1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION W.P. NO. 5789 OF 2000 WITH CIVIL APPLICATION NO.1066 OF 2007 Mrs.Sheila Rajan ] Residing at Prakash Park ] B-9, 147, Lulla Nagar, ] Pune-411040 ]..Petitioner Vs. 1. Union of India, through ] The Secretary, Ministry of ] Defence, New Delhi ] 2. Director General Armed ] Forces Medical Services ] Ministry of Defence, ] `M ’ Block, New Delhi ] 2. The Commandant, ] Armed Forces, Medical ] College, Solapur Road, ] Pune ]..Respondents .... Mr.G.K.Masand Adv. for Petitioner Mr.Vinod Joshi with Mr.Y.R.Mishra Adv. for Union of India .... 2 CORAM : BILAL NAZKI AND SMT.V.K.TAHILRAMANI,JJ. RESERVED ON : JUNE 09, 2009 DECLARED ON : JULY 10, 2009 ORAL JUDGMENT: [PER V.K.TAHILRAMANI,J.] 1. In this writ petition, the petitioner has challenged the order dated 31st January, 2000 passed by the Central Administrative Tribunal by which the Tribunal has dismissed Original Application No.705 of 1994 filed by the petitioner as being barred by principles of constructive res-judicata holding that in the earlier Original Application, the petitioner had raised the same plea for upgradation of her post of Speech Therapist, hence, the Tribunal had not granted her the relief prayed for. 2. Facts as narrated by the petitioner, can briefly be summarized as under: Petitioner joined Armed Forces Medical College, Pune in 1971 as Speech Therapist. She was placed in “Group-C ” in pay-scale of Rs.270-485. The petitioner ’s case is that Speech Therapist at other Central Government Hospitals were either placed in “Group-A ” or “Group-B ” which carried much higher pay-scales. Petitioner, therefore, represented to her superiors for upgradation of her post. The college authorities also recommended her case for upgradation but the Ministry of Defence under which the Armed Forces Medical College was functioning, took no decision in the matter and ultimately in February, 1990, a reply was given to the petitioner that since there was Government ban on creation/upgradation of the post, nothing 3 could be done. 3. Petitioner then approached Central Administrative Tribunal by filing Original Application No.429 of 1990 which was disposed of by the Tribunal by order dated 2nd April, 1992. In the order, the Tribunal noted that Respondent ’s assertion that petitioner ’s claim for upgradation of the post of Speech Therapist, was taken up with the office of the Directorate General, Armed Forces Medical Service vide letter dated 23rd September, 1981 and it was informed vide letter dated 28th May, 1986 that there was complete ban on creation/upgradation of the post and her case would be processed further as and when the ban was relaxed. The Tribunal further noted in the order dated 2nd April, 1992 that her case was again put up to the Ministry of Defence and the Ministry vide letter dated 27th February, 1990 stated that the ban was still in force and her case would be taken up on lifting ban. The Tribunal further noted the statement of Respondents ’ counsel that the petitioner had been compulsorily retired and therefore, the Original Application deserves to be dismissed. The Tribunal noted that it was strange in the Armed Forces also letters are replied after five years and held that if the petitioner ’s case would have been considered earlier, it was just possible that she should have got desired relief which was considered only when the ban was imposed. The Tribunal, therefore, could not grant any relief to the petitioner because of the delay and laches on the part of the Government but held that it was a fit case that as and when ban was removed, her case for upgradation shall be considered by the respondents without any delay. 4 4. Petitioner subsequently learnt that the respondents had made incorrect statement before the Tribunal while stating that there was ban on upgradation when in fact, there was no such ban. Petitioner also learnt that respondents had upgraded various other posts during the same period. She, therefore, filed Contempt Petition No.162 of 1993 in O.A.No. 299 of 1990. The Tribunal by its order dated 18th March, 1994 passed in Contempt Petition, held that while there was no contempt with regard to plea of the petitioner that there was gross discrimination against the petitioner by selectively applying ban to her but the same was not applied in other cases. The Tribunal granted liberty to the petitioner to pursue her remedy by filing a fresh Original Application on the plea of discrimination. The Tribunal also held that petitioner ’s case was such that Respondent-Department had not acted with utmost rectitude. 5. In the light of the liberty granted by the Tribunal, petitioner filed Original Application No.705 of 1994 and when said Original Application came up for hearing on 30th September, 1979, the Tribunal noted that though the Respondents ’ case had been that there was a ban on creation of post which was still operating, the respondents had not brought on record any documentary evidence to support the said case. The respondents had relied upon circular of 1984 with regard to the ban which states that ban will operate only upto September, 1984. Respondents were therefore, directed to file affidavit with regard to the ban and relevant Government orders as well as order by which upgradation proposed was rejected. The hearing 5 thereafter was adjourned to 22nd October, 1999. 6. Thereafter, it appears that no documentary evidence was filed on behalf of the Respondents. Despite this the Tribunal vide impugned order dismissed Original Application on the ground of constructive res-judicata. The petitioner raised following point for determination. (i) Could the principles of res-judicata and constructive res-judicata be applied as has been applied by the Central Administrative Tribunal in the case filed by the Petitioner when the Tribunal itself had granted liberty to the petitioner in the earlier proceedings to pursue the remedy available to her on the basis of fresh cause of action? 7. We are of the view that the earlier Original Application was disposed of by the Tribunal accepting the Respondents ’ plea of ban on upgradation. When the Tribunal itself noted in its order dated 30th September, 1999 that the ban was only upto September, 1999 and further the Tribunal had granted liberty to the petitioner to pursue her case by filing a fresh Original Application, the Tribunal ought not to have dismissed the Original Application on the ground of constructive res-judicata. This is, therefore, a fit case for this Court to exercise writ jurisdiction. Looking to the fact that the petitioner has been agitating her case since a long time, we feel that ends of justice would be met if we issue directions to the respondents to consider the petitioner ’s case for upgradation of post of Speech Therapist in the light of the fact that in other Central Government Hospitals, the post of Speech Therapist was placed either in “Group-A ” or “Group-B ” service and to give effect to the 6 same at the earliest as the petitioner would be superannuated on completion of sixty years of age on 31st July, 2009. 8. Petition is accordingly allowed and disposed of. Rule made absolute accordingly. In view of the disposal of the writ petition, civil application is also disposed of. [ BILAL NAZKI,J. ] [ SMT.V.K.TAHILRAMANI,J.]