Hon'ble SINGHAL, J. - (1.) THE following question has been referred to this Full Bench for consideration: "Whether in the Schedule to the Rajasthan State Electricity Board Officers (Recruitment, Promotion and Seniority) Regulations, 1974 under Entry No. 19 providing quota of 25% for promotion of Accountants holding the qualifica-tion of Intermediate with ICWA or Graduate with DCWA is valid and is not violative of Arts. 14 & 16 of the Constitution."? An objection was taken by the learned counsel for the respondents that in the present matter - a writ petition was filed by the Rajasthan Rajya Vidyut Karamchari Federation vs. R.S.E.B., D.B. Civil Writ Petition No. 5720/90 which was decided on 03.1.1991 and the prayer in the said writ petition was same which has been made in the present writ petition. It is submitted that the said writ petition was dismissed and, therefore, the members of Rajasthan Rajya Vidyut Karamchari Federation which a registered body, cannot submit another writ petition in the name of an unregistered association. This objection is being raised on two grounds : (i) That the matter is barred by principles of res-judicata, and (ii) That an unregistered association cannot file a writ petition as it has no fundamental right under Chap. III of the Constitution of India.
(2.) LEARNED counsel for the petitioner has submitted that in accordance with the provisions of Rule 59 of the High Court of Judicature for Rajasthan Rules, 1952 the Full Bench is bound to decide the question which has been referred and cannot decide any other point. Reliance has been placed on the decision of Habu vs. State of Raj. (1), wherein the Full Bench of this court has taken the view that it is for the Full Bench to consider whether the question referred has to be answered in affirmative or negative or not to answer at all. On the preliminary objection which has been raised a specific question was asked to the learned counsel for the petitioner that in view of the decision on which reliance is placed, the Full Bench has the jurisdiction not to answer the question and refusal to answer the question has to be based on certain reasons. If the Full Bench comes to the conclusion that the reference itself was incompetent as the writ petition was not maintainable it has jurisdiction to refuse to answer the reference. Learned counsel for the petitioner could not effectively make any submission on this preposition and, therefore, we are of the view that even if the reference is made by the Hon'ble Chief Justice under Rule 59 of the High Court of Judicature for Rajasthan Rules, 1952 the Full Bench has the jurisdiction to refuse to answer the question referred. The reasoning will depend on the facts of each case and cannot be generalised. On the question which is now raised on the principles of res-judicata that the second writ petition is not maintainable, we are of the view that though the provisions of Civil Procedure Code are not applicable to the writ jurisdiction but the principles can be applied. For the purpose' of analysing the principles of res-judicata the provisions of Sec. 11 C.P.C. can be taken into consideration which are as under: "Sec. 11 - Res-judicata - No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court." The above provisions make it clear that if the matter which is directly and substantially was in issue in former suit between the same parties under whom they or any of them claim, litigating under the same title, then the principles of res-judicata would be made applicable. The earlier writ petition which was filed was on behalf of 332 members as mentioned in para 3 of the writ petition No. 5720/90. If a decision is given in the case of a registered association, then it is binding not only on the association but also on all the members thereof and, therefore, they cannot form a separate association which may be registered or unregistered and file another writ petition. Explanation (vi) to Sec. 11 CPC provides that where persons litigate bonafide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating. The writ petition therefore, which was filed in the name of a registered association, the members thereof will be deemed to be litigating through the association and, therefore, it will be considered that the former writ petition which is filed has adjudicated their rights and they have no jurisdiction to file the writ petition again in respect of the same matter. The said decision was given by a Division Bench on merit and it is not in dispute that writ petition No. 338/91 from which this reference is made to this Full Bench, has been filed in the name of R.S.E.B. Accountants' Association showing its strength of 12 members who were the signatories to the resolution. The earlier writ petition was signed by Shri Davendra Kumar Ludhani and the present writ petition was filed by Shri Tek Singh Arora as Convenor of the R.S.E.B. Accountants' Association. This association also has membership of Shri Davendra Kumar Ludhani. In the earlier writ petition the circular/letter, dated 6.10.1990 with regard to the decisions taken, by the association bears the signature of Shri Davendra Kumar Ludhani as well as of Shri Tek Singh Arora. Even otherwise as observed above, if the writ petitions have been filed by a registered association every member thereof is bound by the decision given on the writ petition filed by the said association. If the decision given is against the association the members thereof cannot in any manner have the right to file the second writ petition in respect of the same issue. The contention of the learned counsel for the respondents therefore is accepted and it is held that the writ petition itself was not maintainable and no reference could have been made on such a writ petition. We are also supported by the decision of the Apex Court in the case of the Direct Recruitment Class-II Engineering Officer's Association and Ors. vs. State of Maharashtra and Ors. (2) where even the writ petition under Article 32 of the Constitution by same parties for the same relief was held to be barred on the principles of res-judicata when the writ petition under Art. 226 of the Constitution was dismissed by High Court after hearing on merits. Binding character of judgments of courts of competent jurisdiction is an essence a part of the rule of law on which the administration of justice is former. An objection to this effect was taken by the respondents in reply to the writ petition which was not dealt with and reference was made and now have again been raised before us.
(3.) IT may also be observed that an unregistered association has no fundamental right to approach this court under Art. 226 of the Constitution and this point is concluded the decision in the case of Shri Mahinder Kumar Gupta vs. Union of India, Ministry of Petroleum and Natural Gas (3). A decision in the case Akhil Bharatiya Soshit Karamchari Sangh vs. Union of India & Ors. (4), was relied where the non-recognised Association was held to apply under Art. 32 of the Constitution. We may observe that there had been number of the instances of public litigation where large body of persons is having the grievance against inaction of the State. Even letters have been considered to be a writ petition but all these are the matters where large section of public is affected and the personal interest of any particular person or a similar section, as in the present case, is not involved. Even in the case of People's Union for Democratic Rights vs. Union of India (5) when the question of locus standi was considered, the Hon'ble Supreme Court had taken into consideration the poverty, illiteracy and ignorance, obstructing and impeding accessibility to the judicial process and on that ground it was considered that writ petition can be filed. In D.S. Nakara & Ors. vs. Union of India (6), the old pensioners individually were unable to undertake journey through labyrinths of costly and protected (sic protracted) judical process for allowing to espouse their cause. In case of S.P. Gupta & Ors. vs. President of India (7), poverty, helplessness and disability or social or economic disadvantaged, position was considered a sufficient ground for maintaining the writ petition. There had been other decisions of the Apex Court as well and principles which emerge from all of them are as under: a. That the members of the said association should have sufficient strength so as to come in the category of a large sect of public, b. That the members should be identified, c. That the members must be of the category of poor/illiterate/helpless or disable, d. That the individual member must not be capable of filing a writ petition. e. That the entire body of the members must authorise the association to protect their legal rights, f. That such an association must have its own?. Constitution, and g. That there must be authority to file a writ petition on behalf of all the members. If all the above conditions are fulfilled, then an unregistered association can file a writ petition in respect of the legal right but the said association cannot file a writ petition alleging breach of fundamental right as the association by itself has no fundamental rights of its own. If a petition has once been filed alleging breach of legal right and is decided by the High Court, the decision thereof is binding on all the members and few of them cannot file another fresh writ petition in the name of other association. If it is permitted it would be an unending litigation as in the present case the earlier writ petition was filed by a recognised association. The second writ petition has been filed by few of the members of that very association and if the decision goes in the present writ petition against such unregistered and unrecognised association, then even a third unrecognised association can be formed to file the writ petition. This is not contemplated that such an association has any legal personality under law and as such the writ petition by an unregistered association is not maintainable in the facts and circumstances of the case. ;