T.N. Gomathinayagam Vs. D. Dayal and ors. - Court Judgment

Excerpt:
(i) service - promotion - rule 4 of madras corporation engineering service rules, 1969 - whether ten years service would include even period of service rendered in lower category posts and not merely period of service rendered in feeder category posts - rule 4 provides for promotion to post of assistant executive engineer where engineering degree holders must have five years of service and diploma holders must have ten years of service in feeder category posts after promotion from lower posts - period served in lower posts also included in ten years period. (ii) interpretation - whether expression 'one or more categories' in rule 4 (1) (d) would include only feeder category posts or include lower category post - state government issued memorandum for interpreting expression - government not provided different interpretation to earlier rule framed - held, term 'one or more categories' in proviso would include lower category posts as stated in impugned memorandum - writ petition dismissed. (iii) res judicata - section 86 of city municipal corporation act and section 11 of code of civil procedure, 1908 - claim was barred by res judicata in view of decision given by court earlier - petition sought to quash order of corporation on grounds that 14 engineering degree holders had not completed five years of service and 3:1 ratio between degree holders and diploma holders was bad - in appeal order of promotion was struck down and direction was given to revise seniority and consider promotions according to statutory rules under section 86 - reliance was placed on principle under explanation iv of section 11 - issue in petition was 'deemed to have been constructively in issue' and taken as decided in earlier writ petition - held, petition dismissed. - - , the state government deliberately wanted to make a deviation from the other two cases of municipal engineer grade iii or supervisor (public health). 11. therefore, dealing with the other reasoning of the learned single judge that even on fundamental principles when qualifications are prescribed for the post of assistant executive engineer, they will only refer to the qualifications in the feeder category and it would be uncommon to include the services in the lower category, unless there are specific indications, we would like to point out that there are such specific indications in the present case, that is, in the case of the abovesaid draftsmen, overseers and surveyors promoted as junior engineers, head surveyors or head draftsmen no doubt, the other reasoning of the learned single judge is that the government cannot by executive instructions, give a different interpretation to a rule framed by it, though it could amend the rule, so that it gives a different meaning. state of haryana [1984]2scr476 observes as follows :while we are aware of the difference between the proficiency of a person with a degree who enters service by direct recruitment and of a person who is promoted after he has acquired certain experience in the same kind of work in a lower cadre, we should state that in administrative and professional services a combination of high educational qualifications and long experience is always preferred so that the service may be efficient by each of them supplementing the other'.dealing with a similar situation, the supreme court also observed as follows :this extra experience of three years appears to have been treated as being sufficient to make good the deficiency, if any, that may arise by reasons of the assistant engineer in the class ii service possessing only a diploma and not a degree. no doubt it was pointed out by the learned counsel for respondents that in the abovesaid rules, 1969 at one place supervisors, head draftsmen and head surveyors belonging to the same category are referred to as 'categories'.but, we also find that generally in the same rules, posts of different levels in class ii, like executive engineer, senior assistant electrical engineer, assistant engineer other than assistant engineer (electrical) are referred to as falling under different 'categories',viz. 19. further, the learned counsel also submits that when such similar rules are there in other departments like the abovesaid public works department, it has to be presumed that the government when it framed the above referred to rules of corporation engineering service in 1969, was aware of the meaning it has given to the abovesaid term 'in one or more categories' used in the abovesaid proviso in question. further, according to him, he is fully qualified for promotion, but the abovesaid 14 engineering degree holders have not completed their required qualified service of five years and the relaxation of the said 5 year rule is bad. december 21, 1989 that the abovesaid promotions, having been continued for over ten years, could not be treated as temporary promotions, so as to come under the relevant section 87(4) of the city municipal corporation act and that the above fixation of 3:1 ratio and the (promotion), without amending the rules, is bad. it is not safe to extend the principle of res judicata to such an extent so as to found it on mere guess work. but the position is substantially different when a writ petition is dismissed either at the threshold or after contest without expressing any opinion on the merits of the matter, then no merit can be deemed to have been necessarily and impliedly decided and any another remedy of suit or other proceeding will not be barred on the principle of res judicata' following the above said observation of the supreme court, we think the principle of res judicata can very well be applied to the present writ petition also since it is neither a different 'proceeding' spoken to by the supreme court in the above said observation, nor there is 'uncertain assumption' spoken to therein.orderabdul hadi, j. 1. wa no. 506/91 is by the 3rd respondent in wp 3105/86 and against the order dt. march 21, 1991 in the said writ petition allowing the same. the said writ petition is by one d. dayal, possessing engineering degree qualification and working in the madras corporation, the 2nd respondent in the said writ petition and 3rd respondent herein. the 1st respondent in the said writ petition, who is the 2nd respondent in this appeal, is the state of tamilnadu. the writ petitioner is the 1st respondent in this appeal. the 3rd respondent-appellant is a diploma holder in the service of the said corporation. 2. the question in the writ petition relates to the promotion to the post of assistant executive engineer (who was earlier called assistant engineer) other than assistant engineer (electrical) in the said corporation engineering service. as per rule 4 of the relevant rules, viz., madras corporation engineering service rules, 1969 (hereinafter referred to as 'the rules') framed by the state government, in exercise of its powers conferred by section 86(1) and section 347(2)(a) of the madras city municipal corporation act, 1919, eligibility to the aforesaid post of asst. engineer, other than assistant engineer (electrical), is b.e. degree and service as asst engineer (supervisor) in the corporation engineering subordinate service, municipal engineer grade iii, junior engineer or supervisor (public health) for a period of not less than 5 years on duty. however, if the person to be promoted is an engineering diploma holder in engineering (and not an engineering degree holder as above stated), clause (i)(d) of the abovesaid rule relating to promotion to category 3 post, viz., the post of asst. engineer, other than assistant engineer (electrical), provides the service qualification as follows :- '(d) diploma in civil or mechanical engineering ...... provided that draftsmen, overseers and surveyors of the corporation engineering subordinate service promoted as supervisors in the same service, head surveyors and head draftsmen of the corporation engineering subordinate service, municipal engineer, grade iii or supervisor (public health) possessing the qualifications referred to in item (d) above shall be eligible for appointment as assistant engineers only if they have put in a total service of not less than 10 years in one or more categories or as municipal engineer, grade iii, or as supervisor (public health).' further, according to the said rule 4 in either of the two cases, that is, degree holder case or diploma holder case, the relevant account test should also have been passed. thus, for promotion to the post of assistant executive engineer (asst. engineer) in so far as engineering degree holders are concerned, the feeder category posts are asst. engineer (supervisor) and in that feeder category, five years service must have been put in to claim eligibility for promotion. then for the diploma holders, the feeder category posts are; supervisors who are called junior engineers, head surveyors and head draftsmen, who were promoted from the lower category posts of overseers, surveyors and draftsmen. in this latter case, ten years service is prescribed as against the five years service prescribed for degree holders as stated above. 3. but the only controversy in w.p. no. 3105 of 1986 is whether the abovesaid ten years service would include even the period of service rendered in the above said lower category posts and not merely the period of service rendered in the feeder category posts. as stated above, the abovesaid rule contained in the above said proviso, while prescribing qualification for eligibility for the abovesaid promotion, says that the said diploma holders must have put in 'a total service of not less than 10 years in one or more categories'. the whole question in this writ petition, only relates to the interpretation of the abovesaid term 'one or more categories,' that is, whether the said term means only the abovesaid feeder category post of junior engineer (supervisor) or head surveyor or head draftsman or would also include lower category post, viz., overseer, surveyor or draftsman. in this connection the 2nd respondent state has issued the impugned memorandum dated august 14, 1978, inter alia interpreting in paragraph (2) point 11 of the abovesaid memorandum, the abovesaid term 'one or more categories' as to include even the lower category posts of overseers, surveyors or draftsmen (and not simply junior engineers (supervisors) head surveyors or head draftsmen). aggrieved by the said interpretation in the said memorandum, the writ petitioner has filed the abovesaid writ petition (1) to quash the abovesaid portion of the memorandum, viz., the abovesaid paragraph 2 point (11) thereof, on the ground that the abovesaid term would mean only the service rendered in the abovesaid feeder category of the junior engineer (supervisor), head surveyor or head draftsman and not the lower category post of overseer, surveyor or draftsman and (2) to direct the respondents-state and the corporation accordingly to take into account for the purpose of computing the qualifying service and seniority etc., only of the abovesaid feeder category posts for the purpose of promotion as assistant executive engineer. 4. the learned single judge, who decided the said writ petition, along with certain other writ petitions, has accepted the abovesaid contention of the writ petitioner in wp no. 3105/86 and has allowed the writ petition, by his common order, dt. march 21, 1991. aggrieved by the said order, this writ appeal has been filed by the 3rd respondent in the said writ petition, whose contention is that the abovesaid term 'one or more categories' means not only any one of the abovesaid feeder category posts, but also any one of the abovesaid lower category posts. 5. subsequent to the said order dt. march 21, 1991 in favour of the abovesaid degree holders, the above said wp no. 3938/92 has been filed by a degree holder in the service of madras metropolitan water supply and sewerage board, which sought to adopt the above said memorandum dt. august 14, 1978 of the state government in relation to its service rules also relating to similar promotions. the said writ petition, pursuant to the abovesaid order dt. march 21, 1991 in wp 3105/85 sought to for-bear the said board, the respondent in the writ petition from relying on the abovesaid memorandum dt. august 14, 1978 for considering the promotion to the post of assistant executive engineer in the abovesaid board's technical service. thus, the decision to be given in the abovesaid writ appeal will automatically apply to this subsequent wp 3938/92 also. the learned counsel for the writ petitioner in wp 3938/92 who is also the counsel for the 1st respondent in the writ appeal (writ petitioner in wp 3105/86) also submitted so. therefore, the averments in the affidavit in wp 3938/92 are not adverted to in any detail. 6. the reasonings of the learned single judge in allowing the writ petition 3105/86 are as follows :- (i) if one examines the above referred to rule 4, he can say that five years of service as a municipal engineer grade iii in respect of degree holders is considered as equal to ten years as municipal engineer grade iii in respect of diploma holders and therefore, the length of service which the rule contemplates, is in the feeder category posts alone, viz., junior engineers, head surveyors or head draftsmen in the madras corporation engineering subordinate service. (ii) even a proper reading of the abovesaid proviso itself suggests that the reference to draftsmen, overseers and surveyors of the corporation engineering subordinate service is made only because such persons, 'when' promoted to the feeder category of junior engineers, head surveyors, head draftsmen are required to put in ten years of service to become eligible to the post of assistant executive engineers. (iii) even on fundamental principle, when qualifications are prescribed for the post of assistant executive engineer, they will refer only to the feeder category. it would be uncommon to include the services in the lower category, unless there are specific indications; (iv) no doubt it is for the government to say as to the length of service, which is necessary for a person to get himself qualified for promotion. but, when the statutory rules are clear, it would not be proper for the government to clarify the rule by way of an executive direction, giving a different inter pretation to the rules. (v) the anomaly, if the interpretation given in memorandum is accepted, may be as follows :- when, a person in the lower category of draftsmen, overseers or surveyors puts in 10 years of service in the lower category and is promoted to the feeder category of junior engineers, head surveyors or head draftsmen, then without putting any length of service in the feeder category, he becomes eligible to the higher post of assistant executive engineer. this could not be the intention of the rule making authority when the said proviso was introduced. 7. before dealing with the main submissions of learned counsel for the appellant, one other submission made by him, but not very much pressed into service, is the submission relating to the latches, in filing the writ petition 3105/86 by the 1st respondent in the appeal, only in 1986 though the impugned memorandum was of the year 1978. no doubt in paragraph 8 of the affidavit filed in support of the said writ petition, the petitioner dayal avers as follows : 'the said memorandum was never officially communicated to the petitioner and it is only when the petitioner came to know of the recent move of the respondents to implement the same that the petitioner is obliged to challenge the same. consequently, there was no occasion for the petitioner to challenge the same earlier'.in view of this averment, the judgment of the learned single judge says that writ petitioner came to know of the memorandum when the respondents sought to implement the memorandum and that the writ petition cannot be dismissed on the ground of latches. but we find that the said averment does not actually say when the writ petitioner came to know of the said memorandum. he only says that when the writ petitioner came to know of the recent move of the respondents to implement the same that the petitioner is obliged to challenge the same. it appears that the writ petitioner did not deliberately aver therein when actually he came to know of the said memorandum but cleverly worded the abovesaid averment in such a way that it may lead to the abovesaid conclusion reached by the learned single judge. in fact, as pointed out by the learned counsel for the appellant, in an earlier affidavit sworn to on march 26, 1979 and in support of wmp 2414/79 (in an earlier writ petition no. wp 2810/78) filed by the madras corporation graduate engineers association represented by the present writ petitioner dayal himself, the said dayal deposed as follows :- 'the state government in and by its r.d. & l.a. department memorandum no. 14357 (a) m.vi/78-3 dt. august 14, 1978 clarified the position in regard to the 5 years service rule as b.e. degree holder in the following terms.' 8. however, since the learned counsel for the appellant, in fairness, expressed that he did not press for a decision on this technical ground of laches we are not giving further consideration to the said question and proceed to deal with the case on merits. 9. then, we may now deal with the abovesaid reasonings of the learned single judge in the light of the submissions made before us. no doubt according to the abovesaid rule, five years of service as municipal engineer grade iii in respect of degree holders is considered as equal to ten years as municipal engineer grade iii in respect of diploma holders. in view of this fact, the learned single judge concludes thus :- 'therefore, the length of service which the rules contemplate is in the feeder category'. it is so in the case of the feeder category of municipal engineer grade iii. but, the question is (whether) the said conclusion could be reached even in the case of draftsmen, overseers or surveyors of the corporation engineering subordinate service, promoted as junior engineers, head surveyors or head draftsmen of the same service, while considering their eligibility for promotion, to the same post of assistant executive engineers. here, what is stipulated in the abovesaid proviso is 'only if they have put in a total service of not less than ten years in one or more categories', they will be so eligible. in other words, in this case, it is not mentioned thus :- 'only if they have put in a total service of not less than ten years as junior engineers, head surveyors or head draftsmen of the corporation engineering subordinate service.' according to the learned counsel for the appellant, this difference in the expression used in the promotion rule in relation to the abovesaid corporation engineering subordinate service employees, only indicates a deviation from the corresponding rule applicable to the abovesaid municipal engineer grade iii or the other employees, supervisor (public health) referred to in the proviso. according to the said counsel, there is an inherent evidence in the said proviso itself suggesting the abovesaid deviation from the rule applicable to the other persons, viz., the abovesaid municipal engineer grade iii and supervisor (public health). 10. further, the said learned counsel also points out that the abovesaid second reasoning of the learned single judge is not correct. the said second reasoning is that even a proper reading of the proviso itself suggests that the reference to draftsmen, overseers and surveyors of the corporation engineering subordinate service is made only for the purpose of pointing out that such persons 'when promoted' to the feeder category of junior engineers, head surveyors, head draftsmen are required to put in 10 years service to become eligible to the post of assistant executive engineers. according to the learned counsel, the abovesaid reasoning of the learned single judge amounts to reading something into the rule, which is not there. we also see force in this argument also. a plain reading of the rule would only mean that the draftsmen etc., promoted to the feeder category of junior engineers, etc., are eligible for promotion to the post of assistant executive engineer if they have put in a total service of not less than 10 years in one or more categories. in the abovesaid context, the term 'one or more categories' cannot be restricted only to the feeder category, viz., junior engineers, head surveyors or head draftsmen, but it would include even the lower category of draftsmen, overseers and surveyors because the term 'they' used in the expression 'only if they have put in a total service' would grammatically refer to draftsmen, overseers and surveyors who are promoted as junior engineers, head surveyors or head draftsmen. no doubt, in the case of municipal engineer grade iii, the rule specifically says that in the case of diploma holder, he should have put in 10 years of service 'as municipal engineer grade iii'. likewise, in the case of supervisor (public health) also. but, in the case now in question, the rule does not say that total service of not less ten years 'as junior engineer, head surveyor and head draftsman' but uses a different phraseology, viz., 'total service of not less than 10 years in one or more categories'. in the context in which the abovesaid different phraseology is used, we think the rule making authority, viz., the state government deliberately wanted to make a deviation from the other two cases of municipal engineer grade iii or supervisor (public health). 11. therefore, dealing with the other reasoning of the learned single judge that even on fundamental principles when qualifications are prescribed for the post of assistant executive engineer, they will only refer to the qualifications in the feeder category and it would be uncommon to include the services in the lower category, unless there are specific indications, we would like to point out that there are such specific indications in the present case, that is, in the case of the abovesaid draftsmen, overseers and surveyors promoted as junior engineers, head surveyors or head draftsmen no doubt, the other reasoning of the learned single judge is that the government cannot by executive instructions, give a different interpretation to a rule framed by it, though it could amend the rule, so that it gives a different meaning. but, as stated above, we do not think that the government in the present case, by issuing the abovesaid impugned memorandum, has given a different interpretation to the earlier rule framed by it. in fact, the learned counsel for the appellant points out that if a clarification of a rule framed by the government is give by the government itself, it should normally clinch the matter. in this connection, the learned counsel cited the following observation of the supreme court given in ajeet singh singhvi v. state of rajasthan (1991 - ii - llj - 336 at 342) : 'besides the government being the author of the rule, has kept to itself, as a matter of prudence, the right to remove any ambiguity about the identification of any post including the highest post/posts. the stance of the government in this regard should have clinched the matter but since the same had been put forth as a defense in the high court, its view nonetheless in entitled to great weight and the burden of the appellants to lift that weight, an uphill task by all means, has remained unfulfilled.' 12. further, in order to emphasize that the plain reading should be adopted in interpreting the rule, the learned counsel relies on the decision an authorised officer, thanjavur v. naganatha ayyar air 1979 s.c. 1478. no doubt, the learned single judge also points out, as stated above, an 'anomaly' if the interpretation given in the impugned memorandum is accepted, that is, when a person in the abovesaid lower category puts in 10 years of service in the said category itself and is promoted to the abovesaid feeder category, then, without putting any length of service in the feeder category, he becomes eligible to the higher post of asst. executive engineer. according to the learned single judge, this could not be the intention of the rule making authority. but, when, according to us, the language used in the proviso is clear in so far as the lower category of employees promoted to the abovesaid feeder category, we do not think that there is really any anomaly, since the rule-making authority has deliberately framed the rule in that way in so far as those persons are concerned. 13. in fact, the learned counsel for the appellant points out two decisions of the supreme court which have held that experience gained in such lower category also can be an acceptable qualification. one of the two decisions, a. s. parmar v. state of haryana : [1984]2scr476 observes as follows : 'while we are aware of the difference between the proficiency of a person with a degree who enters service by direct recruitment and of a person who is promoted after he has acquired certain experience in the same kind of work in a lower cadre, we should state that in administrative and professional services a combination of high educational qualifications and long experience is always preferred so that the service may be efficient by each of them supplementing the other'. dealing with a similar situation, the supreme court also observed as follows :- 'this extra experience of three years appears to have been treated as being sufficient to make good the deficiency, if any, that may arise by reasons of the assistant engineer in the class ii service possessing only a diploma and not a degree.' in the other decision in b. n. saxena v. new delhi municipal committee : air1990sc2021 , the supreme court has observed in a similar situation as follows :- 'the second limb of the rule was evidently to benefit all those persons who have gained sufficient experience as senior and junior draftsmen without possessing any qualification. experience gained for a considerable length of time is itself a qualification (see the observation in state of u.p. v. j. p. chaurasia 1989 i llj - 309' 14. no doubt, the learned counsel for the respondents posed the question why should the abovesaid overseer, surveyors and draftsmen of the corporation engineering subordinate service promoted to the above feeder category posts alone, should be treated differently from the above said municipal engineer grade iii and supervisor (public health). but a plain reading of the said proviso, as stated above, leads to the conclusion that the intention of the government is to give a different treatment in respect of the above said employees of corporation subordinate engineering service. further, we are not concerned with the validity of the said rule contained in the proviso. all that we have to decide in this writ petition is whether the interpretation given in the above said impugned memorandum is correct or not. 15. further, the above said rules of 1969 relating to the corporation engineering service of class i-a, i-b and ii officers, framed by the state government pursuant to section 86(1)(i) of the madras city municipal corporation act, 1919, while the madras corporation engineering subordinate service bye-laws 1981 relating to class iii and iv employees of the corporation are made pursuant to section 86(1)(ii) of the above said act. in the latter by-laws, we find from bye-law no. 2 therein that the above said supervisors, head draftsmen, head surveyors are grouped under one category, viz., category i and the abovesaid overseers, surveyors and draftsmen are grouped under another 'category', viz., category ii. so also we think what is meant by the abovesaid expression 'one or more categories' is the abovesaid both the groups. no doubt it was pointed out by the learned counsel for respondents that in the abovesaid rules, 1969 at one place supervisors, head draftsmen and head surveyors belonging to the same category are referred to as 'categories'. but, we also find that generally in the same rules, posts of different levels in class ii, like executive engineer, senior assistant electrical engineer, assistant engineer other than assistant engineer (electrical) are referred to as falling under different 'categories', viz., category 1, category 2 and category 3. so, we think that the term 'one or more categories' appearing in the above referred to proviso should be held to mean one or more categories of not only the higher level employees, viz., supervisors, head surveyors and head draftsmen, but also lower level employees of overseers, surveyors and draftsmen. 16. no doubt the learned counsel for the respondents also points out that as per the said rules qualifying service of five years stipulated for degree holders is only in the feeder category and not in the lower category of overseers etc., even though there is no bar for the degree holders to enter the service initially in that lower category. but rarely degree holders would opt for joining as overseer etc., initially, while they are entitled to be straightway taken in the higher posts as supervisor (assistant engineer), head draftsmen, head surveyor, which right admittedly is not available to diploma holders since they can join the service only as overseers etc., and they only can be promoted to supervisor (junior engineer), surveyor or draftsman. this may be the reason for the abovesaid rule. anyway, since the rule relating to 10 years service of diploma holders as stated above, is plain, we do not think that the rule relating to the abovesaid five year service of degree holders could influence the interpretation of the rule relating to qualifying service of 10 years in respect of diploma holders. 17. further, the decision of the andhra pradesh high court in v. ramachandra moorthy v. the government of a.p. 1971 aplj 439` cited by the learned counsel for the appellant in interpreting a similar rule, it has been observed as follows :- 'the total service put in by supervisors even in a lower category has to be taken into consideration for purposes of determination of the qualifying service.' this decision of a single judge of the andhra pradesh high court has also been confirmed by a division bench of the said court in m. raghavalu v. govt. of a.p. 1973 (2) slr 229, and where the reasoning of the said division bench is as follows :- 'we are inclined to agree with his view not only for the reason which the learned judge has given but also because if 10 years or 20 years service as supervisors was intended, nothing could have been simpler than to mention it as was done in the same provision, earlier. except in very few and rare cases, no supervisor having the upper subordinate qualification could ever expect to become, assistant engineer after completing 10 years' service as such. the same reasoning but with greater force applies to a supervisor who has merely a diploma of lower subordinate. it is not possible for many of them to complete 20 years of service as supervisor with a view to get promotion as assistant engineer. the omission of the words 'in that category or service' as such brings out the intention of the farmers prominently that persons possessing lower qualifications should have more experience in order to earn promotion to the post of assistant engineer. thus, while a graduate engineer is required to put in 5 years' service, a supervisor possessing lower qualification is required to put in three or four times service though not in the same category as supervisor'. further, state of a.p. v. n. ramachandra rao : [1990]3scr55 cited by the said counsel also indicates that service in lower category should be included in determining the seniority. 18. the learned counsel for the appellant also brought to our notice that in the rules relating to public works department of the state government also, there was a similar proviso as follows :- 'provided that draftsmen and overseers of the madras engineering subordinate service promoted as supervisors in the same service and head draftsmen and draftsmen i grade of the madras engineering subordinate service possessing the qualifications referred to above shall be eligible for appointment as assistant engineers, only if they have put in a total service of not less than 15 years and 10 years respectively in one or more of the categories.' but, subsequently when the said rule was amended, the said rule was amended as follows :- 'provided that draftsmen and overseers of the tamilnadu engineering subordinate service promoted as supervisors in the same service possessing the qualifications referred to above shall be eligible for appointment as assistant engineers only if they have put in a total service of not less than ten years, of which atleast five years shall be as section officers in the public works department.' so, according to the learned counsel, whenever the government wanted to specify that for the purpose of promotion, qualifying period of service must be in the feeder service fully or partly, it specifically says so, as is found in the above said amended proviso of the tamilnadu engineering service rules. we see force in this argument also. 19. further, the learned counsel also submits that when such similar rules are there in other departments like the abovesaid public works department, it has to be presumed that the government when it framed the above referred to rules of corporation engineering service in 1969, was aware of the meaning it has given to the abovesaid term 'in one or more categories' used in the abovesaid proviso in question. in this connection he relied on the following passage in page 436 of crawford's interpretation of laws, 1989 reprint :- 'we must presume that the legislature passes each and every statute with a knowledge of existing law'. he also referred to the following passage in state of tamil nadu v. mahi traders : 1989(40)elt266(sc) :- 'it has been pointed out by this court in desh bandhu gupta v. delhi stock exchange association ltd., : [1979]3scr373 and k. p. varghese v. ito : [1981]131itr597(sc) that a contemporaneous exposition by the administrative authorities is a very useful and relevant guide to the interpretation of the expressions used in a statute.' we see force in this argument of the learned counsel for the appellant also. so, on a pure interpretation of the abovesaid rule, we hold that the term 'one or more categories' in the abovesaid proviso would also include the above said lower category posts as stated in the impugned memorandum and that this writ petition should be dismissed. 20. the other submission of the learned counsel for the appellant is that the writ petitioner cannot have the relief claimed by him in this writ petition since his present claim is barred by res judicata, in view of the earlier decision given by this court on april 4, 1983 in w.p. no. 4457/79 filed by the appellant herein against the corporation of madras and others including the writ petitioner herein and the decision given on december 21, 1989 in the appeal therefrom in wa no. 154/85. that earlier writ petition was filed to quash an order of the corporation of madras promoting 18 persons consisting of 14 engineering degree holders and 4 engineering diploma holders as assistant executive engineers adopting the ratio of 3:1 as between the degree holders and diploma holders. according to the writ petitioner therein (the appellant herein), he entered the service as overseer and thereafter was promoted as supervisor, having put in, in all, a total service of more than ten years at the time when the said writ petition was filed. further, according to him, he is fully qualified for promotion, but the abovesaid 14 engineering degree holders have not completed their required qualified service of five years and the relaxation of the said 5 year rule is bad. he also attacked the amendment made in the rules fixing the above said ratio of 3:1. hence the writ petitioner therein sought for quashing the relevant order of the corporation of madras. the said writ petition was considered by this court along with other similar writ petitions and in the above said order dt. april 8, 1983 it was held that the abovesaid impugned promotions were purely on temporary basis and that hence the said writ petitioner (appellant herein) and the other connected writ petitioners could not have any legitimate grievance. however, in the appeal therefrom, this court held by the abovesaid order dt. december 21, 1989 that the abovesaid promotions, having been continued for over ten years, could not be treated as temporary promotions, so as to come under the relevant section 87(4) of the city municipal corporation act and that the above fixation of 3:1 ratio and the (promotion), without amending the rules, is bad. therefore, in the writ appeal, the impugned order of promotion was truck down and the writ appeal of the present appellant and the other connected writ appeals were allowed by this court and direction was given to revise the seniority and consider promotions strictly in accordance with the statutory rules framed under section 86 of the above said act. 21. now the question is whether the abovesaid decision in the earlier proceeding would bar the present petition on the principle of res judicata. the learned counsel for the appellant relies on explanation iv to section 11 cpc and the decision in direct recruit class ii engineering officers' assn. v. state of maharashtra : [1990]2scr900 . his submission is that the present issue in this writ petition though was not directly and substantially in issue in the above said earlier proceeding, the present writ petitioner, who was respondent in the earlier proceeding, should have raised the question at issue in the present case, as a defence to the abovesaid earlier writ petition and that, therefore, the principle underlying explanation iv to section 11 cpc would apply. the said explanation iv no doubt says 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 issue in the latter suit. further, the above referred to : [1990]2scr900 has also held as follows :- 'the decision in forward construction co. v. prabhat mandal (regd.) andheri (1986) 1 scc 100) further clarified the position by holding that an adjudication is conclusive and final 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 decided as incidental to or essentially connected with subject matter of litigation and every matter coming into the legitimate purview of the original action both in respect of the matters of claim and defence. thus, the principle of constructive res judicata underlying explanation iv of section 11 of the code of civil procedure was applied to writ case. we, accordingly, hold that the writ case is fit to be dismissed on the ground of res judicata'. but, on the other hand, the learned counsel for the respondents points out that as per section 11 cpc the bar of res judicata will come in only if the parties were 'litigating under the same title'. but, we are unable to see how the parties were not litigating under the same title in the above said earlier proceeding and the present proceeding. in the abovesaid earlier writ petition of the present appellant, the present writ petitioner was one of the respondents and both of them were litigating only in their individual capacities, both in the earlier proceeding and in this proceeding. no doubt, one of the questions involved in the earlier proceeding was whether the relaxation effected to the abovesaid five year valued relating to the degree holders-respondents therein was proper, while in the present writ petition the question is whether the diploma holder writ petitioner herein is eligible for promotion even though he has not completed the required ten year qualifying service in the abovesaid feeder category alone. but, in answer to the earlier writ petition, the degree holder respondent therein (in writ petitioner dayal herein) could have pleaded that the writ petitioner gomathinayagem therein himself was not having the required qualification of ten year service in the abovesaid feeder category post itself. admittedly in june, 1979, when the promotions impugned in the earlier writ petition of gomathinayagam (the appellant herein), the said gomathinayagem, a diploma holder had not completed the required ten year service in the feeder category of supervisor, but had completed the said ten years service only after taking into account the lower category post earlier held by him also. so the said dayal could have easily taken the defence in the earlier writ petition to non-suit gommathinayagem therein. so, we think the principle underlying explanation iv to section 11 cpc would apply. 22. even in the workmen of cochin port trust v. board of trustees of cochin port trust : (1978)iillj161sc cited by the learned counsel for the respondents, it is observed as follows (p. 165) : 'the principle of res judicata also comes into play when by the judgment and order a decision of a particular issue is implicit in it, that is, it must be deemed to have been necessarily decided by implication; then also the principle of res judicata on that issue is directly applicable. when any matter which might and ought to have been made a ground of defence or attack in a former proceeding but was not so made, then such a matter in the eye of law, to avoid multiplicity of litigation and to bring about finality in it, is deemed to have been constructively in issue and, therefore, is taken as decided ..... but the technical rule of res judicata, although a wholesome rule based upon public policy, cannot be stretched too far to bar the trial of identical issues in a separate proceeding merely on an uncertain assumption that the issues must have been decided. it is not safe to extend the principle of res judicata to such an extent so as to found it on mere guess work. to illustrate our view point, we may take an example. suppose a writ petition is filed in a high court for grant of a writ of certiorari to challenges some order or decision on several grounds. if the writ petition is dismissed after contest by a speaking order, obviously it will operate as res judicata in any other proceeding, such as, of suit, art. 32 or art. 136 directed from the same order or decision. if the writ petition is dismissed by a speaking order either at the threshold or after contest, say, only on the ground of laches or the availability of an alternative remedy, then another remedy open in law either by way of suit or any other proceeding obviously will not be barred on the principle of res judicata. of course, a second writ petition on the same cause of action either filed in the same high court or in another will not be maintainable because the dismissal of one petition will operate as a bar in the entertainment of another writ petition. similarly even if one writ petition is dismissed in limine by a non-speaking one word order 'dismissed' another writ petition would not be maintainable because even the one word order, as we have indicated above, must necessarily be taken to have decided impliedly that the case is not a fit one for exercise of the writ jurisdiction of the high court. another writ petition from the same order or decision will not lie. but the position is substantially different when a writ petition is dismissed either at the threshold or after contest without expressing any opinion on the merits of the matter, then no merit can be deemed to have been necessarily and impliedly decided and any another remedy of suit or other proceeding will not be barred on the principle of res judicata'following the above said observation of the supreme court, we think the principle of res judicata can very well be applied to the present writ petition also since it is neither a different 'proceeding' spoken to by the supreme court in the above said observation, nor there is 'uncertain assumption' spoken to therein. on the other hand, it can be safely held that the issue figuring in this writ petition can be 'deemed to have been constructively in issue and, therefore, is taken as decided', in the earlier writ petition. so, for this reason also, the present writ petition should be dismissed. 23. for all these reasons, the writ appeal is allowed, the order of the learned single judge is set aside and the writ petition is dismissed. however, in the circumstances, there will be no order as to costs throughout. consequent on the above said decision, wp 3938/92 is also dismissed. but the additional reasoning based on the principle of res judicata will not apply to this case no costs.

Judgment:
ORDER

Abdul Hadi, J.

1. WA No. 506/91 is by the 3rd respondent in WP 3105/86 and against the order dt. March 21, 1991 in the said writ petition allowing the same. The said writ petition is by one D. Dayal, possessing Engineering Degree qualification and working in the Madras Corporation, the 2nd respondent in the said writ petition and 3rd respondent herein. The 1st respondent in the said writ petition, who is the 2nd respondent in this appeal, is the State of Tamilnadu. The writ petitioner is the 1st respondent in this appeal. The 3rd respondent-appellant is a Diploma Holder in the service of the said Corporation.

2. The question in the writ petition relates to the promotion to the post of Assistant Executive Engineer (who was earlier called Assistant Engineer) other than Assistant Engineer (Electrical) in the said Corporation Engineering Service. As per Rule 4 of the relevant rules, viz., Madras Corporation Engineering Service Rules, 1969 (hereinafter referred to as 'the Rules') framed by the State Government, in exercise of its powers conferred by Section 86(1) and Section 347(2)(a) of the Madras City Municipal Corporation Act, 1919, eligibility to the aforesaid post of Asst. Engineer, other than Assistant Engineer (Electrical), is B.E. Degree and service as Asst Engineer (Supervisor) in the Corporation Engineering Subordinate service, Municipal Engineer Grade III, Junior Engineer or Supervisor (Public Health) for a period of not less than 5 years on duty. However, if the person to be promoted is an Engineering Diploma Holder in Engineering (and not an Engineering Degree Holder as above stated), Clause (i)(d) of the abovesaid Rule relating to promotion to Category 3 post, viz., the post of Asst. Engineer, other than Assistant Engineer (Electrical), provides the service qualification as follows :-

'(d) Diploma in civil or Mechanical Engineering ...... Provided that Draftsmen, Overseers and Surveyors of the Corporation Engineering Subordinate Service promoted as Supervisors in the same service, Head Surveyors and Head Draftsmen of the Corporation Engineering Subordinate Service, Municipal Engineer, Grade III or Supervisor (Public Health) possessing the qualifications referred to in item (d) above shall be eligible for appointment as Assistant Engineers only if they have put in a total service of not less than 10 years in one or more categories or as Municipal Engineer, Grade III, or as Supervisor (Public Health).'

Further, according to the said Rule 4 in either of the two cases, that is, Degree holder case or Diploma holder case, the relevant Account Test should also have been passed. Thus, for promotion to the post of Assistant Executive Engineer (Asst. Engineer) in so far as Engineering Degree Holders are concerned, the feeder category posts are Asst. Engineer (Supervisor) and in that feeder category, five years service must have been put in to claim eligibility for promotion. Then for the Diploma Holders, the feeder category posts are; Supervisors who are called Junior Engineers, Head Surveyors and Head Draftsmen, who were promoted from the lower category posts of Overseers, Surveyors and Draftsmen. In this latter case, ten years service is prescribed as against the five years service prescribed for Degree Holders as stated above.

3. But the only controversy in W.P. No. 3105 of 1986 is whether the abovesaid ten years service would include even the period of service rendered in the above said lower category posts and not merely the period of service rendered in the feeder category posts. As stated above, the abovesaid Rule contained in the above said proviso, while prescribing qualification for eligibility for the abovesaid Promotion, says that the said Diploma Holders must have put in 'a total service of not less than 10 years in one or more categories'. The whole question in this writ petition, only relates to the interpretation of the abovesaid term 'one or more categories,' that is, whether the said term means only the abovesaid feeder category post of Junior Engineer (Supervisor) or Head Surveyor or Head Draftsman or would also include lower category post, viz., Overseer, Surveyor or Draftsman. In this connection the 2nd respondent State has issued the impugned memorandum dated August 14, 1978, inter alia interpreting in paragraph (2) point 11 of the abovesaid memorandum, the abovesaid term 'one or more categories' as to include even the lower category posts of Overseers, Surveyors or Draftsmen (and not simply Junior Engineers (Supervisors) Head Surveyors or Head Draftsmen). Aggrieved by the said interpretation in the said memorandum, the writ petitioner has filed the abovesaid writ petition (1) to quash the abovesaid portion of the memorandum, viz., the abovesaid paragraph 2 point (11) thereof, on the ground that the abovesaid term would mean only the service rendered in the abovesaid feeder category of the Junior Engineer (Supervisor), Head surveyor or Head Draftsman and not the lower category post of Overseer, Surveyor or Draftsman and (2) to direct the respondents-State and the Corporation accordingly to take into account for the purpose of computing the qualifying service and seniority etc., only of the abovesaid feeder category posts for the purpose of promotion as Assistant Executive Engineer.

4. The learned Single Judge, who decided the said writ petition, along with certain other writ petitions, has accepted the abovesaid contention of the writ petitioner in WP No. 3105/86 and has allowed the writ petition, by his Common Order, dt. March 21, 1991. Aggrieved by the said Order, this writ appeal has been filed by the 3rd respondent in the said writ petition, whose contention is that the abovesaid term 'one or more categories' means not only any one of the abovesaid feeder category posts, but also any one of the abovesaid lower category posts.

5. Subsequent to the said order dt. March 21, 1991 in favour of the abovesaid Degree Holders, the above said WP No. 3938/92 has been filed by a Degree Holder in the service of Madras Metropolitan Water Supply and Sewerage Board, which sought to adopt the above said memorandum dt. August 14, 1978 of the State Government in relation to its Service Rules also relating to similar promotions. The said writ petition, pursuant to the abovesaid order dt. March 21, 1991 in WP 3105/85 sought to for-bear the said Board, the respondent in the writ petition from relying on the abovesaid memorandum dt. August 14, 1978 for considering the promotion to the post of Assistant Executive Engineer in the abovesaid Board's Technical Service. Thus, the decision to be given in the abovesaid writ appeal will automatically apply to this subsequent WP 3938/92 also. The learned counsel for the writ petitioner in WP 3938/92 who is also the counsel for the 1st respondent in the writ appeal (writ petitioner in WP 3105/86) also submitted so. Therefore, the averments in the affidavit in WP 3938/92 are not adverted to in any detail.

6. The reasonings of the learned Single Judge in allowing the Writ Petition 3105/86 are as follows :-

(i) If one examines the above referred to Rule 4, he can say that five years of service as a Municipal Engineer Grade III in respect of Degree Holders is considered as equal to ten years as Municipal Engineer Grade III in respect of Diploma Holders and therefore, the length of service which the Rule contemplates, is in the feeder category posts alone, viz., Junior Engineers, Head Surveyors or Head Draftsmen in the Madras Corporation Engineering Subordinate Service.

(ii) Even a proper reading of the abovesaid proviso itself suggests that the reference to Draftsmen, Overseers and Surveyors of the Corporation Engineering Subordinate Service is made only because such persons, 'when' promoted to the feeder category of Junior Engineers, Head Surveyors, Head Draftsmen are required to put in ten years of service to become eligible to the post of Assistant Executive Engineers.

(iii) Even on fundamental principle, when qualifications are prescribed for the post of Assistant Executive Engineer, they will refer only to the feeder category. It would be uncommon to include the services in the lower category, unless there are specific indications;

(iv) No doubt it is for the Government to say as to the length of service, which is necessary for a person to get himself qualified for promotion. But, when the statutory Rules are clear, it would not be proper for the Government to clarify the Rule by way of an executive direction, giving a different inter pretation to the Rules.

(v) The anomaly, if the interpretation given in memorandum is accepted, may be as follows :- When, a person in the lower category of Draftsmen, Overseers or Surveyors puts in 10 years of service in the lower category and is promoted to the feeder category of Junior Engineers, Head Surveyors or Head Draftsmen, then without putting any length of service in the feeder category, he becomes eligible to the higher post of Assistant Executive Engineer. This could not be the intention of the rule making authority when the said proviso was introduced.

7. Before dealing with the main submissions of learned counsel for the appellant, one other submission made by him, but not very much pressed into service, is the submission relating to the latches, in filing the Writ Petition 3105/86 by the 1st respondent in the appeal, only in 1986 though the impugned memorandum was of the year 1978. No doubt in paragraph 8 of the affidavit filed in support of the said writ petition, the petitioner Dayal avers as follows :

'The said Memorandum was never officially communicated to the petitioner and it is only when the petitioner came to know of the recent move of the respondents to implement the same that the petitioner is obliged to challenge the same. Consequently, there was no occasion for the petitioner to challenge the same earlier'.

In view of this averment, the judgment of the learned Single Judge says that writ petitioner came to know of the memorandum when the respondents sought to implement the memorandum and that the writ petition cannot be dismissed on the ground of latches. But we find that the said averment does not actually say when the writ petitioner came to know of the said memorandum. He only says that when the writ petitioner came to know of the recent move of the respondents to implement the same that the petitioner is obliged to challenge the same. It appears that the writ petitioner did not deliberately aver therein when actually he came to know of the said memorandum but cleverly worded the abovesaid averment in such a way that it may lead to the abovesaid conclusion reached by the learned Single Judge. In fact, as pointed out by the Learned counsel for the appellant, in an earlier affidavit sworn to on March 26, 1979 and in support of WMP 2414/79 (in an earlier writ petition No. WP 2810/78) filed by the Madras Corporation Graduate Engineers Association represented by the present writ petitioner Dayal himself, the said Dayal deposed as follows :- 'The state Government in and by its R.D. & L.A. Department Memorandum No. 14357 (A) M.VI/78-3 dt. August 14, 1978 clarified the position in regard to the 5 years service rule as B.E. Degree holder in the following terms.'

8. However, since the learned counsel for the appellant, in fairness, expressed that he did not press for a decision on this technical ground of laches we are not giving further consideration to the said question and proceed to deal with the case on merits.

9. Then, we may now deal with the abovesaid reasonings of the learned Single Judge in the light of the submissions made before us. No doubt according to the abovesaid rule, five years of service as Municipal Engineer Grade III in respect of Degree Holders is considered as equal to ten years as Municipal Engineer Grade III in respect of Diploma Holders. In view of this fact, the learned Single Judge concludes thus :-

'Therefore, the length of service which the Rules contemplate is in the feeder category'.

It is so in the case of the feeder category of Municipal Engineer Grade III. But, the question is (whether) the said conclusion could be reached even in the case of Draftsmen, Overseers or Surveyors of the Corporation Engineering Subordinate Service, promoted as Junior Engineers, Head Surveyors or Head Draftsmen of the same service, while considering their eligibility for promotion, to the same post of Assistant Executive Engineers. Here, what is stipulated in the abovesaid proviso is 'only if they have put in a total service of not less than ten years in one or more categories', they will be so eligible. In other words, in this case, it is not mentioned thus :-

'Only if they have put in a total service of not less than ten years as Junior Engineers, Head Surveyors or Head Draftsmen of the Corporation Engineering Subordinate Service.'

According to the learned counsel for the appellant, this difference in the expression used in the promotion rule in relation to the abovesaid Corporation Engineering Subordinate Service employees, only indicates a deviation from the corresponding rule applicable to the abovesaid Municipal Engineer Grade III or the other employees, Supervisor (Public Health) referred to in the proviso. According to the said counsel, there is an inherent evidence in the said proviso itself suggesting the abovesaid deviation from the rule applicable to the other persons, viz., the abovesaid Municipal Engineer Grade III and Supervisor (Public Health).

10. Further, the said learned counsel also points out that the abovesaid second reasoning of the learned Single Judge is not correct. The said second reasoning is that even a proper reading of the proviso itself suggests that the reference to Draftsmen, Overseers and Surveyors of the Corporation Engineering Subordinate Service is made only for the purpose of pointing out that such persons 'when promoted' to the feeder category of Junior Engineers, Head Surveyors, Head Draftsmen are required to put in 10 years service to become eligible to the post of Assistant Executive Engineers. According to the learned counsel, the abovesaid reasoning of the learned Single Judge amounts to reading something into the Rule, which is not there. We also see force in this argument also. A plain reading of the Rule would only mean that the Draftsmen etc., promoted to the feeder category of Junior Engineers, etc., are eligible for promotion to the post of Assistant Executive Engineer if they have put in a total service of not less than 10 years in one or more categories. In the abovesaid context, the term 'one or more categories' cannot be restricted only to the feeder category, viz., Junior Engineers, Head Surveyors or Head Draftsmen, but it would include even the lower category of Draftsmen, Overseers and Surveyors because the term 'they' used in the expression 'only if they have put in a total service' would grammatically refer to Draftsmen, Overseers and Surveyors who are promoted as Junior Engineers, Head Surveyors or Head Draftsmen. No doubt, in the case of Municipal Engineer Grade III, the Rule specifically says that in the case of Diploma holder, he should have put in 10 years of service 'as Municipal Engineer Grade III'. Likewise, in the case of Supervisor (Public Health) also. But, in the case now in question, the Rule does not say that total service of not less ten years 'as Junior Engineer, Head Surveyor and Head Draftsman' but uses a different phraseology, viz., 'total service of not less than 10 years in one or more categories'. In the context in which the abovesaid different phraseology is used, we think the rule making authority, viz., the State Government deliberately wanted to make a deviation from the other two cases of Municipal Engineer Grade III or Supervisor (Public Health).

11. Therefore, dealing with the other reasoning of the learned Single Judge that even on fundamental principles when qualifications are prescribed for the post of Assistant Executive Engineer, they will only refer to the qualifications in the feeder category and it would be uncommon to include the services in the lower category, unless there are specific indications, we would like to point out that there are such specific indications in the present case, that is, in the case of the abovesaid Draftsmen, Overseers and Surveyors promoted as Junior Engineers, Head Surveyors or Head Draftsmen No doubt, the other reasoning of the learned Single Judge is that the Government cannot by executive instructions, give a different interpretation to a Rule framed by it, though it could amend the rule, so that it gives a different meaning. But, as stated above, we do not think that the Government in the present case, by issuing the abovesaid impugned memorandum, has given a different interpretation to the earlier Rule framed by it. In fact, the learned counsel for the appellant points out that if a clarification of a Rule framed by the Government is give by the Government itself, it should normally clinch the matter. In this connection, the learned counsel cited the following observation of the Supreme Court given in Ajeet Singh Singhvi v. State of Rajasthan (1991 - II - LLJ - 336 at 342) :

'Besides the Government being the Author of the rule, has kept to itself, as a matter of prudence, the right to remove any ambiguity about the identification of any post including the highest post/posts. The stance of the Government in this regard should have clinched the matter but since the same had been put forth as a defense in the High Court, its view nonetheless in entitled to great weight and the burden of the appellants to lift that weight, an uphill task by all means, has remained unfulfilled.'

12. Further, in order to emphasize that the plain reading should be adopted in interpreting the Rule, the learned counsel relies on the decision an Authorised Officer, Thanjavur v. Naganatha Ayyar AIR 1979 S.C. 1478. No doubt, the learned Single Judge also points out, as stated above, an 'anomaly' if the interpretation given in the impugned memorandum is accepted, that is, when a person in the abovesaid lower category puts in 10 years of service in the said category itself and is promoted to the abovesaid feeder category, then, without putting any length of service in the feeder category, he becomes eligible to the higher post of Asst. Executive Engineer. According to the learned Single Judge, this could not be the intention of the rule making Authority. But, when, according to us, the language used in the proviso is clear in so far as the lower category of employees promoted to the abovesaid feeder category, we do not think that there is really any anomaly, since the rule-making authority has deliberately framed the Rule in that way in so far as those persons are concerned.

13. In fact, the learned counsel for the appellant points out two decisions of the Supreme Court which have held that experience gained in such lower category also can be an acceptable qualification. One of the two decisions, A. S. Parmar v. State of Haryana : [1984]2SCR476 observes as follows :

'While we are aware of the difference between the proficiency of a person with a degree who enters service by direct recruitment and of a person who is promoted after he has acquired certain experience in the same kind of work in a lower cadre, we should state that in administrative and professional services a combination of high educational qualifications and long experience is always preferred so that the service may be efficient by each of them supplementing the other'.

Dealing with a similar situation, the Supreme Court also observed as follows :-

'This extra experience of three years appears to have been treated as being sufficient to make good the deficiency, if any, that may arise by reasons of the Assistant Engineer in the Class II Service possessing only a diploma and not a degree.'

In the other decision in B. N. Saxena v. New Delhi Municipal Committee : AIR1990SC2021 , the Supreme Court has observed in a similar situation as follows :-

'The second limb of the rule was evidently to benefit all those persons who have gained sufficient experience as Senior and Junior Draftsmen without possessing any qualification. Experience gained for a considerable length of time is itself a qualification (See the observation in State of U.P. v. J. P. Chaurasia 1989 I LLJ - 309'

14. No doubt, the learned counsel for the respondents posed the question why should the abovesaid Overseer, Surveyors and Draftsmen of the Corporation Engineering Subordinate Service promoted to the above feeder category posts alone, should be treated differently from the above said Municipal Engineer Grade III and Supervisor (Public Health). But a plain reading of the said proviso, as stated above, leads to the conclusion that the intention of the Government is to give a different treatment in respect of the above said employees of Corporation Subordinate Engineering Service. Further, we are not concerned with the validity of the said Rule contained in the proviso. All that we have to decide in this writ petition is whether the interpretation given in the above said impugned memorandum is correct or not.

15. Further, the above said Rules of 1969 relating to the Corporation Engineering Service of Class I-A, I-B and II Officers, framed by the State Government pursuant to Section 86(1)(i) of the Madras City Municipal Corporation Act, 1919, while the Madras Corporation Engineering Subordinate Service Bye-laws 1981 relating to Class III and IV employees of the Corporation are made pursuant to Section 86(1)(ii) of the above said Act. In the latter by-laws, we find from bye-law No. 2 therein that the above said Supervisors, Head Draftsmen, Head Surveyors are grouped under one category, viz., Category I and the abovesaid Overseers, Surveyors and Draftsmen are grouped under another 'category', viz., Category II. So also we think what is meant by the abovesaid expression 'one or more categories' is the abovesaid both the groups. No doubt it was pointed out by the learned counsel for respondents that in the abovesaid Rules, 1969 at one place Supervisors, Head Draftsmen and Head Surveyors belonging to the same category are referred to as 'categories'. But, we also find that generally in the same Rules, posts of different levels in Class II, like Executive Engineer, Senior Assistant Electrical Engineer, Assistant Engineer other than Assistant Engineer (Electrical) are referred to as falling under different 'Categories', viz., Category 1, Category 2 and Category 3. So, we think that the term 'one or more categories' appearing in the above referred to proviso should be held to mean one or more categories of not only the higher level employees, viz., Supervisors, Head Surveyors and Head Draftsmen, but also lower level employees of Overseers, Surveyors and Draftsmen.

16. No doubt the learned counsel for the respondents also points out that as per the said rules qualifying service of five years stipulated for Degree Holders is only in the feeder category and not in the lower category of Overseers etc., even though there is no bar for the degree holders to enter the service initially in that lower category. But rarely degree holders would opt for joining as Overseer etc., initially, while they are entitled to be straightway taken in the higher posts as Supervisor (Assistant Engineer), Head Draftsmen, Head Surveyor, which right admittedly is not available to diploma holders since they can join the service only as Overseers etc., and they only can be promoted to Supervisor (Junior Engineer), Surveyor or Draftsman. This may be the reason for the abovesaid rule. Anyway, since the rule relating to 10 years service of diploma holders as stated above, is plain, we do not think that the rule relating to the abovesaid five year service of degree holders could influence the interpretation of the rule relating to qualifying service of 10 years in respect of diploma holders.

17. Further, the decision of the Andhra Pradesh High Court in V. Ramachandra Moorthy v. The Government of A.P. 1971 APLJ 439` cited by the learned counsel for the appellant in interpreting a similar rule, it has been observed as follows :-

'The total service put in by Supervisors even in a lower category has to be taken into consideration for purposes of determination of the qualifying service.'

This decision of a single judge of the Andhra Pradesh High Court has also been confirmed by a Division Bench of the said court in M. Raghavalu v. Govt. of A.P. 1973 (2) SLR 229, and where the reasoning of the said Division Bench is as follows :-

'We are inclined to agree with his view not only for the reason which the learned Judge has given but also because if 10 years or 20 years service as Supervisors was intended, nothing could have been simpler than to mention it as was done in the same provision, earlier. Except in very few and rare cases, no Supervisor having the Upper Subordinate qualification could ever expect to become, Assistant Engineer after completing 10 years' service as such. The same reasoning but with greater force applies to a Supervisor who has merely a diploma of Lower Subordinate. It is not possible for many of them to complete 20 years of service as Supervisor with a view to get promotion as Assistant Engineer. The omission of the words 'in that category or service' as such brings out the intention of the farmers prominently that persons possessing lower qualifications should have more experience in order to earn promotion to the post of Assistant Engineer. Thus, while a Graduate Engineer is required to put in 5 years' service, a Supervisor possessing lower qualification is required to put in three or four times service though not in the same category as Supervisor'.

Further, State of A.P. v. N. Ramachandra Rao : [1990]3SCR55 cited by the said counsel also indicates that service in lower category should be included in determining the seniority.

18. The learned counsel for the appellant also brought to our notice that in the Rules relating to Public Works Department of the State Government also, there was a similar proviso as follows :-

'Provided that Draftsmen and Overseers of the Madras Engineering Subordinate Service promoted as Supervisors in the same service and Head Draftsmen and Draftsmen I Grade of the Madras Engineering Subordinate Service possessing the qualifications referred to above shall be eligible for appointment as Assistant Engineers, only if they have put in a total service of not less than 15 years and 10 years respectively in one or more of the categories.'

But, subsequently when the said Rule was amended, the said Rule was amended as follows :-

'Provided that Draftsmen and Overseers of the Tamilnadu Engineering Subordinate Service promoted as Supervisors in the same service possessing the qualifications referred to above shall be eligible for appointment as Assistant Engineers only if they have put in a total service of not less than ten years, of which atleast five years shall be as Section Officers in the Public Works Department.'

So, according to the learned counsel, whenever the Government wanted to specify that for the purpose of promotion, qualifying period of service must be in the feeder service fully or partly, it specifically says so, as is found in the above said amended proviso of the Tamilnadu Engineering Service Rules. We see force in this argument also.

19. Further, the learned counsel also submits that when such similar Rules are there in other Departments like the abovesaid Public Works Department, it has to be presumed that the Government when it framed the above referred to Rules of Corporation Engineering Service in 1969, was aware of the meaning it has given to the abovesaid term 'in one or more categories' used in the abovesaid proviso in question. In this connection he relied on the following passage in page 436 of Crawford's Interpretation of Laws, 1989 Reprint :-

'We must presume that the Legislature passes each and every statute with a knowledge of existing law'.

He also referred to the following passage in State of Tamil Nadu v. Mahi Traders : 1989(40)ELT266(SC) :-

'It has been pointed out by this court in Desh Bandhu Gupta v. Delhi Stock Exchange Association Ltd., : [1979]3SCR373 and K. P. Varghese v. ITO : [1981]131ITR597(SC) that a contemporaneous exposition by the administrative authorities is a very useful and relevant guide to the interpretation of the expressions used in a statute.'

We see force in this argument of the learned counsel for the appellant also. So, on a pure interpretation of the abovesaid rule, we hold that the term 'one or more categories' in the abovesaid proviso would also include the above said lower category posts as stated in the impugned memorandum and that this writ petition should be dismissed.

20. The other submission of the learned counsel for the appellant is that the writ petitioner cannot have the relief claimed by him in this writ petition since his present claim is barred by res judicata, in view of the earlier decision given by this court on April 4, 1983 in W.P. No. 4457/79 filed by the appellant herein against the Corporation of Madras and others including the writ petitioner herein and the decision given on December 21, 1989 in the appeal therefrom in WA No. 154/85. That earlier writ petition was filed to quash an order of the Corporation of Madras promoting 18 persons consisting of 14 Engineering Degree holders and 4 Engineering Diploma holders as Assistant Executive Engineers adopting the ratio of 3:1 as between the Degree holders and Diploma holders. According to the writ petitioner therein (the appellant herein), he entered the service as Overseer and thereafter was promoted as Supervisor, having put in, in all, a total service of more than ten years at the time when the said writ petition was filed. Further, according to him, he is fully qualified for promotion, but the abovesaid 14 Engineering Degree holders have not completed their required qualified service of five years and the relaxation of the said 5 year rule is bad. He also attacked the amendment made in the Rules fixing the above said ratio of 3:1. Hence the writ petitioner therein sought for quashing the relevant order of the Corporation of Madras. The said writ petition was considered by this court along with other similar writ petitions and in the above said order dt. April 8, 1983 it was held that the abovesaid impugned promotions were purely on temporary basis and that hence the said writ petitioner (appellant herein) and the other connected writ petitioners could not have any legitimate grievance. However, in the appeal therefrom, this court held by the abovesaid order dt. December 21, 1989 that the abovesaid promotions, having been continued for over ten years, could not be treated as temporary promotions, so as to come under the relevant Section 87(4) of the City Municipal Corporation Act and that the above fixation of 3:1 ratio and the (promotion), without amending the Rules, is bad. Therefore, in the writ appeal, the impugned order of promotion was truck down and the writ appeal of the present appellant and the other connected writ appeals were allowed by this court and direction was given to revise the seniority and consider promotions strictly in accordance with the statutory Rules framed under Section 86 of the above said Act.

21. Now the question is whether the abovesaid decision in the earlier proceeding would bar the present petition on the principle of res judicata. The learned counsel for the appellant relies on Explanation IV to Section 11 CPC and the decision in Direct Recruit Class II Engineering Officers' Assn. v. State of Maharashtra : [1990]2SCR900 . His submission is that the present issue in this writ petition though was not directly and substantially in issue in the above said earlier proceeding, the present writ petitioner, who was respondent in the earlier proceeding, should have raised the question at issue in the present case, as a defence to the abovesaid earlier writ petition and that, therefore, the principle underlying Explanation IV to Section 11 CPC would apply. The said Explanation IV no doubt says 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 issue in the latter suit. Further, the above referred to : [1990]2SCR900 has also held as follows :-

'The decision in Forward Construction Co. v. Prabhat Mandal (Regd.) Andheri (1986) 1 SCC 100) further clarified the position by holding that an adjudication is conclusive and final 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 decided as incidental to or essentially connected with subject matter of litigation and every matter coming into the legitimate purview of the original action both in respect of the matters of claim and defence. Thus, the principle of constructive res judicata underlying Explanation IV of Section 11 of the Code of Civil Procedure was applied to writ case. We, accordingly, hold that the writ case is fit to be dismissed on the ground of res judicata'.

But, on the other hand, the learned counsel for the respondents points out that as per Section 11 CPC the bar of res judicata will come in only if the parties were 'litigating under the same title'. But, we are unable to see how the parties were not litigating under the same title in the above said earlier proceeding and the present proceeding. In the abovesaid earlier writ petition of the present appellant, the present writ petitioner was one of the respondents and both of them were litigating only in their individual capacities, both in the earlier proceeding and in this proceeding. No doubt, one of the questions involved in the earlier proceeding was whether the relaxation effected to the abovesaid five year valued relating to the degree holders-respondents therein was proper, while in the present writ petition the question is whether the diploma holder writ petitioner herein is eligible for promotion even though he has not completed the required ten year qualifying service in the abovesaid feeder category alone. But, in answer to the earlier writ petition, the degree holder respondent therein (in writ petitioner Dayal herein) could have pleaded that the writ petitioner Gomathinayagem therein himself was not having the required qualification of ten year service in the abovesaid feeder category post itself. Admittedly in June, 1979, when the promotions impugned in the earlier writ petition of Gomathinayagam (the appellant herein), the said Gomathinayagem, a Diploma holder had not completed the required ten year service in the feeder category of Supervisor, but had completed the said ten years service only after taking into account the lower category post earlier held by him also. So the said Dayal could have easily taken the defence in the earlier writ petition to non-suit Gommathinayagem therein. So, we think the principle underlying Explanation IV to Section 11 CPC would apply.

22. Even in The Workmen of Cochin Port Trust v. Board of Trustees of Cochin Port Trust : (1978)IILLJ161SC cited by the learned counsel for the respondents, it is observed as follows (p. 165) :

'The principle of res judicata also comes into play when by the judgment and order a decision of a particular issue is implicit in it, that is, it must be deemed to have been necessarily decided by implication; then also the principle of res judicata on that issue is directly applicable. When any matter which might and ought to have been made a ground of defence or attack in a former proceeding but was not so made, then such a matter in the eye of law, to avoid multiplicity of litigation and to bring about finality in it, is deemed to have been constructively in issue and, therefore, is taken as decided ..... But the technical rule of res judicata, although a wholesome rule based upon public policy, cannot be stretched too far to bar the trial of identical issues in a separate proceeding merely on an uncertain assumption that the issues must have been decided. It is not safe to extend the principle of res judicata to such an extent so as to found it on mere guess work. To illustrate our view point, we may take an example. Suppose a writ petition is filed in a High Court for grant of a writ of certiorari to challenges some order or decision on several grounds. If the writ petition is dismissed after contest by a speaking order, obviously it will operate as res judicata in any other proceeding, such as, of suit, Art. 32 or Art. 136 directed from the same order or decision. If the writ petition is dismissed by a speaking order either at the threshold or after contest, say, only on the ground of laches or the availability of an alternative remedy, then another remedy open in law either by way of suit or any other proceeding obviously will not be barred on the principle of res judicata. Of course, a second writ petition on the same cause of action either filed in the same High Court or in another will not be maintainable because the dismissal of one petition will operate as a bar in the entertainment of another writ petition. Similarly even if one writ petition is dismissed in limine by a non-speaking one word order 'dismissed' another writ petition would not be maintainable because even the one word order, as we have indicated above, must necessarily be taken to have decided impliedly that the case is not a fit one for exercise of the writ jurisdiction of the High Court. Another writ petition from the same order or decision will not lie. But the position is substantially different when a writ petition is dismissed either at the threshold or after contest without expressing any opinion on the merits of the matter, then no merit can be deemed to have been necessarily and impliedly decided and any another remedy of suit or other proceeding will not be barred on the principle of res judicata'

Following the above said observation of the Supreme Court, we think the principle of res judicata can very well be applied to the present writ petition also since it is neither a different 'proceeding' spoken to by the Supreme Court in the above said observation, nor there is 'uncertain assumption' spoken to therein. On the other hand, it can be safely held that the issue figuring in this writ petition can be 'deemed to have been constructively in issue and, therefore, is taken as decided', in the earlier writ petition. So, for this reason also, the present writ petition should be dismissed.

23. For all these reasons, the writ appeal is allowed, the order of the learned single judge is set aside and the writ petition is dismissed. However, in the circumstances, there will be no order as to costs throughout. Consequent on the above said decision, WP 3938/92 is also dismissed. But the additional reasoning based on the principle of res judicata will not apply to this case No costs.