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In the High Court of Bombay at Goa
C.V. BHADANG, J.
Nanda N. Haldankar – Appellant
Versus
Nalini K. Kulkarni & Others – Respondent
First Appeal No. 41 of 2007
Decided On : 10-04-2015
Constitution of India - Article 226 Civil Procedure Code, 1908, Order XXIII, Rule 1, Section 11 Writ petition Filing of. - If a writ petition is withdrawn without receiving permission for filing a fresh petition, petitioner would be barred to file writ petition under Article 226 of the Constitution. It would appear that the question is not about res judicata, of the principles akin to or underlying the provisions of Order XXIII, Rule 1 of the Civil Procedure Code. That even in this regard, submission on behalf of the appellant based on the decision in the case of Sarguja Transport Service (supra) cannot be accepted. The question before the Hon’ble Supreme Court, in the case of Sarguja Transport Service (supra) was whether a party can be permitted to approach the High Court by filing writ petition under Article 226 of the Constitution of India, once the party having withdrawn a similar petition without seeking leave/permission of the Court. The Hon’ble Supreme Court held that in order to prevent a litigant from abusing the process of the Court and as a matter of public policy, he should not be permitted to take re-course to similar remedy again. However, it has been further held that this disability may not apply, if a party subsequently takes re-course to other remedy, such as filing a suit or a petition under Article 32 of the Constitution of India. The following observations in paragraph 9 of the judgment may be reproduced with profit :
"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’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 resjudicata 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 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 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."
Thus, the withdrawal of the earlier petition cannot come in the way of the respondent No. 1, filing a suit.
Goa Daman and Diu School Education Act, 1984 - Sections 22 and 27 Goa Daman and Diu School Education Rules, 1986, Rule 87-A(7) Civil Procedure Code, 1908, Section 8 Dispute as to seniority Right to appeal. On introduction of Rule 87-A, Civil Court had no jurisdiction to entertain a dispute as to seniority as remedy of appeal was provided before Administrative Tribunal. In the present cae, also, there is nothing to suggest that the right of the appeal to the Tribunal was made available only to causes of action subsequent to the date on which Rule 87-A, of the Rules of 1986 was introduced. Thus, on introduction of Rule 87-A, the Civil Court lacked jurisdiction to entertain a dispute as to seniority as the remedy of appeal was provided before the Administrative Tribunal. For this reason, the impugned judgment and decree cannot be sustained.
1. A dispute as to seniority between two teachers (one of whom is since dead) has dragged on for more than 28 years giving rise to the present appeal.
2. The respondent no. 1-Smt. Nalini Kulkarni (since deceased) had filed a Civil Suit No. 148/2004; [Regular Civil Suit No. 200/88/A(old)], in which the present appellant-Smt. Nanda Haldankar was the defendant no. 6. The present respondents nos. 2 to 6 were the original defendant nos. 1 to 5.
3. As per the plaint allegations, Samaj Seva Sangh, (hereinafter referred to as, Trust), registered under the Societies Registration Act was running a High School known as M & N English High School (hereinafter referred to as, High School) and was also running a Diploma Course of teaching under the name and style, as “Samaj Seva Sangh Training College” (hereinafter referred to as, Training College). Undisputedly, the High School and Training College were at the relevant time governed by Goa, Daman and Diu (Grant in Aid) Code (the Code, for short).
4. According to the original plaintiff, she was appointed as an Assistant Teacher, in the graduate category in the High School on 10.06.1968. Further according to her, after she worked for two weeks she was transferred to the Training College as Instructor. She was re-transferred to the High School with effect from 09.06.1969. Thus, in short she claimed that her seniority in the High School ought to have been reckoned from 10.06.1968 and not from 09.06.1969, as determined by the respondent no. 3, Director of Education. It appears that the management of the High School had circulated a seniority list showing the appellant senior to Smt. Nalini Kulkarni. In such circumstances, Nalini Kulkarni had sent a representation on 22.03.1985. The Director of Education after holding enquiry had decided that date of appointment of Smt. Nalini Kulkarni in Graduate category should be reckoned as 09.06.1969 and not 10.06.1968. According to the original plaintiff, the appellant had joined the services after her and she could not have been shown senior to her. It appears that feeling aggrieved by the decision of the Director, the original plaintiff had filed Writ Petition No. 188/1986 which was subsequently withdrawn. It is thereafter that, now deceased Nalini Kulkarni filed a Regular Civil Suit as stated aforesaid,
sometime in the year 1988 for the following reliefs:
(i) It may be declared that the services between the two establishments i.e. Training College and High School are transferable.
(ii) It may be declared that at the inception i.e. on 10.06.1968 , the plaintiff was appointed to the post of Assistant Teacher in High School and thereafter she was transferred to the Training College.
In the alternative to prayer (b), it may be held that the plaintiff may be given seniority from 10.06.1968, as services to both the institutions are transferable and the plaintiff be held to be entitled for notional benefits based on her date of appointment as 10.06.1968.
5. The respondent nos. 2 and 3 filed a written statement contesting the claim. It was contended that the Civil Court has no jurisdiction and the suit is not maintainable in law. It was also contended that the services inter se between the High School and Training College were not transferable. It was contended that the seniority list drawn by the management was not approved. It was denied that there was any cause of action to file the suit.
6. The respondent nos. 4, 5 and 6 contended that the suit is barred by limitation and also on principles of res judicata in as much as the respondent no. 1 had unconditionally withdrawn the Writ Petiton No. 188/1986. It was also contended that the Civil Court has no jurisdiction. It was contended that initially the respondent no. 1 had applied for the posts of an Assistant Teacher some time in March 1967 and by order dated 02.04.1967 she was appointed from 05.06.1967, however, she did not join. The respondent no. 1 applied afresh and in response, thereto she was offered em
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