WP(C) No. 5164/14 Page 1 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 Page 2 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 Page 3 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 Page 4 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 Page 5 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 Page 6 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 Page 7 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 Page 8 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 Page 9 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 Page 10 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 Page 11 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 Page 12 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 Page 13 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 Page 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 Page 15 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 Page 16 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 Page 17 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 Page 18 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 Page 19 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 Page 20 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 Page 21 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 Page 22 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
Top Related