IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.361 of 2009 BRAJ BHUSHAN DAS AGRAWAL son of Late Sheo Nath Prasad Agrawal, resident of village Mau Nath Bhanjan, District Mau, Uttar Pradesh at present resident of village Mithanpura, P.O. Ramna, District Muzaffarpur. Versus 1. THE STATE OF BIHAR 2. The Engineer-in-Chief-cum-Commissioner-cum-Secretary Road Construction Department, Vishweshwaraiya Bhawan, Bailey Road, Patna. 3. The Assistant Secretary, Road Construction Department, Patna. 4. The Accountant General, Bihar, Patna. ----------- For the Appellant : M/S. Uma kant Shukla, V. K. Singh For the State : Mr. Maruth Nath Roy, A.C. to S.C. XI For Respondent no. 4 : Mr. Sanjay Kumar. -------- 5 08/07/2009 Heard learned counsel for the appellant and learned counsel for the State. The appellant-writ petitioner retired from service in the year 1996. He preferred a writ petition in the year 1999 to claim first time bound promotion with effect from 1995. During the pendency of that writ petition the State granted regular promotion to the petitioner on the post of Assistant Engineer with effect from 30.6.1975. On such happening the writ petitioner sought permission to withdraw C.W.J.C. No. 10306 of 1999 on the ground that in view of subsequent order of the authority, the writ petition had become infructuous. The writ Court granted permission and dismissed the writ petition as infructuous. After about two years a second writ petition which is under consideration was filed by the petitioner to claim same time bound promotion but from an earlier date and also promotion on higher posts on account of his regular promotion on the post of Assistant Engineer - 2 - with effect from 1975. The learned writ Court noticed the fact that for seeking promotion the petitioner had earlier preferred writ petition in the year 1999 which was voluntarily withdrawn by him without pressing the issues which had already arisen on account of subsequent development taking place to the knowledge of the writ petitioner. The learned writ Court observed that the writ application is barred either by the principles of res judicata or constructive res judicata. It has been submitted before this Court that since there was no determination of any of the issues on merits when earlier writ petition had been dismissed as infructuous on 11.9.2000, the principles of res judicata were not attracted and on that account the order of the writ Court requires interference and the claim of the petitioner for various promotions including time bound promotions should be considered on merit. The issue whether successive writ petitions should be entertained or not is an issue affecting public policy and in such matters although the provisions of the Code of Civil Procedure may not be strictly applicable, the underlying principles may be safely followed. Under Order XXIII Rule 1 various provisions have been prescribed covering such a situation. Under sub-rule (3) of aforesaid Rule 1, there is a provision that where the Court is satisfied that a suit must fail by reason of some formal defect or that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim, it may at appropriate times - 3 - grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of the claim. Sub-rule (4) further provides that where the plaintiff abandons any suit or part of claim or withdraws from a suit or part of a claim without the permission as referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim. Since the facts as they existed at the time of filing of the present writ application were already in knowledge of the writ petitioner earlier and the subject matter of the writ petitions is same, i.e. claim of promotions during the service period, in our view, the writ petitioner had option either to amend his earlier writ petition or to withdraw the same with liberty to file a fresh writ petition. Neither of the options was exercised by the appellant and instead he took a clear stand that the writ petition had become infructuous. In the aforesaid circumstance, we are of the view that the successive writ petitions should not be permitted as it will be against the public policy. Hence, for the reasons indicated above, we are not persuaded to interfere with the impugned order of the writ Court. This Letters Patent Appeal is, thus, dismissed. (Shiva Kirti Singh, ACJ.) (Anjana Prakash, J.) AMIN - 4 -