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Madhya Pradesh High Court · body

2008 DIGILAW 1458 (MP)

S. B. Singh v. State of M. P.

2008-12-19

A.M.NAIK

body2008
ORDER 1. Case of the petitioner is that he was appointed as Chief Executive Officer in Special Area Development Authority, Sidhi (hereinafter referred to as SADA) vide order dated 1.7.1991 and was subsequently transferred from time to time to various other SADAs in the State. Lastly, while the petitioner was posted as Chief Executive Officer, SADA, Bhilai (Durg) in 1998, the SADA was dissolved by the State Government in exercise of powers conferred under section 76(1) of the M.P. Nagar Tatha Gram Nivesh Adhiniyam, 1973. The petitioner was, further, posted as Commissioner in Municipal Corporation, Bhilai vide order dated 15.6.1998. Petitioner was, thereafter, transferred and posted as Project Officer, District Urban Development Agency, Gwalior (hereinafter referred to AS DUDA) vide order dated 30.3.2000 passed by the State Government. This order was challenged by the petitioner in WP No.2155/2000 inter alia on the ground that DUDA is only a society registered under the M.P. Societies Registrikaran Adhiniyam, 1973 and was not a part of any Municipality or Municipal Corporation. This Court vide order dated 12.5.2000 allowed the writ petition in part holding that the transfer of the petitioner as Project Officer, DUDA, Gwalior was not a transfer from one Municipal Council to another and as such the transfer could not be sustained. A copy of this order is on record as Annexure P-1. Petitioner was again posted as Chief Municipal Officer in Municipal Council, Panna w.e.f. 19.5.2000. Subsequently, vide order dated 22.8.2000 he was transferred to the post of Commissioner, Municipal Corporation, Singrauli, District Sidhi and thereafter he was transferred vide order dated 4.7.2002 to the post of Commissioner, Municipal Corporation, Katni. Copy of the order dated 4.7.2002 is on record as Annexure P-2. Ignoring Annexure P-1, the petitioner was again transferred to the post of Project Officer, DUDA, Jabalpur vide order dated 12.10.2004. It was again challenged in WP No.10770/2004. This petition was disposed of by this Court on 19.10.2004 vide Annexure P-4 with a direction to the Transfer Grievance Cell of the State Government to consider and take a decision in the matter of the petitioner. Till such a decision, status quo was directed to be maintained. During pendency of the representation of the petitioner made pursuant to Annexure P-4 one Shri L.K. Dwivedi was posted as Commissioner, Municipal Corporation, Katni which was challenged by the petitioner in WP No.12462/04. Till such a decision, status quo was directed to be maintained. During pendency of the representation of the petitioner made pursuant to Annexure P-4 one Shri L.K. Dwivedi was posted as Commissioner, Municipal Corporation, Katni which was challenged by the petitioner in WP No.12462/04. This petition was disposed of vide order dated 2.12.2004 contained in Annexure P-6 holding that adequate directions had already been given vide Annexure P-4 and the grievance in the matter may be raised by the petitioner before the Transfer Grievance Cell. Ultimately, the petitioner was posted as Additional Commissioner, Municipal Corporation, Gwalior. 2. It is further stated in the writ petition that the respondent No.3 who was posted as Commissioner, Municipal Corporation, Singrauli was suspended vide order dated 13.3.2006 and subsequently, the petitioner who was serving as Additional Commissioner, Gwalior was transferred to the post of Commissioner, Municipal Corporation, Singrauli vide order dated 14.3.2006. Pursuant thereto petitioner gave his joining as Commissioner, Municipal Corporation, Singrauli on 17.3.2006. Respondent No.3 challenged the order of his suspension in WP No.4042/06(S). This Court in the said writ petition, directed on 20th March, 2006 the Chief Secretary of the State of Madhya Pradesh to scrutinise the case of the respondent No.3 and keep the order of suspension in abeyance until the outcome of such scrutiny. Consequently, the respondent No.3 again joined as Commissioner, Municipal Corporation, Singrauli. Copy of the order dated 20.3.2006 is on record as Annexure P-9. State Government submitted an application for review/recall of the said order which was allowed by this Court in MCC No.794/2006 vide order Annexure P-10 dated 27.4.2006. Petitioner was, thereafter, again posted vide order dated 3.5.2006 as Commissioner, Municipal Corporation, Singrauli in exercise of the power under section 54 of the Municipal Corporation Act, 1956. Copy of this order is on record as Annexure P-11. Petitioner gave his joining pursuant to the said order on 5.5.2006 and has been continuing on the said post. However, pursuant to Annexure P-9 dated 20.3.2006, an enquiry was conducted and the report was submitted by the Principal Secretary holding that the complaint made by respondent No.3 was not correct. A resolution was also passed by the Municipal Corporation, Singrauli on 24.12.2007 vide Annexure P-15 that the State Government be requested not to post the respondent No.3 as Commissioner, Municipal Corporation, Singrauli against its interest. 3. A resolution was also passed by the Municipal Corporation, Singrauli on 24.12.2007 vide Annexure P-15 that the State Government be requested not to post the respondent No.3 as Commissioner, Municipal Corporation, Singrauli against its interest. 3. Despite the aforesaid, the petitioner has been posted by impugned order dated 24.3.2008 (Annexure P-16) on the post of Project Officer, DUDA, Khandwa and the respondent No.3 has been again posted on the post of Municipal Commissioner, Singrauli. Petitioner has challenged in this petition his posting vide Annexure P-16 to DUDA. He has prayed for the following reliefs: (a) set aside the order dated 24.3.2008 (Annexure P-16); (b) direct the respondent No.1 to permit the petitioner to continue as Commissioner, Municipal Corporation, Singrauli. 4. Respondents submitted their returns stating therein mainly that the learned Single Bench of this Court vide Annexure P-1 had held that the petitioner after dissolution of SADA had become an employee of State Municipal Services and cannot be transferred to DUDA which is a society registered under the provisions of M.P. Societies Registrikaran Adhiniyam, 1973. Thereafter, Division Bench of this Court while considering the identical point has held vide order Annexure R-1 dated 12.1.2005 passed in LPA No.845/04 that DUDA is the body fully controlled by the State and therefore the State employee can be transferred to DUDA. It is further stated in the return that the petitioner was working as Chief Executive Officer, SADA and became employee of State Municipal Services against the resolution of SADA but only because he was appointed as Commissioner, Municipal Corporation he cannot claim any right for the reason that there is no permanent post of Commissioner of Municipal Corporation and appointments of Commissioner, Municipal Corporations are being made under section 54 of the Municipal Corporation Act as per the decision taken by the State Government. It is further stated that the respondent No.3 is quite qualified for the post of Commissioner of the Municipal Corporation and there is nothing on record to show that respondent No.3 is ineligible for the said post. He has been posted as Commissioner of the Municipal Corporation as per the decision of the Government which does not suffer from any illegality and/or infirmity. 5. He has been posted as Commissioner of the Municipal Corporation as per the decision of the Government which does not suffer from any illegality and/or infirmity. 5. Respondent No.3 submitted its return containing inter alia that the petitioner is not a regular Chief Municipal Officer holding a civil post of the State Government sanctioned in the State Municipal Services (Executive), under the control of the Urban Administration and Development Department. Initially the petitioner was appointed as Chief Executive Officer in Town Improvement Trust and, subsequently, was transferred and posted as Chief Executive Officer in various development authorities. The said authorities were under the control of the State of Madhya Pradesh in Housing and Environment Department. Since, the State Government took the decision to abolish SADA and Town Improvement Trust and a policy was made to transfer all the assets, liabilities and responsibilities of those abolished authorities to the respective Municipal Councils and Municipal Corporations. Accordingly, the petitioner came in services of the Urban Administration and Development Department. The dispute with respect to the final absorption of persons like petitioners who have come from the erstwhile Town Improvement Trust or SADA has not been finally resolved as a result, till date there is no final absorption order issued in respect of petitioner absorbing him on any of the post in the State Municipal Services (Executive). Though, it is being said that such persons are being absorbed or have been absorbed on the post of Chief Municipal Officer, but the fact remains that their names have not been included in the gradation seniority list of the Chief Municipal Officer of any category. In support of this plea, copies of gradation seniority list of Chief Municipal Officers are placed on record as document No.R-3/1 and R-3/2. Name of the answering respondent is mentioned at serial No.24 in document No.R-3/1 whereas the name of the petitioner does not find place in document No.R-3/2. In this view of the matter, the petitioner has no better claim than the answering respondent who has already been appointed in the services of the State Government in the State Municipal Services (Executive) and is a holder of the civil post of the State. Commissioner of the Municipal Corporation cannot be removed from the office in a meeting of the Corporation with less than 3/4th of the total number of elected councilors. No such resolution was ever passed. Commissioner of the Municipal Corporation cannot be removed from the office in a meeting of the Corporation with less than 3/4th of the total number of elected councilors. No such resolution was ever passed. On the contrary, a resolution in the year 2002 was passed against the petitioner with respect to his working as revealed in document No.R-3/3. It is further averred in the return that many of the Chief Municipal Officers have been posted as Project Officer in various DUDAs in the State after amalgamation of the department. Therefore, it cannot be said that under the changed circumstances only because once it is said by this Hon'ble Court that the posting of Project Officer is not permissible in any other department, he cannot be posted as Project Officer in DUDAs. This being the position, it cannot be said that any violation is committed by the State in transferring and posting the petitioner as Project Officer in DUDA, Khandwa. This apart, it has been averred that respondent No.3 has not only taken over charge of the post but he is exercising all the powers of the Commissioner of the Municipal Corporation, Singrauli and is taking active part in all the proceedings. Financial transactions have also been started by him as revealed in document No.R-3/13 and R-3/14. In view of the aforesaid, prayer for dismissal of the writ petition has been made. 6. Petitioner submitted his rejoinder stating therein that the decision of the Division Bench contained in Annexure R-1 has no applicability to the petitioner's case. On the contrary, Annexure P-1 continues to hold field as far as the petitioner is concerned. Additionally, it is contended that pursuant to the order dated 3.5.2006 respondent No.3 has joined as Project Officer, DUDA, Khandwa. Accordingly, the order dated 3.5.2006 (Annexure P-11) stood executed and it could not have been revoked after execution. This being so, order dated 24.3.2008 (Annexure P-16) is void ab initio because an order once executed cannot be revoked. 7. Respondent No.3 submitted additional return refuting the various factual and legal averments raised in the rejoinder. Application for intervention has also been filed by the intervenors vide IA No.4590/08. 8. Learned counsel for the parties are heard at length which have been considered in the light of the material on record. 7. Respondent No.3 submitted additional return refuting the various factual and legal averments raised in the rejoinder. Application for intervention has also been filed by the intervenors vide IA No.4590/08. 8. Learned counsel for the parties are heard at length which have been considered in the light of the material on record. It is worth mentioning that respondent No.1 has made available the record of the department leading to the impugned order regarding transfer of the petitioner which, too, has been perused. 9. Main contention of Shri Ravish Agrawal, learned senior counsel is that the petitioner was earlier posted as Commissioner in Municipal Corporation, Bhilai. He was transferred from there to the post of Project Officer, DUDA vide order dated 30.3.2000 passed by State Government. It was challenged by the petitioner in WP No.2155/2000 on the ground that DUDA is only a society registered under M.P. Societies Registrikaran Adhiniyam, 1973 and was not a part of any Municipal Council or Municipal Corporation. This Court vide Annexure P-1 dated 12.5.2004 allowed the writ petition in part holding that the transfer of the petitioner as Project Officer, DUDA, Gwalior was not a transfer from one Municipal Council to another and as such the transfer could not be sustained. Contention of the learned senior counsel is that this order operates as res judicata against the State Government and the impugned order dated 24.3.2008 contained in Annexure P-16 transferring thereby the petitioner on the post of Project Officer, DUDA, Khandwa is therefore not sustainable despite having been held by the Division Bench of this Court vide Annexure R-1 dated 12.1.2005 in LPA No.854/04 that the District Urban Development Agency (DUDA) is a body wholly controlled by the State Government and having regard to the proviso to FR 110, transfer to DUDA cannot be said to be illegal. Reliance has been placed to buttress this submission on the Single Bench decision of this Court in the case of State of Madhya Pradesh v. Mulamchand [ 1973 JLJ 489 =1973 MPU 832], wherein following conclusions have been drawn: "(1) The bar of res judicata operates also as between two stages in the same litigation. (2) A decision in a writ proceeding operates as res judicata in a subsequent suit based on the same cause of action between the same parties. (2) A decision in a writ proceeding operates as res judicata in a subsequent suit based on the same cause of action between the same parties. (3) The principle of res judicata is based on the need of giving finality to a judicial decision. Once a res judicata, it shall not be adjudged again. The underlying principle is that the parties should not be vexed twice over. (4) Even where section 11, Civil Procedure Code, does not apply, the principle of res judicata may apply for the purposes of achieving finality in litigation. (5) A question of law is as much in issue as a question of fact. The expression "matter in issue" is not confined to issues of fact; it includes issues of law as well. (6) But, for the purposes of the rule of res judicata, the issue of law must not be an abstract question of law, it must be one relating to its applicability or non-applicability to the facts and circumstances of the particular case. (7) Even an erroneous decision on an issue of law operates as res judicata. Exceptions to this rule are (i) where by a subsequent legislation, the law, as applied in the earlier decision, is altered. However, a different interpretation of the law as given in a subsequent binding precedent is not the same thing as altering the law; (ii) where the question of law is one purely relating to the jurisdiction of the Court; (iii) where the decision of the Court sanctions something which is illegal. 'Illegality' in this context refers to an act prohibited by law. (8) As between a decision which operates as res judicata and another which is a binding precedent, though not res judicata, the former prevails. (9) A decision of the Supreme Court is binding on all Courts by virtue of Article 11 of the Constitution, but it is not the same thing as to say that a decision of the Supreme Court alters the law. Article 141 does not confer on the Supreme Court any legislative function. The Supreme Court declares the law; it does not alter the existing law, or make a new law." 10. Article 141 does not confer on the Supreme Court any legislative function. The Supreme Court declares the law; it does not alter the existing law, or make a new law." 10. Strength has also been derived from the decision of Chancery Division in the case of Waring Westminster Bank v. Burton Butler and Opinions of the Lords of Appeal (House of Lords) for judgment in the cause: Watt (formerly Carter) (sued on his own on behalf of the other members of the Labour Party) (respondent) v. Ahsan (appellant) to contend that even by virtue of the later decision of the learned Division Bench vide Annexure R-1, the effect of res judicata does not get vanished because even an erroneous decision on an issue of law operates as res judicata. 11. Referring to another Supreme Court decision in the case of Ishwar Dutt v. Land Acquisition Collector and another [ (2005)7 SCC 190 ], it is submitted that the principles of res judicata is applicable to writ proceedings and the respondent State is prohibited from issuing the impugned order of transfer of the petitioner in contravention of Annexure P-1. Reliance has been further placed on the decision of the Supreme Court in the case of Hope Plantations Ltd. v. Taluk Land Board, Peermade and another [ (1999)5 SCC 590 ], to contend that the principles of res judicata and estoppel would apply even to proceedings of administrative authorities. He contended, taking support from Ishwardas v. The State of Madhya Pradesh and others [ AIR 1979 SC 551 ], that the plea of res judicata may be sustained, without anything more, if the questions at issue and the parties are the same, subject of course to the other conditions prescribed by S.11. Once the question at issue in the two suits are found to be the same, the fact that the material which led to the decision in the earlier suit was not again placed before the Court in the second suit cannot make the slightest difference. Applicability of principles of res judicata to writ petitions was already recognised by the five Judges Bench of the Supreme Court in the case of Devilal Modi v. Sales Tax Officer, Ratlam and others [ AIR 1965 SC 1150 ]. 12. Applicability of principles of res judicata to writ petitions was already recognised by the five Judges Bench of the Supreme Court in the case of Devilal Modi v. Sales Tax Officer, Ratlam and others [ AIR 1965 SC 1150 ]. 12. It is strenuously argued that although the Division Bench of this Court vide Annexure R-1 has held that a transfer could be made to DUDA, this point having been concluded between the petitioner and the State Government vide Annexure P-1, it cannot be reopened by the impugned order on account of having been hit by the principle of res judicata. Reliance has also been placed for this purpose on the following passage from the decision on the Kerala High Court in the case of Bharti Amma and others v. Kumaran Pethambaran and another [AIR 1990 Kerala 88]. It is observed that: "A finding or decision inter partes based on a certain view of the law connected with the facts relating to right of parties is binding on them even though the abstract proposition of law dissociated from the facts may not be so. Subsequent change of law, statutory or interpretative, cannot take away the binding force of the previous decision inter partes. That does not mean that in spite of the change of law the earlier decision will bind the parties in future dispute. When the cause of action and reliefs are different, the new law alone will govern. That is because the matter in issue in the subsequent proceeding is different since the law to be interpreted is different. A statutory change of law with retrospective effect, depending upon statutory provisions, may be capable of re-opening concluded decisions. But a different interpretation of law overruling an earlier decision not inter partes on the question of interpretation of law cannot have the effect of re-opening the earlier decision which has become final between parties. Otherwise, whenever there is an interpretative change in law, fresh litigations ignoring earlier concluded decisions could be had. Velayudhan's case [1975 Ker. LT 1 (FB)], which overruled Rev. Fr. Victor Fernandez's case [1971 Ker. LT 216: AIR 1973 Ker. 55 (FB)], on the interpretation of the amplitude of tenancy, cannot have the effect of taking away the bar of res judicata on account of previous concluded decisions inter partes and allowing the plaintiff to file the present suit ignoring the earlier decisions. LT 1 (FB)], which overruled Rev. Fr. Victor Fernandez's case [1971 Ker. LT 216: AIR 1973 Ker. 55 (FB)], on the interpretation of the amplitude of tenancy, cannot have the effect of taking away the bar of res judicata on account of previous concluded decisions inter partes and allowing the plaintiff to file the present suit ignoring the earlier decisions. If such an interpretation is allowed, there cannot be any finality of decisions." Full Bench decision of Jammu and Kashmir High Court in the case of Abdul Salam v. State of Jammu and Kashmir and others [AIR 1981 J. & K. 21], has also been harnessed into operation wherein it is observed : "From a review of the aforesaid judgment it stands established that in any case in which it is found that the matter directly and substantially in issue had been directly and substantially in issue in a former suit or writ petition and has been heard and finally decided by a competent Court principles of res judicata cannot be ignored. Even an erroneous judgment is nonetheless a binding judgment inter parties, so long as it is not reviewed or reversed by a higher Court. Once a final judgment has been obtained, the same matter cannot be convassed anew in another action. This is the core of the rule, the Court is not concerned with the correctness or otherwise of the earlier judgment. The matter in issue, if it is purely one of fact decided in the earlier proceedings by a competent Court must in a subsequent litigation between the same be regarded as finally decided and be reopened. A mixed question of law and fact, for the same reasons, cannot be considered anew in any subsequent proceedings. There would be no difference where the decision is on a question of law either, if the conditions for the application of section 11 CPC are satisfied, except in cases where the question decided in the previous cause is a question of law and relates to the jurisdiction of the Court or the lack of it or the law has been subsequently changed by the legislature. Doctrine of res judicata and general principle emanating therefrom must be resorted to secure and freeze the issue once debated and finally decided and the principle of res judicata cannot be ignored merely on the plea that the earlier judgment was wrong or erroneous. Doctrine of res judicata and general principle emanating therefrom must be resorted to secure and freeze the issue once debated and finally decided and the principle of res judicata cannot be ignored merely on the plea that the earlier judgment was wrong or erroneous. Undoubtedly Article 141 of the Constitution of India enacts that the law declared by the Supreme Court shall be binding on all Courts within the territory of India. But the plain implication of the article is that when the Supreme Court expresses its view on a particular point of law, that view would be binding on all Courts in India, irrespective of any contrary view expressed by any other Court earlier and after the declaration by the Supreme Court the view expressed to the contrary would no longer be treated as good law. It, however, does not mean that the effect of the decision, which had taken a contrary view and had become final between them stands automatically wiped off. The effect of a judgment, inter partes, can only be wiped off by getting that particular judgment reversed in an appeal or review. To hold otherwise would offend against the principle of finality of judgments. Moreover, Mr. Thakur is not correct in assuming that the declaration of law by the Supreme Court amounts to an 'alteration' in law so as to exclude the application of the rule of res judicata. Article 141 of the Constitution has a limited purpose and does not confer any legislative functions on the Supreme Court. The Supreme Court only interprets law and neither enacts nor amends the law as laid down by the legislature. Thus, the exception to application of the rule of res judicata that if there is 'alteration' of the law since the earlier judgment of the rule would not apply, would not be attracted because the interpretation given by the Supreme Court cannot be equated with enactment of new or altered law by the legislature. It is, therefore, immaterial for the application of the principles of res judicata as to whether the Supreme Court subsequently in a different case expresses a view contrary to a decision inter partes in an earlier suit or writ petition. It is, therefore, immaterial for the application of the principles of res judicata as to whether the Supreme Court subsequently in a different case expresses a view contrary to a decision inter partes in an earlier suit or writ petition. Indeed, the declaration by the Supreme Court would imply that the law has always what the Supreme Court interprets it to mean but this cannot be extended to take away the rights which have become final between the parties in an earlier decision which took the contrary view. The rights which have become final as a result of a judgment delivered by a competent Court cannot be washed away by a subsequent interpretation in a different cause. The correctness or otherwise of the earlier decision is wholly irrelevant where the conditions for the application of the rule of res judicata are satisfied in the latter case." 12A. I have considered the position of law with regard to section 11 as projected by the learned counsel for the petitioner. There cannot be dispute about it. However, it may be seen that a plea of res judicata does not involve a pure question of fact but it involves a mixed question of law and fact. A plea of res judicata is not a plea touching the jurisdiction of a Court in total or absolute sense. Thus, it is a plea which a party may waive. Apex Court in the case of Associated Hotels of India Ltd. v. S.B. Sardar Ranjit Singh [ AIR 1968 SC 933 ], has held that a waiver is an intentional relinquishment of a known right. If a party chooses not to take shelter of this plea knowing fully well about his right flowing from earlier inter partes decision on merits, he may be deemed to have waived the plea of res judicata. 13. Apex Court in the case of Ram Harakh (Dead) by LRs v. Hamid Ahmed Khan (Dead) by LRs and others [ (1998)7 SCC 484 ], has held that if a plea of res judicata was not raised before the consolidation authorities in the first instance or before the appellate authorities, the same will be deemed to have been waived. 13. Apex Court in the case of Ram Harakh (Dead) by LRs v. Hamid Ahmed Khan (Dead) by LRs and others [ (1998)7 SCC 484 ], has held that if a plea of res judicata was not raised before the consolidation authorities in the first instance or before the appellate authorities, the same will be deemed to have been waived. Similarly, it has been held by the apex Court in the case of Sangappa Gurulingappa Sajjan v. State of Karnataka and others [( 1994)4 SCC 145], that a plea despite being available, if not raised, will not be available in the SLP. 14. There is a peculiar feature in this case. In the instant case, although, the transfer of the petitioner to DUDA was quashed by this Court in WP No.2155/2000 vide Annexure P-1 dated 12.5.2004, he was again transferred to the post of Project Officer, DUDA, Jabalpur vide order dated 12.10.2004. The order was challenged before this Court in WP NO.10770/04. This petition was disposed of by this Court on 19.10.2004 vide Annexure P-4 with a direction to the Transfer Grievance Cell of the State Government to consider the case of the petitioner and take a decision therein. Since, the principle of res judicata is equally applicable to administrative authorities, the petitioner ought to have insisted for quashment of the order of his transfer to DUDA, Jabalpur. On the contrary, the petitioner is not found to have challenged the order in WP No.10770/04 in LPA and instead subjected himself to the decision of the State Government in the matter. Had he been particular for taking advantage of the plea of res judicata on the strength of Annexure P-1, he would have insisted this Court in WP No. 10770/04 for quashment of the order transferring him thereby to DUDA, Jabalpur vide dated 12.10.2004 in the light of Annexure P-1 or would have challenged the order dated 19.10.2004 vide Annexure P-4 passed in WP No. 10770/04 directing thereby the Transfer Grievance Cell to take a decision in the matter of transfer in LPA. Thus, the petitioner despite being fully aware of his right flowing from Annexure P-1 having not insisted for quashment of Annexure P-4 on the strength of Annexure P-1 is deemed to have waived the plea of res judicata on account of non-sticking to it in WP No.10770/04 and further permitting the Transfer Grievance Cell of the State Government to take a decision pursuant to the order of this Court made vide Annexure P-4. If a party without raising a plea of res judicata despite full awareness allows the Court to decide the question afresh or to issue a direction afresh, it is not open to such party to challenge the subsequent administrative decision on the plea of res judicata because he himself despite of making challenge at the earlier occasion in WP No.10770/04 did not insist for a decision on the basis of res judicata. This apart, it may be seen from the relief clause that the petitioner has merely prayed for quashment of his transfer order contained in Annexure P-16 and has not challenged the other Government decisions leading to his transfer. Moreover, every transfer order gives rise to a fresh cause of action if an employee wishes to challenge it. I may successfully quote the passage from House of Lords decision approved by the Supreme Court of India in Ishwar Dutt's case (supra) : "Issue estoppel may arise where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided and in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant, one of the parties seeks to reopen that issue." 15. In view of the aforesaid discussion, I am of the considered opinion that the petitioner having not insisted before this Court in WP No.10770/ 04 for applicability of plea of res judicata on the strength of Annexure P-1, and having further subjected himself to the decision of the State Government pursuant to Annexure P-4 is deemed to have waived it and this Single Bench would be bound by the law laid down by the Division Bench (headed by the then Chief Justice Hon'ble Shri R.Y. Raveendran, presently Judge, Supreme Court of India) decision in LPA No.854/04 vide Annexure R-1 that transfer from State Municipal Service (Executive) to DUDA cannot be said to be illegal having regard to the proviso to FR 110 because DUDA is a body wholly controlled by the State Government. 16. Now this Court is required to examine the sustainability of the impugned order of transfer (Annexure P-16) on the parameters applicable to such matters. Scope of interfering in the matter of transfer has been laid down by the apex Court time and again. Following are few such decisions : (i) In the case of Mohd. Masood Ahmad v. State of U.P. and others [ (2007)8 SCC 150 ], it is observed that transfer is an exigency of service. It should not be interfered with ordinarily by a Court of law in exercise of its discretionary jurisdiction under Article 226 unless the Court finds that either the order is malafide or that the service rules, prohibit such transfer, or that the authorities who issued the orders, were not competent to pass the orders. (ii) In the case of State of U.P and another v. Siya Ram and another [2005(I) MPWN 45= (2004)7 SCC 405 ], it has been held : "The High Court while exercising jurisdiction under Articles 226 and 227 of the Constitution of India, 1950 (in short the "Constitution") had gone into the question as to whether the transfer was in the interest of public service. That would essentially require factual adjudication and invariably depend upon peculiar facts and circumstances of the case concerned. That would essentially require factual adjudication and invariably depend upon peculiar facts and circumstances of the case concerned. No Government servant or employee of a public undertaking has any legal right to be posted forever at anyone particular place or place of his choice since transfer of a particular employee appointed to the class or category of transferable posts from one place to other is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of mala fide exercise or stated to be in violation of statutory provisions prohibiting any such transfer, the Courts or the Tribunals normally cannot interfere with such orders as a matter of routine, as though they were the appellate authorities substituting their own decision for that of the employer/management, as against such orders passed in the interest of administrative exigencies of the service concerned. (ii) In the case of State of U.P. and others v. Gobardhan Lal with D.B. Singh v. D.K. Shukla and others [ AIR 2004 SC 2165 ], while deprecating the interference in the matter of transfer, it has been observed: "A challenge to an order of transfer should normally be eschewed and should not be countenanced by the Courts or Tribunal as though they are appellate authorities over such orders, which could assess the niceties of the administrative needs and requirements of the situation concerned. This is for the reason that Courts or Tribunals cannot substitute their own decisions in the matter of transfer for that of competent authorities of the State and even allegations of mala fides when made must be such as to inspire confidence in the Court or are based on concrete materials and ought not to be entertained on the mere making of it or on consideration borne out of conjectures or surmises and except for strong and convincing reasons, no interference could ordinarily be made with an order of transfer." Thus, the transfer of the petitioner cannot be inferred with unless mala fides against the respondents are established or a violation of statutory provision is made out. Merely on the basis of general or political remarks, there cannot be interference as held in the Gobardhan Lal's case (supra). Merely on the basis of general or political remarks, there cannot be interference as held in the Gobardhan Lal's case (supra). (iv) Transfer has already been held as exigency of service which is based on the opinion of the employer. Supreme Court of India in the case of K.B. Shukla and others v. Union of India and others [ AIR 1979 SC 1136 ], has observed: "It is true that formation of opinion by the Central Government as to the existence of 'exigencies of the service' requiring appointment by such method, is a pre requisite for the exercise of the power. But the formation of such opinion is a matter which, in view of the peculiar nature of the function and the language of the provision, has primarily been left to the subjective satisfaction of the Government. Indeed, it is as it ought to be. The responsibility for good administration is that of the Government. The maintenance of an efficient, honest and experienced administrative service is a must for the due discharge of that responsibility. Therefore, the Government alone is best suited to judge as to the existence of exigencies of such a service, requiring appointments by transfer. The term 'exigency' being understood in its widest and pragmatic sense as a rule, the Court would not judge the propriety or sufficiency of such opinion by objective standards, save where the subjective process of forming it, is vitiated by mala fides, dishonesty, extraneous purpose, or transgression of the limits circumscribed by the legislation." 17. Record pertaining to the proceedings leading to the subject transfer is made available which do not reveal any factor having effect of vitiating the transfer. In view of the aforesaid discussion, the petitioner is not found to have established any ground for impugning the transfer successfully. 18. As regards objection that executed order cannot be revoked, reliance has been placed on the order dated 29.1.1988 of this Court passed in MP No.32/1988. On perusal it is found that it is an order passed at the stage of motion hearing having no value as a precedence. Moreover, the impugned order having not been found invalid, cannot be interfered with on the basis of the aforesaid contention. 19. Consequently, the writ petition being devoid of substance is hereby dismissed. No order as to costs.