Gujarat High Court
Rutvi vs State on 1 February, 2011
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
Gujarat High Court Case Information System
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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Earlier, the petitioner had filed Special Civil Application No.648 of 2011, which was permitted to be withdrawn on a statement made by the learned advocate for the petitioner, with a view to approaching the Gujarat Public Service Commission (GPSC), by order dated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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