Narayanan Achari vs State of Kerala and Others

K.A. Abdul Gafoor, J.—The petitioner is a Tahsildar. He has approached this Court challenging Ext. P5 and seeking a direction commanding the respondents to retain him in the post of Taluk Tahsildar, Sulthan Battery till 30-9-1999, the date on which the petitioner is due to retire on superannuation. He had also filed an earlier original petition, No. 25351 of 1998 challenging the very same Ext. P5 and seeking a self-same direction, not to relieve the petitioner from the post of Taluk Tahsildar, Sulthan Bathery till 30-9-1999. Additional challenge against Ext. P8 contained in the new original petition is only a consequential order to Ext. P5. Ext. P5 in both the original petitions are one and the same. The earlier original petition was dismissed as withdrawn as per my judgment dated 6-1-1999. Even before that date, the petitioner had filed this original petition seeking the same relief. As challenge against Ext. P5 had already been withdrawn, the petitioner cannot reagitate the said challenge against Ext. P5 again. Of course, there is a fresh challenge against Ext. P8. Ext. P8 is only a consequential arrangement pursuant to Ext. P5. Therefore, Ext. P8 has no separate existence without Ext. P5. When an original petition was withdrawn, without permission to file a fresh one, the petitioner cannot file another one impugning the self same order. This ban is based on a public policy as contained in Order 23 Rule 1 Code of Civil Procedure. That public policy had been made applicable to the proceedings under Article 226 of the Constitution of India. In Sarguja Transport Service Vs. State Transport Appellate Tribunal, M.P., Gwalior and Others, , the Supreme Court held as follows:

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 case 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 advent 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 withdrawal 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 right in holding that a fresh writ petition was not maintainable before it in respect of the same subject matter since the earlier writ petition has 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 right guaranteed under Article 21 of the Constitution since such a case stands on a different footing altogether. We, however leave this question open.

The reason behind this had been reiterated by the Supreme Court in M/s. Upadhyay and Co. Vs. State of U.P. and Others, as follows:--

The reasoning for adopting it in writ jurisdiction is that very often it happens, when the petitioner or his counsel finds that the court is not likely to pass an order admitting the writ petition after it is heard for some time, that a request is made by the petitioner or his counsel to permit him to withdraw it without seeking permission to institute a fresh writ petition. A court which is unwilling to admit the petition would not ordinarily grant liberty to file a fresh petition while it may just agree to permit withdrawal of the petition. When once a writ petition filed in a High Court is withdraw by the party concerned, he is precluded from filing an appeal against the order passed in the writ petition because he cannot be considered as a party aggrieved by the order passed by the High Court. If so, he cannot file a fresh petition for the same cause once again.

The original petition is therefore, liable to be dismissed on that sole ground itself. Even otherwise, the original petition does not disclose any merit. By Ext. P5, the petitioner was transferred from Sulthan Bathery to Kalpatta. That is an adjacent Taluk in the same district. Such transfer of a Tahsildar, exercising statutory functions cannot be said to be arbitrary, even if it is passed few months before the retirement on superannuation. Therefore, no interference is possible even otherwise. So, challenge against Ext. P5 shall fail on merit as well.