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2013 DIGILAW 495 (PAT)

Ram Pravesh Kumar Das v. State Of Bihar

2013-04-15

MIHIR KUMAR JHA

body2013
ORDER Heard counsel for the parties. 2. The prayer of the petitioner in this writ application reads as follows:- "That this writ petition is being filed with a prayer to direct the Respondent no. 2 to reconsider the fresh representation dt. 7.12.2011 filed by the petitioner to reconsider the mutual transfer of the petitioner with Resp. no. 7 from Saran Division to Patna Division as the reason assigned by the Resp. no.2 in his order dt. 18.5.09 that according to the Board's Circular no. 193(3) dated 4.3.06 the petitioner belongs to Schedule Caste category and the Resp. no. 7 belongs to General Category shall not be applicable in the case of the petitioner because the petitioner has already made his representation for mutual transfer on 25.8.1998 and the Resp. nos. 3 to 6 have also already recommended and consented for mutual transfer in the year 1998-1999 itself and the matter was kept pending by the Resp. no. 2." 3. Learned counsel for the petitioner has submitted that the representation of the petitioner dated 07.12.2011 filed by him before respondent no. 2 is pending and therefore, this Court should direct him to consider the grievance of mutual transfer of the petitioner vis a vis respondent no. 7 from Saran Division to Patna Division. 4. Learned counsel for the State on the other hand has drawn attention of this Court that the petitioner’s earlier writ application for the same relief had been dismissed as withdrawn without giving him any opportunity to move this Court again for the same cause of action and as such this writ application is not maintainable. 5. In the considered opinion of this Court, the preliminary objection raised by the learned counsel for the State has to be upheld. Admittedly, the petitioner has filed his writ application being C.W.J.C No. 7627 of 2010, wherein, he had prayed for the following relief:- "That this writ petition is directed against the order dated 18.05.2009 passed by the respondent no. 2 as contained in Annexure-'6' by which he has illegally, arbitrarily and malafidely rejected the representation dated 25.08.1998 made by the petitioner to transfer with respondent no. 7 from Saran Division to Patna Division on the mutual request of Respondent no. 7 as also recommended by resp. nos.3 to 6 in the year 1998, 1999 and 2004 on the ground of Board's Circular no. 7 from Saran Division to Patna Division on the mutual request of Respondent no. 7 as also recommended by resp. nos.3 to 6 in the year 1998, 1999 and 2004 on the ground of Board's Circular no. 193(3) dt 4.3.06 that the petitioner belongs to schedule caste category and the resp. no. 7 belongs to General Category." 6. The aforesaid writ application on 27.09.2011 was dismissed as withdrawn. The order of this Court dated 27.09.2011 reads as follows:- “After some argument leave is sought to withdraw the application to pursue departmental remedies. The Court makes no observation with regard to the same. The application is dismissed as withdrawn.” 7. It would thus be evident that the petitioner for exactly the same relief has moved this Court again which was declined to him in C.W.J.C NO. 7627 of 2010. The submission of learned counsel for the petitioner that the petitioner had filed a representation on 07.12.2011 before respondent no. 2 and as such he was seeking a direction in this writ application for reconsideration of his fresh representation will also make more difference in law. The Apex Court in the case of Sarguja Transport Service vs State Transport Appellate Tribunal & Ors, reported in 1987(1) SCC 5 has held that when the petitioner is allowed to withdraw the writ petition but no permission is granted by the Court to file fresh writ petition for the same cause of action, the fresh writ petition filed by the petitioner is not maintainable. It was also held therein, by the Apex Court that the person who withdraws a writ petition cannot be allowed to file a fresh writ petition for the same cause of action because it would amount to abuse of the process of the Court as also against public policy. Infact it is a matter of common experience that after a writ petition is heard for some time and if the petitioner or his counsel finds that the Court is not likely to grant relief, the prayer is invariably made for withdrawal of the writ petition in order to avoid the order of dismissal of the petitioner. 8. Infact it is a matter of common experience that after a writ petition is heard for some time and if the petitioner or his counsel finds that the Court is not likely to grant relief, the prayer is invariably made for withdrawal of the writ petition in order to avoid the order of dismissal of the petitioner. 8. In the present case also after the earlier case of the petitioner being C.W.J.C. No. 762 of 2010 was heard the learned counsel for the petitioner had made a prayer for withdrawing the writ petition on a plea that the petitioner wanted to move the departmental authority. This Court however in its order dated 27.9.2011, as quoted above did not express any opinion on such prayer and had simply permitted the petitioner to withdraw the writ application without giving leave to move this Court for the same cause of action. 9. Thus it would be found that the petitioner in fact had earlier also unsuccessfully assailed the same order dated 18.05.2009 passed by the Secretary to the Board of Revenue refusing mutual transfer of the petitioner. The same order infact has been again questioned in this writ application and therefore, not only when the parties are same but the relief is also identical and in fact the cause of action is one and the same, mere filing of one more representation by the petitioner after withdrawal of his earlier writ petition would make no difference. 10. In view of the above, the preliminary objections of the learned counsel for the State must be upheld. 11. That being so, this writ application is wholly misconceived and is, accordingly, dismissed as not maintainable.