JUDGMENT D. K. Seth, J.
1. The petitioner was promoted to the post of Lecturer by an order dated 27.7.1979. This order was challenged by the Committee of Management by means of a writ petition which was ultimately withdrawn, whereupon respondent No. 4 Deo Nath Singh had moved a Writ Petition No. 6008 of 1981. That writ petition was dismissed by order dated 19.1.1993, against which Special Appeal No. 116 of 1993 was filed. In the Special Appeal, the order dated 27.7.1979 was quashed after holding that respondent No. 4 Deo Nath Singh being appellant in the said appeal was senior to the petitioner Dash Raj Yadav and, therefore, the vacancy in the post of Lecturer was directed to be filled up in accordance with law. All through the question remains as to among the petitioner Dash Raj Yadav and respondent No. 4 Deo Nath Singh who was entitled to be promoted to the said post of Lecturer. In order to establish the respective rights both of them have been claiming one was senior to the other. At no point of time in the earlier writ petition, it was contended that the post which was filled up by promotion was within the reserve quota for backward class and the petitioner had never made out a case that he was eligible and entitled to the appointment to the said post of lecturer by 'promotion on account of his being a member of the backward community as is apparent from the record available before this Court viz., respective judgments passed in the earlier proceedings.
2. Mr. D. S. P. Singh, learned counsel for the petitioner, however, contends that this was one of the main contention and defence taken by the petitioner in defending his case as respondent No. 4 in the earlier writ proceeding by means of filing counter-affidavit wherein such statement was incorporated along with material documents annexed therewith. But those materials are not available before this Court. The said contention is merely a statement from the Bar. There is no reflection of the said question either in the order dated 19.1.1993 passed by the learned single Judge nor there was any reflection in the order dated 30.10.1995 passed in the Appeal. In the learned single Judge's order, it was mentioned that 'basically the dispute in the case is as to whether the petitioner was senior to respondent No. 4' (Dash Raj Yadav). Though the contention of Dash Raj Yadav was noted in the appeal court, yet there was nothing that it was ever contended that Dash Raj Yadav, respondent No. 4 therein, was entitled to the said promotion by reason of his being a member of the backward community and that the said vacancy was earmarked for being filled up by promotion from among the backward community.
3. Be that as it may. Learned counsel for the petitioner Shri D. S. P. Slngh relies on Government Order dated 12.7.1978 contained in Annexure 4 to the writ petition and contends that when the vacancy had occurred on 30.1.1979, the same was subject to the said Government Order by which reservation was made applicable even in respect of appointment in school. Mr. G. K. Slngh contends that the Government Order shows that it relates to appointment. Nowhere it mentions that such reservation would be available even against vacancies to be filled up by promotion. The expression promotion has never been Included in the said order. Where as in the Government Order dated 26.1.1983. Annexure-CA-1 to the counter-affidavit as pointed out by Shrl G. K. Slngh, learned counsel for respondent No. 4, it was mentioned that reservation was not applicable in respect of vacancy to be filled up by promotion.
4. Mr. D. S. P. Singh, learned counsel for the petitioner had pointed out from paragraph 2 of the Annexure-4 to the writ petition that if the reserve quota is not filled up, then until required number of candidates from the reserve quota are available, all vacancies are to be considered to be a post against reserved quota and such posts are to be filled up either by promotion or direct recruitment.-Therefore, according to him, the said post was to be filled up by promotion from among the member of the backward community. But there is nothing to show that at the relevant point of time the required number of candidates from backward community was not represented in the said school. Mr. Singh, learned counsel for the petitioner pointed out from Annexure-3 to the writ petition that in 1978-79, there was only one candidate from the reserved quota among 16 posts of Lecturer. The certificate is dated 17.11.1995. There is nothing to show that this question was ever raised to defend the claim of the petitioner for promotion on 22.7.1979 in the earlier writ proceeding. Had he claimed promotion by reason of his being a member of backward community. In that event, it was open to him to take this defence to support his promotion when the order was not a speaking one. But he did not do so as is apparent from the two orders passed in the earlier writ proceeding and special appeal respectively.
5. According to the principle of res judicata all points which ought to have been taken shall be deemed to have been taken, even if the same have not been raised, and would operate as constructive res judicata. By reason of such principle of constructive res judicata or the principle analogous thereto when the question of promotion was fought between the petitioner and the respondent No. 4, the vital point which ought to have been taken shall be deemed to have been taken and decided and, therefore, the said question cannot remain open to be reagitated once again after the decision is taken. All along the petitioner had fought his case and defended the order of promotion only on the question of seniority without contending that he was also claiming the said post by virtue of his being member of the backward community alternatively. Therefore, it is not open to him Jo claim the same. Then again the Judgment in the Special Appeal was delivered on 30.10.1995 and the said certificate contained in Annexure-3 to the writ petition was obtained on 17.11.1995. Therefore, there cannot be any question of going backward. The relevant paragraph 2 of the Government Order dated 12.7.1978 on which Shri D. S. P. Singh, learned counsel for the petitioner relied upon points out that if there are no reservation from the backward community then such posts are to be filled up until the complete representation is fulfilled. Therefore, the question of filling up vacancy by promotion from among the members of the backward community was a conditional one to the extent of inadequate representation of backward community. In the counter-affidavit in paragraph 19, it has been pointed that there are already adequate representation of backward community in the post of Lecturers--
their names have been detailed therein. Thus, now there being adequate representation, one cannot expect to go back to a stage in 1979 for the purpose of promotion for giving adequate representation at a stage when there are adequate representation. It such a retrospective view is taken, it will surpus the representation. Since the petitioner had not agitated this point at any earlier point of time, he cannot be allowed to raise this question to reap the benefit even to the cases of representation at this stage. He is estopped therefrom by reason of his own conduct. Then again this benefit is being sought at this point of time without agitating it from the beginning. After 1983 Government Order contained in Annexure-CA-1 to the counter-affidavit. It had prohibited the application of reservation in case of filling up of the post by promotion. At the same time if the subsequent law is also resorted to, then also there being adequate representation, the same cannot come to the rescue of the petitioner.
6. In such circumstances, the petitioner cannot claim the benefit as has been sought in this writ petition.
7. The writ petition, therefore, fails and is accordingly dismissed.
However, there will be no order as to cost.