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2017 DIGILAW 178 (ALL)

Navaziah Ali v. State of Uttar Pradesh

2017-01-12

A.P.SAHI, SANJAY HARKAULI

body2017
JUDGMENT : Amreshwar Pratap Sahi, J. Heard learned counsel for the appellant and perused the impugned judgment dated 23.12.2016 whereby the petition filed by the appellant praying for grant of regular pay scale on the strength of the decision in the case of State of Punjab v. Jagjit Singh & Ors. decided on 26th of October, 2016 in Civil Appeal No.213 of 2013 has been declined solely on the ground that the appellant had earlier filed a writ petition for the same cause of action that had been dismissed without liberty to file a fresh writ petition. 2. Learned counsel has urged that the relief claimed in the earlier writ petition was quoted in the third paragraph of the writ petition giving rise to the present appeal and the aforesaid fact was clearly disclosed that the said writ petition was in relation to regularisation and grant of minimum pay scale as well as other benefits. However, a request was made to the learned Single Judge to permit the appellant to withdraw the writ petition at that stage. From the order passed by the learned Single Judge on 19.09.2016 in Writ Petition No.22336 (S/S) of 2016, the aforesaid prayer appears to be made out. The judgment is extracted here-in-under: "After arguing at some length, Shri Ramesh Pandey, learned counsel for the petitioner has submitted that he may permitted to not press the writ petition at this stage. Learned Standing Counsel has no objection to the prayer of learned counsel for the petitioner. The request of learned counsel for the petitioner is accepted. Accordingly, the writ petition is dismissed as not pressed." 3. It is correct that the writ petition was dismissed as not pressed with no specific indication of any liberty to file a fresh writ petition for the same cause of action but at the same time the writ petition was dismissed according to the prayer at that stage. 4. The appellant submits that it is thereafter that the appellant came across the judgment of the Hon'ble Supreme Court dated 26.10.2016 in the case of State of Punjab v. Jagjit Singh & Ors. 4. The appellant submits that it is thereafter that the appellant came across the judgment of the Hon'ble Supreme Court dated 26.10.2016 in the case of State of Punjab v. Jagjit Singh & Ors. (Supra) and according to the said judgment since the appellant felt entitled to regular pay scale, he made a request which was a fresh request for grant of such pay scale on the strength of the judgment of the Hon'ble Apex Court delivered subsequent to the withdrawal of the earlier petition. 5. Learned counsel submits that it is for this reason that when the aforesaid request was not accepted that the appellant preferred the writ petition giving rise to the present appeal. In the submission of the learned counsel, the relief which was sought for in the writ petition giving rise to the present appeal was, therefore, a different subsequent cause of action, that too even based on a subsequent judgment of the Hon'ble Apex Court and therefore, the dismissal of the earlier writ petition as not pressed at that stage would not be a bar in terms of Chapter-XXII Rule-7 of the Allahabad High Court Rules, 1952. 6. Learned Standing Counsel submits that this issue with regard to claim of such pay scale would not be available to the appellant on the strength of the decision of Hon'ble the Apex Court and even otherwise the conclusion drawn by the learned Single Judge is not incorrect. 7. We have heard learned counsel for the parties and considered the submissions raised. We find that the principles of Order-2, Rule-2 C.P.C. are not attracted herein nor Rule-7 of Chapter-XXII of the Allahabad High Court Rules, 1952 bars the filing of the writ petition in relation to the cause of action which has now been disclosed on the strength of the Hon'ble Supreme Court's Judgment that was admittedly rendered later in point of time after the writ petition was dismissed as not pressed at that stage. 8. Thus, subsequent stages on any fresh cause of action was very much available to the appellant and as such, we set aside the judgment dated 23.12.2016 and dispose off the writ petition as well as this appeal with a direction to the respondent no. 8. Thus, subsequent stages on any fresh cause of action was very much available to the appellant and as such, we set aside the judgment dated 23.12.2016 and dispose off the writ petition as well as this appeal with a direction to the respondent no. 2 to entertain the aforesaid request that has been made in accordance with law keeping in view the Hon'ble Supreme Court's decision that has been relied upon by the appellant only to the limited extent of the claim of grant of regular pay scale within a period of three months from the date of production of certified copy of this order. 9. Disposed off with the said directions. 10. Let a copy of this judgment be placed on the records of the Writ Petition No.30844 (S/S) of 2016 that also stands disposed off with the consent of the parties on these terms.