The bar of res judicata does not apply when a petition under Article 32 is dismissed as withdrawn without discussion on the merits, allowing the petitioner's access to a writ court under Article 226.

A.K. Ganguly, C.J.

Heard Dr. E. Muralidharan in person, Mr. R. Vijay Narayan, learned senior counsel appearing for respondents 2 to 4 and Mr. P. Chandrasekaran, learned Senior Central Government Standing Counsel appearing for the first respondent. This appeal is directed against a judgment and order dated 29. 2008 passed by a learned Judge of the writ court, whereby the writ petition filed by the petitioner-in-person was dismissed not on merit, but on the ground of maintainability. The ground of maintainability arises under the following facts.

2. The appellant moved the Honourable Supreme Court under Article 32 of the Constitution of India with the following prayer:

.(i) To injunct the 2nd respondent from continuing in the post of Director of the Institute during the pendency of the above writ petition;

.(ii) For ad-interim orders in terms of prayer (i) above and confirm the same after notice of motion; and

(iii) To pass such further or other orders as this Honble Court may deem fit and proper in the circumstances of the case and render justice.

3. It appears from the order of the Honourable Supreme Court dated 210. 2007 that the learned counsel for the appellant sought the Court’s permission to withdraw the writ petition. The permission was granted and the writ petition was dismissed as withdrawn. The exact order of the Supreme Court is as follows:

"Learned counsel for the petitioner seeks permission to withdraw the petition. Permission granted. The writ petition is dismissed as withdrawn."

4. The appellant, who is appearing in person before us, submits that while the Supreme Court passed the order as set out hereinabove, the Supreme Court also gave him leave to move the High Court under Article 226.

5. The order which was passed by the Supreme Court was passed only in the presence of the learned counsel for the appellant and nobody appears to have entered appearance on behalf of the respondents. Therefore, there is no question of the learned counsel for the respondents accepting the aforesaid contention. We, therefore, cannot proceed on the basis that the Supreme Court granted the appellant leave since the leave has not been recorded in the body of the order. But one thing is clear from the text of the order set out above that the Supreme Court did not consider the matter on merits, nor did it hear the matter, as obviously it was not called upon to do so, since the appellant wanted to withdraw the writ petition. Therefore, none of the points raised by the appellant was decided. Now, the appellant has filed the present writ petition under Article 226 with the following prayer:

"For the reasons stated above, the petitioner herein respectfully prays that this Honble Court may be pleased to injunct the 2nd respondent from holding the post as the Director of IIT, Madras pending disposal of the aforesaid writ petition and pass such further or orders as this Honble Court may deem fit and render justice.

The Honourable Court may be pleased to issue a writ in the nature of a writ of Quo Warranto or any other appropriate writ or order or direction to the 1st respondent to show on what authority the 2nd respondent can hold the post of the Director of the Indian Institute of Technology, Madras and pass such other order or orders as this Honourable Court may deem fit in the facts and circumstances of this case and render justice."

6. The prayers are almost the same. The learned Judge of the writ court held that since the appellants previous petition under Article 32 was dismissed as withdrawn by the Supreme Court, the subsequent writ petition under Article 226 is barred. In coming to the said conclusion, the learned Judge of the writ court relied on a judgment of this Bench dated 9. 2008 rendered in W.P. No.33935 of 2007 and has quoted the same in paragraph 15 of his lordship’s judgment.

7. We have seen the said judgment. In that case, the petition under Article 32 was moved before the Supreme Court and the Supreme Co