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1992 DIGILAW 691 (ALL)

L. S. Tripathi v. Banaras Hindu University

1992-05-05

R.A.SHARMA

body1992
JUDGMENT R.A. Sharma, J. - Petitioner has filed this writ petition for appropriate direction to Banaras Hindu University, Varanasi, to issue him an appointment letter for the post of Computer Programme. The reliefs claimed in this writ petition are as follows : "1. An order, direction or writ directing the respondents No. 1 to issue appointment letter to the petitioner for tho post of Computer Programmer, Consist Programme, Institute of Medical Science, B. H U. Varanasi, or to decide the representation dated 25-6-1991. 2. An order, direction or writ, directing the respondents to hold selection for the post of Maintenance Engineer (Jr) Computer Centre B. H. U. Varanasi in pursuance of the advertisement made one and half years back. 3. Any other suitable order, direction or writ which this Hon'ble Court may deem fit and proper under the circumstances of the case. 4. An order for the costs." 2. Learned counsel for Banaras Hindu University, has raised a preliminary objection to the effect that, as for the same relief the petitioner filed earlier writ petition No. 7527 of 199), which was dismissed by a well reasoned judgment on 11-11-1991, this Writ Petition, is not maintainable. We have summoned the file of Writ Petition No. 7527 of 1991 and have perused the same. It appears that the petitioner was appointed in 1987 as Deputy District Health Statistical Officer under the Indian Council of Medical Research Project of Medical Science, Banaras Hindu University. By order dated 2-3-1991 the services of the petitioner were terminated and he as such filed Writ Petition No. 7527 of 1991 before this Court for the following reliefs : "(a) an order, direction of writ, quashing the impugned order dated 2-3-1991 (Annexure-5 to the writ petition). (b) an order, direction or writ directing the respondents No. 1 and 3 to give the petitioner alternative job of system Programmer in the department of Computer Science, Faculty of Science of Banaras Hindu University Varanasi or to adjust the petitioner in other projects of respondent No. 2. (c) any other suitable order, direction or writ which this Hon'ble Court may deem lit and proper in the circumstances of the case. (d) an order for costs." Relief `b' of the earlier writ petition, quoted above, and the reliefs claimed in the instant Writ petition are identical. (c) any other suitable order, direction or writ which this Hon'ble Court may deem lit and proper in the circumstances of the case. (d) an order for costs." Relief `b' of the earlier writ petition, quoted above, and the reliefs claimed in the instant Writ petition are identical. In the earlier writ petition, apart from averments made in the writ petition, the petitioner has filed a supplementary affidavit along with an application for interim relief directing the respondents to issue him a letter of appointment on temporary basis for the post of Computer Programmer, Consist Programme, Institute of Medical Science, Banaras Hindu University, Varanasi. In that supplementary affidavit it was mentioned that on 25-6-1991 the petitioner made an application to the Vice-Chancellor, Banaras Hindu University, which was duly forwarded and recommended for providing the petitioner with suitable alternative employment in the University and thereafter the Director Institute of Medical Science asked the Coordinator Consist Programme,, Prof. H. S. Shukla to do the needful in the matter and Sri Shukla, in his turn, expressed opinion in favour of the petitioner for temporary appointment. In support of the above averments the petitioner had filed the application dated 25-6-1991 and recommendations made thereon as well as letter of Sri Shukla making recommendation for his temporary appointment, as Annexures-1 and 2 to the supplementary affidavit. This Court by a detailed judgment, running into 14 pages, has dismissed the earlier writ petition of the petitioner. So far as Relief `B', whereby the petitioner had prayed for appropriate direction for providing him with the job of system Programmer in the department of Computer Science, is concerned, it was rejected by the Division Bench of this Court with the following finding : "The question raised by the learned counsel for the petitioner that he should be offered alternative job by the University, in our opinion is not tenable. Those posts have to be filled in by the University in accordance with the provisions of the Statute by direct recruitment after inviting applications through advertisement. The petitioner cannot be absorbed on those posts as absorbing the petitioner on those posts would be violative of Article 16 of the Constitution." 3. Those posts have to be filled in by the University in accordance with the provisions of the Statute by direct recruitment after inviting applications through advertisement. The petitioner cannot be absorbed on those posts as absorbing the petitioner on those posts would be violative of Article 16 of the Constitution." 3. The instant writ petition has been filed with identical allegations which were raised in the earlier writ petition and the letter dated 26-5-1991 and the recommendation as well as letter of Sri Shukla, which were filed as Annexures-1 and 2, to the supplementary-affidavit, in the earlier writ petition, have been filed as Annexures-2 and 3 to this writ petition. 4. From perusal of the record of earlier writ petition and the averments made in this writ petition it is clear that the second writ petition has been filed on the same facts and for the same reliefs. What was claimed in Relief b' in earlier writ petition is the relief which has been claimed in the present writ petition. In view of the provisions contained in Rule 7 of Chapter XXII of Rules of the Court second writ petition on the same facts or for the same reliefs, is not maintainable. This rule being relevant is reproduced below : "Chapter XXII, R. 7.-No second application on same facts - Where an application has been rejected, it shall not be competent for the applicant to make a second application on the same facts." Apart from the above rule, filing of successive writ petitions on the same facts, apart from being abuse of process of Court, is against public policy. In the case of Sarguja Transport Service v. State Transport Appellate Tribunal, AIR 1987 SC 88 , the Supreme Court has laid down that even if a writ petition has been withdrawn without permission to file fresh writ petition, the second writ petition will not be maintainable. For holding so the principles underlying Rule 1 of Order XXIII of the Code of Civil Procedure, were applied. Relevant portion of the judgment of Supreme Court is reproduced below : "The point for consideration is whether a petitioner after withdrawing a writ petition filed by him in the High Court under Article 226 of the Constitution of India without the permission to institute a fresh petitioner can file a fresh writ petition in the High Court under that Article. On this point the decision in Daryao's case (supra) is of no assistance. But we are of the view that the principle underlying Rule 1 of Order XXIII of the Code should be extended in the interests of administration of justice to cases of withdrawal of writ petition also, not on the ground of res judicata but on the ground of public policy as explained above. It would also discourage the litigant from indulging in bench hunting tactics. In any event there is no justifiable reason in such a case to permit a petitioner to invoke the extra-ordinary jurisdiction of the High Court under Article 226 of the Constitution once again." 5. That apart, the judgment given in the earlier writ petition also operates as res judicata against the petitioner and it is not open to him to reagite the same matter by filing a second writ petition. Supreme Court in the case of Forward Construction Co. v. Prabhat Mandal (Regd), AIR 1986 SC 391 , has laid down that the judgment dismissing an earlier writ petition will operate as res judicata, even if a ground which was raised in subsequent writ petition was not taken in the earlier writ petition, as "an adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had it decided as incidental to or essentially connected with the subject-matter of the litigation and every matter coming within the legitimate purview of the original action both in respect of the matters of claim or defence." In view of what has been mentioned above the petitioner is not entitled to any relief. 6. Learned counsel for petitioner has, however, in the end, argued that in view of the provisions contained in the Statute 5.2 of Banaras Hindu University temporary appointment to a post other than teaching post is to be made by the Vice-Chancellor in consultation with the Head of Department. On this basis, it has been submitted that in the case of the petitioner the Head of the Department has already made recommendation for his temporary appointment and, therefore, direction can be issued to the Vice Chancellor, to appoint him under the above Statute. We are afraid, we cannot agree with the learned counsel. On this basis, it has been submitted that in the case of the petitioner the Head of the Department has already made recommendation for his temporary appointment and, therefore, direction can be issued to the Vice Chancellor, to appoint him under the above Statute. We are afraid, we cannot agree with the learned counsel. In view of the decision of earlier writ petition it is not possible to issue any direction to the respondents for appointment of the petitioner on temporary basis. It may, however, be noted that in the present writ petition the petitioner has made additional prayer for direction to the respondents to decide his representation dated 25-6-1991. In case such a representation has been made by the petitioner, it is liable to be decided by the respondents expeditiously, in view of the fact that the petitioner has worked under Indian Council of Medical Research Project of the University from 1987 to 1991 and is fully qualified, apart from being experienced person for the job. In case there is vacancy the petitioner's application may be considered in accordance with law- with sympathy it deserves and his representation, made in connection therewith, may also be decided expeditiously. 7. With the aforesaid observations the writ petition is dismissed.