CHITTARANJAN KAR Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) Affidavit-of-service find on behalf of the petitioners be kept on the record. It is submitted by the learned Counsel appearing for both the parties that the issue involved in this matter relates to a point of law and can be adjudicated on the basis of materials on record.

(2.) This writ application is filed by the petitioner assailing an order passed by the respondent No. 3 under his Memo No. 561-L(5) dated September 10, 2009. By virtue of the impugned order the respondent No. 3 accorded approval of appointment of the petitioner with effect from August 01, 1991 and not from the date of recognition of the concerned Non-Government Educational Institution by the West Bengal Board of Secondary Education, i.e. from May 01, 1990.

(3.) At the very outset a preliminary objection is raised by Mr. Biswajit De, learned junior Government Advocate, High Court, Calcutta. According to Mr. De, the writ application, being W.P. 4073 (W) of 2011 was filed on the self-same cause of action in the year 2011. The above writ application was dismissed for default on April 01, 2011 consequent upon nonappearance of any of the parties at time of hearing. According to Mr. De, there is no provision in the Rules to Applications under Article 226 for dealing with such situation. Rule 53 of the above Rules provides that the procedure provided in the Code of Civil Procedure in regard to Suits shall be followed, as far as it can be made applicable, in all proceeding for issue of a writ. According to Mr. De, Order IX, Rule 4 of the Code of Civil Procedure deals with the situation in question. Accordingly to the above provision filing of a second suit (in this case application under Article 226 of the Constitution of India) is permissible provided the same is filed within the period of limitation. According to him, this writ application is filed beyond the period of three years, i.e. a reasonable period of time from the date of passing the impugned order.