Haldhar Prasad Singh vs Giridih Municipality and Others

Roy, J.—In this writ petition, the petitioner has prayed for quashing annexure 2, resolution dt. 29-3-1982 of respondent No. 1 by which respondent 5 said to be junior to the petitioner has been promoted to the post of Lower Division Clerk (L.D.C. for short) with effect from 1-4-1982.

Petitioner, a matriculate, was appointed as tax collector by respondent 1 and he joined on 10-12-1967. Respondent 5, a matriculate, was appointed as a conservancy assistant by respondent 1 and he joined on 2-3-1973.

According to the petitioner the tax department and the conservancy department are two separate departments in the Giridith Minicipality and the posts of L.D.C. and upwards in the ministerial cadre are filled up by promoting the employees of the tax department. If for some reason, it is not found possible to do so, the vacant posts are filled up by promoting the senior most employees of other departments and if no such person is found to be eligible, outsiders are appointed.

On the superannuation of the then head-clerk, a vancancy arose and consequently vacancy of L D.C. also in the event the person then holding the post of LD.C. was promoted to next higher post. The respondent-municipality decided to fill up the post by promotion from amongst its employees. All the employees, including the petitioner and respondent 5 applied. Respondent 1 without considering the case of the petitioner, who was senior to respondent 5 promoted the later to the post of LD.C. Respondent 1 while superseding the petitioner did not comply with Rule 5 of the Model Rules (the Rules for short), which in absence of any rule framed by respondent 1, govern the service conditions of its employees. Rule 5 reads as follows :

"Promotion of an officer or servant of the Commissioners to a higher post shall ordinarily be made according to seniority and no officer or servant of the Commissioners shall be passed over unless, for reasons to be recorded in writing, the Commissioners at a meeting consider him to be unfit for promotion."

Separate counter affidavits have been filed on behalf of respondents 1 and 5 in which it has been asserted that respondent 5 was drawing pay in higher scale than the petitioner. It was not correct that the normal line of promotion of tax collector is to the post of LD.C. In the counter affidavit filed on behalf of respondent 5 it has also been stated that he was confirmed on 21-8-1974 whereas the petitioner was confirmed on 3-5-1976. In the counter affidavit filed on behalf of respondent 1 a note by the head clerk and the Executive Officer to the Chairman of the Municipality has been annexed as annexure A to show that the reasons for not appointing the petitioner were recorded.

The case came up for hearing before a learned single Judge on 25-1-1988. It was brought to the notice of the learned single Judge that the petitioner has filed C.W.J.C. No. 144 of 1983(R) praying for the same relief on the same cause of action as has been prayed in this writ petition and that writ petition was withdrawn by the petitioner at the time of admission on 7-3-1983. On this ground a preliminary objection was raised before the learned single Judge that as the earlier writ petition was withdrawn without leave to file a fresh writ petition on the same cause of action, the present writ petition was not maintainable. Reliance was placed on Sarguja Transport Service Vs. State Transport Appellate Tribunal, M.P., Gwalior and Others, . On behalf of the petitioner, it was contended that in view of the decisions of the Supreme Court in Hoshnak Singh v. Union of India, : AIR 1979 SC 1328, P.D. Sharma Vs. State Bank of India, , and Virudhunagar Steel Rolling Mills Limited Vs. The Government of Madras, . the second writ petition cannot be said to be not maintainable. It was also submitted that in view of the decision of the Supreme Court in Union of India (UOI) and Others Vs. Godfrey Philips India Ltd., the two Judge Bench of the Supreme Court in Sarguja''s case could not have disagreed with the larger Division Benches of the Supreme Court including Constitution Bench. In view of this position the learned single Judge ordered that this case be heard by a Division Bench. This is how the case has been listed before this Bench.

On the question of maintainability of the writ petition, learned counsel appearing on behalf of the parties reiterated their submission made before the learned single Judge and relied on the cases noticed above. It is necessary to notice Daryao and Others Vs. The State of U.P. and Others, . A Constitution Bench of the Supreme Court in that case held that rule of res judicata embodied in Section 11 of the Civil P.C. is not merely technical rule but is based on public policy. This can be invoked against a petitioner, It was held that if the writ petition filed by a party under Article 226 of the Constitution is considered on merits as a contested matter and is dismissed the decision thus pronounced would continue to bind the parties unless it is otherwise modified or reversed by appeal or other appropriate proceedings permissible under the Constitution. If the writ petition is dismissed in limine without passing a speaking order then such dismissal cannot be treated as creating a bar of res judicata. This has been consistently followed by the Supreme Court in all subsequent decisions, some of which are Hoshanak Singh, P. D. Sharma, Virudhangar Steel Rolling Mills Ltd., the cases noticed above, and the principle of res judicata has been applied to appropriate cases.

From the facts of Sarguja Transport (supra) it appears that the appellant before the Supreme Court had filed a writ petition in the High Court challenging an order of the respondent Tribunal. The petitioner was permitted to withdraw the writ petition as prayed for. The very petitioner filed second writ petition challenging the same order of the Tribunal. The Madhya Pradesh High Court held that as the first writ petition was not withdrawn with permission to file a fresh application on the same cause of action it was barred. It was also of the opinion that there was no cerit in the writ petition and the writ petition was dismissed. When the matter came up before the Supreme Court, the question that was agitated was the effect of withdrawal of the first writ petition without leave to file a fresh writ petition on the same cause of action. The Division Bench of the two Judges of the Supreme Court held that the rule of public policy as embodied in Order 23, Rule 1(3) of the Code was applicable as the petitioner had not withdrawn the first writ petition with leave to file a fresh writ petition on the same cause of action.

It will thus he noticed that in Sarguja Transport Service Vs. State Transport Appellate Tribunal, M.P., Gwalior and Others, , the Supreme Court applied the principle of Order 23, Rule (3) of the Code and in other cases noticed above rule of res judicata. i.e. bar of Section 11 of the Code, was applied. Daryao''s case (AIR 1981 SC 1457) (supra) was noticed in Sarguja (supra).

Principles embodied in Section 11 and in Order 23, Rule 1(3) are different, one bars a suit, the other bars a remedy. This was specifically noticed in Sarguja Transport. The contention of the petitioner that in Sarguja Transport a Division Bench of two Judges of Supreme Court differed with larger Division Bench or Constitution Bench is not correct,

Following the law laid down in Sarguja Transport Service Vs. State Transport Appellate Tribunal, M.P., Gwalior and Others, it must be held that this writ petition is not maintainable and it is dismissed.

B.P. Singh, J.

I agree.