Dismissed

Shriram Baburao Pisal v. the State of Maharshtra and Ors.

Bombay HC22 Jan 2021WP/9219/2011

Case brief

AI extract

What is this about?

A writ petition challenging the department's failure to decide representations regarding pension benefits and interest. The Court dismissed the petition, holding that the petitioner was precluded by the principle of constructive res judicata from claiming these specific reliefs as they could and should have been raised in a previous dismissed litigation.

What did the court decide?

No relief granted. The writ petition stands dismissed with no order as to costs.

Shriram Baburao Pisal Vs the State of… — Pension and Retirement Benefits | Bombay HC (2021)

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wp921911.odt

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IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO. 9219 OF 2011

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Dr. Shriram s/o Baburao Pisal

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Petitioner

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Versus

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The State of Maharashtra & others

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Respondents

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Mr. H.V. Tungar, advocate for the petitioner. Mr. S.G. Karlekar, AGP for the respondents 1 to 4. Mr. A.V. Hon, advocate for the respondents 5 & 6.

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CORAM : DIPANKAR DATTA, CJ & RAVINDRA V. GHUGE, J.

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DATE : JANUARY 22, 2021

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PC :

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By presenting this writ petition, the petitioner has prayed for an order on the respondents 1 to 4 to decide his representations dated 2^nd February, 2009 and 18^th February, 2009 within such time as may be fied by this Court. In the alternative, it is prayed that the respondents may be directed to pay interest on the increment granted to the petitioner, as claimed in the aforesaid representations.

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Relying on Government Resolution dated 22^nd November, 1994, Mr. Tungar, learned advocate for the petitioner, contends that the petitioner is entitled to relief as claimed.

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It has been brought to our notice by Mr. Karlekar, learned AGP appearing for the respondents 1 to 4, that the

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petitioner had previously approached this Court by presenting Writ Petition No.2605 of 2007 praying for issuance of writ of mandamus directing the respondents therein to determine the pay scale of the petitioner in pursuance to Government Resolution dated 11^th December, 1999 with efect from 1^st January, 1996 instead of 14^th August, 1998 and that such petition was disposed of by a coordinate Bench of this Court by order dated 17^th June, 2008, with the following directions:

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“In the light of that statement made at paragraph No.13 of the afdavit-in-reply, we allow this petition and direct the respondents to place the petitioner in Selection Grade with efect from 1.1.1996 and grant him the necessary benefts with efect from 1.1.1996 since the petitioner fulflls the criteria for grant of the aforesaid benefts. Other conseuuential benefts including payment of salary, arrears of salary, etc. to be paid to the petitioner as per the provisions of Government Resolution dated 11.12.1999. Rule is thus made absolute on the terms indicated above with no order as to costs.”

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In the light of the aforesaid decision, it is contended on behalf of the respondents that the present attempt of the petitioner to seek benefts under Government Resolution dated November 22, 1994 is hit by the principle of constructive res judicata. Reliance, in this regard, is placed on the decision of the Supreme Court in M. Nagabhushana Vs. State of Karnataka & others , reported in 2011 (2) ALL MR 423 (S.C.).

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We have noted the decision in M. Nagabhushana (supra). We also wish to refer to the decision of the Supreme

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Court in Forward Construction Co. & others Vs. Prabhat Mandal (Regd.), Andheri & others , reported in (1986) 1 SCC 100; particularly paragraph no.20 thereof wherein the principle of constructive res judicata has been eiplained in the following words:

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“20 So far as the frst reason is concerned, the High Court in our opinion was not right in holding that the earlier judgment would not operate as res judicata as one of the grounds taken in the present petition was conspicuous by its absence in the earlier petition. Eiplanation IV to Section 11 CPC provides that any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in such suit. An adjudication is conclusive and fnal not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had it decided as incidental to or essentially connected with the subject matter of the litigation and every matter coming within the legitimate purview of the original action both in respect of the matters of claim or defence. The principle underlying Eiplanation IV is that where the parties have had an opportunity of controverting a matter that should be taken to be the same thing as if the matter had been actually controverted and decided. It is true that where a matter has been constructively in issue it cannot

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be said to have been actually heard and decided. It could only be deemed to have been heard and decided. The frst reason, therefore, has absolutely no force.”

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Government Resolution dated 22^nd November, 1994 was in eiistence when the petitioner had approached this Court in the frst round of litigation by presenting Writ Petition No. 2605 of 2007 and the beneft, if any, fowing from such Government Resolution could have been made a ground of attack by the petitioner. Not having made the said Government Resolution a ground for attacking the action of the respondents in such writ petition, and in the absence of any direction being made regarding grant of interest by the aforesaid order dated 17^th June, 2008, the petitioner is precluded in law, namely Eiplanation IV to Section 11 of the Code of Civil Procedure, from claiming the same relief which he could have claimed in the earlier round of litigation but did not actually claim.

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For the aforesaid reasons, this writ petition stands dismissed. There shall be no order as to costs.

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(RAVINDRA V. GHUGE, J.) (CHIEF JUSTICE)

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adb

Shriram Baburao Pisal v. the State of Maharshtra and Ors.

Case brief

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Shriram Baburao Pisal v. the State of Maharshtra and Ors.

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