IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.6473 of 2010 1. Jafruddin Khan S/O Md. Aziz Khan R/O Vill.- Munji, P.S.- Karakat Comp, Gorari, Distt.- Rohtas Versus 1. The State Of Bihar, Through Its Commissioner Cum Secretary Road Construction Department, Govt. Of Bihar, Vishweshwaraiya Bhawan, Bailey Road, Patna 2. The Chief Engineer Central Desigin Organisation Road Construction Department, Govt. Of Bihar, Vishweshwaraiya Bhawan, Bailey Road, Patna 3. The Superintending Engineer Road, Circle Area, Distt.- Bhojpur 4. The Executive Engineer Bhojpur Road Circle Area, Distt.- Bhojpur 3/ 15/09/2011 Heard learned counsel for the petitioner and the State. The petitioner questions the order dated 25.10.2000 removing him from the post of Laboratory Helper. It is submitted that the order was in violation of Principles of Natural Justice without any opportunity to show cause. The petitioner was appointed on 7.12.1994 by the Executive Engineer with the approval of the Superintending Engineer and had worked for six long years. Others similarly situated came to this Court in C.W.J.C. No.11776/06 disposed on 25.7.2007 when their termination was set aside, affirmed in Letters Patent jurisdiction. Learned counsel for the State from the appointment letter of the petitioner appended to the 2 counter affidavit submits that the appointment itself was not in accordance with law. No advertisement was issued. It does not state that it was being made against a vacant sanctioned post. The petitioner has annexed the order of termination to his supplementary affidavit which adequately states that his appointment was not made in accordance with law. The petitioner came to this Court earlier in C.W.J.C. No.9585/01 which was dismissed as withdrawn as the petitioner desired to pursue his representation before the authorities. There can be no gainsaying that such orders are passed when the petitioner is unable to persuade the Court to pass an order favourable on the writ petition, and which is then withdrawn rather than inviting an adverse verdict. If the writ petition was dismissed as withdrawn without liberty to file a fresh writ petition, the petitioner is precluded from filing a fresh writ petition on the same cause of action as held in (1987) 1 SCC 5 (Sarguja Transport Service Vs. S.T.A.V.) at Paragraph-9 as follows:- “9……….. In the instant case the High Court was right in holding that a fresh writ petition was not maintainable before it in respect of the same subject-matter since the earlier writ petition had been withdrawn without permission to file a fresh petition………….” 3 The Court did not direct him to represent. It was the wisdom of the petitioner himself. No cause of action will accrue for the same relief on any fresh order when the Court originally found none. The Supreme Court in (2010) 2 SCC 59 (Union of India Vs. M.K. Jarkar) has cautioned that such orders generate litigation holding at Paragraph-16 as follows:- “16. A court or tribunal, before directing “consideration” of a claim or representation should examine whether the claim or representation is with reference to a “live” issue or whether it is with reference to a “dead” or “stale” issue. If it is with reference to a “dead” or “stale” issue or dispute, the court/tribunal should put an end to the matter and should not direct consideration or reconsideration…….” Reliance on the order in C.W.J.C. No.11776/06 is completely misconceived as it appears that the consideration therein was being made in the background of the assertion that the persons were appointed against vacant sanctioned post when the appointment letter of the petitioner appended to the counter affidavit does not contain any such recital. The judgment in the case of State of Karnataka vs. Umadevi (2006) 4 SCC 1 has adequately clarified at paragraph- 43 and 55 that persons like the petitioner do not come 4 within the category mentioned in paragraph-53 to be considered as a one time measure for regularization after ten years of service as further explained in (2010) 3 SCC 115 (State of Karnataka Vs. GanpaChaya Nayak) (2010)4 SCC 179 (Satya Prakash Mishra Vs. State of Bihar). Whether it be the applicability of res judicata or merits, the writ application has no merit. The application is dismissed. KC ( Navin Sinha, J.)