IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6857 of 2006 SMT. USHA SINHA WIDOW OF LATE DR.KUMAR AWDHESH PRASAD, resident of Sachivalaya Colony, Kankarbagh, District Patna … Petitioner Versus 1. THE CHANCELLOR, PATNA UNIVERSITY, Patna, Raj Bhawan, Patna (Bihar), 2. The Vice-Chancellor, Patna University, Patna, 3. The Registrar, Patna University, Patna, 4. The Director of N.I.T., Bihar College of Engineering Campus, Patna, 5. Bihar State University (Constituent College) Service Commission, North Shri Krishnapuri, Patna-13, 6. The Officer-on-Special Duty (Judicial), Governor’s Secretariat, Bihar, Raj Bhawan, Patna, … … Respondents For the Petitioner: Mr. Nawal Kishore Singh, Advocate, Mr. Binoy Kumar, Advocate, For Chancellor: Mr. Shivendra Kishore, Advocate, For P.U. : Mr. Ajay Kumar Sinha, Advocate For N.I.T.: Mr. Shashi Bhushan Prasad, Advocate ----------- 7 22.02.2011 Heard learned counsel for the parties. The original petitioner had sought quashing of the order dated 09.05.2006, passed by the Chancellor of the Patna University, contained in Annexure 8, whereby petitioner’s claim in his statutory application filed under section 10(4) of the Patna University Act (hereinafter to be referred to as “the Act”) and for a direction to the respondents to grant him Second Time Bound Promotion to the post of Professor with all consequential benefits had not been accepted. However, during the pendency of the writ 2 petition the original petitioner died and I.A. No. 3402 of 2009 was filed for substitution of his widow in his place. The same was allowed vide order dated 14.05.2010. Thus, now the claim of the petitioner is with regard to consequential benefits including the arrears of salary and other retiral benefits of the deceased petitioner after considering the grant of Second Time Bound Promotion to the original petitioner for the relevant period. The original petitioner was appointed as Foreman Instructor (Mechanical) in the Bihar College of Engineering on 15.03.1973. However, by a notification of the Patna University dated 24.07.1984, as contained in Annexure 1, the post of the petitioner i.e. Foreman Instructor (Mechanical) was redesignated as Lecturer in the Workshop (Mechanical). By a subsequent notification dated 29.11.1984, as contained in Annexure 2, such redesignation was made effective from 01.01.1973. Thereafter the deceased petitioner was given first time bound promotion to the post of Reader vide Annexure 3 dated 19.06.2001 with effect from 01.02.1983. However, the case of the petitioner for Second Time Bound Promotion was not considered and he was not granted second time bound promotion to the post 3 of University Professor. Being aggrieved by such non-consideration for his second time bound promotion, the petitioner filed a statutory representation under section 10(4) of the Act before the Chancellor of the Patna University, however, pending decision by the Chancellor, the writ petition bearing C.W.J.C. No. 1673 of 2004 was also filed, which was dismissed as withdrawn as the petitioner sought permission to withdraw the same. Thereafter, the petitioner again filed a detailed representation before the Chancellor, Patna University, mentioning the aforesaid factum of filing the writ petition before this Court. However, respondent no. 1 took a decision vide Annexure 8 that since the writ petition was dismissed as withdrawn, on the basis of legal advice given to him, no further action was required to be taken in the matter. As such, the petitioner has challenged the aforesaid order dated 09.05.2006, passed by the Chancellor of the Patna University, as contained in Annexure 8. Learned counsel for the petitioner submitted that it had been clearly stated in the second representation filed before the Chancellor of the Patna University that for the reason that the first representation was pending, the writ 4 application was withdrawn to pursue the same but the Chancellor rejected his application on the ground that the writ petition filed by the petitioner was withdrawn. Learned counsel for the Patna University submitted that since the earlier writ petition as per the desire of the petitioner was dismissed as withdrawn, the Chancellor of the Patna University has passed correct order and this writ petition having been filed for self- same relief would be barred by the principles of res judicata. However, learned counsel for the petitioner submitted that though the words are absent in the order that he was withdrawing the writ petition for pursuing his representation, any statutory representation filed already before the Chancellor would not be barred as the order cannot be held to be a speaking one and this writ application would also not attract the principles of res judicata. Learned counsel for the petitioner placed reliance upon a decision of the Constitution Bench of the Apex Court rendered in Daryao and others v. State of U.P. and others (AIR 1961 Supreme Court, 1457). It is submitted that the Apex Court, in its aforesaid decision, has clearly held that though the principles of res judicata would also be 5 applicable in the writ petition, however, if the petition filed under Article 226 of the Constitution is dismissed as withdrawn, the same cannot be a bar to a subsequent petition under Article 32 of the Constitution, as in such a case there has been no decision of the Court on merit which could bind it by the principles of res judicata or even the constructive res judicata. Learned counsel submitted that in view of the aforesaid decision of the Apex Court this writ application would not attract a bar under the principle of res judicata. As there was no decision on merit by this Court, statutory representation filed under the Act pending before the Chancellor of the Patna University should have been decided on its merit. Learned counsel for the respondent-Patna University further submitted that in the case of Daryao and others v. State of U.P. and others (supra) the Apex Court has held only to the extent that if an application under Article 226 of the Constitution is dismissed as withdrawn, it would not bar a subsequent petition under Article 32 of the Constitution before the Apex Court. But a subsequent petition under Article 226 of the Constitution would attract the principle of res judicata, and, thus, the same would be 6 barred. The aforesaid submission put forward on behalf of the respondent University is only noted to be rejected. The Apex Court in the case of Daryao and others v. State of U.P. and others (supra) has considered this aspect of the matter and has held that in case the order is speaking one then even the order dismissing the application in limine without noticing the otherside would operate as res judicata, and, thus, the subsequent petition under Article 32 of the Constitution before the Apex Court would be barred in view of the specific bar under the principle of res judicata. However, in case of non-speaking order and specially in case of dismissal of the writ petition as withdrawn it would be in breach of the principles of res judicata. It would be pertinent to quote the relevant paragraph of the aforesaid decision of the Apex Court: “19. We must now proceed to state our conclusion on the preliminary objection raised by the respondents. We hold that if a writ petition filed by a party under Art. 226 is considered on the merits as a contested matter and is dismissed the decision thus pronounced would continue to bind the parties unless it is 7 otherwise modified or reversed by appeal or other appropriate proceedings permissible under the Constitution. It would not be open to a party to ignore the said judgment and move the Court under Art. 32 by an original petition made on the same facts and for obtaining the same or similar orders or writs. If the petition filed in the High Court under Art. 226 is dismissed not on the merits but because of the laches of the party applying for the writ or because it is held that the party had an alternative remedy available to it, then the dismissal of the writ petition would not constitute a bar to a subsequent petition under Art. 32 except in cases where and if the facts thus found by the High Court may themselves be relevant even under Art. 32. If a writ petition is dismissed in limine and an order is pronounced in that behalf, whether or not the dismissal would constitute a bar would depend upon the nature of the order. If the order is on the merits it would be a bar; if the order shows that the dismissal was for the reason that the petitioner was guilty of laches or that he had an alternative remedy it would not be a bar, except in 8 cases which we have already indicated. If the petition is in limine without passing a speaking order then such dismissal cannot be treated as creating a bar of res judicata. It is true that, prima facie, dismissal in limine even without passing a speaking order in that behalf may strongly suggest that the Court took the view that there was no substance in the petition at all; but in the absence of a speaking order it would not be easy to decide what factors weighed in the mind of the Court and that makes it difficult and unsafe to hold that such a summary dismissal is a dismissal on merits and as such constitutes a bar of res judicata against a similar petition filed under Art. 32. If the petition is dismissed as withdrawn it cannot be a bar to a subsequent petition under Art. 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. It is in the light of this decision that we will now proceed to examine the 9 position in the six petitions before us.” Thus, in view of the aforesaid decision it would not be proper to hold that even though the first writ petition was dismissed as withdrawn, though the subsequent petition under Article 32 of the Constitution would not be barred, but a subsequent petition under Article 226 of the Constitution before the High Court would be barred by the principles of res judicata. Thus, in the opinion of this Court, the principle as laid down in the case of Daryao and others v. State of U.P. and others (supra) would cover the subsequent case filed under Article 226 of the Constitution as well. Thus, this writ application is held to be maintainable. Having held so, in the opinion of this Court, the Chancellor of the Patna University could have decided the statutory representation filed by the original petitioner before it, as in the earlier decision of this Court, no opinion with regard to the merit of the case was expressed. However, since the original petitioner has already died, let the petitioner again file a representation before the Chancellor of the Patna University, respondent no. 1, within one month from the date of passing of this order and 10 let a decision, therefore, be taken by the respondent no. 1 in accordance with law. It is further observed that since the original petitioner has already died and the widow is pursuing the matter for consequential and retiral dues etc. of her deceased husband, let the decision be taken by the respondent no. 1 expeditiously. Accordingly, this writ application is allowed and the order dated 09.05.2006, passed by the respondent no. 1, as contained in Annexure 8, is set hereby set aside. It is made clear that this Court has not expressed any opinion with regard to the merit of the case of the petitioner for second time bound promotion. SC (Dr. Ravi Ranjan, J.)