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Rajasthan High Court · body

1998 DIGILAW 1167 (RAJ)

Major Daya Shanker Dubey v. Union of India

1998-11-06

R.R.YADAV

body1998
Honble YADAV, J.–Petitioner (IC 43592H) Infantry Major Daya Shanker Dubey by filing the present writ petition questions the legality and validity of his compulsory retirement order dated 29.1.97 (Annex.12), consequential order dated 10.2.97 (Annex.13) and signal order dated 12.2.97 (Annex.14) purported to have been passed by the respondents in compliance of the judgment rendered by learned Judges, constituting Division Bench of Andhra Pradesh High Court in Writ Appeal No. 298/92 between the same parties on 6.3.95. (2). The perusal of the facts of this case lead me to conclude that it is a case of classic illustration of travesty of justice and high-handedness meted out to the petitioner in the garb of a judicial order with utter insensitiveness to the order pas- sed by High Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India in Writ Petition No. 5559/91 on 23.12.91 by learned Single Judge of Andhra Pradesh High Court, declaring the petitioner to be entitled to continue in army service and holdings his services not liable to be terminated by way of compulsory retirement. Not only this by unequivocal order, the learned Sin- gle Judge directed all the present respondents who were parties in the aforesaid writ petition to grant request of the petitioner for inter-arm transfer from P.C. (G.D) to P.C. (S.L.) for the post of Record Officer, Quarter Master or any other post in the (S.L.) to which, under the rules, he is eligible. The respondents were directed in the aforesaid writ petition to consider the claim of the petitioner for his placement according to the army rules applicable to him either on the post of Record Officer or Quarter Master or any other post in the Special List and pass the necessary orders within six months from the date of receipt of the order. (3). It is borne out from the record that aggrieved against the aforesaid decision of learned Single Judge the present respondents preferred Writ Appeal No. 298/92 before the Division Bench of Andhra Pradesh High Court which was also dismissed on 6.3.95 affirming the order passed by learned Single Judge on 23.12.91 in toto. (4). (3). It is borne out from the record that aggrieved against the aforesaid decision of learned Single Judge the present respondents preferred Writ Appeal No. 298/92 before the Division Bench of Andhra Pradesh High Court which was also dismissed on 6.3.95 affirming the order passed by learned Single Judge on 23.12.91 in toto. (4). A conjoined reading of the aforesaid decisions of learned Single Judge and of learned Judges, constituting Division Bench reveal that in these two decisio- ns, the case of the petitioner was not remanded to the respondents to reconsider his claim under Section 19 of the Army Act readwith Rule 13A of the Army Rules or to reconsider his request for inter arm transfer from P.C. (G.D) to P.C. (S.L.) de novo but the respondents were directed to proceed in accordance with law by deciding the suitability of the petitioner for his placement either on the post of Re- cord Officer, Quarter Officer or to any other post in the Special List to which under the Rules he is found to be eligible. Instead of implementing the order passed by the learned Single Judge which was affirmed by Division Bench in appeal faithfully and in letter and spirit, the present respondents gave fresh show cause notice Annex.9 on 22.2.96 to the petitioner and passed impugned order of compulsory re- tirement Annex.12 on 29.1.97 against him. (5). For better understanding and for affective adjudication of the controversy involved between the parties I consider it just and proper to give the brief facts available on record at the outset leading to filing of the present writ petition. (6). It is averred in the writ petition that the petitioner was first enrolled in the Corps of EME (Army) as Apprentice on 25.9.76. He completed the training successfully and passed the examination of Training School. He thereafter was selected for Pre-Commission Training and completed four years training commencing from 2.1.1982 and ending on 14.12.1985 at the Army Cadet College of Indian Military Academy, Dehradun. He was commissioned in the Regiment of Grenadiers (Infan- try) on 14.12.1985 and was detailed for doing Infantry Basic Young Officers Course at Infantry School, Belgaum (hereinafter referred to as BYO Course). He was commissioned in the Regiment of Grenadiers (Infan- try) on 14.12.1985 and was detailed for doing Infantry Basic Young Officers Course at Infantry School, Belgaum (hereinafter referred to as BYO Course). The petitioner while taking BYO course completed only one part of course i.e. TACTICS part and while he was being imparted Arms and Commandos training he was attacked with Alergic Trachea Bronchitis in pursuant whereto he was admitted in Military Hospital, Belgaum. Thus, the petitioner had completed TACTICS part of the BYO course but while attending the Weapons Training part he could not be able to complete the same in first time ass he was admitted in military hospital, Belgaum at the fag end of Weapons Training. It is further averred that the petitioner was not allowed for doing Commando Training by School authorities as he was declared unfit for undergoing training by medical authority of the school. (7). The petitioner after recovery of his health and obtaining fitness certificate was posted at Sri Ganganager, a semi-desert area where his ailment further aggravated and there was no improvement in his physical condition till October, 1987. At this stage he was placed permanently in low medical category i.e. S1 H1 A1 P2 E1 (permanent). He is still standing in this category. In support of the aforesaid facts the petitioner has filed Annex.1 dated 24.7.1995, a report of Review Medical Board. (8). For the aforesaid reason the petitioner applied for inter arm transfer from Permanent Commission (G.D.) to Permanent Commission (S.L.) as Record Officer giving complete details of attack of Bronchitis while pursuing the BYO course. It was clearly mentioned by him that as he was commissioned from Ranks of the corps of EME he may be posted as Record Officer, even when he had not completed the BYO course. In the application it was also disclosed by the petitioner that as he has got training as an apprentice, he is certainly entitled to continue in the army in the ranks of JCO/NCO. The application of the petitioner was strongly recommended by the Commanding Officer and the interim authorities in the channel but no reply to his application/representation dated 29.10.87 was received till January, 1988 while he was posted to Meerut on medical grounds and underwent a Review Medical Board in 1989. The application of the petitioner was strongly recommended by the Commanding Officer and the interim authorities in the channel but no reply to his application/representation dated 29.10.87 was received till January, 1988 while he was posted to Meerut on medical grounds and underwent a Review Medical Board in 1989. The petitioner then submitted second application for inter arm transfer from PC (GD) to PC (SL) on the same grounds on 26.7.89 as he had been put on permanent low medical category. The application was once again recommended by Administrative Commandant. While the application of transfer from PC (GD) to PC (SL) was to be considered the petitioner received a show cause notice under Army rule 13A by the Military Secretary Branch, Army Headquarters dated 30.8.1990, informing him that as he has not passed BYO Course within four years of his service under the provisions of Army Rule 13A, the Chief of the Army Staff directed him to show cause why he should not be removed from service. In reply to the notice, the petitioner furnished a detail explanation on 11.9.1990, reiterating his case regarding restrictions imposed on his health and about his ear- lier applications for inter-arm transfer. The petitioner, for the third time, requested for his inter arm transfer and invited the attention of Military Secretary to Para 33 of SAI-1/S/85. (9). The petitioner on 15.12.90 received reply on his third application that transfer to PC (SL) cadre (Record Officer and Quarter Master) is meant for war wou- nded officers only. On the aforesaid ground the petitioner was informed that his inter arm transfer was not possible. It is averred in the writ petition that the aforesaid reply was incongruous of Special Army Instructions i.e. SAI-1/S/1985 and recommendation of Brig. DP Singh, who at relevant time was Commander of the Infantry Brigade in which the petitioner was serving. The recommendation of the Commander Brig. D.P. Singh in the ACR of the petitioner is reproduced below for ready reference : ``A Smart Officer who is generally well turn out. His professional knowledge commensurates his rank and service. Due to being low Medical Category, the officer has not been able to qualify on the BYO course. Considering his health problem, I feel the officer cannot withstand the stress and strain of Infantry Service, therefore, his transfer to service merits consideration. (10). His professional knowledge commensurates his rank and service. Due to being low Medical Category, the officer has not been able to qualify on the BYO course. Considering his health problem, I feel the officer cannot withstand the stress and strain of Infantry Service, therefore, his transfer to service merits consideration. (10). It is to be noticed that inspite of aforesaid favourable recommendation, respondent No. 1 by order dated 15.2.91 in exercise of his power under Sec.19 readwith Army Rule 13A called upon the petitioner to retire or on his refusal to do so he was to compulsorily retired from his service. (11). Feeling aggrieved by the aforesaid order dated 15.2.91, the petitioner fi- led S.B. Civil Writ Petition No.5559/91 before the Andhra Pradesh High Court which was allowed vide order dated 23.12.91. Operative portion of the order reads thus :- ``In the result, the writ petition is allowed. A writ of certiorari is issued quashing the first respondents proceedings No. 0468/BYO/IC- 43592/ MS8C/212/D(MS) dated 15.2.91. The consequential order of the third respondent in proceedings No. 00469/BYO/IC-43592/MS8C dated 22.2.91 is quashed. It is hereby declared that the petitioner is entitled to continue in service as his services are not liable to be terminated. The respondents are directed to grant the request of the petitioner for inter-arm transfer from P.C.(G.D.) to P.C.(S.L.) for the post of Record Officers, Quarter Master or any other post in the S.L. to which, under the rules, he is eligible. The respondents shall consider his claim and pass the necessary orders within six months from the date of receipt of this order. (11). Against the aforesaid decision dated 23.12.91 the respondents preferred a Special Appeal which was registered as writ appeal No.298/92. The aforesaid Appeal came to be disposed of vide order dated 6.3.95. The operative part of the judgment passed by learned Judges, constituting Division Bench, in the aforesaid writ appeal is reproduced hereinbelow :- ``........ Had the respondents been given the opportunity by the Central Government, he could have brought the facts stating his version of the case before the Central Government which would have considered the matter and come to the conclusion as to whether the respondents request for inter transfer was permissible or whether he could be even given further chances as is requested in his representa- tion dated 20th March 1991. Such opportunity was not given and instead a composite notice of retirement was given under Section 13-A(2). The case is completely covered by the reported decision. The order of retirement hence has become vulnerable in law and is set aside. The writ appeal is dismissed. The authority has to proceed in accordance with law. No costs. (12). The respondents by filing the reply denied the aforesaid averments made in the writ petition in its present form. It is averred in the reply by the respondents before me that the petitioner was commissioned in the army on 14.12.85 as per the provisions of SAI 1/S/85 as amended Vide SAI 26/8/89. The petitioner was required to qualify the BYOs course within the first four years of service i.e. by 13th of December, 1989. The petitioner was detailed on three occasions on BYOs course No.51, 52 and 56 but he could not qualify/attend due to domestic/medical problems. He was issued with a show cause notice on 30th of August, 1990. In his reply, the petitioner contended that he was unable to qualify on the BYOs course due to Bronchial Asthama and his other medical condition and requested to transfer him to some other Arm/Service or PC (SL). It is averred in paragraph 2 of the reply filed on behalf of answering respondents which were also arrayed as respondents in the earlier writ petition that the case of the petitioner alongwith other similarly placed officers was considered and rejected by a screening committee held on 28th of No- vember, 1990. Subsequently, vide Army Rule 13 A his case was recommended for termination from service which was duly approved by the CDAS and his case was sent to MOD/D (MS), who issued a Govt. Order dated 15th of February, 1991 calling upon the petitioner to submit his application for retirement or on his refusal to do so to retire him compulsorily. The petitioner filed a writ petition No 5559/91 against the said order in the High Court of Andhra Pradesh. The Court allowed his writ petition. Against the aforesaid order passed by learned Single Judge in writ petition No.5559/91 writ appeal No.298/92 was filed by respondents. It is averred by the respondents that by other dated 6.3.95 the Division Bench in Writ Appeal No. 298/92 had set aside the order passed by the learned Single Judge in writ petition No 5559/91. (13). Against the aforesaid order passed by learned Single Judge in writ petition No.5559/91 writ appeal No.298/92 was filed by respondents. It is averred by the respondents that by other dated 6.3.95 the Division Bench in Writ Appeal No. 298/92 had set aside the order passed by the learned Single Judge in writ petition No 5559/91. (13). It is further averred in paragraph 4 of the reply that in compliance with ibid Courts judgment on Leave Petition Appeal, a fresh Government order was issued on 22.2.96 (Annex.9 to the writ petition) and the officer was called upon to submit papers either for retirement or resignation. After considering the petitioners reply dated 22.3.1996 (Annex.10 to the writ petition), finally the services of the petitioner were terminated vide Government letter No.12 (2)/91-DMS) dated 29.1.1997 and the petitioner was to be struck of strength by 11.3.1997. However, before that the petitioner had obtained the present stay order dated 28.2.1997. The respondents in their reply also raised preliminary objections about applicability of principle of res judicata to the facts and circumstances of the present case. (14). After receipt of counter-affidavit the petitioner filed a rejoinder-affidavit reiterating the facts as averred in the writ petition. Regarding the preliminary objection about applicability of principle of res judicata in the present case it is sta- ted in paragraph 4 of the rejoinder that it is incorrect on the part of the respondents to allege that principle of resjudicata in any manner is applicable to the present case. By passing of the impugned order dated 29.1.1997 (Annex.12), a fresh cause of action has accrued to the petitioner hence the writ petition is perfectly maintainable. Regarding interpretation put forth by the respondents of the judgment rende- red by learned Judges, constituting Division Bench in Writ Appeal No.298/92 it is clarified in rejoinder affidavit that as per para 2(b) of Army Instructions 85/74 which has been produced by the respondents as Annex.R/1 it is provided that a Special list Officer-Quarter Master, Record Officer could be filled in by transfer of permanent Commissioned Officer, whose medical classification is not lower than Grade 2 under any of the SHAPE factors and not lower than Grade 1 under S factor of the SHAPE. It is further averred in paragraph 6 of the rejoinder affidavit that amongst the SHAPE factors, the petitioner has Grade 1 in all the factors, but for P factor wherein his grading is 2. In this view of the matter, and in view of the aforesaid Army instructions, which is being relief on by the respondents themselves, the pe- titioner was entitled to be considered for transfer to special list Record Officer/Quarter Master, but the respondents have taken no care to do the needful in the matter. On the contrary they are justifying their action by saying that PC(SL) cadre is meant for promotees, NCOs and JCOs and not for regular permanent Commissioned Officers who cannot qualify on BYO course on medical ground. As a matter of fact, according to the petitioner under Regulation 77 of the Defence Services Regulations readwith Army Instructions 85/74 and 1/S/85 he is entitled to be transferred from PC (G.D.) to P.C. (S.L.) on the post of Record Officer/Quarter Master. (15). In paragraph 8 of the rejoinder affidavit it is reiterated that it is not as if the petitioner refused the offer of transfer to SL (Quarter Master), but it is the respondents who did not inform the outcome of petitioners first application of inter arm transfer as Record Officer. Hence willingness for transfer as Quarter Master naturally could not be given because petitioners request was for transfer to the post of Record Officer. It is alleged in the counter affidavit that if the respondents by this part of the reply want to allege that the petitioner shirks from his responsibilities to work, the respondents are absolutely incorrect because the petitioners service record clearly shows that he is a keen army professional Despite being categorised as low medical category, he has not left any stone unturned to permit him to take BYO course. As a matter of fact even while in low medical category the petitioner had made request to the respondents to permit him to take on the BYO course serial No.77 in 1995, but ultimately he was not permitted by the respondents to proceed for attending the BYO Course on medical ground. (16). In paragraph 9 of the rejoinder affidavit it is averred that SL categories are exempted from passing of the BYO course. The allegation of the respondents that the petitioner wants to avoid rigours of unit regimental duties, is incorrect. (16). In paragraph 9 of the rejoinder affidavit it is averred that SL categories are exempted from passing of the BYO course. The allegation of the respondents that the petitioner wants to avoid rigours of unit regimental duties, is incorrect. Irrespective of the fact that he was placed under low medical category he gave his willingness certificate to join operation PAWAN in Sri Lanka. Even at the risk of his life the petitioner joined his Unit in Sri Lanka and worked upto the satisfaction of his higher commanders, his work was recognised/appreciated and he earned good name for work done in Sri Lanka. (17). Learned counsel for the petitioner has made special reference to a certificate recently given by Commanding Officer of 18 GRENADIERS dated 31st of July, 1995 (Annex.11) which is quoted hereinbelow : ``BRIEF COMMENTS BY PRESENT IO/OC UNIT. 1. IC-43592H Major Daya Shanker Dubey has served under me for a year. He is a dedicated, professionally competent, hardworking officer with a inborn foresight to plan for future. He has been an exceptionally competent Quartermaster of the battalion. 2. The officer perceives that his career has been harmed during the years 1990 and 1991. It is recommended that the complaint of the officer should be considered sympathetically and redressal be given. (DPS SANDHU) Col. Commanding Officer. 18 GRENADIERS. Station:C/o 56 APO. Dated 31st July, 95. (18). Before considering the rival contentions raised at the Bar, it would be expedient to peruse the issues raised before the learned Single Judge in Writ Petition No.5559/91 which was affirmed by Division Bench in writ appeal No.298/92 mentioned hereinabove. It is borne out from perusal of the order passed by learned Single Judge dated 23.12.91 (Annex.17) that before him the present dispute between the parties was hotly contested and on pleadings of the parties by way of av- erments made in the writ petition in the counter affidavit, supplementary affidavit and rejoinder affidavit the following issues for determination were formulated :- (1). Whether the petitioners claim for transfer from P.C. (G.D.) to P.C. (S.L.) as Record Officer is justified and whether his request was unjustly rejected as claimed by the petitioner. (2). Whether the petitioner has want only avoided qualifying himself in B.Y.O. Course as alleged by the respondents ? (3). Whether the petitioners claim for transfer from P.C. (G.D.) to P.C. (S.L.) as Record Officer is justified and whether his request was unjustly rejected as claimed by the petitioner. (2). Whether the petitioner has want only avoided qualifying himself in B.Y.O. Course as alleged by the respondents ? (3). Whether the petitioners services are liable to be terminated on the sole ground that he did not qualify himself in B.Y.O Course within four years of commissioned service ? (19). The learned Single Judge dealt with the aforesaid three issues together. He also noticed two impugned orders of the Government of India (respondent No.1) dated 15th February, 1991 and the consequential order issued from the Headquarter to the Southern Command on 22nd February, 1991 and found that in these two orders it was simply mentioned that the petitioner failed to qualify him- self in the B.Y.Os course within the stipulated period, therefore he is to be compulsorily retired. No mention was found to be made regarding his request for inter arms transfer and as to what had been done regarding his request of transfer from P.C. (G.D.) to P.C.(S.L.) on the post of Record Officer. After analytical discussion of the materials available on record the learned Single Judge in writ petition No.5559/91 ruled to the effect that a careful analysis of the numerous documents filed by both the parties indicated that the papers of the petitioner were processed parallelly and they were not processed making reference to his request for inter-arm transfer on the ground of Permanent Low Medical Category. It is held by learned Single Judge that the same para 77 provides that Special List Officers are exempted from attending BYO course. When the petitioner was first deputed in the BYO Course at Serial No.51, he requested for his being deputed for BYO Course Se- rial No.52, which was to commence a few months later and his request was granted and while he was undergoing the BYO course S1 No. 52 he was attacked with bronchial asthma and he could complete only one leg of the course and he could not do the course regarding Weapons Training and Commandos Training. He was admitted in the hospital and subsequently medical examinations revealed that he was put in S1H1A1P2E1 medical category. He was admitted in the hospital and subsequently medical examinations revealed that he was put in S1H1A1P2E1 medical category. When he came to know about his Permanent Low Medical Category and his disability he requested to consider his case for transfer him from P.C.(G.D.) to P.C. (S.L.) as Record Officer so that he can work with the best possible ability for the organisation. He made the aforesaid request in October, 1987. It is found by learned Single Judge that his request was duly recommended but he did not receive any reply as to whether his claim for P.C.(S.L.) as Record Officer was accepted or not. But he received a reply on 2nd September, 1988 which indicated that his request was being considered for transfer from P.C.(G.D.) to P.C. (S.L.) Quarter Master and the unit was asked to obtain the Willingness Certificate from the officer for transfer to P.C. (S.L.) Record Officer is not available or that he is not eligible for the post of P.C. (S.L.) Quarter Master if he is so desirous. This letter nowhere stated that the Post of P.C.(S.L.) Record Officer. As the petitioners request was for the post of Record Officer, he rejected this offer and he did not give his willingness on the post of Quarter Master. The petitioner sent his second application for inter arm transfer on 26.7.89. This application was strongly recommended by the concerned superior authorities but no action was taken on this. It is observed by the learned Single Judge that the respondents came forward with the story before him that the second application is not traceable. The fact that the petitioner sent a second application is reiterated in subsequent correspondence, but there is no mention as to what action was taken by them on the second application for transfer from P.C. (G.D.) to P.C. (S.L.) on the post of Record Officer. Throughout the counter-affidavit, the additional counter-affidavit, and the second additional counter affidavit, nothing is mentioned as to what has been done by the respondents regarding the second application. Throughout the counter-affidavit, the additional counter-affidavit, and the second additional counter affidavit, nothing is mentioned as to what has been done by the respondents regarding the second application. When he made the third application for inter arm transfer on 11.9.1990, which was also duly recom- mended, a reply is given to the effect that transfer to P.C.(S.L.) cadre Record Officer or Quarter Master is considered only in the case of war-wounded officers and as such a transfer would adversely affect the claims of J.C.Os and N.C.Os to get a commission in the Army. It is held by the learned Single Judge that the stand taken by the respondents in their reply to the third application is contrary to Army Instruc- tions 85 of 1974. The aforesaid Army instruction also clearly mentioned that apart from J.C.Os and N.C.Os, officers in Low Medical Category and shape Medical Category would also be considered. The only condition is that they should satisfy the necessary educational qualifications. It is observed by learned Single Judge that if judged in the light of Army Instruction 85, the present petitioner who is a graduate and who has also undergone earlier training as an apprentice in the M.E.S. was certainly eligible to be considered for the posts of P.C.(S.L.) Quarter Master, Record Officer, Barrack Stores Officer, Administrative Officer in M.E.S., A.S.C. and A.O.C. The learned Single Judge had scrutinised the original file of the petitioner in which the petitioners application for transfer from P.C.(G.D.) to P.C.(S.L.) was considered by respondents and he was found to be eligible for the post of Quarter Master on his first application. It is observed by learned Single Judge after scrutiny of original file of the petitioner that while his first transfer application being processed, his legitimate claim for transfer as Record Officer was not considered by the respondents. M.S. 15 has put the note on 16th February, 1988 as follows : ``Accepted in S.L. (Q.M.) please From then onwards, the file was processed as if he is to be offered only P.C. (S.L.)-Quarter Master and nothing is mentioned as to why he was not considered for the post of P.C. (S.L.) Record Officer which was petitioners request. In fact, the original file indicated that he was even sought to be posted as Quarter Master for a unit at Pathankot as can be seen from the noting dated 30th March, 1988. In fact, the original file indicated that he was even sought to be posted as Quarter Master for a unit at Pathankot as can be seen from the noting dated 30th March, 1988. On Page 11 of the original file of the petitioner relating to his transfer from P.C.(G.D.) to P.C.(S.L.) the learned Single Judge found that it was specifically mentioned that in view of the low medical classification Grade-II, the petitioner should be transferred to P.C. (S.L.) From the noting dated 29.8.88, the learned Single Judge inferred that the authorities totally lost sight of the file after 29.8.1988 and subsequently only a noting dated 27th July, 1990, indicated that the request of the petitioner for transfer to P.C. (S.L.) Record Officer was rejected by the Army Head Quarter without ascertaining availability of said post. After analytical discussion of the original file relating to transfer of the petitioner from P.C. (G.D.) to P.C.(S.L.) the learned Single Judge expressed his anguish on the authorities who had originally approved petitioners transfer to P.C. (S.L.) Quarter Master, and who did not intimate to the petitioner that no post of Record Officer is available and also for not informing him that the post of Record Officer is not available and that only the post of P.C.(S.L.) Quarter Master alone can be given to him. According to learned Single Judge, the perusal of the original file did indicate that the second transfer application moved by the petitioner was not considered and it is mistery as to how it was dealt with. Learned Single Judge inferred some mischief with regard to the second application of transfer of the petitioner making request of his transfer from P.C. (G.D.) to P.C. (S.L.) on the post of Record Officer. (20). On the basis of aforesaid discussion of the materials available on record, the learned Single Judge in aforesaid writ petition No.5559/91 recorded a positive finding that the respondents had taken a vindictive attitude after acceeding the request of the petitioner for his transfer from P.C. (G.D.) to P.C. (S.L.) on the post of Quarter Master on his first application and thereafter insisted to terminate his services. On the aforesaid findings of fact, the learned Single Judge on point Nos. On the aforesaid findings of fact, the learned Single Judge on point Nos. 1 and 2 held that the petitioners request for inter arm transfer from P.C.(G.D.) to P.C. (S.L.) was perfectly justified in view of low medical category and his good service record which he had succeeded to establish before him. Finding on issue No.3 was given to the effect that services of the petitioner were not liable to be ter- minated as indicated in the two impunged proceedings dated 15th February, 1990 and 22nd of February, 1990. It was also found by learned Single Judge that he petitioners claims and requests were not treated properly and in accordance with Army Rules. It is observed by learned Single Judge that there appeared to be some justification in the allegation made by the petitioner that Respondent No. 4 was pre- judiced against him and acted vindictively though there is no material to show that Respondent No.4 acted with mala fides. (21). On the basis of aforesaid findings, the learned Single Judge declared that the petitioner is entitled to continue in army service as his services are not liable to be terminated. The respondents were directed to grant the request of the petitio- ner for inter arm transfer from P.C. (G.D.) to P.C. (S.L.) for the posts of Record Officer, Quarter Master or any other post in the S.L. to which, under the rules, he is found to be eligible. (22). With the aforesaid introspection, now, I would like to examine the rival contentions raised at the Bar. (23). Learned counsel for the respondents Mr. P.P.Chaudhary raised a preliminary objection to the maintainability of the present writ petition. It is urged by him that the writ petition of the petitioner was allowed by the High Court of Andhra Pra- desh on non compliance of principle of natural justice and the case was remanded for reconsideration about entitlement of the petitioner to continue in army service therefore in compliance of the order passed by Andhra Pradesh High Court in D.G. writ appeal No. 298/92 decided on 06.03.95 second show cause notice dated 22.2.96 (Annex.9) was given to the petitioner and after due compliance of principle of na- tural justice the order impugned dated 29.1.97 (Annex.12) and consequential orders Annex.13 and 14 were passed against him. It is vehemently contended by Mr. It is vehemently contended by Mr. Choudhary that adjudication of the present writ petition is barred by principle of res judicata. He also invited my attention to Section 40 of Indian Evidence Act readwith Section 11 of Civil Procedure Code in support of his aforesaid contention. (24). Learned counsel for the petitioner Mr. M.Mridul assisted by Mr. R.N. Upadhyaya with equal vehemence opposed the aforesaid preliminary objection raised on behalf of respondents. It is submitted by him that it is incorrect on the part of the respondents to allege that principle of res judicata in any manner is attracted in the present writ petition. According to him the order impugned dated 29.1.97 (Annex.12) gave a fresh cause of action to the petitioner to file the present writ petition which is maintainable. He also invited my attention to Section 40 and Section 11 of Civil Procedure Code. In support of his aforesaid submission he placed reliance on two decisions rendered by Honble Supreme Court in case of R.Viswanathan and others vs. Rukn-u1-Mulk Syed Abdul Wajid since deceased and others and vs. Gajambal Ammal and another (1) another decisions rendered by the Apex Court in case of Sharadchandra Ganesh Muley vs. State of Maharashtra & Ors (2) and a decision rendered by me in case of Qazi Sharaf Ahmed vs. Dau Singh (3). (25). I have given my thoughtful consideration to the rival contentions raised at the Bar. From perusal of the order passed in writ petition No.5559/91 (Annex.17) and also from judgment of affirmance rendered by Division Bench of Andhra Pradesh High Court in writ appeal No.298/92 (Annex.18) it is apparent on the face of the record that the facts and controversy involved in the present petition are the same which were involved in the aforesaid earlier writ petition and in writ appeal between the same parties except the new fact of giving second show cause notice to the petitioner dated 22.2.96 Annex.9), purported to have been given in compliance of the judgment rendered by the Division Bench in writ appeal No.298/92, impugned order dated 29.1.97 (Annex.12), terminating the services of the petitioner and consequential order dated 10.2.97 (Annex.13) and signal dated 12.2.97 (Annex.14) giving fresh cause of action to the petitioner. It is also evident from perusal of record that grounds of attack and defence between the parties in the present case are same with the grounds of attack and defence taken by them in earlier writ petition No. 5559/91 and in writ appeal No.298/92. (26). Thus, it will appear that in the present writ petition also, the same very issues which were discussed and adjudicated finally on merits between the same parties in writ petition No.5559/91 and in writ appeal No.298/92 by Andhra Pradesh High Court are sought to be raised once again before this Court. Indisputably the decision rendered by learned Single Judge in writ petition No.5559/91 and affirmed by learned Judges constituting Division Bench of Andhra Pradesh High Court in writ appeal No. 298/92 had attained finality between the parties before me. It therefore now remains to be seen whether the principle of res judicata is attracted in the present facts and circumstances of the case ? (27). At the first instance it is to be remembered that one of the test in deciding whether the principle of res judicata applies to the facts of a particular case or not is to determine whether two inconsistent, incongruous and conflicting results will come into existence if the principle of res judicata is not applied, leading to confusion and injustice to the parties or to any of the party. The second test which is to be kept in view while extending or refusing to extend the principle of res judicata on the facts of a particular case is that the courts are to examine with care and caution that doctrine of res judicata does not prohibit only entertaining successive writ petitions under Article 226 or 227 of the Constitution on the same facts by same person on the same ground or grounds on same cause of action which could have been taken in earlier writ petition but it also forbids to adjudicate an issue or issues which had already been adjudicated in earlier writ petition. Even if only one or two issues are found to be common in both writ petitions, the rule of res judicata would apply so far as that issue or issues are concerned. It goes without saying that in the present case all the issues between the parties had been finally adjudicated on merits. Even if only one or two issues are found to be common in both writ petitions, the rule of res judicata would apply so far as that issue or issues are concerned. It goes without saying that in the present case all the issues between the parties had been finally adjudicated on merits. It is also to be noticed by courts of law that an issue which ought to have been raised in a writ petition but not properly raised by any of the parties and if both the parties without protest chosen to join an issue or issues leading to adjudication by Court then such adjudication shall also operate as res judicata though it is true that if an issue was raised in the earlier writ petition but not adjudicated by Court then it will not operate as res judicata. Lastly it is to be imbibed that doctrine of res judicata is bases on equity, justice and good conscien- ce therefore it cannot be allowed either to escape or slide on mere technicalities leading to intolerable injustice to the parties or any of the party. In such case if principle of res Judicata is not extended there would be no end to litigation and there would be no security to litigant public even if lis between them is finally adjudicated on merits in earlier writ petition. I am of the view that in such cases where decision on issue or issues had attained finality principle of res judicata is to be recognised by Courts to avoid conflicting decisions in writ petitions to maintain public policy and also to full-fledged security to litigant public. (28). It is made clear that the test of applicability of doctrine of res judicata enumerated hereinabove are only illustrative and not exhaustive. The aforesaid tests of applicability of rule of res judicata have been enumerated looking to the particular facts and circumstances of the present case. (29). Now, let us examine the applicability of rule of res judicata as discussed hereinabove with reference to the facts of the present case. The aforesaid tests of applicability of rule of res judicata have been enumerated looking to the particular facts and circumstances of the present case. (29). Now, let us examine the applicability of rule of res judicata as discussed hereinabove with reference to the facts of the present case. Indisputably, it is borne out on the face of record from conjoined reading of order passed by learned Single Judge on 23.12.91 in writ petition No. 5559/91 and judgment rendered by Division Bench on 6.3.1995 in writ appeal No.298/92 that the points raised in preceding paragraphs of this writ petition were also raised earlier in the aforesaid writ petition and writ appeal between the parties. The grounds of attack and defence between the parties before this Court relating to termination of services of the petitioner from Army and his transfer from P.C.(G.D.) to P.C.(S.L.) on the post of Record Officer, Quarter Master or any other post to which under the army rules he is eligible are substantially the same which were adjudicated finally by Andhra Pradesh High Court in writ petition No. 5559/91 and writ appeal No. 298/92. It is also borne out from the aforesaid two judgments of Andhra Pradesh High Court that on the basis of averments made in the writ petition in counter affidavit in rejoinder affidavit and also supplementary affidavit filed by respondents and also after hearing arguments of learned counsel for the parties to learned Single Judge in writ petition No.5559/91 formulated three issues for determination which are elaborately discussed in preceding paragraph of this order are finally adjudicated and had attained finality. (30). The aforesaid three issues were admittedly decided in favour of the petitioner and against the present respondents on merits in the aforesaid writ petition by learned Single Judge. It is borne out on the face of record that it was held by the learned Single Judge that the petitioner has not deliberately avoided to complete the BYO course training but he was prevented from completing the course on medical unfitness. It is borne out on the face of record that it was held by the learned Single Judge that the petitioner has not deliberately avoided to complete the BYO course training but he was prevented from completing the course on medical unfitness. After analytical discussion and also after giving cogent and convincing reasons the learned Single Judge allowed the writ petition No.5559/91 on 23.12.91 declaring the petitioner to be entitled to continue in service as his services were found not liable to be terminated, directing the respondents to grant the request of the petitioner for inter arm transfer from P.C.(G.D.) to P.C. (S.L.) on the post of Record Officer, Quarter Master or any other post in the S.L. to which under the rules he is eligible. The respondents were also directed to consider his claims and pass the necessary orders within six months from the date of receipt of the order. (31). Aggrieved against the order passed by the learned Single Judge, the present respondents filed writ appeal No. 298/92 before Division Bench of Andhra Pradesh High Court which too was dismissed, affirming the order passed by learned Single Judge in toto after giving additional ground for dismissal of aforesaid writ appeal of violation of principle of natural justice. It is not disputed before me that both the orders passed by learned Single Judge and by Division Bench had attained finality between the parties. It is also not disputed by learned counsel for the parties that both the aforesaid orders passed in the aforesaid writ petition and in writ appeal are receivable in evidence under Section 40 of Indian Evidence Act and its correctness can be adjudged only subject to the provisions made under Section 44 of the said Act. It is frankly conceded by learned counsel for the parties that question of pressing into service the provisions envisaged under Section 44 of Indian Evidence Act with reference to the order passed by learned Single Judge and by Division Bench of Andhra Pradesh do not arise. It is frankly conceded by learned counsel for the parties that question of pressing into service the provisions envisaged under Section 44 of Indian Evidence Act with reference to the order passed by learned Single Judge and by Division Bench of Andhra Pradesh do not arise. In such circumstances, I am of the view that Section 40 of the Indian Evidence Act which is being relief upon by the learned counsel for the petitioner as well as by the learned counsel for the respondents deals with only a fringe of law of res judicata whereas the provisions of Section 11 of Civil Procedure Code are more extensively touch the principle of res judicata. In my humble opinion there is fundamental distinction between Section 40 of Indian Evidence Act and Section 11 of Civil Procedure Code. The for- mer deals with the fringe of principle of res judicata and prohibits Courts from taking cognizance of successive writ petition due to existence of earlier final adjudication between the parties whereas the latter deals with bar of successive writ petitions on the same facts, on the same grounds by same persons. It is held that Section 40 of Indian Evidence Act prevents any Court from taking cognizance of a suit/writ/proceeding or holding a trial. The existence of two orders passed by learned Single Judge and by Division Bench of Andhra Pradesh High Court is relevant before this Court while deciding the question whether this Court should take cognizance of the present writ petition or not whereas Section 11 CPC prohibits entertaining of successive writ petitions in whole on the same facts, on the same grounds by same persons as well as it also forbids the Court to re-adjudicate an issue or issues already adjudicated finally in previous writ petition. I have no hesitation to hold that in the present case, the whole of the writ petition is not barred by principle of res judicata in view of fresh cause of action accrued to the petitioner when so called second show cause notice dated 22.2.96 (Annex.9) pur- ported to have been given in compliance of the order dated 6.3.95 passed in writ appeal No 298/92. In my humble opinion a fresh cause of action accrued to the petitioner when show cause notice Annex.9 was served to him although there was no such direction by Division Bench in writ appeal No.298/92 to reconsider the entitlement of the petitioner to continue in army service or reconsider his transfer from P.C. (G.D.) to P.C.(S.L.) de novo. I am of the view that second show cause notice dated 22.2.96 (Annex.9) given by the respondents is wholly misconceived and it was given without any authority in law. I am also of the view that second show cause notice dated 22.2.96 (Annex.9) was given to the petitioner in order to create endless confusion to his right to continue in army service and also to hoodwink his legitimate claim of transfer from P.C.(G.D.) to P.C.(S.L.) on the post of record officer, Quarter Master or to any other post for which he is eligible under the Army Rules and under the Army Instructions discussed in detail in the order passed by learned Single Judge in writ petition No. 5559/91 which was affirmed in toto by learned Judges, constituting Division Bench in writ appeal No.298/92. (31A). On the aforesaid premises it is held that in the present writ petition, except the aforesaid three issues framed by the learned Single Judge in writ petition No.5559/91, no other issues are involved and as such the decision taken by learned Single Judge, declaring the petitioners entitlement to continue in army service as well as his legitimate claim of inter arm transfer from P.C.(G.D.) to P.C.(S.L.) on the post of Record Officer, Quarter Master or any other post in the S.L. to which under the Rules he is found to be eligible will operate as res judicata and the respondents have no authority in law to create endless confusion and intolerable injustice to the petitioner on the basis of nonexistent ground of complying with the judicial order passed in Writ Appeal No. 298/92. (32). Learned counsel for the respondents invited my attention to the penultimate line of the order passed in writ appeal No.298/92 on 6.3.95 by learned Judges constituting Division Bench of Andhra Pradesh High Court which reads as under : ``The authority has to proceed in accordance with law. (33). Learned counsel for the respondents Mr. (32). Learned counsel for the respondents invited my attention to the penultimate line of the order passed in writ appeal No.298/92 on 6.3.95 by learned Judges constituting Division Bench of Andhra Pradesh High Court which reads as under : ``The authority has to proceed in accordance with law. (33). Learned counsel for the respondents Mr. Choudhary urged that in view of the aforesaid observation by learned Judges constituting Division Bench, respondents were justified in giving second show cause notice dated 22.2.96 (Annex.9) and were also justified in terminating the services of the petitioner vide impugned order dated 29.1.97 (Annex.12). The argument of Mr. Choudhary is not acceptable to me for the reasons given hereinbelow. (34). A conjoined reading of the order passed in Writ Petition No. 5559/91 and order passed in Writ Petition No. 298/92 (Annex.17 and 18 respectively) reveal that in these orders the case of the petitioner was not remanded to the respondents for reconsidration either under Section 19 of the Army Act readwith Rule 13 A of the Army Rules relating to his entitlement to continue in army service or to reconsider his request for inter arm transfer from P.C.(G.D.) to P.C.(S.L.) de novo. In fact by the aforesaid order the respondents were directed to proceed in accordance with law to decide suitability of the petitioner for his placement either on the post of Record Officer, Quarter Master or any other post under the S.L. to which under the Rules he is found to be eligible. In my considered opinion, in the present case, the respondents instead of taking decision about suitability of the petitioner for his placement either on the post of Record Officer, Quarter Master or any other post in the S.L. to which under the Rules he is found to be eligible they illegally and on non existent ground are trying to harass the petitioner by giving the second show cause notice dated 22.2.96 (Annex.9), arrogating themselves to decide his entitlement to remain in army service and also to decide his inter arm transfer from P.C.(G.D.) to P.C.(S.L.) de novo after final decision in writ petition No.5559/91 and in writ appeal No. 298/92. It is held that the learned Judges, constituting Division Bench while deciding the writ appeal No.298/92 have affirmed the order of learned Single Judge in toto and by making an observation ``The authority has to proceed in accordance with law they intend to convey to the respondents to grant request of the petitioner for inter arm transfer from P.C.(G.D.) to P.C.(S.L.) on the post of Record Officer, Quarter Master or any other post in S.L. to which under the Rules he is found to be eligible, meaning thereby, the relief which was granted by learned Single Judge was affirmed in toto and only decision about placement of the petitioner either on the post of Record Officer, Quarter Master or any other post in S.L. under the Rules was left open to be decided by the respondents. It is shocking to my judicial conscience that instead of implementing the order passed by learned Single Judge in letter and spirit which was affirmed by Division Bench in writ appeal in toto, the respondents gave a second show cause notice dated 22.2.96 (Annex.9) and passed the impugned order dated 29.1.97 (Annex.12), terminating the services of the petitioner, which is per se illegal and not sustainable in eye of law. (35). It now remains to be considered the other substantial questions raised on behalf of the respondents on the point of res judicata. In Paragraph 4 of the rejoinder, the petitioner himself has categorically stated that in the present case the principle of res judicata is not applicable and in view of the aforesaid averments it is urged by learned counsel for the respondents Mr. Choudhary that the petitioner is not entitled to get the benefit of principle of res judicata. The aforesaid argument of learned counsel for the respondents is also not acceptable to me as I am of the opinion that in the present case sufficient grounds exist to attract principle of res judicata and a concession given either by the petitioner or by his lawyer will not take away legal effects of the decision taken in writ petition No. 5559/91 and in writ appeal No.298/92. It is held that principle of res judicata cannot be allowed to be influenced by technical considerations of formal nature. It is held that principle of res judicata cannot be allowed to be influenced by technical considerations of formal nature. This Court cannot afford to allow rights of the petitioner declared and adjudicated finally by learned Single Judge and affirmed by Division Bench of Andhra Pradesh High Court to be hoodwinked at the behest of respondents. The act of the respondents in not faithfully implementing the judicial pronouncement made by learned Single Judge in writ petition No.5559/91 and by Division Bench in writ appeal No.298/92 is to be viewed seriously. (36). As the decisions cited by learned counsel for the petitioner are not applicable to the facts and circumstances of the present case, therefore, I do not consider it just and proper to burden this order by discussing those decisions in de- tail. The facts of the cases cited by learned counsel for the petitioner are distinguishable to the facts of the present case. (37). From the discussion made hereinabove it follows that the impugned order dated 29.1.97 (Annex.12). consequential order dated 10.2.97 Annex.13), and signal order dated 12.2.97 (Annex.14) are not sustainable in the eye of law and as such deserve to be quashed as the right of the petitioner to continue in army service and his entitlement of inter arm transfer from P.C.(G.D.) to P.C.(S.L.) had already been adjudicated by learned Single Judge in writ petition No.5559/91 which had been affirmed in toto by dismissing the writ appeal No.298/92 by learned Judges, constituting Division Bench of Andhra Pradesh High Court which indisputably had attained finality. (38). Upshot of the aforesaid discussion is that the instant writ petition is allowed with costs which is assessed to Rs.5,000/- (Rs.Five thousand only) and the order impugned dated 29.1.97 (Annex.12) terminating services of the petitioner and consequential order dated 10.2.97 (Annex.13) and signal order dated 12.2.97 (Ann- ex.14) are hereby quashed with a direction to the respondents to consider the suitability of placement of the petitioner for his inter arm transfer from P.C. (G.D.) to P.C.(S.L.) on the post of Record Officer, Quarter Master or any other post in the S.L. to which under the Rules he is found to be eligible within three months from the date of receipt of a certified copy of this order.