- (1.)BY the present petition the petitioners are challenging the Government Circular dated 15-10-1992 by which the respondent No. 2 has ordered the aided secondary schools to recover the alleged overpayment made to the teachers on account of grant of post graduate pay-scales to the teachers, like the petitioners, as also the non-payment of post-graduate scales to the secondary schools teachers by the Government of Goa despite decision to that effect as early as on 20-8-1993.
(2.)AT the outset, a preliminary objection as to the maintainability of the petition on the ground of res judicata is sought to be raised on behalf of the respondents. It is the contention of the respondents that in past the petitioner No. 4 had filed two writ petitions, one in his personal capacity and another in the name of All Goa Secondary School Teachers Association, being Writ Petition No. 66/b of 1976 and No. 170/b of 1976, respectively, and the matter in issue in these petitions is also directly and substantially in issue in the petition in hand and both the petitions were dismissed by common judgment dated 23-2-1983.
(3.)WE have heard Shri V. B. Nadkarni, learned Senior Advocate for the petitioners, and Shri H. R. Bharne, learned Government Advocate for the respondents, at length. On behalf of the petitioners it is submitted that the earlier petitions were dismissed only on the ground of lack of jurisdiction to issue writ as it was held that the provisions contained in the Grant-in-Aid Code were merely executive instructions which confer no right upon the teachers as they cannot apply for writ of mandamus for enforcement or non-enforcement of those provisions. Being so, the dismissal in the said petitions was on account of lack of jurisdiction to grant the relief and not on merits and, therefore the principle of res judicata has no application to the matter in question. It is also submitted that the Apex Court has already held that the order passed in exercise of powers vested under the provisions of Grant-in-Aid Code is assailable in writ jurisdiction and the writ can go against the schools receiving grant-in-Aid. That apart, even the Apex Court, in a subsequent decision in a case between another teacher and the Government has already granted the relief of the nature prayed for by the petitioner. The submissions are sought to be supported by the decisions of the Apex Court in the matter of (Francis John v. The Director of Education and others), reported in A. I. R. 1990 S. C. 423, (Sushil Kumar Mehta v. Gobind Ram Bohra), reported in 1990 (1) S. C. C. 193, (Smt. Pujari Bai v. Madan Gopal), reported in A. I. R. 1989 S. C. 1764, (Mathura Prasad Sarjoo Jaiswal and others v. Dossibai N. B. Jeyeebhoy), reported in A. I. R. 1971 S. C. 2355. The learned Advocate for the petitioners also submitted that the petitioners are restricting their claim of arrears for a period of three years prior to the filing of the petition.