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2009 DIGILAW 1604 (ALL)

HAWALDAR SINGH v. STATE OF U P

2009-04-21

C.K.PRASAD, DILIP GUPTA

body2009
( 1 ) WRIT petitioner-appellant, aggrieved by the order dated 30. 3. 2009 passed by the learned Single Judge in Writ Petition No. 52184 of 2008 dismissing the writ petition, has preferred this appeal under Rule 5 Chapter VIII of the High Court Rules. ( 2 ) SHORN of unnecessary details, facts giving rise to the present appeal are that the writ petitioner-appellant (hereinafter referred to as the petitioner) was initially appointed in the year 1994 on the post of Assistant Development Officer Grade-I and was posted at Pilot Development Project at Ajitmal in district Etawa. ( 3 ) LATER on, by order dated 5. 6. 2002, he was sent on deputation to State Urban Development Agency and on deputation he was appointed to the post of Assistant Project Officer and posted at District Urban Development Agency, Jaunpur. By order dated 13. 8. 2007, the Director, State Urban Development Agency repatriated him to his parent department. Against the aforesaid order, the petitioner filed Writ Petition No. 4883 (S/s) of 2007 before the Lucknow Bench of this Court. The Lucknow Bench of this Court, by order dated 16. 8. 2007 directed the matter to be listed in the next month and while doing so observed that it shall be open for the petitioner to make representation with regard to his repatriation to the Director, who will consider and dispose of the same in the mean time. ( 4 ) IN the light of the aforesaid order, the petitioner made representation dated 21. 8. 2007. However, before any decision could be taken, another representation was filed by the petitioners wife on 7. 9. 2007 and on the said representation, the petitioners period of deputation was extended for further period of one year by the State Government. ( 5 ) AFTER the aforesaid period came to an end, by order dated 18th of September, 2008, he was repatriated to the parent department and relieved from charge in the afternoon of the said date. Aggrieved by the aforesaid order, the petitioner had preferred a writ application which has given rise to the impugned order. It is not in dispute that the extended period of deputation has come to an end. ( 6 ) IT is relevant here to state that while repatriating the petitioner to the parent department by the impugned order dated 18. 9. It is not in dispute that the extended period of deputation has come to an end. ( 6 ) IT is relevant here to state that while repatriating the petitioner to the parent department by the impugned order dated 18. 9. 2008, various irregularities said to have been committed by the petitioner have been mentioned. ( 7 ) IT was contended before the learned Single Judge that he was repatriated to initiate departmental inquiry against him and it was not possible to be done by the parent department when the petitioner was on deputation. It is an admitted position that till date departmental inquiry has not been initiated either by the borrowing department or the parent department. ( 8 ) THE learned Single Judge dismissed the writ application inter alia observing that the petitioner does not have a right to continue on deputation after the period of deputation has come to an end. It was also observed that even if a departmental inquiry is initiated, it cannot be a ground to direct continuance of the petitioner on deputation after the term has expired. Dr. R. G. Padia appearing on behalf petitioner submits that as the misconduct alleged is in relation to the conduct of the petitioner when he was working in the borrowing department, the parent department has no right to hold inquiry. He submits that as so long, inquiry is not held, action of repatriating the petitioner to the parent department is illegal. In support of the submission, reliance has been placed on a Constitution Bench Judgement of the Supreme Court in the case of K. H. Phadnis vs. State of Maharashtra, AIR 1971 Supreme Court 998 and our attention has been drawn to paragraphs 16 and 17 of the judgment, which read as follows: "16. It is true that the post which the appellant held was a temporary one, but the post continued for several years. The indications were that the post was practically of a quasi-permanent character. The appellant was reverted neither because the temporary post was abolished nor because he was found unsuitable to continue. The parent department of the appellant did not want him back. 17. The order of reversion simpliciter will not amount to a reduction in rank or a punishment. The indications were that the post was practically of a quasi-permanent character. The appellant was reverted neither because the temporary post was abolished nor because he was found unsuitable to continue. The parent department of the appellant did not want him back. 17. The order of reversion simpliciter will not amount to a reduction in rank or a punishment. A Government servant holding a temporary post and having lien on his substantive post may be sent back to the substantive post in ordinary routine administration or because of exigencies of service. A person holding a temporary post may draw a salary higher than that of his substantive post and when he is reverted to his parent department the loss of salary cannot be said to have any penal consequence. Therefore, though the Government has right to revert a Government servant from the temporary post to a substantive post, the matter has to be viewed as one of substance and all relevant factors are to be considered in ascertaining whether the order is a genuine one of "accident of service" in which a person sent from the substantive post to a temporary post has to go back to the parent post without an aspersion against his character or integrity or whether the order amounts to a reduction in rank by way of punishment. Reversion by itself will not be a stigma. On the other hand, if there is evidence that the order of reversion is not "a pure accident of service" but an order in the nature of punishment, Article 311 will be attracted. " ( 9 ) ANOTHER decision on which reliance is placed is the decision of the Supreme Court in the case of State of M. P. vs. Ashok Deshmukh, AIR 1988 Supreme Court 1240 and our attention has been drawn to paragraph 8 of the judgment which reads as follows: "8. In the above case this Court came to the conclusion that the impugned order of repatriation was in fact in the nature of punishment and therefore this Court quashed it. " ( 10 ) WE do not find any substance in the submissions of Dr. Padia and the decisions relied on have no bearing at all in the facts and circumstances of the case. The petitioner was on deputation and the period of deputation has come to an end. " ( 10 ) WE do not find any substance in the submissions of Dr. Padia and the decisions relied on have no bearing at all in the facts and circumstances of the case. The petitioner was on deputation and the period of deputation has come to an end. Therefore, the petitioner has been repatriated to the parent department. Who shall be the authority to conduct inquiry against the petitioner, shall be a question when such an inquiry is directed. In the case of K. H. Phadnis (supra), the question was as to whether the order of repatriation amounted to reduction in rank and if that be so whether it infringes Article 311 of the Constitution of India. In the said case, the order of repatriation was challenged on the ground that it is in the nature of punishment which results in reduction in rank and in the background thereof, the Supreme Court observed that such a repatriation is not permissible. ( 11 ) IN the present case, it is not the contention of the petitioner that the repatriation has resulted in reduction in rank. Similarly, in the case of Ashok Deshmukh (supra) the Supreme Court observed that if the repatriation is in the nature of punishment, that can be done only after following the principle enshrined in Article 311 of the Constitution of India. We are of the opinion that the aforesaid two decisions were rendered entirely in the context of different facts and it nowhere holds as a proposition of law that a simple order of repatriation can be passed after holding the inquiry. ( 12 ) DR. Padia then submits that when serious charges were leveled against the petitioner without concluding the same, the petitioner ought not have been repatriated. We do not find any substance in the submission of Dr. Padia also. As observed earlier, the petitioners period of deputation has come to an end and it is well settled that a deputationist has no right to continue on deputation post. Hence the borrowing department did not err in repatriating the petitioner. ( 13 ) DR. Padia then submits that the order of repatriation casts stigma on him and this also vitiates the impugned order. We do not have the slightest hesitation in rejecting this submission of Dr. Padia also. Hence the borrowing department did not err in repatriating the petitioner. ( 13 ) DR. Padia then submits that the order of repatriation casts stigma on him and this also vitiates the impugned order. We do not have the slightest hesitation in rejecting this submission of Dr. Padia also. As observed earlier, the petitioners period of deputation has come to an end and the borrowing department deciding to repatriate the petitioner to the parent department finding some irregularities in his conduct itself shall not vitiate the impugned order. ( 14 ) TO put the record straight, Mr. Sujeet Kumar appearing on behalf of respondent nos. 2 to 4 contends that this writ petition being the second writ petition is not maintainable. He points out the petitioner earlier approached the Lucknow Bench of this Court challenging the earlier order of repatriation dated 13. 8. 2007 and during the pendency of the said writ application, he has preferred the present writ petition for quashing the order dated 18. 9. 2008. He submits that the second writ petition on the same cause of action is not permissible. Reliance has been placed on decision of this Court in the case of L. S. Tripathi vs. Banaras Hindu University, [ (1993) 1 UPLBEC 448] and our attention has been drawn to paragraph 4 of the judgment which reads as follows: "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. " ( 15 ) 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. " ( 15 ) 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 Daryaos 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. " ( 16 ) HE points out that the present writ petition was filed on 26. 9. 2008 and after the interim order was obtained, the petitioner has filed application for withdrawal of the writ petition filed before the Lucknow Bench of this Court on 30th of September, 2008. It is an admitted position that till date the said writ application is pending before the Lucknow Bench. Mr. Kumar further emphasizes that in fact, if he was aggrieved by the later order of repatriation which he has challenged in the present writ petition, it was open for him to file an application for amendment of the reliefs in the writ petition filed before the Lucknow Bench and as such the writ petition deserves to be dismissed on this ground alone. Reliance has been place on a decision of the Supreme Court in the case of State of U. P. and another v. Labh Chand, [ (1993) 2 UPLBEC 1219] in which the Supreme Court has observed as follows: "20. When a Judge of a single Judge Bench of a High Court is required to entertain a second Writ Petition of a person on a matter, he cannot, as a matter of course, entertain such petition, if an earlier Writ Petition of the same person on the same matter had been dismissed already by another single Judge Bench or a Division Bench of the same High Court, even if such dismissal was on the ground of laches as on the ground of non-availing of alternate remedy. Second Writ Petition cannot be, so entertained not because the learned single Judge has no jurisdiction to entertain the same, but because entertaining of such a second Writ Petition would render the order of the same Court dismissing the earlier Writ petition redundant and nugatory, although not reviewed by it in exercise of the recognized power. Besides, if a learned single Judge could entertain a second Writ Petition of a person respecting a matter on which his first Writ Petition was dismissed in limine by another learned single Judge or a Division Bench of the same Court, it would encourage an un-successful Writ Petitioner to go on filing Writ Petition after Writ Petition in the same matter in the same High Court, and have it brought up for consideration before one Judge after another. Such a thing, if is allowed to happen, it could result in giving full scope and encouragement to an unscrupulous litigant to abuse the process of the High Court exercising its writ jurisdiction under Article 226 of the Constitution in that any order of any Bench of such Court refusing to entertain a Writ Petition could be ignored by him with impunity and relief sought in the same matter by filing a fresh Writ Petition. This would only lead to introduction of disorder, confusion and chaos relating to exercise of writ jurisdiction by Judges of the High Court for there could be no finality for an order of the Court refusing to entertain a Writ Petition. This would only lead to introduction of disorder, confusion and chaos relating to exercise of writ jurisdiction by Judges of the High Court for there could be no finality for an order of the Court refusing to entertain a Writ Petition. It is why, the Rule of judicial practice and procedure that a second Writ Petition shall not be entertained by the High Court on the subject-matter respecting which the first Writ Petition of the same person was dismissed by the same Court even if the Order of such dismissal was in limine, be it on the ground of laches or on the ground of non-exhaustion of alternative remedy, has come to be accepted and followed as salutary Rule in exercise of Writ jurisdiction of Courts. " ( 17 ) IN answer thereto, Dr. Padia submits that in the present writ petition, the petitioner has challenged the order dated 18th of September, 2008 which gave him a new cause of action and nothing prevented from approaching this Court. ( 18 ) HAVING appreciated the rival submission we are of the opinion that technically the petitioner may be right that order dated 18th of September, 2008 may give him a fresh cause of action but in the face of the pendency of the writ petition before the Lucknow Bench, his conduct in approaching the Court cannot be said to be fair. When a writ petition was pending before the Lucknow Bench, he ought to have filed an application for amendment of the reliefs seeking quashing of the order which he has to challenge in the present writ application. This is an additional ground on which we are not inclined to interfere with the impugned order of repatriation and the order of the learned Single Judge. ( 19 ) WE do not find any merit in the appeal and it is dismissed with cost of Rs. 1100/- to be paid by the petitioner to respondent no. 2. .