Holding

The earlier writ decision does not operate as res judicata; Rule 5.32 is unconstitutional, and the appellant’s suit is not barred.

Issues considered

Whether the decision of the High Court in the writ petition, which assumed the statutory rule to be valid, operates as res judicata in a subsequent suit filed after the Supreme Court declared the rule unconstitutional.
Whether the doctrine of constructive res judicata applies when the constitutionality of a statutory provision was not raised in the earlier proceeding.
Whether Rule 5.32 of the Punjab Civil Services Rules, Volume II, violates Article 311(2) of the Constitution.

Legislation cited

Code of Civil Procedure, 1908s. Section 11
Constitution of Indias. Article 141, s. Article 311(2)

Subjects

constitutional lawres judicataconstructive res judicatacompulsory retirementArticle 311Article 141civil service rulesSupreme Court precedentpublic policy

Judgment

A NANO KISHORE
l'.

STATE OF PUN.JAB

SEPTEMBER 21, 1'!95

B IA.:vl. AHMADI, Cl. AND M.M. PUNCHHI, .1.J

Sen'icc La1v :

Punjab Civil Se1vices R!lles, Volume II-Rule 5.3~omp!llsmy retire-
e n1ent-Cltalle11ge under A1ticle 22{i-W!it dis111issed-S11it against the sa111e
challenging the validity of the Rllle-Subsequenliy identical Rule stn1ck down
by Sllpreme Cowt-Held: The Ruic invalid as it contravenes A11icle 311 (2)
of Constitution.

Constitlltion of India, /951}-A1ticle 141-Role of Supreme Cowt
D Unda--Not merc/y to inte1pret /aw--Tltc cowt as a wing of State by itl'elf a
source of lalll con1pete11t to stntke down statuto1y provisions.
1

Civil Prorndure Code, 1901'!--Section l l--Cons1111ctive Res-judicata-
Order or complllsmy retirement !lnder Ruic 5.32: P!lnjab Civil Se1vices
Rllles--C!wllenge in iwit petition withollt challenging validity of Rllle-Wiit
E
disniissed-ldentical R11le ·stnu:k doivn by Supre111e Cotut-Subsequent suit
challenging validity of the R!lle-He/d: Plinciple of consl111ctive Res-jlldicata
not to apply to such a situalion-Qllestion of constitutionality cannot be
considered as deen1ed to have been raised-Prestunption is ahvays in favour
of constitutionality of law, lllliess and until it is c!zal/enged.
F
Appellant was compulsorily retired after HI years of service under
Rule 5.32 of Punjab Civil Services Rules, Volume II, challenging the order,
\\ithout any challenge to the validity of the Rule, he tiled a writ petition
under Article 226 which was dismissed vide order dated 5.2.1962. In the
G meantime in its judgment the Supreme Court held that the validity of any
rule permitting compulsory retiren1e11t at a very early stage nlight have to
be considered on a p1·oper occasion. Thereafter the appellant tiled suit
challenging the validity of Rule 5.32. Subse'luently in another judgment,
Supreme Court held invalid an identical Rule. The Trial Court decreed the
suit holding that the Rule was illegal and invalid, relying on the Supreme
H Court judgment, and that the judgn1ent in the \Vrit proceedings did not
16
NAND KlSHORE v. STATE 17

operate as res- judicala. State preferred appeal to High Court on the sole A
point of res-judicata. The tiuestion referred to Full Bench \Vas \\'hether
dismissal of Writ by High Court on assun1ption that a statutory rule was
valid, operates as res-judicala in a subse<1uent suit instituted after the
statutory rule had been declared as un-constitutional by Supreme Court.
By majority, the question was answered in the affirmative.
B
Appellant approached this Court against the aforesaid order of the
High Court in appeal. This Court invited special leave petition against the
! order of the High Court dated 5.2.1962 in the writ petition and granted
leave to appeal.

The contention of the State was that the failure to raise the con-
c
stitutionality of Rule 5.32 in the wTit petition, preferred by the appellant,
would imply, on the principle of "Might and Ought", that the opportunity
of controverting the matter had been lost and that it should, on the
principle of res-judicata, be taken that the matter had been actually raised
and adversely decided. D
Allowing the appeals and setting aside the order of the High Court,
)
this Court

HELD: 1. Since Rule 532 of the Punjab Civil Services Rules, Volume
II, is identical in text, terms and purport with the Second proviso to Article E
9.1 of Pepsu Service Regulations, Gurdev Singh's case thus would mandate
to hold that Rule 5.32 of Punjab Civil Services Rules, Volume II should
meet the same fate, holding that the Rule be struck down as invalid since
it contravenes Article 311 (2) of the Constitution. [25-A]

Gurdev Singh v. State of Punjab & Ors., [1964] 7 SCR 587, relied on. f

Moti Ram Deka & 01'.<. v. No1th Eastem Frontier Railway & Ors., AIR
(1964) SC 600, referred to.

2. When the Supreme Court strikes down statutory provision hold- G
ing it to be unconstitutional it derives its authority to do so under the
Constitution. Under Article 141 the law declared by it is of a binding
character and as commandful as the law made by a legislative body or
authorised delega'tee of such body. The court is thus a competent
authority. The majority view expressed in the Full Bench decision is not in
keeping with the plenary function of the Supreme Court under Article 141 H
18 SUPREME COURT REPORTS (1995] SUPP. 4 S.C.R.

A of the Constitution, for the court is not merely interpreter of the law as
existing but much beyond that. The Court as a wing of the State is by itself
a source of law. The law is what the court says it is. (26-G-H, 27-A-B]

Mathura Prasad Bajoo Jaiswal & 01:1. v. Dossibai N.B. Jeejeebhoy,
(1970] 3 SCR 830, relied on.
B
3.1 The general principle underlying the doctrine of res-judicata is
ultimately based on consideration of public policy the important con-
sideration of which is that the decision 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
c made to face the same kind oflitigation twice over, because such a process
would be contrary to considerations of fairplay and justice. (27-D]

Daiyo & Others v. 771e State of U.P. & Others, (1962] 1 SCR 574,
referred to.
D
3.2 Raising the constitutionality of a provision of law, stands on a
different footing than raising a matter on a bare question of law, or mixed
question of law and fact, or on fact. There is a presumption always in
favour of constitutionality of the law. The onus is heavy on the person
challenging it. It is by the discharge of onus that the presumption of
E constitutionality can be crossed over. When a person enters a court for
relief and does not challenge the constitutionality of the law governing the
matters directly and substantially in issue, it only means and implies that
he goes by the presumption of constitutionality. He cannot on this stance
be deemed to have raised the question of constitutionally and the c1uestion
F of constitutionaHty to have been decided against him and such matter to
have been directly and substantially in issue. The constitutionality of the
Rule relating to compulsory retirement cannot be deemed to have been '
questioned and decided against the appellant on the principles of "might
and ought" or it being "directly and substantially" in issue. It cannot be
taken as a rule that one of the pleas, either by the plaintiff or the defendant,
G in every suit or proceeding, must of necessity relate to the constitutionality
of the law on which the cause is founded or defended in order to obviate
the plea of constructive res-judicata being raised in an eventuality. It
cannot also be taken as a rule that the constitutionality of the law involved
is a matter directly and substantially in issue, and if not raised renders a
H mute decision in favour of its constitutionality barring the plea being
NANO KISHORE v. STATE 19

raised in a subsequent suit. If there be read such a rule in all civil A
Litigation, it would be against public policy vexing and burdening the
courts to go into constitutionality of provisions of law in every case. When
under the impugned Rule, the government assumed to itself·the power to
compulsorily retire the permanent government servant after ten years of
qualifying service, the court's act of striking that Rule as unconstitutional
B
is the law-which appeared on the scene, not only to break the presumption
of constitutionality but to declare it void. (27-E-H, 28-A-C)

' 33 The principles of res-judicata would not apply when the law has
since the earlier decision been altered by a competent authority. And in
the context, Supreme Court is a competent authority to alter the law when C
it declares it to be unconstitutional. Alteration does not limit alone the
change therein but inclusive of the power or striking down. The suit of the
appellant could not, in any event, be held to be barred by principles of
res-judicata. (28-F-G)

The Amalgamated Coalfields Ltd. & Anr. v. The janapada Sabha, D
Chhindawara, (1963) Suppl. 1SCR172, Devi/a/ Modi v. Sales Tax Office1;
)
Rat/am and Others, (1965) 1 SCR 636 and State of UP. v. Nawab Hussain,
(1977) 3 SCR 428, referred to.

Mathura Prasad Bajoo Jaiswal & Ors. v. Dossibai N.B. Jeejeebhay, E
[1970) 3 SCR 830, relied on.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 632 of
1975.

From the .Judgment and Decree dated 13.8.74 of the Punjab & F
Haryana High Court in R.F.A. No. 156 of 1965.

With

Civil Appeal No. 8812 of 1995.
G
From the Judgment and Order dated 5.2.62 of the Punjab & Haryana
High Court in W.A. No. 1061 of 1961.

Manmohan and Mrs. Urmila Sirur for the Appellant in C.A. No.
632175. H
20 SUPREME COURT REPORTS (1995] SUPP. 4S.C.R.

A Manmnhan, for Ms. Kamini .laiswal for the Appellant in C.A. No
8812/'!5.

R.S. Yadav for G.K. Bansal for the Respondent.

The Judgment of the Court was delivered by
B
PUNCHHI, J. Whether the plea of constructive res judicata was
rightly raised against the appellant, in the facts and circumstances of this
case, is the significant question, \vhich arises for determination in this
appeal by special leave, against the judgment and decree dated 13-8-1974
of the Punjab and Haryana High Court at Chandigarh, in Regular First
c Appeal No. 156 of 1965.

Supportive of the abovesaid appeal is a highly belated special leave
petition, invited by this Court on 6-12-1990 from the appellant, against the
judgment and order dated 5-2-1962 of the Punjab High Court at Chan-
D digarh inWrit Application (Civil) No. 1061of1961, in circumstances which
we will mention later.

These can conveniently be disposed of by a common order.

The facts involved are not in dispute. A brief resume thereof will
E sullice. The appellant, Nand Kishore joined service in the erstwhile Patiala
State in May 1941. On the formation of Pepsu State he was taken as an
Assistant with effect from September 1, 1956. On the merger of Pepsu with
the State of Punjab, he was integrated as an Assistant in the Punjab Civil
Secretariat at Chandigarh, in the Food Distribution Branch. Having com-
pleted ten years qualifying :-.crvi~ he \Vas con1pulsorily retired. un January
F 6, 1961 fron1 the service by an order in the follo\ving terms :

"ORDER OF THE GOVERNOR OF PUNJAB

Sanction is accorded under the provisions of Rule 5.32 (b) of
the Punjab Civil Services Rules, Volume II, to the compulsory
G
retirement from Government Service of Shri Nand Kishore, Assis-
tant Food Distribution Branch, Punjab Civil Secretariat with im-
mediate effect.

2. He will be entitled to such proportionate pension and death-
H cum-rctiremcnt gratuity as n1ay he adn1issible under the rules.
NAND KISHORE 1•. STATE [PUNCHHI,J.] 21

Chandigarh A
Dated the sd/-
6th January, 1961 E.N. Mang~t Rai,
Chief Secretary <o Go11.
11
Punjab
B
The representations of the appellant to the Government and
memorial to the Governor brought him no relief. Thereafter he moved the
.• Punjab High Court in Writ Application No. 1061 of 1961 praying for
quashing of the order dated January 6, 1961 retiring him compulsorily. The
writ petition came up for hearing before a division bench consisting of Tek
Chand and 1.0. Dua, JJ. The impugned order of compulsory retirement c
was challenged by him on a variety of grounds inter-alia urging that he was
not governed by Rule 5.32 of the Punjab Civil Services Rules, Volume II
and that rather he was governed by the new Pension Rules. All the pleas
of the appellant were repelled. It was factually noted by the Bench that
Rule 5.32 of the Punjab Civil Services Rules, Volume II clearly con- D
templated the existence of power in the Government to retire a permanent
servant compulsorily after 10 years of qualifying service. The writ petition
> was dismissed on February 2, 1962. It is worth bearing in mind that the
appellant did not at that stage question the validity of Rule 5.32 and the
High Court too on its own did not engage itself to the question. The matter
rested there. E

The scenario changed thereafter. In Moti Ram Deka & Ors. v. N.E.
Frontier Railway & Ors., AIR (1964) SC 600 this Court was called upon to
consider the validity of Rules 148 (3) of the Railway Rules. These Rules
authorised the tcrn1ination of s0rvice of the raihvay en1ploycc by serving F
hin1 with a notice for a requisite period, or paying him salary for the said
period, in lieu of notice. This Court held that a person who substantively
holds a permanent post had a right to continue in service subject to two
exceptions, i.e., (i) superannuation; and (ii) compulsory retirement. The
second exception was affirmed by this Court with the reservation that Rules G
of compulsory retirement would be valid if having fixed a proper age of
superannuation, they permit compulsory rctiren1cnt after putting in a min-
imum period of service. This Court observed that if the compulsory retire-
ment permitted the authority to retire a public servant at a very early stage
of his career, the question whether such a Ruic would be valid might have
to be considered on a proper occasion. H
22 SUPREME COURT REPORTS (1995] SUPP. 4S.C.R.

A Encouraged by the decision in Moti Ram Deka's case, the appellant
on February 24, 1964, filed a suit in the Court of Senior Subordinate Judge,
Patiala for a declaration that the order of compulsory retirement dated
January 6, 1961, passed as it was under Rule 5.32 of the Punjab Civil
Services Rules, Volume II, after ten years of qualifying service, was invalid,
and that he should be treated to have continued in the service of the Punjab
B
Government, enjoying all the necessary rights and benefits thereof . He also
claimed the additional relief regarding payment of pay etc.

Shortly after the institution of the suit, on April 1, 1964, this Court
in Gurdev Singh Sidhu v. State of Punjab and Anr., (1964] 7 SCR 587 got
C the opportunity to apply the principlt<s evolved in Moti Ram Deka's case
to a compulsory retirement case under the second proviso to Article 9.1 of
the Pepsu Service Regulations as amended by a notification dated January
19, 1960. The said proviso empowered the Government retaining an ab-
solute right to retire any Government servant after he had completed 10
D years qualifying service without giving any reason and the government
servant any right to claim special compensation on this account. This right
however was not to be exercised by the Government except when it was in
public interest to dispense with further services of a Government servant,
such as on account of inefficiency, dishonesty, corruption or infamous
conduct. This Court took the view that it was not permissible for a State
E while reserving to itself the power of compulsory retirement by framing
Rules prescribing a proper age of superannuation to frame another one
giving it the power to compulsory retire a permanent government servant
at the end of ten years service, for that Rule cannot fall outside Article
311(2) of the Constitution.
F
Undisputably the Pepsu Regulation in question was identical to Rule
5.32 of the Punjab Civil Services Rules, Volume II. Since the suit of the '
appellant was based on the law as declared by this Court in Moti Ram
Deka's case and later on Gurdev Singh Sidhu's case the State of Punjab
took up the plea in its written statement that the suit, because of the earlier
G decision in the Writ application, was barred by principles of res-judicata.
The appellant reacted to the defence by stating that the prevailing view of
the Punjab High Court was that a judgment in a writ petition did not
operate as res-judicata and so he should get a decree in his favour. The
Trial Court thus on the issue of the suit being barred by principles of
H res-judicata or not, ruled in favour of the appellant on the basis of the view
NANDKISHORE 1•. STATE[PUNCHHl,J.] 23

then prevailing in the High Court. On the other issue, whether the order A
dated .January 6, 1961 of compulsory retirement was illegal, void etc. the
Court ruled that since Article 9.1 of the Pepsu Regulations had been struck
down in Gurdcv Singh Sihdu's case and since Rule 5.32 of the Punjab Civil
Services Rules,- Volume 11 was identical in nature the latter Rule therefore
was invalid and consequently the impugned order of compulsory retirement
B
passed thereunder was illegal and invalid. As a necessary consequence the
suit of the appellant was decreed. He was granted the declaration that his
compulsory retirement was illegal and consequently a·decree for Rs. 11321.
75 as arrears of salary etc. with costs.

The State of Punjab went up in Regular First Appeal before the C
Punjab and Haryana High Court raising one and the only one point that
the suit of the appellant was barred by principles of res-judicata, and
consequently the order of compulsory retirement on the appellant could
not be upset. The matter was placed before a division bench consisting of
S.S. Sandhawalia and M.R. Sharma, JJ. who after considering the matter, D
on the basis of the case law by then developed, referred the following
question of law for decision by a Full Bench :
)

"Whether the decision of the High Court declining to issue a writ
of mandamus on the assumption that a statutory rule was valid,
operates as res-judicata in a subsequent suit instituted after the E
statutory rule had been declared as unconstitutional by the
Supreme Court of India?"

In the Full Bench constituted, the same learned Judges were mem-
bers, the added Presiding Judge being B.R. Tuli, .I. The learned Judges of F
the Full Bench could not agree to the answer and thus they differed. S.S.
Sandhawalia, J. answered the question formulated in the affirmative and
B.R. Tuli, J. agreed with him. M.R. Sharma, J. however answered the
question in the negative. The decision was made on May 8, 1974 per
majority and the question was answered in the affirmative. The case was G
ordered to go back to the Division Bench for decision. Then the Division
Bench consisting of S.S. Sandhawalia and Manmohan Singh Gujral, JJ. on
August 13, 1974 allowed the appeal of the State of Punjab following the
dictum of the Full Bench. Aggrieved against the said decision, the appellant
sought leave and so Civil Appeal No. 632 of 1975 is before us to challenge
principally the view of the Full Bench of the High Court. H
24 SUPREME COURT RI:PORTS [1995j SUPP. 4 S.C.R.

A The aforesaid appeal appears to have been heard for quite sometime
of 6-12-1990 by a three-member Bench, as would appear from the Court
Proceedings extracted bekJ\v. The bench \Va~ goaded to invite a ~pl'.cial
leave petition by the appellant agaimt the order dated 5-2-1962 of the
Punjab High Court in Writ Application No. 1061 of 1961 accompanied by
an appropriate application for condonation of delay. The Court Proceed-
B
ings dated 6-12-1990 read thus:

"We have heard this appeal for ;ome time. In the meantime we
think it will be better if the petitioner is advised to file a special
leave petition from the order of the High Court dated 5.2.1962 in
c writ petition No. 1061/61 with an appropriate application for con-
donation of delay. If that petition were lo be accepted then perhaps
many of the points which are raised in this civil appeal may not be
necessary to be gone into. In Lhi.s view of the matter, we adjourn
this appeal for a period of 8 weeks. Counsel should file the SLP
D within three weeks from today and serve a copy on the counsel for
the State of Punjab. The counsel will so arrange the papers that
when the matter is listed, both the civil appeal and SLP are ready
for final hearing."

E The step of the three-member bench so taken reveals its mind as
reflected in the above proceedings. Their Lordships wanted to do substan-
tial justice. It was thought better to advise the petitioner to file a special
leave petition. As we view this order, having invited the petitioner io file
the special leave petition, it is no longer advisable or appropriate for us to
retrace back the step put forward by the three-member Bench. It is
F significant to recall that the writ application \Vas dismissed on February 5,
1962 and the moment Moti Ram Deka's case appeared on the scene, the
appellant on February 24, 1964, within limitation, brought forward his suit
which got strengthened by Gurdev Singh 's case appearing within a couple
of months of its filing. The appellant-special leave petitioner was thus
G bonajide pursuing an appropriate remedy for all these years. Jn these
circumstances, we think that an appropriate case for condonation of delay
of the intervening period has been made out. We, therefore, allow CC
11644/91 and condone the long durated delay in these exceptional cir-
cumstances. On doing so, we grant leave to appeal. The appeal thus arising
H and the Civil Appeal No. 632 of 1975 may now be disposed of together.
NAND KISHORE v. STATEiPUNCHllI,.I.] 25

As said before it has never been disputed that Rule 5.32 of the A
Punjab Civil Services Rules, Volume II is identical in text, tern1s and
purport with the second proviso to Article 9. Lof the Pepsu Service Regula·
tions. Gwdev Sing/i's case thus would mane.late us lo hole.I that Rule 5.32
of the Punjab Civil Services Rules, Volume II should meet the same fate,
hole.ling that the Rule be struck down as invalid since it contravenes Article
B
311(2) of the Constitution. Hole.ling so the order of compulsory retirement
of the appellant dated January 6, 1961 is struck down and the appellant is
held entitled to restoration of the decree of the Trial Court.

Putting aside for the moment the course above-a<lopte<l, let us other·
wise examine the view of the Hon'ble Judges of the Full Bench of Punjab C
and Haryana High Court on the question formulated. It is well known that
the general principle underlying the doctrine of res-judicara 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 appel· D
late authorities, and the other principle is that no one should be made to
face the same kind of litigation twice over, because suc.h a process would
be contrary to considerations of fairplay and justice. These principles stand
enunciated in Dmyao and Others v. The State of U.P. & Others, [1962] 1
SCR 574. This court in 77ze Amalgamated Coalfields Ltd. & Anr. v. 77ze
Janapada Sabha, Chhindwara, [1963] Supp. l SCR 172 opined that con· E
structive res-judicata was an artificial form of res-judicata enacted by Sec·
tion 11 of the Code of Civil Procedure and it should not be generally
applied to writ petitions filed under Article 32 and Article 226 of the
Constitution. The court then had the occasion to point out that when a
matter related to taxation and assessment levied for a different year, the
doctrine of res· judicata was itself inapplicable. This Court still spelled out F
the binding effect of a decision made under Article 141 of the Constitution
as follows:

''If for instance, the validity of a taxing statute is impeached by an
ass.cssec \Vho is called upon to pay a tax for a particular year and
the matter is taken to the High Court or brought before this Court G
and it is held that the taxing statute is valid, it may not be easy to
hold that the decision on this basic and material issue would not
operate as res-judicata against the assesscc for a subsequent year.
That, however, is a matter on which it is unnecessary for us to
pronounce a definite opinion in the present case. In this conncc- H
26 SUPREME COURT REPORTS [1995] SUPP. 4 S.C.R.

A tion, it would be relevant to add that even if a direct decision of
this Court on a point of law does not operate as res-judicata in a
dispute for a subsequent year, such a decision would, under Art.
141 have a binding effect not only on the parties to it, but also on
all courts in India as a precedent in which the law is declared by
this Court. The question about the applicability of res-judicata to
B such a decision would thus be a matter of merely academic sig-
nificance."

Gajendragadkar, C.J. who authored the judgment in the above-
quoted case of 1he Amalgamated Coal Fields Ltd's case, later in Devi/al
C Modi v. Sales Tax Office1; Rat/am & Othm, [1965] 1 SCR 636 yet applied
the principles of res-judicata holding that if the doctrine of constructive
res-judicata was not applied to writ proceedings, it would be open to a party
to take one proceeding after another and urge new grounds every time,
which was plainly inconsistent with the considerations of public policy. This
decision was followed in State of U.P. v. Nawab Hussain, [1977) 3 SCR
D 428.

On another facet of res-judicata, this Court in Mathura Prasad Bajoo
Jaiswal & Ors. v. Dossibai N.B. Jeejeeblwy, [1970) 3 SCR 830 had the
occasion to observe as under :
E
"A pure question of law unrelated to facts which give rise to a
right, cannot be deemed to be a matter in issue ....... A decision on
an issue 0f law will be res-judicata in a subsequent proceeding
between the same parties, if the cause of action of the subsequent
proceeding be the same as in the previous proceedings, hut not
F \Vhen the cause of action is different, nor 1vhen the law has since
the earlier decision been altered by a conipetent authority, nor \Vhen
the decision relates to the jurisdiction of the Court to try the earlier
proceeding, nor when the earlier decision declares valid a trans~
action which is prohibited by law." (emphasis supplied)

G When this Court strikes down a statutory provision holding it to be uncon-
stitutional, it derives its authority to do so under the ~onstitution. U n<ler
Article 141, the law declared by it is of a binding character and as
commandful as the law made by a legislative body or an authorised delegee
of such body. The Court is thus a "competent authority" within the scope
H of the words above emphasised. On the other hand the majority view
.,,
NANDKISHORE v. STATE[PUNCHl,J.) 27

expressed in the Full Bench decision that "the Courts of record including A
the Supreme Court only interpret the law as it stands but do not purport
lo amend the same. Their Lordship's decisions declare the existing law but
do nol enact any fresh law", is not in keeping with the plenary function of
the Supreme Court under Article 141 of the Constitution, for the Court is
not merely the interpreter of the law as existing but much beyond that. The
B
Court as a wing of the State is by itself a source of law. The law is what
the Court says it is. Patently the High Court fell into an error in its
appreciation of the role of this Court.

Bearing the above principles in mind what at best was said by the
State of Punjab was that failure to raise the constitutionality of Rule 5.32 C
in the writ petition preferred by the appellant would imply, on the principle
of "might and ought", that the opportunity of controverting the matter had
been lost and that it should on the principles of constructive res-judicata
be taken that the matter had been actually raised and adversely decided.
But in F01ward Construction Co. and Others v. Prabhat Manda/ and Others, D
[1986] 1 SCC 100, this Court has taken the view that where a matter has
been constructive in issue it cannot be said to have been actually heard and
decided. It could only be deemed to have been heard and decided.

It would then have to be seen the twin play of the notion of deemed
constitutionality and bar of constructive res-judicata. Raising the con- E
stitutioiyili[y of a provision of law, as it appears to us, stands on a different
footing than raising a matter on a bare question of law, or mixed question
of law and fact or on fact. There is a presumption always in favour of
constitutionality of the law. The onus is heavy on the person challenging it.
It is by the discharge of onus that the presumption of constitutionality can F
be crossed over. When a person enters a Court for relief and does not
challenge the constitutionality of the law governing the matters directly and
substantially in issue, it only means and implies that he goes by the
presumption of constitutionality. He cannot on this stance be deemed to
have raised the question of constitutionality and the question of con-
stitutionality to have been decided against him and such matter to have G
been directly and substantially in issue. The constitutionality of the Rule
relating to compulsory retirement cannot be deemed to have been ques-
tioned and decided against the appellant on the principles of "might and
oughtn or it being 11 directly and substantially in issue 11 • [t cannot be taken as
a rule that one of the pleas, either by the plaintiff or the defendant, in every H
28 SUPREME COURT REPORTS (1995( SUPP. 4 S.C.R.

A suit or proceeding, must of necessity relate to the constitutionality of the
law on which the cause is founded or defended in order lo obviate the plea
of constructive res~iudicata being rai~e<l in an eventuality. It cannot also be
taken as a rule that constitutionality of the law involved is a nldlter directly
and substantially in issue, and if not raised renders a mute decision in
!avour of its constitutionality barring the plea being raised in a subsequent
B
suit. lf there be read such a rule in all civil litigation, it would, to our mind,
be against public po,licy vexing and burdening the courts to go into the
constitutionality of provisions of law in every case. When under the im-
pugned rule, the Government assumed to itself the power to compulsorily
retire a permanent government servant after ten years of qualifying service,
c the court's act of striking that Rule as unconstitutional is the law which
appeared on the scene, not only to break the presumption of con-
stitutionality hut to declare it void. In a sense the offending provision was
never there and in the other it was henceforth not there. In either event, it
would be within the ambit of the emphasised word in Mathura Prasad's
case.
D
It thus seems to us that the view of the Full Bench of the High Court
was erroneous on first principles. In the question referred to the Full
Bench, no assumption could be made that a statutory Rule was valid when
the court declined to issue a writ of mandamus, or its being treated as
E res-judicata for the purpose of the subsequent suit. Matlmra Prasad's case
did nol merely stop at dealing with decisions relating to the jurisdiction of
the Court trying the earlier proceeding, but had further gone to say that
the principles of constructive res-judicata would not apply when the law has
since the earlier decision been altered by a competent authority. And in
F the context this Court is a competent authority lo alter the law when it
declares it to be unconstitutional. Alteration does not limit alone to change
therein but is inclusive of the power of striking down. Thus even if we were
to decline the belated special leave petition of the appellant against the
judgment and order of the High Court dated 5-2-1962 passed in Writ
Application No. 1061 of 1962, the appdlant would be entitled to succeed
G in having the impugned order of the High Court upset in Civil Appeal No.
632 of 1975, for the suit of the appellant could nut, in any event, be held
to be barred by principles of res-judicata.

Accordingly we would compositely allow both the appeals, sel aside
H the respective judgments and orders of the High Court holding that the
NANDKISHORE v. FATE[PUNCHHl,J.] 29

order of compulsory retirement cif the appellant under Rule 5.32 was void A
and inoperative and the appellant entitled to the meaningful relief of
arrears etc. as claimed by him in the plaint, and in accordance with the
judgment of the Trial Court. The appellant shall get his costs throughout
only in Civil Appeal No. 632 of 1975.

K.T. Appeals allowed. B