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B.S.B.G.Tilak v. G.R.V.Prasada Rao & Ors - Writ Appeal No.502 of 2001 [2001] INAPHC 97 (25 April 2001)

This appeal is directed against a Judgment and Order passed by a learned single Judge in W.P.No.25821 of 2000 whereby and whereunder the writ petition filed by the 1st respondent herein claiming inter alia for the following reliefs - to issue an appropriate writ or order or direction more particularly one in the nature of writ of mandamus declaring as illegal, arbitrary and in violation of rules G.O.Rt.No.972 Higher Education (CE.III) Department dated13.12.2000 and issue a consequential direction to the respondents 1 to 4 to consider the case of the petitioner for promotion in the aided post of Junior Lecturer in Maths in the 3rd respondent College in terms of proceedings Rc.No.G3/103/2000 dated 18.11.2000 of the 2nd respondent

was allowed.

2. By order dated 13.12.2000 of the 2nd respondent, impugned in the writ application, the appellant herein was appointed as Junior Lecturer in Mathematics in the vacant aided post in 4th respondent-College. He was initially appointed as a temporary lecturer on 8-9-1993 purported to be on the ground that the permanent incumbent therein had been absenting unauthorisedly. Subsequently, the services of the permanent incumbent were terminated and in the resultant vacancy the appellant was appointed as junior lecturer in Mathematics as an unaided incumbent alleged to be by proceedings dated 19.2.1998 of the 4th respondent herein, copy of which, however, was not filed either before the learned single Judge or before us. The 3rd respondent declined to approve the said appointment on the ground that the selection of the appellant was illegal as the authorised representative of the Board of Intermediate Education did not participate in the selection committee meeting. However, subsequently the same was ratified by the 3rd respondent purported to by the proceedings 9.10.2000 subject to the condition that thereby the appellant herein would not get any right of promotion in an aided post which may be filled up in future. 3. The writ petitioner-1st respondent herein was appointed as School Assistant in Mathematics in the school run by the same management on 15.6.1976. By reason of G.O.Ms.No.12 dated 10.1.1992, administrative rules for selection of lecturers in private degree and junior colleges were prescribed. A channel of promotion was also provided by the State Government to the post of Junior Lecturer in private colleges from the categories of School Assistants, S.G.B.T. Assistants and non-teaching staff working in educational institutions under the same management by reason of G.O.Ms.No.203 dated 18.6.1999. The relevant portion of the said G.O.Ms. reads thus: The Government after detailed examination and careful consideration of the matter hereby direct that the School Assistants/SGBT Assistants and non-teaching staff working under the private Schools/Junior Colleges under the private management be considered for promotion as Junior lecturers in the Junior Colleges of the same private management, if they are fully qualified and possess 50 marks in Post Graduate in the relevant subject, in the following order of priority, i.e. to consider first school assistants for promotion as Junior Lecturer and if no qualified and suitable candidate is there in the School Assistant category then to consider the SGBT Assistant and if no such persons are available then promote non-teaching staff in Ministerial Service. If no qualified person is available in any of the categories viz., School Assistants/SGBT Assistant/Non-teaching staff in Ministerial Service, the Management is permitted to go for direct recruitment for filling the vacancies of Junior Lecturers in the College. The Selection Committee constituted inG.O.Ms.No.1119 dated 22.3.1991 can be the Selection Committee for considering promotions of the categories of persons mentioned above for a private junior college. A minimum service of two years is prescribed in the feeder category for becoming eligible for promotion as Junior Lecturer. 4. In terms of the aforementioned G.O.Ms.No.203 dated 18.6.1999, the name of the 1st respondent herein for promotion to the post of Junior Lecturer was proposed. The management sought for the permission of the State to nominate its representative to the selection committee for consideration of the case of the 1st respondent. Such permission was accorded in terms of the proceedings dated 18.11.2000 of the 3rd respondent. The selection committee although was scheduled to meet on 16.12.2000, but the same could not meet on the said date. However, in the meantime, the impugned G.O.Rt.No.972 13.2.2000 was issued in terms whereof the appellant herein had been appointed to the aided vacant post of junior lecturer in 4th respondent college. And further more the Director of Intermediate Education - 3rd respondent herein had been requested to take appropriate action thereupon.

5. The 1st respondent filed the writ petition questioning the said order dated 13.12.12000. The learned single Judge while allowing the writ petition directed the official respondents to hold a selection in terms of G.O.Ms.No.203 dated 10.6.1999 holding that the appellant herein did not have any legal entitlement thereto.

6. Mr. Rama Mohan Rao, learned counsel appearing on behalf of the appellant, however, submitted that by reason of the aforementioned G.O.Ms.No.203 dated 18.6.1999, the other mode of appointment available to the management had not been excluded. In this connection, our attention has been drawn to a letter dated 9.10.200 issued by the Board of Intermediate Education, Andhra Pradesh, Hyderabad which reads thus:

In the reference cited, the appointment of Sri B.S.B.G. Tilak, as J.L. in Maths (unaided) in your college was not considered for approval by the Board of Intermediate Education since the selection was made without the presence of the authorised Board of Intermediate Education nominee at the selection committee meeting.

In the reference 2nd cited, the incumbent has requested to consider his case and approve his appointment.

The Chairman Board of Intermediate Education, A.P., Hyderabad is pleased to ratify the selection of Sri B.S.B.G. Tilak as J.L in Maths (unaided) in your college and approve his appointment with immediate effect. It is also informed that this approval of appointment in unaided post will not entitle any right to the incumbent for absorption into any aided post in future. 7. The learned counsel would contend that the matter relating to appointment of lecturers in a Junior College is covered by two statutes, namely, A.P. College Service Commission Act, 1985 (for short 'Act, 1985') as also the Andhra Pradesh Intermediate Education Act, 1971 (for short 'Act, 1971'). G.O.Ms.No.203 which has been issued by way of executive instructions must give way to the former. The learned counsel would contend that in terms of the provisions of Act, 1985 as also Act, 1971, there exists a provision for direct recruitment and thus although the source of recruitment might have been wrong, however, the appointment of the appellant cannot be said to be an illegal one. According to the learned counsel, the appointment of the appellant having been ratified by the Director of Intermediate Education, no fault therewith could be found. 8. It was next contended that as the management had formulated the process of recruitment in a manner which was thought fit and proper by it, in relation whereto the appellant had no knowledge, he applied therefor and was selected. The learned single Judge, therefore, erred in holding that the appointment of the appellant was bad in law.

9 Mr. Sitaramamurthy, learned counsel appearing on behalf of the 1st respondent-writ petitioner submitted that the contention of the appellant that the field is occupied by the two enactments supra had not been raised before the learned single judge. The learned counsel would submit that Act 1985 has no application in relation to a private college. The learned counsel would contend that Act, 1971 deals with only the standard and syllabi in relation to various Intermediate courses and not with the recruitment procedure to the post of Junior Lecturer. The learned counsel would further submit that the selection of the teaching staff in a privately managed institution was being governed under several G.O.s issued by the Government prescribing the procedure therefor. It was pointed out that the appellant herein did not file any application for appointment and thus he cannot be said to be a validly appointed person. In any event, he cannot claim any right to be appointed in an aided post. It was also submitted that there does not exist any law in terms whereof an appointment can be made by way of transfer from an unaided post to an aided post and thus the said method of recruitment being impermissible, G.O.ms.No.972 must be held to be illegal.

10. The learned Government Pleader for Higher Education submitted that permission for filling up of the post has to be obtained. According to the learned Government Pleader, by reason of G.O.M s.No.203, a policy decision has been evolved, pursuant whereto, recruitment has to be made on the basis of the qualifications held by the candidates as on the date the permission was obtained.

11. Act, 1985 was enacted to provide for constitution of a Commission for the selection of teachers for appointment to posts in Colleges and for matters connected therewith and incidental thereto. Although by reason of the provisions of Act, 1985 and the rules framed thereunder, a junior lecturer of Degree and Junior Colleges comes within the purview thereof and in relation whereto, the qualifications for holding the post of Junior Lecturer as also the mode of recruitment had been laid down, in view of the definitions of 'College' and 'Junior College' of Sections 2(4) and 2(9) of Act, 1971 read with section 2(iv) of Act, 1985 whereby a private college whether receiving aid from Government or not has been specifically excluded from the provisions of Act, 1985, by reason of Act 25 of 1990, in our opinion, the said Act and the Rules made thereunder cannot be held to be applicable so far as the recruitment of a lecturer in a Junior College under the private management is concerned.

12. Act, 1971 was enacted to provide for the establishment of a Board to regulate and supervise the system of Intermediate Education in the State of Andhra Pradesh and to specify the courses of study therefor and for matters connected therewith.

'Junior College' has been defined in Section 2(9) of Act, 1971 to mean any educational institution in the State and affiliated to the Board as providing courses of study qualifying students for admission to the Intermediate Examination, in accordance with the regulations, but not the degree examinations of a University. In terms of the provisions of Section 9(1)(iii) of the Act, 1971, the Board of Intermediate Education, may, subject to the directions as may be given by the Government in this behalf and other provisions of the Act, lay down the qualifications of teachers required to teach the subjects included in the courses of study in different branches of the Intermediate Education, the workload of such teachers and the number of working days in an academic year or semester and other matters incidental thereto. Section 17 of the said Act provides for a rule making power to the Government. Our attention has not been drawn to any other provisions of Act, 1971 or rules made thereunder to show that even in terms thereof, any procedure for recruitment of lecturers in Junior Lecturers has been prescribed. 13. It is not in dispute that the 3rd respondent institution is a Junior College with High School sections also. The State Government issued orders in G.O.Ms.No.12 dated 10.1.1992 prescribing the selection procedure for appointment of Lecturers/Junior Lecturers in private Degree and Junior Colleges in the State and also laying down the requisite qualifications for recruitment of lecturers in the concerned subjects. Yet again by orders dated 18.6.1999 the State Government issued G.O.Ms.No.203 in terms whereof G.O.Ms.No.12 was amended. By reason of the provisions of the said G.O.Ms.No.203, the categories of School Assistants, and S.G.B.Ts working in the Private schools/Junior Colleges and non- teaching posts coming under the ministerial service under the private schools/colleges were made as feeder categories for promotion to the category of Junior Lecturers. In G.O.Ms.No.203, it was clearly directed that, only in absence of qualified and suitable candidates in the High School section, direct recruitment to the category of Junior Lecturers could be resorted to. It is not in dispute that the 1st respondent herein was qualified and eligible to be appointed to the category of Junior lecturer in Mathematics in terms of the provisions of G.O.Ms.No.203. It is further not in dispute that although the 3rd respondent send the proposals to the 2nd respondent herein for promoting the 1st respondent as Junior lecturer as far back on 24.9.1999, no action thereto had been taken. Aggrieved by the inaction on the part of the 3rd respondent, the 1st respondent filed a representation on 5.1.2000 before the 2nd respondent for considering his case in terms of the aforementioned G.O, whereof, a direction had been issued by the said authority to the 3rd respondent by letter dated 10.1.2000 to consider his case.

14. It has also not been disputed that the 4th respondent herein requested the 3rd respondent to accord permission for filling up of the post of Junior Lecturer in Mathematics on 27.1.2000 in terms of the said G.O.Ms.No.203 and to nominate a person for participating in the meeting to be held by the selection committee. It further remains undisputed that the 3rd respondent herein had issued proceedings dated 18.11.2000 according permission to fill up the posts of Junior Lecturers. In terms of the said memo, the District Vocational Education Officer, Guntur was nominated as director's nominee in the selection committee. Although the selection committee was scheduled to meet on 6.12.2000, for some reason or the other, it could not meet and, in the meantime, the appellant was appointed as Junior Lecturer in March, 1999 in an unaided vacancy. It is really appalling to note that even the offer of appointment made to the appellant had not been produced before the learned single Judge. 15. The Board of Intermediate Education, however, declined to grant approval for appointment of the appellant inter alia on the ground that selection committee did not contain the authorised nominee in terms of the proceedings dated 6.8.1999, whereof a representation had been made by the appellant on 10.7.2000 to the Board. Only thereafter, the recruitment of the appellant herein was ratified on 9.10.2001 subject to the condition that such approval of appointment in unaided post would not entitle him for selection in an aided post in future.

16. The appellants representation dated 10.10.2000 seeking for absorption in the aided post of Junior Lecturer, Mathematics resulted in issuance of G.O.Rt.No.972 dated 13.12.2000.

There had been no sanction to the unaided post of Junior lecturer for the academic year 1999-2000.

The reliance placed on G.O.Ms.No.145, Education Dept. dt.7.3.2000 and G.O.Rt.No.720, Education dated 6.10.2000 by the learned counsel for the appellant appears to be misplaced as they did not deal with the composite colleges of Intermediate and High School sections. From what has been noticed hereinbefore, it is evident that the State took a policy decision, in exercise of its power under article 162 of the Constitution of India, laying down the conditions for appointment of lecturers in Junior Colleges. The mode of recruitment having been laid down by the State in those orders, it does not lie in the mouth of the appellant now to contend that the said policy decision has no application in the present case. Para 5 of G.O.Ms.No.203 dated 18.6.1999 was issued in modification of G.O.Ms.No.12 dated 10.1.1992. 17. Priorities having been fixed by reason of para 5 of G.O.Ms.No.203, evidently, the same must be applied as having the force of law. We may also notice that a similar provision being sub-rule (1) of Rule 8 of Punjab State Agricultural marketing Board (Class I) Service Rules, 1988 came up for consideration before the Apex Court in S.S. SODHI v. STATE OF PUNJAB1 . Sub-rule (1) of Rule 8 of the said rules has been noticed by the Apex Court in paragraph 5 of the reported judgment. The Apex Court held: 5. Sub-rule (1) of Rule 8 of the Rules provides as under: "(8) Method of recruitment and qualifications:

(1) Subject to the provisions of sub-rule (4) appointment to the service shall be made in the manner specified in Appendix 'B'. Provided that if no suitable candidate is available for appointment by promotion to a post in the service, such post shall be filled in by direct appointment or by transfer, as the appointing authority may decide in this behalf." The proviso to sub-rule (1) of Rule 8 stipulates that in the matter of appointment to a post governed by the Rules the appointing authority will first consider the candidates who are eligible for such appointment by promotion and if no suitable candidate is available for such appointment by promotion then the post may be filled in by direct appointment or by transfer as the appointing authority may decide in this behalf Shri J. K. Sibal, the learned counsel for the Board and respondent No. 4, has not been able to show that the said proviso has a different meaning. The contention of Shri Sibal is that before the appointment of respondent No. 4 on the post of Manager Marketing the Board has considered the appellant and he was not found suitable for promotion to the said post. We are, therefore, unable to agree with the view of the High Court that in spite of the proviso to sub-rule (1) of Rule 8 it was open to the appointing authority to fill up the post of Manager Marketing by any of three methods of recruitment viz; (i) by direct appointment; (ii) by promotion or (iii) by transfer and that it was not necessary for the appointing authority to first consider the claim of the departmental candidates for promotion and go to other modes of recruitment only when such departmental candidate for promotion was not available.

18. In view of the above decision of the Apex Court, it is not open to the unofficial respondents to fill up the post of Junior Lecturer in 4th respondent college by direct recruitment when suitable candidates are available for promotion. It is not in dispute that the writ ptitioner-1st respondent herein who was working as School Assistant in Maths since 15.6.1976 is fully qualified to hold the post of Junior Lecturer.

19. The appointment of the appellant herein having not been made in terms of the statutory rules and furthermore the provisions of Article 16 of the Constitution of India having been violated, as evident from the facts as noticed hereinbefore, we are of the opinion that the impugned judgment of the learned single Judge is unassailable. The appellant herein had no right in terms of the aforementioned condition mentioned in the ratification order or otherwise to be appointed by transfer from unaided post to aided post. 20. In this view of the matter, we are of the opinion that the learned single Judge has rightly arrived at the conclusion that the purported appointment of the 1st respondent was not in accordance with law. 21. For the reasons aforementioned, we find no merit in the appeal which is accordingly dismissed. There shall be no order as to costs. ?1 AIR 1990 sc 1064

+WRIT APPEAL NO.715 OF 2000

#Dr.P.V.Ranga Rao. Union of India, rep., by its

Cabinet Secretary, Central Secretariat

Buildings, New Delhi and others. Counsel for the Appellant: Mr. S.Ramachandra Rao, Senior Counsel for Mr. L.Ravichandra

Counsel for the Respondent No.1:Mr. L.Narasimha Reddy, SC for Central Government.

Counsel for the Respondent No.2 to 4:G.P. for GAD and Advocate General. :Judgment:

THE HON'BLE SRI JUSTICE V.V.S.RAO

(per The Hon'ble The Chief Justice Sri S.B.Sinha) 1. This appeal is directed against a judgment and order dated 16.2.2000 passed by a learned single Judge of this Court in Writ Petition No.24646 of 1999 whereby and whereunder the Writ Petition filed by the appellant herein was dismissed. The learned Judge directed:

"While examining the record of this case I am of the prima facie view that the petitioner is in contempt of this Court as he has not obeyed the orders of this Court for vacating the premises; neither has he complied with the undertakings which he had given in this Court while applying for extension of time on various occasions. Therefore, the Registry shall frame a rule against the petitioner to show-cause as to why he should not be convicted for committing the contempt of this Court. Since the earlier orders have been passed by the Hon'ble Mr Justice G.Bikshapathy, the contempt matter be placed before his Lordship. The learned Senior Counsel appearing for the petitioner seeks one week's time to vacate the premises in order to enable him to file an appeal. Since this Court has not asked the petitioner in this writ petition to vacate the premises, there is no need of passing any such order. This request is also negatived on the ground that if time is granted, that will amount to negation of orders passed in W.P.No.7019 of 1999."

2. The basic fact of the matter is not in dispute. 3. The appellant herein was allotted Quarter No.4, Kundanbagh while he was the Minister for Education. He was permitted by letter dated 7.7.1995 to continue to occupy the quarter. However, the Government of Andhra Pradesh has taken a decision not to allow the appellant to continue in occupation of the quarter any further for the reason that there is mounting pressure for provision of accommodation to the officials, Ministers as well as Judges of the High Court; whereafter the appellant was given a notice on 5.3.1998 to vacate the quarter. When he did not vacate the quarter the Estate Officer issued a notice to him on 5.3.1998 under Section 4(1) of A.P. Public Premises (Eviction of Unauthorised Occupants) Act, 1968 calling upon him to appear on 15.4.1998 to represent his case. Without appearing before the Estate Officer as directed, he sought for 12 weeks' time on medical ground. The Estate Officer did not accede to his request and directed his eviction by order dated 20.4.1998 against which he filed Civil Miscellaneous Appeal No.141 of 1999 before the Civil Court on the ground that proper opportunity was not given to him. The said application was allowed directing the Estate Officer to issue fresh notice. Thereupon the Estate Officer issued fresh notices to the appellant. Without responding to the said notices, the appellant approached the High Court by filing Writ Petition No.7019 of 1999. The said writ petition was disposed of on 2.4.1999 directing: Considering the facts and circumstances of the case and also keeping in view the health condition of the petitioner, the writ petition is disposed of with a direction that the petitioner shall vacate the premises on or before July 1, 1999. It is also made clear that the petitioner shall not seek any further extension of time under any circumstances.

4. However, the appellant filed another application seeking extension of time in the said writ proceedings whereupon it was directed: Keeping in view the health condition of the petitioner and also the requirement of accommodation being in Z category, I am inclined to grant extension of time to vacate the premises. Accordingly, as a last chance, extension of time is granted upto 30.9.1990. The petitioner shall vacate the premises by 30.9.1999 and the learned counsel for the petitioner also submits that the petitioner shall not seek any extension of time under any circumstances.

Accordingly, the WPMP is disposed of and the petitioner shall vacate the premises on or before 30.9.1999 as directed above. No petition for extension of time shall be entertained by this Court as this extension itself is under very compelling circumstances namely health condition of the petitioner. 5. In spite of the above direction, another application seeking extension of time was filed and again time for vacation of the quarter was extended upto 30.10.1999. But despite the same the appellant did not vacate the quarter, the 2nd respondent herein requested the appellant by letter dated 26.11.1999 to vacate the quarter.

6. Assailing the said letter the appellant filed Writ Petition No.24646 of 1999. As referred to hereinbefore, the said writ petition was dismissed. Questioning the said order of the learned singe Judge the present appeal is filed. 7. Mr S.Ramachandra Rao, the learned senior counsel appearing on behalf of the appellant raised three contentions in support of this appeal. The learned counsel firstly submitted that the decision of the Government not to allow the appellant to continue to occupy quarter No.4, Kundanbagh was not preceded by any show cause notice nor any reason therefor was assigned. It was next contended that although several proceedings had emanated leading to the purported undertaking given by the appellant's counsel, the same is not binding on him having regard to the fact that he was entitled to special protection in terms of the provisions of Special Protection Group Act, 1988. The learned counsel would contend that the right to residence being a fundamental right of a person under Article 21 of the Constitution of India, such undertaking is not binding. In support of the said contention strong reliance has been placed on OLGA TELLIS v BOMBAY MUNICIPAL CORPORATION1, U.P. AVAS EVAM VIKAS PARISHAD v FRIENDS COOP. HOUSING SOCIETY LTD2, SHIV SAGAR TIWARI v UNION OF INDIA3 as also AHMEDABAD MUNICIPAL CORPN. v NAWAB KHAN GULAB KHAN4. 8. The learned senior counsel would also contend that the threat perception as would appear from various letters issued by the authorities must be considered having regard to the legislative wisdom contained in Special Protection Group Act, 1988.

9. The learned Advocate-General appearing on behalf of the respondents on the other hand submitted that the quarter in question was allotted in favour of the appellant when he was a Cabinet Minister of the State in the year 1992 and even after he had ceased to hold the said office, he was allowed to continue but having regard to a public interest litigation before this Court as regards non- availability of accommodation for the Ministers and Judges a decision had been taken by the State not to allow the petitioner to continue to occupy the said premises.

10. It was pointed out that out of three children of the former Prime Minister Sri P.V.Narasimha Rao who had been granted such accommodation, two had acceded to the request of the Government and vacated the accommodation provided to them by the State.

11. It was further pointed out that when the proceeding had been initiated against the appellant, he had been approaching this Court only for grant of some time to vacate the quarter on the representation that he being a heart patient, some reasonable time therefor should be allowed. According to the learned Advocate-General, the appellant, having obtained such relief on the basis of such representation, is now estopped and precluded from contending that he is entitled to continue in the bunglow in question. It was submitted that in the aforementioned situation, the appellant cannot be permitted to raise the questions raised in this appeal for the first time, having regard to the rule of estoppel as also the principles of constructive res judicata. It was urged that filing of a writ petition questioning a letter of the Chief Secretary requesting him to vacate having regard to the undertaking given before this Court, was not maintainable as the same was a gross abuse of the process of court. The learned Advocate-General submits that the appellant herein even has not paid a huge amount towards electricity charges nor did he even tender the nominal rent fixed towards occupation charges.

12. It was strenuously urged that the right of residence claimed by the appellant in a situation of this nature must be held to be gross distortion of the constitutional protection as the appellant is neither a pavement dweller nor living in abject poverty.

Both socially and economically and politically, the learned Advocate- General would contend, the appellant is a man of high status and thus is not entitled to free residence from the State under the bogey of the special protection. It was pointed out that so far as the proceedings for initiation of a contempt is concerned, the same is not an appealable order. 13. It is beyond any cavil of doubt that the general principles of res judicata / constructive res judicata are applicable in a writ proceeding. 14. It is also well settled that general principles of Order II Rule 2 of the Code of Civil Procedure, 1908 also apply in a writ proceedings. The petitioner had been approaching this Court as would appear from the narrations of facts noticed hereinbefore for extension of time enabling him to vacate the quarter in question. Times without number the Court had bestowed sympathy upon the petitioner. But probably the petitioner thought that he could go on filing one writ petition or the other and delay the proceedings. 15. In MYSORE STATE ROAD TRANSPORT CORPORATION V. BABJAN5, the Apex Court held that where a declaratory relief asked for by a party in an earlier petition was not granted, that relief would be deemed to have been refused and such relief cannot be claimed in a subsequent writ petition. 16. In SWATANTRA KUMAR AGRAWAL V. MANAGING DIRECTOR, U.P.F.C, KANPUR6 a Division Bench of the Allahabad High Court held:

Rule 7 of the Allahabad High Court Rules, 1952 as quoted above is explicit and unequivocal. It clearly provides that a second application on the same facts will not be entertained by the Court. It is clear that the facts of the present petition are 100 similar to the facts contained in the earlier petition. The monumental Judgment of the Hon'ble Supreme Court in Mahesh Chandra's case ( Mahesh Chandra v. Regional Manager, UP Financial Corporation, 1992(2) UPLBEC 1313) had already been delivered and it was the law of the land binding on all the judicial and quasi-judicial authorities in India. Therefore, if any authority has passed an order, it will be believed that it was conscious of the implications and directions contained in that judgment...." Another leg of the argument advanced by the learned counsel for the respondents is that provisions of Order 2, Rule 2 C.P.C. also hit the entertainment of the present petition. The law aims at avoiding multiplicity of the petitions. It requires that a party who comes to the Court, must plead all the grounds available to it and seek all the reliefs which it can seek in the first case itself, so that the Court may decide the case once for all and the door of the Court may be slammed for ever for raising the same points in subsequent litigations. The principle is based on public policy and cannot be taken exception to otherwise.

When the petitioner came for the first time with the earlier petition, he could have taken all these pleas and sought all the reliefs which he has claimed in the present writ petition, in fact he did all that in the earlier petition though in a modified language but the spirit and substance were the same. He tried his luck for the first time and failed. Then the second trial of luck has begun. The law does not encourage such a litigation. " 17. In M/S MUNNA INDUSTRIES v STATE OF U.P.7 it was observed: The filing of successive writ petitions for the same cause of action with additional cause of action arising during the pendency of the earlier writ petitions gives rise to multiplicity of writ petitions and the multiplicity of the interim orders obtained by the parties also create problems before the respondents many a time. It is well known and settled that subsequent order which is said to be a subsequent cause of action needs no filing of fresh writ petition but by seeking appropriate amendment in the pending writ petition, such relief which may be needed in respect of subsequent order, could easily be incorporated in the pending writ petition. This is not done and successive writ petitions are filed which is adding to accumulations of number of writ petitions before this Court. The provisions of Chapter 22, Rule 7 of the High Court Rules, no doubt provides that no second application on the same facts, where an application has been rejected, shall be entertained on the same facts. This rule does not cover the situation arising presently in large number of writ petitions. We considerate necessary and appropriate that amendment in Chapter 22 of the High Court Rules are required which may require a petitioner to categorically state in the first paragraph of the writ petition that no earlier writ petition in the same matter or arising out of the same matter is pending or decided before this Court. If such statement is made by the petitioner in the writ petition, multiplicity of the writ petitions by the same parties could be avoided and for subsequent orders, if any, passed requiring a relief by the petitioner, could be added in the writ petition itself by seeking appropriate amendments. "

18. In DIRECT RECRUIT CLASS II ENGINEERING OFFICERS ASSOCIATION V. STATE OF MHARASHTRA8 it has clearly been held by the Apex Court that the principles of res judicata are applicable to writ proceedings also. It was held: "...a Constitution Bench of this Court in Daryao v. State of U.P. [1961] INSC 118; (1962) 1 SCR 574: (AIR 1961 SC 1457) held that where the High Court dismisses a writ petition under Art.226 of the Constitution after hearing the matter on the merits, a subsequent petition in the Supreme Court under Art.32 on the same facts and for the same relief filed by the same parties will be barred by the general principle of res judicata. The binding character of judgments of Courts of competent jurisdiction is in essence a part of the rule of law on which the administration of justice, so much emphasized by the Constitution, is founded and a judgment of the High Court under Art.226 passed after hearing on the merits must bind the parties till set aside in appeal as provided by the Constitution and cannot be permitted to be circumvented by a petition under Art.32. An attempted change in the form of the petition or the grounds cannot be allowed to defeat the plea as was observed at page 595 (of SCR) : (at p.1467 of AIR 1961) of the reported judgment, thus:

"We are satisfied that a change in the form of attack against the impugned statute would make no difference to the true legal position that the writ petition in the High Court and the present writ petition are directed against the same statute and the grounds raised by the petitioner in that behalf are subsequently the same".

The decision in Forward Construction Co. v. Prabhat Mandal (Regd.), Andheri, [1985] INSC 244; (1986) 1 SCC 100 : [1985] INSC 244; (AIR 1986 SC 391), further clarified the position by holding that an adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had decided as incidental to of essentially connected with subject matter of the litigation and every matter coming into the legitimate purview of the original action both in respect of the matters of claim and defence. Thus, the principle of constructive res judicata underlying Explanation IV of Section 11 of the Code of Civil Procedure was applied to writ case. We, accordingly hold that the writ case is fit to be dismissed on the ground of res judicata."

19. It may be true that in a case where infringement of fundamental right of a person is alleged, the principles of res judicata may not apply. But even in such a situation the Court may refuse to exercise its discretionary jurisdiction in the event it is found that the conduct of the petitioner is such which disentitles him from being favoured with exercise of discretionary jurisdiction. 20. In the aforementioned context let us now consider as to whether the fundamental right of the petitioner under Article 21 of the Constitution of India has been infringed or not.

21. A person may have a right of residence but he does not have a right of residence in a particular house nor relying on or on the basis of Article 21 of the Constitution of India he can ask for a particular house to be left in his favour by the State. The State constructs the bunglows and quarters for certain purposes. If the occupant of such quarter is not entitled to occupy the same, the State cannot be forced to take a decision in his favour on the plea of purported violation of Article 21 of the Constitution of India. The petitioner is not a pavement dweller as was the case in OLGA TELLIS (1 supra). 22. For the views we have taken, we are of the opinion that the decisions of the Apex court in U.P. AVAS EVAM VIKAS PARISHAD's case (2 supra) and AHMEDABAD MUNICIPAL CORPN's case (4 supra) are not applicable in the facts and circumstances of this case.

23. Yet again, the petitioner cannot be permitted to continue to live in the same house only on the ground that he is entitled to the protection in terms of Special Protection Group Act. It is for him, in absence of any statutory or constitutional right to live in the quarter, to find out a suitable house but neither the said statute mandates the State to allot a house of a particular nature in favour of the petitioner nor can he ask for any. It is now a well settled principle of law that a decision taken by the State should not be interfered with by this Court unless the same is held to be ex facie arbitrary or unreasonable. The decision of the State Government, in a situation of this nature, can neither be termed to be arbitrary or unreasonable and a judicial review in relation to an administrative action is maintainable only when the writ petitioner shows that in its decision making process the State has committed an illegality, irrationality or procedural irregularity. 24. We, therefore, do not find any merit in this appeal which is accordingly dismissed. So far as the order directing the petitioner to show cause as to why a proceeding under the Contempt of Courts Act shall not be initiated, suffice it to state that having regard to the various decisions and in particular STATE OF MAHARASHTRA v MAHBOOB S. ALLIBHOY9 it must be held that the appeal is not maintainable against such an order. The impugned order does not adversely affect any right of the petitioner. In BARADA KANTA v ORISSA H.C.10 it was held:

.... Only those orders or decisions in which some point is decided or finding is given in the exercise of jurisdiction by the High Court to punish for contempt, are appealable under Section 19 of the Contempt of Courts Act, 1971. The order in question is not such an order or decision. It is an interlocutory order pertaining purely to the procedure of the Court. 25. For the reasons aforementioned, there is no merit in this appeal. It is dismissed with costs which is quantified at Rs.5,000/- (Rupees five thousand only).

?1 [1985] INSC 155; AIR 1986 SC 180

2 (1995) Supp 3 SCC 456

3 (1997) 1 SCC 445

4 (1997) 11 SCC 121

5 [1977] INSC 47; AIR 1977 SC 1112

6 AIR 1994 All 187

7 1994 ALD 391

8 [1990] INSC 173; AIR 1990 SC 1607

9 [1996] INSC 517; (1996) 4 SCC 411

10 AIR 1976 SC 1206