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2014 DIGILAW 992 (CAL)

Debala Mondal v. State of West Bengal

2014-10-31

R.K.BAG, TAPAN KUMAR DUTT

body2014
Judgment : R.K. Bag, J. 1. This appeal is preferred by the private respondent Debala Mondal against judgment and order dated 04.06.2012 passed by Learned Single Judge in W.P. No.12253 (W) of 2010, by which Learned Single Judge gave direction for appointment of the writ petitioner in the post of 2nd Auxiliary Nurse and Midwife within Taltala health sub-centre under Jaynagar-II, District South 24-Parganas on cancellation of appointment of the private respondent. 2. The back history of filing the writ petition by the respondent/writ petitioner Bandana Mondal is as follows: The writ petitioner along with the appellant and five other candidates offered their candidatures for the post of 2ndAuxiliary Nurse and Midwife within Taltala health sub-centre under Jaynagar-II, District South 24-Parganas in response to the advertisement given in the daily newspaper on 15thSeptember, 2006. The application submitted by the writ petitioner for selection to the post of 2nd Auxiliary Nurse and Midwife was not considered by the respondent authorities and as such the writ petitioner filed W.P. 7169(W) of 2007. By disposing of the said writ petition on 13.04.2007 Learned Single Judge gave liberty to the writ petitioner to file representation before the respondent Block Development Officer who was directed to consider the said representation of the writ petitioner and to take a decision in accordance with law within a period of two weeks from the date of receipt of the said representation. The concerned Block Development Officer considered the representation submitted by the writ petitioner and communicated his decision to the writ petitioner on 26th October, 2007 that the writ petitioner did not submit the ration card showing her husband’s name and that she submitted elector’s photo identity card (EPIC) showing her father’s name and not husband’s name. The concerned Block Development Officer also conveyed to the writ petitioner on 26.10.2007 that the writ petitioner did not produce marriage registration certificate and as such there was no documentary proof in support of her marital status for which she was not eligible for selection to the post of 2nd Auxiliary Nurse and Midwife. This decision of the respondent Block Development Officer was challenged by the writ petitioner before the High Court by filing W.P. No.3227 (W) of 2008. This decision of the respondent Block Development Officer was challenged by the writ petitioner before the High Court by filing W.P. No.3227 (W) of 2008. By disposing of the said writ petitioner on 07.04.2009 Learned Single Judge passed the following order: “The impugned decision dated October 26, 2007 and Debala’s appointment to the post are hereby set aside. The authorities shall make a fresh selection in terms of the employment notice, a copy whereof is at page 28. The candidates who participated in the previous process and the petitioner shall be permitted to participate in the fresh process that shall be completed within three weeks from the date of communication of this order to the Block Development Officer. Needless to say that the authorities will be free to appoint the selected person to the post after completing the fresh process in terms of this order. There shall be no order for costs.” 3. The appellant/private respondent Debala Mondal did not contest the writ petition being W.P. No.3227 (W) of 2008, but preferred appeal being MAT 1206 of 2009 against the order dated 07.04.2009 passed in the said writ petition. The appellant prayed for stay of operation of the order dated 07.04.2009 passed in the said writ petition, but the Hon’ble Division Bench refused to stay the operation of the order passed by Learned Single Judge on the ground that the appointment of the appellant Debala Mondal to the post of 2ndAuxiliary Nurse and midwife has already been cancelled. However, the Hon’ble Division Bench extended the time limit stipulated by Learned Single Judge for completing fresh selection process till 31st March, 2010 with clarification that the appointment of any candidate pursuant to such fresh selection shall abide by the final outcome of the said appeal. It is contended on behalf of the appellant that the said MAT 1206 of 2009 was withdrawn by the appellant on 29.03.2010. 4. Pursuant to the order passed in W.P. No.3227 (W) of 2008 which was modified on 03.02.2010 in MAT 1206 of 2009 the selection committee made fresh selection for the post of 2ndAuxiliary Nurse and Midwife on 29.03.2010. The selection committee held that the writ petitioner Bandana Mondal was not a resident of the locality of Taltala health sub-centre though she secured highest mark of 43.8% and as such she was not found eligible for appointment to the post of 2ndAuxiliary Nurse and Midwife. The selection committee held that the writ petitioner Bandana Mondal was not a resident of the locality of Taltala health sub-centre though she secured highest mark of 43.8% and as such she was not found eligible for appointment to the post of 2ndAuxiliary Nurse and Midwife. On the other hand, the selection committee found the appellant Debala Mondal eligible for selection to the post of 2nd Auxiliary Nurse and Midwife being a resident of the locality of Taltala health sub-centre, though she secured 2nd highest mark of 43.3%. The writ petitioner challenged the decision of the selection committee dated 29.03.2010 by filing W.P. No.12253 (W) of 2010. By disposing of the said writ petition on 04.06.2012 Learned Single Judge gave direction for appointment of the writ petitioner to the post of 2nd Auxiliary Nurse and Midwife under Taltala health subcentre on cancellation of appointment of the appellant in the said post. The said order of Learned Single Judge is under challenge in the instant appeal. 5. Mr. Partha Sarathi Bose, Learned Senior Counsel appearing on behalf of the appellant Debala Mondal contends that the eligibility criteria given in the advertisement of the newspaper indicate that the candidate must be married or widow or divorcee and she must permanently reside within the locality of the concerned health sub-centre. According to the terms of advertisement, the candidates must enclose along with other documents attested copy of both sides of voter’s identity card or ration card to establish residential status of the candidate. Mr. Bose submits that he is not challenging the marital status of the writ petitioner Bandana Mondal, but he categorically submits that the writ petitioner Bandana Mondal is not a permanent resident of the locality within Taltala health subcentre. Mr. Bose has pointed out the observation made by the selection committee that Bandana Mondal gave signed statement before the selection committee to the effect that the elector’s photo identity card (EPIC) produced by her for verification showed her father’s name instead of her husband’s name and the place of residence is noted as Baidyachak – 105 under Baishata Gram Panchayat which is outside the service area of Taltala health sub-centre. Mr. Mr. Bose has also pointed out from the findings of the selection committee that Bandana Mondal has admitted before the selection committee by giving signed statement that she got the documents corrected subsequently to establish her residential status within the service area of Taltala health sub-centre. Accordingly, the writ petitioner Bandana Mondal did not fulfil the eligibility criteria for selection to the post of 2nd Auxiliary Nurse and Midwife within Taltala health sub-centre by producing relevant documents of her residential status within the service area of the said health sub-centre before last date of submission of the application i.e. 20.10.2006. Mr. Bose has relied on the decisions reported in AIR 2003 SC 4411 , (2007) 4 SCC 54 , (2011) 9 SCC 438 and AIR 2012 SC 1803 in support of his contention that the writ petitioner must fulfil the eligibility criteria before the last date of submission of the application i.e. 20.10.2006. 6. Mr. Bose further submits that the observation of Learned Single Judge to the effect that the residential status and the marital status of the writ petitioner were decided in the earlier writ petition, is not factually correct. He also submits that only the marital status of the writ petitioner was decided in the earlier writ petition and the issue of residential status of the writ petitioner was not decided either in the earlier writ petition or in the appeal which arose out of the order of the earlier writ petition. According to Mr. Bose, the observation of Learned Single Judge that the appellant/private respondent, Debala Mondal cannot be allowed to agitate the issue of residential status of the writ petitioner as the said issue has been decided in the earlier writ petition, is not factually correct. The said issue of residential status of the writ petitioner cannot be barred by constructive res judicata as observed by Learned Single Judge. In this regard, Mr. Bose has relied on the decision reported in AIR 2004 SC 2186 and (2007) 8 SCC 329 , which will be discussed in proper place. 7. Mr. Chandi Charan De, Learned Counsel appearing on behalf of the State respondent submits that the writ petitioner Bandana Mondal did not produce both sides of voter’s identity card along with the application to fulfil the eligibility criterion that she permanently resides in the locality within the service area of Taltala health sub-centre. 7. Mr. Chandi Charan De, Learned Counsel appearing on behalf of the State respondent submits that the writ petitioner Bandana Mondal did not produce both sides of voter’s identity card along with the application to fulfil the eligibility criterion that she permanently resides in the locality within the service area of Taltala health sub-centre. Learned Counsel further submits that the voter’s identity card (EPIC) showing the residential status of the writ petitioner within the service area of Taltala health sub-centre was issued on 04.02.2008 i.e. long after last date of submission of the application. According to Mr. De, the writ petitioner did not fulfil the eligibility criteria for selection to the post of 2nd Auxiliary Nurse and Midwife within Taltala health sub-centre as per terms of advertisement given in the newspaper. 8. Mr. Hiranmoy Bhattacharya, Learned Counsel appearing on behalf of the writ petitioner Bandana Mondal contends that the advertisement given in the newspaper on 15.09.2006 does not indicate that any document showing the marital status of the candidate is to be enclosed with the application. The only requirement as per terms of advertisement is that the candidate must be married or widow or divorcee. The document with regard to marital status is required if the candidate is widow or divorcee as given in column 9(ka) and column 9(kha) of the format of application given in the advertisement of the newspaper on 15.09.2006. Mr. Bhattacharya submits that marital status and the residential status of the writ petitioner have been decided in the earlier writ petition and as such Learned Single Judge has rightly observed that the appellant is precluded from raising those issues in the writ petition filed by the writ petitioner. According to Mr. Bhattacharya, the eligibility of the writ petitioner for selection to the post of 2nd Auxiliary Nurse and Midwife within Taltala health sub-centre has already been decided finally in the earlier writ petition and as such Learned Single Judge has rightly observed that the appellant cannot be allowed to agitate the issue of residential status of the writ petitioner in the subsequent writ petition in view of clear embargo created in Explanation IV to Section 11 of the Code of Civil Procedure. Relying on the decision reported in 2009 (1) CLJ (Cal) 615 and unreported decision dated 09.08.2011 passed in FMA 970 of 2011, Mr. Relying on the decision reported in 2009 (1) CLJ (Cal) 615 and unreported decision dated 09.08.2011 passed in FMA 970 of 2011, Mr. Bhattacharya urged this Court to consider that the writ petitioner was not only married but also a permanent resident of the locality within Taltala health sub-centre before the last date of submission of the application, though she produced the documents in support of her residential status subsequent to the last date of submission of the application and as such the writ petitioner is eligible for appointment to the post of 2nd Auxiliary Nurse and Midwife after securing highest mark in the selection process. 9. Having heard the submissions made on behalf of the respective parties and on consideration of the materials on record we find that the eligibility criteria for selection to the post of 2nd Auxiliary Nurse and Midwife given in the advertisement of the newspaper indicate among others (i) that the candidate must be married or widow or divorcee. The document must be produced in case the candidate claims to be divorcee or widow and (ii) the candidate must be a permanent resident of the locality where the health sub-centre is situated. The candidate must enclose along with the application attested copy of both sides of voter’s identity card (EPIC) or ration card to establish permanent residential status within the area of health sub-centre. Admittedly, both the writ petitioner Bandana Mondal and the appellant Debala Mondal belong to scheduled caste community. Both are found to be married and for which no separate document is required to establish the marital status as per terms of advertisement given in the newspaper. 10. The candidature of the writ petitioner Bandana Mondal was considered by the respondent Block Development Officer on 26.10.2007 in compliance with the direction given by Learned Single Judge on 13.04.2007 in W.P. No.7169 (W) of 2007. The concerned Block Development Officer found the writ petitioner Bandana Mondal ineligible for selection to the post of 2ndAuxiliary Nurse and Midwife for Taltala health sub-centre on the ground of non-production of ration card, elector’s photo identity card (EPIC) showing husband’s name and marriage registration certificate. The concerned Block Development Officer found the writ petitioner Bandana Mondal ineligible for selection to the post of 2ndAuxiliary Nurse and Midwife for Taltala health sub-centre on the ground of non-production of ration card, elector’s photo identity card (EPIC) showing husband’s name and marriage registration certificate. While the said order of the concerned Block Development Officer was challenged in the W.P. No.3227 (W) of 2008, Learned Single Judge set aside the order of ppointment of the appellant in the said post of 2nd Auxiliary Nurse and Midwife and directed the authorities to make fresh selection in terms of employment notice by taking into consideration the candidatures of all seven candidates including the appellant Debala Mondal and writ petitioner Bandana Mondal and to give appointment to the selected person after completion of the process of selection within three weeks from the date of communication of the order to the concerned Block Development Officer. Since the appeal (MAT 1206 of 2009) preferred against the order dated 07.04.2009 passed in W.P. No.3227 (W) of 2008 was ultimately withdrawn on 29.03.2010 and since the stay of the order passed by Learned Single Judge was refused by the appellate court, we are of the view that the order passed by Learned Single Judge in W.P. No.3227 (W) of 2008 is binding on the parties. 11. On perusal of order dated 07.04.2009 passed by Learned Single Judge in W.P. No.3227 (W) of 2008 we find that Learned Single Judge has decided the issue that the writ petitioner Bandana Mondal was married long before the selection process was initiated on the basis of the employment notice published in the newspaper. It is relevant to point out that the appellant Debala Mondal did not contest the said writ application filed by the writ petitioner Bandana Mondal, in spite of service of notice on her. However, by the said order dated 07.04.2009 Learned Single Judge did not decide the issue of permanent residential status of the writ petitioner Bandana Mondal. Learned Single Judge issued direction to the respondent authorities to make fresh selection in terms of the employment notice by taking into consideration the candidatures of all the candidates who participated in the previous selection process. The selection committee has taken into consideration the candidatures of 7 candidates in terms of the employment notice published in the newspaper on 24.03.2010 and 29.03.2010. The selection committee has taken into consideration the candidatures of 7 candidates in terms of the employment notice published in the newspaper on 24.03.2010 and 29.03.2010. It appears from the minutes of the selection committee dated 29.03.2010 (page 193 of the paper book) that the writ petitioner Bandana Mondal has candidly admitted before the selection committee by giving signed statement that she had submitted elector’s photo identity card (EPIC) showing her father’s name and place of residence as Mondal and Sardar Para, Baidyachak under Baishata Gram Panchayat which is outside the service area of Taltala health sub-centre. It further appears from the minutes of the selection committee that the writ petitioner Bandana Mondal has also categorically stated in her signed statement that she got the documents corrected subsequently. Copy of voter’s identity card (EPIC) of the writ petitioner Bandana Mondal showing her residence at Dewanerchak was issued on 04.02.2008 as reflected from page 47 of the paper book. It is relevant to point out that the writ petitioner Bandana Mondal submitted only first page of elector’s photo identity card (EPIC) along with her application without disclosing her permanent residential status within the service area of the concerned health sub-centre as per terms of advertisement. With the above factual matrix this Court will consider whether the writ petitioner Bandana Mondal fulfilled the eligibility criteria for selection to the post of 2nd Auxiliary Nurse and Midwife under Taltala health sub-centre as per terms of employment notice published in the newspaper. 12. With regard to the eligibility criteria for selection to the post of 2nd Auxiliary Nurse and Midwife several decisions have been cited at the Bar from both sides. 12. With regard to the eligibility criteria for selection to the post of 2nd Auxiliary Nurse and Midwife several decisions have been cited at the Bar from both sides. Learned Counsel for the appellant has relied on “State of Uttar Pradesh V. Vijay Kumar Misra” reported in AIR 2003 SC 4411 wherein the Supreme Court has laid down in paragraph 8 as follows: “The position is fairly well settled that when a set of eligibility qualifications are prescribed under the rules and an applicant who does not posses the prescribed qualification for the post at the time of submission of application or by the cut off date, if any, described under the rules or stated in the advertisement, is not eligible to be considered for such post.” In “Ashok Kumar Sonkar V. Union of India and Ors.” reported in (2007) 4 SCC 54 , the Supreme Court has laid down in paragraph 20 that in the absence of any rule or any specific date having been fixed in the advertisement, a cut off date for the purpose of determining the eligibility of the candidates would be the last date for filing the application. The Supreme Court has approved the following proposition laid down by the Punjab and Haryana high Court in paragraph 15 of “Alka Ojha V. Rajasthan Public Service Commission and Anr.” reported in (2011) 9 SCC 438 , which is as follows: “i) that the cut off date by reference to which the eligibility requirement must be satisfied by the candidate seeking a public employment is the date appointed by the relevant service rules and if there be no cut off date appointed by the rules then such date as may be appointed for the purpose in the advertisement calling for applications; ii) that if there be no such date appointed then the eligibility criteria shall be applied by reference to the last date appointed by which the applications have to be received by the competent authority.” It is held by the Supreme Court in paragraph 31 of “Bedanga Talukdar V. Saifudullah Khan and Ors.” reported in AIR 2012 SC 1803 “that there can be no relaxation in the terms and conditions contained in the advertisement unless the power of relaxation is duly reserved in the relevant rules and/or in the advertisement. Even if there is a power of relaxation in the rules, the same would still have to be specifically indicated in the advertisement.” The proposition of law laid down by the apex court in the above decisions unerringly points out that the writ petitioner Bandana Mondal must fulfil eligibility criterion of being permanent resident within the area of Taltala health subcentre by producing attested copy of both sides of elector’s photo identity card (EPIC) or ration card before the last date of submission of the application i.e. 20.10.2006. It appears from the materials on record that the writ petitioner Bandana Mondal was married to Pancham Kumar Mondal on 06.02.1998 (page 155 of the paper book) and she gave birth to a child on 17.05.2002 at Rainagar under Harinarayanpur Gram Panchayat (page 49 of the paper book). Admittedly, the writ petitioner Bandana Mondal did not produce either attested copy of both sides of ration card or attested copy of both sides of the voter’s identity card/Elector’s Photo Identity Card (EPIC) to establish her residential status within the area of Taltala health sub-centre at the time of submission of her application in terms of advertisement of the newspaper. No explanation is forthcoming what prevented the writ petitioner Bandana Mondal to get her name corrected in the ration card or in the elector’s photo identity card (EPIC) for almost long seven years after her marriage in the year 1998. The voter’s identity card produced in terms of advertisement in the newspaper to establish the residential status of the writ petitioner Bandana Mondal was issued on 04.02.2008 i.e. long after last date of submission of the application on 20.10.2006. Accordingly, we find substance in the submission made on behalf of the appellant that the writ petitioner Bandana Mondal had no eligibility for selection to the post of 2ndAuxiliary Nurse and Midwife for Taltala health sub-centre, Jaynagar-II, District South 24-Parganas. 13. Accordingly, we find substance in the submission made on behalf of the appellant that the writ petitioner Bandana Mondal had no eligibility for selection to the post of 2ndAuxiliary Nurse and Midwife for Taltala health sub-centre, Jaynagar-II, District South 24-Parganas. 13. Learned Counsel for the writ petitioner relied on unreported decision dated 9th August, 2011 passed in FMA 970 of 2011 and the decision reported in 2009 (1) CLJ (Cal) 615 in support of the contention that the writ petitioner had eligibility for selection to the post of 2nd Auxiliary Nurse and Midwife as she is a permanent resident of the area within Taltala health subcentre, though the document in this regard were produced by her subsequent to the last date of submission of the application. In the unreported case of “Smt. Srabanti Naskar (Mondal) V. State & Ors.” (FMA 970 of 2011) the Division Bench of our High Court quashed the order of the District Magistrate, South 24-Parganas, who terminated the service of the appellant on the ground of non-production of scheduled caste certificate at the time of interview. In the said unreported case the appellant was permitted to appear in the interview as scheduled caste candidate as she applied for obtaining scheduled caste certificate from the sub-divisional officer, Baruipur, but did not obtain the same till the date of interview. The appellant produced the scheduled caste certificate issued by the competent authority long before her engagement to the post and as such the order of removal of the appellant from the job was not justified under the law. In the instant case, the writ petitioner Bandana Mondal obtained the elector’s photo identity card (EPIC) showing her residence within the service area of Taltala health sub-centre long after the last date of submission of the application and long after disposal of her writ application being W.P. 7169 (W) of 2007. It is not the case of the writ petitioner that she applied for the correction of her name in the ration card or in the elector’s photo identity card (EPIC) at the time of submission of her application for the post of 2nd Auxiliary Nurse and Midwife. It is not the case of the writ petitioner that she applied for the correction of her name in the ration card or in the elector’s photo identity card (EPIC) at the time of submission of her application for the post of 2nd Auxiliary Nurse and Midwife. Accordingly, the facts of the instant case are clearly distinguishable from the facts of the unreported case of “Smt. Srabanti Naskar (Mondal) V. State & Ors.” and as such the ratio of the said unreported decision is not applicable in the facts of the present case. 14. In “Smt. Mousumi Das Maity V. State of West Bengal and Ors.” reported in 2009 (1) CLJ (Cal) 615 the document of the successful candidates to the post of 2nd Auxiliary Nurse and Midwife under the concerned health sub-centre was challenged on the ground that the selectee was not permanent resident of the locality on the last date of submission of the application. In this reported case the selectee got married with a person of the locality within the area of the concerned health sub-centre on 19th October, 2006 and started living in her matrimonial home with effect from 20th October, 2006 and as such the Court found her eligible for appointment to the post of 2nd Auxiliary Nurse and Midwife as she fulfilled the eligibility criteria on the last date of submission of application for the said post. However, in the case at hand the writ petitioner could not fulfil the eligibility criteria for her residential status within the area of the concerned health sub-centre by producing relevant documents before the last date of submission of the application. Accordingly, the facts of the reported case of “Smt. Mousami Das Maity V. State of West Bengal” (supra) are clearly distinguishable from the facts of the case at hand, and as such the ratio of the said reported case will not be applicable in the facts of the present case. 15. Accordingly, the facts of the reported case of “Smt. Mousami Das Maity V. State of West Bengal” (supra) are clearly distinguishable from the facts of the case at hand, and as such the ratio of the said reported case will not be applicable in the facts of the present case. 15. We have already observed that the writ petitioner Bandana Mondal failed to fulfil the eligibility criteria for selection by producing attested copy of both sides of the ration card or attested copy of both sides of voter’s identity card (which is also known as Elector’s Photo Identity Card) before 20.10.2006 (last date of submission of the application) to establish that she is a permanent resident of the area within Taltala health sub-centre, Jaynagar-II, District South 24- Parganas. On perusal of order dated 07.04.2009 passed by Learned Single Judge in the previous writ petition being W.P. No.3227 (W) of 2008 we could not persuade ourselves to hold that Learned Single Judge decided the eligibility of the writ petitioner Bandana Mondal by holding that she was a permanent resident of the area of Taltala health sub-centre, Jaynagar-II, District South 24-Parganas. By holding the marital status of the writ petitioner Bandana Mondal on the basis of documents produced before the court Learned Single Judge observed that the writ petitioner was eligible for the post, but Learned Single Judge gave direction to the authorities concerned to make fresh selection in terms of employment notice on consideration of the candidatures of the candidates who participated in the previous selection process. Had the eligibility of the writ petitioner Bandana Mondal in respect of her marital status and residential status been decided by Learned Single Judge in the previous writ petition, Learned Single Judge would have issued direction to the respondent authorities for appointment of the writ petitioner Bandana Mondal to the post of 2nd Auxiliary Nurse and Midwife on cancellation of appointment of the appellant Debala Mondal. Since Learned Single Judge passed the order for fresh selection in terms of the employment notice after taking into consideration the candidatures of the candidates who participated in the previous selection process and since Learned Single Judge gave liberty to the respondent authorities to give appointment to the selected person to the post of 2nd Auxiliary Nurse and Midwife, we are constrained to hold that the issue of eligibility of the writ petitioner Bandana Mondal in respect of her permanent residential status was not decided by Learned Single Judge in the previous writ petition No.W.P. 3227 (W) of 2008 as held by Learned Single Judge in the order under challenge. In view of our above findings we find substance in the submission made on behalf of the appellant that Learned Single Judge was not factually correct in holding that the residential status of the writ petitioner was decided in the earlier writ petition. 16. Learned Counsel for the appellant has relied on the decision reported in (2007) 8 SCC 329 and AIR 2004 SC 2186 in support of his contention that the issue of residential status of the writ petitioner raised by the appellant Debala Mondal is not barred by constructive res judicata as held by Learned Single Judge. 16. Learned Counsel for the appellant has relied on the decision reported in (2007) 8 SCC 329 and AIR 2004 SC 2186 in support of his contention that the issue of residential status of the writ petitioner raised by the appellant Debala Mondal is not barred by constructive res judicata as held by Learned Single Judge. In “Saroja V. Chinnusamy” reported in (2007) 8 SCC 329 it is held by the Supreme Court in paragraph 5 that in order to constitute res judicata under the provisions of Section 11 of the Code of Civil Procedure, the following conditions must be satisfied: “i) there must be two suits – one former suit and the other subsequent suit; ii) the court which decided the former suit must be competent to try the subsequent suit; iii) the matter directly and substantially in issue must be the same either actually or constructively in both the suits; iv) the matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the court in the former suit; v) the parties to the suits or the parties under whom they or any of them claim must be the same in both the suits; and vi) the parties in both the suits must have litigated under the same title.” In “Escorts Farms Ltd. V. Commissioner, Kumanon Division, Nainital and Ors.” reported in AIR 2004 SC 2186 the Supreme Court has held in paragraph 53 that the “plea of res judicata is also not available where there is no contest on an issue between the parties and there is no conscious adjudication of an issue.” The Explanation IV to Section 11 of the Code of Civil Procedure lays down that any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. In the instant case, the issue of residential status of the writ petitioner Bandana Mondal was not agitated by the present appellant as she did not contest the said writ petition even after getting notice of the writ petition and as such the said issue of residential status of the writ petitioner shall be deemed to have been a matter directly and substantially in issue in the previous writ petition being W.P. No.3227(W) of 2008. However, we have already observed that the said issue of residential status of the writ petitioner Bandana Mondal was not decided by Learned Single Judge and the issue remained open in view of the direction given by Learned Single Judge to the respondent authorities to make fresh selection in terms of employment notice. Accordingly, we are unable to accept the contention made on behalf of the writ petitioner that the issue of residential status of the writ petitioner Bandana Mondal is finally decided in the previous writ petition and the said issue cannot be decided by this Court as the said issue is barred under Explanation IV to Section 11 of the Code of Civil Procedure. 17. It is pertinent to point out that Learned Single Judge has observed that the decision of the selection committee was communicated to the writ petitioner in the address furnished by the writ petitioner and the same is within the area of Taltala health sub-centre. In the absence of production of attested copy of both sides of the ration card or attested copy of both sides of elector’s photo identity card (EPIC) by the writ petitioner Bandana Mondal before the last date of submission of the application (20.10.2006) to establish that she permanently resides within the area of Taltala health subcentre in terms of advertisement published in the newspaper and in the absence of any explanation why the elector’s photo identity card (EPIC) or the ration card could not have been corrected by the writ petitioner Bandana Mondal within a span of almost eight years after her marriage on 06.02.1998, it will not be wise and prudent on our part to hold that the writ petitioner Bandana Mondal is residing permanently within the area of Taltala health sub-centre only because the communication was made to her in the address furnished by her and the said address is within the area of Taltala health sub-centre. The upshot of our entire above observation is that the writ petitioner Bandana Mondal has failed to fulfil the eligibility criteria for selection to the post of 2nd Auxiliary Nurse and Midwife for Taltala health sub-centre, Jaynagar-II, District South 24-Parganas. Accordingly, the judgment and order passed on 04.06.2012 by Learned Single Judge in W.P. No.12253 (W) of 2010 is hereby set aside. Accordingly, the judgment and order passed on 04.06.2012 by Learned Single Judge in W.P. No.12253 (W) of 2010 is hereby set aside. The decision of the selection committee for selection of 2nd Auxiliary Nurse and Midwife held on 29.03.2010 is found to be legally valid. The respondent authorities are directed to give effect to the decision of the selection committee forthwith. The appeal is thus, allowed. There will be no order as to costs.