IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10996 of 2007 SHEO PUJAN SAO, son of late Bhukhan Sahu, resident of village Usari Bazar, P.S. Mehandia, District Arwal, at present posted as Routine Clerk, K.L.S.College, Nawadah ... Petitioner Versus 1. THE V.C., MAGADH UNIVERSITY, Bodh Gaya, District Gaya 2. The Registrar, Magadh University, Bodh Gaya, District Gaya 3. The Deputy Registrar (1), Magadh University, Bodh Gaya, District Gaya 4. The Principal, K.L.S.College, Nawadah ... Respondents ----------- 2. 10.11.2010 No one appears for the petitioner. Counsel for the University is present and would point out that the petitioner’s earlier writ petition for almost same and similar grievance was dismissed by this Court by an order dated 1.7.2005 in C.W.J.C.No. 2486/2000 (Annexure 4). He would, accordingly, submit that this writ application will be hit by the principle of res-judicata/ constructive res- judicata. It is well settled that the respondents too have a right to raise the question of res-judicata/ constructive res- judicata but for that they must file their counter affidavit. There is no counter affidavit in this case and therefore, it 2 would be difficult for this Court to find out as to whether as to the earlier relief rejected by this Court would stand in the way of the petitioner in claiming the following relief: “That this is an application for issuance of an appropriate writ, order or direction, particularly in the nature of writ of mandamus, directing and commanding the respondents to post/ take charge of office Assistant to the petitioner, which was still vacant till date, after retirement of one Rajeshwar Prasad, the then office Assistant of K.L.S.College, Nawadah.” From the pleadings on record it becomes clear that the petitioner was initially appointed on a post of Peon and was later on promoted to the post of Routine clerk by an order dated 18.2.1982. The grievance of the petitioner is that in stead of his being promoted on the post of Routine Clerk he ought to have been promoted on the post of Office Assistant. It is for this purpose that he has named Rajeshwar Prasad who is said to have died in harness resulting in a vacancy on which the petitioner’s promotion could have been made 3 on the post of Office Assistant. Unfortunately in paragraph 14 where such pleading has been made there is no date of death of Rajeshwar Prasad and therefore, if the said vacancy had already been in existence prior to dismissal of the writ application of the petitioner on 1.7.2005 the issue would be squarely deemed to be covered by the order of this Court dated 1.7.2005 wherein the prayer of the petitioner as with regard to his promotion on the post of Office Assistant in place of Routine Clerk was rejected. Considering all these aspects and the absence of the petitioner, this Court does not find any merit in this application and the same is, accordingly, dismissed. (Mihir Kumar Jha,J.) Surendra/