{"id":258280,"date":"2011-02-01T00:00:00","date_gmt":"2011-01-31T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/rutvi-vs-state-on-1-february-2011"},"modified":"2019-01-15T08:31:20","modified_gmt":"2019-01-15T03:01:20","slug":"rutvi-vs-state-on-1-february-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/rutvi-vs-state-on-1-february-2011","title":{"rendered":"Rutvi vs State on 1 February, 2011"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Rutvi vs State on 1 February, 2011<\/div>\n
Author: Abhilasha Kumari,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nSCA\/984\/2011\t 15\/ 15\tORDER \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 984 of 2011\n \n\n \n\n\n \n\n \n=========================================================\n\n \n\nRUTVI\nJITENDRAKUMAR PANDYA - Petitioner(s)\n \n\nVersus\n \n\nSTATE\nOF GUJARAT THROUGH CHIEF SECRETARY & 2 - Respondent(s)\n \n\n=========================================================\n \nAppearance\n: \nMR\nPJ KANABAR for\nPetitioner \nGOVERNMENT PLEADER for Respondent(s) : 1 \nNone for\nRespondent(s) : 2 -\n3 \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHON'BLE\n\t\t\tSMT. JUSTICE ABHILASHA KUMARI\n\t\t\n\t\n\n \n\nDate\n: 01\/02\/2011 \n\n \n\n \n \n\n\n \n\nORAL\nORDER<\/pre>\n
\tThe
\n\tpresent petition under Article 226<\/a> of the Constitution of India has
\n\tbeen filed with the following prayers:\n<\/p>\n
\t(A)\tYour
\n\tLordships be pleased to admit this Special Civil Application;\n<\/p>\n
\t(B)\tYour
\n\tLordships further be pleased to issue a writ of mandamus or any
\n\tother appropriate writ, order or direction in the nature of mandamus
\n\tquashing and setting aside the impugned corrigendum dated 04\/01\/’11
\n\tand the notification dated 10\/01\/’11 declaring the respondent no.3
\n\tas qualified for the oral interview and that the petitioner as not
\n\tqualified for the oral interview is illegal, improper, arbitrary,
\n\tcapricious malafide and violative of the principles of natural
\n\tjustice in the facts and the circumstances of the case and in the
\n\tinterest of justice;\n<\/p>\n
\t(C)\tYour
\n\tLordships may further be pleased to declare that the notification
\n\tdated 14\/12\/’10 is legal, valid and to be acted upon by the
\n\trespondents in the facts and the circumstances of the case and in
\n\tthe interest of justice;\n<\/p>\n
\t(D)\tPending
\n\tadmission, hearing and final disposal of this petition, Your
\n\tLordships be pleased direct the respondent no.2 to call the
\n\tpetitioner in the oral interview for the post of class II of the
\n\tlecturer in Physics subject in Government Engineering College in the
\n\tfacts and the circumstances of the case and in the interest of
\n\tjustice;\n<\/p>\n
\t(E)\tTo
\n\tpass such order of costs and other and further orders necessary in
\n\tthe interest of justice.”\n<\/p>\n
\tEarlier,
\n\tthe petitioner had filed Special Civil Application No.648 of 2011,
\n\twhich was permitted to be withdrawn on a statement made by the
\n\tlearned advocate for the petitioner, with a view to approaching the
\n\tGujarat Public Service Commission (GPSC), by order dated 24.01.2011.
\n\t Special Civil Application No.648 of 2011 contained the following
\n\tprayers:\n<\/p>\n
\t(A)\tYour
\n\tLordships be pleased to admit this Special Civil Application;\n<\/p>\n
\t(B)\tYour
\n\tLordships further be pleased to issue a writ of mandamus or any
\n\tother appropriate writ, order or direction in the nature of mandamus
\n\tquashing and setting aside the impugned notification dated 10\/01\/’11
\n\tdeclaring Tank Kashmira Prabhudasbhai as qualified for the oral
\n\tinterview and that the petitioner not qualified for the oral
\n\tinterview as illegal, improper, arbitrary, capricious malafide and
\n\tviolative of the principles of natural justice in the facts and the
\n\tcircumstances of the case and in the interest of justice;\n<\/p>\n
\t(C)\tYour
\n\tLordships may further be pleased to declare that the notification
\n\tdated 14\/12\/’10 is legal, valid and to be acted upon by the
\n\trespondents in the facts and the circumstances of the case and in
\n\tthe interest of justice;\n<\/p>\n
\t(D)\tPending
\n\tadmission, hearing and final disposal of this petition, Your
\n\tLordships be pleased direct the respondent no.2 to call the
\n\tpetitioner in the oral interview for the post of class II of the
\n\tlecturer in Physics subject in Government Engineering College in the
\n\tfacts and the circumstances of the case and in the interest of
\n\tjustice;\n<\/p>\n
\t(E)\tTo
\n\tpass such order of costs and other and further orders necessary in
\n\tthe interest of justice.”\n<\/p>\n
\tBriefly
\n\tstated, the case of the petitioner is that she is serving as
\n\tLecturer on adhoc basis in Government Engineering College at Rajkot
\n\tfor a little more than a year. Respondent No.2 – GPSC issued
\n\tan advertisement in the month of February 2010, inviting
\n\tapplications from interested candidates to fill up 38 posts of
\n\tLecturers in Physics in Government Engineering Colleges. According
\n\tto the petitioner, 6 posts out of the said 38 posts are reserved for
\n\tfemale candidates. Pursuant to the advertisement, the petitioner
\n\tsubmitted an application and appeared in the written test conducted
\n\ton 11.07.2010 against Seat No.205490. The result of the written test
\n\twas declared on 04.09.2010 and the petitioner was declared to have
\n\tpassed. According to the petitioner, the GPSC published the final
\n\tlist of candidates eligible to be called for interview on 14.12.2010
\n\tand the name of the petitioner found mention in the said list,
\n\twhereas the seat number of respondent No.3 was not mentioned. It is
\n\tthe case of petitioner that while searching on the internet, the
\n\tpetitioner came across Notification dated 10.01.2011 containing the
\n\tlist of candidates to be called for the oral interview, wherein the
\n\tname of respondent No.3 was shown at Sr.No.48. The petitioner also
\n\tcame across another list, of 23 eliminated candidates, of even date,
\n\tin which the name of the petitioner is shown at Sr.No.23. The
\n\tpetitioner filed an application under the Right to Information Act<\/a>
\n\tfor more information and came to know that the  GPSC has issued
\n\tcorrigendum dated 04.01.2011 pursuant to which the subsequent
\n\tNotification dated 10.01.2011, including the name of respondent No.3
\n\tand eliminating that of the petitioner has been issued.  The
\n\tpetitioner, therefore, filed Special Civil Application No.648 of
\n\t2011, which was withdrawn by order dated 24.01.2011, as mentioned
\n\thereinabove. The prayers made in the said petition are reproduced
\n\thereinabove. However, the petitioner, immediately after the
\n\twithdrawal of the above-mentioned petition, has filed the present
\n\tpetition with the prayers, as reproduced hereinabove.\n<\/p>\n
\tThe
\n\tmatter was heard extensively on 31.01.2011 and kept for dictation of
\n\torders today.\n<\/p>\n
\tMr.P.J.Kanabar,
\n\tlearned advocate for the petitioner has made the following
\n\tsubmissions:\n<\/p>\n
\t(A)\tThat
\n\tthe earlier petition was not decided on merits and it was merely
\n\tpermitted to be withdrawn, therefore, the petitioner can file and
\n\tmaintain the present petition.\n<\/p>\n
\t(B)\tThat
\n\tthe petitioner approached the GPSC and learnt that as per the final
\n\tlist dated 14.12.2010, a total of 101 candidates were to be called
\n\tfor the oral interview. However, as per the impugned corrigendum
\n\tdated 04.01.2011 and 10.01.2011, the seat number of the petitioner
\n\tis eliminated and the seat number of respondent No.3 is included and
\n\ta total of 99 candidates are called for the oral interview. As out
\n\tof these 99 candidates, 43 fall in the Socially and Economically
\n\tBackward category whereas 38 male candidates fall in the General
\n\tCategory and 18 candidates,  being female candidates, fall in the
\n\treserved category, therefore, there is a direct contest between the
\n\tpetitioner and respondent No.3 in this category. That these
\n\taverments have not been made in the earlier petition, therefore, the
\n\tpresent petition would be maintainable on this ground.\n<\/p>\n
\t(C)\tThat
\n\tit was not open to the GPSC to issue corrigendum dated 04.01.2011
\n\tafter having included the name of the petitioner in Notification
\n\tdated 14.12.2010 and to the best of the knowledge of the petitioner,
\n\tthe GPSC has relied upon the oral say of respondent No.3, therefore,
\n\tits behaviour is contradictory and suspicious. The GPSC has been
\n\tunable to render any explanation to the petitioner nor has any reply
\n\tbeen given by the said respondent and as the oral interviews are
\n\tscheduled to be held from 02.02.2011, the respondents ought to be
\n\tcalled upon to explain their acts of omission and commission at the
\n\tearliest.\n<\/p>\n
\t(D)\tThat
\n\tthe petitioner has not taken any undue advantage of the order of the
\n\tCourt passed in the earlier petition which may preclude her from
\n\tfiling the present petition. That no order has been passed by the
\n\tGPSC, and the request of the petitioner has been orally denied.
\n\tTherefore, the petitioner is constrained to file the present
\n\tpetition.\n<\/p>\n
\tIn
\n\tsupport of the above submissions, the learned advocate for the
\n\tpetitioner has placed reliance upon the following judgments:\n<\/p>\n
\t(a)\tKandapazha
\n\tNadar and Ors. v. Chitraganiammal and Ors<\/a>. – 2007(2) GLH 141,
\n\twherein it has been held that the order of the Court permitting
\n\twithdrawal of a suit without liberty to file a fresh suit cannot
\n\tconstitute a ‘decree’.\n<\/p>\n
\t(b)\tVimlesh
\n\tKumari Kulshrestha v. Sambhajirao and Anr<\/a>. – 2008(1) GLH 502,
\n\twherein it has been held that where the first suit was withdrawn for
\n\tnon-payment of proper Court fees after instituting the second suit
\n\ton the same subject-matter, the provisions of Order 23, Rule 1 of
\n\tthe Code of Civil Procedure would not be attracted.\n<\/p>\n
\t(c)\tM\/s.M.Ramnarain
\n\tPrivate Limited and Another v. State Trading Corporation of India
\n\tLimited<\/a> – (1983)3 SCC 75,
\n\twherein it has been held that where an incompetent appeal against an
\n\torder is withdrawn and a subsequent appeal filed against the
\n\tjudgment and decree, incorporating
\n\tthe order on grounds relating to the merits as well as those taken
\n\tin the earlier
\n\tappeal, the subsequent appeal would be competent and maintainable.\n<\/p>\n
\t(d)\tPaul
\n\tIndustries (India) v. Union of India And Others<\/a> – (2004)13 SCC
\n\t340,
\n\twherein it has been held that withdrawal of a writ petition against
\n\tan order of the Settlement Commissioner imposing duty and penalty
\n\twith a view to file rectification petition before the Settlement
\n\tCommission would not imply confirmation of the impugned order.\n<\/p>\n
\tHaving
\n\theard the learned advocate for the petitioner and after perusal of
\n\tthe averments made in the petition and contents of the other
\n\tdocuments annexed thereto, in the considered view of this Court, the
\n\tpresent petition cannot be entertained for the following reasons:\n<\/p>\n
\tI.\t\tIf
\n\tthe prayers made in the earlier petition filed by the petitioner,
\n\tbeing Special Civil Application No.648 of 2011, and those in the
\n\tpresent petition are perused, it transpires that almost identical
\n\tprayers have been made in both petitions, except that in the earlier
\n\tpetition, the name of respondent No.3, who had not been made party
\n\tin that petition, figures in the prayer clause, whereas in the
\n\tpresent petition, the respondent No.3 has been made a party.\n<\/p>\n
\tII.\t\tThe
\n\tlearned advocate for the petitioner had sought permission to
\n\twithdraw the earlier petition with a view to approaching respondent
\n\tNo.2 (GPSC). The Court merely granted permission to withdraw the
\n\tpetition and the petition was disposed of, as withdrawn, by order
\n\tdated 24.01.2011. No liberty has been reserved by the petitioner to
\n\tapproach the Court again, on the same cause of action.\n<\/p>\n
\tIII.\t\tIt
\n\tappears that the petitioner has made a representation to the GPSC on
\n\t27.01.2011. A copy of the same is annexed as Annexure-F, at running
\n\tpage-42 to the petition. Interestingly, the present petition bears
\n\tthe same date, i.e. 27.01.2011 and the affidavit filed with the
\n\tpetition has also been affirmed on 27.01.2011. The petition has been
\n\tfiled in the Registry of the Court on 28.01.2011. It was, therefore,
\n\tnot possible for the GPSC to decide the representation on the same
\n\tdate or till the filing of the petition, or even till 31.01.2011,
\n\twhen the matter was heard at length.  The petitioner has not put on
\n\trecord, any decision by GPSC, upon her representation. It is stated
\n\tby the learned advocate for the petitioner that no order has been
\n\tpassed. It, therefore, transpires that as no order has been passed
\n\tagainst the petitioner, no fresh cause of action has arisen, which
\n\twould entitle the petitioner to file and maintain the present
\n\tpetition.\n<\/p>\n
\tThis
\n\tCourt is constrained to note that in paragraph-3.6 at running page-6
\n\tof the petition, while mentioning the factum of withdrawal of the
\n\tearlier petition, it is stated that the Court was of the view that
\n\tthe petitioner should approach the respondent-Commission first and
\n\tin absence of respondent No.3 as party-respondent, it would not be
\n\tproper to entertain the petition and the Court has permitted the
\n\tpetitioner to withdraw the petition  for that purpose,
\n\ton 24.01.2011. This is a complete misstatement of facts, designed to
\n\tgive a different colour to the petition. It was open to the learned
\n\tadvocate for the petitioner to pray for liberty to file a fresh
\n\tpetition after joining respondent No.3, which was not done. The
\n\tearlier petition has been withdrawn with a view to approaching the
\n\trespondent-GPSC.  This Court has not relegated the
\n\tpetitioner to file a representation, as insinuated in the
\n\tabove-mentioned pleadings. Further, there is no prayer in the
\n\tpresent petition for directions to the GPSC to decide the
\n\trepresentation of the petitioner dated 27.01.2011 but the prayers
\n\tare almost a repetition of the prayers made in the earlier petition.\n<\/p>\n
\tInsofar
\n\tas the judgments cited by the learned advocate for the petitioner
\n\tare concerned, there can be no dispute regarding the principles of
\n\tlaw enunciated in those judgments, on the facts and circumstances of
\n\tthose cases. However, they would not be of any help to the case of
\n\tthe petitioner, in view of the factual and legal position obtaining
\n\tin the present case.\n<\/p>\n
\tAdmittedly,
\n\tthe present petition has been filed by the petitioner after
\n\twithdrawing the earlier petition, with almost identical prayers, and
\n\twithout seeking liberty to file a fresh petition on the same cause
\n\tof action. As the representation of the petitioner has not been
\n\tdecided by the GPSC, no fresh cause of action has arisen to the
\n\tpetitioner. As noted earlier, the petitioner has made the said
\n\trepresentation on 27.01.2011 and the memorandum of the petition has
\n\tbeen prepared on the same date. Though the petition has been filed a
\n\tday later, that is, on 28.01.2011, hardly any time has elapsed
\n\tbetween making the representation and approaching this Court.\n<\/p>\n
\tIt
\n\tis no longer res-integra that after withdrawal of a petition under
\n\tArticle 226<\/a> of the Constitution without permission to institute a
\n\tfresh petition, a petitioner cannot file a fresh petition in respect
\n\tof the same cause of action in the High Court, under that Article.
\n\tThis principle of law has been enunciated by the Supreme Court in
\n\tSarguja Transport Service v. State Transport Appellate
\n\tTribunal, Gwalior and others<\/a> – AIR 1987 SC 88.
\n\tThe relevant extract of the judgment is reproduced hereinbelow:\n<\/p>\n
\t“9.\tThe
\n\tpoint for consideration is whether a petitioner after
\n\twithdrawing a writ petition filed by him in the High Court under
\n\tArt.226<\/a> of the Constitution of India without the permission to
\n\tinstitute a fresh petition can file a fresh writ petition in the
\n\tHigh Court under that Article. On this point the decision in
\n\tDaryao’s case (supra) is of no assistance. But we are of the
\n\tview that the principle underlying R.1 of O.XXIII of the Code should
\n\tbe extended in the interests of administration of justice to cases
\n\tof withdrawal of writ petition also, not on the ground of res
\n\tjudicata but on the ground of public policy as explained above. It
\n\twould also discourage the litigant from indulging in bench-hunting
\n\ttactics. In any event there is no justifiable reason in such a case
\n\tto permit a petitioner to invoke the extraordinary jurisdiction of
\n\tthe High Court under Art.226<\/a> of the Constitution once again. While
\n\tthe withdrawal of a writ petition filed in a High Court without
\n\tpermission to file a fresh writ petition may not bar other remedies
\n\tlike a suit or a petition under Art.32<\/a> of the Constitution of India
\n\tsince such withdrawal does not amount to res judicata, the remedy
\n\tunder Art.226<\/a> of the Constitution of India should be deemed
\n\tto have been abandoned by the petitioner in respect of the cause of
\n\taction relied on in the writ petition when he withdraws it without
\n\tsuch permission. In the instant case the High Court was fight in
\n\tholding that a fresh writ petition was not maintainable before it in
\n\trespect of the same subject-matter since the earlier writ petition
\n\thad been withdrawn without permission to file a fresh petition. We,
\n\thowever. make it clear that whatever we have stated in this order
\n\tmay not be considered as being applicable to a writ petition
\n\tinvolving the personal liberty of an individual in which the
\n\tpetitioner prays for the issue of a writ in the nature of habeas
\n\tcorpus or seeks to enforce the fundamental fight guaranteed under
\n\tArt.21<\/a> of the Constitution since such a case stands on a different
\n\tfooting altogether. We however leave this question open.”\n<\/p>\n
\tApplying
\n\tthe principles of law enunciated by the Supreme Court hereinabove to
\n\tthe facts and circumstances of the present case, it is clear that
\n\tthe earlier petition has been withdrawn without liberty to file a
\n\tfresh one on the same cause of action. As held by the Supreme Court,
\n\tthough the said withdrawal may not amount to res-judicata, the
\n\tpetitioner is deemed to have given up the remedy under Article 226<\/a>
\n\tof the Constitution in respect of that cause of action. The
\n\tpetitioner has withdrawn the earlier petition with a view to
\n\tapproaching the GPSC. However, no order whatsoever, leave alone any
\n\tadverse order, has been made by the GPSC upon the said
\n\trepresentation, dated 27.01.2011 of the petitioner, may be due to
\n\tpaucity of time, as the petition has been prepared on the very same
\n\tday and filed on the next day, that is, 28.01.2011. In the above
\n\tcircumstances, in the absence of any fresh cause of action, the
\n\tpetition cannot be entertained.\n<\/p>\n
\tFor
\n\tthe aforestated reasons, in the considered view of this Court, the
\n\tpetition deserves to be  rejected. It is, accordingly, rejected.
\n\tHowever, it is clarified that the rejection of the petition would
\n\tnot come in the way of the GPSC in deciding the representation made
\n\tby the petitioner.\n<\/p>\n
\t\t\t\t\t\t(Smt.Abhilasha
\nKumari, J.)<\/p>\n
(sunil)<\/p>\n
.\n<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Rutvi vs State on 1 February, 2011 Author: Abhilasha Kumari,&Nbsp; Gujarat High Court Case Information System Print 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 – […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-258280","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nRutvi vs State on 1 February, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/rutvi-vs-state-on-1-february-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Rutvi vs State on 1 February, 2011 - 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