- (1.) ORDER dated 20.11.1999, whereby petitioner was removed from the services and subsequent order dated 10.12.2007, whereby claim of the petitioner for his reinstatement in service has been rejected, are being assailed in the present petition filed under Article 226 of the Constitution of India.
(2.) PETITIONER has earlier filed C.W.J.C. No. 116 of 2000 in the Patna High Court before bifurcation of the State, assailing the order dated 20.11.1999, whereby petitioner was directed to be removed from the services. After the appointed day, C.W.J.C. No. 116 of 2000 stood transferred to this Court. This Court had dismissed the C.W.J.C. No. 116 of 2000 for nonprosecution, vide order dated 20.04.2004. Petitioner, thereafter, has moved an application being C.M.P. No. 219 of 2004 for recalling the order dated 20.04.2004 and to restore C.W.J.C. No. 116 of 2000 at its original number. However, C.M.P. No. 219 of 2004 was also dismissed by this Court, vide order dated 11.05.2007. Order dismissing the restoration application was never challenged by the petitioner and has attained finality. Thereafter, petitioner moved an application before the authorities claiming reinstatement which was dismissed vide impugned order dated 10.12.2007. Again, petitioner has filed present writ petition on 15.04.2008 challenging both the orders dated 20.11.1999, which was also subject matter of earlier writ petition being C.W.J.C. No. 116 of 2000 as well as order dated 10.12.2007, whereby his claim for reinstatement was rejected by the authorities. Vide order dated 05.07.2012, learned counsel for the petitioner was granted time to examine as to whether in view of the dismissal of the earlier writ petition and restoration thereof, present petition is maintainable. Learned counsel for the petitioner has vehemently argued that provisions of Order 9 Rule 9 C.P.C. are not applicable in a proceeding under Article 226 of the Constitution of India and order dated 20.04.2004, dismissing the writ petition for nonprosecution was not on merit, therefore, present writ petition is maintainable. He has further argued that in the present writ petition, a subsequent order dated 10.12.2007 seeking reinstatement is under challenge which was not subject matter of earlier writ petition being C.W.J.C. No. 116 of 2000, therefore, present writ petition assailing both the orders would be maintainable.
(3.) IT is true that proceedings under Article 226 of the Constitution of India shall not be governed by the procedure provided for the suits in the Civil Procedure Code. However, there is a caveat to it that broad principles of Code of Civil Procedure can be pressed in service while hearing the petition under Article 226 of the Constitution of India. It is now common practice in almost every High Court that amendment application in the writ petition is moved on the broad principles of Order 6 Rule 17 C.P.C. Not only this, Section 151 C.P.C. is pressed in service while seeking and granting interim orders. Order 9 Rule 9 C.P.C. reads as under : "9. Decree against plaintiff by defaults bars fresh suits. (1) where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause action. But he may apply for an order to set the dismissal aside, and if he satisfies the court that there was sufficient cause for his nonappearance when the suit was called on for hearing, the court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. (2) No order shall be made under this rule unless notice of the application has been served on the opposite party." As per Order 9 Rule 9 where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing fresh suit in respect of the same cause of action. In the opinion of this Court, provisions of Order 9 Rule 9 C.P.C. are indicative of sound public policy.;