Judgment :- 1. The order of the Director of Public Instruction dated 12-9-67 once challenged in O.P. No. 3779 of 1967 before this Court is once again the subject of challenge in this petition. 2. By judgment dated 18th February, 1969 Gopalan Nambiyar, J. dismissed that O.P. on the ground that the order dated 12-9-67, already referred to. produced in that O.P. as Ext. P21, (it is Ext. P1 here) was in accordance with an order G. O. (MS) 356/64/Edn. dated 8-7-64 and there was no challenge of that order and that the State Government which passed the order was no party to that O. P. These defects have now been cured by making the State a party and by including a prayer for setting aside the order G. O. (MS) 356/64/Edn. dated 8-7-64. 3. The order G.O.(MS) 356/64/Edn. dated 8-7-64 has been challenged in this original petition on the ground that it has not been uniformly applied and that notwithstanding the provision therein the teachers similarly placed as detailed in Ext. P4 statement have been given the benefit of the new scale of pay of of Rs. 80-5-120-71/2-165-which was also applicable to the First Grade Hindi Pandits to which class the petitioner belonged, whereas it has been denied to the petitioner. 4. The Government order G.O. (MS) 456/64/Edn. dated 8-7-64 is in clarification of an earlier order of the Government in G. O. MS. No. 102/Edn-dated 16-2-63. From Para.2 of this G. O. it is clear that the scale of Rs. 80-165 is applicable to the petitioner. This as far as we can see on the materials made available to us is subject only to paragraph (ix) of that order which is in these terms:- "The teachers appointed before 27-12-1960 will be given the opinion to remain in the old scale of pay, until such time they consider it necessary. The option should be exercised within 2 months from the date of this order. Those who continue in the old scale of pay will be paid salary only on the basis of the Audited financial statement. The option once exercised will be final". The case of the petitioner is that he was on the scale of Rs. 60-120 from 1-6-53 and was drawing Rs. 72/- as on 31-3-57. He contended that be was on the scale of Rs. 80-165 at least from 2-6-58. The option once exercised will be final". The case of the petitioner is that he was on the scale of Rs. 60-120 from 1-6-53 and was drawing Rs. 72/- as on 31-3-57. He contended that be was on the scale of Rs. 80-165 at least from 2-6-58. The statement filed before us on behalf of the State shows that his pay on 1-4-59 was Rs. 80/- and that he got increments thereafter in April 1960, December 1960, April 1961, April 1962, April 1963, April 1964, April 1965 and April 1966 of Rs. 5/-. His service book indicates that be was in the scale of Rs. 80-165. Notwithstanding this, the order Ex. PI has fixed his salary at Rs. 61/- as on 31-3-57 in the scale of Rs. 60-120. This seems to be against G.O. Ms. No. 102/Edn. dated 16-2-63 read with G O. (MS) No. 356/64/Edn. dated 8-7-64. The audited financial statement will have relevance only as we understand the Government Orders in regard to persons who had opted to be in the old scale of pay and continued after the introduction of the new scale of pay in the old scale. The indications are that the petitioner did not opt to be in the old scale of pay. The evidence available shows that he was in the scale of Rs. 80-165 at least from 1969. 5. In the light of the above, we would have set aside the order Ext. P1 and would have directed that the salary of the petitioner be fixed at Rs. 80 in the scale of Rs. 80-165 as on 1-4-57. But we think that this is a matter which might and ought to have been taken in O.P No. 3779 of 1967 and having failed to do so, the petitioner is precluded by the principles constructive resjudicata from contesting that matter again before this Court. 6. It is contended by the petitioner on the basis of the observations of the Supreme Court in Amalgamated Coalfields Ltd. and another v. Janapada Sabha Chhindwara and others (AIR. 1964 SC. 1013): "In our opinion, constructive res judicata which is special and artificial form of res judicata enacted by S.11 of the Civil Procedure Code should not generally be applied to writ petitions filed under Art.32 or Art.226." the decision in O P. No. 3779 of 1967 will not constitute res judicata. The decision in AIR. 1964 SC. 1964 SC. 1013): "In our opinion, constructive res judicata which is special and artificial form of res judicata enacted by S.11 of the Civil Procedure Code should not generally be applied to writ petitions filed under Art.32 or Art.226." the decision in O P. No. 3779 of 1967 will not constitute res judicata. The decision in AIR. 1964 SC. 1013 has been distinguished by the Supreme Court in Devi lal Modi v. Sales Tax Officer, Ratlam and others (AIR. 1965 SC. 1150). Referring to the earlier decision the following observations were made: "This Court held that the High Court was in error in holding that the principle of constructive res judicata precluded the Company from raising the said points. Accordingly, the merits of the said points were considered and in fact, the said points were upheld. In dealing with the question of constructive res judicata, this Court observed that constructive res judicata was an artificial form of res judicata enacted by S.11 of the Code of Civil Procedure and it should not be generally applied to writ petition filed under Art.32 or Art.226. It was in that connection that this Court also pointed out that the appeal before the Court was in relation to an assessment levied for a different year, and that made the doctrine of res judicata itself inapplicable. Mr. Trivedi contends that in dealing with writ petitions, no distinction should be made between cases where the impugned order of assessment is in respect of the same year or for different years; and is support of this contention, he relied on the general observations made by this Court is the Amalgamated Coalfields Ltd. (1964 SC. 1013). In our opinion, the said general observations roust be read in the tight of the important fact that the order which was challenged in the second writ petition was in relation to a different period and not for the same period as was covered by the earlier petition." 7. Having said so, the court applied the principles of res judicata on grounds of public policy and that, even when fundamental rights were involved-It was held, that there could be no repetitive approach to the court for the same relief though on different grounds. 8. Though we have been referred to a subsequent pronouncement of the Supreme Court in Kopurchand Shrimal v. Tax Recovery Officer, Hyderabad and others (AIR. 8. Though we have been referred to a subsequent pronouncement of the Supreme Court in Kopurchand Shrimal v. Tax Recovery Officer, Hyderabad and others (AIR. 1969 S C. 682) we are not satisfied that the observations in Para.8 of that judgment in any way detract from the view expressed by the Supreme Court in AIR. 1965 S.C.1156. In view of this decision it is unnecessary to multiply further rulings on the point though counsel on behalf of the respondents invited our attention to the decision of this Court in M. P. Raghavan Nair v. State Insurance Officer and others (1971 KLT. 583) and the Allahabad High Court in New Victoria Mills Co. Ltd. v. State Presiding Officer, Labour Court and others (AIR 1970 Allahabad 210). 9.The petitioner cannot be allowed to agitate the question again 10. The petitioner loses the case purely on the application of the principles of res judicata. He has now retired from service and the salary that he was drawing at the time of his retirement is said to be only Rs. 115/-. He would have been entitled to much more. Even if be cannot claim his salary for the period that he was in service it appears to be a fit case where the State Government should look into this matter afresh and refix atleast his pension on the basis of the salary that he would have drawn had he been given the benefit of Government Order dated 16-12-59 and the G. O. Ms. No. 102/Edn. dated 16-2-63. This of course is a matter for the State Government to consider. This seems to be a deserving case where the Government should look into this matter afresh. 11. We dismiss this petition. We direct the parties to bear their respective costs. Dismissed.