JUDGMENT Tarun Agarwala, J.
1. In 1971 the petitioner was appointed as a Beldar and was promoted as a Store Attendant in 1977. In 1991, the petitioner was promoted as a Tube-well Operator. The petitioner filed Civil Misc. Writ Petition 1710 of 1986 before this Court, praying that he was entitled to be promoted as a Junior Engineer on the basis of a Government order dated 3.1.1985, which contemplated that the promotion to the post of Junior Engineer would be on the basis of seniority subject to the rejection of unfit. This court by judgment dated 27.11.1992 disposed of the writ petition with a direction to the respondents to consider the promotion of the petitioner, if he was entitled for the promotion on the basis of seniority subject to the rejection of unfit. Even though, this Court directed the respondents to decide the matter within one month from the date of the receipt of the certified copy of this order. The respondents by an order dated 16.2.1993 rejected the claim of the petitioner. The petitioner contends that the claim of the petitioner was rejected on the ground that he had not completed ten years of service as contemplated under the U.P. Irrigation Department Mechanical Engineers [Subordinate] Services Rules 1992 which was promulgated w.e.f. 7.1.1993.
Being aggrieved by the order of the respondent dated 16.2.1993, the petitioner filed a Misc. Application in Civil Misc. Writ Petition No. 1710 of 1986 praying that the order dated 16.2.1993 be set aside and the respondents be directed to promote the petitioner on the basis of the Rules of 1985 i.e. on the basis of seniority subject to the rejection of unfit. This misc. application was filed on the basis of a decision of this court in Jitendra Pal v. Committee of Management, 1993 [1] UPLBEC 218, which permitted the maintainability of a miscellaneous application being filed in appropriate cases even after the disposal of the writ petition. Pursuant to the aforesaid, the application was allowed by an order dated 16.4.1993, whereby the Court modified its earlier judgment dated 16.4.1993 which is quoted hereunder:
"Despite order of this Court dated 24.3.1993, no counter affidavit has been filed. In the circumstances of the case, I modify my judgment and direct that the petitioner will be promoted as Junior Engineer, Irrigation within a month from the date of filing of certified copy of this order."
It transpires that the respondents did not comply with the order dated 16.4.1993 and did not promote the petitioner to the post of Junior Engineer. Consequently, contempt proceedings were initiated against the respondents and by an order dated 11.3.1996, the respondents were directed to pay the salary of the Junior Engineer, which would be subject to the decision in special appeal. It further transpires that the respondents had filed special appeal against the judgment of the learned Single Judge passed in Civil Misc. Writ Petition No. 1710 of 1986. Initially, the special leave petition was dismissed by a judgment dated 1.10.1996 as being belatedly barred by time, against which, the respondents filed a Special Leave Petition before the Supreme Court, which was allowed by a judgment dated 20.3.1998 and the matter was remanded back to the High Court to decide the special appeal afresh. This Court by a judgment dated 19.5.2004 allowed the special appeal and quashed the order dated 16.4.1993. This Court held that the petitioner's misc. application was not maintainable and that the learned Single judge lacked jurisdiction to entertain the misc. application of the petitioner as no proceedings were pending before the Court at that moment of time. The Court further held that the order dated 16.4.1993 directing the promotion of the petitioner could not be sustained in the eyes of law. Against the judgment dated 19.5.2004, the petitioner filed a Special Leave Petition which was dismissed by the Supreme court by judgment dated 5.11.2004. By another order of the respondents dated 5.11.2004, the excess amount paid to the petitioner towards wages of a Junior Engineer was sought to be recovered. The petitioner has now filed the present writ petition challenging the order dated 16.2.1993 and 5.11.2004. The relief claimed by the petitioner is quoted hereunder:
"[i] Issue a writ, order or direction, calling for the record of the case and quash the order dated 16.2.1993 filed as Annexure No. 4 to the writ petition.
[ii] Issue a writ, order or direction in the nature of mandamus, directing the respondents to promote the petitioner w.e.f. 27.11.1992 on the criteria of seniority, subject to rejection of unfit, on the basis of direction of this Hon'ble Court dated 27.11.1992 in Civil Misc.Writ Petition No. 1710 of 1986.
[iii] Issue a writ order or direction in the nature of mandamus directing the respondents, in any view of the matter, to consider the case of the petitioner's promotion from 16.11.2001.
[iv] Issue a writ, order or direction in the nature of certiorari quashing the order dated 5.11.2004 passe by the Executive Engineer, respondent No. 3, filed as Annexure-9 to the writ petition."
Heard Sri Vishnu Sahai, the learned counsel for the petitioner and Sri V.K. Rai, the learned standing counsel appearing for the respondents.
Learned counsel for the petitioner submitted that in view of the fact that the petitioner's misc. application was rejected in special appeal by a judgment dated 19.5.2004 holding that the misc. application was not maintainable which was filed bonafidely on the basis of another judgment of this Court which permitted a misc. application to be filed in a decided writ petition, consequent, upon the dismissal of the application as not maintainable, the petitioner was now challenging the order dated 16.4.1993 by means of the present writ petition. The delay in filing the writ petition was liable to be condoned on account of the aforesaid facts. The learned counsel for the petitioner further submitted that the petitioner was liable to be promoted as per the Rules of 1985 on the basis of seniority subject to the rejection of the unfit. This court had issued a direction dated 27.11.1992 by which the respondents were directed to consider the promotion of the petitioner within one month during which period the Rules of 1985 was in existence and therefore, the petitioner ought to have been promoted after applying the Rules of 1985. learned counsel for the petitioner submitted that rejection of the claim of the petitioner for being promoted to the post of Junior Engineer by an order of the respondent dated 16.2.1993 was wholly illegal, as it had considered the Rules of 1992, whereas the Rules of 1985 was to be considered. Learned counsel for the petitioner further submitted that since the process of promotion was initiated by the High Court vide is judgment dated 27.11.1992, the petitioner was liable to be promoted on the basis of the existing Rules which existed on the date when the judgment dated 27.11.1992 was passed, i.e., the Rules of 1985, and was not liable to be considered for promotion on the basis of the rules of 1992, which came into existence on 7.1.1993. In support of his submission the learned counsel for the petitioner has relied upon a decision of the Supreme Court in P. Mahendran and Ors. and Matteesh Y. Annigeri and Ors., AIR 1990 SC 405 in which it was held that the selection process was to be completed in accordance with law as it stood at its commencement and the amendment of the Rules made during the selection process could not be taken into consideration. Similar view was expressed by the Supreme Court in Dr. [Mrs.] Sandhya Jain v. Dr. Subhash Garg and Anr., JT 1999 [8] SC 321 and Vidyadhar Sharma v. G.B. Patnaik and Ors., [2001] 2 UPLBEC 1384.
Learned standing counsel appearing for the respondents submitted that the petitioner had no right to challenge the order dated 16.2.1993 at this belated stage and, to that extent, the writ petition was not maintainable. Learned standing counsel further submitted that the petitioner had earlier filed a miscellaneous application praying for the quashing of the order dated 16.2.1993 and further prayed that he was entitled to be promoted on the basis of seniority and not on the basis of the Rules of 1992 which were promulgated in the year 1993. This application was rejected as not maintainable by a judgment dated 19.5.2004. Consequently, the same relief through this writ petition was not maintainable. In support of his submission, the learned counsel for the petitioner has relied upon a decision in Bindeshwari Prasad Singh v. State of Bihar and Anr., [2002] 6 SCC 650 in which an appeal against the order of acquittal was dismissed by the High Court on the ground of limitation. Subsequently, the informant filed a revision under Section 401 Cr.P.C. before the High Court, which was allowed. The Supreme Court held-
"The High Court has noticed the fact that the State had preferred an appeal against the acquittal of the appellants. That appeal was dismissed by the High Court on the ground of limitation. In principle that makes no difference, because the dismissal of the appeal even on the ground of limitation is a dismissal for all purposes.
And further held-
"The dismissal of an appeal preferred by the State against the order of acquittal puts a seal of finality on the judgment of the trial Court."
Admittedly, the relief claimed by the petitioner in the misc. application and relief No. [i] and [ii] of the writ petition are the same. The question, which arises for consideration, is whether the petitioner would be permitted to file a second application by means of a writ petition under Article 226 of the Constitution of India. Chapter XXII Rule 2[1] of the Rules of the Court states as under:
"2. Notice [1] If the Court does not find sufficient reasons to admit the application it may reject it. Where the application is not so rejected, notice thereof shall be served on such opposite parties named in the application and on such other persons, if any, as the Court may direct."
Chapter XXII Rule 7 of the Rules of the Court states as under:
"No second application on same facts--where an application has been rejected, it shall not be competent for the applicant to make a second application on the same facts."
From a combined reading Rule [2] and [7] of Chapter XXII of the Rules of the Court, it is clear that where an application has been rejected, a second application on the same facts and on the same cause of action is not maintainable even though, the first application was rejected not on merits. The aforesaid provisions does not indicate that the first application is required to be rejected on merits.
In Abdul Gaffar and Anr. v. Ishtiyaq Ahmed and Ors., 1989 ALJ 297 this Court held :
"The submission is that since the first petition was not dismissed on merits the second petition was maintainable. I do not agree. Rule 2[1] quoted above clearly provides that if the Court does not find sufficient reasons to admit the petition it may reject it. The rule does not say that the rejection can only be on merits. The non-appearance of a petition can also be one of the reasons on the basis of which the petition can be rejected. If once the application is rejected there is clear prohibition in Rule 7 that the second application shall not be competent on the same facts. The Rules in my opinion are against the petitioner's case. The first petition having been rejected, the second petition was clearly not competent. The preliminary objection raised by the learned counsel for the respondents is correct."
In Guru Charan Lal Srivastav v. Hindustan Aeronautics Ltd. and Ors., 2001 ALJ 2470, a Division Bench of this Court held that where the first writ petition was dismissed as withdrawn and no liberty was given to file a petition afresh, in that event, the second writ petition for the same relief was not maintainable.
The Supreme Court in Sarguja Transport Service v. State Transport Appellate Tribunal, AIR 1987 SC-88 held that withdrawal of a petition under Article 226 of the Constitution, without permission to institute a fresh petition in that event, a second petition under Article 226 of the Constitution of India in respect of the same cause of action was not maintainable.
In view of the aforesaid, the petitioner chose to file a misc. application under Section 151 C.P.C. invoking the inherent powers of the Court attacking the order dated 16.4.93 on merits. This application was initially entertained and the judgment was modified. The matter went up to the Supreme Court and eventually remanded back to the appellate Court. The special appeal was eventually allowed and the misc. application was rejected as not maintainable on the ground that a misc. application could not be filed in a writ petition which had already been decided and in which nothing was left pending before the Court.
In my view, once the application has been rejected it amounts to a dismissal for all purpose as held in Bindeshwari Prasad Singh's case [supra] by the Supreme Court. Consequently, it is no longer open for the petitioner to challenge the said order on the same cause of action and seeking the same relief before the same Court, though, under a different provision. Even though, the earlier application was filed under Section 151 C.P.C. and the subsequent application was filed under Article 226 of the Constitution, in my opinion, it would not make any difference. Since the relief claimed by the petitioner was one and the same. Consequently, I am of the opinion, that the writ petition filed under Article 226 of the Constitution. In so far as the relief No. [i] and [ii] are concerned was not maintainable and the petitioner is not entitled to any relief whatsoever.
With regard to relief No. [iv] the petitioner has prayed for the quashing of the order dated 5.11.2004 passed by the Executive Engineer wherein recovery of Rs. 1,71,081/- was being sought to be recovered from the pay of the petitioner in various monthly instalments on account of excess salary being paid to the petitioner for the period 11.3.1996 to 31.7.2004. It may be stated here that this Court by order dated 16.4.1993, directed the respondents to promote the petitioner to the post of Junior Engineer which was not complied by the respondents. Contempt proceedings were raised against the respondents in which an interim order dated 11.3.96 was passed directing that the petitioner would be paid the salary of a junior Engineer, which would be subject to the decision of the Special Appeal and in case, the Special Appeal was allowed, the excess payment shall be recovered from the petitioner. Since, the special appeal was allowed on 19.5.2004, which was affirmed by the Supreme Court by judgment dated 5.11.2004, consequently, the petitioner was liable to refund the amount so paid. Thus, there is no error in the order dated 5.11.2004 issued by the Executive Engineer for the recovery of the amount. The petitioner is not entitled to the relief.
In so far as relief No. [iii] is concerned, the petitioner has made a prayer in the alternative that he should be promoted as Junior Engineer w.e.f. 16.11.2001 as under the rules of 1992, he had now completed ten years of service and was, therefore, entitled to be promoted to the post of Junior Engineer. In this regard, I direct the petitioner to file a claim application before the authority concerned, which shall be considered and decided by the authority within four months thereafter.
In view of the aforesaid, except for relief No. [iii] the claim of the petitioner with regard to the other reliefs is devoid of any merit. The writ petition fails and is dismissed with the aforesaid observations. In the circumstances of the case, there shall be no order as to costs.