Allahabad High Court
Smt.Gopa Bahadur vs State Of U.P. And 2 Others on 17 February, 2023
Bench: Suneet Kumar, Rajendra Kumar-Iv
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 42 Case :- WRIT - A No. - 2330 of 2023 Petitioner :- Smt.Gopa Bahadur Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Kamlesh Kumar Yadav,Sr. Advocate,Vijay Kumar Srivastava Counsel for Respondent :- C.S.C.,Ashish Mishra Hon'ble Suneet Kumar,J.
Hon'ble Rajendra Kumar-IV,J.
1. Heard Shri Ashok Khare, learned Senior Advocate assisted by Shri Kamlesh Kumar Yadav and Shri Chandan Sharma, lerned counsel appearing for the respondent Nos. 2 and 3 and learned Standing Counsel for the State-respondent.
2. Petitioner by the instant writ petition, inter alia, seeks the following relief:
"To issue a writ, order or direction of a suitable nature commanding the respondent to forthwith recommend one additional candidate under the 20% reservation for women in pursuance to "Direct Recruitment" to the Uttar Pradesh Higher Judicial Service - 2018 (Part-II) within a period to be specified by this Hon'ble Court."
3. It is not in dispute that petitioner had earlier approached this Court by filing a writ petition being Writ - A No. 2650 of 2022 (Smt. Gopa Bahadur Vs. High Court of Judicature at Allahabad and Another). The aforesaid writ petition came to be dismissed vide order dated 4 April 2022.
4. On perusal of the aforenoted order, it appears that a direction was sought by the petitioner that the candidature of the petitioner be considered under Scheduled Caste category. The Court rejected the contention as in the application form, petitioner applied under the "General/Unreserved Category". Petitioner in the present writ petition has raised the correctness of twenty percent women reservation under horizontal quota.
5. Learned counsel appearing for the respondent Nos. 2 and 3 submit that the second writ petition would not be maintainable as the petitioner admittedly had foregone her claim and right to challenge the women reservation in the earlier writ petition. They submit that the principle enshrined under Order 2 Rule 2 of the Civil Procedure Code, 1908(for short ''C.P.C.'), would apply in the matter.
6. Order 2, Rule 2 of C.P.C., provides that while filing a petition or a suit, whole of the claim, which the plaintiff or the petitioner is entitled to make in respect of a cause of action, shall be required to be added failing which he shall not afterwards be entitled to sue in respect of the portion of the omitted or relinquished claim. Similarly, Explanation IV of Section 11 of the C.P.C., also provides that any matter which might and ought to have been made a ground of defence or attack in such former suit or petition under Article 226, shall be deemed to have been a matter directly or substantially in issue in such suit or proceedings.
7. The Hon'ble Supreme Court has also, on more than one occasion deprecated the practice of filing multiple writ petitions on same or similar cause of action. Reference in this regard can be made to the judgment rendered in the case of Udyami Evam Khadi Gramodyog Welfare Sanstha Vs. State of U.P.1. The question is "Whether this Court should entertain second petition particularly in view of the defects pointed out above? The answer to the aforesaid question, in the considered view of this Court, has to be negative."
8. Supreme Court in Commissioner of Income Tax, Bombay Vs. T.P. Kumaran2; Union of India Vs. Punnilal3, observed as under:
"............ It is why the rule of judicial practice and procedure that a second writ petition shall not be entertained by the High Court on the subject matter respecting that the writ petition of the same person was dismissed by the same Court even if the order of such dismissal was in limine, be it on the ground of latches or on the ground of non-exhaustion of alternative remedy, has come to be accepted and followed as salutary rule in exercise of writ jurisdiction of the Court."
9. Therefore, in view of the above referred authorities, it is abundantly clear that even if the provisions of the C.P.C. are not applicable in writ jurisdiction, the principle enshrined therein can be resorted to for the reason that the principles, on which the C.P.C. is based, are founded on public policy and, therefore, require to be extended and made applicable in writ jurisdiction also in the interest of administration of justice. Any relief not claimed in the earlier writ petition should be deemed to have been abandoned by the petitioner to the extent of the cause of action claimed in the subsequent writ petition and in order to restrain the person from abusing the process of the Court, such an order/course requires not only to be resorted to but to be enforced.
10. On specific query, learned counsel for the petitioner does not dispute that the writ petition arises from the same cause of action and the issue and relief being claimed in the present writ petition could have been raised in the alternative in the earlier writ petition.
11. In view thereof, the second writ petition for the same cause of action is not maintainable, accordingly, dismissed.
Order Date :- 17.2.2023 Mukesh Pal