Compilation Vol 3 Corrected (1-943).pmd - Goa Public Service ...

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in the selection, she is estopped to challenge the correctness of the procedure. That
apart, we have already held that procedure was correctly followed and, therefore, The
omission to mention in the advertisement that it was a special recruitment is of no
consequence. The further finding of the High Court relates to Proviso 1 to Rule 4 which
provides that when duly qualified candidates are available, the appointment shall be made
of them. In other words, if duly qualified candidates are not available, then advertisement
could be made for selection. That rule is applicable to the general recruitment. But with
reference to the special recruitment of the candidates belonging to the Scheduled Castes
and Scheduled Tribes. Rules 12 to 17-A stand attracted. In addition, as seen earlier, the
advertisement came to be made as early as on 22.4.1982 by which time the Resolution
of the Syndicate was not adopted, the same having been adopted on 7.3.1982. So, Rule
4 is inapplicable to the special recruitment advertised on 1.10.1981. Therefore, the later
Resolution applying Rule 4 has no retrospective effect. It is contended by the learned
counsel for Respondent 1 that Respondents 3 and 4 have left the jobs and so there is no
need to disturb the appointment of the first Respondent. As they are said to be on foreign
service, they are entitled to join back on their posts. Thus considered, the High Court
was clearly in error in allowing the Writ Petitions.”
14.7He submitted that even though Mr. G.Kumar, Applicant in Application No.4600/2007 filed an
Application earlier that was also after submitting application to the KPSC and without challenging the
Rules. Therefore, he is deemed to have given up challenge to the Rule by operation of ‘constructive
res judicata’. All prayers regarding the validity of the Rules, Notification and Creamy Layer were
available to be made when the said Mr. Kumar approached this Tribunal in A.4600/2007. But he did
not do so. Whatever prayers he had made were also withdrawn by him except prayer to consider his
representation. Therefore, the principle of ‘Constructive res judicata’ operates and withdrawal is
dismissal on merits albeit on a concession made by the Applicant. In this regard, the learned Counsel
relied on the following decisions:
(1) FORWARD CONSTRUCTION COMPANY v. PRABHATH MANDAL (R) - (1986) 1
SCC 100 (paras 19, 20),
Karnataka PSC
“19. The second question for consideration is whether the present Writ Petition is barred
by res judicata. This plea has been negatived by the High Court for two reasons: (1) That
in the earlier Writ Petition the validity of the permission granted under Rule 4 (a) (i) of the
Development Control Rules was not in issue; and (2) that the earlier Writ Petition filed by
Sri Thakkar was not a bonafide one inasmuch as he was put up by some disgruntled
builder, namely M/s. Western Builders.
20. So far as the first 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 it absence in the earlier Petition. Explanation IV to Section 11 CPC