IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR ------------------------------------------------------ SPECIAL APPEAL (WRIT) No. 352 of 1998 FATEH SINGH V/S STATE & ORS Mr. Sabir Khan for Mr. Pradeep Shah, for the appellant/s. Mr. K.K. Bissa, for the respondent/s. Date of Order : 05.05.2009 HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI GOVIND MATHUR,J. ORDER By this appeal the appellant seeks to challenge the order of learned Single Judge dated 28.1.1998, dismissing the petitioner's writ petition. The case has an interesting story, in as much as the appellant claims to have been appointed as Assistant Secretary of the Gram Panchayat vide order dated 2.3.1983, and was terminated vide order dated 6.9.1984. For quashing the above termination order the appellant filed writ petition No.3060/1984, which was ultimately allowed vide judgment dated 13.12.1994, and the only order passed was as under: “In the result, the petition is allowed. The order of termination dt. 6.9.84 is set aside.” It is thereafter that the present writ petition has been filed on 25.2.1995, praying for a direction to the respondents to make payment of salary to the petitioner from October 1985 till date, which includes basic pay, dearness allowance (as revised from time to time), house-rent allowance, city compensatory allowance, bonus, interim relief, increments and the benefit of revision of pay scale from time to time, and has also prayed for payment of interest at the rate of 24% on the amount that became due to be paid to the petitioner as above. The relevant averments in this regard are, that the interim stay was granted by the Court on 16.10.1984, and the petitioner continued to work on the said post, and therefore, requested for release of salary for the entire period till date. Thereupon, the Gram Panchayat appraised the Block Development Officer, that the petitioner has been working in light of stay order granted by the High Court, and he has not been paid salary, and that the Gram Panchayat is unable to make payment against salary to the petitioner. Then the petitioner approached the Gram Panchayat for release of salary in December 1984, and 2 requested for release of salary from October 1985, but to no good. This is the whole thrust of the writ petition. Separate replies have been filed, being one set of reply by the State and Panchayat Samiti, and other reply has been filed by the Gram Panchayat, though taking practically identical stand. The thrust of the reply, inter alia is, that the petitioner is not working as Assistant Secretary, nor any such record is there, which may show, that he is working, it is also contended, that if the petitioner feels to be entitled to any relief, he has alternative remedy of filing a civil suit. Further it is clear that the petitioner is a rich business man, so much so, he has established so called “Fateh Nagar Colony” and has deposited Rs.52,000/- with Gram Panchayat, in lieu of development charges, and is a property dealer. Copies of few registered sale deeds executed by the petitioner have been placed on record, and thus, the petitioner has earned lacks of rupees in ten years. Then it is submitted, that it is nowhere borne out from the record that the petitioner ever worked as Assistant Secretary at Gram Panchayat, although the appointment has been provided by the then Sarpanch, but from the record it is not borne out that he worked, rather there is evidence, that the petitioner 3 was provided undue favour by the then Sarpanch. It is also stated that on inquiry it was found, that the petitioner was not working as Assistant Secretary even since the year 1983, and no such record in that regard is available. The Vikas Adhikari specifically asked the Sarpanch, vide letter dated 20.4.1995, regarding the factual position, and the Sarpanch specifically replied, that the petitioner never worked as Assistant Secretary since year 1983. The copies of the letter of one former Sarpanch and Village Level Worker were also forwarded. The copy of the correspondence is also produced along with the reply. It was also pleaded, that the letter dated 6.11.1991 has never been written by Gram Panchayat, but same was written by the then Administrator Sh. Shanti Lal Soni, who was working as former Village Level Worker cum Secretary of the Gram Panchayat, and submissions in that regard have already been made in foregoing paras of the reply. It has also been pleaded, that since the petitioner has obtained undue favour from the then Village Level Worker Shri Shanti Lal Soni, and from the then Sarpanch Shri Mana Ram, and that the respondents inquired, and found, that illegal payments have been made to the petitioner, and he has been unduly favoured by the then Village Level Worker. Thus, the whole long and short of the reply is, that 4 the petitioner never worked, whether consequent upon being appointed, or consequent upon the passing of the stay order, or consequent upon the setting aside of the termination order. A stand has also been taken, that in the attendance registers pertaining to year December 1989 and January 1993 the name of the petitioner has not been shown as an employee, and copies of those registers were also produced on record. A re-joinder has been filed, and the petitioner has tried to explain his business of property, by simply stating, that in order to make both ends meet, he had to sell plots, and that the stand of the respondents, that the petitioner is not working is contemptuous, and the petitioner was constrained to file contempt petition. However, it has not been clarified, as to what had been the outcome thereof. It is on this material that the learned Single Judge found, that while allowing the writ petition No.3060/1984, the Court did not issue any direction regarding payment of salary and back-wages, and only quashed the termination order dated 6.9.1984, so much so, that no order for reinstatement was passed either. It has been held, that on the principles of Order 2 5 Rule 2 of CPC, the petitioner can not be allowed to lay the claim, as sought to be laid by the present writ petition, and for that purpose a couple of judgments of Hon'ble Supreme Court have been relied upon by the Single Judge. It has thus been found, that the petition is barred by the principles enshrined in Order 2 Rule 2 CPC, and principle of constructive res- judicata. We have heard learned counsel for the parties, and on specific query, learned counsel for the appellant replied, firstly, that the order passed in writ petition No.3060/1984 was not challenged further by way of filing any appeal for claiming consequential benefits. It is also informed, that the petitioner is not in the job. In our view when the petitioner challenged the order of termination being dated 6.9.1984, he was required to, and was supposed to, claim relief of reinstatement, back wages and other consequential benefits. Since it is not shown, as to whether those relief were claimed, or not, we are handicapped to appreciate the stand, however, the fact remains, that in the judgment rendered in writ petition No.3060/1984, copy whereof has been produced as Annexure-1, it is clear, that except setting aside the 6 order of termination being dated 6.9.1984, no other relief was granted to the petitioner. From perusal of the Annexure-1 it also appears, that perhaps there was something fishy against the petitioner, and therefore, it was clarified, that if the Gram Panchayat seeks any disciplinary action against the petitioner, it was at liberty to take such action strictly in accordance with law. Since what was the delinquency to which this observation relates, we need not go into that aspect of the matter. The fact does remain, that remedy available to the petitioner was to have challenged the order Annexure-1 by further appeal, to lay claim regarding the reliefs claimed in the present writ petition. That having not been done the present writ is clearly barred by the principle of Order 2 Rule 2 CPC and the principle of constructive res- judicata. In our opinion the learned Single Judge has rightly found the present writ petition to be so barred. In the result of the discussion made above, we do not find any force in the appeal, and the same is therefore dismissed. ( GOVIND MATHUR ),J. ( N P GUPTA ),J. /jgoyal/ 7