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2016 DIGILAW 326 (JK)

Nissar Ahmad Khuroo v. State of J&K

2016-06-08

DHIRAJ SINGH THAKUR, N.PAUL VASANTHAKUMAR

body2016
JUDGMENT : N. Paul Vasantha Kumar, J. 1. This LP appeal is preferred against the order of the writ court made in SWP No. 1260/2010, dated 25.04.2016 dismissing the writ petition filed by the appellant challenging the selection and subsequent appointment of Respondents 5 and 6 made against the post of ReT available in Kanibathi, Bandipora and for appointing him in the said post claiming to be the meritorious candidate among all the candidates. The writ court dismissed the writ petition taking note of the fact that the appellant was not empanelled as he is employed in Police Department and the selection list was earlier challenged by the same appellant in SWP No. 638/2010 which was dismissed by this court on 12th April, 2010 and also considering the fact that the Respondent No. 5 who is engaged as ReT from the year 2010 and continuing as on date who is having no other income who is having a baby to feed. The writ court relied on the judgment of this court reported in 2009 (Supp.) JKJ 600 : JKJ Soft JKJ/24845 (Riyaz Ahmad Gada v. State of J&K & Ors.,) to justify the order of dismissal, taking note of the fact that the 5th and 6th respondents are admittedly serving for the last about six years. 2. The contention of the appellant in this appeal is that the dismissal of the writ petition challenging the selection list alone will not debar the appellant to file another writ petition challenging the appointment. The said contention is unsustainable for the reason that unless a person is selected, the appointment order cannot be issued which means selection is the prerequisite for appointment. Hence, the learned Single Judge is justified in dismissing the writ petition taking note of the dismissal of the earlier writ petition wherein appellant challenged the selection of Respondents 5 and 6. 3. The learned counsel for the appellant contends that dismissal of the said writ petition was for default and therefore, the said order will not preclude the petitioner to file the second writ petition. 4. 3. The learned counsel for the appellant contends that dismissal of the said writ petition was for default and therefore, the said order will not preclude the petitioner to file the second writ petition. 4. Similar issue was considered by Hon'ble the Supreme Court in the decision reported in AIR 1987 SC 88 (Sarguj a Transport Service v. State Transport Appellate Tribunal, Gwalior & Ors.,) wherein the question arose as to whether the writ petitioner who withdraws the earlier writ petition without getting liberty to institute fresh writ petition, can institute fresh writ petition for the same cause of action in the High Court. In Paragraph-9 of the said judgment, it is held thus : 9. The point for consideration is whether a petitioner after withdrawing a writ petition filed by him in the High Court under Article 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 rule 1 of Order 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 Article 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 Article 32 of the Constitution of India since such withdrawal does not amount to res judicata, the remedy under Article 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 right 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 afresh petition.." Thus the issue raised by the appellant that he can file a second writ petition and challenge the appointment and selection orders irrespective of the fact that earlier writ petition was allowed to be dismissed for whatever reason cannot be sustained. 5. Further, it is to be noted that the appellant is already serving as policeman for the past several years and the only reason stated by the appellant in the writ petition affidavit is that as he is employed in police department, he has to undergo rigorous duties and he has to remain outside his home and most of the time, he is keen to give up his police service if he will get alternate appointment for source of livelihood. Therefore, there is no impediment for him to compete for the post of ReT. 6. Though the appellant is not debarred in submitting application for ReT as the appellant was serving in the police department he has not submitted his application through the departmental head. It is contended that no such procedure is required to be followed before submitting the application for ReT. Considering the fact that the appellant is not entitled to get relief on other grounds the said issue need not be answered in this appeal and the same is left open to be decided in appropriate case. In fine, we are unable to find any reason to dislodge the order of the writ court and consequently the writ court order is upheld and LP appeal is dismissed. No costs.