Madhya Pradesh High Court
Rohit Kumar Gupta vs The State Of Madhya Pradesh on 21 August, 2019
Author: Vishal Dhagat
Bench: Vishal Dhagat
1 WP-1096-2019
The High Court Of Madhya Pradesh
WP-1096-2019
(ROHIT KUMAR GUPTA Vs THE STATE OF MADHYA PRADESH)
3
Jabalpur, Dated : 21-08-2019
Shri Himanshu Shukla, learned counsel for the petitioner.
Shri V.C. Dwivedi, learned counsel for respondent No.6.
Petitioner has filed the present writ petition challenging the order dated 08.05.2018 passed by the Chief Executive Officer, Zila Panchayat Rewa.
Brief facts of the case is as under:-
Petitioner as well as respondent No.6 had filed an application for their appointment as Gram Rojgar Sahayak in Gram Panchayat Sitapur. Petitioner got 117.40 marks and respondent No.6 got 115.60 marks. Respondent No.6 had objected to the marks awarded to him. It was stated by respondent No.6 that he is holder of B.Com. degree and therefore, 30 marks ought to have been awarded to him for holding B.Com. degree.
Respondent No.6 had filed mark-sheet of B.Com. dated 12.08.2014. The said mark-sheet was not filed along with the application form and last date for submission of application form was 14.07.2014 as per averment made by the petitioner.
It was further averred by the petitioner that respondent No.6 filed writ petition before this Court which was registered as W.P. No.13020/2017. The aforesaid writ petition was dismissed as withdrawn on 30.08.2017. Petitioner therein i.e. respondent No.6 was given liberty to approach the appropriate forum. Thereafter, respondent No.6 filed an application before the authority concerned. It was averred by the petitioner that he had filed the application after a delay. In his application no reasons is assigned for condonation of delay and by the impugned order dated 08.05.2018, the application filed by respondent No.6 was allowed and he was awarded 30 marks for B.Com.
Being aggrieved by said order, petitioner filed a writ petition before this Court bearing W.P. No.11120/2018. The writ petition filed by the petitioner Digitally signed by SUNIL KUMAR PATEL Date: 28/08/2019 10:54:32 2 WP-1096-2019 was dismissed with cost of Rs.15,000/- on 05.12.2018. The cost was imposed upon the petitioner because he suppressed the fact that he had already preferred an appeal before Rojgar Guarantee Parishad. He had suppressed the material fact from the Court and therefore, writ petition was dismissed with cost. The order passed in writ petition was challenged by the petitioner in Writ Appeal No.1792/2018. Appellate Court also dismissed the writ appeal on the ground that it was respondent No.6 who brought to the notice of this Court that appeal has been filed by the petitioner before Rojgar Guarantee Parishad. Writ appeal filed by the petitioner was also dismissed and the order of learned Single Judge has been affirmed. Now, petitioner has filed the present writ petition on the strength of an order passed by the Apex Court reported in SCC Online and also in 2007 (6) SCC 120.
In this case, a writ petition was filed without disclosing fact that petitioner had earlier a civil suit for the same relief. Application for withdrawal of suit was filed before writ petition came up for preliminary hearing but withdrawal application coming up for hearing and suit was withdrawn only after notices has been issued in writ petition. High Court dismissed the writ petition on ground of suppression of material fact. It was averred by the petitioner that since suit has been withdrawn and suppression of it is no longer of material fact. Hence, another writ petition disclosing all the facts was maintainable.
It was held by the Supreme Court that Judgment of High Court in a case of this nature shall not operate as res judicata as same has not been decided on merits and the petition was disposed of with direction that if appellant filed a fresh writ application, the same may be considered on its own merits. Civil suit was filed by the petitioner prior to filing of the writ petition. It was held that it was obligatory for the appellant to disclose the said fact. It was held that Single Judge and Division Bench of the High Court may be correct in a case of this nature that Courts jurisdiction may not be invoked but that would not mean that another writ petition would not lie. Another writ Digitally signed by SUNIL KUMAR PATEL Date: 28/08/2019 10:54:32 3 WP-1096-2019 petition which is filed disclosing all the facts. The appellant would be approach the writ Court with clean hands and the Court at that point of time will be entitled to determine the case on merits. Having regard to human right of appellant to assist justice and keeping in view the fact that judicial review is basic future of the constitution. The judgment of the high Court will not operate as res judicata.
Since petitioner has filed the present writ petition disclosing all the facts and in light of the law laid down by the Apex Court, the present writ petition is entertained.
Notice is issued to the respondents on payment of process fee within seven working days.
The prayer made by the petitioner for interim relief is rejected. Let the matter be listed after service of notice upon respondents.
(VISHAL DHAGAT) JUDGE sp/-
Digitally signed by SUNIL KUMAR PATEL Date: 28/08/2019 10:54:32