ORDER Binod Kumar Roy and Lakshmi Bihari, JJ.
1. In this writ petition, in which there are 28 respondents, still pending for its admission till today, following prayers have been made by the petitioner :
(a) Issue a writ, order or direction in the nature of certiorari quashing the orders dated 18.1.1992 passed by Executive Council (Annexure-17), order dated 31.8.1992 passed by Chancellor (Annexure-22), order dated 20.4.1993 passed by Executive Council (Annexure-24) and order dated 7.10.1993 and 30.9.1994 passed by Chancellor (Annexure-26) to this writ petition ;
(b) issue a writ, order or direction in the nature of mandamus commanding the respondents to regularise the services of the petitioner w.e.f.
22.11.1991 ;
(c) issue a writ, order or direction in the nature of mandamus directing the respondents not to interfere with the functioning of the petitioner as lecturer and pay him salary of lecturers w.e.f. 22.11.1991 as well as current salary ;
(d) issue a writ, order or direction in the nature of mandamus not to implement the order dated 20.4.1993 and restrain the respondent Nos. 1 to 4 to consider and appoint respondent Nos. 25 and 26 on the vacant post of lecturer of psychology ;
(e) Issue a suitable writ, order or direction which this Hon'ble Court may deem fit and proper under the circumstances of the case ;
(f) award the cost of the writ petition to the petitioner."
2. Many typed and Xe-rox copy of documents attached to this writ petition as Annexures-22. 25, 27 and 28 are either incomplete or blurred as a result of which we cannot read them in their entirety.
3. We find that out of 28 respondents only respondent Nos. 1 to 4 were granted time on 10.1.1994 to file counter and thereafter counters and rejoinders thereto and amendment petition and counters thereto were filed by these respondents and the petitioner only. No notice was even issued to the remaining respondents ever.
4. When this writ petition came up earlier before a Division Bench on 121.3.1999 comprising Palok Basu and B. K. Rathi, JJ., the following order was passed :
"Petitioner Dr. Rajendra Singh has filed this writ petition with several prayers including regularlsation with effect from 22.11.1991 and payment of salary in the Lecturer grade from that date.
It transpires that along with the petitioner one Dr. Shambhoo Upadhya was also appointed on the same terms and conditions as the petitioner. The appointment letter dated 30.3.1991 (Annexure-2 to the writ petition) is a composite order for both, namely, Dr. Shambhoo, Upadhya and Dr. Rajendra Singh petitioner.
It further transpires that another lecturer, namely. Dr. Smt. Gayatri Devi was also similarly appointed as the petitioner and the terms and conditions of initial appointment were identical.
In the supplementary affidavit, it has been stated that the aforesaid Dr. Shambhoo Nath Upadhya and the aforesaid Dr. Smt. Gayatri Devi have already been regularised by the decision taken by the Executive Council of Kashi Vidyapith.
Shri R. N. Singh Chandel assisted by Sri A. K. Singh learned counsel for the petitioner has vehemently argued that apart from the other questions on the basis of which the petitioner is claiming regularisation the decision with regard to Dr. Shambhoo Nath Upadhya and Smt. Gayatri Devi should be taken due note while considering the question of the claims raised by the petitioner in the writ petition, Sri Ajit Kumar Singh learned counsel for Kashi Vidyapith has said that basically this will be a question of fact as to whether the petitioner's case could be equated with Shambhoo Upadhya and Smt. Gayatri Devi. He relied upon some averments of the counter-affidavit on the basis of which a distinction is sought to be drawn between the case of the petitioner Dr. Rajendra Singh and the cases of two others, namely. Dr. Shambhoo Upadhya and Smt. Gayatri Devi.
Tentatively there is force in the argument of the learned counsel for the petitioner that the appointment letter of Dr. Shambhoo Upadhya and petitioner being composite one, distinction, if any, as is attempted to withdraw by Kashi Vidyapith may be ignored as artificial. Sri Ajit Kumar Singh is not agreeable to the argument.
On the peculiar facts and circumstances arising in this case, it is hereby directed that if the petitioner makes a representation within ten days from today along with certified copy of this order raising all the questions of facts and law including the claim of the parity with Dr. Shambhoo Upadhya and Dr. Smt. Gayatri Devi, the University Will decide the same with speaking order within six weeks of making of the representation and furnish a copy of its decision within a week to the petitioner.
List this writ petition in the week commencing 26 April, 1999 and if the petitioner in the meantime is so advised to make the representation, the respondent concerned shall abide by the direction given above."
5. Shri Anil Tiwari, learned counsel for respondent Nos. 2, 3 and 4, places two true copies of the Office Order dated 12.9.1999 passed by the Vice Chancellor, Mahatma Gandhi Kashi Vidyapith, Varanasi and submits that though there has been some delay in passing in which was bona fide, the representation of the petitioner has been disposed of and thus, this writ petition has now become infructuous and be disposed of accordingly, however, giving liberty to the petitioner, if he so likes to file a representation before the Chancellor of the University in terms of the Statute and/or a fresh writ petition against that part of the Office Order which is against him.
6. When we expressed ourselves showing inclination to accept the prayer of Sri Tiwari, Sri 'Chandel'. learned counsel appearing for the petitioner took up a stand that in view of the fact that the Division Bench was fully satisfied with his submissions and was going to allow this writ petition but it erroneously directed to file a representation directing its disposal and further directed to be listed for its hearing and thus, by disposal of the representation of the petitioner, this writ petition has not become infructuous and he may be permitted to press on its merits. He also contended that all the prayers made by the petitioner have not been considered and disposed of by the Office Order in question, a copy of which was also eceived by the petitioner today. He further came up with a prayer for adjournment as a matter of right to file an amendment application challenging the validity of this Office Order in this writ petition itself.
7. In support of his stand, Shri Chandel vaguely referred to some decisions of the Supreme Court without citing them with reference to name of the parties and/or in which journal they have been reported. He then cited and read one Division Bench decision of our own High Court in Atiq Ahmad v. Chief Minister, State of U. P. and others, 1995 (3) AWC 1454, (Paragraphs 16 to 18) in support of his submission that due to disposal of this representation this writ petition has not become infructuous.
8. In regard to this submission of Mr. 'Chandel'. it is necessary to reproduce paragraph Nos. 6 to 9 and 15 to 23 of the judgment rendered by N. L. Ganguli, J. :
"6. The prayer sought for in the present writ petition is quoted as under:
(i) issue a writ of certiorari quashing the order of detention passed against the petitioner on 25.6.1995 identical to the orders passed against other co-accused Arun Shanker Shukla alias Anna and Aziz Hassan Khan ;
(ii) issue a writ in the nature of mandamus from detaining the respondents against the provision of Section 3(2) of the N.S.A. ;
(iii) issue a writ of mandamus directing the respondents to provide armed guard to the petitioner which were withdrawn after 20.6.1995 ;
(iv) issue any other writ, order or direction to which the petitioner might be found entitled in the circumstances of the case ;
(v) award the costs of this petition.
9. Sri P. P. Srivastava, learned Additional Advocate General pointed out before the Bench that an earlier writ petition was filed by the petitioner. The Additional Advocate General raised preliminary objection that the earlier writ petition, being Crl. Misc. Writ Petition No. 17006 of 1995, filed by the petitioner is already pending. Therefore, this second petition filed by the petitioner is not maintainable. He also submitted that this Court lacks territorial jurisdiction to entertain the present writ petition as according to him. the entire cause of action arose within the jurisdiction of Lucknow Bench of this Court.
10. We, on the earlier date, had directed that the present writ petition be listed along with the record of earlier Writ Petition No. 17006 of 1995, which was filed on 25.6.1995, and, thereafter, it was directed to place the petition which was placed before Hon. K. Narayan, J-, on 25.6.1995. Hon'ble Mr. Justice K. Narayan was pleased to pass the orders on 25.6.1995, which is quoted herein below :
"Heard learned counsel for the petitioner and Sri Mahendra Pratap, A.G.A. Considering the averments about danger to the life, it is directed that the applicant/ petitioner may present/surrender himself before any Magistrate judicial or executive in the District of Allahabad, Aligarh. Lucknow or Fatehpur and he shall accept the surrender irrespective of enquiry about the offence or absence thereof. He shall inform the police officer concerned of the area in which he is living who in his turn arrange for taking custody of the person of the petitioner and keep him in protective custody. He shall be produced before the judicial Magistrate concerned in the next morning for further orders but shall not be released for one week except on application of the petitioner in his own hand and attested by his counsel and his father."
11. The learned Additional Advocate General placed the relief claimed in the earlier writ petition being Crl. Misc. Writ Petition No. 17006 of 1995, which is being reproduced herein below :
(a) to issue a writ of mandamus commanding the respondents to produce in original entire record with regard to required arrest and encounter of the petitioner ;
(b) to issue a writ of certiorari calling for record of the case and quashing orders of the respondents and in particular that of respondent Nos. 1 and 2 calculated to arrest and encounter the petitioner. including the proceedings proceeding the same and consequent thereto ;
(c) to issue a writ of mandamus commanding the respondents neither to arrest nor encounter the petitioner and make domiciliary visits at his office, residence and farm house on any ground and in any manner whatsoever except in accordance with law and principle of natural justice and fair play ;
(d) to issue a writ of ad interim mandamus restraining the respondents neither to arrest nor encounter the petitioner and make domiciliary visits at his office, residence and farm house on any ground and in any manner whatsoever;
(e) to issue any other writ, order or direction which this Hon'ble Court may deem fit and proper in the nature and circumstances of the case, and
(f) to award the costs of the petition to the petitioner."
15. A perusal of the facts of the present writ petition, and of the earlier writ petition, if examined cursorily. It may be clear that the relief sought for was not exactly in the same words, but the prayer clause are similar.
16. The question as to whether the present writ petition should be entertained, is the first question, and. it is the preliminary objection of the learned Additional Advocate General. On this aspect, there are several decisions ; such as Anand Kumar Gupla v. State of V. P. and others, (1993) 1 VPLBEC 165 (Division Bench decision. M/s. Munna Industries v. State of V. P. and others, 1994 ALJ 1116 (DB) and Saheb Lal v. Assistant Registrar, 1995(1) VPLBEC 31.
17. The aforesaid three decisions of the Division Benches of this Court have consistently held" that during pendency of earlier writ petition, filing of second writ petition is unwarranted and such writ petitions are not maintainable.
18. The argument of the learned counsel for the petitioner is that fresh cause of action arose for filing the subsequent writ petition. Similar argument was advanced in the earlier aforesaid three Division Benches, which was repelled in all the aforesaid three decisions on the ground that such argument was misconceived. The cause of action, if subsequently arise, it is open for the petitioner to incorporate the same in the pending writ petition by seeking necessary amendments. Thus, argument of the learned counsel for the petitioner about fresh cause of action is also devoid of merits.
19. The next argument advanced by learned counsel for the petitioner is that subsequent writ petition is not barred, for which, he relied on decision in Devendra Pratap Narain Rai Sharma v. State of U. P. and others, AIR 1962 SC 1334. He pointed out that in paragraph 12 of the said decision, Hon'ble Supreme Court has dealt with provision contained in Order II. Rule 2, Code of Civil Procedure. It was held that Order II, Rule 2. C.P.C. may not apply to the writ petitions under Article 226 of the Constitution.
20. The decisions in Anand Kumar Gupta ; M/s. Munna Industries and Saheb Led, (supra), decided the controversy about maintainability of second writ petition relying the provisions of High Court Rules. 1952 (Chapter XXII. Rule 7). In Saheb Led, (supra), the Division Bench had deprecated the filing of successive writ petitions on the same set of facts and grounds, apart from being abuse of process of Court, as held to be against public policy. See G. K. Dudant v. S. D. Sharma. AIR 1986 SC 1455.
21. After considering the argument of learned counsel for the parties. I am of the view that the writ petition of the petitioner deserves to be dismissed on the sole ground of non-maintainability in view of the aforesaid decisions.
22. Apart from above observation, I would also like to further observe that since petitioner has not disclosed a very important fact that he had already filed a writ petition before this Court in which an order was passed by a learned single judge of this Court for surrendering before Magistrate, he has again filed the present writ petition by concealing the said fact, which amounts to lack of candour. On that ground also, the writ petition deserves to be dismissed summarily.
23. In the result, the writ petition is dismissed. All interim orders passed earlier are hereby vacated. Prayer for grant of leave is rejected."
11.1. P. K. Mukherjee. J., also proceeded to dismiss the writ petition by making the following observations in paragraph 35 of his judgment which reads thus :
"35. In my considered opinion. apart from the view taken by learned brother, Ganguly, J., it is not open to the Court to judge merits, or. demerits, of such hypothetical order. Legality and validity of an order can be judged only after going through the same. This Court cannot form any independent opinion, merely on the basis of bald averments, surmises and conjectures."
11.2. This judgment apparently is of no help to Mr. Chandel.
12. The order passed by the Division Bench after considering the prayers pressed before it by the learned counsel for the petitioner commanding the petitioner to file a representation was accepted to be correct by him as he did not challenge its correctness by filing a review application before this Court or by filing S.L.P. before the Hon'ble Supreme Court. In fact he acquiesced in the command by filing a representation. Therefore, he cannot assail the validity of this order of the Division Bench, which is also binding on us. This disposal of the representation is a subsequent event and cannot be treated to be a 'cause of action' for filing this writ petition itself for the simple reason that the words 'cause of action' means 'bundle of facts' right from the very beginning to the end giving a handle to the person aggrieved for initiating an appropriate proceeding.
13. We do not find any merit in the submission of Shri Chandel that the petitioner is entitled as a matter of right for an opportunity to file an amendment application assailing the vaidity of the Office Order aforementioned.
14. In fairness to Mr. Chandel, we also put on the record that according to him the cause of action still subsists and, therefore, this writ petition be not disposed of in terms prayed for by Sri Tiwari.
15. The Office Order aforementioned has been placed on the record. There is nothing on the record to infer that the Division Bench was going to allow this writ petition.
16. Having considered the prayers of Shri Chandel, we. In the peculiar facts and circumstances, consider desirable to accept the prayer of Mr. Tewari and accept it and dispose of this writ proceedings accordingly without any order as to cost but with liberty to the petitioner to assail the validity of the Office Order observing that the disposal of the representation has given a fresh cause of action to the petitioner to assail its validity but in accordance with law by filing a Statutory Reference/Representation before the Chancellor of the University and/or all matters through a fresh writ petition satisfying the Bench concerned that the statutory remedy is illusionary and/or not expedient.
17. The pending interlocutory applications also stand disposed of.
18. The office is directed to serve a copy of this order within one week on the learned counsel for the respondent No. 1 for its communication to and follow-up action in the event the petitioner files a representation for its objective disposal in accordance with law notwithstanding the earlier orders passed by him.