A second writ petition on the same subject matter is not maintainable if the earlier writ petition was dismissed on the ground of non-exhaustion of an alternate remedy.

J. C. Gupta, J.

1. The petitioner has prayed for quashing of the order of termination dated 12-2-75 passed by Respondent No. 1 Executive Engineer, U. P. Electricity Board (to be referred to as the 'board' in short) and the order dated 1-8-79 whereby the petitioner was discharged from his duty w. e. f. 2-8-79 fore noon. The factual matrix in the case, in short, is that the petitioner was appointed as a Junior Meter Testor in the year 1971 by the Executive Engineer of the Board by Office Memorandum dated 16-10-71 copy of which was been annexed as Annexure-I to the writ petition. The order of appointment clearly indicated that the petitioner was appointed on a consolidated pay of Rs. 150 per month in the vacancy caused due to the promotion of another employee. It was further provided that the petitioner's appointment was purely temporary and liable to be terminated at any time without notice. It was also clearly stated that the petitioner would have no claim for absorption in regular establishment. The petitioner's services were terminated by the order dated 12-2-75 which reads as under: "as per Executive Engineer's E. T. D., Jhansi Office Memorandum No. 195 (1) E. T. D. /p. F. of dated Feb. 11,1975 and A. E. (M) Office Memorandum No. 11457 E. T. L. /p. F. Feb. 12, 1975 your services has been terminated w. e. f. Feb. 11, 1975 due to unsatisfactory work and conduct: You are requested to collect the duty pay and one month pay in lieu of the notice from the office of the Assistant Engineer (Meters) Elect. Test Lab., Orai. There fore you will not be treated on duty after Feb. 11, 1975. "

2. THE petitioner filed Writ Petition No. 1813 of 1975 challenging the aforesaid termination order. That writ petition was, however, dismissed as per the provisions of 42nd Amendment of the Constitution of India on the ground that the petitioner has an alternate remedy before the Public Service Tribunal.

The present writ petition has again been filed with the allegation that the petitioner had no knowledge regarding the abatement of the earlier writ petition and since he has been discharged from his duty, he had no other remedy excepting to file the present writ petition.

3. THE termination order is challenged mainly on the ground that though the petitioner was only a temporary employee yet he was entitled to the protection guarantee under Article 311 (2) of the Constitution of India and since no enquiry was conducted in the present case, the order of termination is liable to be set aside as the present order of termination has been passed by way of punishment.

4. THE case of the respondents on the other hand is that the services of the petitioner were no longer required as his work and conduct was not found satisfactory and therefore the services of the petitioner, who was merely a temporary servant, were terminated by the impugned termination order as per the terms of appointment order. THE mere fact that the order stated that the services of the petitioner were not required on account of his unsatisfactory work and conduct would not make the order of termination a punative one.

In addition to the above defence, the respondents have also challenged the maintainability of the writ petition on two grounds. Firstly, that the writ petition is: liable to be dismissed for non-joinder of the 'board' as a party and secondly, on the ground that earlier writ petition respecting the same subject- matter having been dismissed on the ground of non-exhaustion of alternate remedy before the Service Tribunal, the present petition is not legally entertainable.

5. AFTER considering the various arguments of both sides, I feel no necessity of entering into the controversy whether or not the impugned order of termination suffers from illegality of having been passed by way of punishment as this writ petition can be conveniently disposed of on the preliminary points raised from the side of the respondents.

6. THE first preliminary objection is that the presen