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2016 DIGILAW 3632 (ALL)

Mohd. Nisar v. Union of India

2016-11-04

MAHESH CHANDRA TRIPATHI, V.K.SHUKLA

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JUDGMENT : Mohd. Nisar is before this Court assailing the validity of the order dated 24.8.2016 passed by learned Single Judge of this Court in Writ A No.655 of 2011 (Mohd. Nisar vs. Union of India through Secretary, Ministry of Finance and ors) wherein he has proceeded to dismiss the writ petition with following observations:- "It is to be noted that the petitioner had earlier filed a writ petition being Writ Petition No. 6250 of 2010 which writ petition was consigned to record by order dated 5.2.2010 whereby it was held that petitioner's prayer for directing the Bank to engage the petitioner was not allowed. Now, the petitioner has challenged the appointment of respondent no. 6 in the Bank. It is to be noted that the claim of the petitioner to continue with the Bank has already been disallowed by this Court, therefore, the petitioner has no locus to challenge any appointment made by the Bank. That apart the petitioner can also not be granted the prayer of directing the Bank to continue with the service of the petitioner as the same has already been rejected by the earlier order of this Court in Writ Petition No. 6250 of 2010 dated 5.2.2010. Under the circumstances, no relief can be granted to the petitioner." 2. Record in question reflects that earlier the petitioner-appellant had preferred Writ A No.6250 of 2010 (Mohammad Nisar v s. Reg. M.D. Union Bank of India & ors) for a direction in the nature of mandamus directing the respondents to take the work from the petitioner as Water Boy and pay the salary. Finally the said writ petition was disposed of on 5.2.2010 with following observations:- "Learned counsel for the petitioner contends that the petitioner has been working as a Daily Wager for 11 years and has been serving the interest of the Bank, dispassionately and to the utmost sense of his devotion. The petitioner wants that he should be engaged by the Bank. This engagement cannot be granted in the exercise of the jurisdiction under Article 226 of the Constitution of India. The bank can sympathetically consider for availing his services whatever worth it may be. Consigned to records." 3. The petitioner wants that he should be engaged by the Bank. This engagement cannot be granted in the exercise of the jurisdiction under Article 226 of the Constitution of India. The bank can sympathetically consider for availing his services whatever worth it may be. Consigned to records." 3. Again the petitioner-appellant had preferred Writ A No.655 of 2011 with following prayers:- "i. issue a writ, order or direction in the nature of certiorari calling for the records of the case and quashing the impugned appointment letter of respondent No.6 dated 12.11.2009 (Annexure No.8 to the writ petition). ii. issue a writ, order or direction in the nature of mandamus commanding the respondent bank not to stop the petitioner from working on the post of Sweeper in respondent Bank. iii. issue a writ, order or direction in the nature of mandamus directing the respondents to consider a fresh appointment of petitioner on substantive basis on account of the working from last 10 years having qualification and also registered under the Employment Exchange in the year 1995 against the post to which respondent No.6 illegally appointed within a period as fixed by this Hon'ble Court in accordance with law." 4. In this backdrop, we have proceeded to examine the record in question and find that while filing the Writ Petition No.6250 of 2010, the petitioner-appellant had annexed the representation dated 5.12.2009 (Annexure No.5 to the writ petition) wherein he had clearly proceeded to mention that in his place, one Pankaj Kumar Singh had been appointed but he had not impleaded him as party in the said writ petition. Finally the said writ petition was disposed of on 5.2.2010 with aforementioned observations. Thereafter the petitioner-appellant had again filed the Writ Petition No.655 of 2011 and challenged the appointment of Pankaj Kumar Singh-6th respondent dated 12.11.2009 and had also prayed for a direction to the respondent Bank not to stop the petitioner from working on the post of Sweeper and further regularize his services. 5. So far as 2nd and 3rd prayers in the aforementioned Writ A No.655 of 2011 are concerned, the same has already been turned down on 5.2.2010 in the earlier round of litigation in Writ Petition No.6250 of 2010 and as such, the 2nd and 3rd payers were not available to the petitioner-appellant while filing the subsequent Writ A No.655 of 2011. Once the petitioner-appellant was aware that the 6th respondent i.e. Pankaj Kumar Singh was already engaged/appointed by the bank in the year 2009 and even in the representation dated 5.12.2009, he had categorically mentioned his name but as per his own wisdom at no point of time he has impleaded him as party in the writ petition nor challenged his appointment letter in the first Writ A No.6250 of 2010. Thereafter he had challenged his appointment in the 2nd Writ Petition No.655 of 2011. 6. In the aforesaid circumstances, we are of the considered opinion that in such situation the appointment of 6th respondent could not be challenged in the 2nd Writ No.655 of 2011. No doubt various infirmities and illegalities regarding his engagement in the bank had been urged before this Court but at this stage we cannot permit the petitioner-appellant to re-agitate the closed chapter, which was very much available to the petitioner-appellant while filing Writ Petition No.6250 of 2010. Therefore, at this stage we are not inclined to permit the petitioner-appellant to challenge the appointment of 6th respondent dated 12.11.2009. We do not find any infirmity or illegality in the order of learned Single Judge. 7. The Special Appeal is dismissed.