Dilip Kumar v. The State Of Bihar

.... .... Respondents ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 2 17-01-2013 Heard learned counsel for the parties. The prayer of the petitioner in this writ application reads as follows:- "A writ in the nature of Mandamus or any other appropriate writ/order or direction directing the Patna High Court CWJC No.14186 of 2012 (2) dt.17-01-2013 2 respondents to absorb the services of the petitioners in regular Government establishment under Patna Collectoriate n the similar post on which they were working prior to 2005 in Harding Memorial Fund Trust commonly know as Harding Park now known as Beer Kunwar Singh Park, Patna, which was resume by the Government vide memo no. 2080 dated 7.10.05 issued by the Collector, Patna. A writ in the nature of Mandamus or any other appropriate writ/order or direction directing the respondents to pay regular salary and other consequential benefits the petitioners after absorption of their services in regular establishment and till absorption pay their salary from the fund of the trust which is deposited with the Government by the trust and is about 1.5 crores." The same prayer was earlier made by the Beer Kunwar Singh Park Mali Sangh in C.W.J.C. No. 5996/2008. There is also no dispute on this score inasmuch as the petitioners having admitted this fact in paragraph no. 9 of the writ petition which reads as follows:- "That C.W.J.C. No. 5996 of 2008 was filed by the Bir Kunwar Singh Park Mali Sangh in this Hon'ble Court for payment of salary. Petitioners are also member of aforesaid Sangh. Vide order dated

20.3.2010 passed by Hon'ble Mr. Justice Navin Sinha writ petition was dismissed as withdrawn to persue Patna High Court CWJC No.14186 of 2012 (2) dt.17-01-2013 3 the departmental remedies." In view of the fact that earlier the same prayer of the petitioners made through their Sangha did not find favour with this Court and the writ application was dismissed as withdrawn by an order dated 29.3.2010 passed in CWJC No. 5996 of 2008, this Court will have no difficulty in holding the present writ application to be barred by the principle of res judicata and constructive res judicata. Specially when the petitioners had given no liberty to move this Court again for the same cause of action. The petitioners therefore cannot maintain the present writ application. Even otherwise land of Harding Park government land which was given on lease to Harding Memorial and Trust on specified terms and conditions and the government had resumed its possession over its land by cancelling the lease by an order dated 7.10.2005, relevant portion whereof reads as follows:- ^^fo"k;& gkfMZax ikdZ lfefr] iVuk dks nh x;h gkfMZx ikdZ dh 24-30 ,dM+ Hkwfe ds xzkUV dks jn~n dj iquxzg.k djus ds lEca/k esA mijksDr fo"k; ds lEca/k esa lwfpr djuk gS fd lh0MCyw0ts0lh0 la[;k&11029@96 esa ekuuh; mPp U;k;ky; ds vkns'k ds vkyksd esa xzkUVh ls dkj.k i`PNk iwNus ds i'pkr gkfMZx ikdZ] iVuk dh Hkwfe dk iquxzg.k dk ekeyk jkT; ljdkj ds Patna High Court CWJC No.14186 of 2012 (2) dt.17-01-2013 4 fopkjk/khu FkkA ekuuh; U;k;ky; ds vkns'k ds vkyksd esa dkj.k i`PNk izkIr dj ljdkj us leh{kksijkUr ;g ik;k gS fd gkfMZx eseksfj;y Q.M VzLV }kjk nh x;h xzkUV dh ,djkjukek dh 'krksZa dk ?kksj mYya?ku fd;k x;k gSa ,djkjukek dh 'krks Z ds mYya?ku ds vkjksi esa ljdkj }kjk fopkjksijkUr gkfMZx ikdZ lfefr dks xzkUV ij nh x;h 24-30 ,dM+ Hkwfe esa ls Mkd rkj foHkkx dks nh x;hA 1-48 ,dM+ Hkwfe dks NksM+dj 'ks"k 22-82 ,dM+ Hkwfe dk iquxZg.k djus dk fu.kZ; fd;k x;k gS rFkk ljdkj }kjk fy, x;s fu.kZ; ds vkyksd esa v|ksgLrk{kjh dks iquxZg.k djus dk vkns'k fn;k gSA vr% jktLo ,oa Hkwfe lq/kkj foHkkx ls izkIr i= esa fn, x;s vkns'k ds vkyksd esa gkfMZx ikdZ lfefr dks xzkUV ij nh x;h 24- 30 ,dM+ Hkwfe esa ls Mkd rkj foHkkx dks nh x;h Hkwfe 1-48 ,dM+ dks NksM+dj 'ks"k 22-82 ,dM+ Hkwfe dk iquxZg.k djus dk vkns'k fn;k tkrk gSA lkFk gh lkFk vapykf/kdkjh] iVuk lnj dks ;g vkns'k fn;k tkrk gS fd os 22-82 ,dM+ Hkwfe dks vfoyEo vius n[ky dCtk es a ysuk lqfuf'pr djsaxsA vki lwpuk ds izkfIr ds ,d ekg ds vUnj iz'uxr Hkwfe dk n[ky dCtk vapykf/kdkjh] iVuk lnj dks lkSaiuk lwfuf'pr djsaxsA g0@& lekgRrkZ] iVukA** In view of above the Government had no liability to take over the services of the petitioners or any other employees engaged by the private Trust. That being so, this writ application is wholly misconceived and is accordingly dismissed. (Mihir Kumar Jha, J) Rishi/-