Prasanna Deka v. Executive Engineer, P. W. D. (Roads) & 2 Ors.
2016-10-24
N.CHAUDHURY
body2016
DigiLaw.ai
1. Heard Mr. M. A. Sheikh, learned counsel for the petitioner. 2. The present writ petitioner had approached this Court earlier challenging the inaction on the part of the Government to regularize his services. The writ petition was numbered as WP(C) No. 6774/2015 and the writ petitioner was permitted to withdraw the writ petition on 16.09.2016. The order has been annexed to this writ petition as Annexure-11 which does not show that the petitioner was given any liberty to approach this Court afresh under Article 226 of the Constitution of India. 3. Law in this regard is settled by the Hon’ble Supreme Court in the case of Sarguja Transport Service v. State Transport Appellate Tribunal, Gwaliior and others, reported in AIR 1987 SC 88 . Paragraph 9 of the judgment is quoted herein for ready reference :- “9. 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 petition can file a fresh writ petition in the High Court under that Article. On this point the decision in Daryao's 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 extraordinary jurisdiction of the High Court under Article 226 of the Constitution once again. While the withdrawal of a writ petition filed in a High Court without permission to file a fresh writ petition may not bar other remedies like a suit or a petition under Article 32 of the Constitution of India since such withdraw- al does not amount to res judicata, the remedy under Article 226 of the Constitution of India should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the writ petition when he withdraws it without such permission.
In the instant case the High Court was fight in holding that a fresh writ petition was not maintainable before it in respect of the same subject-matter since the earlier writ petition had been withdrawn without permission to file a fresh petition. We, however. make it clear that whatever we have stated in this order may not be considered as being applicable to a writ petition involving the personal liberty of an individual in which the petitioner prays for the issue of a writ in the nature of habeas corpus or seeks to enforce the fundamental fight guaranteed under Article 21 of the Constitution since such a case stands on a different footing altogether. We however leave this question open.” 4. In view of what has been stated above, the present writ petition under Article 226 of the Constitution of India is barred in view of the fact that no leave was granted for approaching this Court for the second time at the time of withdrawal of the earlier writ petition. 5. The writ petition stands dismissed.