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2013 DIGILAW 545 (HP)

KISHORI LAL v. DINESH KUMAR

2013-06-17

A.M.KHANWILKAR, KULDIP SINGH

body2013
JUDGMENT A.M. KHANWILKAR, C.J. 1. (ORAL) Heard counsel for the parties. 2. ADMIT. Counsel for the respective respondents waive notice for final disposal forthwith, as short question is involved. This appeal takes exception to the judgment of the learned Single Judge dated 20th December, 2012 in CWP No. 3195 of 2010-D. The appellant had challenged that decision by way of LPA on the earlier occasion. The Division Bench of this Court, however, relegated the appellant to resort to review, in view of the principal grievance that the learned Single Judge committed manifest error in following the criteria referred to in paragraph 2 of the impugned decision, when in fact the appropriate and applicable criteria was notified and was made part of record at page 32 of the writ petition paper book. That criteria relied by the appellant has been adverted to by the learned Single Judge in paragraph 3 of the impugned decision. However, no discussion is found in the impugned decision as to which of the criteria is in fact applicable, muchless to discard the criteria pressed into service by the appellant. The appellant, as per the liberty approached the learned Single Judge by way of review, which, however, came to be dismissed by observing that no error apparent on the face of the record within the ambit of Order 47 Rule 1 of the Code of Civil Procedure has been committed. As a result, the appellant has been compelled to once again approach this Court by way of present LPA. 3. AFTER having considered the rival submissions and gone through the impugned decision of the learned Single Judge dated 20th December, 2012, we are in agreement with the grievance of the appellant that the learned Single Judge has not recorded any reason whatsoever as to why the criteria relied by the respondent-writ petitioner was applicable and why the criteria relied by the appellant deserves to be discarded, which is at page 32 of the writ petition-paper book. Unless that finding were to be recorded, no further analysis of the fact situation could be and ought to be made. If the appellant succeeds in persuading the Court that the criteria relied by him at page 32 is applicable, then the writ petitioner may not be entitled for any relief whatsoever. Unless that finding were to be recorded, no further analysis of the fact situation could be and ought to be made. If the appellant succeeds in persuading the Court that the criteria relied by him at page 32 is applicable, then the writ petitioner may not be entitled for any relief whatsoever. All these aspects will have to be considered by the learned Single Judge afresh and we refrain from expressing any opinion on the question both on facts as well as law. That may have to be considered by the learned Single Judge while disposing of the writ petition afresh in accordance with law. All questions in the writ petition are left open. 4. WE may place on record, the anomaly noticed from the two criterias referred to in paragraphs 2 and 3 of the impugned decision. In first four items, the marks are on percentage basis, whereas in two items are actual marks, even then the total of which is taken as 100 marks. Similar anomaly is noticed with regard to criteria extracted in paragraph 3 of the impugned decision. The learned Single Judge may consider the efficacy of this aspect, while considering the controversy on merits, after hearing the parties and the explanation available to justify the same. In the circumstances, appeal succeeds, the impugned decision is set aside and the writ petition is restored to the file to its original number to be decided afresh by the learned Single Judge on merits.