Sangeeta Joshi vs State Of Uttarakhand And Another
2021 Latest Caselaw 4902 UK

        HIGH COURT OF UTTARAKHAND
                AT NAINITAL
              Writ Petition (S/S) No. 907 of 2020
Sangeeta Joshi                                           ...      Petitioner
                              Vs.
State of Uttarakhand and Another                         ... Respondents
                                    With

              Writ Petition (S/S) No. 850 of 2020
Manju Aunsa                                              ...      Petitioner
                              Vs.
State of Uttarakhand and Another                         ... Respondents
Advocates :   Mr. Devendra Singh Bohra, Advocate, for the petitioner
              Mr. N.P. Sah, Standing Counsel, for the State

Hon'ble Sharad Kumar Sharma, J.

These are the two connected writ petitions, in which the petitioners have given a challenge to the order dated 22nd February 2020, by virtue of which, their representations had been rejected; in compliance of the judgement and order, which was passed by the co-ordinate Bench of this Court in Writ Petition (S/S) No. 877 of 2019 as preferred by Ms. Manju Aunsa and Writ Petition (S/S) No. 878 of 2019, as preferred by Ms. Sangeeta Joshi.

2. At the stage when the petitioners of the present two writ petitions approached this Court earlier by preferring the writ petitions they had prayed for the following reliefs:-

"A. Issue a writ, order or direction in the nature of mandamus directing the respondents to include the name of the petitioner in the selection list under OBC category for the post of ANM/Health Worker (Female) pursuant to selection process initiated through Advertisement No. 3Pa/Pa.Ka/Swa Karya/73/10 published on 16.03.2016. B. Issue any other writ, order or direction, which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.

C. Award the cost of the present writ petition to the petitioner."

3. In fact, in a nutshell, if the relief is taken into consideration, the petitioner has sought a writ of mandamus with a direction to the respondents to include the name of the petitioner in the select list of ANM/Health Workers (female) as against the OBC category candidates in pursuance to the selection process, which was initiated on the basis of an advertisement dated 16th March 2016.

4. These two writ petitions, which were earlier preferred by the respective petitioners, came up for consideration before the co-ordinate bench of this Court and the co-ordinate bench of this Court had passed an order dated 15th April 2019, whereby, after considering the rival claim, with regard to the effect that since the petitioners had passed their Senior Secondary School Examination, which was conducted by the Uttarakhand School Education Board. Ultimately, the grievance of the petitioner for consideration of her candidature for being appointed as health worker was not considered at that point of time, because it was contended that it was not satisfying the norms and the conditions of requirement, which were required to be satisfied as per the terms of the advertisement, which was issued by the respondent.

5. The Court considered the fact, that the petitioners' contention therein was, that their applications were complete in all respects and the same could not have been rejected, denying them their opportunity of participation in the process of selection to the petitioner as ANM/health worker (female).

For the reasons best known to the petitioners and their counsels when the aforesaid Writ Petition (S/S) No. 877 of 2019 and Writ Petition (S/S) No. 878 of 2019, came up for consideration, the

same was disposed of granting permission to the petitioners to prefer a representation before the Director General, Medical, Health and Family Welfare, Uttarakhand, who will take an appropriate decision on the same. The relevant part of the judgment is extracted hereunder:-

"Having regard to the facts and circumstances of the case, this Court thinks that interest of justice would be served, if petitioner is permitted to make fresh representation to Director General, Medical, Health & Family Welfare, Uttarakhand, who shall take appropriate decision thereupon, in accordance with law, within stipulated time frame.

Accordingly, writ petition is disposed of with liberty to the petitioner to make a fresh representation within two weeks from today. If such a representation is made, Director General, Medical, Health & Family Welfare, Uttarakhand shall examine the petitioner's claim and pass appropriate order, in accordance with law, within a period of eight weeks from the date of receipt of such representation along with certified copy of this order."

6. This order was commonly passed in the matters of Manju Aunsa also i.e. Writ Petition (S/S) No. 877 of 2019, but, however, if the relief claimed therein is taken into consideration, in fact, confining a decision to be pressed, to decide the representation would amount to be the denial of a principal relief which had been sought in the writ petition because the petitioner herself had carved out an exception to have a recourse to getting the representation decided.

7. The representations of the petitioner were considered and the same had been decided by the impugned orders which are under challenge i.e. 22nd February, 2020, which is the subject matter of challenge in the present writ petitions. Pleadings have been exchanged.

8. If the reliefs, which has been modulated in the writ petitions, which are listed today for admission, apart from the challenge given to the subsequent decision of deciding the

representation the rest of the reliefs if it has to be considered to be declared as successful for being appointed as health worker (female) is almost an identical issue, which was under consideration in Writ Petition (S/S) No. 877 of 2019 and Writ Petition (S/S) No. 878 of 2019.

9. This Court is of the view, that if a petitioner in a writ petition comes out with a case against a specific cause of action which in the instant case happens to be of the non consideration of the candidature of the petitioner for ANM/Health Worker (female), due to non fulfilment of the requisite conditions of the advertisement, if that is not pressed on merits and a decision is alternatively solicited by the petitioner to get a representation decided, in that eventuality, the subsequent writ petition and a decision on the representation taken by the respondents, under the garb of decision on the representation pressing in the same relief, which was earlier the subject matter of Writ Petition (S/S) No. 877 of 2019 and Writ Petition (S/S) No. 878 of 2019, would amount to be a second writ petition for the same cause of action, because principally and as per the judicial precedents also, if a petitioner approaches a writ Court to press a certain relief and that is not been pressed on merits and a decision is alternatively given to decide the representation, its legal implications would be, that the principle relief claimed by the petitioner in the writ petition stands denied and hence under the garb of the decision of 22nd February 2020, the petitioners cannot take the liberty to re- agitate the issue, which has already been laid to rest by the judgement of the co-ordinate bench of this Court, rendered earlier directing the respondents to decide the representation consequent to which the decision has already been taken on 22nd February 2022.

10. Though this aspect could be one of the matters, to infer that the present writ petitions have been nothing but a recurring proceedings which had been agitated by the petitioners for the same cause of action. But still even for the time being if that aspect is overlooked, though principally it should not be, then too, the logic, which has been assigned for rejecting the claim of the petitioners' candidature due to non fulfilment of the conditions of the advertisement and non supplying of the documents due to which, the name of the petitioners were not included in the list, cannot be faulted of. But, primarily as far as this Court is concerned, this Court is of the view that these writ petitions, in fact, filed subsequently would in fact be a re- agitation of an issue, which has been laid to rest by the earlier decision due to denial to grant the relief of inclusion of the name in the select list in the process of selection process resorted to by the advertisement dated 16th March 2016 and under law, there cannot be successive writ petitions for the same cause of action once an earlier access to Court was never solicited to be decided on merits by the petitioners.

11. On this premise itself, I am not inclined to interfere in the writ petition; the writ petitions are accordingly dismissed.

12. Apart from above reasons, another aspect, which has been pointed out by the learned counsel for the petitioners, that the petitioner had re- approached to the writ Court by preferring a Writ Petition (S/S) No. 1673 of 2019, Smt. Sangeeta Joshi Vs. State of Uttarakhand and others, and Writ Petition (S/S) No. 1675 2019, Manju Aunsa Vs. State of Uttarakhand and others, challenging the Office Memorandum dated 12th June 2019, whereby, the claim of the petitioners to include their names as successful candidates amongst the list of health workers in

pursuance to the advertisement referred above wherein in the writ petition they have claimed that they should be included based on their seniority. But, for the reasons yet again, known to the petitioners, that the writ petition had been decided by the co- ordinate bench of this Court and the conclusion drawn therein is contained in para 14 of the judgement, which is extracted hereunder:-

"14. Accordingly, both the writ petitions are allowed. Respondent no.2/competent authority is directed to examine the application forms alongwith credentials of the petitioners within two weeks from the date of receipt of certified copy of this order. The respondents/competent authority is further directed that if the documents/credentials of the petitioners are found correct and genuine, the respondents shall give appointment to the petitioners on the post of Health Worker (Female)/ANM in the Medical Department and thereafter shall decide their seniority in the Department as per their merit."

13. In fact, though the Office Memo dated 12th June 2019, would be deemed to be quashed; but, the concluding part of the observations made in para 14 of aforesaid judgment was once again relegating the matter back before the respondent to decide the seniority of the petitioner interse amongst themselves for the purposes of giving them an appointment as health workers.

14. In fact, it is after the decision of 1st November 2019, that the impugned order dated 22nd February 2020, has been passed, which makes the present writ petitions as to be the 3rd phase of litigations for the same cause of action. Hence, the writ petitions are not tenable since being recurring in nature, and since there being a consistent denial to grant of the principal relief, claimed by the petitioners; the writ petitions lack merit and the same are accordingly dismissed.

(Sharad Kumar Sharma, J.) 03.12.2021 Mahinder/