Dismissed

Rasananda Basti v. State of Odisha

Orissa HC19 Dec 2023WP(C)/6991/2022

Case brief

AI extract

What is this about?

This court rejected a writ petition challenging the approval of a rival employee's services as an attendant. The petitioners cited inaction in implementing a previous court order but were denied relief due to the availability of efficacious execution remedies.

What did the court decide?

The writ petition was not entertained and dismissed due to the absence of fresh grievance and availability of alternative remedies for execution of the previous order.

Rasananda Basti Vs State of Odisha — Pension and Retirement Benefits | Orissa HC (2023)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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W.P.(C) No.6991 of 2022

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In the matter of an application under Articles 226 and 227 of the Constitution of India.

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Rasananda Basti …. Petitioner -versus-

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State of Odisha & Others …. Opposite Parties For Petitioner : Mr. S. Mallik, Advocate For Opp. Parties : Mr. S.K. Samal, AGA Dr. J.K. Lenka, Advocate for O.P. Nos.5 & 6 PRESENT: THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY -------------------------------------------------------------------------------Date of Hearing:12.09.2023 and Date of Order: 19.12.2023 ------------------------------------------------------------------------------- Biraja Prasanna Satapathy, J .

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1. Heard Mr. S. Mallik, learned counsel for the petitioner, Mr. S.K. Samal, learned Addl. Govt. Advocate for the State and Dr. J.K. Lenka, learned counsel appearing for private Opp. Party Nos.5 & 6.

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2. Present Writ Petition has been filed inter alia with the following prayer:-

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“ On the aforesaid facts and circumstances, the Hon’ble Court may graciously be pleased to:-

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(i) Quash the impugned selection and approval of the name of the Opp. Party No.6 as an attendant dt.20.02.2020 as at Annexure-3. (ii) Direct/order that appointment of the petitioner shall be approved from the date of his initial appointment and he shall be paid the consequential salary with other benefits. (iii) Pass such other orders/direction as the Hon’ble Court may be deemed fit and proper in the interest of justice.=

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3. Learned counsel for the petitioner contended that the petitioner was engaged as an Attendant in Maa Bauti School for deaf, which was an Un-Aided Educational Institution at the relevant point of time. Petitioner was appointed as an Attendant on

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30.12.2013 along with one Rashmita Ojha and Mahendra Kumar Sahoo. Private Opp. Party No.6 was appointed as an Attendant (Female) on 30.01.2014, even though Rashmita Ojha was already appointed as a female Attendant on 30.12.2013.

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3. 1. It is contended that when the School became eligible to get the benefit of Grant-in-Aid vide order dated 03.10.2018 so issued under Annexure-1, the

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services of the present petitioner when was not approved on the face of such approval extended in favour of Opp. Party No.6 vide order dated 20.02.2020 under Annexure-3, petitioner challenging such action of the Opp. Parties moved the Collector on 18.02.2021 under Annexure-8 to approve his name as per the approved sanction pattern, so sanctioned by the Government. It is contended that when no action on the claim made by the petitioner was taken in his representation dated 18.02.2021 under Annexure-8, Petitioner approached this Court in W.P.(C) No.13964 of 2021. This Court vide order dated 09.06.2021 under Annexure-9, disposed of the Writ Petition inter alia directing the Opp. Party No.3 to take a decision on the representation made by the petitioner on 18.02.2021 under Annexure-8. It is contended that the petitioner basing on the order passed by this Court on 09.06.2021, once again moved Opp. Party No.3 to consider his claim as made in his representation on dated 27.10.2021. It is contended that when no action

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was taken by the Opp. Party No.3, petitioner moved a representation before Opp. Party No.1 on 06.12.2021 under Annexure-10.

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Page 3 of 14

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3. 2. It is contended that when no action was also

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taken by the Opp. Party No.1 on the claim made by the petitioner in his representation under Annexure-10, the present Writ Petition has been filed inter alia with the prayer as indicated hereinabove.

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3. 3. Learned counsel for the petitioner contended that

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since in terms of the order passed by this Court on 09.06.2021, Opp. Party No.3 did not take any action on the claim made by the petitioner in his representation dated 18.02.2021 under Annexure-8, petitioner approached Opp. Party No.1 on 06.12.2021 under Annexure-10. However, when no action was also taken by the Opp. Party No.1 in considering the grievance of the petitioner, the present writ petition has been filed.

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3. 4. It is accordingly contended that in view of such

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inaction on the part of the Opp. Parties, the order of approval issued in favour of Opp. Party No.6 vide order dated 20.02.2020 under Annexure-3 requires

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interference of this Court.

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4. In course of hearing, learned counsel appearing for Opp. Party No.5 raised the question of

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maintainability of the present Writ Petition and

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Page 4 of 14

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contended that on self same issue and on the face of the order passed by this Court on 09.06.2021 in W.P.(C) No.13964 of 2021, the present Writ Petition is not maintainable. Accordingly, this Court directed learned counsel appearing for the petitioner to satisfy this Court on the question of maintainability of the Writ Petition.

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5 . Learned counsel appearing for the petitioner in support of the maintainability of the Writ Petition relied on the decisions of the Hon’ble Apex Court reported in the case of State of Haryana and Another Vrs. Chanan Mal and Others, (1977) 1 SCC 340 , Hon’ble Apex Court in Para-49 of the said judgment has held as

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follows:-

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<49. (3) Any petitioner who applies for a writ or order in the nature of a mandamus should, in compliance with a well known rule of practice, ordinarily, first call upon the authority concerned to discharge its legal obligation and show that it has refused or neglected to carry it out within a reasonable time before applying to a Court for such an order even where the alleged obligation is established.=

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5.1. Learned counsel for the petitioner also relied on

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an order passed by a Co-ordinate Bench of this Court on 06.01.2023 in W.P.(C) No.34606 of 2021. This Court

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relying the decision rendered in 2003 (3) Calcutta

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Page 5 of 14

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High Court Notes (CHN) 148 held that a Writ Petition

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is maintainable to enforce an order made in previous writ petition. View of this Court reflected in para-5 of

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the said order is quoted hereunder:-

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“5. A writ petition is maintainable to enforce order made in a previous writ petition was view taken in Indrapuri Studio V. State of West Bengal, reported in 2003(3) Calcutta High Court Notes (CHN) 148. Paragraphs 35 to 37 of the judgment available at 2003 SCC Online Cal 236 are reproduced below:-

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“35. This writ petition is virtually a petition before this Court for enforcement of the order passed by this Court in the earlier writ petition. A second writ petition for enforcement of the earlier order is very much maintainable.

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36. In the case of Bibekananda Mondal v. State of West Bengal, reported in (2003) 1 WBLR(Cal) 213, this Hon’ble court specifically held that without initiating a proceeding for contempt, the Court can quash any order or proceeding done in disregard of such order which may also tantamount to contempt. The relevant portion from paragraph 6 of the said judgment is quoted hereunder:

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“6. It is therefore, settled law that the second writ application is maintainable for implementation of an earlier order of the writ Court. This Court must issue proper directions for proper implementation of previous directions. Where there has been an order, the order must be complied with. An act done is wilful disobedience of a Court Order is not only contempt, but also, an illegal and invalid act. The language used in Article 226 of the Constitution of India is couched in comprehensive phraseology and the said Article recognizes a very wide power on the High Courts to remedy injustice wherever it is found.=

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37. The Supreme Court in the case of Devaki Nandan Prasad v. State of Bihar, reported in AIR 1983 SC 1134, entertained a second writ

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application under Article-32 of the Constitution of India and passed specific order directing the authority to do what was earlier directed by the Supreme Court on the first writ application.=

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Enforcement is necessary since the authority has acted in teeth of said order dated 22^nd June, 2021, having directed the Collector to help petitioner in the best way possible. The direction was made in petitioner’s earlier writ petition, where he prayed for implementing the benefit. The administration not having taken resort to law, of preferring appeal against it, said order has become final and direction made upon the authority, binding. Court is not inclined to enquire as to how initially petitioner’s name was included in the beneficiary list. Information had regarding the inclusion was never disputed and cannot now be disputed in the matter resorted to by the authority.=

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6. Learned counsel for the State as well as learned

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counsel appearing for O.P. No.5 and 6 on the other hand contended that challenging the order of approval so issued in favour of Opp. Party No.6 under Annexure3, petitioner moved an application before the Opp. Party No.3 on 18.02.2021. As no action was taken on

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the representation filed by the petitioner under Annexure-8, petitioner approached this Court in W.P.(C) No.13964 of 2021. This Court vide order dated 09.06.2021 under Annexure-9, disposed of the Writ Petition with a direction on the Opp. Party No.3 to take

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a decision on the representation, so filed by the petitioner under Annexure-8 in accordance with law, within a period of 3 (three) months from the date of

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receipt of the order. It is contended that on the face of

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such order passed by this Court on 09.06.2021,

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petitioner should have taken further step by filing appropriate application for compliance of order dated 09.06.2021. The present writ petition filed on self-same issue is not maintainable.

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6. 1. In support of such submission, learned counsel appearing for the State as well as Opp. Party Nos.5 & 6

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relied on the following decisions:

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“1.(1987) 1 SCC Page-5 (Sarguja Transport Service Vrs. State Transport Appellate Tribunal M.P., Gwalior and Others ),

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2. (1993) 2 SCC Page-495 ( State of UP. And Another vrs. Labh Chand )

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3. (2006) 4 SCC 683 ( State of Karnataka and Another Vrs. All India Manufacturers Organisation and Others. ”

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Hon’ble Apex Court in the case of Sarguja Transport Service in para-9 has held as follows:-

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“ 9. The point for consideration is whether a petitioner after with-drawing 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''s case (supra) 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

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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 event 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 had 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.

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Similarly, in the case of Labh Chand, Hon’ble Apex Court in para-20 has held as follows:-

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<20. When a Judge of single Judge Bench of a High Court is required to entertain a second Writ Petition of a person on a matter, he cannot, as a matter of course, entertain such petition, if an earlier Writ Petition of the same person on the same matter had been dismissed already by another single Judge Bench or a Division Bench of the same High Court, even if such dismissal was on the ground of laches or on the ground of nonavailing of alternate remedy. Second Writ Petition cannot be, so entertained not because the learned single Judge has 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 the recognised 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

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limine by another learned single Judge or a Division Bench of the same Court, it would encourage an unsuccessful Writ Petitioner to go on filing Writ Petition after Writ Petition in the same matter in the same High Court, and have it brought up for consideration before one Judge after another. Such a thing, if is allowed to happen, it could 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 impunity and 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 there 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 subjectmatter respecting which the first 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 alternate remedy, has come to be accepted and followed as salutary Rule in exercise of writ jurisdiction of Courts.”

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Similarly, in the case of All India Manufacturers Organisation and Others., Hon’ble Apex Court in

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para-32 & 33 has held as follows:-

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“ 32. Res Judicata is a doctrine based on the larger public interest and is founded on two grounds: one being the maxim nemo debet bis vexari pro una et eadem causa ("No one ought to be twice vexed for one and the same cause" ) and second, public policy that there ought to be an end to the same litigation . It is well settled that Section 11 of the Civil Procedure Code, 1908 (hereinafter "the CPC") is not the foundation of the principle of res judicata, but merely statutory recognition thereof and hence, the Section is not to be considered exhaustive of the general principle of law. The main purpose of the doctrine is that once a matter has been determined in a former proceeding, it should not be open to parties to re- agitate the matter again and again. Section 11 of the CPC recognises this principle and forbids a court from trying any suit or issue, which is res judicata, recognising both 'cause of action estoppel' and 'issue estoppel'.

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There are two issues that we need to consider, one, whether the doctrine of res judicata, as a matter of principle, can be applied to Public Interest Litigations and second, whether the issues and findings in Somashekar Reddy (supra) constitute res judicata for the present litigation.

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33. Explanation VI to Section 11 states:

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"Explanation VI.- Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating ."

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6. 2. It is also contended that under Chapter 28 of the

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Rules of High Court of Orissa, 1948, Execution of an order passed in a Writ Petition under Article 226 and 227 of the Constitution of India has been provided.

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It is contended that in view of the clear provision contained under Chapter 28 of the Rules of High Court of Orissa, 1948, petitioner instead of taking appropriate steps for execution of the order dated 09.06.2021, has approached this Court once again with similar nature of prayer. It is accordingly contended that in view of such clear provision contained under Chapter 28, the present writ petition is not maintainable.

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7. Having heard learned counsel for the parties and after going through the materials available on record, this Court finds that the services of Opp. Party No.6 was approved as against the post of Attendant (Female)

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vide order dated 03.03.2020 in terms of the proceeding of the meeting held on 20.02.2020 under Annexure-3. Even though clarification was sought for by the Opp. Party No.3 vide letter dated 28.05.2020 under Annexure-5, but inspite of that when the services of the petitioner was not approved as against the post of Attendant (Male), petitioner challenging the illegal approval of services of Opp. Party No.6, filed a representation before the Opp. Party No.3 on 18.02.2021 under Annexure-8.

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7. 1. As the claim made in the representation dated 18.02.2021 was not considered, petitioner approached this Court in W.P.(C) No.13964 of 2021. This Court vide order dated 09.06.2021 under Annexure-9, while disposing the Writ Petition directed Opp. Party No.3 to take a decision on the claim made by the petitioner under Annexure-8 in accordance with law, within a period of 3 (three) months from the date of receipt of this order. As found from the record, on receipt of the order from this Court so passed under Annexure-9, Collector, Cuttack directed District Social Welfare

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Officer, Cuttack to conduct an enquiry and submit a

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Page 12 of 14

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report before him vide order dated 27.10.2021.

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Thereafter, when no further action was taken by the Collector, the petitioner challenging the inaction of the Collector-O.P. No.3, in carrying out the order of this Court, filed a representation before O.P. No.1 on 06.12.2021 under Annexure-10.

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7. 2. As no action was taken by Opp. Party No.1 on the representation made on 06.12.2021, the present Writ Petition has been filed but with the same prayer challenging the approval of service of Opp. Party No.6. Since the issue with regard to approval of the services of Opp. Party No.6 is under consideration before the Collector-Opp. Party No.3 as made by the petitioner

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under Annexure-8, on the face of the order passed by this Court on 09.06.2021 under Annexure-9, placing reliance on the decisions of the Hon’ble Apex Court in the case of “Sarguja Transport Service, State of U.P.

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and Another and State of Karnataka and Another as cited (supra), the present Writ Petition inter alia with the prayer as made is not entertainable. The decision relied on by the learned counsel for the petitioner as per the considered view of this Court is not applicable

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to the facts of the present case. If the Opp. Party No.3

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is not implementing the order passed by this Court on 09.06.2021, petitioner has got efficacious alternate remedy for execution of the said order by filing appropriate application as provided under Chapter 28 of the Rules of High Court of Orissa, 1948. Petitioner seeking compliance of the order dated 09.06.2021 is also eligible and entitled to file appropriate application under the provisions of Contempt of Court’s Act. In view of such speedy efficacious remedy available to the petitioner to execute/implement the order dated 09.06.2021 so passed in W.P.(C) No.13964 of 2021, this Court is not inclined to entertain the present Writ Petition and dismiss the same.

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(Biraja Prasanna Satapathy) Judge

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Orissa High Court, Cuttack Dated the 19^th December, 2023/Basudev

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Signature Not Verified

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Digitally Signed Signed by: BASUDEV SWAIN Reason: Authentication of order Location: High Court of Orissa, C utta ck Date: 22-Dec-2023 18:05:41

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Rasananda Basti v. State of Odisha

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Rasananda Basti v. State of Odisha

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