'Res Judicata' : The Law

Justice Singhvi

The Supreme Court in M.Nagabhushana vs State Of Karnataka & Ors. has reiterated the principles and the concept of 'Res Judicata'. The Court, while examining various judicial pronouncements on the subject, has, inter alia, held as under;

14. The principles of Res Judicata are of universal application as it is based on two age old principles, namely, `interest reipublicae ut sit finis litium' which means that it is in the interest of the State that there should be an end to litigation and the other principle is `nemo debet his ve ari, si constet curiae quod sit pro un aet eademn cause' meaning thereby that no one ought to be vexed twice in a litigation if it appears to the Court that it is for one and the same cause. This doctrine of Res Judicata is common to all civilized system of jurisprudence to the extent that a judgment after a proper trial by a Court of competent jurisdiction should be regarded as final and conclusive determination of the questions litigated and should for ever set the controversy at rest.

15. That principle of finality of litigation is based on high principle of public policy. In the absence of such a principle great oppression might result under the colour and pretence of law in as much as there will be no end of litigation and a rich and malicious litigant will succeed in infinitely vexing his opponent by repetitive suits and actions. This may compel the weaker party to relinquish his right. The doctrine of Res Judicata has been evolved to prevent such an anarchy. That is why it is perceived that the plea of Res Judicata is not a technical doctrine but a fundamental principle which sustains the Rule of Law in ensuring finality in litigation. This principle seeks to promote honesty and a fair administration of justice and to prevent abuse in the matter of accessing Court for agitating on issues which have become final between the parties.

16. Justice Tek Chand delivering the unanimous Full Bench decision in the case of Mussammat Lachhmi Vs. Mussammat Bhulli (ILR Lahore Vol.VIII 384) traced the history of this doctrine both in Hindu and Mohammedan jurisprudence as follows:-

"In the Mitakshra (Book II, Chap. I, Section V, verse 5) one of the four kinds of effective answers to a suit is "a plea by former judgment" and in verse 10, Katyayana is quoted as laying down that "one against whom a judgment had formerly been given, if he bring forward the matter again, must be answered by a plea of Purva Nyaya or former judgment" (Macnaughten and Colebrooke's translation, page 22). The doctrine, however, seems to have been recognized much earlier in Hindu Jurisprudence, judging from the fact that both the Smriti Chandrika (Mysore Edition, pages 97-98) and the Virmitrodaya (Vidya-Sagar Edition, page 77) base the defence of Prang Nyaya (former decision) on the following text of the ancient law- giver Harita, who is believed by some Orientalists to have flourished in the 9th Century B.C. and whose Smriti is now extant only in fragments:-

"The plaintiff should be non- suited if the defendant avers: `in this very affair, there was litigation between him and myself previously,' and it is found that the plaintiff had lost his case".

There are texts of Prasara (Bengal Asiatic Society Edition, page 56) and of the Mayukha (Kane's Edition, page 15) to the same effect.

Among Muhammadan law-givers similar effect was given to the plea of "Niza-i-munfasla" or "Amar Mania taqrir mukhalif." Under Roman Law, as administered by the Proetors' Courts, a defendant could repel the plaintiff's claim by means of `exceptio rei judicatoe" or plea of former judgment. The subject received considerable attention at the hands of Ruman jurists and as stated in Roby's Roman Private Law (Vol.II, page 338) the general principle recognised was that "one suit and one decision was enough for any single dispute" and that "a matter once brought to trial should not be tried except, of course, by way of appeal".

(Page 391-392 of the report)

17. The learned Judge also noted that in British India the rule of Res Judicata was first introduced by Section 16 of the Bengal Regulation, III of 1973 which prohibited the Zilla and City Courts from entertaining any cause which, from the production of a former decree or the record of the Court, appears to have been heard and determined by any Judge or any Superintendent of a Court having competent jurisdiction. The learned Judge found that the earliest legislative attempt at codification of the law on the subject was made in 1859, when the first Civil Procedure Code was enacted, whereunder Section 2 of the Code barred every Court from taking cognizance of suits which, on the same cause of action, have been heard and determined by a Court of competent jurisdiction. The learned Judge opined, and in our view rightly, that this was partial recognition of the English rule in so far as it embodied the principles relating to Estoppel by judgment or Estopel by record.

18. Thereafter, when the Code was again revised in 1877, the operation of the rule was extended in Section 13 and the bar was no longer confined to the retrial of a dispute relating to the same cause of action but the prohibition was extended against reagitating an issue, which had been heard and finally decided between the same parties in a former suit by a competent court. The learned Judge also noted that before the principle assumed its present form in Section 11 of the Code of 1908, the Section was expanded twice. However, the learned Judge noted that Section 11 is not exhaustive of the law on the subject.

19. It is nobody's case that the appellant did not know the contents of FWA. From this it follows that it was open to the appellant to question, in the previous proceeding filed by it, that his land which was acquired was not included in the FWA. No reasonable explanation was offered by the appellant to indicate why he had not raised this issue. Therefore, in our judgment, such an issue cannot be raised in this proceeding in view of the doctrine of Constructive Res Judicata.

20. It may be noted in this context that while applying the principles of Res Judicata the Court should not be hampered by any technical rules of interpretation. It has been very categorically opined by Sir Lawrence Jenkins that "the application of the rule by Courts in India should be influenced by no technical considerations of form but by matter of substance within the limits allowed by law". [See Sheoparsan Singh Vs. Rammanandan Prasad Singh, (1916) 1 I.L.R. 43 Cal. 694 at page 706 (P.C.)].

21. Therefore, any proceeding which has been initiated in breach of the principle of Res Judicata is prima-facie a proceeding which has been initiated in abuse of the process of Court.

22. A Constitution Bench of this Court in Devilal Modi Vs. Sales Tax Officer, Ratlam & Ors. - AIR 1965 SC 1150, has explained this principle in very clear terms: "But the question as to whether a citizen should be allowed to challenge the validity of the same order by successive petitions under Art. 226, cannot be answered merely in the light of the significance and importance of the citizens' fundamental rights. The general principle underlying the doctrine of res judicata is ultimately based on considerations of public policy. One important consideration of public policy is that the decisions pronounced by courts of competent jurisdiction should be final, unless they are modified or reversed by appellate authorities; and the other principle is that no one should be made to face the same kind of litigation twice over, because such a process would be contrary to considerations of fair play and justice, vide : Daryao Vs. State of U.P., 1962-1 SCR 575; (AIR 1961 SC 1457)."

23. This Court in All India Manufacturers Organisation (supra) explained in clear terms that principle behind the doctrine of Res Judicata is to prevent an abuse of the process of Court.

24. In explaining the said principle the Bench in All India Manufacturers Organisation (supra) relied on the following formulation of Lord Justice Somervell in Greenhalgh Vs. Mallard - (1947) 2 All ER 255 (CA): "I think that on the authorities to which I will refer it would be accurate to say that res judicata for this purpose is not confined to the issues which the court is actually asked to decide, but that it covers issues or facts which are so clearly part of the subject-matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them."

25. The Bench also noted that the judgment of the Court of Appeal in "Greenhalgh" was approved by this Court in State of U.P. Vs. Nawab Hussain - (1977) 2 SCC 806 at page 809, para 4.

26. Following all these principles a Constitution Bench of this Court in Direct Recruit Class II Engg. Officers' Assn. Vs. State of Maharashtra - (1990) 2 SCC 715 laid down the following principle: "......an adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had decided as incidental to or essentially connected with subject matter of the litigation and every matter coming into the legitimate purview of the original action both in respect of the matters of claim and defence. Thus, the principle of constructive res judicata underlying Explanation IV of Section 11 of the Code of Civil Procedure was applied to writ case. We, accordingly hold that the writ case is fit to be dismissed on the ground of res judicata"

27. In view of such authoritative pronouncement of the Constitution Bench of this Court, there can be no doubt that the principles of Constructive Res Judicata, as explained in explanation IV to Section 11 of the CPC, are also applicable to writ petitions.

2G scam: Former Telecom Minister A. Raja Arrested

Source : NDTV

Hours after he was summoned to the CBI headquarters for questioning, former Telecom Minister A Raja was arrested for his alleged role in the 2G spectrum scam. 

He will be produced in a Delhi court within the next 24 hours.

Also arrested - two men who worked closely with Mr Raja - R K Chandolia, who served as his Personal Secretary, and Siddharth Behura, who was Telecom Secretary.

The Congress quickly asserted that the arrest of the DMK leader will not impact its alliance with Mr Raja's party in Tamil Nadu; the BJP focused on describing the action against Mr Raja as "too little, too late."

And across the political board, all players agree that the arrest is an attempt by the government to rebut charges that it has not acted against corruption - a refrain of the Opposition over the last few months. 

Mr Raja's arrest has been seen as a given in political circles for weeks now. He has been interrogated by the CBI four times since December, including on Monday. 

His homes and offices in Tamil Nadu and Delhi have been raided; his diary and computers were seized by the CBI and are likely to be presented against him as evidence.

In 2008, Mr Raja, as Telecom Minister sold valuable spectrum to telecom operators at prices that were determined in 2001; some companies that won 2G licences were new to the telecom sector, and sold some of their stake immediately for huge profits. The financial and procedural irregularities were pointed out almost immediately by the Opposition.

But it was only in November 2010 that the allegations seemed poised to push Mr Raja out of the Telecom Ministry. The catalyst was a report by the government's auditor - the Comptroller and Auditor General (AG) - which declared that Mr Raja was guilty of colluding with companies he favoured to grant them mobile licences, even though they were ineligible and had in some cases lied or misrepresented information in their applications. The figure of 1.76 lakh crores floated by the CAG as the value of the scam crushed any chances of Mr Raja's survival.

He was forced to resign, though he said in his defense that he had followed the policies introduced by his predecessors in the NDA government. He also said that by selling spectrum cheaply, he had delivered a country of mobile users - India's immoderate tele-density, he said, could be attributed directly to this.

Kapil Sibal, who replaced Mr Raja as Telecom Minister, described the CAG report as "completely erroneous" and said the government had suffered no losses on account of 2G allocation. Today, the BJP's Arun Jaitley said the fact that Mr Raja has been arrested neutralized Mr Sibal's claim. If the 2G process had been handled correctly, he asked, why was Mr Raja arrested?

Mr Jaitley also went on to target the Prime Minister, asking why he had kept silent for so long on the 2G scam when it was apparent that there were serious concerns about a senior minister in his cabinet.

The government has been accused repeatedly of shielding Mr Raja to protect its alliance with the DMK. At the Centre, the DMK is a key partner in the UPA coalition. In Tamil Nadu, the Congress props up the DMK government. And both parties have announced their partnership will continue for the state elections due to be held in May.

Mr Raja's arrest gives the Congress an enviable advantage now in that partnership. The Congress asserted today that Mr Raja's arrest is not a stress test for its relationship with the DMK. In Tamil Nadu, DMK sources tell NDTV that while Mr Raja's arrest could matter to voters in cities like Chennai and Madurai, rural voters have been disinterested in the 2G scam. 

So far, the DMK has stood firmly by Mr Raja, stressing that it would take action against him only if he were found guilty in the 2G spectrum scam. In December, the party organised a series of rallies to project Mr Raja as a reliable and admirable leader. 

Jayalalithaa won't let the DMK forget that. In the Tamil Nadu elections where she will confront the Congress-DMK alliance, Mr Raja gives her much ammunition. "This arrest only raises more questions than it answers...it seems to be a ruse to hoodwink the public and also to tell the Supreme Court that some action has been taken with regard to the Spectrum 2G Scam."

The CBI's investigation into the 2G scam is being closely monitored by the Supreme Court on the basis of several petitions, including one filed by former Law Minister Subramanian Swamy. On multiple occasions, the CBI has been accused by the court of mishandling the inquiry.

The 2G scam has also turned into one of India's biggest political battles. The Opposition refused to let Parliament function during the winter session after the government refused to sanction a Joint Parliamentary Committee (JPC). The BJP has threatened that the Budget session scheduled to start soon will see the same forces at work, unless a JPC is set up.

The government has argued that in addition to the CBI and the Supreme Court, the 2G scam is being studied by Parliament's Public Accounts Committee (PAC) which is headed by BJP leader Murli Manohar Joshi. Creating a JPC, it says, will only slow down the process of nailing who's to blame for the 2G scam. The Prime Minister has offered to appear before the PAC - Mr Joshi has said the offer will be considered at a later stage.

Today, Mr Jaitley said that the demand for a JPC has not been weakened by Mr Raja's arrest. "The JPC is on a much larger issue. Even on the culpability of Raja, now that they are admitting he prima facie did something wrong and arrested him, what was the Prime Minister doing when it was brought to his notice? So with such a track record of a cover up I don't think the government anywhere comes out in the clear," said Jaitley.

Reasoned Order - The Necessity and Importance : The Law

Justice Singhvi

The Supreme Court in its decision, in M/S Kranti Asso. Pvt. Ltd. & Anr. vs Masood Ahmed Khan & Ors., has highlighted the importance of giving reasons while passing a judgment / order by any judicial or quasi judicial body. The Supreme Court has extensively examined the law and various precedents on the subject. The relevant extracts from the judgment are reproduced hereinbelow;

15. The necessity of giving reason by a body or authority in support of its decision came up for consideration before this Court in several cases. Initially this Court recognized a sort of demarcation between administrative orders and quasi- judicial orders but with the passage of time the distinction between the two got blurred and thinned out and virtually reached a vanishing point in the judgment of this Court in A.K. Kraipak and others vs. Union of India and others reported in AIR 1970 SC 150.

16. In Kesava Mills Co. Ltd. and another vs. Union of India and others reported in AIR 1973 SC 389, this Court approvingly referred to the opinion of Lord Denning in Rigina vs. Gaming Board Ex parte Benaim [(1970) 2 WLR 1009] and quoted him as saying "that heresy was scotched in Ridge and Boldwin, 1964 AC 40".

17. The expression `speaking order' was first coined by Lord Chancellor Earl Cairns in a rather strange context. The Lord Chancellor, while explaining the ambit of Writ of Certiorari, referred to orders with errors on the face of the record and pointed out that an order with errors on its face, is a speaking order. (See 1878-97 Vol. 4 Appeal Cases 30 at 40 of the report)

18. This Court always opined that the face of an order passed by a quasi-judicial authority or even an administrative authority affecting the rights of parties, must speak. It must not be like the `inscrutable face of a Sphinx'.

19. In the case of Harinagar Sugar Mills Ltd. vs. Shyam Sunder Jhunjhunwala and others, AIR 1961 SC 1669, the question of recording reasons came up for consideration in the context of a refusal by Harinagar to transfer, without giving reasons, shares held by Shyam Sunder. Challenging such refusal, the transferee moved the High Court contending, inter alia, that the refusal is mala fide, arbitrary and capricious. The High Court rejected such pleas and the transferee was asked to file a suit. The transferee filed an appeal to the Central Government under Section 111 Clause (3) of Indian Companies Act, 1956 which was dismissed. Thereafter, the son of the original transferee filed another application for transfer of his shares which was similarly refused by the Company. On appeal, the Central Government quashed the resolution passed by the Company and directed the Company to register the transfer. However, in passing the said order, Government did not give any reason. The company challenged the said decision before this Court.

Right to Equality - Article 14 & 'Reasonable Classification' : Supreme Court

Justice Singhvi

The Supreme Court in National Council for Teacher Education Versus Shri Shyam Shiksha Prashikshan Sansthan has re-iterated the Concept of 'Right to Equality' as enshrined in our Constitution. The Supreme Court has re-iterated that the Constitution doesn't allow class legislation but permits reasonable classification, based upon an 'intelligible differentia'. The relevant extracts from the aforesaid judgment are reproduced hereinbelow;

16. Article 14 forbids class legislation but permits reasonable classification provided that it is founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group and the differentia has a rational nexus to the object sought to be achieved by the legislation in question. In re the Special Courts Bill, 1978 (1979) 1 SCC 380, Chandrachud, C.J., speaking for majority of the Court adverted to large number of judicial precedents involving interpretation of Article 14 and culled out several propositions including the following:

"(2) The State, in the exercise of its governmental power, has of necessity to make laws operating differently on different groups or classes of persons within its territory to attain particular ends in giving effect to its policies, and it must possess for that purpose large powers of distinguishing and classifying persons or things to be subjected to such laws.

(3) The constitutional command to the State to afford equal protection of its laws sets a goal not attainable by the invention and application of a precise formula. Therefore, classification need not be constituted by an exact or scientific exclusion or inclusion of persons or things. The courts should not insist on delusive exactness or apply doctrinaire tests for determining the validity of classification in any given case. Classification is justified if it is not palpably arbitrary.

(4) The principle underlying the guarantee of Article 14 is not that the same rules of law should be applicable to all persons within the Indian territory or that the same remedies should be made available to them irrespective of differences of circumstances. It only means that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed. Equal laws would have to be applied to all in the same situation, and there should be no discrimination between one person and another if as regards the subject-matter of the legislation their position is substantially the same.

(5) By the process of classification, the State has the power of determining who should be regarded as a class for purposes of legislation and in relation to a law enacted on a particular subject. This power, no doubt, in some degree is likely to produce some inequality; but if a law deals with the liberties of a number of well defined classes, it is not open to the charge of denial of equal protection on the ground that it has no application to other persons. Classification thus means segregation in classes which have a systematic relation, usually found in common properties and characteristics. It postulates a rational basis and does not mean herding together of certain persons and classes arbitrarily.

(6) The law can make and set apart the classes according to the needs and exigencies of the society and as suggested by experience. It can recognise even degree of evil, but the classification should never be arbitrary, artificial or evasive.

(7) The classification must not be arbitrary but must be rational, that is to say, it must not only be based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out but those qualities or characteristics must have a reasonable relation to the object of the legislation. In order to pass the test, two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others and 27

(2) that that differentia must have a rational relation to the object sought to be achieved by the Act."

17. In Union of India v. Parameswaran Match Works (1975) 1 SCC 305, this Court was called upon to examine whether clause (b) of notification No.205/67-CE dated 4.9.1967 issued by the Government of India, Ministry of Finance prescribing concessional rate of duty in respect of units engaged in manufacture of match boxes, which were certified as such by the Khadi and Village Industries Commission or units set up in the cooperative sector was discriminatory and violative of Article 14 on the ground that the cut off date i.e. 21.7.1967 specified in the notification was arbitrary. The High Court of Madras allowed the writ petition filed by the respondents and struck down the cut off date by observing that the classification of the units engaged in the manufacturing of match boxes was irrational and arbitrary. While reversing the order of the High Court, this Court referred to the judgment in Louisville Gas Co. v. Alabama Power Co. (1927) 240 US 30 and held:

"We do not think that the reasoning of the High Court is correct. It may be noted that it was by the proviso in the notification dated July 21, 1967 that it was made necessary that a declaration should be filed by a manufacturer that the total clearance from the factory during a financial year is not estimated to exceed 75 million matches in order to earn the concessional rate of Rs 3.75 per gross boxes of 50 matches each. The proviso, however, did not say, when the declaration should be filed. The purpose behind that proviso was to enable only bona fide small manufacturers of matches to earn the concessional rate of duty by filing the declaration. All small manufacturers whose estimated clearance was less than 75 million matches would have availed themselves of the opportunity by making the declaration as early as possible as they would become entitled to the concessional rate of duty on their clearance from time to time. It is difficult to imagine that any manufacturer whose estimated total clearance during the financial year did not exceed 75 million matches would have failed to avail of the concessional rate on their clearances by filing the declaration at the earliest possible date. As already stated, the respondent filed its application for licence on September 5, 1967 and made the declaration on that date. The concessional rate of duty was intended for small bona fide units who were in the field when the notification dated September 4, 1967 was issued; the concessional rate was not intended to benefit the large units which had split up into smaller units to earn the concession. The tendency towards fragmentation of the bigger units into smaller ones in order to earn the concessional rate of duty has been noted by the Tariff Commission in its report [see the extract from the report given at p. 500 (SCC, p. 431) in M. Match Works v. Assistant Collector, Central Excise]. The whole object of the notification dated September 4, 1967 was to prevent further fragmentation of the bigger units into smaller ones in order to get the concessional rate of duty intended for the smaller units and thus defeat the purpose which the Government had in view. In other words, the purpose of the notification was to prevent the larger units who were producing and clearing more than 100 million matches in the financial year 1967-68 and who could not have made the declaration, from splitting up into smaller units in order to avail of the concessional rate of duty by making the declaration subsequently. To achieve that purpose, the Government chose September 4, 1967, as the date before which the declaration should be filed. There can be no doubt that any date chosen for the purpose would, to a certain extent, be arbitrary. That is inevitable.

The concessional rate of duty can be availed of only by those who satisfy the conditions which have been laid down under the notification. The respondent was not a manufacturer before September 4, 1967 as it had applied for licence only on September 5, 1967 and it could not have made a declaration before September 4, 1967 that its total clearance for the financial year 1967-68 is not estimated to exceed 75 million matches. In the matter of granting concession or exemption from tax, the Government has a wide latitude of discretion. It need not give exemption or concession to everyone in order that it may grant the same to some. As we said, the object of granting the concessional rate of duty was to protect the smaller units in the industry from the competition by the larger ones and that object would have been frustrated, if, by adopting the device of fragmentation, the larger units could become the ultimate beneficiaries of the bounty. That a classification can be founded on a particular date and yet be reasonable, has been held by this Court in several decisions. The choice of a date as a basis for classification cannot always be dubbed as arbitrary even if no particular reason is forthcoming for the choice unless it is shown to be capricious or whimsical in the circumstances. When it is seen that a line or a point there must be and there is no mathematical or logical way of fixing it precisely, the decision of the legislature or its delegate must be accepted unless we can say that it is very wide off the reasonable mark."

(emphasis supplied)

18. The ratio of the aforementioned judgment was reiterated by the Constitution Bench in D.G. Gose and Co. (Agents) (P) Ltd. v. State of Kerala (1980) 2 SCC 410. One of the several issues considered in that case was whether the tax imposed under Kerala Building Tax Act, 1975 with retrospective effect from 1.4.1973 was discriminatory and violative of Article 14. The Constitution Bench referred to the judgment in Union of India v. Parameswaran Match Works (supra) and observed: 

"It has not been shown in this case how it could be said that the date (April 1, 1973) for the levy of the tax was wide of the reasonable mark. On the other hand it would appear from the brief narration of the historical background of the Act that the State legislature had imposed the building tax under the Kerala Building Tax Act, 1961, which came into force on March 2, 1961, and when that Act was finally struck down as unconstitutional by this Court's decision dated August 13, 1968, the intention to introduce a fresh Bill for the levy was made clear in the budget speech of 1970-71. It will be recalled that the Bill was published in June 1973 and it was stated there that the Act would be brought into force from April 1, 1970. The Bill was introduced in the Assembly on July 5, 1973. The Select Committee however recommended that it may be brought into force from April 1, 1973. Two Ordinances were promulgated to give effect to the provisions of the Bill. The Bill was passed soon after and received the Governor's assent on April 2, 1975. It cannot therefore be said with any justification that in choosing April 1, 1973 as the date for the levy of the tax, the legislature acted unreasonably, or that it was "wide of the reasonable mark."

19. In State of Bihar v. Ramjee Prasad (1990) 3 SCC 368, this Court reversed the judgment of the Patna High Court which had struck down the cut off date fixed for receipt of the application. After adverting to the judgments in Union of India v. Parameswaran Match Works (supra) and Uttar Pradesh Mahavidyalaya Tadarth Shikshak Niyamitikaran Abhiyan Samiti, Varanasi v. State of U.P. (1987) 2 SCC 453, the Court observed:

"In the present case as pointed out earlier the past practice was to fix the last date for receipt of applications a month or one and a half months after the date of actual publication of the advertisement. Following the past practice the State Government fixed the last date for receipt of applications as January 31, 1988. Those who had completed the required experience of three years by that date were, therefore, eligible to apply for the posts in question. The respondents and some of the intervenors who were not completing the required experience by that date, therefore, challenged the fixation of the last date as arbitrary and violative of Article 14 of the Constitution. It is obvious that in fixing the last date as January 31, 1988 the State Government had only followed the past practice and if the High Court's attention had been invited to this fact it would perhaps have refused to interfere since its interference is based on the erroneous belief that the past practice was to fix June 30 of the relevant year as the last date for receipt of applications. Except for leaning on a past practice the High Court has not assigned any reasons for its choice of the date. As pointed out by this Court the choice of date cannot be dubbed as arbitrary even if no particular reason is forthcoming for the same unless it is shown to be capricious or whimsical or wide off the reasonable mark. The choice of the date for advertising the posts had to depend on several factors, e.g. the number of vacancies in different disciplines, the need to fill up the posts, the availability of candidates, etc. It is not the case of anyone that experienced candidates were not available in sufficient numbers on the cut-off date. Merely because the respondents and some others would qualify for appointment if the last date for receipt of applications is shifted from January 31, 1988 to June 30, 1988 is no reason for dubbing the earlier date as arbitrary or irrational."

(emphasis supplied)

20. The same view was reiterated in Dr. Sushma Sharma v. State of Rajasthan (1985) Supp. SCC 45, University Grants Commission v. Sadhana Chaudhary (1996) 10 SCC 536, Ramrao v. All India Backward 32 Class Bank Employees Welfare Association (2004) 2 SCC 76 and State of Punjab v. Amar Nath Goyal (2005) 6 SCC 754.