V.S. Deshpande, J.
(1) Jasbir Singh who held the post of a Vigilance Inspector in the Railways was reverted from the said post on 2-2-1965. He first challenged his reversion by Writ Petition No. 255-D of 1965 on two grounds, namely :-
(1)That his appointment to the post had been in a substantive capacity and that he could not be reverted from it while the post continued to exist, and
(2)That other similarly situated persons were allowed to continue as Vigilance Inspectors and his reversion was, thereforee, discriminatory contrary to Article 16 of the Constitution.
He also applied for permission to plead an additional ground, namely, that the Additional Member (Vigilance) Railway Board, had passed some adverse remarks against the petitioner in the inspection note of December 1964. The reversion of the petitioner was due to it. But the petitioner had not been given any opportunity to show cause against it before he was reverted. The Government claimed the privilege against the disclosure of the inspection note though the note was shown to S. K. Kapur J. who heard the writ petition. The writ petition was dismissed by S. K. Kapur J. and the dismissal was upheld by the Letters Patent Bench in appeal. Both t
(2) In the appeal by special leave, unlike the High Court, the Supreme Court was obviously not prepared to decide the case after leaving the question of the permanency of the appointment of Jasbir Singh as a Vigilance Inspector open. Their Lordships did not make any assumption that Jasbir Singh was not permanently appointed. On the contrary, their Lordships were of the view that once the question of permanency was held to be unsuitable for decision in a writ petition without evidence, the rule laid down in Union of India v. T. R. Verma, : (1958)IILLJ259SC applied and the Supreme Court could, thereforee, have refused to decide the case leaving Jasbir Singh to file a suit if he wanted to get a decision. His learned conusel Shri Gokhale, however, conceded that Jasbir Singh was appointed in a temporary capacity and even on that basis, the order of reversion was contrary to Article 311(2). In view of this concession (but not on any assumption) the Supreme Court proceeded to decide the case and dismissed the appeal. Jasbir Singh has again challenged the same order of reversion by way of a suit on two grounds, namely :-
(1)The permanency of his appointment as a Vigilance Inspector, and
(2)Mala fides being the cause of his reversion. The suit has been dismissed by B. C. Misra J. on the preliminary ground that the dismissal of Writ Petition No. 255-D of 1965 bars the present suit by rest judicata. Hence this appeal.
The only question before us is whether the two grounds on which the suit is based are barred by rest judicata. We shall consider them separately.
(3) Ground No. 1 : The rule laid down by the Supreme Court in Union of India v. T. R. Varma, : (1958)IILLJ259SC is as follows :-
'UNDERthe law, a person whose services have been wrongfully terminated is entitled to institute an action to vindicate his rights, and in such an action, the Court will be competent to award all the reliefs to which he may be entitled, including some which would not be admissible in a writ petition. ............... And where such remedy (by way of suit) exists, it will be a sound exercise of discretion to refuse to interfere in a petition under Art. 226, unless there are good grounds thereforee, ..............it is not the practice of Courts to decide questions of that character in a writ petition, and it would have been a proper exercise of discretion in the present case if the learned Judges had referred the respondent to a suit.'
By the above observations, their Lordships indicated that the trial of a disputed question of fact requiring taking of evidence for decision by the High Court in that case was not the proper course to follow. The proper course was to refuse to try the question and refer the petitioner to the remedy of a suit. It is only because the remedy by way of a suit had become barred by time that the appeal in T. R. Varma's(1) case was decided by the Supreme Court. Had it not been so barred, the Supreme Court would have referred Shri Varma to file a regular suit and would have refused to decide the case. The question of fact was, thereforee, decided on the allegations of the parties and on the burden of proof, the version of the Inquiry Officer being preferred to that of Shri Varma. It is to be noted that neither S.K. Kapur J. nor the Letters Patent Bench really followed the rule in T.R. Varma's case in dealing with the writ petition. Had the rule been followed, they would have refused to decide the writ petition. They would have either dismissed it as being unsuitable for decision under Article 226 or they would have allowed the writ petition to be withdrawn. In either case, Jasbir Singh would have been free to challenge the reversion by way of a suit. Shri G. S. Vohra, learned counsel for Jasbir Singh has argued that neither the High Court nor the Supreme Court had decided the question of the permanency of the appointment of Jasbir Singh. While we agree that the High Court did not decide that question, we are of the view that the approach of the Supreme Court was entirely governed by the rule in T.R. Varma's(1) case. Their Lordships would have refused to decide the writ petition and would have left Jasbir Singh to the remedy by way of a suit but for the admission of fact made by Shri Gokhale on behalf of Jasbir Singh. Shri Gokhale Stated that 'he would concede that the appellant was appointed in a temporary capacity as Vigilance Inspector'. Shri Vohra argues that we should construe the word 'concede' to mean 'assume'. We are of the view that the Supreme Court deliberately departed from the course adopted by the High Court and followed the rule laid down in T.R. Varma's(1) case. This was why Shri Gokhale deliberately conceded that Jasbir Singh was appointed in a temporary capacity. This was an admission of fact. It meant that the issue about the permanency was decided against Jasbir Singh on his own admission. The main hurdle in the way of the Supreme Court in dealing with the writ petition was thus removed. No question of fact requiring evidence thereafter arose for decision. The rule in T.R. Varma's(1) case thereupon became inapplicable. This is why the Supreme Court agreed to deal with the appeal on merits. The decision of the Supreme Court meant that Jasbir Singh was not permanently appointed on his own admission and his reversion from the officiating appointment was not contrary to Article 311(2). The ground of permanency raised by Jasbir Singh in the suit, thereforee, was expressly decided upon by the Supreme Court on the strength of his own admission. The decision of the Supreme Court thus acts as rest judicata and Jasbir Singh is disabled thereby from relying on this ground in support of his claim in the suit.
(4) Ground No. 2 : It is true that the plea of mala fides as such was not taken by the petitioner Jasbir Singh in the writ petition. The only ground on which this plea is based is, however, the inspection note recorded by the Additional Member (Vigilance). The fact of the making of this note was within the knowledge of the petitioner even when the petition was heard by S.K. Kapur J. The petitioner, thereforee, made the application for pleading that his reversion was due to that note as an additional ground. In the Letters Patent appeal, the note was disclosed by the Government and was reproduced in the judgment of the Letters Patent Bench. Full argument was addressed by Jasbir Singh and the Government on the effect of that note on the reversion of Jasbir Singh. Learned counsel for Jasbir Singh argued that the reversion was due to collateral considerations as shown by the note. But the Letters Patent Bench and the Supreme Court took the view that the motive for reversion was not material and that the reversion was legal as Jasbir Singh was shown by the said inspection note to be unsuitable for the post.
(5) On the same inspection note, Jasbir Singh now wants to plead that his reversion was malafide. This is not permissible. Under Explanationn Iv to section Ii of the Code of Civil Procedure, the ground of mala fides was one which Jasbir Singh might and ought to have pleaded in the writ petition itself. Such pleading does not mean that this could have been done only in the trial Court. The plea could be raised even by way of argument on a document which was placed on record at the appellate stage. Jasbir Singh had knowledge of the contents of the inspection note from the stage of the Letters patent appeal till the decision of the Supreme Court. All the pleas based on the inspection note were, thereforee, open to Jasbir Singh. He chose to use the inspection note to argue that his reversion was due to collateral considerations. He did not choose to elaborate that the reversion was mala fide. The material being within his knowledge in the previous litigation, all pleas based on that material could have been raised by him there. He cannot, thereforee, be allowed to raise the plea of 'mala fides in the present litigation. He is barred from doing so by constructive rest judicata.
(6) The appeal is, thereforee, dismissed but in the circumstances without any order as to costs.