes him suffer, then the court, as of duty, will review its decision.

43. In the High Court of judicature at Patna v. Rakesh Kumar, relied on by the review petitioners, a full bench of the Patna High Court has dealt at length with the nuances of a review petition.

44. In a case involving public property worth a hundred crore, directed to be returned to the owner a half-century after it had been acquired, Government fought the case up to the Supreme Court. All its proceedings against the judgment in the writ petition-a writ appeal, a review petition, an SLP, and a review petition in SLP-stood dismissed. Later, it came up with a second review petition before the High Court claiming that it had unearthed fresh material. Other respondents and a third party, too, filed writ appeals. The successful writ petitioners frontally attacked both the second review petition and the appeals: that neither is maintainable. We will consider only the review petition.

45. The Division Bench of the Madras High Court, in Tamil Nadu Arasu Kooturuvuthurai Paniyalargal Sangam v. M.R. Srinivasan, (2015) 7 M.L.J 49 has maintained a distinction between (i) an application for a review of an order passed on a review application and (ii) a second application for a review of the original order. It has held that "what is prohibited by law is only an application for a review of an order passed on a review application and not a second application for a review of the original order."

46. We may, as well, examine Order 47 Rule 9 of the Code: "No application to review an order made on an application for a review or a decree or order passed or made on a review shall be entertained." But conspicuously, Order 47 Rule 9 does not deal with a second application for a review of the original decree or order. A Division Bench of the Calcutta High Court, interpreting an analogous provision under the old Code, has held in Gobinda Ram Mondal v. Bholanath Bhatta, (1888) 15 ILR(Calcutta) 432 that if the Legislature wanted to prohibit a second application for review, they would have said "no second application for a review shall be entertained."

47. Besides referring to all the above cases, M.R. Srinivasan has, however, held that the Court cannot import, wholesale, the Code of Civil Procedure to determine the procedural parameters under Article 226 of the Constitution-the extraordinary original jurisdiction.

48. In Kunhayammed v. State of Kerala, (2000) 6 SCC 359 [LQ/SC/2000/1013] relied on by the review petitioners, the issue is different: it concerns the doctrine of merger. A threeJudge Bench of the Supreme Court has held that a petition for leave to appeal to the Supreme Court "may be dismissed by a non-speaking order or by a speaking order. Whatever be the phraseology employed in the order of dismissal, if it is a non-speaking order, i.e. it does not assign reasons for dismissing the special leave petition, it would neither attract the doctrine of merger" to stand substituted for the order in issue. Nor would it be a declaration of law by the Supreme Court under Article 141 of the Constitution, for there is no law declared. "If the order of dismissal be supported by reasons, then also the doctrine of merger would not be attracted because the jurisdiction exercised was not an appellate jurisdiction but merely a discretionary jurisdiction refusing to grant leave to appeal."

49. Salutary is the Supreme Courts decision in Puran Singh v. State of Punjab, (1996) 2 SCC 205 [LQ/SC/1996/142] in which section 141 of CPC was considered. When a writ petition was taken up for hearing, the counsel appearing for one of the respondents informed the court that the respondent had died, but the petitioners did not bring his legal representative on record despite their knowing about the death. So he wanted the writ petition dismissed. The respondents took a plea that the procedural nitty-gritty of CPC, including Order 22, would not apply. The High Court dismissed the writ petition. And the Supreme Court affirmed the dismissal.

50. In that context, Puran Singh observes that on many questions, the provisions and procedures prescribed under the Code can be taken up as guide while exercising the power, for granting relief to persons, who have invoked the jurisdiction of the High Court. It has further observed that different provisions and procedures under the Code are based on wellrecognized principles for exercising discretionary power, and they are reasonable and rational. But in the end, the Court cautioned that overzealous adherence to procedural rigmarole delays the justice delivery, and concluded that High Court should be left to adopt its own procedure for granting relief to the persons concerned. The High Court is expected to adopt a procedure which can be held to be not only reasonable but also expeditious.

51. Puran Singh as the basis, we will examine whether these writ petitions are maintainable. W.A. No.2564 of 2005 and the two WPs-W.P. (C) No.33726 of 2005 and W.P. (C) No.33749 of 2005-were disposed of through a common judgment, dt.21.06.2007. Persons aggrieved filed three review petitions: R.P.No.902 of 2008, R.P.No.242 of 2008, and R.P.1099 of 2008. Consolidating all the three RPs, the Division Bench, through a common judgment, dt.17.06.2009, vacated the Courts earlier direction- that is, a direction to regularize the petitioners in W.P.(c) No.33726 of 2005 and 33749 of 2005. It also directed the Board to fill up those vacancies in accordance with law, in the light of the Rules then in force, by inviting fresh applications.

52. Then, review petitioners challenged the judgments, dt.17.06.2009, before the Supreme Court. But, by a common order, dt. 1.5.2017, the Supreme Court dismissed all the three SLPs. Now, the review petitioners came back full circle: they wanted to challenge the judgment, dt.17.06.2009 -that is, the judgment in review.

53. In these circumstances, what applies is the prohibition in Order 47, Rule of 9 of CPC, or in the well-recognized common law principles governing the discretionary jurisdiction: no application to review an order made on an application for a review shall be entertained. Therefore, we hold that all the three unnumbered re-review petitions must fail, and they failed.

Writ Appeal:

54. The first batch claims that it acquired graduation first and, thus, first became eligible to be appointed Assistant Engineers, in the 10% quota earmarked for the in-service candidates.

55. When the Board failed in WA No.2564 of 2005, then, the First Batch complained that Board did not comply with the judgment; they filed COC No. 1382 of 2005. In the meanwhile, employees from the Second Batch, too, got the same relief in their writ petitions: through Ext.P12 judgment. The Division Bench has, first, closed the contempt case as premature; it has, second, extended the benefit to the second batch, as well. The judgment, in fact, concludes:

"[l]ikewise, the reliefs prayed for in the connected writ petitions, also have to be deemed as granted in view of the circumstance that we have confirmed the judgment in WPC No.22628/2003. The effect of the judgment is that vacancies which had arisen up to 31.1.2005 are to be filled up by the method which was being followed till the introduction of G.O. (MS) No.2/05 PD dated 1.2.2005. Nothing stands in the way of this group of persons similarly situated like the petitioners being given regularisation from appropriate dates. In the aforesaid circumstances, the proceedings are closed.

56. Against the dismissal of WA No.2564 of 2005, the Government filed a review petition; it was allowed. The writ appeal was reviewed, but through Ext.P13, another Division Bench again dismissed the restored WA No.2564 of 2005. Once again, the first batch filed COC No.1170/2007, assailing the non-implementation of Ext. P10 judgment. Through Ext.P14 letter, dated 10.10.2007, the Board agreed to comply with the judgment; that is to regularize the services of all those who had been appointed provisionally. The Board did pass Ext.P15 order, regularizing the provisionally appointed Asst. Engineers.

57. Still dissatisfied, the first batch complained that they had not been given consequential benefits. So they had COC No. 1170 of 2007 re-opened. Faced once again with contempt, the Board undertook to pass appropriate orders within three months, assigning the first batchs seniority from the date the vacancy occurred. As a result, the Court closed the COC by Ext.P16 order, dt.12.02.2008, which reads:

Respondents shall pass orders assigning the date of effect of promotion to all the 66 persons included in annexure-IV, including the petitioners, within a period of three months from the date of receipt of a copy of this judgment. This shall be done in terms of the directions issued in annexure-I judgment.

58. As seen from developments in COC No.1170 of 2007, the Board did undertake before this Court to assign to the first batch seniority from the date the vacancies occurred. First, the Court did not give any such judicial direction; second, any direction given in a contempt case-which is quasi- criminal and non-adversarial-cannot travel beyond the judgment out of which the contempt arose. Further, the second batch pleads that through order, dated 7.4.2008, in R.P.No. 427/2008 in I.A.No. 678/2007, in Contempt Case No. 1170/2007, this Court seems to have clarified that direction in paragraph 5 of Ext. P16 order (extracted above) was essentially based on the submission made by the Board. It was not, the Court further said, intended to convey the Courts approval.

59. Six months after Ext.P16, the Board issued Ext.P17. After referring to the interlocutory application in the contempt case and the Courts order in that IA, the Board agreed to give "retrospective effective to regularization." The second batch employees interim applications in WP(C) No. 33726/2005 and in WP (C) No. 33749/2005, requesting the Court to clarify that "the respondents are bound to promote the petitioners, who are covered by the above two judgments, at least with effect from the date they were promoted in the said post viz.15.06.2004."

60. This Court, by an order, dated 30.11.2007, not only allowed the IAs, but further declared that the second batch employees, too, are entitled to be regularized with retrospective effect; that is, from the dates the vacancies occurred. The order, dated 30.11.2007, not complied with, the second batch filed COC No. 658 of 2008; the Board undertook to implement the order in eight weeks. So the Court closed the contempt case.

61. By order, B.O.(CM) No. 2090/2008 (LAS 1/9147/2005) , dated 22.8.2008, the Board gave retrospective effect to regularization. To give effect to this retrospective regularization, the board issued Ext. P18. The board, rightly, felt that, to have retrospective promotion, many promoted employees had not been born in the cadre by the date the vacancies arose. Yet citing various directions of this court, it let the promoted employees have retrospective seniority from the date of the vacancy rather than from the date they joined the service. Accordingly, it annexed to Ext.P18 lists of candidates who had the qualification by the date the vacancy arose and those who had not: 66 got the benefit and 21 faced reversion.

62. To put it explicitly, the Board took into account this Courts judgment, dated 21st June, 2005. As the Board was permitted to adopt new recruitment policy from 31st January 2005, it identified the vacancies available till then-66 posts- and regularized the initially appointed candidates.

63. Given the Boards stand on Ext. P18, it is apposite to observe that at no point of time did the Court judicially mandate that the retrospectivity must be from the date the vacancies arose. On the contrary, in a couple of contempt petitions, the Court only recorded the Boards willingness to do so. Retrospective seniority has neither statutory support nor judicial imprimatur. So we cannot say that Exts.P3 & P4 lists the Board prepared earlier should be reckoned for determining the seniority.

64. On 6th January 2016 the board issued fresh proceedings (Ext. P19) , proposing to determine the seniority as per Board order, dated 12 February 1999. That order mandates that the seniority must be based on the length of service in the feeder category. The board in Ext. P19 did assert that earlier the board did not assign any seniority; it only appointed and regularized the services under 10% quota as per the court directions.

65. Ext. P 19 explicitly spells out thus:

As the seniority of the candidates in the order, dated 17 September 2008, has not been assigned so far, their gradation list is yet to be prepared. This has affected the preparation of gradation list of even the subsequently recruited candidates under 10% quota. The gradation list is essential for considering their promotions in future.

To overcome the above unpleasant situation, it has been decided to assign seniority of candidates figured in the order, dated 17 September 2008, prepared on the basis of the length of service as stipulated in the board order, dated 12 February 1999, conditionally, subject to the outcome of the judgement in the various SLPs pending before the Honble Supreme Court. As such the candidates figured in the order dated 17th September to the innate or arranged in the seniority as shown in the annexure appended.

66. The list of seniority appended to Ext. P19 showed the employees of the second batch above those of the first batch, for they have more length of service in the feeder category, though they acquired the qualification-B. Tech-later.

67. When the vacancies initially arose, only the First Batch employees had the qualification. Yet there was a long-drawn legal battle about how the recruitment should take place. This Court, as seen above, held that filling up the vacancies through PSC must be prospective and that the then existing vacancies must be filled through the existing recruitment policy. That is, the Board must by itself fill the vacancies. By the time the dispute was resolved, the Second Batch employees, too, acquired the qualification.

68. The First Batch wanted the Court to quash Ext.P19 order and the seniority list appended to it.

69. First, M. Girish and N. Muraleedharan of the First Batch filed WP (C) No.15208 of 2011. They claimed that the Boards order, dt.22.08.2008, the Chief Engineer, while issuing order, dt.17.09.2008, did not grant monetary benefits, as a consequence to their appointment with effect from 15.06.2004. They also claimed that their appointment must have been retrospective from 01.06.2002, when Ext.P2 list of eligible candidates was prepared. A learned Single Judge, through Judgment, dt.25.07.2013, rejected that plea: "The Board did not opt to appoint the petitioners from 1.6.2002; I do not think that petitioners can make a claim for regular appointment from the said date, as they have not worked during that relevant time."

70. Later, 16 employees of the First Batch-M. Ampily and others- filed WP (C) No.5312 of 2014 claiming retrospective seniority, from the date the Board prepared the lists of eligible candidates. A learned Single Judge in Ext. R3(r) judgment, dt.26.09.2016, has held that they had initially been appointed temporarily and their regularization, including seniority, must be only from the date they had been appointed. The Court has held thus:

In the instant case, since it was a direct recruitment and the petitioners were temporarily appointed as Asst. Engineers only with effect from 15.6.2004, regularisation of their appointment could only have been with effect from the said date, viz.15.06.2004, and not earlier. I also find that the specific prayer of the petitioners for treating the regularisation of their appointment as Assistant Engineers, with effect from the date of arising of vacancies in the cadre of Asst. Engineers, was rejected by this Court in Ext.P8 judgment. Under the said circumstances, the petitioners cannot be heard to urge the said prayer again, in the present writ petition.

71. Third in the series is W.P. (C) No.3655 of 2016, which has generated the impugned judgment. Swapna S. and Balachandran P., of the First Batch, filed that writ petition. They are, in fact, petitioners 15 and 16 in WP (C) No.5312 of 2014.

The Findings in the Impugned Judgment (WP (C) No.3655 of 2016) :

72. The learned Single Judge has held that the Board has assigned no reasons why it revised Ext.P18 seniority list and, thereafter, why it issued the Ext.P19 revised seniority list-after eight long years. So the impugned judgment holds that the petitioners, of the First Batch, "are entitled to seniority over the contesting respondents and persons like them, who were not included in the said lists and who had been appointed only on provisional basis to fill up the vacancies in existence at the relevant time. Ext.P19 is, therefore, quashed. The judgment further holds:

"The petitioners shall be entitled to rank and seniority by virtue of their inclusion in Ext.P3 and P4 lists, and on the basis of law declared in Ext.P10 judgment and confirmed in Ext.P13.

73. Indeed, both Swapna and Balachandran were parties-Petitioners 15 and 16-in WP (C) No.5312 of 2014. In that writ petition, too, they claimed retrospective seniority-the changed phraseology in the next writ petition (WP (C) No.3655 of 2016) notwithstanding. In the former writ petition the judgment was rendered on 26.09.2016. Ext.P19, assailed in the latter writ petition, was issued on 06.01.2016. That is, all the petitioners, including Swapna and Balachandran, in WP (C) No.5312 of 2014 were aware of Ext.P19 by the time that writ petition was disposed of. Yet they did not bother to bring Ext.P19 to the Courts notice, leave alone challenging it.

74. Startling is the fact that in WP (C) No.3655 of 2016, Swapna and Balachandran did not plead about WP (C) No.5312 of 2014, though it is a very material fact; it has an absolute bearing on the subsequent proceedings.

75. Now, we may examine the issues that arise out of these jumble of judicial proceedings:

(1) Should the seniority be reckoned from the date the "select list" was prepared or from the date the appointment actually took place

(2) Is First Batch employees seniority saved by the Sit-Back theory

(3) Does the doctrine of res judicata affect WP (C) No.3655 of 2016, because the earlier WP (C) No.5312 of 2014, in which similar relief was sought, was filed by the same petitioners along with some others

(4) Does WP (C) No.3655 of 2016 suffer from the vice of supressing the material facts

Now, we may examine the above questions:

(1) Should the seniority be reckoned from the date the "select list" was prepared or from the date the appointment actually took place

76. Indeed, the Board prepared Ext.P3 to P4 select lists in June 2002. By then, only the First Batch employees alone possessed degrees in Engineering. But, no appointments took place. By June 2004, when the appointments took place, even the Second Batch employees acquired qualification. From the facts pleaded two factors emerge: (1) that when the vacancies arose and when the Exts.P3 & P4 select lists were prepared, the Second Batch employees were not qualified; (2) but by the time the Board appointed the Asst. Engineers temporarily in 10% quota, the Second Batch employees were qualified and were appointed along with the First Batch employees.

77. The Board Order, dt.12.02.1999, mentioned in Ext.P19 and not doubted by the First Batch, mandates that seniority must be determined by the length of service in the feeder category-but not by the date an employee acquired the qualification. First, any in-service candidate, unmindful of the cadre he occupies, can apply for direct recruitment under 10% quota. By the date the candidate was considered, he must possess the qualification.

78. Here, vacancies arose long back, and the Board proposed to fill them in 2002. It could not do so. The actual appointments took place, though temporarily, in June 2004. If we reckon the seniority from the date the select lists was prepared-rather than from the date of actual appointment-we must assign seniority to candidates for the period they had not been borne in the cadre. We will examine the legal position. Seniority in the Promotional Posts: Should it be from the date of vacancy or from the date of actual promotion

79. In Union of Inida v. K.K. Vadera, (1989) Supp2 SCC 625 the Supreme Court has held that after a post falls vacant for any reason whatsoever, a promotion to that post-unless there exist any contrary rules-should be from the date the promotion is granted, but not from the date the post falls vacant.

80. In Pawan Pratap Singh v. Reevan Singh, (2011) 3 SCC 267 [LQ/SC/2011/236] the Apex Court has held that the inter se seniority in service must be determined as per the service rules. "The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority between one officer and another or between one group of officers and another group recruited from different sources. Any departure from this principle-by statutory rules, executive instructions, or otherwise-must fall foul of Articles 14 and 16 of the Constitution. It has further held that "the seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant service rules." It is so because seniority cannot be given on retrospective basis when an employee has not even been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime.

81. Pithily put, a person cannot claim promotion "from date of occurrence of vacancy, but can only get promotion and seniority from time he has been substantially appointed as no retrospective effect can be given to order of appointment." K.V. Subba Rao v. Government of AP, (1988) 2 SCR 1118 [LQ/SC/1988/142] ; Smt. M. Nirmala v. State of AP, (1987) 1 LLJ 4; Sanjay K. Sinha-II v. State of Bihar, (2004) AIR(Supreme Court) 3460; State of Uttaranchal v. Dinesh Kumar Sharma, (2007) 1 SCC 683 [LQ/SC/2006/1210] .

82. After referring to many of the above decisions, recently the Supreme Court in Union of India v. N.C. Murali, (2017) AIR(Supreme Court) 1496 has held that "unless there is a specific rule entitling the applicants to receive promotion from the date of occurrence of vacancy, the right of promotion does not crystallize on the date of occurrence of vacancy and the promotion is to be extended on the date when it is actually effected."

83. So the legal position is unmistakable: an employee gets seniority from the time he has been substantially appointed, for no retrospective effect can be given to order of appointment.

84. That apart, the issue whether the First Batch should get their seniority from June 2002 stood answered earlier in two writ petitions: WP (C) No.15208 of 2011 and WP (C) No.5312 of 2014. Both rejected the claim for retrospective seniority. We will address them later in detail. (2) Is First Batch employees seniority saved by the Sit-Back theory

85. The impugned judgment finds that the Board has assigned no reasons why it revised Ext.P18 seniority list and, thereafter, why it issued the Ext.P19 revised seniority list-after eight long years. In a sense, the judgment applied the Sit-Back Theory. And, as an alternative plea, the learned Senior Counsel for the First Batch has latched on to this theory. Let it be examined.

Sit-Back Theory:

86. Sit-Back Theory seems to be the administrative counter part to an analogous judicial assertion: stare decisis. As a precedential principle, courts in common law countries "stand by things decided." Stare decisis "promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process." Payne v. Tennessee, 1991 501 US 808, 827 , as quoted in Alleyne v. United States, 2013 570 US.

A benefit of this rigidity is that a court need not continuously re-evaluate the legal underpinnings of past decisions and accepted doctrines. So shall be the administrative attitude about the decisions taken long back and remained unquestioned until much later.

87. Viewed from another perspective, if an affected employee remains indolent and lets another employee enjoy what could have been his service benefit-be it appointment, seniority, or promotion-he cannot belatedly assail that otherwise bona fide administrative lapse. His conduct, therefore, suffers from the vice of laches.

88. Each person ought to be entitled to sit back and consider that his appointment and promotion effected a long time ago would not be set aside after a lapse of several years., Rabindra Nath Bose v. Union of India, (1970) AIR(Supreme Court) 470.

When a person was permitted to function for over 13 years as Secretary of a Bank, the Supreme Court observed in Nayagarh Cooperative Central Bank Ltd. v. Narayan Rath, (1977) 3 SCC 576 [LQ/SC/1976/197] it was "not open for the Registrar to set aside the same on the ground that he was not qualified for the said post at the time of promotion." Indeed, the Supreme Court has employed the Sit Back theory unfailing regularity and refused to unsettle things settled long back or to deprive the employees of their longheld vested rights., Amrit Lal Berry v. Collector of Central Excise, (1975) 4 SCC 714 [LQ/SC/1974/406] ; R.S. Makashi v. I.M. Menon, (1982) 1 SCC 379 [LQ/SC/1981/448] ; K.R. Mudgal v. R.P. Singh, (1986) 4 SCC 531 [LQ/SC/1986/373] ; B.S. Bajwa v. State of Punjab, (1998) 2 SCC 523 [LQ/SC/1997/1667] ; Indian Drugs and Pharmaceuticals Ltd. v. Workmen, (2007) 1 SCC 408 [LQ/SC/2006/1115] ; and Government of Karnataka v. Gowramma, (2008) AIR(Supreme Court) 863.

89. A Full Bench of this Court in Sreedharan Pillai v. State of Kerala, 1973 Kerala Law Times 151 has observed that it is neither just nor equitable to deprive persons promoted many years ago of their accrued rights regarding their rank and seniority. In other words, employees long-held rights or benefits cannot be reviewed, much less interfered with, after lapse of many years.

90. In Rajalekshmi v. State of Kerala, 1992 1 Kerala Law Times 458 this Court did not interfere with the promotion granted to the petitioner for she had continued in the promoted post for more than 10 years. To the same effect is another decision of this Court: in Mohanan v. State of Kerala, (2002) 1 Kerala Law Times 708.

A learned Single Judge has observed that the appointing authority can review within reasonable time the appointments already if he finds them to have been made by mistake. That power of reviewing administrative decisions cannot be used to unsettle the employees vested rights.

91. Another Full Bench of this Court in Sajeeve, N.J. vs. Union of India has held that the court should be wary in countenancing a contention which, if accepted, would result in overturning seniority positions of long standing. Essentially, the doctrine of sit back would apply both in cases where challenge against settled positions are mounted belatedly and in cases where the challenge to administrative actions overturning settled seniority positions are sought to be defended.

How Much Delay Is Fatal

92. Granted, the question of delay in asserting a right or questioning a deprivation is relative. We cannot have, as it were, a straight jacket formula. More than the length of the delay, the circumstances of delay may play a vital role. The length of delay proving fatal in one case may not prove so in another.

93. In Dayaram Asanand v. State of Maharashtra, (1984) AIR(Supreme Court) 850 while re-iterating a similar view, the Supreme Court has held that "in the absence of any satisfactory explanation for inordinate delay of 8-9 years in questioning under Article 226 of the Constitution, the validity of the seniority and promotion assigned to other employee could not be entertained." In P.S. Sadasivaswamy v. State of Tamil Nadu, (1974) AIR(Supreme Court) 2271 the Court considered 14 years delay in challenging a promotion. The Court, in reference to the facts of that case, has observed that a person aggrieved by an order promoting a junior over his head "should approach the Court at least within 6 months or at the most a year of such promotion." Sadasivaswamy, however, cautions that "it was not that there was any period of limitation for the Courts to exercise their powers under Article 226, nor was it that there could never be a case where the Courts cannot interfere in a matter after certain length of time" (italics supplied) . It would be a sound and wise exercise of jurisdiction for the Courts to refuse to exercise their extra ordinary powers under Article 226 in favour of persons who do not approach it expeditiously but, instead, standby and allow things to happen. Stale claims cannot unsettle settled matters.

94. Dr. B. S. Chouhan, J., has examined, as is his Lordships wont, a profusion of precedents and spoke for the Division Bench of the Supreme Court in Shiba Shankar Mohapatra v. State of Orissa., (2010) AIR(Supreme Court) 706 His Lordship has held that once the seniority has been fixed and it exists for a reasonable period, any challenge to it should not be entertained. At any rate, Shiba Shankar Mohapatra holds that 3-4 years as a reasonable period for challenging the seniority. And if someone agitates the issue of seniority beyond this period, he must explain the delay and laches in approaching the adjudicatory forum, by furnishing satisfactory explanation. To apply the Sit-Back Theory, is there a valid Seniority List

95. To apply the sit-back theory, first, there ought to be a valid seniority list; second, it ought to have remained unchallenged for a considerable period. For preparing and publishing a seniority list or gradation list, if there are any statutory provisions or service regulations, they ought to be followed. Even in the absence of either, a fair policy and transparent procedure must be adopted. The whole process is premised on letting the affected persons know about their seniority and allowing them to object to it before it becomes final.

96. First, the employer must prepare a gradation list and circulate it to the employees concerned, to enable them to file their objections, if any, within reasonable time. Next, the employer must consider the objections raised by the affected persons. Finally, the employer can publish the final gradation list. The courts have often held that no relevance can be placed on a gradation list unless it is circulated, and objections are invited from the affected persons, that being the rule of practice inspired by the principles of natural justice. Must be prepared and circulated to the employees concerned.

97. Here, Ext. P18 can hardly be called a seniority list. It was prepared in September 2008. Granted, Balachandran and Swapna were shown at serial number 17 and 21 respectively, way above the second batch of employees. But the Board does not seem to have acted on Ext. P 18, because it extended no benefit to the First Batch beyond the actual date of appointment. Indeed, when the First Batch questioned the Boards refusal to extend service benefits to them, from the date the select list was prepared, this Court consistently rejected the First Batchs claim.

98. Further Ext. P18 proceeds on the premise that the seniority was assigned based on this Courts directive. As we have already discussed, this Court has never directed the Board to assign particular seniority to the First Batch, at the expense of the second batch. On the contrary, it has directed the Board to consider the employees claim for appointment in accordance with law. When the Second Batch joined the fray, it extended the same benefit to them, too.

99. Ext. P18 does reveal that this order was displayed in the notice board. From that, however, we cannot conclude that the Board treated it as a draft seniority list; nor has the Board circulated it among the employees and invited their objections. In the absence of this exercise, Ext. P 18 gains no acceptance as "final seniority-list".

100. Once we accept this proposition, we must also compel ourselves to conclude that the First Batch, by no means, can take recourse to the sitback theory.

(3) Does the doctrine of res judicata affect WP (C) No.3655 of 2016, because the earlier WP (C) No.5312 of 2014, in which similar relief was sought, was filed by the same petitioners along with some others

101. Sixteen employees of the First Batch filed WPC No. 5312 of 2014. Later two out of the 16 filed WPC No. 3655 of 2016. In both cases, seniority is an essential issue; the parties, too, are either the same or similarly placed. True, Ext. P 19 did not exist when WPC No. 5312 of 2014 was filed; so the petitioners in the next writ petition could safely - albeit technically - assert that what was challenged in WPC No. 3655 of 2016 is entirely new.

102. Attractive is the submission, and deceptive too. The judgment in WPC No. 5312 of 2014 was rendered on 26 September 2016, whereas Ext. P19 was brought out on 6.1.2016. Therefore, the petitioners in the first writ petition were well aware of this development, but could not placed before the court, as a subsequent development affecting their rights.

103. Even otherwise, the first batch wanted this court to quash Ext. P19 because it deprives them seniority from the date Ext. P3 and Ext. P4 select lists were prepared. Nevertheless, this court and two occasions rejected the first batchs claim to seniority on the strength of Ext. P3 and P4. Pertinently, the same parties that suffered rejection in WPC No. 5312 of 2014 filed WPC No. 3655 of 2014.

Finality of Issue: Res Judicata or Issue Estoppel:

104. An adjudication is conclusive and final, observes the Supreme Court in Home Plantations Ltv. v. Talaku Land Board, Peermada, (1999) 5 SCC 590 [LQ/SC/1998/1064] 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 matter of claim or defence. 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.

105. Home Plantations further observes that the principles of estoppel and res judicata are based on public policy and justice. Doctrine of res judicata is often treated as a branch of the law of estoppel though these two doctrines differ in some essential particulars. Rule of res judicata prevents the parties to a judicial determination from litigating the same question over and over again even though the determination may even be demonstrably wrong. When the proceedings have attained finality, parties are bound by the judgment and are estopped from questioning it. They cannot litigate again on the same cause of action nor can they litigate any issue which was necessary for decision in the earlier litigation. These two aspects are "cause of action estoppel" and "issue estoppel". Once an issue has been finally determined, parties cannot subsequently in the same suit advance arguments or adduce further evidence directed to showing that the issue was wrongly determined. Their only remedy is to approach the higher forum if available. The determination of the issue between the parties gives rise to, as noted above, an issue estoppel. It operates in any subsequent proceedings in the same suit in which the issue had been determined. It also operates in subsequent suits between the same parties in which the same issue arises.

106. There is a distinction between issue estoppel and res judicata, notes the Supreme Court in Bhanu Kumar Jain v. Archana Kumar, (2005) AIR(Supreme Court) 626.

Res judicata debars a court from exercising its jurisdiction to determine the lis if it has attained finality between the parties whereas the doctrine issue estoppel is invoked against the party. If such an issue is decided against him, he would be estopped from raising the same in the latter proceeding. The doctrine of res-judicata creates a different kind of estoppel viz Estoppel By Accord., See Thoday v. Thoday, (1964) 1 AllER 341.

107. A cause of action estoppel, however, arises where in two different proceedings identical issues are raised, in which event, the latter proceedings between the same parties shall be dealt with similarly as was done in the previous proceedings. In such an event the bar is absolute in relation to all points decided save and except allegation of fraud and collusion., C. (a minor) v. Hackney London Borough Council, (1996) 1 AllER 973, as quoted in Swamy Atmananda v. Sri Ramakrishna Tapovanam, (2005) 4 Scale 116.

108. Here, whether it is question of res judicata or issue estoppel, first, 16 employees of the First Batch filed WPC No. 5312 of 2014. Later two out of the 16 filed WPC No. 3655 of 2016. In both cases, seniority is an essential issue; the parties, too, are either the same or similarly placed. Even Ext.P19 was available by the time former writ was decided. All through, the First Batchs consistent claim was to gain seniority based on Exts.P3 & P4 lists, and this claim has met with repeated refusal, both in the hands of the Board and the Court, too. So we conclude the impugned judgment suffers from the vice of res judicata or issue estoppel.

(4) Does WP (C) No.3655 of 2016 suffer from the vice of suppressing the material facts

109. Sixteen employees of the First Batch filed WPC No. 5312 of 2014. Later two out of the 16 filed WPC No. 3655 of 2016. In both cases, seniority is an essential issue. Barring a challenge to Ext.P19, the rest of the contentions in both the writ petitions remain the same. Both the writ petitions tried to justify the First Batchs claim for seniority essentially relying on Exts.P3 & P4.

110. Had the petitioners pleaded about WP (C) No.5312 of 2014 and about their being part of the earlier writ petition, the learned Single Judge may have considered the case comprehensively, with due regard to the findings in the fromer writ petition.

111. Constitutional adjudication under Article 226 is equitable; judicial review is not an appeal in disguise. The Courts discretion in granting relief in writ petitions counters very few constraints. The conduct of the parity, the disclosure of the details, and the nature of grievance go a long way in enabling the Court to exercise its discretion in a right direction. It brooks no contradiction that a writ petition is essentially an exercise in equity. And the suitor coming to the court with clean hands is a sine qua non. Suppression of material facts, trite to observe, sounds the death knell of any writ petition. Martins is no exception.

112. We may, here, provide sufficient latitude to the petitioners in WP (C) No.3655 of 2016 and decide what amounts to a material fact and what amounts to suppression. Material fact, as defined by the Blacks Law Dictionary (7th Edn.) , is a fact that is significant or essential to the issue or matter at hand. In Ram Dhan v. State of U.P., (2012) 5 SCC 536 [LQ/SC/2012/361] the Supreme Court has held that filing of successive petitions before the court amounts to abuse of the process of the court. More particularly, if the party fails--rather suppresses-- to inform the court about the previous litigation to which he or she is party, it compounds the crime, the crime of abusing the process of court and polluting the stream of justice, so to say.

113. Here, we reckon that the petitioners are guilty of suppression of a material fact. Indeed, the rival party may have been aware of the previous litigation and even may have brought it to the courts notice. But that does not absolve the suitor of his primary obligation to the Court: to make a clean breast of the whole issue and hide nothing from the judicial gaze, under whatever pretext. If the justification is technical, the adjudication, of an equity court, can be hyper technical.

114. So we conclude that the respondents 1 and 2 are guilty of suppressing the material facts, as well.

Conclude:

(1) The unnumbered review petitions are not maintainable.

(2) The seniority must be reckoned from the date the appointments were made.

(3) Here, Sit-Back theory does not apply.

(4) WP (C) No.3655 of 2016 is hit by res judicata/issue estoppel.

(5) The writ petition also suffers from the vice of suppressing the material facts.

As a result, we allow the writ appeal with costs quantified at Rs.10, 000/- payable to the appellant: we set aside the impugned judgment, dt.20.01.2017, and dismiss W.P. (C) No.3655 of 2016, as devoid of merit.