Writ Petition Nos. 28847, 32754, 32756, 34116, 28509 and 29506 of 2016. Case: S.P. Abdulla Saheb and Ors. Vs K. Krishna Murthy and Ors.. High Court of Andhra Pradesh (India)

Case NumberWrit Petition Nos. 28847, 32754, 32756, 34116, 28509 and 29506 of 2016
CounselFor Appellant: J. Sudheer, Learned Senior Counsel and For Respondents: G.P.
JudgesV. Ramasubramanian and G. Shyam Prasad, JJ.
IssueCode of Civil Procedure, 1908 (CPC) - Section 11
Judgement DateDecember 02, 2016
CourtHigh Court of Andhra Pradesh (India)

Order:

V. Ramasubramanian, J.

  1. The petitioners who are employed as Senior Assistants in the Department of Commercial Taxes in the State of Andhra Pradesh have come up with the present writ petitions challenging a common order passed by the Andhra Pradesh Administrative Tribunal, Hyderabad, in a batch of original applications filed by the 1st respondent in each of these writ petitions.

  2. Heard Mr. J. Sudheer, learned counsel for the petitioners, the learned Government Pleader for Services-I (Andhra Pradesh), Mr. P. Suresh Reddy, learned Senior Counsel appearing on behalf of Mr. B. Ranganadh Rao, learned counsel for the original applicants before the Tribunal and Mr. P.V. Krishnaiah, learned counsel appearing for the impleaded respondents.

  3. The issue involved in these writ petitions lies in a very narrow compass. A group of persons (1st respondent in each of these writ petitions) who got transferred from various other departments to the Commercial Taxes Department as Junior Assistants way back on 01-01-1996, approached the Andhra Pradesh Administrative Tribunal, Hyderabad, challenging the Seniority List dated 02-12-2009 contending that they should be placed above persons who were appointed directly to the Commercial Taxes Department, but who were undergoing probation on the date of the transfer. By a common order dated 31-10-2012 the Tribunal allowed the applications on the short ground that as per Rule 35(b) of the Andhra Pradesh State and Subordinate Services Rules, 1996, persons who were transferred from other departments to the Commercial Taxes Department are entitled to be placed in the Commercial Taxes Department just below the last of the approved probationers, but above those who were undergoing probation.

  4. It appears that the original applicants before the Tribunal purportedly impleaded few probationers in their original applications, but they were not represented before the Tribunal.

  5. The State filed a batch of writ petitions in W.P. Nos. 38328, 38813, 38330 and 38331 of 2013 challenging the said order of the Administrative Tribunal dated 31-10-2012 passed in O.A. No. 473 of 2010 batch. A Division Bench of this Court dismissed the writ petitions filed by the State, by an order dated 10-3-2014. Therefore, in order to implement the order of the Tribunal, the State took steps for the revision of the Seniority List. Immediately the petitioners in these writ petitions, who were not parties before the Tribunal, sought leave and have come up with the present writ petitions challenging the order of the Tribunal.

  6. Five contentions are raised by Mr. J. Sudheer, learned counsel for the petitioners; (1) that the writ petitioners were not made parties to the original applications and hence the original applicants before the Tribunal were guilty of procuring an order behind the back of the affected parties; (2) that the original applicants before the Tribunal were guilty of willful suppression of material particulars in their original applications, as a consequence of which they were not entitled to any relief; (3) that the order of the Tribunal is contrary to Rules 35(b) and 36(i) of the A.P. State and Subordinate Services Rules, 1996 as well as the Proviso (iii) under Rule 15(1) of the A.P. Ministerial Service Rules, 1998; (4) that the Tribunal failed to appreciate the fact that even as per the orders of transfer, the original applicants before the Tribunal were liable to take seniority below the approved probationers as well as the probationers in the Commercial Taxes Department and (5) that in any case the applications of the original applicants were barred by law in view of the fact that at least three Seniority Lists issued earlier by the Department were not challenged by them.

  7. In response to the above contentions, it is submitted by Mr. P. Suresh Reddy, learned Senior Counsel for the original applicants before the Tribunal; (1) that a few individuals directly recruited to the Commercial Taxes Department were impleaded as parties to the original applications and hence the original applicants cannot be accused of attempting to procure an order behind the back of the aggrieved parties; (2) that since the applicants before the Tribunal chose to challenge the Final Show Cause Notice dated 02-12-2009, the tentative or provisional Seniority Lists released earlier, lost their relevance and hence need not have to be challenged; (3) that the universal rule applicable to the fixation of seniority is that a person coming on voluntary transfer should take his seniority below the approved probationers and hence the Statutory Rules have to be read in the right perspective and (4) that the original applications before the Tribunal were not barred by law, since the previous Seniority Lists were only provisional and the applicants approached the Tribunal immediately after the Final Show Cause Notice was issued.

  8. Apart from the above contentions, the learned Senior Counsel for the original applicants before the Tribunal and the learned counsel for the impleaded parties raised a preliminary objection to the very maintainability of the present writ petitions. This objection is raised on the ground that the order of the Tribunal impugned in these writ petitions got merged with the order passed by this Court in a batch of writ petitions in W.P. No. 38328 of 2013 batch dated 10-3-2014 and that therefore it was not open to the petitioners to reopen the issue all over again.

  9. In view of the fact that the very maintainability of the writ petitions is questioned, we shall first take up the issue of maintainability before going into the contentions on merits.

    MAINTAINABILITY:

  10. It is true that the common order of the Tribunal dated 31-10-2012 passed in O.A. No. 473 of 2010 batch was upheld by a Bench of this Court in a batch of writ petitions in W.P. No. 38328 of 2013 batch by a judgment 10-3-2014. It is also true to some extent, that the applicants before the Administrative Tribunal may be entitled to plead the doctrine of merger.

  11. But it must be remembered that the doctrine of merger is neither founded upon the Constitution nor statutorily recognised. It is a common law doctrine founded on principles of propriety in the hierarchy of justice delivery system. The underlying principle behind the doctrine of merger is that there cannot be more than one decree.

  12. As pointed out in the Vol. 12 of the Halsbury's Laws of England (5th edition, 2009), it is a fundamental doctrine of all courts that there must be an end of litigation. The courts have always followed the Latin maxim 'interest reipublicae suit finis lithium' meaning that "in the interest of society as a whole, litigation must come to an end." To avoid repeated litigations over and over again, on the same subject matter, several principles of law were developed under the common law system. These principles of law are assigned different nomenclature depending upon the situation to which they are to be applied. The doctrines of res judicata, estoppel, merger, etc. are different facets of the common underlying principle that to the extent possible, parties should be prohibited from re-litigating on the same subject matter. As pointed out in Halsbury's Laws of England, the terms res judicata, issue estoppel and cause of action estoppel, estoppel by record or collateral estoppel were used in many of the older cases, very loosely. The distinction was not always very clear. But fortunately, the common law doctrine of res judicata came to be incorporated in the statute itself in Section 11 of the Code of Civil Procedure.

  13. What normally happens is that a cause of action leads to a litigation. The moment a judgment is given in a claim, the cause of action in respect of which it is given, is merged in the judgment. Once a judgment is given which is a matter-of-record, an estoppel by record arises. Such an estoppel may...

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