Samsar Ali v. Secretary, Indian Council of Agriculture and Research
2017-05-12
BISWANATH RATH, S.K.MISHRA
body2017
DigiLaw.ai
JUDGMENT : Biswanath Rath, J. 1. This is the fourth round of litigation at the instance of the petitioner after exhausting his first round of litigation vide O.J.C. No.9816/2001 disposed of on contest where the High Court while allowing the writ petition set aside the order passed by the Central Administrative Tribunal, Cuttack in the O.A. No.435/98 and remitting the matter for readjudication of the dispute by the Central Administrative Tribunal itself. In the second round of litigation vide W.P.(C) No.10624/2003, the writ petition got dismissed as against the petitioner by a Division Bench of this Court thereby confirming the judgment of the Central Administrative Tribunal afresh and thereafter in his third attempt through disposal of a Review Petition bearing No.120/2006 by another Division Bench of this Court in which one of us was a Member where the subsequent Division Bench while dismissing the Review Petition for being not maintainable observed that the petitioner had the only option to move higher Forum. Petitioner in his fourth attempt filed the present petition seeking setting aside of the order of the Division Bench in W.P.(C) No.10624/2003 and Review Petition No.120/2006 as well. 2. Short background involved in the case is that the petitioner approached the Administrative Tribunal seeking a direction to appoint him to the post of Driver in the National Research Centers for Women in Agriculture. The matter was taken up vide O.A. No.435 of 1998 and the matter ended with an order of dismissal. As against dismissal of the above O.A. by the Central Administrative Tribunal, Cuttack Bench, the petitioner approached this Court vide O.J.C. No.9816 of 2001 which writ petition was disposed of by order dated 29.4.2002 quashing the order passed by the learned Tribunal in O.A. No.435 of 1998 and remitting the matter back to the Central Administrative Tribunal for fresh disposal in accordance with law with direction for examination of a specific question as to whether the petitioner was employed as a Driver by the Director, National Research Centers for Women in Agriculture or by the Oriental Security Services on the basis of the documents produced by the petitioner?
Considering the rival contentions of the parties therein and taking into consideration the materials available therein, the Central Administrative Tribunal dismissed the original application after holding that the petitioner was never appointed by the Director, National Research Centers for Women in Agriculture rather he was working there being deputed by the Oriental Security Services as a Driver on the request of the aforesaid Institution. 3. Being aggrieved by the aforesaid order passed by the Central Administrative Tribunal involving O.A. No.435 of 1998, the petitioner moved W.P. (C) No.10624 of 2003. After hearing both the parties, the matter got disposed of with an order of dismissal against the petitioner and the order passed therein reads as follows: “Heard learned counsel for the petitioner Shri K.B. Kar and Mr. S.B. Jena, learned counsel for opposite parties 1 to 3. This writ petition has been filed against the judgment and order dated 8.9.2002 passed by the Central Administrative Tribunal, Cuttack Bench, Cuttack in Original Application No.435 of 1998 dismissing the same filed by the petitioner as well as review petition No.14 of 2002 decided on 29.8.2003. The petitioner had approached the Tribunal seeking a direction to appoint him to the post of Driver in National Research Centre for Women in Agriculture. Against the dismissal order of the O.A. No.435 of 1998, earlier also the petitioner had moved this court in O.J.C. No.9816 of 2001 which was disposed of vide order dated 29.4.2002 quashing the order of the Tribunal and remitting the matter to it for fresh disposal in accordance with law inter alia with a direction to examine whether the petitioner was employed as a Driver by the Director, National Research Centre for Women in Agriculture or by the Oriental Security Service on the basis of the documents produced by him. The petitioner has produced the documents in respect of his submissions, which were perused by us. The case of the opposite parties is that the petitioner was not engaged by them. Only on request, the Oriental Security Service, which provides security personnel and driver, provided the petitioner along with other persons and payment were duly made to the Security Service against these persons. The Tribunal dismissed the Original Application again holding that the duty slip is not an authentic document.
Only on request, the Oriental Security Service, which provides security personnel and driver, provided the petitioner along with other persons and payment were duly made to the Security Service against these persons. The Tribunal dismissed the Original Application again holding that the duty slip is not an authentic document. We are also of the view that when the petitioner was deputed by the Oriental Security Service as a Driver on request by the institution-opposite party No.3, naturally while serving, it was obivious on its part to issue duty slip for doing the job but that cannot be termed as engagement by opposite party No.3. No other authentic documents were filed by the petitioner. Learned counsel for the petitioner has taken additional ground before this court that the names were sponsored from the Employment Exchange in which name of the petitioner was also found but the petitioner’s case was not considered due to the reason that he was not possessing matriculation qualification and the minimum required qualification to hold the post of Driver was matriculation. However, learned counsel has no dispute in the selection made to the post of Driver and as such there was no question for making any appointment pursuant to the sponsorship of the names from the Employment Exchange. The opposite parties cannot be directed to hold selection and make appointments. It can also not be said that the petitioner was engaged by the opposite party No.3 as the Tribunal has already given its finding that the petitioner was an employee of Oriental Security Service and he was provided by it to the Institution. In view of the above, we find no merit in this case and as such the writ petition is dismissed.” 4. Being aggrieved by the aforesaid order of the Division Bench involving the writ petition, the petitioner preferred a Review Petition bearing No.120 of 2006 purportedly making an application under Order 47 Rule 1 read with Section 114 of the C.P.C. The Review Petition got dismissed by a Division Bench of this Court after hearing the petitioner and observing that the petitioner had the only option of moving higher forum. The order dated 9.5.2011 passed in Review Petition bearing No.120 of 2006 reads as follows: “Heard learned counsel for the petitioner. This Review Petition is directed against the order dated 16.8.2006 passed by this Court in W.P.(C) No.10624 of 2003.
The order dated 9.5.2011 passed in Review Petition bearing No.120 of 2006 reads as follows: “Heard learned counsel for the petitioner. This Review Petition is directed against the order dated 16.8.2006 passed by this Court in W.P.(C) No.10624 of 2003. On perusal of the grounds taken in the Review Petition and on hearing learned counsel for the Review Petitioner, we find that the petitioner seeks reopening of the entire case for fresh hearing. Once the case has been disposed of, by way of review, it cannot be reopened for fresh hearing on merits. We accordingly, find no justification to interfere with the impugned order in this Review Petition. If the petitioner is aggrieved by the said order he should have challenged the same in higher forum. The RVWPET is accordingly dismissed.” 5. Being aggrieved by the orders passed by the Division Bench involving W.P.(C) No.10624/2003 and Review Petition bearing No.120/2006, the petitioner filed the present writ petition seeking the following relief: “The petitioner, therefore, most respectfully pray, that your Lordship may graciously be pleased to allow this application and pass necessary orders and recall its order dated 16.8.2006 and 9.5.2011 suitably and pass appropriate orders directing the authorities to consider the petitioner against the post of a driver taking in the entire matter the entire afresh and absorb him in the said post in accordance with law and pass such other order which my lordship may deem fit and just.” 6. Advancing his argument Sri P.K. Ray, learned counsel for the petitioner being assisted by Mrs. Mitalee Jesthi, learned counsel for the petitioner submitted that both the orders involving W.P. (C) No.10624 of 2003 as well as Review Petition bearing No.120 of 2006 remaining contrary to the materials available on record become perverse and thus, contended that under the circumstances, this Court has ample power to interfere in both the orders for setting aside the same in exercise of power under Article 226 of the Constitution. Substantiating his submission on the maintainability of the newly constituted writ petition referring to a decision in the case in between S. Nagaraj and others vrs. State of Karnataka and another decided on 26th of August, 1993 as reported in 1993(SC2)-GJX-0612-SC, Sri Ray, learned counsel for the petitioner contended that the case of the petitioner has the full support of this decision and as such claimed that the successive writ petition is maintainable. 7.
State of Karnataka and another decided on 26th of August, 1993 as reported in 1993(SC2)-GJX-0612-SC, Sri Ray, learned counsel for the petitioner contended that the case of the petitioner has the full support of this decision and as such claimed that the successive writ petition is maintainable. 7. Submitting on merit involving the case, taking this Court to several documents appended to the present writ petition, Sri Ray, learned counsel for the petitioner also attempted to establish his submission that the orders passed by the Benches involving the aforesaid writ petition and review petition remaining contrary to the materials available on record and requested for interference of this Court in the order involving the writ petition and the Review Petition and thereby setting aside both the orders dated 16.08.2006 & 9.5.2011 passed in W.P. (C) No.10624 of 2003 and Review Petition bearing No.120 of 2006 respectively. 8. Sri S.B. Jena, learned counsel for the opposite party No.3 on the other hand, while vehemently objecting the submissions made by the learned counsel for petitioner and raising question on the maintainability of the writ petition submitted that for disposal of the W.P. (C) No.10624 of 2003 and Review Petition bearing No.120 of 2006, there is no further scope for the petitioner to agitate the same issue by way of a fresh writ petition and thus, claimed that there is no scope for entertaining the present writ petition and thus, requested for dismissal of the writ petition outright. 9. Considering the rival contentions of the parties, this Court finds, there is no denial to the fact that originally the dispute involved herein mainly relates to the decision of the Central Administrative Tribunal and the subsequent orders of this Court in the disposed of writ petition as well as a review petition in rejecting the claim of the petitioner in the matter of appointment of the petitioner to the post of Driver in the National Research Centers for women in Agriculture. It appears, the Central Administrative Tribunal in the second round of consideration dismissed the claim of the petitioner and the order of the Central Administrative Tribunal being challenged by way of W.P. (C) No.10624 of 2003, the writ petition has been disposed of as against the petitioner by a Division Bench of this Court.
It appears, the Central Administrative Tribunal in the second round of consideration dismissed the claim of the petitioner and the order of the Central Administrative Tribunal being challenged by way of W.P. (C) No.10624 of 2003, the writ petition has been disposed of as against the petitioner by a Division Bench of this Court. The Review Petition bearing No.120 of 2006 as against the order of the Division Bench in W.P.(C) No.10624/2003 at the instance of the petitioner has also been dismissed by a Division Bench of this Court by its order dated 9.5.2011 after observing therein that the petitioner had the only option to approach the higher forum in the event, he was aggrieved by the order in W.P (C) No.10624 of 2003. Taking into the background of the case, this Court finds, the question required here to be considered is that in view of disposal of the writ petition and confirmation of the said order in disposal of a review petition, whether the present writ petition is maintainable in the eye of law or not? The writ petition having been decided in exercise of power under Articles 226 & 227 of the Constitution and thereafter a review petition having been decided in exercise of power under Order 47 Rule 1 read with Section 114 of the C.P.C, the issue involved cannot be permitted to be reopened by way of a fresh writ petition under Articles 226 & 227 of the Constitution and thus, we hold the present writ petition is not maintainable. 10. Looking to the legal position on this aspect particularly on the question of entertain ability of a writ petition after the issue is already dealt with and decided in a writ petition and confirmation of the same in disposal of a review petition, this Court finds: “The issue of filing successive writ petition has been considered by the Hon’ble Supreme Court time and again and held that even if the earlier writ petition has been dismissed as withdrawn, public policy which is reflected in the principle enshrined in Order XXIII Rule 1, C.P.C., mandates that successive writ petition be not entertained for the same relief.
(Vide Sarguja Transport Service v. State Transport Appellate Tribunal, AIR 1987 SC 88 ; Ashok Kumar v. Delhi Development Authority, 1994 (6) SCC 97 and Khacher Singh v. State of U.P. and Ors., 1995 (1) AWC 599 ; AIR 1995 AII 332). 11. Similarly, in State of U.P., and Anr. v. Labh Chand, AIR 1994 SC 754 , the Hon’ble Supreme Court has held as under: “This reason is not concerned with the discretionary power of the Judge or Judges of the High Court under Article 226 of the Constitution to entertain a second writ petition whose earlier writ petition was dismissed on the ground of non-exhaustion of alternative remedy but of such a Judge or Judges having not followed the well established salutary rule of judicial practice and procedure that an order of single Judge Bench or a Larger Bench of the same High Court dismissing the writ petition either on the ground of laches or non-exhaustion of alternative remedy as well shall not be bye-passed by a single Judge Bench or Judges of a larger Bench except in exercise of review or appellate powers possessed by it……………….. But as the learned, single Judge constituting a single Judge Bench of the same Court, who has in the purported exercise of jurisdiction under Article 226 of the Constitution bye-passed the order of dismissal of the writ petition made by a Division Bench by entertaining a second writ petition filed by the respondent in respect of the sub-matter which was the sub-matter of the earlier writ petition, the question is, whether the well established salutary rule of judicial practice and procedure governing such matters permit the learned single judge to bye-pass the order of the Division Bench on the excuse that High Court has jurisdiction under Article 226 of the Constitution to entertain a second writ petition since the earlier writ petition of the same person had been dismissed on the ground of non-availing of alternative remedy and not on merits……………… Second writ petition cannot be so entertained, not because the learned single Judge had no jurisdiction to entertain the same, but because entertaining of such a second writ petition would render the order of the same Court dismissing the earlier writ petition, redundant and nugatory although not reviewed by it in exercise of its recognized power.
Besides, if a learned single Judge could entertain a second writ petition of a person respecting a matter on which his first writ petition was dismissed in limine by another single Judge or a Division Bench of the same Court, it would encourage an unsuccessful writ petitioner to go on filing writ petitions after writ petition in the same matter, in the same High Court and for it brought up for consideration before one Judge after another. Such a thing, if is allowed to happen, it would result in giving full scope and encouragement to an unscrupulous litigant to abuse the process of the High Court exercising its writ jurisdiction under Article 226 of the Constitution in that any order of any Bench of such Court refusing to entertain a writ petition could be ignored by him with impugnity and the relief sought in the same matter by filing a fresh writ petition. This would only lead to introduction of disorder confusion and chaos relating to exercise of writ jurisdiction by Judges of the High Court, for their could be no finality for an order of the Court refusing to entertain a writ petition. It is why the rule of judicial practice and procedure that a second writ petition shall not be entertained by the High Court on the subject-matter respecting that the writ petition of the same person was dismissed by the same Court even if the order of such dismissal was in limine, be it on the ground of laches or on the ground of non-exhaustion of alternative remedy has come to be accepted and followed as salutary rule in exercise of writ jurisdiction of the Court. 12. In Dr. Buddi Kota Subbarao v. K. Parasaran, AIR 1996 SC 2687 , the Hon’ble Supreme Court has observed as under : “No litigant has a right to unlimited drought on the Court time and public money in order to get his affairs settled in the manner he wishes. However, access to justice should not be misused as a licence to file misconceived and frivolous petitions. Similar view has been reiterated by the Supreme Court in K.K. Modi v. K.N. Modi, (1998)3 SCC 573 . 13. In Tamil Nadu Electricity Board and Anr. V. N. Rajureddiar and Anr.
However, access to justice should not be misused as a licence to file misconceived and frivolous petitions. Similar view has been reiterated by the Supreme Court in K.K. Modi v. K.N. Modi, (1998)3 SCC 573 . 13. In Tamil Nadu Electricity Board and Anr. V. N. Rajureddiar and Anr. AIR 1997 SC 1005 , the Hon’ble Supreme Court held that filing successive misconceived and fribolous applications for clarification, modification or for seeking a review of the order interferes with the purity of the administration of law and salutary and healthy practice. Such a litigant must be dealt with a very heavy hand. 14. In Sabia Khan and Ors. V. State of U.P. and Ors., (1999) 1 SCC 271 , the Hon’ble Apex Court held that filing totally misconceived petition amounts to abuse of the process of the Court and such litigant is not required to be dealt with lightly. 15. In Abdul Rahman v. Prasoni Bai and Anr., 2003 AIR SCW 14, the Hon’ble Supreme Court held that wherever the Court comes to the conclusion that the process of the Court is being abused, the Court would be justified in refusing to proceed further and refuse the party from pursuing the remedy in law.” 16. Reading of the aforesaid decisions of the Hon’ble Apex Court makes it abundantly clear that the law on the aspect of maintainability of the successive writ petition is very much clear with only answer that no such successive writ petition should be entertained. 17. Thus, the writ petition stands dismissed. However, there is no order as to cost.