w w w . L a w y e r S e r v i c e s . i n



Dr. Sunilkumar Biradar v/s The State of Karnataka, Rep. by its Secretary, Medical Education Department of Health & Family Welfare Services, Bengaluru & Others


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    Writ Appeal No.100040 of 2016 (S-RES)

    Decided On, 07 December 2020

    At, High Court of Karnataka Circuit Bench At Dharwad

    By, THE HONOURABLE MR. JUSTICE G. NARENDAR & THE HONOURABLE MR. JUSTICE M.I. ARUN

    For the Appellant: P.S. Rajgopal, Sr. Advocate, Sadiq N. Goodwala, Advocate. For the Respondents: R1, G.K. Hiregoudar, Prl. G.A., R2, T. Avin, Vidyashankar G. Dalwai, R3, M.S. Bhagawat, Aravind D. Kulkarni, Advocates.



Judgment Text

(Prayer: This Writ Appeal is filed Under Section 4 of the Karnataka High Court Act, 1961, praying to set aside the order dated 03.12.2015, passed by the learned Single Judge in W.P.No.66735/2010 (s) and accordingly to allow the writ petition filed by the appellant as prayed for.)G. Narendar, J.1. Aggrieved by the order dated 03.12.2015, passed in W.P.No.66735/2010, respondent No.3 therein has filed this appeal.2. The brief facts of the case are that on 10.07.2008, respondent No.2 - the Karnataka Institute of Medical Sciences (for short "the KIMS") issued a notification inviting the applications from the eligible candidates to participate in a walk-in-interview conducted for the post of "Assistant Professor" in the Forensic Department of the said institute. The interviews were held on 21/22.07.2008. The names of the appellant and respondent No.3 were published in the select list on 11.08.2008 for the said post. As per the select list, respondent No.3 had scored higher marks than the appellant. However, for the reasons best known to respondent No.2-KIMS, they immediately issued an order of appointment only in favour of the appellant and the appellant joined the services of respondent No.2 as an Assistant Professor on 18.08.2008. But respondent No.2 did not issue an appointment order to respondent No.3. The ostensible reason being that, the 3rd respondent had not produced his "relieving letter" from his employer, which we will deal with later. Hence, respondent No.3 preferred W.P.No.11575/2008. In the said writ petition, respondent No.3 prayed for a direction to respondent No.2 herein to implement the select list dated 11.08.2008 and also place him above the appellant herein. Even before the first hearing of the said writ petition, the 2nd respondent-Institute issued a letter of appointment to the 3rd respondent i.e., the petitioner therein. Thereby virtually granting the main relief sought for in the writ petition and consequent upon which respondent No.3 herein withdrew the writ petition and he also joined the services of respondent No.2 herein as an Assistant Professor on 04.09.2008 after getting himself duly relieved from his erstwhile job. It is pertinent to note here itself the various dates in the writ petition. The date of filing of the writ petition, is 28.08.2008 and the date of appointment order is 30.08.2008 and the withdrawal of the petition is on 01.09.2008, that is, the date on which the petition was first listed before the High Court and the date of joining is 04.09.2008.3. On the ground that respondent No3 joined the post of an Assistant Professor subsequent to the appellant, respondent No.2 has placed respondent No.3 below the appellant, in the order of seniority and has presently promoted the appellant. This is by proceedings subsequently drawn up.4. The 3rd respondent aggrieved by the action of respondent No.2 in placing the appellant above respondent No.3 in the order of seniority and offering him promotion as Associate Professor, respondent No.3 preferred writ petition No.66735/2010. The learned Single Judge, as he then was, after hearing the parties was pleased to allow the writ petition. The seniority list and promotion order has been set aside and respondent No.2 is directed to revise the seniority list and offer promotion accordingly. Aggrieved by the same, the appellant, who was respondent No.3 in the writ petition, has preferred this intra-Court appeal.5. The contention of the appellant is that the seniority of candidates has to be considered based upon the issuance of the order of appointment and the date of joining and in the instant case, the appellant has been issued an order of appointment and he has joined the post of Assistant Professor much earlier to that of respondent No.3. It is contended that the learned Single Judge erred in appreciating the relevant regulations and case laws in respect of the same and has erroneously allowed the writ petition.6. It is further contended that respondent No.3 filed W.P.No.11575/2008 when he was initially not appointed as Assistant Professor and in the said writ petition he not only sought appointment as an Assistant Professor, but also prayed for placing him above the appellant herein and upon him being issued the appointment order, which was subsequent to the appellant joining the services of respondent No.2, he withdrew the writ petition without insisting that the seniority be safe guarded and thereby it acts as res judicata and respondent No.3 cannot challenge the appellant being placed above him in the order of seniority. It is relevant to note that order of appointment does not stipulate against which vacancy the appellant is appointed.7. Per contra, it is contended by respondent No.3 that as per the relevant regulations to determine the seniority, what needs to be considered is only the selection list. That the select list is the touch-stone, upon which the order of seniority should be worked out. It is not in dispute that both the appellant and respondent No.3 were selected in the same selection list. As respondent No.3 was more meritorious than the appellant he was placed above the appellant in the selection list and respondent No.3 was always ready and willing to join the services of respondent No.2 at the earliest. That it was erroneous and illegal of respondent No.2 in not issuing him the appointment order immediately or along with the appellant, which constrained him to file the writ petition and even before the first hearing of the writ petition, the appointment order came to be issued and he withdrew the writ petition. The aspect of seniority, leave alone being decided in the said writ petition finally, it was not even heard. Hence, it does not amount to res judicata. Further, respondent No.2 is required to act in a lawful manner and thereby was expected to place respondent No.3 above the appellant. It, having failed to do so, he was constrained to file the present writ petition and the learned Single Judge has appreciated the relevant regulations in the proper perspective and allowed the writ petition. That there is no error in the order of the learned Single Judge and prayed for dismissal of the writ appeal.8. The learned Senior counsel for the appellant has taken this Court through the Rules 13, 15 and 19 of the Rule and Regulation (including By Laws) of Karnataka Institute of Medical Sciences, Hubli reads as under:"13) RECRUITMENT OF THE POST:i) The post may be filled up by invitation, Promotion or open advertisement or deputation from the State Govt. as deemed fit by the appointing authority. (In the K.I.M.S. Hubli bye laws, 1995 after clause () of bye law, item (14) the following note shall be inserted).NOTE: To provide more functional flexibility at all levels of the administration of the Institute all the vacant posts in all cadres shall be filled by promotion of the eligible and qualified persons absorbed from Govt. (As per GC. Resolution 4-2-97)ii) The Selection committee shall meet and examine the credentials of all the persons who are to be considered for the posts.iii) The committee shall prepare panel of names and recommend the name in order of merit.iv) When vacancy occurs in any posts owing to death, resignation or any other reason within 6 months of the incumbent jointing duty, the appointing authority can select the next candidates if any recommended by the committee.""15. APPOINTMENT DATE FROM WHICH APPOINTMENT TAKES EFFECT:All appointment shall take effect on the day of duty report of the officials.""19. SENIORITY:a. The Chief Administrative Officer shall prepare and maintain the Gradation list in respect of each of the categories and publish the same every year.b. The Seniority of the employees in each category shall be determined by the order of merit in which they were selected for appointment to the cadre in question subject wise in respect of teaching cadres. In respect of non-teaching staff cadre-wide seniority list will be prepared and published.c. Where two persons appointed on the same date, seniority between them shall be determined as follows:i. A member recruited by direct recruitment shall be senior to a member recruited otherwise;ii. In case of members appointed by promotion, seniority, shall be determined according to the seniority of such members in the cadre from which they are promoted;iii. In case of member appointed by promotion from different cadres, their seniority shall be determined according to scale of pay i.e., preference may be given to a persons drawing higher scale.iv. If the two members join on the same, their seniority in the selection list will be taken into consideration.d. In case of any dispute, the decision of the Governing council shall final."9. Admittedly, the appellant and respondent No.3 were selected in the same select list. Admittedly respondent No.3 is more meritorious than the appellant. Hence, in the selection list, respondent No.3 is placed above the appellant.10. However, as the appointment order was issued to the appellant earlier to respondent No.3, the appellant has joined the post of Assistant Professor prior to respondent No.3. Respondent No.3 challenged the act of respondent No.2 in not issuing the appointment order by filing a writ petition and though he had sought for a prayer to place him above the appellant herein in the writ petition, he withdrew the writ petition in the circumstances narrated supra and without insisting on it once the order of appointment was issued to him by respondent No.2.11. In the above background and facts and circumstances, the points that arise for determination are therefore:(i) Is the issuance of appointment order to respondent No.3 later than the issuance of the appointment order to the appellant justified?(ii) Does the joining of the appellant to duty, earlier in point of time, in the facts and circumstances of the case, confer any advantage on the appellant?12. At the out set we place reliance on the judgment of the Co-ordinate Bench of this Court in W.A.No.245/2006 (S-PRO), disposed of on 31st July 2006, while examining the relevant rules, regulations and bye-laws of respondent No.2-KIMS as it stood then while determining the issue of seniority, in paragraph Nos.6 and 7 of the judgment has held as under:"6. Bye-law 20 of the bye-laws of the Karnataka Institute of Medical Sciences, Hubli, reads thus:20) SENIORITYi) The Chief Administrative Officer shall prepare and maintain the Gradation list in respect of each of the categories and publish the same every year.ii) The Seniority of the employees in each category shall he determined by the order of merit in which they were selected for appointment to the cadre in question subject wise in respect of teaching cadres. In respect of non-teaching staff cadre-wide seniority list will be prepared and published.iii) Where two persons appointed on the same date, seniority between them shall be determined as follows:a) A member recruited by direct recruitment shall be senior to a member recruited otherwise:b) In case of members appointed by promotion, seniority shall be determined according to the seniority of such members in the cadre from which they are promoted;c) In case of members appointed by promotion from different cadres, their seniority shall he determined according to scale of pay i.e., preference may be given to a person drawing higher scale.d) If the two members join on the same day, their seniority in the selection list will be taken into consideration.iv) In case of any dispute, the decision of the Governing Council shall be final".Clause (ii) quoted above specifically stipulates that the seniority of the employees in each category shall be determined by the order of merit in which they were selected for appointment to the cadre in question subject-wise in respect of teaching cadres. Since the appellant and the third respondent were selected for appointment to the same cadre of Associate Professors and since the third respondent was ranked above the appellant in the selection list prepared by the Selection Committee, the third respondent is entitled to be treated as senior to the appellant. The above provision is in conformity with the general principles of service jurisprudence.7. It is true that as per clause (iii)(d) of bye-law 20, where two persons appointed on the same date join duty on the same date, their seniority in the selection list will be taken into consideration. This clause is not applicable or relevant in this case as the appellant and the third respondent though appointed on the same date, joined duty on different dates. But learned counsel for the appellant contends that as a corollary to the provision contained in clause (iii)(d) of bye-law 20, it must be understood that if two persons appointed on the same date, joined duty on different dates, the one who joined earlier should be treated as senior. We do not find any merit in this contention. No such inference can be drawn when the bye-laws do not specifically provide so and when such interference will be contrary to the specific provision contained in clause (ii) of bye-law 20. The above contention of the learned counsel for the appellant is contrary to what is provided in clause (ii) of bye-law 20. The contention is not acceptable for another reason also. If two persons are appointed on the same date and if they are given specific period for joining duty as is normally done and if they join duty within the period stipulated, the benefit of seniority provided in bye-law 20(ii) cannot be denied to the person ranked above in the select list, merely because, the person ranked below joins duty earlier due to fortuitous circumstances. The appellant has no case that the third respondent had not joined duty as Associate Professor within the period stipulated for joining duty."13. The Hon'ble Supreme Court in the case of P.Srinivas Vs. M. Radhakrishna Murthy and others reported in (2004) 2 SCC 459 in paragraph Nos.8 and 11 has held as follows:8. Learned counsel for the appellant with reference to the order of the Government of Andhra Pradesh pointed out that the State Government itself, in his case had granted time upto 31.1.1987 and, in fact, the appellant had joined admittedly even before that date. That being so, there was no question of appellant losing his seniority fixed initially based on merit ranking. In the present case the name of the appellant was not removed from the list. He was permitted to join by grant of further time and continued as senior to respondent no.1 as shown in various seniority lists, and there was no challenge to any of them, at the appropriate point of time. Admittedly, the appellant joined in the year 1987 and after more than a decade it was not open to respondent no.1 to question the propriety of the extension of time given by the State Government enabling the appellant to join within the extended time. The 1st respondent had no infeasible right to question the extension of time granted by the State Government and at any rate to question the same, at any time according to will and pleasure. The long lapse of time and laches on his part disentitles the 1st respondent to claim any such relief at the belated stage almost after a decade." And"11. It can be also looked at from another angle. The appellant was granted extension upto 31.7.1987 to join. It was open to the Service Commission or Government at that stage to direct removal of his name from the list of selected candidates. Neither the Commission nor the Government thought it appropriate to do so. On the other hand, the Government extended the joining period and the appellant joined the post. In several periodical seniority lists thereafter the appellant's name was placed higher than respondent no.1. For more than a decade, respondent no.1 did not question that position. After a very long period it was not open to respondent no.1 to turn around and say that the extension of time to the appellant was not in accordance with law. It is undisputed that both the appellant and respondent no.1 were selected in the same selection and the appellant was more meritorious in terms of marks secured by him in the selection process and ranked above the 1st respondent and the inter se ranking and consequent inter se seniority cannot be disturbed and rights flowing from such ranking cannot be denied merely because there was some delay in joining-all the more so when such delay was only of 8 days and also on account of getting relieved from the Central Government, for reasons beyond his control, which only seems to have weighed with the State Government to accord extension of time also. The High Court seems to have lost sight of the fact that it was not a case where reasons were absent in the order of the Government extending the joining time. On the contrary, the order itself indicates the reasons why the appellant had sought for extension. The Government taking note of the factual position highlighted therein had granted extension. The High Court has erroneously held that no reasons were indicated.(emphasis supplied by this Court)14. The Hon'ble Supreme Court in the case of Suresh Chandra Jha vs. State of Bihar and others reported in (2007) 1 SCC 405 in paragraph Nos.6, 7 and 8 has held as under:"6. There is no dispute that the appellant was ranked higher to respondent no.8. There is also no dispute that in the appointment letter the appellant was given six weeks time to join. Merely because respondent no.8 joined earlier that did not in any way affected the merit placement.7. This Court in Chairman, Puri Gramya Bank v. Ananda Chandra Das in 1994 (6) SCC 301 held as follows: (SCC p.301, para 2)"2. This appeal arises from the Judgment of the High Court of Orissa in O.J.C. No. 1007/88, dated March 4, 1992. The respondent and others were selected by direct recruitment as in the merit list. He was directed to be given seniority on the basis of the date of his reporting to duty. It is reported that the first respondent is dead. The only question in this- case is that what shall be the ranking among the direct recruits? Is it the date on which they joined duty or according to the ranking given by the selection board? On comparative evaluation of the respective merits of the candidates for direct recruitment, the Board has prepared the merit list on the basis of the ranking secured at the time of the selection. It is settled law that if more than one are selected, the seniority is as per ranking of the direct recruits subject to the adjustment of the candidates selected on applying the rule of reservation and the roster. By mere fortuitous chance of reporting to duty earlier would not alter the ranking given by the Selection Board and the arranged one as per roster. The High Court, is, therefore, wholly wrong in its conclusion that the seniority shall be determined on the basis of the joining reports given by the candidates selected for appointment by direct recruitment and length of service on its basis. The view, therefore, is wrong. However, we need not interfere with the order, since the first respondent has died."(Underlined * for emphasis)8. Since there was no rule in operation, obviously the ranking in the merit list was to decide the respective seniority. The ratio in Chairman, Puri Gramya Bank's case (supra) has full application to the facts of the case. Appellant's claim that he was to be treated as senior to the respondent no.8 was rightly accepted by learned Single Judge. Unfortunately, the Division Bench did not address itself to the specific question and has placed undue stress on the respondent no.8 having joined earlier."15. The Hon'ble Supreme Court in the case of Dharmendra Prasad and Others Vs. Sunil Kumar and Others reported in (2020) 2 SCC under:"17. We find that the method of giving appointment to the senior most person of each category is only a fortuitus circumstance as such appointments were made dehors the merit. Regulation 20 mandates the appointing authority to make the appointments from amongst the candidates in order in which they stand in the list prepared under Regulations 16(2), 17 or 18. Any appointment made by the Nigam in contravention of the statutory Regulations cannot defeat the rights of the appellants only because they have not challenged the appointment of their juniors at an earlier point of time. Regulation 23 provides that seniority of persons appointed in any branch of service shall be made as per substantive appointment. The appointment in Regulation 23 has to be mandating the manner of appointment. Therefore, irrespective of the date of appointment, the seniority has to be fixed as per the merit of the candidates determined by the Selection Committee.18. However, we find that Regulation 6 itself contemplated that reservation of candidates belonging to SC, ST, Backward Classes and the candidates of other categories shall be in accordance with the orders of the Government in force at the time of recruitment. In terms of such Regulations, the Government order dated 31st August, 2001 becomes applicable to determine the extent of reservation which includes the method of determining seniority as well. Apart from the statutory Regulation 6, even the approval of the State Government to fill up 88 posts specifically mentions that the reservation shall be made as per the 100 points roster as prescribed in the Circular dated 31st August, 2001. Admittedly, the seniority has not been framed keeping in view the roster circulated on 31st August, 2001.19. We do not find any merit in the argument raised by the State that the seniority has to be fixed as per Rule 5 of the Uttarakhand Government Servant Seniority Service Rules, 2002. Such Rules were not adopted to be applicable to the Nigam. The Rules were approved by the Board of the Nigam on 24th September, 2007 proposing that the provision shall be made in the proposed service regulations but the Rules were made applicable in the year 2011 only. Such is the finding recorded by the High Court which is not disputed by the appellants or by the writ petitioners. Such Rules have been framed under the proviso to Article 309 of the Constitution and they are not applicable to a creation under a Statute. These Rules are applicable to government servants in respect of whose recruitment and condition of service Rules may be or have been made by the Government under the proviso to Article 309 of the Constitution. Since the employees of the Nigam are not government servants nor are their service conditions governed by Rules framed under the proviso to Article 309 of the Constitution, therefore, such Rules unless adopted by the Nigam cannot be extended to the employees of the Nigam.20. Therefore, we find that the order of the High Court and that of the Tribunal are not sustainable in law as the seniority list has not been prepared in accordance with the roster circulated on 31st August, 2001 which is required to be mandatorily followed in terms of Regulation 6 as well with the approval of the State Government dated 3rd May, 2005 to fill up 88 posts.21. Consequently, the seniority list finalised on 28th November, 2014 as also the order of the High Court dated 11th July, 2018 are set aside. Respondent No. 5 is directed to recast seniority of the candidates in the order of merit by assigning their seniority as per the roster points given in Circular dated 31st August, 2001. With the said directions, the appeals stand disposed of."16. The above decisions clearly establish that what is important and the touchstone to determine the seniority is the selection list, which is based on merit and not the date of joining. In the case of respondent No.2, the regulations as it stood then, which were similar to present regulations in respect of seniority were examined by the Co-ordinate Bench of this Court in W.A.No.245/2006 mentioned supra and it was held, ranking in seniority list is what matters and not the joining date. In the instant case, respondent No.3 was forced to join late due to malicious act of respondent No.2. Though respondent No.2 has contended that respondent no.3 had not relieved himself to issue the appointment order, the said contention is frivolous and cannot be accepted. One cannot be compelled to relieve himself from an earlier job without first getting a letter of appointment from the subsequent employer. It is not the fault of respondent No.3 to have got the appointment letter later to that of appellant, which forced him to join late. Thus, the fact of issuance of appointment letter to respondent No.3 subsequent to issuance of the same to the appellant and respondent No.3 joining later than the appellant into service of respondent No.2-KIMS, does not alter his seniority over the appellant as the touch stone should be the "Merit List" and not the fortuitous circumstances, which in out opinion is the result of a motivated action and not bona fide. It is not merely illogical but imprudent to expect a person to resign his job even before he has been assured of another job. Furthermore, on a query to respondent No.2, the respondent is unable to place any material to demonstrate that such a demand was made of the 3rd respondent. What is important is the date of select list. Under the given facts and circumstances of the case, both the appellant and respondent No.3 have been selected in the same list and respondent No.3 is more meritorious than the appellant and thus, he needs to be placed above the appellant.17. The question now arise is what is the effect of withdrawal of the writ petition by respondent No.3 without insisting upon a ruling on his seniority.18. The Hon'ble Supreme Court in the case of Ramesh Chandra Sankla and others Vs. Vikram Cement and Others reported in (2008) has held as under:"53 A question whether a petition is barred by res judicata or under Rule 4 of Order 23 of the Code is not a "pure" question of law. It is a question of fact or at any rate, a mixed question of law and fact. In absence of pleadings and necessary materials in support of such plea, petitions cannot be dismissed on the bald assertion by a party that they were not maintainable. Let us consider legal position on this issue.""61. From the above case law, it is clear that it is open to the petitioner to withdraw a petition filed by him. Normally, a Court of Law would not prevent him from withdrawing his petition. But if such withdrawal is without the leave of the Court, it would mean that the petitioner is not interested in prosecuting or continuing the proceedings and he abandons his claim. In such cases, obviously, public policy requires that he should not start fresh round of litigation and the Court will not allow him to re-agitate the claim which he himself had given up earlier.62. In Sarguja Transport Service, extending the principles laid down in Daryao, Venkataramiah, J. (as His Lordship then was) concluded; (Sarguja Case, SCC p.12, para 9)"9. ... we are of the view that the principle underlying Rule 1 of Order XXIII of the Code should be extended in the interests of administration of justice to cases of withdrawal of writ petition also, not on the ground of res judicata but on the ground of public policy as explained above. It would also discourage the litigant from indulging in bench-hunting tactics. In any event there is no justifiable reason in such a case to permit a petitioner to invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution once again. While the withdrawal of a writ petition filed in a High Court without permission to file a fresh writ petition may not bar other remedies like a suit or a petition under Article 32 of the Constitution of India since such withdrawal does not amount to res judicata, the remedy under Article 226 of the Constitution of India should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the writ petition when he withdraws it without such permission."(emphasis supplied)63. On the facts of the case, however, we are unable to uphold the argument on behalf of the workmen that the Company did not want to prosecute the petitions and had given up its claim against the order passed by the Labour Court and confirmed by the Industrial Court. The record reveals that the Company filed one writ petition against one employee which was registered as Writ Petition No. 3060 of 2005. It also filed another petition against the remaining employees (236) which was registered as Writ Petition No. 3471 of 2005. Since the other petition was against several employees, the Registry of the High Court raised an objection that it was under `defect'. It was, therefore, not placed for admission-hearing. In an order, dated October 3, 2005, the Court noted that the learned counsel for the Company prayed for time "to remove the defects pointed by the office". The prayer was granted.64. It also appears that according to the Registry, there were practical difficulties and logistic problems since the petition was against more than 200 employees. The learned counsel for the Company, therefore, on December 14, 2005, did not `press' the petition and petition was accordingly dismissed `as not pressed'. The said order was passed on December 14, 2005. Immediately thereafter, in January, 2006, separate petitions were filed by the Company against the workmen.65. It is thus clear that it was not a case of abandonment or giving up of claim by the Company. But, in view of office objection, practical difficulty and logistic problem, the petitioner Company did not proceed with an `omnibus' and composite petition against several workmen and filed separate petitions as suggested by the Registry of the High Court.66. There is an additional reason also for coming to this conclusion on the basis of which it can be said that the Company was prosecuting the matter and there was no intention to leave the matter. As is clear, Writ petition No. 3060 of 2005 which was filed against one employee was very much alive and was never withdrawn/'note pressed'. If really the Company wanted to give up the claim, it would have withdrawn that petition as well. Thus, from the circumstances in their entirety, we hold that the objection raised by the learned counsel for the workmen has no force and is rejected."19. It is contended by the learned Senior Counsel for the appellant that respondent No.3 has withdrawn the W.P.No.11575/2008 without the leave of the Court to subsequently or separately agitate the issue of his seniority and hence, the instant writ petition is barred by res judicata.20. It is noticed from the records that when the above writ petition was withdrawn by respondent No.3, respo

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ndent No.2 had not finalized the seniority list. It had merely issued to the appellant, the appointment order.21. Further the appointment orders of the appellant and 3rd respondent are identical. The order of the appellant does not state that he is appointed against the first vacancy nor does the appointment order of the 3rd respondent indicate that he is appointed against the 2nd vacancy. In the absence of such particulars and the appointment being traceable to the common select list, the question of seniority was never an issue that required adjudication. The appellant cannot be permitted to take advantage of the mischief played by the Institute/2nd respondent and merit cannot be sacrificed at the altar of misfeasance. The act of the 2nd respondent in delaying the issuance of the appointment order is vitiated by legal malice. In that view the question of res judicata or constructive res-judicata would not arise and accordingly the said contention requires to be rejected. If the contention of res judicata, if accepted for the sake of argument, it would amount to giving a seal of approval to the wrongful performance of a lawful duty. The Hon'ble Apex Court in paragraphs 90, 91, 92, 93, 94, 96, 97 of Ramesh Chandra Sankla's case has referred a catena of its own decisions which are indicative of the approach the High Courts should adopt. The endeavour should be to garner the truth and mete out complete justice and thereby advance justice. The observation in paragraphs 98, 99 and 100 is of even more telling effect. Furthermore it is apparent that the said issue has not been canvassed before the learned Single Judge, though pleadings have been raised in their objection statement. The only inference that can be drawn is that the appellant has abandoned the said plea. He having abandoned or given up the said plea before the learned Single Judge it is not open to the appellant to agitate the same afresh before the Division Bench.22. The facts of the ruling in (1976) 4 SCC 412 are distinguishable and inapplicable to the facts of this case.23. On the facts, one can conclude that the finalization of seniority list between appellant and respondent No.3 was not concluded by respondent No.2 at the time of issuance of the appointment orders. In the instant case, the question of res judicata is mixed question of facts and law and the issue was never finally decided at that particular point of time. Respondent No.3 can be considered to have legitimate expectation of the seniority being fixed based upon the selection list. Thus, in the instant case, withdrawal of W.P.No.11575/2008 by respondent No.3 does not operate as res judicata in filing W.P.No.66353/2010 by respondent No.3. Accordingly, the points for determination are answered against the appellant.24. We have carefully gone through all the decisions relied upon by the learned Senior Counsel for the appellant. There could be no quarrel with regard to the principles enunciated therein. But, the constraint is the application of those decisions to the facts and circumstances of the case at hand. We are of the clear view that the said decisions are clearly distinguishable on the facts and circumstances of the case.25. For the aforementioned reasons, there is no merit in the writ appeal. There is no error in the order of the learned Single Judge and consequently, the writ appeal is hereby dismissed.26. No order as to costs.
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