1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.8723 OF 2009 Gopinath S/o Vishnu Sonawane, Age 26 years, Occ.Education, R/o Pishor, Tq.Kannad, Dist. Aurangabad. ... Petitioner. Versus 1.The State of Maharashtra through Secretary, School Education Dept, Mantralaya, Mumbai-32. 2. Maharashtra State Board of Secondary & Higher Secondary Education, Pune, through its Divisional Secretary, Divisional Board, Aurangabad. 3. The Principal, Janata Shikshan Prasarak Mandal, D.Ed. College, By-pass Road, Aurangabad. ... Mr.S.D.Kotkar, advocate for the petitioner. Mr.S.V.Kurundkar, Additional Govt. Pleader for the State. ... CORAM : P.V.HARDAS AND : S.V.GANGAPURWALA,JJ. Date : 19.03.2010. 2 PER COURT 1. This petition is a gross instance of the abuse of process of Court at the instance of the petitioner by filing the present Writ Petition. The narration of the facts either to highlight this aspect. 2. The petitioner had filed Writ Petition No.603/2007, challenging the decision of the Respondent Board in respect of declaring the petitioner as "no candidate". At this juncture we do not advert to the facts of that Writ Petition. Suffice it to state that this Writ Petition, namely, Writ Petition No.603/2007 filed by the present petitioner and Writ Petition No. 602/2007 filed by another petitioner came to be dismissed by the Court by its order dated 9.4.2007. The reasons as to why the Division Bench felt that no interference was called for is also not germane for the decision of the present petition. 3. The aforesaid order passed by the Division Bench of this Court was passed on 3 9.4.2007 by which the petition filed by the present petitioner came to be dismissed. The petitioner instead of availing the remedies available to the petitioner in law of challenging the judgment/order of Division Bench slept over his right and has filed the present petition which is a substantive petition under Article 226 of the Constitution of India. 4. The pleadings of the petitioner in this petition from paragraph 7 to 13 are reproduced below : "7. The petitioner submits that, the petitioner filed writ petition No. 603/2007 before this Hon'ble Court, challenging the said notification dated 19.1.2007, issued by the respondent No.2, declaring the petitioner as "No candidate" in respect of the H.S.C. examination conducted by the Aurangabad Division Board in Science. The petitioner submitted before this Hon'ble Court 4 that, the impugned notification dated 19.1.2007, issued by the respondent No.3 is against the principle of natural justice as the same is issued without conducting any inquiry or issuing any show-cause notice to the petitioner. The petitioner also submitted before this Hon'ble Court that,there is no provision in which, the petitioner can be debar for 2nd time examination in H.S.C. The petitioner also submitted before this Hon'ble Court that, the petitioner has not made any fraud while seeking admission in XIIth Science. The petitioner also submitted in the writ petition that, after declaring the results, the Board is estopped from cancelling the result already declared or declaring petitioner as "No candidate" in the examination. In all these grounds, the petitioner sought quashing of the notification dated 19.1.2007, issued by the Respondent 5 No.2. 8. The petitioner states that, after hearing the parties, this Hon'ble Court by an order dated 9.4.2007, dismissed the petition in view of order dated 7.11.2006, passed in Writ Petition No.5424/2006. Hereto annexed and marked as Exhibit-D collectively are the copies of orders passed in Writ Petition No.603/2007 and Writ Petition No.5425/2006. 9. The petitioner states that, petition of the petitioner is dismissed solely on the ground that, the identical petition being the Writ Petition No.5425/2006 is dismissed by this Hon'ble Court. The petitioner submits that, the Writ Petition No. 5425/2006 is dismissed on the ground that, there is no rule by which, a candidate can be allowed to appear for H.S.C. Examination (when he has 6 already cleared in first attempt) again on second occasion for the purpose of improving the performance of the candidate. The petitioner submits that, the petitioner argued the point of estoppel while hearing of the petition and relied on the reported judgment in the matter of Shrikrishna Vs. Kurukshetra University (AIR 1976 SC 376). However, this Hon'ble Court referred the judgment in the order but did not apply the ratio laid down by the Hon'ble Supreme Court in the said case. The petitioner submits that, the Hon'ble Court while dealing with the Writ Petition No. 5425/2006, relied on the provisions of Regulation 92(5) of the Maharashtra Secondary & Higher Secondary Education Boards, Regulation Act, 1977 and dismissed the Writ Petition. The petitioner states that, there is no bar under the Regulations or the Act to appear a candidate for second time 7 examination by changing the stream. The petitioner appeared for 12th Science by taking different subjects than the subjects, in which the petitioner passed XIIth Arts Examination except the language subjects and therefore, it is not that, the petitioner has repeated the examinations and the subjects by taking second attempt. These factual aspects are not considered by Hon'ble Court while dealing with the Writ Petition No.5425/2006 as well as 603/2007. 10. The petitioner submits that, while dealing with both the petitions, the principle of promissory estoppel is not considered by this Hon'ble Court and as such, the same is not applied while deciding the petition. That, in view of the principle of estoppel, having admitted and allowed to prosecute the studies of XIth and 8 XII th Science examination and thereafter permitted to appear for the examinations and also by declaring the results of the said examination, it was not thereafter permissible in law to the respondents to cancel the performance and declare that, the petitioner did not appear for the examination. That, the petitioner did not play fraud either with the school authorities or with the Board by appearing in XIIth Science examination. The Regulations do not forbid the candidate to change the stream and re-appear for the examination and therefore, the action of the Board is illegal. 11. The petitioner states that, the petitioner stated in the petition that, writ petition No.4599/2000 is pending before this Hon'ble Court and the similar question is involved in that matter. It is submitted before 9 this Hon'ble that, the above referred writ petition is admitted by the Hon'ble Court and interim relief is also granted and therefore, the petitioner seeks the relief identical to the relief granted in the said petition. The fact foundation of writ petition No.4599/2000 and the present petitioner is similar and identical. In view of this, the petitioner deserves to be protected by the same relief. 12. The petitioner states that, while dealing with the similar facts of the case, this Hon'ble Court in W.P.No. 5952/2007 pleased to allow the writ petition on the ground of doctrine of promissory estoppel which is reported in 2008 (6) ALL M.R. 799. The petitioner states that, the above reported judgment is similar on factual as well as on legal aspects of the present matter. 10 13. The petitioner is seeking recall of the earlier order passed in W.P.No.603/2007 on the ground of equality before law as well as the ground of doctrine of promissory estoppel which is not considered by this Hon'ble Court while passing the orders in the Writ Petition No. 5425/2006 as well 603/2007. The petitioner states that, after passing of the XIIth examination, the petitioner was admitted to the D.Ed. course and the petitioner has completed his D.Ed. education. The petitioner states that, after the notification issued by the respondent No.2, the respondent NO.3 has refused to declare the result of second year D.Ed. If, the petition is not re- heard by this Hon'ble Court, the petitioner will loose his educational career permanently. Therefore, it is necessary to hear the matter on the 11 ground agitated in this writ petition, which is not considered by this Hon'ble Court while dealing with the earlier petitions. Hereto annexed and marked as Exhibit-E is the copy of reported judgment in 2008(6) ALL M.R. 799." The gross abuse of process of Court in filing the present petition is further pointed out by the averments at paragraph 9 of the petition and we have reproduced above. We will only extract a sentence from para 9 to highlight this aspect : "However, this Hon'ble Court referred the judgment in the order but did not apply the ratio laid down by the Hon'ble Supreme Court in the said case". A second petition at the instance of the same party is admittedly maintainable, however, in certain respect only. As to when a second writ petition can be filed after decision of the first petition is enunciated by the Supreme Court in "Pohla Singh alias Pohla Ram (D) 12 by LRs. and another Vs. State of Punjab and others" (2004) 6 Supreme Court Cases 126. A second petition at the instance of third person who was not a petitioner to the first petition would be maintainable for recalling the order in the earlier petition on various grounds are also includes obtaining an order behind the back of the subsequent petitioner which adversely affect another. The grounds are dealt with in detail by the Supreme Court in the aforesaid judgment. A reference in this behalf may also usefully made to the judgment of the Supreme Court in "Ramchandra Ganpat Shinde and another Vs. State of Maharashtra and others" AIR 1994 Supreme Court 1673, in which Supreme Court has held that the second petition would be maintainable if the earlier order had been obtained by fraud. In the present case, the petitioner himself was the petitioner before the Court. The Division Bench by its order dismissed the petition. A Coordinate Bench does not act as an appellate Court and no grounds can be taken before Coordinate Bench much less in subsequent petition alleging that the earlier Division Bench has not 13 considered either judgments or had failed to apply the ratio of the judgment cited before it. The role of the second petition is extremely limited and can not be stretched to be an appeal filed under guise of a second petition. Suffice it to say that there is no merit in the petition. This petition is not maintainable. The learned counsel for the petitioner has referred to the judgment of the Supreme Court in "Shivdeo Singh and others Vs.State of Punjab and others" AIR 1963 Supreme Court 1909. The facts of the judgment of the judgment of the Supreme Court itself states as to the factual matrix. The Supreme Court decided the said petition. In Shivdeo, a Writ Petition had been filed for cancellation of an order of allotment passed by the Director of Rehabilitation in favour of B and the High Court had cancelled the order in favour of B though he was not a party to the writ proceedings. Subsequently, B filed a petition under Article 226 for impleading him as a party to A's Writ Petition and rehearing the whole matter. The High Court had allowed the said Writ Petition. The Supreme Court held that in those 14 circumstances, the second Writ Petition was maintainable. The above factual aspects distinguishes the ratio of the judgment of the Supreme Court in "Shivdeo Singh and others Vs. State of Punjab and others" (supra) and is wholly inapplicable in support of the proposition that despite the dismissal of the petition, a second Writ Petition could be filed alleging that earlier Division Bench had not considered the judgment cited before it. The ratio of the judgment of the Supreme Court in Shivdeo Singh (supra) also can not be stretched in support of the proposition that Coordinate Bench can sit as an appellate Court over a judgment or the order rendered by the previous Division Bench. Such procedure itself is gross abuse of process of law. We, therefore, not inclined to interfere in this petition since it is a gross abuse of process of law, we dismiss the petition. (S.V.GANGAPURWALA,J.) (P.V.HARDAS,J.) asp/office/wp872309