1
Court No. - 26 AFR
Case :- SERVICE SINGLE No. - 4568 of 2012
Petitioner :- Smt. Sudha Mishra
Respondent :- State Of U.P. Through Secy. Secondary Edu. Lko. &
Ors.
Petitioner Counsel :- Chandra Bhushan Pandey,Asim Kumar Singh
Respondent Counsel :- C.S.C.
Hon'ble Ajai Lamba,J.
1. Learned counsel appearing for the petitioner contends that
earlier the petitioner approached this Court by way of filing C.W.P.
No.6707 (S/S) of 2008 titled 'Smt. Sudha Mishra Vs. State of U.P .',
which was disposed of vide order dated 21.9.2011. The impugned
order dated 19.01.2012, Annexure-1 passed in deference to order of
this Court dated 21.09..2011 is not in conformity with the directions
issued by this Court. On the second count, it has been pleaded that the
respondents are obliged to follow provisions contained in government
order (Annexure-7), dated 10.8.2001 in regard to the appointment and
termination of service, of even part time Assistant Teacher. The same
having not been done, the petitioner is entitled to relief as prayed for.
2. Learned Additional Chief Standing Counsel, Shri Pankaj Patel
has pointed out that the petitioner has been repeatedly litigating as is
made out from contents of the petition itself. Rights of the petitioner
have been determined/ adjudicated and claim rejected, yet by way of
filing of repeated petitions, an attempt has been made to keep the issue
open, which is not permissible in law.
3. I have considered the contentions of learned counsel for the
parties, in context of the pleadings.
4. The relevant facts that emanate from the pleadings are that the
petitioner claims to have been appointed as Assistant Teacher, L.T.
Grade on 13.8.1997. The respondents discontinued paying salary to the
petitioner and allegedly, the services of the petitioner were orally
terminated w.e.f. 31.5.2002.
5. Sequence of events leading to filing of this petition are required
to be noted.
6. The petitioner, at the first instance, filed Civil Writ Petition
No.602 (S/S) of 2003 with the following prayer:
2
“to issue a writ, order or direction in the nature of
mandamus commanding the opposite parties to allow
joining of service, regularize the petitioner's service and to
pay the salary's service and to pay the salary or the scale
granted under grant-in-aid scheme.”
7. The petition (Civil Writ Petition No.602(S/S) of 2003) was
dismissed vide order dated 10.10.2003. The order passed by this Court
has not been placed on record.
8. It appears that the petitioner preferred a Special Appeal bearing
No.273 of 2004, which was dismissed by a Division Bench of this
Court vide order dated 4.5.2007. The order has been extracted in para
16 of the petition and reads as under:
“ Heard learned counsel for the appellant and the learned
Standing Counsel.
The instant appeal arises out of the judgment and order
dated 10.10.2003 passed by Hon'ble the Single Judge in
Writ Petition No.602(S/S) of 2003. Admittedly, the
appellant has not filed her appointment letter. The
appellant was engaged by the Management on part-time
basis for a short period on fixed salary with effect from
13.08.1997 and she was getting her salary from the
Management and not from the State Exchequer. The
Hon'ble Single Judge has recorded a finding to the effect
that the appellant was never validly appointed in High
School Section of the Institution which is under grant-in-
aid. There is no illegality or infirmity in the judgment and
order dated 10.10.2003. The Special Appeal is devoid
merit. It is accordingly dismissed.”
9. Although the rights of the petitioner had already been
adjudicated and writ petition and special appeal had been dismissed
being devoid of merit, the petitioner filed a second writ petition bearing
Writ Petition No.6707 (S/S) of 2008 with the following prayers :-
“a) to issue a writ order or direction in the nature of
certiorari quashing the oral termination of services of the
petitioner;
b) to issue a writ order or direction in the nature of
mandamus commanding the opposite parties to allow
joining of service, regularize the petitioner's service and to
pay the salary of the scale granted under grant-in-aid
scheme;
c) to issue a writ order or direction in the nature of
mandamus commanding the opposite party no.3 to decide
the representation dated 15.9.2008, contained in Annexure
no.6 to the writ petition.”
10. It has been noticed that prayer (b) made in the second petition
3
as extracted above, remained the same as made in the first petition.
Although the prayer/claim had been heard and finally decided by a
Division Bench of this Court while dealing with the special appeal, an
attempt was made to re-agitate the same issue while claiming the same
relief in substance. So as to file second petition, a representation dated
15.9.2008 was filed. Representation has been placed on record as
Annexure-8. Perusal of the representation establishes that the issue
earlier raised by the petitioner in the first petition, was re-agitated. It
becomes apparent that the representation was made only so as to
introduce another prayer in the second petition referred to above.
11. Order dated 21.09.2011 passed in Civil Writ Petition No.6707
(S/S) of 2008 has been placed on record as Annexure-9 and needs to be
referred to exactly:
“ Heard learned counsel for the parties and perused the
record.
The petitioner was working as part-time lecturer and now
his services have been dispensed with orally but no
subsequent engagement has been made by the opposite
parties. The petitioner is entitled for fresh appointment in
terms of Government Order dated 10.8.2001 (Annexure
No.5).
The controversy involves disputed question of fact.
Accordingly, the writ petition is disposed of finally
directing the opposite party no.2 to look into the matter
and take decision on the petitioner's case with regard to
appointment on the post of part-time lecturer within three
months from the date of receipt of certified copy of this
order. The decision so taken shall be communicated to the
petitioner.
Subject to above, the writ petition stands disposed of.”
12. On the representation of the petitioner, under direction of this
Court, order has been passed by the respondents which has been
impugned by way of this petition.
13. Gist of the order (Annexure-1) passed by respondent no.2
( Director Secondary Education) is to the effect that the petitioner was
appointed by the Management of the School on temporary basis,
however, none of the procedures provided / required, was followed.
The management was paying Rs.1000/- per month to the petitioner
from its own resources. The student strength kept reducing whereupon
the school stopped taking services of the petitioner. The petitioner filed
4
C.W.P. No.602 (S/S) of 2003 which was dismissed on account of
contents of counter affidavit filed on behalf of District Inspector of
Schools. Special Appeal preferred by the petitioner was also dismissed.
The petition under which direction had been issued to decide the
representation had been filed for taking undue advantage. Letter of
appointment even had not been issued for appointment of the
petitioner.
14. De hors the fact that the claim of the petitioner had been
rejected by Division Bench of this Court dealing with special Appeal
No.273 of 2004 vide order dated 4.5.2007, the petitioner has again
filed the present petition, which is the third writ petition with the
following prayers :-
(I) to issue a writ or direction in the nature of certiorari
quashing the impugned order dated 19.01.2012, contained
in Annexure No.1 to this writ petition.
(II) to issue a writ order or direction in the nature of
certiorari quashing the oral termination of services of the
petitioner;
(III) to issue a writ order or direction in the nature of
mandamus commanding the opposite parties to allow
joining of service, regularize the petitioner's service and to
pay the salary of the scale granted under the grant-in-aid
Scheme.
15. In all the three writ petitions filed by the petitioner, in regard to
which the prayer clause has been extracted above, the petitioner has
made an identical prayer viz. “to issue a writ, order or direction in the
nature of mandamus commanding the opposite parties to allow joining
of service, regularize the petitioner's service and to pay the salary of
the scale granted under the Grant-in-aid Scheme.”
16. It has been vehemently asserted that the petitioner was required
to be appointed in accordance with government order dated 10.8.2001
(Annexure-7) and can only be removed under provisions thereof.
Learned counsel for the petitioner admits that even letter of
appointment was not issued to the petitioner. During the course of
employment of the petitioner, the petitioner did not raise the issue.
Conveniently after the Management stopped paying salary to the
petitioner, the issue was raised in the first round of litigation by filing
C.W.P. NO. 602(S/S) of 2003.
5
17. The prayer of the petitioner for regularization in service and
payment of pay scale payable to a regular employee after being
reinstated in terms of government order dated 10.8.2001 is not only
frivolous but is also absurd, in view of the admitted position that the
appointment of the petitioner was made, not only de hors the Rules, but
also in flagrant violation of provisions of Articles 14 and 16 of the
Constitution of India. The petitioner was appointed by the Management
on a fixed salary, without even issuance of a letter of appointment. The
salary was paid out of the resources of the Management. Under the
circumstances, the petitioner cannot be allowed entry in public service
with a direction that he be paid salary on the scale permissible under
Grant-in-Aids Scheme. Allowing prayer of the petitioner, in such
circumstances, would be permitting entry in service by way of back
door entry in violation of provisions of Articles 14 & 16 of the
Constitution of India, which is not permissible in law.
18. Merely by filing a representation at a later stage, the petitioner
would not get a right to file second and third civil writ petition.
19. In regard to application of principles enshrined in Code of Civil
Procedure, 1908 to civil writ petition, the Hon'ble Supreme Court of
India, in case of Vijay Kumar Kaul & others Vs. Union of India and
others (Civil Appeal No.4986-4989 of 2007 decided on 25.05.2012),
has held in para 29 in the following terms:
29. In Public Service Commission, Uttaranchal v. Mamta
Bisht(2010)12 SCC 294, this Court while dealing with the
concept of necessary parties and the effect of non
impleadment of such a party in the matter when the
selection process is assailed observed thus:-
"7 .......... In Udit Narain Singh Malpaharia v. Additional
Member, Board of Revenue, Bihar, AIR 1963 SC 786,
wherein the Court has explained the distinction between
necessary party, proper party and proforma party and
further held that if a person who is likely to suffer from the
order of the Court and has not been impleaded as a party
has a right to ignore the said order as it has been passed
in violation of the principles of natural justice. More so,
proviso to Order I, Rule IX of Code of Civil Procedure,
1908 (hereinafter called CPC) provide that non-joinder of
necessary party be fatal. Undoubtedly, provisions of CPC
are not applicable in writ jurisdiction by virtue of the
provision of Section 141, CPC but the principles enshrined
therein are applicable. (emphasis supplied by me)
8. In Prabodh Verma v. State of U.P. AIR 1985 SC 167;
6
and Tridip Kumar Dingal v. State of West Bengal (2009) 1
SCC 768: (AIR 2008 SC (Supp) 824), it has been held that
if a person challenges the selection process, successful
candidates or at least some of them are necessary
parties.".
20. In case of State of Tamil Naidu and others V. Amala Annai
Higher Secondary School reported in (2009) 9 SCC 386, the Supreme
Court of India was dealing with the case in which the respondent
Middle School was upgraded as High School from academic session
1988-1989 w.e.f. 13.6.1988. All the posts of the middle school were
absorbed in the High School. Strength of students was less than 300.
One Ms. Rosary was appointed by the Management as a Junior
Assistant on the very day when the school was upgraded, without
getting approval from the competent authority. Management of the
school made request to the competent authority for sanction of one post
of junior assistant which was not acceded to. The request was renewed
by the school in the year 1991-1992 onwards without favourable
response from the appellants.
21. The Management made a representation to the State
Government on 20.1.1997. While the representation was under
consideration of the State Government, the Management of the School
filed a writ petition before the High Court of Judicature at Madras.
Writ petition was disposed of by Single Bench on 15.10.1997 directing
the appellant i.e. State of Tamil Naidu to consider the representation
and pass final order after hearing the management of the school. In
terms of order dated 15.10.1997 passed by the High Court,, the
Government considered the representation and rejected it vide order
dated 3.7.1998, essentially on the ground that the strength of the
school, during 1990-1991, was below 300 students .
22. Order dated 3.7.1998 was not challenged by the School,
although further representations were made.
23. After about seven years, management of the school filed
another writ petition before the High Court praying for a direction to
the Government of Tamil Naidu to sanction one post of Junior
Assistant for academic session 1991-1992 and grant of approval to the
appointment of the incumbent who had been appointed. State
Government opposed the writ petition by way of setting up a defence
7
that strength of the school was below 300, therefore, the school was not
entitled to the post of Junior Assistant. The Single Bench disposed of
the petition vide order dated 4.12.2006 with the direction that one post
of Junior Assistant be sanctioned.
24. In intra-court appeal, Division Bench, vide order dated
18.12.2008, dismissed the appeal while maintaining the order of the
Single Bench. State of Tamil Naidu went up in appeal before the
Hon'ble Supreme Court of India. Hon'ble Supreme Court of India
allowed the appeal while holding thus in paras 9 and 10: :-
“9. In our view, the judgment of the Division Bench affirming
the order of the Single Judge cannot be sustained for more than
one reason. In the first place, the management of the school
had already filed writ petition in 1997 praying therein that the
state government and its functionaries be directed to consider
their representation dated 20-01-1997 for the grant of one post
of Junior Assistant and in furtherance thereto, the state
government, after hearing the school, rejected the
representation on 03-07-1998 indicating the following
reasons :
“At the time of sanction of posts G.O. Ms. No. 50
Education dated 20-1-95 as per the norms issued in
G.O.Ms. No. 340 Education Dated 1-4-92 the
strength of your school during 1990-91 was below
300. The orders in G.O.Ms. No. 340 are clear. It says
that there is no compulsion to give non- teaching staff
as and when the school increases the strength.
Therefore your request for sanction of one post of
Junior Assistant is not feasible of compliance.”
The management of the school did not challenge the aforesaid
decision of the state government and, therefore, it was not open
to the school to file another writ petition for the same relief,
i.e., for direction to the state government to sanction one post
of Junior Assistant to the school from the academic year 1991-
92.
10. The controversy stood concluded in the earlier round of
litigation and the decision of the state government dated 03-07-
1998 having not been challenged, the second writ petition
could not have been entertained by the High Court. Merely
because, few subsequent representations were made by the
management to the state government reiterating the request for
sanction of post of Junior Assistant, no new cause of action for
filing second writ petition can be said to have arisen. In the
facts and circumstances of the case, second writ petition by the
management of the school for the same relief is nothing but an
abuse of the process of the court.”
(emphasis supplied by me)
8
25. In case Devilal Modi Vs. Sales Tax Officer, Ratlam and
others reported in AIR 1965 Supreme Court 1150 (V 52 C 181),
following has been held:
(10) As we have already mentioned, though the courts dealing
with the questions of the infringement of fundamental rights
must consistently endeavor to sustain the said rights and
should strike down their unconstitutional invasion, it would
not be right to ignore the principle of res judicata altogether in
dealing with writ petitions filed by citizens alleging the
contravention of their fundamental rights. Considerations of
public policy cannot be ignored in such cases, and the basic
doctrine that judgments pronounced by this Court are binding
and must be regarded as final between the parties in respect of
matters covered by them, must receive due consideration.
(11) The result of the decision of this Court in the earlier
appeal brought by the appellant before it is clear and
unambiguous, and that is that the appellant had failed to
challenge the validity of the impugned order which had been
passed by the Assistant Commissioner against him. In other
words, the effect of the earlier decision of this Court is that the
appellant is liable to pay the tax and penalty imposed on him
by the impugned order. It would, we think, be unreasonable to
suggest that after this judgment was pronounced by this Court,
it should still be open to the appellant to file a subsequent writ
petition before the Madhya Pradesh High Court and urge that
the said impugned order was invalid for some additional
grounds. In case the Madhya Pradesh High Court had upheld
these contentions and had given effect to its decision, its order
would have been plainly inconsistent with the earlier decision
of this Court, and that would be inconsistent with the finality
which must attach to the decisions of this Court as between the
parties before it in respect of the subject-matter directly
covered by the said decision. Considerations of public policy
and the principle of the finality of judgments are important
constituents of the rule of law and they cannot be allowed to
be violated just because a citizen contends that his
fundamental rights have been contravened by an impugned
order and wants liberty to agitate the question about its
validity by filing one writ petition after another.
12. The present proceedings illustrate how a citizen who has
been ordered to pay a tax can postpone the payment of the tax
by prolonging legal proceedings interminably. We have
already seen that in the present case the appellant sought to
raise additional points when he brought his appeal before this
Court by special leave; that is to say, he did not take all the
points in the Writ petition and thought of taking new points in
appeal. When leave was refused to him by this Court to take
those points in appeal, he filed a new petition in the High
Court and took those points, and finding that the High Court
had decided against him on the merits of those points, he has
come to this Court; but that is not all. At the hearing of this
appeal, he has filed another petition asking for leave from this
9
Court to take some more additional points and that shows that
if constructive res judicata is not applied to such proceedings a
party can file as many writ petitions as he likes and take one
or two points every time. That clearly is opposed to
considerations of public policy on which res judicata is based
and would mean harassment and hardship to the opponent.
Besides, if such a course is allowed to be adopted, the doctrine
of finality of judgments pronounced by this Court would also
be materially affected. We are, therefore, satisfied that the
second writ petition filed by the appellant in the present case is
barred by constructive res judicata.
(emphasis supplied by me)
26. It would not be out of course to mention here that apart from
the law settled by Hon'ble Supreme Court of India on filing of second
and third petitions with similar relief, Rule 7 of Chapter XXII of the
Allahabad High Court Rules, 1952 which deals with direction, order
or writ under Article 226 ( and Article 227) of the Constitution of India
(other than a writ in the nature of Heabus Corpus) also provides that no
second application shall be made when an earlier application has been
rejected on the same facts. Rule 7 reads as under:
“No second application on the same facts.- Where an
application has been rejected, it shall not be competent for the
applicant to make a second application on the same facts.”
27. Thus, in effect, it has been held by the Hon'ble Supreme Court
of India that although provisions of Code of Civil Procedure, 1908
might not be applicable in writ jurisdiction by virtue of the provisions
of Section 141 C.P.C., but principles related to public policy enshrined
therein are applicable.
28. Following the above dictum, it is held that in case a person
omits to sue in respect of, or intentionally relinquishes, any portion of
his claim, he shall not afterwords sue in respect of portion so omitted
or relinquished.
29. Doctrine of res-judicata is based on two theories: (i) the finality
and conclusiveness of judicial decisions for the final termination of
disputes in the general interest of the community as a matter of public
policy, and (ii) the interest of the individual that he should be protected
from multiplication of litigation. It therefore serves not only a public
but also a private purpose by obstructing the reopening of matters
which have once been adjudicated upon. It is thus not permissible to
10
obtain a second judgment for the same cause of action, otherwise the
spirit of contentiousness may give rise to conflicting judgments of
equal authority, lead to multiplicity of actions and bring the
administration of justice into disrepute. It shall also lead to limitless
and unending lis.
30. Thus if a plea could have been taken by a party in a proceeding
between him and his opponent, he would not be permitted to take that
plea against the same party in a subsequent proceeding which is based
on the same cause of action. This view is founded on the same
considerations of public policy, because if the doctrine of constructive
res judicata is not applied to writ proceedings, it would be open to the
party to take one proceeding after another and urge new grounds every
time; and that plainly is inconsistent with considerations of public
policy to which reference has been made above.
31. If a ground of challenge is available to a person and that person
omits to take that ground or relinquishes that ground, he is estopped by
law to file subsequent writ petition on that ground. As far as the present
case is concerned the ground in context of government order dated
10.8.2001 (Annexure-7), was available to the petitioner at the point in
time when the first petition, noted above, was filed by the petitioner.
The rights of the petitioner had been considered in context of his
pleadings and arguments in the first round of litigation, adjudicated and
decided. Under the circumstances in that regard second and third writ
petitions could not have been filed by adding grounds or claims.
32. Having taken note of the repeated petitions filed by the
petitioner while claiming, in substance, the same relief, this court has
been left with no option but to record that the petitioner has seriously
abused the process of court by adding new ground, merely so as to file
second and third writ petition. Such a recourse is not only improper
and unreasonable but is also an abuse of process of the Court and
barred under the principles of constructive res judicata laid down under
the Code of Civil Procedure. If such a course is allowed to be adopted,
it shall violate doctrine of finality of judgment.
33. Likewise, by way of filing subsequent representation in regard
to the same original claim of the petitioner, the legal procedures would
not permit the petitioner to file second writ petition or this third writ
11
petition, after decision on the representation. This is particularly so
because essentially the prayers of the petitioner noted above remained
the same. It is a principle of public policy not to allow this practice to
be followed. The courts of law are already over burdened. If such a
practice, as adopted by the petitioner, is allowed to be followed or
encouraged by a Court, it shall give rise to unending litigation. A
litigant would take one ground or make one claim in one writ petition
and if it is not allowed or is allowed in part, he would file a second writ
petition taking another ground or claim a relief, which was earlier
available. This shall not allow the lis to come to an end, which would
be against public policy.
34. In the considered opinion of this Court, the petitioner filed Civil
Writ Petition No.602 (S/S) of 2003 raising certain issues on certain
grounds, which had been heard and finally dismissed by this Court vide
decision dated 10.10.2003. The petitioner being aggrieved, filed
Special Appeal No. 273 of 2004, which was also dismissed vide order
dated 4.5.2007. The order passed in special appeal attained finality.
Subsequently by way of adding a ground or by way of making an
additional claim or making a representation, the petitioner has made a
crude attempt for filing second and third writ petition. Such subsequent
petition would be clearly barred even in terms of Rule 7 of Chapter
XXII of the Allahabad High Court Rules, 1952.
35. The present third writ petition, filed by the petitioner for the
same relief is nothing but an abuse of the process of the court.
36. Considering the facts and circumstances of the case, in the light
of judgments rendered by Hon'ble Supreme Court of India and
provision of Allahabad High Court Rules, 1952, noted above, it
becomes evident that this third writ petition on the same issue is a
frivolous petition and has been filed in total violation of the established
practice, procedure and precedents respected by writ courts.
37. In view of the above, no relief can possibly be granted to the
petitioner.
38. Considering the sequence of events and the fact that rights of
the petitioner had already been adjudicated and decided by a Division
Bench of this Court vide order dated 4.5.2007, reproduced above, this
12
third writ petition is clearly frivolous and is dismissed with costs
quantified at Rs.5,000/- (rupees five thousand).
Order Date :- 30.8.2012
GK Sinha
