Withdrawal of a writ petition without leave to file a fresh writ petition on the same cause of action bars the maintainability of a second writ petition on the same cause of action.

1. In this writ petition, the petitioner has prayed for quashing annexure 2, resolution dt. 29-3-1982 of respondent No. 1 by which respondent 5 said to be junior to the petitioner has been promoted to the post of Lower Division Clerk (L.D.C. for short) with effect from 1-4-1982.

2. Petitioner, a matriculate, was appointed as tax collector by respondent 1 and he joined on 10-12-1967. Respondent 5, a matriculate, was appointed as a conservancy assistant by respondent 1 and he joined on 2-3-1973.

3. According to the petitioner the tax department and the conservancy department are two separate departments in the Giridith Municipality and the posts of L.D.C. and upwards in the ministerial cadre are filled up by promoting the employees of the tax department. If for some reason, it is not found possible to do so, the vacant posts are filled up by promoting the senior most employees of other departments and if no such person is found to be eligible, outsiders are appointed. On the superannuation of the then headclerk, a vancancy arose and consequently vacancy of L.D.C. also in the event the person then holding the post of L.D.C. was promoted to next higher post. The respondent municipality decided to fill up the post by promotion from amongst its employees. All the employees, including the petitioner and respondent 5 applied. Respondent 1 without considering the case of the petitioner, who was senior to respondent 5 promoted the later to the post of L.D.C. Respondent 1 while superseding the petitioner did not comply with R.5 of the Model Rules (the Rules for short), which in absence of any rule framed by respondent 1, govern the service conditions of its employees. R.5 reads as follows : "Promotion of an officer or servant of the Commissioners to a higher post shall ordinarily be made according to seniority and no officer or servant of the Commissioners shall be passed over unless, for reasons to be recorded in writing, the Commissioners at a meeting consider him to be unfit for promotion."

4. Separate counter affidavits have been filed on behalf of respondents 1 and 5 in which it has been asserted that respondent 5 was drawing pay in higher scale than the petitioner. It was not correct that the normal line of promotion of tax collector is to the post of L.D.C. In the counter affidavit filed on behalf of respondent 5 it has also been stated that he was confirmed on 21-8-1974 whereas the petitioner was confirmed on 3-5-1976. In the counter affidavit filed on behalf of respondent 1 a note by the head clerk and the Executive Officer to the Chairman of the Municipality has been annexed as annexure A to show that the reasons for not appointing the petitioner were recorded.

5. The case came up for hearing before a learned single Judge on 25-1-1988. It was brought to the notice of the learned single Judge that the petitioner has filed C.W.J.C. No. 144 of 1983(R) praying for the same relief on the same cause of action as has been prayed in this writ petition and that writ petition was withdrawn by the petitioner at the time of admission on 7-3-1983. On this ground a preliminary objection was raised before the learned single Judge that as the earlier writ petition was withdrawn without leave to file a fresh writ petition on the same cause of action, the present writ petition was not maintainable. Reliance was placed on Sarguja Transport Service V/s. State Transport Appellate, Tribunal, Gwalior, AIR 1987 SC 88. On behalf of the petitioner, it was contended that in view of the decisions of the Supreme Court in Hoshnak Singh V/s. Union of India, AIR 1979 SC 1328, P.D. Sharma V/s. State Bank of India, AIR 1968 SC 985, and Virudhangar Steel Rolling Mills Ltd. V/s. Govt. of Madras, AIR 1968 SC 1196, the second writ petition cannot be said to be not maintainable. It was also submitted that in view of the decision of the Supreme Court in Union of India V/s. Godfrey Phillips India Ltd., (1985) 4 SCC 369 : (AIR 1986 SC 806) the two Judge Bench o