Jitendra Joshi vs State of Uttarakhand and Others

Tarun Agarwala, J.—Heard Shri Arvind Vashisth, the learned Counsel for the Petitioner and Shri Paresh Tripathi, the learned Brief Holder for the State/Respondents.

Having heard the learned Counsel for the Petitioner, this Court is of the opinion that the present writ petition is, in fact, the second writ petition for the same cause of action. The Petitioner had earlier filed a Writ Petition No. 1684 (S/S) of 2006, Jitendra Joshi v. State of Uttaranchal and Ors. challenging the advertisement and the consequential selection on the post of Sub-Inspector which was dismissed by a judgment dated 23rd July, 2007. Against this judgment, the Petitioner preferred a special appeal filing various documents and desiring the Appellate Court to consider the said documents. The Appellate Court was not inclined to consider the additional documents being brought on record since it was of the opinion that the said material was not available before the learned Single Judge. The Appellate Court, however, disposed of the appeal by an order dated 14.12.2009, directing the Petitioner to make an appropriate representation before the Respondents. It is alleged that the representation filed by the Petitioner was rejected, against which, the Petitioner has filed the present writ petition.

In my opinion, the second writ petition is not maintainable as held in Sarguja Transport Service Vs. State Transport Appellate Tribunal, M.P., Gwalior and Others, and Ashok Kumar and Others Vs. Delhi Development Authority, . In Khacher Singh v. State of U.P. and Ors. AIR 195 ALL 338: 1995 (26) ALR 18 the Division Bench held that the successive writ petition was not maintainable. In Avinash Nagra Vs. Navodaya Vidyalaya Samiti and Others, the Supreme Court held that the second writ petition was not maintainable and the principles of constructive res judicata would apply. Similarly, in State of U.P. and Ors. v. State Public Service Tribunal, Lucknow and Anr. 2003 (51) ALR 534 the Division Bench held that the second petition for the same relief was not permissible as the Petitioner did not seek liberty to agitate the issue afresh and that the principles of Order XXIII, Rule 1 of the CPC would be applicable.

In the present case, the Petitioner is agitating the same issue on fresh grounds. This Court is of the opinion that the Petitioner can file a writ petition questioning the selection of any number of grounds but subsequently cannot agitate the issue afresh on new grounds.