1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. O R D E R Madan Puri & Ors. v. Dungarpur Banswara Kshetriya Gramin Bank S. B. CIVIL WRIT PETITION NO. 4653/1994 under Article 226 of the Constitution of India. Date of Order :: 13th March, 2009 P R E S E N T HON'BLE MR.JUSTICE GOVIND MATHUR Mr. M.S. Singhvi, for the petitioner. Mr. M.R. Singhvi, for the respondents. .... REPORTABLE BY THE COURT : The four petitioners, by this petition, are claiming a writ order or direction to get fixation in the pay scale concerned from the date of their appointment with Dungarpur Banswara Kshetriya Gramin Bank (hereinafter to be referred to as, “the Bank”). In brief facts of the case are that as a consequent to process of selection that took place in the year 1986, though the petitioners were selected and empaneled for appointment as “Officer” with the Bank but 2 the same was not accorded to them, hence, by way of filing petitions for writ they approached this Court. The petitions aforesaid came to be accepted on 11.4.1991 with following order: “In the result, these writ petitions are allowed and the respondents are directed to accord appointments to the petitioners on the posts of Officers forthwith effective from the date of their filing of these writ petitions. They will, however, not be paid salary during the period they have not worked but that period will be counted for their seniority and pension purposes. Four vacancies have already been kept reserved for them and they must be given appointments within a period of one month from today. If the petitioners do not join the services of the respondent Bank within the aforesaid period of the issue of appointment orders the respondent Bank will be free to appoint any body else from the panel which has now come into force from 18.5.1989. In the peculiar facts and circumstances of the case, the parties are left to bear their own costs.” In the month of May 1991 the Bank issued orders in favour of the petitioners with specific assertion as follows: “You will be paid a basic salary of Rs.2100/- per month (Rupees two thousand one hundred only per month) in the grade of 2100-120-4020. It may please be noted that the effective date of appointment will be from the date 3 of your filing of writ petition. However, you will not be paid salary during the period, you have not worked with this bank but the period will be counted for the purpose of your seniority and pension purposes as directed in the above judgment order.” The appointments to the petitioners S/Sh. Madan Puri, Dinesh Kumar, Mangal Ram and Umaid Ujjawal were given w.e.f. 28.11.1988, 2.1.1989, 5.1.1989 and 2.2.1989 respectively, those being the dates of filing earlier petitions for writ by them. The petitioners after joining service with respondent-Bank claimed for fixation of their pay from the date the appointment was accorded to them. On getting the request aforesaid negatived by the Chairman of the Bank under a communication dated 4.5.1992, an application to initiate proceeding under Contempt of Courts Act, 1971 was filed by the petitioners but that too came to be rejected by this Court under an order dated 19.8.1994 which reads as under: “In this case the petitioner has sought the relief of fixation which is not covered by the impugned order & therefore, for fixational benefits, the petitioners must avail any legal remedy available to him under law. The contempt petition is, therefore, dismissed with the aforesaid observations.” The petitioners then preferred this petition for writ claiming fixational benefits with assertion that this Court in earlier petitions 4 decided on 11.4.1991 directed the Bank to accord appointment to them from the date of filing writ petitions, and as such, they were entitled for appointment in a grade. As per learned counsel for the petitioner the service conditions of the petitioners are regulated in accordance with “Dungarpur Banswara Kshetriya Gramin Bank (Staff) Service Regulations, 1985” and Clause 35 of that provides for grant of pay and allowances to an officer from commencement of service with Bank and also that as per Regulation 13, seniority of an officer of the bank is dependent to his appointment in grade or scale, as such, effect to the order dated 11.4.1991 passed by this Court could have been given only by making fixation of the petitioners' pay in the grade concerned from the date of giving effective appointment to them. It is further stated that during pendency of the earlier petition for writ preferred by the petitioners, as a consequent to subsequent process of selection certain other persons were employed as officer and they are receiving higher pay although they are officers junior than the petitioners. As per learned counsel for the petitioner no junior can be permitted to avail higher pay than an officer senior to him without having any justifiable reason. The claim of the petitioners is contested by the respondents with a preliminary objection that the principles of res judicata and constructive res judicata do not permit the petitioners to agitate the 5 cause and relief claimed in present petition. According to learned counsel for the respondents the petitioners could have sought relief in the earlier petition as the dispute had arisen by that time, as is being sought now. The principle of res judicata is not a rule of technicality but is based on high public policy to bring about an end to litigation by giving finality to judgments inter parties and save a litigant from harassment in second time. Rule of constructive res judicata postulates that if a plea could have been taken by a party in a proceeding between him and his opponent, he could not be permitted to take that plea against the same party in a subsequent proceeding, but here in the earlier petition and in the present one, the issue is relating to appointment and all its consequential benefits including fixation of pay. This issue was very much alive when the earlier petition was filed and as a matter of fact the Court in specific and unambiguous terms settled entitlement of the petitioners without giving any direction regarding fixation of the pay as now desired by the petitioners, meaning thereby the court denied the relief which is now claimed. In view of that the present petition for writ is barred by constructive res judicata or principles analogous to res judicata. On merits it is stated by the respondents that expectation of the petitioners relating to fixation of pay from the date of their appointment i.e. the date of filing earlier petitions for writ is ill- 6 founded in view of the fact that by order dated 11.4.1991 this Court in most specific and unambiguous terms settled entitlement of the petitioners and whatever settled is already given to them. No direction was given by the Court for making fixation of the petitioners' pay as now desired by them. It is also asserted that no fixation of pay can be or could have been made without getting any appointment and drawing of salary. The petitioners had not drew any salary from the date of filing of writ petition to the date of issuance of order of appointment, and therefore, no fixation of pay for the period aforesaid is admissible. It is also urged on behalf of the respondents that the actual payment of salary is made to the petitioners from the date they joined service with respondent-bank and that was as a consequent to the directions give by this Court. A justifiable reason, therefore, is available to the bank to allow higher pay to juniors of the petitioners, who were employed with the bank as Officer prior to actual joining of the petitioners on the post concerned. Beside the above, it is also contended by learned counsel for the respondent-Bank that the petitioners accepted appointments under the order dated 8.5.1991 without any protest or objection, and therefore, it is not open for them to claim anything that is contrary to the conditions referred in the order aforesaid specially the contents of para (2) of that order. Heard counsel for the parties. 7 Before coming to merits of the case it shall be appropriate to examine objection raised by learned counsel for the respondent relating to applicability of the principles of constructive res judicata. As per respondents, in the instant matter the entire issue relating to appointment of the petitioners and benefits consequential thereto were examined by this Court in the writ petitions those came to be decided on 11.4.1991, as such, the present petition is barred by constructive res judicata or principles analogous to res judicata. To substantiate the contention learned counsel for the respondents has heavily placed reliance upon various judgments of Hon'ble Supreme Court including Devi Lal Modi Vs. Sales Tax Officer, Ratlam & Ors. {AIR 1965 SC 1150} and State of Uttar Pradesh Vs. Nawab Hussain {AIR 1977 SC 1680}. In the cases above Hon'ble Apex Court in unequivocal terms laid down following principles: 1. The doctrine of res judicata is based on two theories:(i) the finality and conclusiveness of judicial decisions for the final termination of disputes in the general interest of the community as a matter of public policy, and (ii) the interest of the individual that he should be protected from multiplication of litigation. 8 2.(a) In certain cases, the same set of facts may give rise to two or more causes of action. In such cases res judicata is not confined to the issues which the Court is actually asked to decide but covers issues or facts which are so clearly part of the subject matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them. This rule has been refereed to as constructive res judicata which is an aspect or amplification of the general principle. (b) Section 11 of the Code of Civil Procedure, with its six explanations, covers almost the whole field, but the section has, in terms, no application to a petition for the issue of a high prerogative writ. (c) Though the provisions of Code of Civil Procedure are not applicable to writ proceedings the principles of res judicata and doctrine of constructive res judicata is applicable to writ petitions in view of the fact that if it would be open to a party to take one proceeding after another and urge new ground every time then that will be inconsistent with considerations of public policy. Application of the above principles in the present case deserves examination. In earlier petitions for writ the petitioners certainly 9 sought directions for appointment with all consequential benefits and while accepting those petitions this Court directed the respondents, (i) to accord appointment to the petitioners on the post of officers w.e.f. the date of their filing writ petitions, (ii) they will not be paid salary during the period they have not worked, and (iii) the period aforesaid shall be counted for their seniority and pension purposes. From the directions above it is apparent that appointment was required to be given to the petitioners from the date of filing writ petitions by them but they were declared entitled for getting actual salary only on joining service. The term, “appointment” though is not defined under the Staff Service Regulations, 1985, however, as per Clause 35 of the Regulations aforesaid pay and allowances shall accrue to an officer from the commencement of service. Similarly, as per Regulation 13 seniority of such an officer is also required to be reckoned with reference to the date of his appointment in the grade or scale. From the provisions aforesaid it is apparent that an appointment is always required to be made in a grade or scale and an officer becomes entitled for pay and allowances from commencement of service. The term, “commencement of service” is defined under Regulation 7 and as per that, “service of a person appointed in the bank shall commence on the working date on which he reports for duty on a post in accordance with the terms and conditions of the offer of appointment made to 10 him.” The date of reporting for duty in the case in hand is the date on which the petitioners filed earlier writ petitions. This reporting is by way of an assumption to give effect to the directions given by this Court. The respondents have also reckoned seniority of the petitioners from the date of filing earlier petitions for writ by them. Para (2) of the order of appointment in most unambiguous terms stipulates that the effective date of appointment of the petitioners will be from the date of filing of earlier writ petitions by them. However, pay of the petitioners is not fixed in the grade applicable from the date of giving effect to their appointment as officer. The case of the petitioners is that commencement of service includes fixation of pay in applicable grade, therefore, a notional fixation of pay should have been made from the date of appointment without making actual payment of salary. The dispute that whether the appointment includes fixation of pay in grade was not an issue under adjudication in previous petition. True it is, that the Court in previous litigation denied payment of the salary for the period the petitioners did not work, but that is an issue separate to fixation of pay in grade. A person earns salary by work done, however, fixation of pay is much concerned with appointment and commencement of service. The payment of salary is an actual act i.e. the payment of the cost of work done, whereas fixation is only an entitlement or mode for determination of the cost of work done or that may be done. Such fixation may be virtual or notional. In previous 11 litigation the entitlement of the petitioners pay fixation was neither adjudicated nor was ripe for adjudication. As a matter of fact, whatever relief now claimed by the petitioners is not repetition of the claims already settled but is an interpretation of the rights given by the Court and also determination of right relating to fixation of pay in grade as a consequent to appointment as “Officer”. In light of the discussion above I am of the view that the principles of res judicata and constructive res judicata are not having any application in present case. While examining merits of the case it is pertinent to note that by the order dated 11.4.1991 while deciding earlier petitions for writ preferred by the petitioners a specific direction was given by this Court to accord appointment to the petitioners as officer w.e.f. the date of filing those petitions for writ with determination of seniority from the date of their appointment. Meaning thereby the petitioners for all purposes are in employment of respondent-bank from the date they filed previous petitions for writ. In view of it, the petitioner No.1, Sh. Madan Puri is in continuous employment of respondent Bank since 28.11.1988, the petitioner No.2 Dinesh Kumar is in continuous employment since 2.1.1989, petitioner No.3 Mangal Ram since 1.1.1989 and the petitioner No.4 Umaid Ujjawal, is in continuous employment of the respondent – Bank since 2.2.1989. By an assumption, the service of 12 the petitioners commenced from the dates given above. As per Regulation 35 of the Regulations of 1985 an officer is entitled for pay and allowances from the commencement of service. Similarly, as per Regulation 13 seniority of an officer of the bank is required to be reckoned with reference to the date of his appointment in that grade or scale. The respondent-bank is admittedly treating the petitioners employed from the dates they filed earlier petitions for writ and from those dates they are also reckoning their seniority. The commencement of service and placement in seniority is dependent to placement in a grade or scale, as such, for giving effect to the directions given by this Court on 11.4.1991 it was essential for the respondents to place the petitioners in a grade or scale. The only denial by the court under the order dated 11.4.1991 is regarding actual payment of salary but not for placement in a grade or scale. As a matter of fact, in view of the provisions of Regulation 35 read with Regulation 13 of the Regulations of 1985 placement of an officer in a grade or scale is necessary while making appointment. A regular appointment in view of the provisions above commences only on placement of an officer in grade or a scale. If this court permits the respondents not to place the petitioners in a grade or scale from the date of their appointment then effect of that would be deferment of appointment till placement in such grade and that was not intention of this Court while deciding earlier petitions for writ preferred by the 13 petitioners, came to be decided on 11.4.1991. Another argument raised by learned counsel for the petitioner is that the petitioners were entitled to be employed as officer with respondent-bank as a consequent to their regular selection in the year 1986, however, that was erroneously denied and the respondent-bank employed certain other persons as a consequent to separate process of selection and the persons so employed are junior than the petitioners in the cadre of officers but they are receiving higher pay than the petitioners. As per learned counsel for the petitioners less payment of pay to the petitioners than to their juniors is highly unjust and arbitrary. To meet the contention aforesaid learned counsel for the respondents has placed reliance upon judgment of Hon'ble Supreme Court in Government of Andhra Pradesh & Anr. Vs. M. Pandurang and Ors. {SCC 1996 (7) 11}, wherein it was held that parity cannot be claimed by the seniors, if some juniors by the circumstances of length of service were drawing higher scale of pay. Learned counsel for the respondents has also placed reliance upon judgment of Hon'ble Apex Court in the case of Government of A.P. And Others Vs. V.Veera Raghavan {1999 (9) SCC 266), wherein it was held that when a single running pay is provided in a cadre, the constitutional mandate of equal pay for equal work is satisfied. Ordinarily, grant of higher pay to a junior would be ex facie arbitrary but if there are justifiable grounds in 14 doing so, the seniors cannot invoke the equality doctrine. As per learned counsel for the respondents in the instant matter the petitioners secured appointment as officer as a consequent to the directions given by this Court without salary, therefore, a justifiable reason is available for giving less pay to the petitioners than their juniors. The constitutional mandate as per Article 14 read with Article 39 (d) of the Constitution of India is that the persons discharging same duties must be given same pay. By prescribing a common pay scale the constitutional mandate is certainly satisfied, however, Article 14 of the Constitution of India provides a shield to every person to protect himself from arbitrariness . A person senior in service may not be necessarily getting a pay higher than his junior but payment of pay lesser than the juniors without any reasonable cause is certainly arbitrary. In the instant case the respondent-bank want to justify payment of less pay to the petitioners on the count that appointment to them was given as a consequent to the directions given by this Court without salary. As a matter of fact, the petitioners without having any wrong on their part have already lost actual payment of salary for which they would have been otherwise entitled if the bank would have acted in accordance with law by giving them appointment as officers at right time. In true sense no justifiable reason is available with the bank for keeping the 15 petitioners at lower pay than their juniors. The respondent-bank due to its own wrong can not be permitted to put the petitioners at loss for all times to come. Such wrong is required to be rectified by making fixation of the petitioners' pay in the grade applicable to the post of officer from the date of their initial appointment. By making such fixation the petitioners can also be protected from a arbitrariness that is resulting in their heart-burning due to less payment of salary than to juniors. I do not find any force in the argument advanced by learned counsel for the respondents that no order regarding fixation can be given for the period the petitioners had not drew salary in view of the directions given by this Court on 11.4.1991. So far as payment of salary is concerned that is having no relevance with fixation of pay on notional basis. The courts while settling equities between the parties and to extend due relief to an entitled litigant adopts various modes while construing its directions. The fixation of pay on notional basis is also one among those modes and devices, and therefore, to secure the ends of justice this court is having ample powers to give directions for making fixation of a person's pay on notional basis. In the instant case too, if the petitioners are held entitled to get their pay fixed from the date of effective appointment then this Court is having ample power to pass an 16 appropriate order in this regard. The contention of learned counsel for the respondents that without giving challenge to the conditions referred in para 2 of the order of appointment it is not open to claim anything that is contrary to the conditions referred in the order aforesaid is also having no merit. From examination of the contents of the order of appointment I am satisfied that there is nothing on basis of that a specific denial could have been inferred regarding fixation of pay from the date of effective appointment, and as such, there was no need to challenge the conditions made in order of appointment. The cause of the petitioners arose when the respondent-bank did not fix their pay in the grade concerned from the date of their effective appointment and by specific denial in this regard by Chairman of the Bank. In view of whatever said above this petition for writ deserves acceptances, and therefore, the same is allowed. The respondent-bank is directed to fix pay of the petitioners in the pay scale applicable for the post of officer from the date of their effective appointment as per the directions given by this Court under the order dated 11.4.1991. No order as to costs. (GOVIND MATHUR),J. jgoyal