IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No.8195 of 2009
MISS SHARBANI SHREE AGE ABOUT 28 YEARS D/O DILIP KUMAR,
R/O FORBESGANJ, P.S.K HAT, DISTT-PURNEA ............PETITIONER
Versus
1. THE STATE OF BIHAR THRU THE CHIEF SECRETARY, GOVT. OF
BIHAR HAVING HIS OFFICE AT OLD SECRETARIAT, P.S.
SACHIVALAYA, DISTT-PATNA.
2. THE PRINCIPAL SECRETARY, PERSONNEL AND ADMINISTRATIVE
REFORMS DEPARTMENT, GOVT. OF BIHAR HAVING ITS OFFICE AT
OLD SECRETARIAT, P.S. SACHIVALAYA, DISTT-PATNA.
3. THE PRINCIPAL SECRETARY, HUMAN RESOURCES
DEVELOPMENT DEPARTMENT, GOVT. OF BIHAR HAVING HIS
OFFICE AT VIKAS BHAWAN, P.S. SACHIVALAYA, DISTT-PATNA.
4. THE DIRECTOR, SECONDARY EDUCATION, GOVT. OF BIHAR
HAVING HIS OFFICE AT VIKAS BHAWAN, P.S. SACHIVALAYA,
DISTT-PATNA.
5. THE DIVISIONAL COMMISSIONER, PURNEA DIVISION, PURNEA.
6. THE DISTRICT COLLECTOR, PURNEA.
7. THE REGIONAL DEPUTY DIRECTOR, EDUCATION, PURNEA
DIVISION, PURNEA.
8. THE DISTRICT EDUCATION OFFICE PURNEA.
9. THE EXECUTIVE OFFICER, NAGAR PARISHAD, PURNEA.
10. THE MEMBER APPELLATE AUTHORITY, ZILA SHIKSHAK
NIYOJAN, PURNEA.............................................RESPONDENTS.
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06/ 18-Jan-2011 Heard learned counsel for the petitioner and
learned counsel for the State.
2. Petitioner has prayed for declaring Rule 4 (ka)
(ii) of Bihar Nagar Nikay Madhyamik Evam Uchchattar
Madhyamik Shikshak (Niyojan Evam Seva Shartien)
Niyamawali, 2006 as ultra vires and also seeking
quashing of Annexure-1 whereby the appellate authority
dismissed the appeal preferred by the petitioner against
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cancellation of her appointment on the post of Hindi
Teacher in Government Girls’ High School, Purnea.
3. Learned counsel for the State has raised a
preliminary objection on the ground of res
judicata/constructive res judicata in the light of order
dated 17.03.2009 contained in Annexure-15 whereby an
earlier writ petition preferred by the petitioner and others
bearing CWJC No. 10186/2008 seeking relief against
cancellation of appointment was dismissed as withdrawn
without seeking any liberty to prefer fresh writ petition.
4. The fact that earlier writ petition preferred by
the petitioner was dismissed as withdrawn without any
liberty is not in dispute. Learned counsel for the
petitioner has submitted that the ground of invalidity of
the relevant Rule was not taken in the earlier writ
petition and at that time a review petition was pending
before the appellate authority which has been
subsequently dismissed on 18.04.2009 vide an order
which is a part of Annexure-1 series.
5. An additional ground cannot form the basis
for preferring a second writ petition as it would be barred
by principles of constructive res judicata. So far as the
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pendency of a review petition is concerned, since the
review has been dismissed and the earlier appellate order
stands confirmed, there is no change in factual situation
to create a fresh cause of action for preferring a second
or subsequent writ petition. The appellate order dated
31.12.2008 was not interfered with by this Court when
the earlier writ petition was dismissed as withdrawn and
petitioner cannot be granted any relief unless the same
appellate order contained in Annexure-1 series is
interfered with or set aside.
6. Thus we find ourselves unable to give any
relief to the petitioner. The writ petition has to be held as
barred by principles of res judicata/constructive res
judicata in view of law laid down in paragraph-13 of
Supreme Court judgment in the case of Avinash Nagra
v. Navodaya Vidyalaya Samiti & Ors (1997)2 SCC
534. The writ petition is dismissed.
(Shiva Kirti Singh, J.)
(Dr. Ravi Ranjan, J.)
perwez