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SCA/984/2011 15/ 15 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 984 of 2011
=========================================================
RUTVI
JITENDRAKUMAR PANDYA - Petitioner(s)
Versus
STATE
OF GUJARAT THROUGH CHIEF SECRETARY & 2 - Respondent(s)
=========================================================
Appearance
:
MR
PJ KANABAR for
Petitioner
GOVERNMENT PLEADER for Respondent(s) : 1
None for
Respondent(s) : 2 -
3
=========================================================
CORAM
:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
Date
: 01/02/2011
ORAL
ORDER
The
present petition under Article 226 of the Constitution of India has
been filed with the following prayers:
(A) Your
Lordships be pleased to admit this Special Civil Application;
(B) Your
Lordships further be pleased to issue a writ of mandamus or any
other appropriate writ, order or direction in the nature of mandamus
quashing and setting aside the impugned corrigendum dated 04/01/’11
and the notification dated 10/01/’11 declaring the respondent no.3
as qualified for the oral interview and that the petitioner as not
qualified for the oral interview is illegal, improper, arbitrary,
capricious malafide and violative of the principles of natural
justice in the facts and the circumstances of the case and in the
interest of justice;
(C) Your
Lordships may further be pleased to declare that the notification
dated 14/12/’10 is legal, valid and to be acted upon by the
respondents in the facts and the circumstances of the case and in
the interest of justice;
(D) Pending
admission, hearing and final disposal of this petition, Your
Lordships be pleased direct the respondent no.2 to call the
petitioner in the oral interview for the post of class II of the
lecturer in Physics subject in Government Engineering College in the
facts and the circumstances of the case and in the interest of
justice;
(E) To
pass such order of costs and other and further orders necessary in
the interest of justice.”
Earlier,
the petitioner had filed Special Civil Application No.648 of 2011,
which was permitted to be withdrawn on a statement made by the
learned advocate for the petitioner, with a view to approaching the
Gujarat Public Service Commission (GPSC), by order dated 24.01.2011.
Special Civil Application No.648 of 2011 contained the following
prayers:
(A) Your
Lordships be pleased to admit this Special Civil Application;
(B) Your
Lordships further be pleased to issue a writ of mandamus or any
other appropriate writ, order or direction in the nature of mandamus
quashing and setting aside the impugned notification dated 10/01/’11
declaring Tank Kashmira Prabhudasbhai as qualified for the oral
interview and that the petitioner not qualified for the oral
interview as illegal, improper, arbitrary, capricious malafide and
violative of the principles of natural justice in the facts and the
circumstances of the case and in the interest of justice;
(C) Your
Lordships may further be pleased to declare that the notification
dated 14/12/’10 is legal, valid and to be acted upon by the
respondents in the facts and the circumstances of the case and in
the interest of justice;
(D) Pending
admission, hearing and final disposal of this petition, Your
Lordships be pleased direct the respondent no.2 to call the
petitioner in the oral interview for the post of class II of the
lecturer in Physics subject in Government Engineering College in the
facts and the circumstances of the case and in the interest of
justice;
(E) To
pass such order of costs and other and further orders necessary in
the interest of justice.”
Briefly
stated, the case of the petitioner is that she is serving as
Lecturer on adhoc basis in Government Engineering College at Rajkot
for a little more than a year. Respondent No.2 – GPSC issued
an advertisement in the month of February 2010, inviting
applications from interested candidates to fill up 38 posts of
Lecturers in Physics in Government Engineering Colleges. According
to the petitioner, 6 posts out of the said 38 posts are reserved for
female candidates. Pursuant to the advertisement, the petitioner
submitted an application and appeared in the written test conducted
on 11.07.2010 against Seat No.205490. The result of the written test
was declared on 04.09.2010 and the petitioner was declared to have
passed. According to the petitioner, the GPSC published the final
list of candidates eligible to be called for interview on 14.12.2010
and the name of the petitioner found mention in the said list,
whereas the seat number of respondent No.3 was not mentioned. It is
the case of petitioner that while searching on the internet, the
petitioner came across Notification dated 10.01.2011 containing the
list of candidates to be called for the oral interview, wherein the
name of respondent No.3 was shown at Sr.No.48. The petitioner also
came across another list, of 23 eliminated candidates, of even date,
in which the name of the petitioner is shown at Sr.No.23. The
petitioner filed an application under the Right to Information Act
for more information and came to know that the GPSC has issued
corrigendum dated 04.01.2011 pursuant to which the subsequent
Notification dated 10.01.2011, including the name of respondent No.3
and eliminating that of the petitioner has been issued. The
petitioner, therefore, filed Special Civil Application No.648 of
2011, which was withdrawn by order dated 24.01.2011, as mentioned
hereinabove. The prayers made in the said petition are reproduced
hereinabove. However, the petitioner, immediately after the
withdrawal of the above-mentioned petition, has filed the present
petition with the prayers, as reproduced hereinabove.
The
matter was heard extensively on 31.01.2011 and kept for dictation of
orders today.
Mr.P.J.Kanabar,
learned advocate for the petitioner has made the following
submissions:
(A) That
the earlier petition was not decided on merits and it was merely
permitted to be withdrawn, therefore, the petitioner can file and
maintain the present petition.
(B) That
the petitioner approached the GPSC and learnt that as per the final
list dated 14.12.2010, a total of 101 candidates were to be called
for the oral interview. However, as per the impugned corrigendum
dated 04.01.2011 and 10.01.2011, the seat number of the petitioner
is eliminated and the seat number of respondent No.3 is included and
a total of 99 candidates are called for the oral interview. As out
of these 99 candidates, 43 fall in the Socially and Economically
Backward category whereas 38 male candidates fall in the General
Category and 18 candidates, being female candidates, fall in the
reserved category, therefore, there is a direct contest between the
petitioner and respondent No.3 in this category. That these
averments have not been made in the earlier petition, therefore, the
present petition would be maintainable on this ground.
(C) That
it was not open to the GPSC to issue corrigendum dated 04.01.2011
after having included the name of the petitioner in Notification
dated 14.12.2010 and to the best of the knowledge of the petitioner,
the GPSC has relied upon the oral say of respondent No.3, therefore,
its behaviour is contradictory and suspicious. The GPSC has been
unable to render any explanation to the petitioner nor has any reply
been given by the said respondent and as the oral interviews are
scheduled to be held from 02.02.2011, the respondents ought to be
called upon to explain their acts of omission and commission at the
earliest.
(D) That
the petitioner has not taken any undue advantage of the order of the
Court passed in the earlier petition which may preclude her from
filing the present petition. That no order has been passed by the
GPSC, and the request of the petitioner has been orally denied.
Therefore, the petitioner is constrained to file the present
petition.
In
support of the above submissions, the learned advocate for the
petitioner has placed reliance upon the following judgments:
(a) Kandapazha
Nadar and Ors. v. Chitraganiammal and Ors. – 2007(2) GLH 141,
wherein it has been held that the order of the Court permitting
withdrawal of a suit without liberty to file a fresh suit cannot
constitute a ‘decree’.
(b) Vimlesh
Kumari Kulshrestha v. Sambhajirao and Anr. – 2008(1) GLH 502,
wherein it has been held that where the first suit was withdrawn for
non-payment of proper Court fees after instituting the second suit
on the same subject-matter, the provisions of Order 23, Rule 1 of
the Code of Civil Procedure would not be attracted.
(c) M/s.M.Ramnarain
Private Limited and Another v. State Trading Corporation of India
Limited – (1983)3 SCC 75,
wherein it has been held that where an incompetent appeal against an
order is withdrawn and a subsequent appeal filed against the
judgment and decree, incorporating
the order on grounds relating to the merits as well as those taken
in the earlier
appeal, the subsequent appeal would be competent and maintainable.
(d) Paul
Industries (India) v. Union of India And Others – (2004)13 SCC
340,
wherein it has been held that withdrawal of a writ petition against
an order of the Settlement Commissioner imposing duty and penalty
with a view to file rectification petition before the Settlement
Commission would not imply confirmation of the impugned order.
Having
heard the learned advocate for the petitioner and after perusal of
the averments made in the petition and contents of the other
documents annexed thereto, in the considered view of this Court, the
present petition cannot be entertained for the following reasons:
I. If
the prayers made in the earlier petition filed by the petitioner,
being Special Civil Application No.648 of 2011, and those in the
present petition are perused, it transpires that almost identical
prayers have been made in both petitions, except that in the earlier
petition, the name of respondent No.3, who had not been made party
in that petition, figures in the prayer clause, whereas in the
present petition, the respondent No.3 has been made a party.
II. The
learned advocate for the petitioner had sought permission to
withdraw the earlier petition with a view to approaching respondent
No.2 (GPSC). The Court merely granted permission to withdraw the
petition and the petition was disposed of, as withdrawn, by order
dated 24.01.2011. No liberty has been reserved by the petitioner to
approach the Court again, on the same cause of action.
III. It
appears that the petitioner has made a representation to the GPSC on
27.01.2011. A copy of the same is annexed as Annexure-F, at running
page-42 to the petition. Interestingly, the present petition bears
the same date, i.e. 27.01.2011 and the affidavit filed with the
petition has also been affirmed on 27.01.2011. The petition has been
filed in the Registry of the Court on 28.01.2011. It was, therefore,
not possible for the GPSC to decide the representation on the same
date or till the filing of the petition, or even till 31.01.2011,
when the matter was heard at length. The petitioner has not put on
record, any decision by GPSC, upon her representation. It is stated
by the learned advocate for the petitioner that no order has been
passed. It, therefore, transpires that as no order has been passed
against the petitioner, no fresh cause of action has arisen, which
would entitle the petitioner to file and maintain the present
petition.
This
Court is constrained to note that in paragraph-3.6 at running page-6
of the petition, while mentioning the factum of withdrawal of the
earlier petition, it is stated that the Court was of the view that
the petitioner should approach the respondent-Commission first and
in absence of respondent No.3 as party-respondent, it would not be
proper to entertain the petition and the Court has permitted the
petitioner to withdraw the petition for that purpose,
on 24.01.2011. This is a complete misstatement of facts, designed to
give a different colour to the petition. It was open to the learned
advocate for the petitioner to pray for liberty to file a fresh
petition after joining respondent No.3, which was not done. The
earlier petition has been withdrawn with a view to approaching the
respondent-GPSC. This Court has not relegated the
petitioner to file a representation, as insinuated in the
above-mentioned pleadings. Further, there is no prayer in the
present petition for directions to the GPSC to decide the
representation of the petitioner dated 27.01.2011 but the prayers
are almost a repetition of the prayers made in the earlier petition.
Insofar
as the judgments cited by the learned advocate for the petitioner
are concerned, there can be no dispute regarding the principles of
law enunciated in those judgments, on the facts and circumstances of
those cases. However, they would not be of any help to the case of
the petitioner, in view of the factual and legal position obtaining
in the present case.
Admittedly,
the present petition has been filed by the petitioner after
withdrawing the earlier petition, with almost identical prayers, and
without seeking liberty to file a fresh petition on the same cause
of action. As the representation of the petitioner has not been
decided by the GPSC, no fresh cause of action has arisen to the
petitioner. As noted earlier, the petitioner has made the said
representation on 27.01.2011 and the memorandum of the petition has
been prepared on the same date. Though the petition has been filed a
day later, that is, on 28.01.2011, hardly any time has elapsed
between making the representation and approaching this Court.
It
is no longer res-integra that after withdrawal of a petition under
Article 226 of the Constitution without permission to institute a
fresh petition, a petitioner cannot file a fresh petition in respect
of the same cause of action in the High Court, under that Article.
This principle of law has been enunciated by the Supreme Court in
Sarguja Transport Service v. State Transport Appellate
Tribunal, Gwalior and others – AIR 1987 SC 88.
The relevant extract of the judgment is reproduced hereinbelow:
“9. The
point for consideration is whether a petitioner after
withdrawing a writ petition filed by him in the High Court under
Art.226 of the Constitution of India without the permission to
institute a fresh petition can file a fresh writ petition in the
High Court under that Article. On this point the decision in
Daryao’s case (supra) is of no assistance. But we are of the
view that the principle underlying R.1 of O.XXIII of the Code should
be extended in the interests of administration of justice to cases
of withdrawal of writ petition also, not on the ground of res
judicata but on the ground of public policy as explained above. It
would also discourage the litigant from indulging in bench-hunting
tactics. In any event there is no justifiable reason in such a case
to permit a petitioner to invoke the extraordinary jurisdiction of
the High Court under Art.226 of the Constitution once again. While
the withdrawal of a writ petition filed in a High Court without
permission to file a fresh writ petition may not bar other remedies
like a suit or a petition under Art.32 of the Constitution of India
since such withdrawal does not amount to res judicata, the remedy
under Art.226 of the Constitution of India should be deemed
to have been abandoned by the petitioner in respect of the cause of
action relied on in the writ petition when he withdraws it without
such permission. In the instant case the High Court was fight in
holding that a fresh writ petition was not maintainable before it in
respect of the same subject-matter since the earlier writ petition
had been withdrawn without permission to file a fresh petition. We,
however. make it clear that whatever we have stated in this order
may not be considered as being applicable to a writ petition
involving the personal liberty of an individual in which the
petitioner prays for the issue of a writ in the nature of habeas
corpus or seeks to enforce the fundamental fight guaranteed under
Art.21 of the Constitution since such a case stands on a different
footing altogether. We however leave this question open.”
Applying
the principles of law enunciated by the Supreme Court hereinabove to
the facts and circumstances of the present case, it is clear that
the earlier petition has been withdrawn without liberty to file a
fresh one on the same cause of action. As held by the Supreme Court,
though the said withdrawal may not amount to res-judicata, the
petitioner is deemed to have given up the remedy under Article 226
of the Constitution in respect of that cause of action. The
petitioner has withdrawn the earlier petition with a view to
approaching the GPSC. However, no order whatsoever, leave alone any
adverse order, has been made by the GPSC upon the said
representation, dated 27.01.2011 of the petitioner, may be due to
paucity of time, as the petition has been prepared on the very same
day and filed on the next day, that is, 28.01.2011. In the above
circumstances, in the absence of any fresh cause of action, the
petition cannot be entertained.
For
the aforestated reasons, in the considered view of this Court, the
petition deserves to be rejected. It is, accordingly, rejected.
However, it is clarified that the rejection of the petition would
not come in the way of the GPSC in deciding the representation made
by the petitioner.
(Smt.Abhilasha
Kumari, J.)
(sunil)
.
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