M. Shakul Hameed v. The Secretary to Government, State of Tamil Nadu, Health and Family Welfare Department, Secretariat, Chennai-9

THE HONOURABLE MR. JUSTICE S. MANIKUMAR W.P.No.42265 of 2006 (O.A.No.373 of 1999) M.Shakul Hameed ... Petitioner Versus

1. The Secretary to Government, State of Tamil Nadu, Health and Family Welfare Department, Secretariat, Chennai-9.

2. The Director of Family Welfare Department, Chennai-6.

3. The Joint Director of Health Services (FW Wing), Cuddalore-1.

4. The Medical Officer, Primary Health Centre, Ayangudi Post, Kattumannarkoil Taluk, Cuddalore District. ... Respondents This petition came to be numbered by transfer of O.A.No.373 of 1999 from the file of the Tamil Nadu Administrative Tribunal praying for Certiorari to call for the records in connection with the order dated 23.11.1998 made in R.O.C.No.248/A2/94 and in Na.Ka.No.393/Ka.Na.98, dated 09.12.1998 passed by the third and fourth respondents respectively and quash the same. For Petitioner : Mr.S.Senthil Nathan For Respondents : Mr.C.Ramesh, Government Advocate O R D E R The petitioner, Block Extension Educator, has challenged the orders of the third and fourth respondents, dated 23.11.1998 and 09.12.1998, directing him to pay a sum of Rs.49,954/-, being an excess salary paid to him and for further orders.

2. Brief facts leading to the Writ Petition are as follows: The petitioner joined the service as Health Inspector in the Directorate of Family Welfare on 26.07.1971 and promoted as a Block Extension Educator on 28.02.1989. He had completed 10 years of service in the lower post of Health Inspector and his scale of pay in the said post was Rs.1350-2200/-. The petitioner has further submitted that Selection Grade Health Inspector has a time scale of pay of Rs.1600-2660/-, identical to that of Block Extension Educator and the Selection Grade Block Extension Educator carries a time scale of pay of Rs.2000-3200/-. By proceedings in O.Mu.5737/A2/93, dated 26.07.1993, the Joint Director of Health Services, Cuddalore has fixed the scale of pay of the petitioner at Rs.2000-3200/-, as admissible to the Selection Grade Block Extension Educator. The fixation of pay scale was on the basis of the guidelines issued by the Government in G.O.Ms.No.210, dated 11.03.1987. However, without issuing any show cause notice, the Joint Director of Health Services (Family Welfare) Cuddalore, third respondent, has suo-moto issued an order of recovery, vide proceedings, dated 30.08.1995. Therefore, the petitioner and five other similarly placed persons filed O.A.No.6029 of 1995 before the Tamil Nadu Administrative Tribunal. While entertaining the Original Application, the Tribunal granted interim stay of recovery and subsequently, it was extended until further orders. While that be the position, one of the applicants, viz., Padmanabhan, who had retired from service, seemed to have instructed his counsel to withdraw the Original Application insofar as his claim is concerned. The said counsel, instead of making an endorsement in respect of the concerned applicant, viz., Thiru.Padmanaban, had inadvertently made an endorsement, withdrawing the Original Application on behalf of all the applicants therein, and in the result, the Original Application was dismissed as withdrawn on 21.08.1998. The petitioner was not aware of the dismissal and he was under the bona fide impression that the Original Application was pending. Only after the receipt of the memo, dated 09.12.1998, ordering recovery of Rs.49,954/- from his monthly salary at the rate of Rs.954/- in 50 instalments, commencing from 01.01.1996, the petitioner came to know that the Original Application was withdrawn inadvertently by the learned counsel on record. Hence, the present Writ Petition with the same cause of action. Heard the counsel appearing for the parties and perused the materials available on record.

3. Before going into the merits of this case, it is necessary to consider as to whether the Original Application filed by the petitioner, converted as present Writ Petition, is maintainable in law, inasmuch as, the earlier Original Application challenging the recovery was withdrawn without any leave of the Tribunal. It is necessary to extract the order passed in the earlier O.A.No.6029 of 1995, instituted by the petitioner and five others, challenging the order of recovery. The order of the Tribunal, dated 21.08.1998, reads as follows: "When the above Original Application came up for hearing today (21.08.1998), this Tribunal has made the following order:- The learned counsel for the applicants has made an endorsement to the effect that the Original Application may be dismissed as withdrawn. Accordingly, the Orignal Application be and hereby is dismissed as withdrawn."

4. In Avinash Nagra v. Navodaya Vidyalaya Samiti reported in 1997 (2) SCC 534, at Paragraph 13, the Supreme Court, held that, "He filed the writ petition in first instance but withdrew the same without permission of the Court with liberty to file the second writ petition which was dismissed. Therefore, the second writ petition is not maintainable as held by the High Court in applying the correct principle of law."

5. This Court had an occasion to consider the similar plea in Rev. Fr. J.G.Jesudas, etc., v. The Government of Tamil Nadu reported in 1998 Writ.L.R. 756. Following a decision of the Supreme Court in 1987 (1) SCC 5 (Sarguja Transport v. STAT), this Court held that even though there is adjudication on merits, the withdrawal of earlier Writ Petition amounts to waiver of the relief sought for and if the second Writ Petition is filed, it amounts to abuse of process of law. The relevant paragraph of the Judgment of the Supreme Court, as extracted in Rev. Fr. J.G.Jesudas's case, is as follows: "The question for our consideration is whether it would or would not advance the cause of justice if the principle underlying Rule 1 of Order XXIII of the Code is adopted in respect of writ petitions filed under Articles 226/ 227 of the Constitution of India also. It is common knowledge that very often after a writ petition is heard for some time when the petitioner or his counsel finds that the court is not likely to pass an order admitting the petition, request is made by the petitioner or by his counsel to permit the petitioner to withdraw from the writ petition without seeking permission to institute a fresh writ petition. A Court which is unwilling to admit the petition would not ordinarily grant liberty to file a fresh petition while it may just agree to permit the withdrawal of the petition. It is plain that when once a writ petition filed in a High Court is withdrawn by the petitioner himself he is precluded from filing an appeal against the order passed in the writ petition because he cannot be considered as a party aggrieved by the order passed by the High Court. He may as stated in Daryao v. State of U.P. in a case involving the question of enforcement of fundamental rights file a petition before the Supreme Court under Article 32 of the Constitution of India because in such a case there has been no decision on the merits by the High Court. The relevant observation of this Court in Daryao case1 is to be found at p. 593 and it is as follows: If the petition is dismissed as withdrawn it cannot be a bar to a subsequent petition under Article 32, because in such a case there has been no decision on the merits by the court. We wish to make it clear that the conclusions thus reached by us are confined only to the point of res judicata which has been argued as a preliminary issue in these writ petitions and no other. The point for consideration is whether a petitioner after withdrawing a writ petition filed by him in the High Court under Article 226 of the Constitution of India without the permission to institute a fresh petition can file a fresh writ petition in the High Court under that article. On this point the decision in Daryao case is of no assistance. But we are of the view that the principle underlying Rule 1 of Order XXIII of the Code should be extended in the interests of administration of justice to cases of withdrawal of writ petition also, not on the ground of res judicata but on the ground of public policy as explained above. It would also discourage the litigant from indulging in bench-hunting tactics. In any event there is no justifiable reason in such a case to permit a petitioner to invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution once again." (emphasis supplies)

6. In view of the above legal position, as the cause of action in the earlier Original Application No.6029 of 1995 as well as the present Writ Petition are one and the same, and in the absence of any leave from the Tribunal to re-adjudicate the matter for the same cause of action, this Court is of the considered view that the present Writ Petition is not maintainable in law and therefore, without going into the merits of the case, the Writ Petition is dismissed. No costs.

19.06.2008 To 1. The Secretary to Government, State of Tamil Nadu, Health and Family Welfare Department, Secretariat, Chennai-9.

2. The Director of Family Welfare Department, Chennai-6.

3. The Joint Director of Health Services (FW Wing), Cuddalore-1.

4. The Medical Officer, Primary Health Centre, Ayangudi Post, Kattumannarkoil Taluk, Cuddalore District. S. MANIKUMAR, J. W.P.No.42265 of 2006

19.06.2008