Research › Search › Judgment

Uttarakhand High Court · body

2016 DIGILAW 125 (UTT)

Pushpa Budhani v. Suresh Chandra

2016-03-16

K.M.JOSEPH, V.K.BIST

body2016
JUDGMENT : K.M. JOSEPH, J. These two appeals being connected, they are being disposed of by this common judgment. 2. Special Appeal No. 237 of 2015 is filed by respondent No. 8 in the writ petition; whereas, Special Appeal No. 408 of 2015 is filed by respondent No. 5 in the writ petition. The appeals are lodged against the judgment rendered in Writ Petition (S/S) No. 1142 of 2012. The prayers sought in the writ petition were as follows: “(i) Issue a writ, order or direction in the nature of certiorari quashing the Order dated 28.02.2011 (Annexure No. 8), passed by the respondent no. 4, rejecting petitioner’s representation. (ii) Issue a writ, order or direction in the nature of mandamus directing the respondent no. 4 to amend the seniority list.” 3. The learned Single Judge allowed the writ petition and the impugned order dated 28.02.2011 was quashed. The writ petitioner was declared senior to the appellant in Special Appeal No. 237 of 2015 and the other respondent, who, it appears, had retired on superannuation and who has not pursued the matter further. It was made clear that the writ petitioner being declared senior, the Management was to handover the charge of the Principal of the College to the senior-most teacher, if he is otherwise eligible. 4. We have heard Mr. Manoj Tiwari, learned Senior Counsel appearing on behalf of the appellant in Special Appeal No. 237 of 2015; Mr. Sudhir Kumar, learned counsel appearing on behalf of the appellant in Special Appeal No. 408 of 2015; Mr. Davesh Bishnoi, learned counsel appearing on behalf of the writ petitioner; and Mr. H.M. Bhatia, learned Brief Holder appearing for the State. 5. The contention, which is raised and pressed before us by the appellants, is that the present writ petition, in which the impugned judgment was pronounced, was the third in a series of writ petitions filed by the writ petitioner. Originally, the writ petitioner had approached this Court feeling aggrieved by the refusal to give him charge as Principal though he was senior to the person to whom the charge was given. Writ petitioner filed Writ Petition No. 346 of 2006 (S/B) in this regard. This Court relegated the writ petitioner to pursue his remedy by filing a representation. The said representation was filed by the writ petitioner. Writ petitioner filed Writ Petition No. 346 of 2006 (S/B) in this regard. This Court relegated the writ petitioner to pursue his remedy by filing a representation. The said representation was filed by the writ petitioner. On the said representation, order dated 28.02.2011 was passed rejecting the claim of the writ petitioner finding that the appellant in Special Appeal No. 237 of 2015 was senior to him. Admittedly, the writ petitioner filed the second writ petition, namely, Writ Petition No. 984 of 2012 (S/S). The said writ petition was dismissed by the following judgment: “The crux of the grievance of the petitioner, as culled out from the writ petition and from the relief claimed is, that the petitioner is aggrieved by the fact that he has not been allowed to function as the Acting Principal on officiating basis in the Institution concerned. The petitioner contends that he is the senior most teacher and should have been allowed to function as the Principal from the year 2006 onwards but since then one or two persons have been appointed Principal on officiating basis, who have functioned and retired and, at present one Mr. S.S. Yadav is functioning as the Principal on officiating basis since 2010. In this regard, the petitioner has made a representation, which fell on deaf ears. The petitioner, thereafter, filed a writ petition, which was dismissed on the ground of alternative remedy, directing the petitioner to file an appeal before the District Education Officer. The District Education Officer, by an order dated 28.02.2011, has rejected the contention of the petitioner that he is the senior most and found that Mr. S.S. Yadav was the senior most and was rightly appointed the Principal on officiating basis. This order has attained finality and has not been challenged by the petitioner. Consequently, no relief can be granted to the petitioner nor the petition can be entertained at this belated stage. The writ petition is dismissed.” 6. It is thereafter that the present writ petition was filed seeking the reliefs, which we have already adverted to. 7. In the facts of this case, Mr. Manoj Tiwari, learned Senior Counsel for the appellant in Special Appeal No. 237 of 2015 would complain that the learned Single Judge has erred in allowing the writ petition and granting the reliefs in the teeth of the principle of res judicata / constructive res judicata. Mr. 7. In the facts of this case, Mr. Manoj Tiwari, learned Senior Counsel for the appellant in Special Appeal No. 237 of 2015 would complain that the learned Single Judge has erred in allowing the writ petition and granting the reliefs in the teeth of the principle of res judicata / constructive res judicata. Mr. Sudhir Kumar, learned counsel for the appellant in Special Appeal No. 408 of 2015, besides adopting the contention of Mr. Manoj Tiwari, would in fact submit that the writ petitioner would be fatally confronted with the provision of Order II Rule 2 of the Code of Civil Procedure, inasmuch as, the relief, which was available to him from the same cause of action, was omitted by him and, therefore, he cannot be permitted to re-agitate the matter in the form of the fresh writ petition. Mr. H.M. Bhatia, learned Brief Holder, also would support the appellants and invite our attention to the reliefs sought in the earlier round. He would also submit that, in fact, the order, which is impugned in the last of the writ petitions, was served on the writ petitioner at the time when the second writ petition was prosecuted. 8. Mr. Davesh Bishnoi, learned counsel appearing for the writ petitioner, on the other hand, would submit that there is no adjudication as such as found by the learned Single Judge in the second writ petition and, therefore, there is nothing to bar the filing of the third writ petition, wherein the writ petitioner could challenge the impugned order and the judgment was supported by the learned counsel for the writ petitioner. 9. Principles of res judicata, whether they are embodied in Section 11 of the Code of Civil Procedure or whether they are part of the general principles of res judicata, are principles intended to bring about repose and an end to litigation. It is premised on the principle that no man shall be vexed twice. 9. Principles of res judicata, whether they are embodied in Section 11 of the Code of Civil Procedure or whether they are part of the general principles of res judicata, are principles intended to bring about repose and an end to litigation. It is premised on the principle that no man shall be vexed twice. The Code of Civil Procedure as such is not applicable to proceedings under Article 226 by virtue of the explanation added to Section 141 of the Code of Civil Procedure; but, it is well settled that the writ court can adopt and apply salutary principles, which are embedded in the provisions in the Code of Civil Procedure, and there is no restraint in this regard, except the self-imposed restriction that the principle is applied appropriately to suit the interest of justice in a particular case. 10. In this case, quite clearly, noticing the reliefs sought in the second writ petition and going on the basis that nothing prevented the writ petitioner from challenging order dated 28.02.2011, it is inevitable that the principle embodied in Order II Rule 2 would prevent the writ petitioner from seeking to omit a relief in the earlier round and to revive the litigation in the last writ petition. Such a course is clearly impermissible and will produce grave injustice, which is the basis of the principle of res judicata or the principle, which prohibits piecemeal litigation. All the reliefs, which a party can seek in a writ petition, must be sought in the same. If he wants to continue the litigation again in respect of the same cause of action, he can do it provided he gets leave of the court. No such leave was obtained when the second writ petition was disposed of. The learned Single Judge, who disposed of the writ petition, found that the second writ petition could not be entertained at a belated stage when the impugned order, namely, order dated 28.02.2011, had attained finality. We do not know, on what basis, the finality, which had been attained in the matter, could be unsettled by the writ petitioner by filing another writ petition. The learned Single Judge was in error in overruling the preliminary objection based on the earlier litigation and the result of the earlier litigation and the conduct of the writ petitioner. 11. We do not know, on what basis, the finality, which had been attained in the matter, could be unsettled by the writ petitioner by filing another writ petition. The learned Single Judge was in error in overruling the preliminary objection based on the earlier litigation and the result of the earlier litigation and the conduct of the writ petitioner. 11. Resultantly, we feel that, on this short ground alone, the appeals must be allowed. The appeals are, accordingly, allowed. Even though we notice that there is no appeal by the seventh respondent, since the Management has filed an appeal, the judgment passed by the learned Single Judge must perish and we set aside the judgment passed by the learned Single Judge. The writ petition will stand dismissed. As already noted, we have not expressed any opinion regarding the merit of the matter.