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2016 DIGILAW 334 (JK)

Ab. Rashid Shah v. State of J&K

2016-06-28

ALI MOHAMMAD MAGREY, N.PAUL VASANTHAKUMAR

body2016
JUDGMENT : N. Paul Vasantha Kumar, J. 1. This appeal is preferred against the order of the Writ Court made in SWP No. 210/2014, dated 07.07.2015 wherein the appellants prayed for granting them promotion by directing the respondents to give them the benefit of judgment dated 24.09.1998 passed in SWP No. 519/1987 and to grant them benefit of direct appointment as Sub Inspectors with effect from 01.04.1987, as has been granted in favour of private respondents in the writ petition with all consequential benefits and re-fix their pension by counting their service as Sub Inspectors from 01.04.1987. The Writ Court dismissed the writ petition taking note of the fact that the claim was made by the appellants before this Court after 27 years and also on the ground that appellants have earlier filed a writ petition seeking the benefit of appointment as Sub Inspectors in SWP No. 519/1987 along with another writ petitioner and they have not pressed their claim in the said writ petition which was dismissed and only the remaining one writ petitioner pursued the writ petition which was disposed of with a direction to the respondents to consider his claim for same treatment as was given to one Hamidullah Dar by order dated 24.09.1998. The Writ Court after having noticed the said fact, held that the appellants cannot re-agitate the issue which they have abandoned in the earlier writ proceeding and they cannot raise the same issue in the subsequent writ petition as their earlier writ petition was dismissed without reserving any right to re-agitate the matter if cause survives. 2. The appellants are not having any answer to the said reason stated by the Writ Court, namely, claiming the relief after 27 years and abandoning their right in the earlier writ proceedings without reserving any right to re-agitate the claim. The only contention raised by the learned counsel for the appellants is that the appellants are also similarly placed to that of the private respondents and the relief which was granted to the private respondents has to be extended to the appellants also as they are also similarly placed. 3. We have considered the said submissions. 4. It is not in dispute that the appellants earlier preferred writ Petition No. 519/1987 and claimed their right, which they have abandoned on their volition without reserving their right to re-agitate the claim. 3. We have considered the said submissions. 4. It is not in dispute that the appellants earlier preferred writ Petition No. 519/1987 and claimed their right, which they have abandoned on their volition without reserving their right to re-agitate the claim. It is also not in dispute that the appellants kept quiet for 27 years to claim the relief in the writ petition. They were waiting the proceedings as bye-standers and after the relief is obtained by the other persons they have approach this Court. The said attitude was rightly repelled by the Writ Court. 5. Abandoning the claim in the earlier writ proceedings without reserving the right to re-agitate the matter will debar the appellants to claim the relief in the subsequent writ petition. The issue was already considered by Hon'ble the Supreme Court in the decision reported in AIR 1987 SC 88 (Sarguja Transport Service v. State Transport Appellate Tribunal, Gwalior & Ors.), wherein in paragraph 9 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. 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 a fresh petition......" The above decision of Hon'ble the Supreme Court was followed by a Division Bench of this Court in LPA No. 96/2016 (Nissar Ahmad Khuroo v. State of J&K & Ors.) decided on 08.06.2016. Applying the said judgment of Hon'ble the Supreme Court as well as the Division Bench judgment of this Court in LPA No. 96/2016 (Nissar Ahmad Khuroo v. State of J&K & Ors.) decided on 08.06.2016, we are unable to find any reason to interfere with the order of the Writ Court. The appeal is dismissed. No costs.