RAM BILAS TEWARI Vs. STATE OF U P

JUDGEMENT

(1.) Pursuant to a Government Order dated 22.11.1993 the petitioner was absorbed in the service of the Government protecting his salary to the extent of last pay which he was receiving while employed in the Gorakhpur Mandal Vikas Nigam Limited which alleged to have been wound up. The petitioner had moved a writ petition no.6483 of 1998 along with three other persons claiming the relief of fixation of salary on the basis of last pay drawn by him in the Nigam. The said writ petition was disposed of by an order dated 27.2.1998 which is Annexure-8 to the writ petition. It appears from the said order that an additional grievance was also raised in the writ petition to the extent that the arrears withheld by the Nigam is a liability of the State Government where the petitioner has been absorbed for which the petitioner has made a representation which was directed to be considered by the said order without recording any observation regard to with the entitlement of the petitioner.

(2.) Shri Ram Mohan, learned counsel for the petitioner submits that since Nigam was not a party in the said writ petition, therefore, the representation has not been considered by the Managing Director, Gorakhpur Mandal Vikas Nigam Ltd. Who has been made party in the present writ petition seeking the relief to consider the petitioner's representation in terms of the Order dated 27.2.1998 by the Managing Director of the Nigam.

(3.) Whatever may be the reason, the cause of action involved in writ petition no.6483 of 1998 is one and the same which is being espoused in the present writ petition. It was open to the petitioner to pray the Managing Director of the Nigam or the Nigam itself as party in the said writ petition. It appears that the State of U.P. and Commissioner, Basti Division who are respondent nos. 1 and 3 respectively in the present writ petition were parties in the said writ petition. If the petitioner omits to add necessary or proper party in the writ petition and does not take any stept, he can not maintain the second writ petition simply because he had omitted to make one necessary or proper party in the writ petition itself. In any event, the petitioner has not produced the said Government Order dated 22.11.1993 to show that the said Government Order did not make any provision for recovery of the dues of the employee. He has also not pointed out the terms of absorption in the Government service from which it can be deciphered as to what is the extent of legal right of the petitioner. In such circumstances, the present writ petition is based on same cause of action which was involved in the earlier writ petition seeking to recover the arrears withheld by the Nigam. Initially it was sought to be recovered from the State Government. Now it is being sought to be recovered from the Nigam which could have been made in the said proceeding.