Jharkhand High Court
Jagdish Prasad Son Of Late Ramlakhan vs Bank Of India Through The Chief Managing ... on 15 April, 2025
Author: Deepak Roshan
Bench: Deepak Roshan
2025:JHHC:12123
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P(S) No. 1812 of 2025
----
Jagdish Prasad son of late Ramlakhan, aged about 61
years, Resident of-House No. 1077, Kumharpura, P.O.
Sonari, P.S. Sonari, Jamshedpur, District-East Singhbhum,
Jharkhand ..... Petitioner
Versus
1. Bank of India through the Chief Managing Director, Head
Office, Bank of India, C-5, G-Block, Bandra Kurla
Complex, Bandra (East), P.O. and P.S. Bandra-Kurla,
District- Mumbai, Maharashtra.
2. The General Manager, Human Resource Department
(Personnel), Bank of India, C-5, G-Block, Bandra Kurla
Complex, Bandra (East), P.O. and P.S. Bandra-Kurla,
District-Mumbai, Maharashtra.
3. The Zonal Manager, Bank of India, Jamshedpur Zonal
Office, 2nd Floor, Main Road Bi, P.O. and P.S. Sakchi,
Jamshedpur, District- East Singhbhum, Jharkhand.
....Respondents
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CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN
--
For the Petitioner : Mr. Jorong Jedan Sanga, Advocate
For the Resp. Nos.1-3 : M/s.Shresth Gautam, Himanshu
Harsh, Advocates
--
05/15.04.2025 Heard learned counsel for the parties.
2. The instant writ petition has been preferred by
the petitioner praying for a direction upon the Respondent
Authorities to grant notional benefit of promotion to the
petitioner from 1989 as and when it fell due since the
petitioner possesses all the mandatory required
qualifications and his name was short listed for promotion
in the year 1989, but the same was not considered by the
respondents for unjust administrative reasons.
3. At the outset, learned counsel for the
Respondent-Bank raises a preliminary objection with
regards to the maintainability of this petition and submits
that the instant writ application is fit to be dismissed as the
Petitioner had earlier filed a writ petition being W.P.(S) No.
1436 of 2019 for the same and similar relief and the same
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was dismissed as withdrawn; as such, this petition may
also be dismissed.
4. In reply to the aforesaid contention made by
learned counsel for the Respondent-Bank, counsel for the
petitioner contends that if we peruse the prayer in both
these writ petitions, the same are different; however learned
counsel could not demonstrate that there is fresh cause of
action and/or the relief prayed for in the earlier writ
petitioner was different.
5. Since the records of W.P.(S) No. 1436 of 2019 is
before this Court; as such, for brevity the prayer made in
the earlier writ application has been extracted hereinbelow:
"For a direction upon the concerned respondent to
grant promotion of the petitioner from 1989 with
monetary benefits as petitioner has been promoted
in the year 01 February 2016 though petitioner
possess all the mandatory qualifications and his
name was sort listed for promotion in the year
1989 for CTO and consequential benefits arising
out of promotion from 1989."
6. From perusal of the prayer/averments made in
this petition and also the earlier petition which was
dismissed as withdrawn; it clearly transpires that the
prayer/grounds/submissions made in the instant writ
petition as well as previous writ petition being W.P (S) No.
1436 of 2019 are almost same and similar, save and except,
a word notional has been added in the present writ petition;
however the grounds for which the petitioner is seeking
direction is totally same and similar.
At this stage, it is also necessary to refer the
order passed in W.P.(S) No. 1436 of 2019, which clearly
transpires that after some argument learned counsel for the
petitioner withdrew his writ petition.
7. Having regard to the aforesaid facts and
circumstances of the case, since the Petitioner had earlier
filed a writ petition being W.P.(S) No. 1436 of 2019, which
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was dismissed as withdrawn after some argument, vide
order dated 21.02.2024; filing of the fresh writ petition
changing some words in the prayer portion but without
having any new cause of action, this Court is not inclined
to issue any mandamus upon the Respondent-Bank.
In the case of Sarguja Transport Service
(Supra), the Hon'ble Apex Court has already held in Paras-
8 & 9 of the judgment that it may not act as res judicata,
but certainly it is against the public policy.
"8. The question for our consideration is whether it would or
would not advance the cause of justice if the principle underlying
Rule 1 of Order XXIII of the Code is adopted in respect of writ
petitions filed under Articles 226/227 of the Constitution of India
also. It is common knowledge that very often after a writ petition
is heard for some time when the petitioner or his counsel finds
that the court is not likely to pass an order admitting the petition,
request is made by the petitioner or by his counsel to permit the
petitioner to withdraw from the writ petition without seeking
permission to institute a fresh writ petition. A court which is
unwilling to admit the petition would not ordinarily grant liberty to
file a fresh petition while it may just agree to permit the
withdrawal of the petition. It is plain that when once a writ
petition filed in a High Court is withdrawn by the petitioner
himself he is precluded from filing an appeal against the order
passed in the writ petition because he cannot be considered as a
party aggrieved by the order passed by the High Court. He may
as stated in Daryao v. State of U.P. in a case involving the
question of enforcement of fundamental rights file a petition before
the Supreme Court under Article 32 of the Constitution of India
because in such a case there has been no decision on the merits
by the High Court. The relevant observation of this Court
in Daryao case is to be found at page 593 and it is as follows:
If the petition is dismissed as withdrawn it cannot be a bar
to a subsequent petition under Article 32, because in such
a case there has been no decision on the merits by the
court. We wish to make it clear that the conclusions thus
reached by us are confined only to the point of res judicata
which has been argued as a preliminary issue in these
writ petitions and no other.
9. The point for consideration is whether a petitioner after
withdrawing a writ petition filed by him in the High Court under
Article 226 of the Constitution of India without the permission to
institute a fresh petition can file a fresh writ petition in the High
Court under that article. On this point the decision in Daryao case
is of no assistance. But we are of the view that the principle
underlying Rule 1 of Order XXIII of the Code should be extended
in the interests of administration of justice to cases of withdrawal
of writ petition also, not on the ground of res judicata but on the
ground of public policy as explained above. It would also
discourage the litigant from indulging in bench-hunting tactics. In
any event there is no justifiable reason in such a case to permit a
petitioner to invoke the extraordinary jurisdiction of the High Court
under Article 226 of the Constitution once again. While the
withdrawal of a writ petition filed in a High Court without
permission to file a fresh writ petition may not bar other remedies
like a suit or a petition under Article 32 of the Constitution of India
since such withdrawal does not amount to res judicata, the
remedy under Article 226 of the Constitution of India should be
deemed to have been abandoned by the petitioner in respect of
the cause of action relied on in the writ petition when he
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withdraws it without such permission. 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. We, however, make it clear that whatever we
have stated in this order may not be considered as being
applicable to a writ petition involving the personal liberty of an
individual in which the petitioner prays for the issue of a writ in
the nature of habeas corpus or seeks to enforce the fundamental
right guaranteed under Article 21 of the Constitution since such a
case stands on a different footing altogether. We, however leave
this question open."
8. Having regard to the aforesaid discussions, the
instant writ application stands dismissed.
(Deepak Roshan, J.)
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