[2026:RJ-JP:14374-DB] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Civil Writ Petition No. 11863/2025 Karan LRs Of Smt. Bhama Devi W/o Shri Thaneshwar Prasad Sharma, Aged About 36 Years, R/o Survey No. 74 Shivaji Nagar Kacchi Basti, Shashtri Nagar, Jaipur, Raj. ----Petitioner Versus 1. Union Of India, Through The Secretary To The Government Of India, Ministry Of Mines, Shastri Bhawan, New Delhi. (Deleted) 2. The Director General, Geological Survey Of India, 27, J.L.N. Road, Kolkata (W.b.). 3. The Dy. Director General, Geological Survey Of India, Western Region, 15-16, Jhalana Doongari, Jaipur-302004. ----Respondents For Petitioner(s) : Mr. Siddarth Bapna with Mr. Banwari Singh and Ms. Tnushka Saxena For Respondent(s) : Mr. Alok Garg with Ms. Swati Daga HON'BLE MR. JUSTICE INDERJEET SINGH HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Order REPORTABLE 06/04/2026 1. The instant writ petition is preferred by the petitioner– applicant, being aggrieved by the order dated 25.02.2025 passed in OA No. 316/2021 (Jaipur), titled as Karan through LRs Smt. Bhama Devi Vs. Geological Survey of India, by the Central Administrative Tribunal (CAT), Jaipur. 2. The writ petition has been filed with the following prayer: "1. Writ, order and/or Issue appropriate direction and thereby the impugned order dated [2026:RJ-JP:14374-DB] (2 of 21) [CW-11863/2025] 25.02.2025 (Annexure-1) passed by Central Administrative Tribunal, Jaipur 316/2021 (Jaipur) titled as in OA No. 'Karan LRs Smt. Bhama Devi vs Geological Survey of India'may kindly be quashed and set aside; 2. Issue appropriate writ, order and/or direction and thereby, the prayers made and reliefs sought by way of OA No. 316/2021 (Jaipur) titled as 'Karan LRS Smt. Bhama Devi vs Geological Survey of India', may kindly be allowed in terms of the prayers made therein." 3. The brief facts of the case are that the husband of the applicant-Smt. Bhama Devi, namely Thaneshwar Prasad, went missing on 30.09.2001, and a report regarding his missing was lodged on 08.09.2002 at Police Station Bhatta Basti, Jaipur. A charge memo was issued against Thaneshwar Prasad for unauthorized absence since 01.10.2001. After enquiry, Thaneshwar Prasad was removed from service on 29.07.2004. After lapse of seven years from the date of missing of Thaneshwar Prasad, the applicant sent a legal notice claiming family pension on the basis of presumption under Sections 107 and 108 of the Indian Evidence Act. No action was taken, which led to filing of Writ Petition No. 17402/2012, titled as Smt. Bhama Devi versus Union of India through Secretary, GSI and others. The said writ petition was disposed of on 30.01.2014 with directions: "Petitioners have filed this writ petition for a direction to respondents to declare Shri Thaneshwar Prasad Sharma as dead and thereafter the respondents be directed to give compassionate appointment to petitioner no.1 on the post of Lower Division [2026:RJ-JP:14374-DB] (3 of 21) [CW-11863/2025] Clerk. It is further prayed that petitioners may also be granted family pension as per provisions of the Rajasthan Civil Service (Pension) Rules, 1996, along-with other retiral benefits. Prayer is also made for quashment of termination order dated 29.07.2004 (Annexure-3). Thaneshwar Prasad Sharma, husband of petitioner no.1 and father of other petitioners, had been working since 1985 with respondent Department on the post of waiter (bearer). He has been missing since 30.09.2011 and in this regard petitioner no.1 lodged a complaint with Police Station, Bhatta Basti, Jaipur on 08.09.2002, but till date he has not turned up and the concerned police station has submitted the report on 07.11.2008 that he could not be traced out. In the meanwhile, respondent Department issued a charge-sheet under Rule 14 of the Rajasthan Civil Services (Classification Control and Appeal) Rules, 1958 on the ground that Thaneshwar Prasad Sharma has continuously remained absent from duty since 01.10.2001 without prior sanction, and after conclusion of the enquiry, the respondent department dismissed him from service. Thereafter, petitioner no.1 submitted representation on 17.02.2009 to the respondent department and requested them to give the family the relief as prayed for in the writ petition. When nothing was done by respondents department, the petitioners have filed present writ petition. Learned counsel for petitioners, in support of this case, have cited a judgment [2026:RJ-JP:14374-DB] (4 of 21) [CW-11863/2025] of this court in Smt. Rajvan Devi Vs. Union of India and Others – 2009 (3) WLC (Raj.) 786. In that case, husband of petitioner was missing since 04.02.1998 and not traceable even after apprehension report sent to police, and this court issued a direction to grant family pension to petitioner from the date of expiry of one year after 04.02.1998 with interest at the rate of 6% per annum. In view of above, the writ petition is disposed of with a direction to respondents to consider the application/representation of the petitioners for grant of retiral benefits, compassionate appointment with other dues that may be payable in the case of death of a government servant, and pass appropriate order on the application/representation of the petitioners within a period of three months from the date a copy of this order is produced before them." 4. Pursuant thereto, the applicant submitted a representation, and non-consideration of the same led to filing of Contempt Petition No. 1375/2017, which was ultimately dismissed. In the meanwhile, the applicant filed OA No. 662/2017 before the CAT, Jaipur, with the following prayer: "(i) By an appropriate order the present Original Application of the applicant may kindly be accepted and the respondents may be directed to pay the terminal benefits to the applicant along with family pension in the larger interest of justice along with interest @ 18% per annum. The son of the applicant may also be considered for the compassionate apointment in place of his father. [2026:RJ-JP:14374-DB] (5 of 21) [CW-11863/2025] (ii) By an appropriate order, the order dated 29.07.2004 removing Shri Thaneshwar Prasad from service may kindly be quashed and set aside. (iii) By an appropriate order or direction the respondents may kindly be directed to pay cost of the application to the applicant. (iv) Any other order or direction which the Hon'ble Tribunal deems just & proper may be passed in favour of the applicant." 5. The Tribunal, after considering the order dated 30.01.2014 passed in Writ Petition No. 17402/2012, dismissed OA No. 662/2017 vide order dated 13.09.2021 with following order: "13. Therefore, in our opinion, the same reliefs are prayed by the applicant in the present Original Application as had been prayed before the Hon'ble High Court and, thus, when the higher forum has already decided the issue, in view of principle of res-judicata, this Tribunal is restrained from passing any further orders or directions. Also this Tribunal cannot act as an Appellate forum over the orders passed by Hon'ble High Court. As observed by the Hon'ble Apex Court in several judgments, on the principle of res-judicata, it is clear that the principle of res-judicata comes into play when by the judgement and order, a decision of a particular issue is implicit in it, that is, when any matter which might and ought to have been made a ground of defence or attack in a former [2026:RJ-JP:14374-DB] (6 of 21) [CW-11863/2025] proceeding but was not so made, then such a matter in the eyes of law, to avoid multiplicity of litigation and to bring finality in it, is deemed to have, been constructively in issue and, therefore it is taken as decided. 14. Thus, in these circumstances, though we have sympathy towards the applicant, but we have no hesitation in taking a view that the present Original Application filed by the applicant is hit by contructive res-judicata and, therefore, deserves to be dismissed. Accordingly, present Original Application is dismissed. No order as to costs." 6. Thereafter, the petitioner filed another OA No. 316/2021 on the ground that Thaneshwar Prasad had been missing since 30.09.2001 and after seven years he is to be presumed dead as per Section 108 of the Indian Evidence Act, and decision on the representation, filed pursuant to order dated 30.01.2014 was not within the knowledge of the petitioner at the time when OA No. 662/2017 was pending. The petitioner, in OA No. 316/2021, challenged the decision dated 03.06.2014 (order passed on representation) as well as the order dated 29.07.2004 (removal of Thaneshwar Prasad from service). The CAT, considering the principle of res judicata, dismissed OA No. 316/2021 on dated 25.02.2025. The order is challenged by filing current writ petition. [2026:RJ-JP:14374-DB] (7 of 21) [CW-11863/2025] 7. Learned counsel for the petitioner submitted that OA No. 662/2017 was filed for claiming terminal benefits along with family pension for Smt. Bhama Devi, the wife of Thaneshwar Prasad. During pendency of the said proceedings, the respondents placed on record an order dated 03.06.2014, whereby the representation of the applicant was decided pursuant to order dated 30.01.2014 passed in Writ Petition No. 17402/2012. He further submitted that after dismissal of OA No. 662/2017, a fresh OA was filed on legal advice, primarily challenging the order dated 03.06.2014, as the same was never been challenged prior to filing of OA No. 316/2021. It was submitted that the reliefs claimed in OA No. 662/2017 and OA No. 316/2021 are different. He further submitted that since Thaneshwar Prasad has been missing since 30.09.2001 and no information regarding his whereabouts has been received, even after lapse of seven years, thus a presumption has to be drawn about his death in terms of Sections 107 and 108 of the Indian Evidence Act. 8. He further submitted that writ petition was disposed of with a direction to decide the representation and there was no adjudication of rights, therefore, the order passed in OA No. 662/2017 is also erroneous. He further submitted that since the rights of the applicant were not adjudicated, therefore, the legal heirs have a right to file a fresh OA No. 316/2021, and thus the principle of res judicata is not applicable in the present case. 9. Aforesaid contentions were opposed by learned counsel appearing on behalf of the respondents and submitted that [2026:RJ-JP:14374-DB] (8 of 21) [CW-11863/2025] the applicant had earlier filed OA No. 662/2017, which was dismissed, and without challenging the order dated 13.09.2021 passed therein, the petitioner has filed another OA, which is not maintainable in view of the principle of res judicata. He further submitted that the law on the point is well settled that a party cannot avail the same remedy by filing successive petitions before the same forum. It was also submitted that the applicant has challenged both orders dated 03.06.2014 and 29.07.2004 in OA No. 316/2021, and the same has rightly been dismissed by the Tribunal. He further referred doctrine of res judicata applicable in the instant case. 10. Heard learned counsel for the parties and perused the material placed on record. 11. The facts as reflected hereinabove clearly indicate that after filing of OA No. 316/2021, applicant Bhama Devi died on 30.12.2023 and her son Karan Sharma was substituted in her place to continue the OA. Aggrieved from the impugned order dated 25.02.2025, the instant writ petition is preferred by Karan Sharma son of Thaneshwar Prasad. 12. The impugned order clearly indicates that OA No. 316/2021, Jaipur was dismissed only on the ground of res judicata. Even, earlier OA No. 662/2017 was also dismissed on the ground of res judicata. The doctrine of res judicata is applicable in civil proceedings with the object that no party can be permitted to re-agitate the same issue in subsequent litigation between the same parties, provided the issue is finally decided. [2026:RJ-JP:14374-DB] (9 of 21) [CW-11863/2025] 13. In the case of Satyadhyan Ghoshal vs. Deorajin Debi, reported in AIR 1960 SC 941, Hon’ble Supreme Court has considered the basic object behind introduction of the principle of res judicata and observed as under: The principle of res judicata is based on the need of giving finality to judicial decisions, what it says is that once a res judicata, it shall not be adjudicated again. Primarily, it applies as between past litigation and future litigation, when a matter whether on a question of fact or of a question of law has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher court or because in appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceedings between the same parties to canvass the matter again. 14. In the case of State of Karnataka vs. All India Manufacturers Organisation, reported in (2006) 4 SCC 683, Hon’ble Supreme Court has observed that the doctrine of res judicata is based upon three well-known maxims and the same are reproduced as under: (1) Nemo debet bis vexari pro uno et eadem causa.--No man should be vexed twice for the same cause. (2) Interest republice ut sit finis litium.--It is in the interest of the state that there should be an end to a litigation. (3) Res judicata pro veritate acipiture.--A judicial decision must be accepted as correct. [2026:RJ-JP:14374-DB] (10 of 21) [CW-11863/2025] 15. Section 11 of CPC provides for res judicata. There are exceptions to the rule, but when a matter is directly and substantially in issue between the same parties litigating under the same title, then such issue cannot be re-agitated in a subsequent proceeding if it has been finally decided in a previously instituted suit. Similarly, if any issue was within the knowledge of the parties or might have been raised at a particular point of time but was omitted deliberately, or ignorantly, then the doctrine of constructive res judicata is applicable. It means any matter which might or ought to have been made a ground of defence or attack in a former suit shall be deemed to have been a matter constructively in issue in that suit. 16. In the case of State of U.P. versus Nawab Hussain, reported in AIR 1977 SC 1680, Hon’ble Supreme Court has considered an issue where a Police Sub-Inspector challenged his dismissal by filing a writ petition, which was dismissed, and subsequently a suit was filed to challenge dismissal raising additional grounds. After decision by the High Court, the matter was challenged before the Supreme Court and, considering the principle of constructive res judicata, it was observed as under: "7. The High Court then proceeded to consider this Court's decisions in Devilal Modi's case (1965 AIR 1150) and Gulabchand's case (1965 AIR 1153). Gulabchand's was the later of these two cases. The High Court has interpreted it to mean as follows:-- [2026:RJ-JP:14374-DB] (11 of 21) [CW-11863/2025] It was held that the decision of the High Court on a writ petition under Article 226 on the merits on a matter after contest will operate as res-judicata in a subsequent regular suit between the same parties with respect to the same matter. As appears from the report the above was majority view of the Court and the question whether the principles of constructive res-judicata can be invoked by a party to the subsequent suit on the ground that a matter which might or ought to have been raised in the earlier proceedings was left open. The learned Judges took care to observe that they made it clear that it was not necessary and they had not considered that the principles of constructive res- judicata could be invoked by a party to the subsequent suit on the ground that a matter which might Or ought to have been raised in the earlier proceeding was not so raised therein." As we shall show, that was quite an erroneous view of the decision of this Court, on the question of constructive res-judicata. It will help in appreciating the view of this Court correctly if we make a brief reference to the. earli- er' decisions in Amalgamated Coalfields Ltd. and others v. Janapada Sabha, Chhindwara(1) and Amalgamated Coalfields Ltd. and another v. Janapada Sabha, Chhindwara,(2) which was also a case between the same parties. In the first of these cases a writ petition was filed to challenge the coal tax on some grounds. An' effort was made to canvass an additional [2026:RJ-JP:14374-DB] (12 of 21) [CW-11863/2025] ground, but that was not allowed by this Court and the writ petition was dismissed. Another writ petition was filed to challenge the levy of the tax for the subsequent periods on grounds distinct and separate from those which were rejected by this Court. The High Court held that the writ petition was barred by res-judicata 'because: of the earlier decision of this Court. The matter came up in appeal to this Court in the second case. The question which directly arose for decision was whether the principle of constructive res judicata was applicable to petitions under articles 32 and 226 of the Constitution and it was answered as follows,-- "It is significant that the attack against the validity of the notices in the present proceedings is based on grounds different and distinct from the grounds raised on the earlier occasion. It is not as if the same ground which was urged on the earlier occasion is placed before the Court in another form. The grounds now urged are entirely distinct, and so, the decision of the High Court can be upheld only if the principle of constructive res judicata can be said to apply to writ petitions filed under Art. 32 or Art. 226. In our opinion, constructive res judica- ta which is a special and artificial form of res judicata enacted by section 11 of the Civil Procedure Code should not generally be applied to writ petitions field under Art. 32 or Art. '226. We would be reluctant to apply this principle to the present appeals all the more [2026:RJ-JP:14374-DB] (13 of 21) [CW-11863/2025] because we are dealing with cases where the impungned tax liability is for different years." It may thus appear that this Court rejected the application of the principle of constructive res judicata on the ground that it was a "special and artificial form of res judica- ta" and should not generally be applied to writ petitions, but the matter did not rest there. It again arose for consideration in Devilal Modi's case (supra). Gajendragadkar, J. who had spoken for the court in the second case of Amalgamated Coalfields Ltd. spoke for the Court in that case also. The (1) [1962] 1 S.C.R. 1. (2) [1963]. Supp. 1. S.C.R. 172. The petitioner in that case was assessed to sales tax and filed a writ petition to challenge the assessment. The petition- was dismissed by the High Court and he came in appeal to this Court. He sought to make some' additional contentions in this Court, but was not permitted to do so.. He. there- fore filed another writ petition in the High Court raising, those' additional contentions and challenged the order of assessment for the same year. The High Court dismissed the petition on merits, and the case came up again to this Court in appeal. The question which specifically arose for consid- eration was whether the principle of constructive res judicata was applicable to writ petitions of that kind. While observing that the rule of constructive res judicata was "in a sense a somewhat technical or artificial rule prescribed by the Code of Civil Procedure", [2026:RJ-JP:14374-DB] (14 of 21) [CW-11863/2025] this Court declared the law in the following terms,-- "This rule postulates that if a plea could have been taken by a party in a proceeding between him and his opponent, he would not b0 permitted to take that plea against the same party in a subsequent proceeding which is based on the same cause of action; but basically, even this view is founded on the same considerations of public policy, because if the doctrine of constructive res judicata is not applied to writ proceedings, it would be open. to the party to take one proceeding after another an urge new grounds every time; and that plainly is inconsistent with considerations of public policy to which we have just referred." While taking that view, Gajendragadkar C.J., tried to explain earlier decision in Aalgamated Coalfields Ltd. v. Janapada Sabha, Chhindwara(1) and categorically held that the principle of constructive res judicata was applicable to writ petitions also. As has been stated, that case was brought to the notice of the High Court, but its significance appears to have been lost because of the decisions, in Janakirama Iyer and others vs. P.M. Nilakanta lyer (supra) and Gulabchand's ease (supra). We have made a reference to the decision in Janakirama Iyer's case which has no bearing on the' present controversy, and we may refer to the decision in Gulabchand's case as well. That was a case where the question which specifically arose for consideration was whether a decision of [2026:RJ-JP:14374-DB] (15 of 21) [CW-11863/2025] the High Court on merits. on a certain matter after contest, in a writ petition under article 226 of the Constitution, operates as res judicata in a regular suit with respect to the same matter between the same parties. After a consideration of the earlier decisions in England and in this country, Raghubar Dayal J., who spoke for the majority of this Court, observed as follows,- These decisions of the Privy Council well lay down that the provisions of s. 11 C.P.C. are not exhaustive with respect to an earlier decision in a proceeding operating as res judicata in a subsequent suit with respect, to the same matter inter parties, and do not preclude the. application to regular suits of the general principles of res judicata based on public policy' and applied from ancient. times." He made a reference to the decision in Daryao and others v. The State of U.P. and others(1) on the question of res judicata and the decisions in Amalgamated Coalfields Ltd. and others v. Janapada Sabha, Chhindwara(2) and Devilal Modi's case (supra) and summarised the decision of the Court as follows :-- "As a result of the above discussion, we are of opinion that the provisions of s. 11 C.P.C. are not exhaustive with respect to an earlier decision operating as res judicata between the same parties on the same matter in controversy in a subsequent regular suit and that on the general principle of res judicata, any previous decision on a matter in [2026:RJ-JP:14374-DB] (16 of 21) [CW-11863/2025] controversy, decided after full contest or after affording fair opportunity to the parties to prove their case by a Court competent to decide it, will operate as res judicata in a subsequent regular suit. It is not necessary that the Court deciding the matter formerly be competent to decide the subsequent suit or that the former proceeding and the subsequent suit have the same subject matter. The nature of the former proceeding is immaterial." He however went on to make the following further observation,- "We may make it clear that it was not necessary, and we have not considered, whether the principles of constructive res judicata can be invoked by a party to the subsequent suit on the ground that a matter which might or ought to have been raised in the earlier proceeding was not so, raised therein." 8. It was this other observation which led the High Court to take the view that the question whether the principle of constructive res judicata could be invoked by a party to a subsequent suit on the ground that a plea which might or ought to have been raised in the earlier proceeding but was not so raised therein, was left open. That in turn led the High Court to the conclusion that the principle of constructive res judicata could not be made applicable to a writ petition, and that was why it took the view that it was competent for the plaintiff in this case to. raise an additional plea in the suit [2026:RJ-JP:14374-DB] (17 of 21) [CW-11863/2025] even though it was available to him in the writ petition which was filed by him earlier but was not taken. As is obvious, the High Court went wrong in taking that view because the law in regard to the applicability of the principle of constructive res judicata having been clearly laid down in the decision in Devilal Modi's case (supra), it was not necessary to reiterate it in Gulabchand's case (supra) as it did not arise for consideration there. The clarificatory observation of this Court in Gulabchand's case (supra) was thus misunderstood by the High Court in observing that the matter had been "left open"' by this Court. 17. The issue of constructive res judicata was further considered in the case of Asgar and others versus Mohan Varma and others, reported in (2020) 16 SCC 230, wherein Hon’ble Supreme Court has observed that the principles of res judicata and constructive res judicata seek to achieve the common object of finality to litigation. 18. Here, in the present case, Writ Petition No. 17402/2012 was disposed of on 30.01.2014 with liberty to the LRs of Thaneshwar Prasad to submit a representation/application to grant retiral benefits, compassionate appointment, and other dues which may be payable in case of death of a government servant. In the writ petition, the termination order dated 29.07.2004 (passed after disciplinary proceedings) was also challenged, but same was neither set aside nor considered on merits. After a few years, OA No. 662/2017 was filed before the CAT, but the same was dismissed on 13.09.2021 [2026:RJ-JP:14374-DB] (18 of 21) [CW-11863/2025] on the ground that the issue has already been decided in Writ Petition No. 17402/2012. The petitioner has again filed OA No. 316/2021, which was dismissed on 25.02.2025. 19. If the petitioner failed to get any relief in Writ Petition No. 17402/2012, then he was required to challenge the order dated 30.01.2014. If the said order did not affect the filing of OA No. 662/2017, then the dismissal of OA No. 662/2017 on 13.09.2021 was required to be challenged by filing a writ petition, but it does not give any right to the petitioner to file a subsequent OA No. 316/2021. 20. The OA No. 316/2021 is filed with following prayer:- (i) By an appropriate order or direction the present Original Application of the applicant may kindly be accepted and the impugned order dated 03.06.2014 may kindly be quashed and set aside along with all consequential benefits including the retiral dues and family pension (ii) By an appropriate order or direction the respondents may also be directed to pay interest @ 18% per annum on the delayed payment of pension. (iii) By an appropriate order, the order dated 29.07.2004 removing Shri Thaneshwar Prasad from service may kindly be quashed and set- aside. (ii) By an appropriate order or direction the respondents may kindly be directed to pay cost of the application to the applicant. (iv) Any other order or direction which the Hon'ble Tribunal deems just & proper may also be passed in favour of the applicant. [2026:RJ-JP:14374-DB] (19 of 21) [CW-11863/2025] 21. The legal heirs of Thaneswar Prasad had initially filed a writ petition before this Court, which was disposed of without issuing notice to the respondents, but liberty was granted to file a representation. In the said writ petition, the legal heirs have challenged the termination order dated 29.07.2004 passed by the respondents, but no observation about the termination order was made in the writ petition, which means that the termination order was not considered in the writ petition. The legal heirs submitted a representation to the respondents pursuant to the order dated 30.01.2014 in the writ petition. The representation was dismissed on 03.06.2014, but the legal heirs were not informed about the outcome of the representation. The legal heirs have approached the CAT by filing OA No. 662/2017, which was dismissed on 13.09.2021 on the ground that the issue has already been considered in the writ petition No.17402/2012 decided on 30.01.2014, hence, OA No. 662/2017 is a subsequent proceeding, thus the principle of res judicata was applied. 22. During the pendency of OA No. 662/2017, the legal heirs of Thaneshwar Prasad (applicants) came to know about dismissal of their representation by respondent on 03.06.2014, but they neither amended OA No. 662/2017 to include challenge to the order dated 03.06.2014 (dismissal of the representation), nor did they withdraw the OA with liberty to file a fresh OA after including challenge to the order dated 03.06.2014. The OA No. 662/2017 was dismissed invoking the doctrine of res judicata. [2026:RJ-JP:14374-DB] (20 of 21) [CW-11863/2025] 23. The order dated 13.09.2021 was not assailed by the legal heirs of Thaneshwar Prasad before any forum, and same has attained finality. The legal heirs again filed a fresh OA No. 316/2021 including challenge to the order dated 03.06.2014 (dismissal of representation) and also the removal order dated 29.07.2004. This OA was dismissed by the impugned order, again invoking the principle of res judicata. The petitioner was required to pursue OA No. 662/2017 instead of filing a fresh OA No. 316/2021. The petitioner has not availed any remedy to challenge the order dated 13.09.2021, as the writ petition No. 17402/2012 has not finally decided the rights between the parties. The principle of res judicata, as discussed hereinabove, is rightly invoked while passing order dated 25.02.2025, and the petitioner was not entitled to file a subsequent OA No. 316/2021 before the CAT. 24. The petitioner was required to challenge the order dated 13.09.2021 passed in OA No. 662/2017 instead of filing a fresh OA No. 316/2021. The petitioner has not availed the remedy to withdraw OA No. 662/2017 with permission to file fresh OA No. 316/2021, after including challenge to the order dated 03.06.2014. The principle of res judicata is applicable in the instant case, as the petitioner is not entitled to file subsequent OA No. 316/2021. 25. Before parting with the order, it is appropriate to refer to Section 108 of the Indian Evidence Act, which deals with the burden of proof that a person is alive who has not been [2026:RJ-JP:14374-DB] (21 of 21) [CW-11863/2025] heard of for seven years. Section 108 of the Indian Evidence Act is reproduced as under:- 108. Burden of proving that a person is alive who has not been heard of for seven years. [Provided that when] [Substituted by Act 18 of 1872, Section 9, for "When".] the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is [shifted to] [Substituted by Act 18 of 1872, Section 9, for "on".] the person who affirms it. 26. Here, in the present case, Thaneshwar Prasad was missing since 30.09.2001, and the report was registered after 11 months on 08.09.2002. In the meanwhile, a charge memo was issued by the department and, on 29.07.2004, an order of removal was passed by the respondent department on the ground of unauthorized absence. The legal heirs were probably ill-advised, but they are at liberty to avail remedy, to seek declaration of civil death of Thaneshwar Prasad and, thereafter, to pursue further remedies. 27. In view of the discussion made hereinabove, the writ petition is hereby dismissed, along with pending application(s), if any. 28. No order as to cost. (ASHOK KUMAR JAIN),J (INDERJEET SINGH),J PREETI VALECHA /146