IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10473 of 1996 1.TOONA RAUT son of Late Badri Raut, Resident of Mohalla-Banjaria, Pandal, P.S. Banjaria, P.O. Motihari,District East Champaran. 2.Ramchandra Singh S/O Sri Raghunath Singh, Resident of Village Murarpur, P.S. Harsidhi, District East Champaran. Versus 1.THE STATE OF BIHAR 2.The Secretary, Department of Science and Technology, New Secretariat, Bailey Road, Patna. 3.The Additional Secretary, Department of Science and Technology, New Secretariat, Bailey Road, Patna. 4.The Members of newly Constituted Screening Committee, Department of Science and Technology, New Secretariat, Bailey Road, Patna. 5.The Special Secretary, Department of Science and Technology, Govt. of Bihar, Bailey Road, Patna. 6.The District Magistrate, East Champaran, Motihari. 7.The Principal, Indian College of Engineering, Motihari, East. Champaran. ----------- 6 14/1/2010 Heard Mr. Sriprakash Shrivastava, learned counsel appearing on behalf of the petitioners and Mr. Anil Kumar Jha, learned counsel for the State. Prayer of the two petitioners in this writ application reads as follows:- “(I)To issue a writ in the nature of mandamus for quashing of the office order dated 28.12.1991 bearing memo no.3264 issued under the signature of Respondent No.2 (Annexure 4). (II)To issue a writ in the nature of mandamus for quashing of the impugned order dated 13.9.1996 bearing memo no.1787 (Annexure 11) issued under the signature of Special Secretary Respondent No.4, by which services of the 2 petitioners have been terminated without any sanction of Screening Committee. (III)To declare the impugned orders dated 28.12.1991 bearing memo no.3264 (Annexure 4) issued under the signature of Respondent No.2 and the office order issued on 13.9.1996 bearing memo no.1787 (Annexure 11) issued under the signature of Respondent No.5 is illegal, arbitrary and colourable exercise of power, because the order of termination were issued in complete contravention of recommendation of Screening Committee. (IV)To issue an appropriate writ/writs/ order/ orders/ direction/ directions for commanding the respondents, asking therein that whether prior to issuance of orders impugned they ever followed the recommendation of the Screening Committee. (V)To reinstate the services of the petitioners to the post of Typist with effect from 28.12.1991 with all consequential benefits. (VI)To direct the respondent authorities to make payment of entire back salary and emoluments w.e.f. 30.10.1987. (VII)To direct the respondent authorities to act/ follow the judgment passed by this Hon‟ble Court in CWJC No.1316 of 1991 and other analogous cases. Reported in 1996 (1) All PLR 611: 1996 (2) PLJR 20. (VIII)To direct further, to the respondent authorities to follow the order passed by this Hon‟ble Court, passed in C.W.J.C. No.822 of 1992 dated 16.7.1996 (Annexure-6).” Before Mr. Srivastava could make his submission, Mr. Anil Kumar Jha, learned G.A.2 has raised a preliminary objection as with regard to maintainability of this writ application on the ground that this writ 3 application is barred by principles of Resjudicata, inasmuch as, the earlier writ application filed by these two petitioners, C.W.J.C. No.796 of 1992 (filed by petitioner no.1) and C.W.J.C. No.4656 of 1992 (filed by petitioner no.2 along with some others) challenging the validity and correctness of the same order dated 28.12.1991 as contained in Annexure-4 of this writ application, had been dismissed on merits by a Division Bench and therefore this writ application at the instance of two petitioners for setting aside the same order would not be maintainable. Mr. Jha also explains that in fact Annexure-11 is also merely reiterating the order passed in Annexure-4 wherein it has been said that there was no infirmity in the order passed against the petitioners as contained in Annexure-4 and as such Annexure-11 by itself can not give a fresh cause of action to the petitioner. He would also submit that as a matter of fact the whole issue relates to take over of services of the petitioners who were earlier said to be the employees of the Private Engineering College which was taken over by the State Government as per the issue decided by the State Government on 28.12.1991 which has been approved by this Court and therefore no fresh look can be given at least by a Single Judge of this Court. Mr. Sriprakash Srivastava, learned counsel for the petitioner, on the other hand, would submit that true it 4 is that the two petitioners had earlier filed the aforementioned two writ applications assailing the same order, Annexure-4 to this writ application, but then as subsequent events had taken place whereby and whereunder, a learned Single Judge of this Court had noticed the judgment passed by the Division Bench in the case of the petitioners and had found the same to be not applicable to the facts of cases of other petitioners, inasmuch as, principles of natural justice was not followed in termination of their services and therefore when the said judgment of the learned Single Judge since reported in 1996 (2) PLJR 20 has also been affirmed up to the Apex Court in Civil Appeal No.2542 of 2002 and other analogous cases, this Court in the interest of justice should waive this objection of resjudicata. Mr. Shrivastava, in this context has also placed reliance on the judgment of the Full Bench in the case of „Md. Nazimuddin & Anr. Vs. State of Bihar & Ors‟ reported in 1990 (2) PLJR 505. In the opinion of this Court, the preliminary objection raised by counsel for the State must be upheld and consequently, this writ application must be held to be barred by principles of resjudicata. From the judgment of the Division Bench in the earlier writ application filed by the petitioner (Annexure-12), it would be absolutely clear that as the order dated 28.12.1991 terminating the 5 petitioner from services was made subject matter of as many as six writ applications, all of whom were the employees of the Private Engineering College. The Division Bench after discussing merits of the case had found no merit in all the aforesaid writ applications and they were dismissed. Once order of termination assailed by the two petitioners in their earlier writ application was dismissed there would be no question of the petitioners being allowed to raise the same question of termination of their services in a fresh writ application. The plea of Mr. Shrivastava that the aforesaid Division Bench judgment was not approved by the learned Single Judge in the case of „Raghunath Singh (Supra)‟ reported in 1996 (2) PLJR 20 has to be also noted for its being rejected. Paragraphs 36 and 37 of the said judgment in this regard reads as follows:- “36.Learned counsel for the resondents has relied upon a Division Bench judgment of this Court in the case of Sadanand Jha vs. State of Bihar reported in 1993 (2) P.L.J.R. page 272. While delivering the said decision orders of termination passed in respect of some employees under the same Ordinance were also the subject matter of challenge in the said decision. But in the said decision the only point on which the learned counsel for the petitioner of that case assailed the order of termination was that the decision was taken without determination of the staffing pattern. The Court while considering the said argument up-held the orders of termination. The present question which 6 is considered by this Court was never argued and never fell for consideration before the Court. In fact, sub.section (3) of Section 5 of the said Ordinance was not examined in that case. 37.Therefore, for the reasons aforementioned the said judgment is not an authority on the proposition which is considered by this Court here. This Court, therefore, does not feel bound by the Division Bench Judgment of this Court in the said case of Sadanand Jha (Supra) which was given completely on a different point.” Once, this Court in the case of Raghunath Singh (Supra) has only distinguished the judgment of the writ petitioners of those cases that will not give the petitioners a new cause of action to file a fresh writ application for assailing the same order of which the Division Bench had already made its pronouncement and had dismissed the same. The principles of resjudicata and constructive resjudicata are being well applicable even to the writ proceedings, this Court must uphold the preliminary objection taken by learned counsel for the State. The reliance placed by Mr. Shrivastava on the judgment of the Full Bench of this Court in the case of Md. Nazimuddin (Supra) also seems to be misplaced, inasmuch as, even in that judgment the plea of resjudicata was noted in paragraph 6 and 7 and it was found that whereas in C.W.J.C. No. 754 of 1986 ® the petitioners of that case in the subsequent writ applications were not parties and in 7 the second writ application C.W.J.C. No.1302 of 1987 (R) wherein they were parties and they had filed a review application and in that review application there was an order of the Division Bench dated 13.8.1987 as recorded in paragraph 13 of the judgment that if there be some fresh material which were not known to the petitioners of that case and if they come to their light they could file a fresh writ application. Obviously, whatever was said in the judgment of the Full Bench on noticing the pleas in paragraph nos. 6, 7 and 13 is not at all applicable to the facts of the present case, inasmuch as, judgment of the Division Bench in the writ applications of the petitioners affirming their order of termination has since become final, inasmuch as, the same was never made subject matter either in appeal or review at the instance of the petitioner. That being so, this Court must hold this writ application to be not maintainable and consequently the same is hereby dismissed. Abhay Kumar (Mihir Kumar Jha, J.)