* IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) 3642/2008 D.V.RANA & ORS. ..... Petitioners Through Mr. G.D. Gupta, Sr.Advocate with Mr.Javed Ahmed, Advocate. versus VICE CHAIRMAN AGRICULTURAL PRODUCE MARKETING COMMITTEE & ORS. ..... Respondents Through Ms.Latika Chaudhary and Ms.Nidhi Gupta, Advocates. CORAM: HON'BLE MR. JUSTICE SANJIV KHANNA O R D E R % 16.05.2008 1. The petitioners had earlier filed Writ Petition (Civil) No.518/1983. Interim orders were passed in their favour. However, by decision dated 29th August, 2002, the Writ Petition was dismissed, inter alia, holding that the petitioners were appointed contrary to the Recruitment Rules and without following the proper selection procedure. The Court held that the Interim Order passed in their favour would not confer any legal right. The Court also refused to pass any direction for regularization of the petitioners. 2. The directions were given to the respondent-Marketing Committee to fill up the vacancies on regular basis through proper selection process and to consider the petitioners after giving relaxation of age bar. Till regular appointments were to be made, it was directed that services of the petitioners would not be terminated by another set of adhoc employees. 3. Learned counsel for the petitioner states that the respondent-Marketing Committee had already passed a Resolution No.33/87 dated 25th April, 1987 which reads as under :- “(a) the existing employees shall be considered for regularization against non-selection posts only; (b) They would be considered for regular appointment first against the post on which they were initially appointed; (c) After their appointment is regularized against the post in which they were initially appointed, their ad hoc appointment in subsequent higher post shall be regularized in accordance with the provisions of the recruitment rules as and when regular vacancy becomes available. Till this appointment is not regularized, they would continue to hold the post on ad hoc basis.” 4. It is stated that pursuant to this Resolution the petitioners should be permitted and allowed to work as Sub-Inpsectors on adhoc basis though they were initially appointed as Gateman. 5. I have examined the contention raised by the petitioners. I do not think that the petitioners are entitled to raise this contention by filing the present writ petition. It will virtually amount to reopening and reconsidering Writ Petition No. 518/1983, which stands decided vide judgment dated 29th August, 2002. The Resolution dated 25th April, 1987 was filed and is part of the pleadings in the said case. I may also note that Review Application No. 13318/2002 was also filed in writ petition no.518/1983, wherein by Order dated 18th January, 2008, it was observed as under :- “ RA No.13318/2002 & CM No.1207/2007 in WP(C) No.518/1983 During the course of hearing of the aforesaid review application and upon hearing the counsel appearing for the parties we had passed the order dated 18th August, 2006 to the following effect: “We have heard the counsel appearing for the parties in part. During the course of arguments it is pointed out that the order which was passed by the respondent regularizing the services of the petitioners in the post of Gate Keeper/Peon was cancelled in view of the pendency of the Contempt Petition. Counsel for the respondent states that she would obtain instructions as to whether or not fresh orders for regularizing their services in the post of Gate Keeper could be issued immediately and thereafter their cases could be considered for promotion to the next post of Sub-Inspector on regular basis applying the „next below‟ rule. She is granted two weeks‟ time to obtain instructions.” Pursuant to the said order the learned counsel for the respondent, on instructions, states before us that so far as the issue with regard to regularization of services of the petitioners in the post of Gate Keeper is concerned it would be possible to pass fresh orders for regularization of their services in the post of Gate Keeper applying the „next below‟ rule. It is however contended by her that so far as the case of their appointment to the next post i.e. Sub Inspector on regular basis is concerned the same could be considered if any of the juniors of the petitioners has since been promoted to the said post of Sub Inspector. We find force in the said submission. If in case any of the juniors of the petitioners has been promoted to the post of Sub Inspector, such of the petitioners who are senior to those persons must be given the same benefit in terms of the provisions of the „next below‟ rule. It is also submitted that so far as this submission is concerned the same would be relevant only for five petitioners because two other petitioners namely, Shri K.K. Sharma and Shri S.K. Kamboj were appointed as Progress Asistants. On going through the records we find that the said two petitioners have also worked from the year 1979 onwards and therefore it may be proper for the respondent to give similar benefits to them as well, as given to the other five petitioners herein. In the light of the aforesaid directions and observations, the review application and also the application CM No. 12072/07, are disposed of with a direction to the respondents to take a decision.” 6. In these circumstances, I feel that principles of res judicata and constructive res judicata are applicable. The subject matter and cause of action of the two writ petitions are same. In view of the judgment dated 29th August, 2002 the petitioners cannot be permitted to raise issues and make claim based upon Resolution dated 25th April, 1987, by filing a fresh writ petition. If the petitioners are so advised, they are at liberty to file review application in Writ Petition No. 518/1983. SANJIV KHANNA, J. MAY 16, 2008. P/vld