IN THE GAUHATI HIGH · PDF fileIN THE GAUHATI HIGH COURT ... petitioner completed Master...

WP(C) No. 5164/14 of 22

IN THE GAUHATI HIGH COURT

(High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)

WRIT PETITION(C) No. 5164/2014

Rhituraj Saikia S/O Shri Tankeswar Saikia Village- Garikuri, P.O.: Hatbor, P.S.: Jakhalabandha, Kaliabor Sub-Division, Nagaon, Assam

.. Petitioner

- Versus –

1) The State of Assam, represented by The Commissioner & Secretary to the Govt. of Assam, Department of Education (Higher), Dispur, Guwahati-6. 2) The Director of Education, Assam, Kahilipara, Guwahati, District-Kamrup(M), Assam, Pin- 781019. 3) The Inspector of Schools, Nagaon District Circle (NDC), Nagaon, Pin- 782001. 4) The Governing Body of Kaliabor College, Represented by its Secretary cum Principal, P.O.- Kuwaritol, District: Nagaon, Assam, Pin- 782137. 5) Shri Parag Dahal, S/O Late Shiba Shastri, R/O Kaliabor Tiniali, PO- Kuwaritol District- Nagaon, Pin- 982137. 6) Shri Rajib Kumar Borah S/O Late Hem Chandraa Borah, R/O Chotahoibor Gaon, District-Nagaon, Pin- 782003. ...Respondents B E F O R E HON’BLE MR. JUSTICE T. VAIPHEI

For the petitioner: Mr. S K Medhi,

WP(C) No. 5164/14 of 22

Mr. J Das, Mr. A Das, Ms. M Barman, Mr. S Dutta, Advocates.

For the respondents: Mr. S Saika, Sr. SC,

Secondary Education Department. Mr. A D Choudhury, Counsel for the respondent No. 5 & 6.

Date of Hearing: 26-09-2014 Date of Judgment: 15-10-2014

JUDGMENT & ORDER

Mr. S.K. Medhi, the learned counsel for the petitioner, Mr.

S. Saikia, the learned senior standing counsel for Education

(Secondary) Department, Assam and Mr. A.D. Choudhury, the

learned counsel for the respondent No. 5 & 6/caveators, have

agreed that this writ petition could be decided on the question of

law without filing of counter-affidavits by the respondents, and

were accordingly heard at length on 24-2014 for final disposal at

the motion stage itself. The hearing was concluded on that day

whereafter the writ petition was adjourned for verdict, and is now

being disposed of by this judgment.

2. The facts relevant for disposal of this writ petition, as

pleaded by the petitioner, may be briefly noticed at the outset. The

petitioner completed Master Degree in Physics from Gauhati

University in the year 2007 and obtained M.Ph degree from

Vinayaka Mission University in June, 2008 and has been working

as Lecturer in Physics at Kaliabor College since 1-11-2008.

WP(C) No. 5164/14 of 22

Kaliabor College (“the College” for short) is a venture college which

falls within the purview of Section 2(o) of the Assam Venture

Educational Institutions (Provincialization of Service) Act, 2011

(“the Act” for short). When the process for provincialization of the

College was initiated, the petitioner was found to be qualified for

provincialization in the post of Assistant Professor, Department of

Physics therein. The maximum number of posts permissible for

provincialization in the College under the Act are fifteen, and the

name of the petitioner had been included for provinciialization

among these fifteen posts as initially published by the respondent

No. 2 vide the statement showing the eligibility of posts at

Annexure 4, whereas the names of the respondent No. 5 and 6

were shown therein as under-qualified Lecturers of the College for

provincialization.

3. It is the case of the petitioner that both the respondent No.

5 and 6 (“the two respondents” for short) obtained Ph.D. degree

from CMJ University, Meghalya without the mandatory

requirement of submitting thesis and without any guide and that

all the degrees conferred by the CJM University were

subsequently cancelled by the Meghalaya Government as it was

run without any affiliation and by grossly violating the rules and

regulations of UGC. After publication of the list of teaching staff of

the College for provincialization including the name of the

petitioner, the two respondents separately filed WP(C) No.

1695/2013 and WP(C) No. 1718/2013 before this Court

challenging the legality of the said publication. This Court

WP(C) No. 5164/14 of 22

disposed of the writ petition on 3-1-2014 by directing the

respondent No. 2 to pass appropriate order. At this stage, it may

be noted that the respondent No. 6 cleared the State Level

Eligibility Test (SLET) in the month of March, 2013 and has,

therefore, fulfilled the eligibility criteria for the post of Assistant

Professor for the first time in the year 2013. However, according

to the petitioner, the respondent No. 5 has not acquired the

eligibility criteria for the said post till now.

4. It is the further case of the petitioner that he, being one of

the respondents in the said two writ petitions, had expected that

he would be granted an opportunity of hearing by the respondent

No. 2 before passing any order in compliance with the order of

this Court, but he did not do so. On the contrary, much to his

consternation, the respondent No. 2 issued the impugned order

dated 10-2-2014 replacing him and his colleague by the two

respondents for provincialization of their services against the

posts of Assistant Professor. Aggrieved by this, he immediately

filed an RTI application on 20-2-2014 before the SPIO, DHE,

Kahilipara, Assam and obtained the information with respect to

the list of employees for such provincialization with the details as

well as the list of employees submitted for financial assistance

during the year 2009-2012. It is contended by the petitioner that

the respondent No. 5 did not have M.Phil/Ph.D./SLET/NET

qualifications, having one of such qualifications is mandatory to

become eligible for the post of Assistant Professor, and he is thus

not qualified for the post. It is also contended by the petitioner

WP(C) No. 5164/14 of 22

that the respondent No. 6, whose Ph.D. degree had been cancelled

by the Meghalaya Government earlier, passed the SLET

examination only in March, 2013 and cannot thus steal a march

over him, who had already become eligible for the said post in

June, 2008 when he had obtained M.Phil. degree in the same

year. He, therefore, submits that the impugned order, in so far as

it declares the two respondents to be senior to the petitioner and

proposes the provincialization of the services of the two

respondents against the posts of Assistant Professor instead of

him, is to that extent illegal and is also violative of the principles

of natural justice.

5. The contention of Mr. S.K. Medhi, the learned counsel for

the petitioner, is that the veracity of the M.Phil degree obtained by

the petitioner from Vinayak University cannot be challenged by

the respondents without filing an affidavit inasmuch as the said

University is recognised by the UGC to be deemed University.

Even if we assume that the respondent No. 6 has passed the

SLET examination in 2003, contends the learned counsel, his

seniority can be counted only with effect from the date when he

passed the SLET and not from the date of his appointment,

whereas the seniority of the petitioner is to be counted with effect

from June, 2008 when he obtained M.Phil degree, and so

counted, the petitioner is well ahead of the respondent No. 6 in

seniority. According to the learned counsel, as the respondent No.

5 is not eligible for the post of Assistant Professor for not having

passed the SLET/TET or for not obtaining Ph.D./M.Phil degree till

WP(C) No. 5164/14 of 22

now, the decision of the respondent No. 2 upholding the proposal

for his provincialization is illegal. He also contends that the

notification exempting the two respondents from obtaining the

said eligibility criteria is inconsistent with the eligibility criteria

prescribed by Section 4(3) of the Act, and is, thus, a nullity and

cannot be acted upon.

6. Per contra, Mr. S. Saikia, the learned senior standing

counsel for the Education (Secondary) Department, Assam,

supports the impugned order and submits that inasmuch as the

dates of joining of the two respondents are recorded as 25-2-1999

and 23-12-1999 respectively, they are not only exempted from

having M.Phil/NET/SLET/Ph.D qualifications in terms of the said

Office Memorandum dated 7-2-2014, but are also, ipso facto,

senior to the petitioner. He, therefore, submits that the impugned

order issued by the respondent No. 2, therefore, does not suffer

from any infirmity calling for the interference of this Court.

7. Mr. A.D. Choudhury, the learned counsel for the

respondent No. 5 and 6, while supplementing the contentions of

the learned senior standing counsel, maintains that this writ

petition not maintainable being barred by the doctrine of res

judicata since this Court in the earlier proceedings in WP(C) No.

1695/13 and WP(C) No. 1718/2013 has already heard both the

parties and finally decided the dispute directly and substantially

in issues in the instant writ petition. He further contends that

petitioner has no locus standi to file this writ petition since the

WP(C) No. 5164/14 of 22

M.Phil degree has been obtained from an unrecognised University,

namely, Vinayaka Mission Research Foundation: such degree

from this University is valid only when the same is obtained from

approved campus, and there is no approved campus in Guwahati.

He further contends that the said Office Memorandum dated 7-2-

2014 exempting the two respondents from having the

qualifications of M.Phil/Ph.D./NET/SLET, until and unless

successfully challenged and quashed by this Court, has the force

of law and, so understood, enables them to become eligible for the

post of Assistant Professor, and they, having joined the post of

Lecturer in 1999, are entitled to count their seniority from the

dates of the respective dates of their joining the posts held by

them.

8. Drawing my attention to the proviso to Section 4(2) of the

Act which provides that where the number of employees serving

in venture schools exceeds the sanctioned posts, the

provincialization shall be made on the basis of seniority, the

learned counsel for the private respondents submits that the

services of the two respondents, who are senior to the petitioner,

are entitled to be provincialized against the posts of Assistant

Professor, and the petitioner has no legitimate grievance to make

in this behalf. According to the learned counsel, once this Court

in the former writ petitions has already recorded the findings that

the respondent No. 5 and 5 had been appointed as Lecturers in

Physics and Chemistry respective in 1999 and the petitioner

herein and one other Lecturer had been appointed in the year

WP(C) No. 5164/14 of 22

2007 and 2008 respectively, the respondent No. 2 has no

alternative but to record the same findings and does not, therefor,

commit any illegality in issuing the impugned order. He lastly

submits that the respondent No. 2 had already admitted in his

affidavit filed in the former writ petitions that there was mistake

on the part of the District Scrutiny Committee in forwarding the

name of the petitioner for provincialization of his service, and he,

realizing the mistake, replaced the names of the petitioner and the

other Lecturer by the names of the respondent No. 5 and 6: the

impugned order has been rightly issued and should not be

interfered with by this Court. Reliance is placed by him upon the

decision of the Apex Court in A.P. SRTC v. G. Srinivas Reddy,

(2006) 3 SCC 674 to fortify his various contentions.

9. In reply, Mr. S.K. Medhi, the learned counsel for the

petitioner, argues that there is no evidence to show that Vinayaka

Missions University is not a recognized Deemed University: the

Provisional Certificate M.Phil degree issued by the University in

question at Annexure-2 clearly indicates that it has been declared

to be so under Section 3 of UGC Act, 1956. On the contrary, my

attention was drawn by him to the letter dated 4-9-2013

addressed to the respondent No. 6 by the Under Secretary & PIO

(CPP-I), UGC, New Delhi, wherein it has been stated that M.Phil

by the Vinayaka Missions Research Foundation, Salem is valid if

the course was conducted in regular mode at the UGC/MHRD

approved campus of the Foundation: he then submits that there

is also no evidence to show that the Petitioner did not obtain the

WP(C) No. 5164/14 of 22

course was obtained by the petitioner from such non-approved

campus. It is also maintained by him that there is no question of

applying the principles of res judicata when the former writ

petitions were merely remanded to the respondents for passing

appropriate orders: the writ petitions were never heard and finally

decided on merit.

10. After giving my thoughtful consideration to the rival

submissions made at the bar, it becomes apparent that the

objection to the maintainability of the writ petition raised by the

learned counsel for the private respondents on the ground of res

judicata has force. One of the ingredients to constitute res

judicata is that the matter directly and substantially in issue in

the subsequent suit must have been heard and finally decided by

the court in the former suit. In Ishwar Dutt v. Collector, (2005)

7 SCC 190, the Apex Court reiterated the legal position that the

principle of res judicata is applicable to writ proceedings. It is also

applicable to subsequent suits where the same issues between

the same parties had been decided in an earlier proceeding under

Article 226 of the Constitution. In order to sustain the plea of res

judicata, it is not necessary that all the parties to the two

litigations must be common. All that is necessary is that the issue

should be between the same parties or between parties under

whom they or any of them claim. Undoubtedly, the parties as well

as the matters in issue in both the former writ petitions and this

writ petition are one and the same. The question to be determined

now is whether the matters in issue in both the writ petitions

WP(C) No. 5164/14 of 22

have been finally heard and decided by this Court in the former

writ petitions. To appreciate this question, it will be appropriate to

refer to the common order dated 3-1-2014 passed by this Court in

WP(C) No. 1695 of 2013 and WP(C) No. 1718 of 2013, which reads

thus:

“3-1-2014

Heard Mr. M. Choudhury,, learned counsel

for the petitioners. Also heard Mr T.N. Srinivasan,

learned counsel representing the respondent No.

5. I have also heard Mr. A. Deka, the standing

counsel, Education.

Both the writ petitions pertain to

provincialization of services of petitioneers and

the respondent No. 5 and 6. It is an admitted fact

that the names of the two petitioner were

included inn the list for provincialization

prepared by the District Scrutiny Committee. As

per provision of Section 10 of the Assam Venture

Educational; Institutions (Provincialization of

Services) Act, 2011, there shall be one District

Scrutiny Committee in each district and the said

Committee is required to be constituted by the

Deputy Commmissioner of the District. While the

petitioners were appointed as Lecturers in Physics

and Statistics respectively in 1999, the

respondent Nos. 5 and 6 involved in the writ

WP(C) No. 5164/14 of 22

petition were appointed in 2007 and 2006

respectively. Thus admittedly the two petitioners

are senior to them.

When the matter for provincialization of

service of the teaching staff was processed and

routed through the District Scrutiny Committee,

the said Committee incorporated the names of

two petitioners in the list by which

recommendation was made for provincialization

of their services along with others. However, when

the matter was placed before the Director, Higher

Education, he prepared another list incorporating

the names of respondent Nos. 5 and 6 and placing

the names of the petitioners in the list of under

qualified teaching staff. Being aggrieved by such

action on the part of the Director of Higher

Education, the writ petitions have been filed.

In the counter-affidavit filed by the Director,

Hioogher Education, he has virtually admitted the

mistake committed by him in deleting the names

of the petitioners and incorporating the names of

the private respondents i.e. the respondent Nos. 5

and 6 in paragraph 5 of the said affidavit it has

been stated thus:

“That the deponent begs to state that

the Government of Assam in the Education

Department has taken steps for

WP(C) No. 5164/14 of 22

provincialization of services of the

employees working in venture educational

institutions in the light of the “Assam

Venture Institution (Provincialization of

Services) Act, 21011 and 2012.

As per Section 10 of the Act, the Head of

the venture institutions are required to

forward the particulars of the teaching and

non-teaching staffs working in the

institution before the District Scrutiny

Committee for scrutiny. The District

Scrutiny Committee after scrutinizing the

same will transmit the same to the

Directorate for taking steps for

provincialization. Thereafter the office of

the deponent uploaded the list of qualified

venture colleges showing the names of staff

of the said college. The Act of 2011

amended in 2012 has prescribed the number

of staff of the said college for

provincialization. The office of the

Directorate cannot change the staff pattern

as submitted by the District Scrutiny

Committee. Unless the name of the

petitioner is forwarded by the District

Scrutiny Committee within the number of

staffs entitled for the benefits of

WP(C) No. 5164/14 of 22

provincialization as per the Act, the

deponent cannot include the name of the

petitioner.

However, while uploading the list of

qualified/under qualified/disqualified

incumbents in SSA portals, some

inadvertent errors through

oversight/typographical mistakes occurred

in making recommendation for the purpose

of the benefit of provincialization.

In this connection, the office of the

deponent uploaded a Notification vide No.

PC/HE/Col-16/2011/215 dated 14-03-2013

in website for submission of appeal on or

before 25-04-2013 for

review/reconsideration of those

errors/mistakes and for further examination

and finalization of the list of

employees/college for provincialization.

The process of further examination of

the list of employees/colleges are going on.

Therefore, the directorate needs/requires

some more time for

examination/verification of the petitioner’s

case. The process for verification and

correction of errors/mistakes process is

under progress.”

WP(C) No. 5164/14 of 22

If we go by the above admission on the part

of the Director of Higher Education, he could not

have changed the list that was sent by the District

Scrutiny Committee. While admitting the

mistakes committed by him he has qualified the

same as inadvertent errors through

oversight/typographical mistake. He also

admitted that the Directorate could not have

changed the staff pattern as was submitted by the

District Scrutiny Committee.

Mr. Srinivasan, learned counsel for the

respondent No. 5 however submits that the

Director is vested with the power to make change

in the list forwarded by the District Scrutiny

Committee, as per the provisions of Section 10(4)

of the aforesaid Act. Apart from the fact that the

Director of Higher Education has not assigned any

reason for the changes made by him in the

counter affidavit, no remarks requiring such

changes are also discernible in the subsequent list

prepared by him.

As per provision of Section 10(4), the final

notification is required to be issued by the

Government after the list submitted by the

District Scrutiny Committee routed through the

Director of Higher Education.

WP(C) No. 5164/14 of 22

Mr. Srinivasan, learned counsel for the

respondent No. 5 while emphasizing the power of

the Director to make the changes has also

emphasized on the requirement of eligibility of

provincialization. He submits that the petitioners

being not qualified having not obtained the

Ph.D/NET/SLET qualification, the Director rightly

made the changes in the list that was

recommended by the District Scrutiny

Committee.

Countering the above arguments, Mr.

Choudhury, learned counsel for the petitioners,

submits that the petitioner involved in WP(C) No.

1718/2013 has also obtained SLET qualification

in February, 2013. So far the second petitioner

involved in WP(C) No. 1695/2013 is concerned,

referring to the provisions of Section 10(4) of the

Act, he submits that apart from the fact that the

petitioner is senior to the respondent No. 5 and 6,

he is entitled to get relaxation in respect of

prescribed qualification from the date of

provincialization of service. It is on record that

Lecturers acquiring NET/SLET in February, 2013

along with the petitioner in WP(C) No. 1718 of

2013 have been considered for provincialization.

Thus no distinction can be made in respect of the

petitioner involved in WP(C) No. 1718/2013. As

WP(C) No. 5164/14 of 22

regards the other petitioner in WP(C) No.

1695/2013, his case will have to be considered as

per relaxation clause under Section 4 of the Act.

Director of Higher Education having

admitted his mistake in respect of the

recommendation made by the District Scrutiny

Committee, he ought to have rectified the same

and thereafter placed the matter before the State

Govt. in the Education Department for final

notification.

Be that as it may, since the matter is now

pending with the Govt. in the Education

Department, both the writ petitions are disposed

of with a direction to pass appropriate order

consistently with the observations made above, as

expeditiously as possible preferably within 28th

February, 2014.”

(Underlined for emphasis)

11. A plain reading of the aforesaid order will reveal that the

following categorical findings have been made by this Court,

namely, (i) the private respondents are senior to the petitioner

herein inasmuch as they were appointed as Lecturers in Physics

and Statistics in 1999, whereas the petitioner and the other

Lecturer were appointed only in the year 2007 and 2006; (ii) an

the admission was made by the Director of Higher Education that

mistakes were committed by him by substituting the names of the

private respondents herein by the names of the petitioner and one

WP(C) No. 5164/14 of 22

other Lecturer in the list prepared by him for provincialization of

their services; (iii) the Director of Higher Education, having

admitted such mistakes, ought to have rectified the same and

thereafter placed the same before the Education Department for

issuance of the notification. On the basis of such findings, this

Court issued the direction upon the Director of Higher Education

to pass appropriate order consistently with the observations made

by it earlier. These are findings which cannot be said to be obiter

dicta or are issue ancillary or incidental to the main issue

involved in the said writ petitions: they rather strike at the root of

the case of the petitioners therein. Nay, the issues involved in this

writ petition, namely the inter-se seniority between the petitioner

and the private respondents and the question of provincialization

of their respective services in the posts of Assistant Professor were

matters directly and substantially in issue in the former writ

petitions. The question is whether the Director of Higher

Education could have passed any order holding the petitioner to

be senior to the private respondents or prepared a fresh list of

teaching staff of the College for provincialization of their services

contrary to or inconsistent with the above directions in the light of

the observations made by this Court in the two writ petitions? The

answer must be “No”. In my judgment, this Court in the former

writ petitions have already heard the submissions of both the

counsel for the rival parties (who are also parties to this writ

petition) and finally decided the issues, which are directly and

substantially in issues in this writ petition. In other words, the

common order in question had decisively decided the issues

WP(C) No. 5164/14 of 22

involved in this writ petition against the petitioner, who should

have carried the matter in appeal to the appellate court. Having

finally decided such issues, even if such direction i.e. the

direction to pass appropriate order can be said to be superfluous,

but that does not affect the binding character of the order

between the parties. The words and figure “Be that as it may,”

shall not also materially affect the binding nature of the direction.

Any order/direction made by the Director of Higher Education

inconsistent with the said findings already made by this Court

can even expose him to the charge of contempt of court. The law

is now well settled that all questions which had been expressly

decided by this Court on contest between the petitioner and the

private respondents and other questions which must be deemed

by necessary implication to have been decided are res judicata.

12. True, the aforesaid decision of this Court might have been

erroneous on a question of fact or of law or of both, but such

decision nevertheless constitutes res judicata. The legal position

was reiterated by the Apex Court recently in R. Unnikrishnan v.

V.K. Mahanudevan, (2014) 4 SCC 434 after reviewing the

various case-laws. This is what it said:

“19. It is trite that law favours finality to binding judicial

decisions pronounced by courts that are competent to deal

with the subject-matter. Public interest is against individuals

being vexed twice over with the same kind of litigation. The

binding character of the judgments pronounced by the courts

of competent jurisdiction has always been treated as an

WP(C) No. 5164/14 of 22

essential part of the rule of law which is the basis of the

administration of justice in this country. We may gainfully

refer to the decision of the Constitution Bench of this Court in

Daryao v. State of U.P.13 where the Court succinctly

summed up the law in the following words: (AIR p. 1462,

paras 9 & 11)

“9. … It is in the interest of the public at large that a

finality should attach to the binding decisions pronounced

by courts of competent jurisdiction, and it is also in the

public interest that individuals should not be vexed twice

over with the same kind of litigation.

* * *

11. … The binding character of judgments pronounced

by courts of competent jurisdiction is itself an essential

part of the rule of law, and the rule of law obviously is the

basis of the administration of justice on which the

Constitution lays so much emphasis.”

20. That even erroneous decisions can operate as res

judicata is also fairly well settled by a long line of decisions

rendered by this Court. In Mohanlal Goenka v. Benoy

Kishna Mukherjee14 this Court observed: (AIR p. 72, para

23)

“23. There is ample authority for the proposition that

even an erroneous decision on a question of law operates

as ‘res judicata’ between the parties to it. The correctness

13 AIR 1961 SC 1457 14 AIR 1953 SC 65

WP(C) No. 5164/14 of 22

or otherwise of a judicial decision has no bearing upon the

question whether or not it operates as ‘res judicata’.”

21. Similarly, in State of W.B. v. Hemant Kumar

Bhattacharjee15 this Court reiterated the above principles in

the following words: (AIR p. 1066, para 14)

“14. … A wrong decision by a court having jurisdiction

is as much binding between the parties as a right one and

may be superseded only by appeals to higher tribunals or

other procedure like review which the law provides.”

22. The recent decision of this Court in Kalinga Mining

Corpn. v. Union of India16 is a timely reminder of the very

same principle. The following passage in this regard is

apposite: (SCC pp. 267-68, para 44)

“44. … In our opinion, if the parties are allowed to re-

agitate issues which have been decided by a court of

competent jurisdiction on a subsequent change in the law

then all earlier litigation relevant thereto would always

remain in a state of flux. In such circumstances, every

time either a statute or a provision thereof is declared

ultra vires, it would have the result of reopening of the

decided matters within the period of limitation following

the date of such decision.”

23. In Mathura Prasad Bajoo Jaiswal v. Dossibai

N.B. Jeejeebhoy17 this Court held that for the application

of the rule of res judicata, the court is not concerned with

15 AIR 1966 SC 1061 : 1966 Cri L 805 16 (2013) 5 SCC 252 : (2013) 2 SCC (Civ) 797 17 (1970) 1 SCC 613

WP(C) No. 5164/14 of 22

the correctness or otherwise of the earlier judgment. The

matter in issue if one purely of fact decided in the earlier

proceedings by a competent court must in any subsequent

litigation between the same parties be recorded as finally

decided and cannot be reopened. That is true even in

regard to mixed questions of law and fact determined in

the earlier proceeding between the same parties which

cannot be revised or reopened in a subsequent proceeding

between the same parties. Having said that we must add

that the only exception to the doctrine of res judicata is

“fraud” that vitiates the decision and renders it a nullity.

This Court has in more than one decision held that fraud

renders any judgment, decree or order a nullity and non

est in the eye of the law. In A.V. Papayya Sastry v.

State of A.P.18, “fraud” was defined by this Court in the

following words: (SCC pp. 231-32, para 26)

“26. Fraud may be defined as an act of deliberate

deception with the design of securing some unfair or

undeserved benefit by taking undue advantage of

another. In fraud one gains at the loss [and cost] of

another. Even most solemn proceedings stand vitiated

if they are actuated by fraud. Fraud is thus an

extrinsic collateral act which vitiates all judicial acts,

whether in rem or in personam. The principle of

‘finality of litigation’ cannot be stretched to the extent

of an absurdity that it can be utilised as an engine of

oppression by dishonest and fraudulent litigants.” 18 (2007) 1 SCC 613

WP(C) No. 5164/14 of 22

13. The net effect of the foregoing discussion is that this writ

petition is barred by the doctrine of res judicata, and can no

longer be decided by this Court. As the writ petition is not

maintainable on the ground of res judicata, the other issues

raised by the learned counsel appearing for the rival parties do

not survive for consideration on the principle that a court of law

does not decide more than what is necessary.

14. For the reasons stated above, this writ petition is plainly

barred by res judicata and is, therefore, dismissed on the ground

of non-maintainability. The parties are, however, directed to bear

their respective costs.

JUDGE

Naba

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