Anshuman Singh, J.

1. This petition under Article 226 of the Constitution of India has been filed for issuance of a writ of certiorari quashing the order dated 14th July 1992 placing the Petitioner under suspension, copy of which has been filed as Annexure-11 to the writ petition. It is alleged that the Petitioner is working as L.T. grade teacher in the Government Higher Secondary School, Sukhidhang, district Pithoragrah. Petitioners wife is alleged to have committed suicide on 20th June, 1991, however, a first information report was lodged by the in-laws of the Petitioner in which he along with his two brothers were named as accused. The Petitioner remained in jail for three months and was released on bail on 14th October, 1991. After the release it has been averred in the writ petition that the Petitioner was not allowed to join the institution. Since the Petitioner was not allowed to join his duties he filed a writ petition being Civil Misc. Writ Petition No. 14828 of 1992 for issuance of a writ of mandamus for directing the Respondents to allow him to perform his duties as L.T. grade teacher. On the aforesaid writ petition the following order was passed :

Learned standing counsel representing the Respondents prays for and is granted two months time to file counter affidavit. Rejoinder-affidavit, if any, may be filed within next three weeks. The petition shall be listed for admission on 24-8-1992.

Meanwhile the Principal, Government Higher Secondary School, Sukhidhang, district Pithoragrah is directed to pay arrears of subsistence allowance to the Petitioner or to show cause within two months from the date of presentation of certified copy of this order before the said authority. It would be open to the Principal to modify or revoke the suspension order and reinstate the Petitioner pending disciplinary proceedings.

2. This fact is not disputed that the aforesaid writ petition is still pending in this Court. Inspite of the fact that the said writ petition is pending the Petitioner has filed the present writ petition challenging the order of suspension and the validity of Rule 49-A (2) (a) of the Civil Service (Classification, Control and Appeal) Rules, 1930.

3. The pivotal question which arises in the present case is whether the Petitioner can be permitted to file a second writ petition during the pendency of the first writ petition filed by him for the same relief.

4. Mr. A.K. Gupta learned Counsel appearing for the Petitioner has contended that since the validity of Rule 49-A (2) (a) of Civil Service (Classification Control and Appeal) Rules, 1930 was not challenged in the earlier writ petition and secondly when the earlier writ petition was filed by the Petitioner, no order of suspension existed and as such the present writ petition filed by him is maintainable. In support of his contention he placed reliance on a Division Bench decision of this Court in Munnalal Tiwari v. State of U.P. 1986 UP LB EC 235. The facts of the case of Munnalal Tiwari (supra) and the facts of the present writ petition are entirely different. In the case of Munna Lal Tiwari (supra) he was named as accused in Crime case no. 501 of 1982 under Sections 342/302/330/161 of the Indian Penal Code, P.S. Rotwali Sitapur. During the pendency of the case he was placed under suspension and the said suspension order was challenged before the High Court, Lucknow Bench. The writ petition was dismissed in limine. The order-passed by the Bench runs as under :

We have heard learned Counsel for the Petitioner at some length. We do not find that it is a fit case for interference under Article 226 of the Constitution. The petition fails and is dismissed.

5. From the above facts it is clear that the writ petition filed by Munnalal Tiwari was dismissed in limine. The Division Bench of this Court relying on the principles laid down by the Supreme Court in the case of Dariyao v. State of U.P. AIR 1961 SC 1357, which was subsequently considered in Hoshnak Singh v. Union of India : AIR 1979 SC 1328 [LQ/SC/1979/157] . The Supreme Court in the case of Daryao v. State of U.P. (supra) held that in case the writ petition filed by the Petitioner is dismissed by the High Court in limine on the ground of latches or on the ground of alternative remedy then the dismissal would not constitute a bar to the subsequent petition under Article 32. It was also held that the dismissal of a petition in limine by a non-speaking order does not create a bar of res-judicata. The case on which the Petitioner relies does not help him at all rather demolishes the arguments raised on behalf of the Petitioner for maintainability of the second writ petition. A reference may be made to the observations of the Division Bench in paragraph 6 of the case of Munnalal Tiwari (supra) which runs as under :

6. So far as Munnalal Tiwari is concerned, ordinarily a second writ petition under Article 226 of the Constitution of India cannot be entertained. The principles akin to res judicata are applicable to writ petition. If a writ petition is disposed of by a speaking order in which reasons are indicated why the writ petition has been dismissed a second writ petition on the same facts and cause of action would not lie, not even on a new ground which could or ought to have been raised in the earlier writ petition, see : AIR 1973 SC 974 [LQ/SC/1973/3] : AIR 1965 SC 1150 [LQ/SC/1964/267] and Pearey v. Deputy Director of Consolidation 1983 LCD 376.

6. From the above, the legal position which is settled is that if a writ petition is disposed of by a speaking order second petition on the same facts and cause of action would not lie, not even on a new ground which could or ought to have been raised in the earlier petition. But the facts of the present case are entirely different, inasmuch as, writ petition challenging the suspension order of the Petitioner is still pending and the Petitioner ought/ could have challenged validity of Rule 49-A (2) (a) of Civil Service (Classification, Control and Appeal) Rules, 1930. learned Counsel for the Petitioner has also contended that when the earlier writ petition was filed the suspension order was not reduced in writing and since a written suspension order was passed subsequently it has given a fresh cause of action to the Petitioner and as such the present petition filed by the Petitioner challenging the written suspension order dated 4-7-1992 is maintainable. The aforesaid argument raised on behalf of the Petitioner appears to be wholly falicious and cannot be accepted on the premise that the order dated 27th April, 1992 passed by this Court in the earlier petition of the Petitioner has already considered the suspension of the Petitioner and the prayer for reinstatement. The order passed by this Court on the stay application leaves no room for doubt that the Petitioner has challenged his suspension though the same might not have been reduced in writing. The other redeeming feature in the present case is that even if no suspension order was passed in writing, since the Petitioner was in jail for more than 48 hours he shall be deemed to have been placed under suspension under Rule 49-A (2) (a) of the Civil Service (Classification Control and Appeal) Rules, 1930 and it is because of this, the authorities of the College namely the Principal did not allow the Petitioner to resume his duty, as he was in jail for more than 48 hours. From the above, it is crystal clear that where an employee remains in police custody for more than 48 hours, in view of the deeming provisions he would be deemed to have been placed under suspension from the date of his detention, though the suspension order might not have been reduced in writing.

7. For the reasons stated above, we are of the definite view that since the Petitioner has already challenged his suspension order in the earlier writ petition, which is still pending and the Petitioner ought/could have challenged the validity of Rule 49-A (2) (a) of the Civil Service (Classification, Control and Appeal) Rules, 1930. The Petitioner can not be permitted to file another writ petition for the same cause of action and as such the present petition is not maintainable and deserves to be dismissed in limine. The petition is accordingly dismissed as being not maintainable.