- (1.) THE instant writ petition has been filed for issuing a direction to the respondents to release the annual grade increments and fix the salary of the petitioner as and when the same fell due and pay him all that became payable on that account alongwith interest @ 18% per annum as and when the same became payable and were not paid to the petitioner, and further to direct the respondents to fix the salary of the petitioner consequent to the aforesaid reliefs and further direction to the respondents to grant other benefits such as leave etc. which are granted to regularly appointed Class IV employees.
(2.) THE facts and circumstances giving rise to this case are that petitioner was initially appointed on daily wages in 1984 alongwith the respondents as Class IV employee. He filed S. B. Civil Writ Petition No. 3906/1990 for seeking the relief of regularisation and grant of equal pay for equal work. THE said writ petition was decided on 6. 9. 1993 and the operative part of the order runs as under:- "on the facts and circumstances of the present case, the petitioner is not entitled to regularisation, but he is entitled to get equal wages . . . . as was being given to regularly employed Class IV employees. Consequently, the writ petition succeeds and is allowed partly. THE petitioner would be entitled to get equal wages as was being given to similarly situated Class IV employees. His entitlement to get wages would be from the date of filing of the writ petition. " Though the writ petition was decided on 6. 9. 93 but the petitioner made a representation on 3. 5. 95 that he was entitled for regular pay scale and arrears of Rs. 40,166/ -. However, the petitioner was paid the difference of the minimum of the regular pay scale of Class IV employee and whatever had already been paid by the respondents, on 15. 7. 95, and it appears that some extra amount had also been paid. The petitioner, now, claims that in pursuance of the said judgment and order dated 6. 9. 93, the respondents have not granted the annual grade increments of the pay scale and other benefits like leave etc. and petitioner's apprehension is that while computting the arrears on account of grant of regular pay scale, the increments have not been allowed to him. Hence this writ petition. Mr. Mridul has submitted that as per the said judgment, petitioner is entitled to get annual grade increments etc, as the regular employees are getting. The submission seems to be strange as petitioner cannot claim to be "similarly situated" Class IV employee, who had been appointed through a regular selection process after the public advertisement. He may be entitled for the minimum of the regular pay scale of the said post otherwise he would be given the benefit as if he stood regularised, though no such relief has been granted to him. The court fails to understand as how the petitioner claims himself to be "similarly situated" to the regular employees of the respondents, who had been appointed by regular selection after inviting applications. Be that as it may, at this stage, I am not inclined to enter into the issue of the entitlement of the petitioner under the said judgment and the case is restricted to the issue: whether the present writ petition is maintainable or not, as the relief claimed by the petitioner in the present writ petition, had already been sought by him in the earlier writ petition decided on 6. 9. 93. The issue of filing successive writ petition has been considered by the Hon'ble Supreme Court time and again and held that even if the earlier writ petition has been dismissed as withdrawn, Public Policy which is reflected in the principle enshrined in Order 23 Rule 1 C. P. C. , mandates that successive writ petition cannot be entertained for the same relief. (Vide M/s. Sarguja Transport Service vs. State Transport Appellate Tribunal (1), Ashok Kumar vs. Delhi Development Authority (2), Khacher Singh vs. State of U. P. and others (3) and Uda Ram vs. Central State Farm (4) For maintaining the writ petition in such a case, there must be liberty gi- ven by the Court to file the writ petition if need by arisen for it.
(3.) EVEN if a party does not party for the relief in the earlier writ petition, which he ought to have claimed in the earlier petition, he cannot file a successive writ writ petition claiming that relief, as it would be barred by the principle of constructive res judicata enshrined in Explanation IV to Section 11 and Order 2 Rule 2 of the Code of Civil Procedure. In Order 2 Rule 2 C. P. C. , as has been explained, in unambiguous and crystal clear language by the Hon'ble Supreme Court in Commissioner of Income Tax vs. T. P. Kumaran (5), Union of India and others vs. Punni Lal (6) and D. Gudasji & Co. vs. State of Mysore Mr. Mridul has submitted that the earlier judgment has created a legal right in favour of the petitioner and he has a right to maintain this writ petition to enforce the said right. In support of his submission, he has placed reliance upon a Division Bench judgment of this Court in Prakash Chaturvedi vs. State of Rajasthan and others (8), decided on 30. 1. 91, wherein it has been held that the powers of this Court under Article 226 of the Constitution of India will, also, extend to the issue of orders to see that the order made by it are complied with. The Court further observed as under:- "in contempt petition, as such, this Court may or may not be able to direct the contemnors to comply with the orders of the Court as they are liable to be punished. Thus, so far as the jurisdiction of this Court under Article 226 of the Constitution of India is concerned, we are of the opinion that this Court can make orders in the nature of orders made in the execution proceedings, to see that earlier directions/orders made by it are complied with. " The Division Bench while disposing of the said writ petition directed the respondents, to ensure the compliance of the order passed in the writ petition earlier. However, the respondents in that case did not comply with the order dated 30. 1. 91 passed by the Division Bench and the petitioner therein again filed S. B. Civil Writ Petition No. 5447/1992 to get the order dated 30. 1. 91 implemented. That writ petition was disposed of by the order of this Court dated 9. 2. 93 issuing further dire- ctions to ensure compliance of the orders passed by this Court earlier. While considering the issue of maintainability of the said petition the Court has observed that as the limitation for filing the application for Contempt of the Court had expired, the petitioner therein had no option but to file the writ petition in the interest of justice and in such circumstances the writ petition was held to be maintainable. ;