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Gauhati High Court · body

2015 DIGILAW 172 (GAU)

Tarun Hazarika v. State of Assam and Ors.

2015-02-12

T.VAIPHEI

body2015
1. The sole question which falls for consideration in this writ petition is, whether this writ petition is barred by the principle of res judicata? After hearing Mr. R. Sarma, the learned counsel for the petitioner, Mr. M.K. Mishra, the learned standing counsel for Education (Higher) Department, Assam, and Mr. A.R. Sikdar, the learned counsel for the private respondent, I am of the view that this writ petition is barred by the principle of res judicata and is, therefore, liable to be dismissed. 2. Before proceeding further, it may be apposite to briefly refer to so much of the facts as are necessary for disposal of the writ petition. It is the case of the petitioner that he was appointed as Library Bearer on 28-9-1995 on ad hoc basis, which he joined on the same day, and was paid ?150/- per month w.e.f. 28-9-1995 to 30-9-2010 and ?800/- w.e.f. 1-10-2010.vHis representation for regularization of his service was never accepted. On the contrary, the college authority, without inviting for interview, issued the notification dated 8-2-2007 for interviewing two Grade IV regular posts in which one post was reserved for ST(Plain) while the other posts was reserved for general category candidate. The petitioner belongs to general category. Aggrieved by this, he approached this Court in WP(C) No. 1355 of 2007 for appointment against the regular vacancy or to allow him to appear in the interview. This Court by the interim order dated 21-3-2007 directed the respondent authorities to allow him to take part in the selection test to be held on 24-3-2007, but the selection test was not held. Subsequently, this Court by the order dated 1-7-2010 dismissed the writ petition and passed the following order: “01-07-10: “None appears for the petitioner. I have heard Smt. N. Baruah, learned counsel, Education Department, as well as Sikdar, learned counsel for respondent No. 3 and 4. In view of the above, the prayer made by the petitioner in this writ petition for appointment of regular basis against the existing regular vacancy is not tenable under the law. This petition is, therefore, found to be without any merit and as such the same is liable to be dismissed. Petition stands dismissed and the interim order passed by this Court stands vacated. No cost. The respondent Governing Body of the College may proceed to complete the process fir appointment in accordance with law.” 3. This petition is, therefore, found to be without any merit and as such the same is liable to be dismissed. Petition stands dismissed and the interim order passed by this Court stands vacated. No cost. The respondent Governing Body of the College may proceed to complete the process fir appointment in accordance with law.” 3. Reading and re-reading the order extracted above unmistakably reveals that the dismissal of the writ petition of the petitioner was not exactly a dismissal in default of prosecution: it was a dismissal of the writ petition on merit as well. There is no dispute, nor can there be any dispute, that the dismissal was never challenged by the petitioner in appeal nor was an attempt made by him for restoration of the writ petition by projecting it to be dismissal in default of prosecution. It is well-established that the principle of res judicata is applicable to writ petitions.? See Direct Recruit Class II Engineering Officers Assn. v. State of Maharashtra, (1990) 2 SCC 715 . The second writ petition on the same cause of action is not maintainable when it was open to the petitioner to claim the relief in the first writ petition which has been claimed in the second writ petition. After all, the doctrine of res judicata is a universal doctrine laying down the finality of litigation between the parties. Even assuming that the writ petition was dismissed in default of prosecution and the second writ petition is not barred by the doctrine of res judicata also, but on the principle of Order IX, Rule 9, CPC, the petitioner is precluded from bringing this fresh writ petition in respect of the same cause of action. 4. For the afore-mentioned reasons, this writ petition is not maintainable being barred by the principle of res judicata, and is hereby dismissed. The parties are, however, directed to bear their respective costs.