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2003 DIGILAW 176 (ALL)

RAHAT AZIM v. JOINT DIRECTOR OF EDUCATION AND ORS.

2003-01-28

ASHOK BHUSHAN, S.P.SRIVASTAVA

body2003
S. P. SRIVASTAVA, A. C. J. ( 1 ) HEARD the learned counsel for the appellant as well as the learned counsel representing the contesting respondents. ( 2 ) PERUSED the record. ( 3 ) THE present appellant was a co-petitioner in C. M. Writ Petition No. 50544 of 2002. The aforesaid writ petition was directed against an order dated 7. 11. 2002, passed by the Joint director of Education. The Writ Petition No. 50544 of 2002 was finally heard and disposed of vide the order of this Court dated 26th November, 2002, whereby the order dated 7. 11. 2002 was quashed with certain directions. Pursuant to the directions, the controversy was to be decided by the concerned committee after hearing both the parties within a period of two months from the date a certified copy of the final order passed by this Court was presented before the concerned committee. ( 4 ) INSPITE of the fact that the order dated 7. 11. 2002, had been quashed, another writ petition claiming quashing of the said order, being Writ Petition No. 1290 of 2003, was filed by the committee of Management of Mukkarram Inter College, Pahasu, district Bulandshahr, through its manager Shafiullah Khan, in which the present appellant was impleaded as respondent No. 3. The appellant-Committee of Management, it may be noticed, was arrayed as petitioner No. 1 in the Writ Petition No. 50544 of 2002, but was shown to be represented by its manager. Dr. Rahat azim, and not by Saffi Ullah Khan. Saffi Ullah Khan was impleaded as respondent No. 4 in Writ petition No. 50544 of 2002. ( 5 ) THE fact remains that both Dr. Rahat Azim as well as Saffi Ullah Khan were aware of the Writ petition No. 50544 of 2002 and its final disposal by an order of this Court, as indicated herelnabove. ( 6 ) THE second writ petition, being Writ Petition No. 1290 of 2003, is still pending. During the pendency of the writ petition, an application seeking interim relief was filed on which the learned single Judge, vide the order impugned in the present appeal, had issued an interim direction providing that the District Inspector of Schools, Bulandshahr, shall perform the functions of the Management of the Committee of Management of Mukkarram Inter College, pahasu, district Bulandshahr, as the Joint Director of Education vide the order dated 7. 11. 11. 2002, had not accepted the election of the Committee of Management of Dr. Rahat Azim as well as by the petitioner-Committee of Management, A perusal of the aforesaid order indicates that it proceeds on the premise that the order dated 7. 11. 2002, as Indicated hereinabove, was operating. ( 7 ) LEARNED counsel for the appellant has strenuously urged that in view of the quashing of the order dated 7. 11. 2002, there could be no justification for issuance of an ad-ihterlm injunction on the assumption that the aforesaid order is still in force. It has further been urged that taking into consideration the nature of the reliefs claimed in both the writ petitions it is obvious that the second writ petition for the same reliefs, which had been claimed in the earlier writ petition, was not maintainable. ( 8 ) RULE 7 of Chapter XXVII of the Rules of the Court clearly provides that no second writ petition can be maintained on the same facts. Even otherwise, once a question had been decided finally in presence of both the parties, the second writ petition, agitating the same controversy, by one of the parties, who was a party in the first writ petition, was not permissible. An aggrieved party may challenge the correctness of the order passed by the learned single Judge in an intra-court appeal as provided under the Rules of the Court but not by filing a fresh writ petition. ( 9 ) TAKING into consideration the facts and circumstances as brought on record, including those noticed hereinabove, sufficient ground has been made out for interference, ( 10 ) CONSIDERING the totality of the circumstances, this special appeal succeeds and the impugned order dated 14. 1. 2003 is set aside and the writ petition, being Writ Petition No. 1290 of 2003, is dismissed. ( 11 ) THERE shall be no orders as to costs. .