High Court Patna High Court - Orders

Miss Sharbani Shree vs The State Of Bihar &Amp; Ors on 18 January, 2011

Patna High Court – Orders
Miss Sharbani Shree vs The State Of Bihar &Amp; Ors on 18 January, 2011
                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.
                                  -----------

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
2

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
3

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