Rajasthan High Court
Rajesh Kumar Sharma S/O Sh. Govind ... vs State Of Rajasthan on 13 December, 2021
Bench: Mahendar Kumar Goyal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 4712/2021
1. Rajesh Kumar Sharma S/o Sh. Govind Narayan Sharma,
Aged About 56 Years, R/o 1/49, Nagar Nigam Colony,
Purana Ramgarh Mod, Amer Road, Jaipur-302002.
2. Gopal Krishna Sharma S/o Sh. Dwarka Prasad Sharma,
R/o B-84, Arya Nagar Vistar, Near Dadi Ka Phatak,
Murlipura, Jaipur-302039.
----Petitioners
Versus
1. State Of Rajasthan, Through Principal Secretary,
Department Of Administrative Reforms And Co-
Ordination, Government Secretariat, Jaipur.
2. Commercial Tax Department, Rajasthan, Through
Commissioner, Kar Bhawan, Bhawani Singh Road,
Ambedkar Circle, C-Scheme, Jaipur, Rajasthan -302005.
3. Rajasthan Public Service Commission, Through Chairman,
Jaipur Road, Ghooghara Ghati, Ajmer, Rajasthan 305001.
----Respondents
For Petitioner(s) : Mr. Ajatshatru Mina
For Respondent(s) : Mr. Anand Sharma
Mr. Ayush Singh for
Mr. Punit Singhvi
HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL
Order
13/12/2021
Though, the matter comes up on applications filed by the
respective parties; but, with the consent of their learned counsels,
the writ petition was heard finally on its merit at this stage.
This writ petition has been filed with the following prayers:
"In the facts and circumstances aforesaid, the
petitioners most respectfully pray that this Hon'ble
Court may be pleased:
(2 of 6) [CW-4712/2021]
A. To treat the initial date of appointment of the
petitioners, the same as that of the less-meritorious
candidates and grant them seniority accordingly.
B. To grant all consequential benefits @ interest p.a.
to the petitioners as granted less-meritorious and
similarly situated candidates as that of the
petitioners.
C. To re-determine the seniority of petitioners on
the basis of inter-se merit of the selected
candidates on the post of lower division clerks in
pursuance of advertisement dated 23.07.1986.
D. To pass any other order as this Hon'ble Court
may deem fit, just and necessary."
Indisputably, the petitioners earlier filed a writ petition
no.8997/2020 with same prayers which came to be decided by
this Court on 17.12.2020 in following terms:
"Counsel for the petitioners prays to withdraw
the writ petitions with liberty to file a representation.
Granting liberty aforesaid, the writ petitions are
dismissed as withdrawn at this stage."
As admitted by the learned counsel for the petitioner, his
representation is still pending. The order dated 17.12.2020
reveals that no liberty was sought by the petitioner for filing fresh
writ petition. No fresh cause of action has arisen to the petitioner
for renewal of the prayer made in the earlier writ petition.
Learned counsel for the petitioners has tried to justify filing
of this second writ petition on the premise that in some of the writ
petitions involving identical controversy, this Court has passed
orders favourable to the petitioners therein. This contention does
not merit acceptance in view of the facts obtaining in the present
case. Learned counsel for the petitioner could not satisfy this
Court as to maintainability of the successive writ petition based on
the same cause of action. This practice amounts to bench hunting
which has been deprecated by this Court as also by the Hon'ble
(3 of 6) [CW-4712/2021]
Apex Court of India time and again. Their Lordships of the Hon'ble
Supreme Court, in the case of Sarguja Transport Service Vs.
State Transport Appellate Tribunal, Gwalior & Ors., AIR
1987 SC 88, held has under:
"8. The question for our consideration is whether it
would or would not advance the cause of justice if
the principle underlying Rule 1 of Order XXIII of the
Code is adopted in respect of writ petitions filed
under Articles 226/227 of the Constitution of India
also. It is common knowledge that very often after a
writ petition is heard for some time when the
petitioner or his counsel finds that the Court is not
likely to pass an order admitting the petition,
request is made by the petitioner or by his counsel,
to permit the petitioner to withdraw from the writ
petition without seeking permission to institute a
fresh writ petition. A Court which is unwilling to
admit the petition would not ordinarily grant liberty
to file a fresh petition while it may just agree to
permit the withdrawal of the petition. It is plain that
when once a writ petition filed in a High Court is
withdrawn by the petitioner himself he is precluded
from filing an appeal against the order passed in the
writ petition because he cannot be considered as a
party aggrieved by the order passed by the High
Court. He may as stated in Daryao and Ors. v. The
State of U.P. and Ors. [1962] 2 S.C.R. 575 in a case
involving the question of enforcement of
fundamental rights file a petition before the
Supreme Court under Article 32 of the Constitution
of India because in such a case there has been no
decision on the merits by the High Court. The
relevant observation of this Court in Daryao's case
(supra) is to be found at page 593 and it is as
follows:
"If the petition is dismissed as withdrawn it
cannot be a bar to a subsequent petition under
Article 32, because in such a case there has
been no decision on the merits by the Court.
We wish to make it clear that the conclusions
thus reached by us are confined only to the
point of res judicata which has been argued as
a preliminary issue in these writ petitions and
no other."
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
(4 of 6) [CW-4712/2021]
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 a fresh
petition. We, however, make it clear that whatever
we have stated in this order may not be considered
as being applicable to a writ petition involving the
personal liberty of an individual in which the
petitioner prays for the issue of a writ in the nature
of habeas corpus or seeks to enforce the
fundamental right guaranteed under Article 21 of the
Constitution since such a case stands on a different
footing altogether. We, however, leave this question
open."
In case of Sarva Shramik Sanghatana (K.V), Mumbai Vs.
State of Maharashtra and Ors.: AIR 2008 SC 946, after
referring the judgment in the case of Sarguja Transport
Service, it was held as under:
"13. We are of the opinion that the decision in
Sarguja Transport case (supra) has to be
understood in the light of the observations in
paragraphs 8 & 9 therein, which have been quoted
above. The said decision was given on the basis of
public policy that, if while hearing the first writ
petition the Bench is inclined to dismiss it, and the
learned Counsel withdraws the petition so that he
could file a second writ petition before what he
(5 of 6) [CW-4712/2021]
regards as a more suitable or convenient bench,
then if he withdraws it he should not be allowed to
file a second writ petition unless liberty is given to
do so. In other words, bench-hunting should not be
permitted.
14. It often happens that during the hearing of a
petition the Court makes oral observations
indicating that it is inclined to dismiss the petition.
At this stage the counsel may seek withdrawal of his
petition without getting a verdict on the merits,
with the intention of filing a fresh petition before a
more convenient bench. It was this malpractice
which was sought to be discouraged by the decision
in Sarguja Transport case (supra)."
A Full Bench judgment of this Court has, in case of
Hanuman Singh and Ors.Vs. Board of Revenue and Ors.:
RLW 2003 (1) Raj 1, held as under:
"6. In the reference order, the Bench noted the
observations in the last para of the judgment in
Sarguja Transport Service's case that even on
merits the appellant had no case. This observation,
in our view, has no bearing nor does it water down
in any manner the ratio of the decision of the
Supreme Court on the main point in issue about
maintainability of the second writ petition on the
same cause of action when earlier petition has
been withdrawn without reserving liberty to file
fresh petition. The main judgment in this
connection is based on reasons derived from sound
legal principles. We are bound by the decision. As a
matter of fact, the decision in Sarguja Transport
Service's case (supra) on this aspect has been
consistently followed by the Supreme Court in
various subsequent decisions viz., Ashok Kumar v.
Delhi Development Authority (2); State of U.P. v.
Lab Chand (3); and Avinash Nagra v. Navodaya
Vidyalala Samiti and Ors. (4).
7. Thus, we hold that the decision of the Supreme
Court in Sarguja Transport Service's case (supra)
operates as an absolute bar against entertainment
of another subsequent writ petition when an earlier
petition has been withdrawn without reserving
liberty to file fresh petition and second petition
cannot be entertained by the High Court on the
same subject-matter, except in petitions in the
nature of habeas corpus for which exception has
been carved out in the said decision of the
Supreme court. The reference is answered
accordingly."
(6 of 6) [CW-4712/2021]
In case of Ramesh Chandra Sankla and Ors.
Vs. Vikram Cement and Ors.: AIR 2009 SC 713, the Hon'ble
Apex Court after considering the various judgments rendered by
it, held as under:
"50. From the above case law, it is clear that it is
open to the petitioner to withdraw a petition filed
by him. Normally, a court of law would not prevent
him from withdrawing his petition. But if such
withdrawal is without the leave of the Court, it
would mean that the petitioner is not interested in
prosecuting or continuing the proceedings and he
abandons his claim. In such cases, obviously, public
policy requires that he should not start fresh round
of litigation and the court will not allow him to re-
agitate the claim which he himself had given up
earlier."
In view thereof, this writ petition is dismissed with cost of Rs.
2,000/- which shall be deposited by the petitioner with the
Rajasthan State Legal Services Authority, Jaipur within a period of
two weeks from today. The pending applications stand disposed of
accordingly.
(MAHENDAR KUMAR GOYAL),J
MADAN/108
Powered by TCPDF (www.tcpdf.org)
