Allahabad High Court
Anoop Kumar Srivastava vs State Of U.P. Thru. Secy. Medical ... on 31 August, 2022
Bench: Devendra Kumar Upadhyaya, Shree Prakash Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 2
Case :- SPECIAL APPEAL No. - 385 of 2022
Appellant :- Anoop Kumar Srivastava
Respondent :- State Of U.P. Thru. Secy. Medical Health And Family Welfare Services, Civil Secrt.Lko.And Ors
Counsel for Appellant :- Suresh Chandra Srivastava,Hari Kant,Vijay Vikram
Counsel for Respondent :- C.S.C.,Virendra Mishra
Hon'ble Devendra Kumar Upadhyaya,J.
Hon'ble Shree Prakash Singh,J.
Heard learned counsel for the appellant-petitioner, learned State counsel and Sri Virendra Mishra, learned counsel representing respondent no.6.
By invoking jurisdiction of this Court under Chapter VIII Rule-5 of the Rules of the Court, this special appeal has been filed challenging the order dated 29.7.2022 passed by the learned Single Judge in Writ-A No. 4338 of 1996 whereby the writ petition has been dismissed observing therein that the amendment application having been rejected rendered the appellant-petitioner without any cause of action and, accordingly, the prayers made in the writ petition could not be granted.
The appellant-petitioner had filed the writ petition with the following prayers:-
"i). Issue a writ, order or direction in the nature of Mandamus commanding the opposite parties to allow the petitioner to appear before the interview/selection Board and consider his case for appointment to the post of Ward boy or Lipik to which ever post is found fit and suitable.
ii). Issue a writ order or direction in the nature of any writ, order or direction which this Hon'ble Court deems fit and proper in the circumstances of the case.
iii). allow the petition with costs."
Subsequently, an amendment application was moved, which was allowed on 19.10.2006. However, since, pursuant to the said order dated 19.10.2006, the appellant-petitioner could not incorporate the necessary amendments in the prayer clause, another application was moved by him seeking leave of the Court to incorporate the said amendments as were allowed vide order dated 19.10.2006. On this application, an order was passed on 29.2.2008 permitting the appellant-petitioner to incorporate the amendment as allowed by means of the order dated 19.10.2006. In compliance of the said order dated 29.2.2008, necessary amendments were incorporated by the appellant-petition in the prayer clause of the writ petition on 3.3.2008.
The amendments incorporated in the prayer clause on 3.3.2008 in compliance of the order dated 19.10.2006/29.2.2008 are as under:-
"Prayer-IV "issue a writ, order or direction in the nature of mandamus directing opposite parties to appoint the petitioner on the post of Lipik or Ward Boy;
Prayer-V- "That the selection and appointment of opposite party no. 5 to 10 may kindly be quashed after summoning it from the opposite parties by issuing a writ of certiorari."
Learned Single Judge, while considering the matter, has observed in the order under appeal that the appellant-petitioner was challenging the order of appointment of the private respondents made in the year 1996 now without explaining the delay in moving the amendment application. Accordingly, the amendment application was rejected and, consequently, the writ petition has also been dismissed by learned Single Judge observing that once the application for amendment challenging the appointment of private respondents has been rejected, no cause of action survives for issuance of writ of mandamus to allow the appellant-petitioner to appear before the Interview/Selection Board.
It appears that, while the writ petition was being argued, attention of the learned Single Judge could not be drawn to the orders dated 29.2.2008 and 19.10.2006 whereby the appellant-petitioner was already permitted to amend the prayer clause and incorporate the same in the memorandum of the writ petition. Accordingly, it was not a case where by way of moving amendment application, the appellant-petitioner had sought to challenge the appointment of the private respondents without explaining the delay in moving the amendment application; rather it was a case where the wordings of prayer as described in the prayer clause relating to quashing of the appointment of the private respondents were sought to be altered by moving Civil Misc. Application No. 60 of 2022. Accordingly, we are convinced that certain documents, though were on record, were not brought to the notice of the learned Single Judge, which resulted in rejection of the amendment application as also in dismissal of the writ petition.
Thus, this appeal is allowed.
The Judgment and order dated 29.7.2022 passed by the learned Single Judgment in Writ-A No.4338 of 1996 is hereby set aside.
The writ petition is restored to the board of learned Single Judge. Learned Single Judge is requested to expedite the proceedings of Writ-A No. 4338 of 1996 and decide the same at the earliest.
Order Date :- 31.8.2022
Ram Murti
