NARAYANAN ACHARI Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner is a Tahsildar. He has approached this Court challenging Ext. P5 and seeking a direction commanding the respondents to retain him in the post of Taluk Tahsildar, Sultan Bathery till 30.9.1999, the date on which the petitioner is due to retire on superannuation. He had also filed an earlier original petition, No. 25351 of 1998 challenging the very same Ext. P5 and seeking a self same direction, not to relieve the petitioner from the post of Taluk Tahsildar, Sulthan Bathery till 30.9.1999. Additional challenge against Ext. P8 contained in a new original petition is only a consequential order to Ext. P5. Ext. P5 in both the original petitions are one and the same. The earlier original petition was dismissed as withdrawn as per my judgment dated 6.1.1999. Even before that date, the petitioner had filed this original petition seeking the same relief. As challenge against Ext P5 had already been withdrawn, the petitioner cannot re-agitate the said challenge against Ext. P5 again. Of course, there is a fresh challenge against Ext. P8. Ext. P8 is only a consequential arrangement pursuant to Ext. P5. Therefore, Ext. P8 has no separate existence without Ext. P5.

(2.) When an original petition was withdrawn, without permission to file a fresh one, the petitioner cannot file another one impugning the self same order. This ban is based on a public policy as contained in O.23 R.1 Code of Civil Procedure. That public policy had been made applicable to the proceedings under Art.226 of the Constitution of India. In Sarguja Transport Service v. State Transport Appellate Tribunal, M.P., Gwalior and Others ( 1987 (1) SCC 5 ), the Supreme Court held as follows:

(3.) Even otherwise, the Original Petition does not disclose any merit. By Ext. P5, the petitioner was transferred from Sulthan Bathery to Kalpatta. That is an adjacent Taluk in the same district Such transfer of the Tahsildar, exercising statutory functions cannot be said to the arbitrary, even if it is passed few months before the retirement on superannuation. Therefore, no interference is possible even otherwise. So, challenge against Ext. P5 shall fail on merit as well.