SPA/711/2018
2021 Latest Caselaw 4428 UK

      IN THE HIGH COURT OF UTTARAKHAND
                 AT NAINITAL

THE HON'BLE THE CHIEF JUSTICE SRI RAGHVENDRA SINGH CHAUHAN
                               AND
        THE HON'BLE SRI JUSTICE NARAYAN SINGH DHANIK


              Special Appeal No. 711 of 2018


                     8TH NOVEMBER, 2021
Between:

Dheeraj Saxena
                                                    ...Appellant
and

State of Uttarakhand and others
                                                ...Respondents

Ms. Shobha Saxena, holding brief of Mr. Dheeraj Saxena, the
appellant-in-person.

Mr. B.S. Parihar, the learned Standing Counsel for the State of
Uttarakhand.

JUDGMENT:(per Hon'ble Justice Sri Narayan Singh Dhanik)


            Feeling aggrieved and dissatisfied with the

judgment and order dated 02.03.2015, passed in Writ

Petition (S/S) No. 1535 of 2014, by which the learned

Single Judge has dismissed the said writ petition on the

ground that the same is barred by the principles of res

judicata, the writ-petitioner         has preferred the present

Special Appeal.

2.          The factual background of the case is that

applications were invited from the eligible candidates for
 selection and appointment on the post of Assistant

Accountant/Cashier and Accounts Clerks in the Treasury

Office in District Haridwar. The petitioner also participated

in the said selection process. The interview was held on

27.12.1989 and thereafter the select list was prepared

and issued on 30.12.1989. Undisputedly, the petitioner's

name did not figure in the select list. The petitioner was

placed at serial no. 3 in the waiting list. The person

placed at serial no. 1 was offered the appointment and

thereafter no other candidate was offered appointment.


3.        In the above backdrop, the petitioner initially

filed Writ Petition (S/S) No. 319 of 2013 which was

dismissed by the learned Single Judge of this Court on

20.12.2013 on the ground that the waiting list stood

expired/exhausted after the expiry of 15 months i.e.

31.03.1991. Against the said judgment and order of the

learned Single Judge, the petitioner preferred the Special

Appeal No. 23 of 2014 which was also dismissed vide

order dated 28.04.2014 holding that there was no

occasion to offer the appointment to the writ-petitioner.

Review/Recall Application filed against the said order of

Division Bench dated 28.04.2014 was also rejected on

25.07.2014.


                             2
 4.          Yet again, there is no dispute that after

dismissal of the Writ Petition (S/S) No. 319 of 2013 and

the Special Appeal No. 23 of 2014, the petitioner has

thereafter filed the Writ Petition (S/S) No. 1535 of 2014

claiming similar relief to the one claimed in Writ Petition

(S/S) No. 319 of 2013. The subsequent Writ Petition

(S/S) No. 1535 of 2014 was dismissed by the learned

Single Judge on 02.03.2015 holding that the writ petition

was not maintainable in view of the dismissal of the

earlier writ petition and dismissal of the Special Appeal

and Review Application filed therein, as the judgments

and order passed by the Division Bench dated 28.04.2014

and 25.07.2014 were never challenged and the same

attained finality and that the writ petition was barred by

the res judicata. Hence, the present Special Appeal.


5.          Heard Ms. Shobha Saxena, representing the

appellant   writ-petitioner,   and   Mr.   B.S.   Parihar,   the

learned Standing Counsel for the State of Uttarakhand.


6.          Ms. Shobha Saxena, representing the appellant

writ-petitioner, argued that the writ-petitioner ought to

have   been    offered   appointment       inasmuch    as    the

candidate placed at serial no. 2 in the waiting list


                               3
 obtained      appointment      somewhere    else    and    a   new

vacancy was available after the termination of the

services of one Ajay Kumar Singh in 2013. Ms. Shobha

Saxena also contended that the learned Single Judge

materially erred in dismissing the writ petition on the

ground that the same was barred by the principles of res

judicata.


7.           We find no substance in the contentions put

forth   on     behalf    of    the   appellant     writ-petitioner.

Admittedly, the select list and waiting list was declared on

30.12.1989 and the same was valid for 15 months i.e. up

to 31.03.1991. It is also undisputed that the candidate

placed at serial no. 1 of the waiting list was appointed on

08.12.1990 and thereafter no other candidate in the

waiting list was offered appointment. Thus, it is evident

that the life of waiting list stood expired on 31.03.1991

and even if had it been remained operative, the petitioner

could   not    have     been    offered   appointment     as   the

candidate placed above him at serial no. 2 in the waiting

list was never offered the appointment and hence there

was no question to offer appointment to the writ-

petitioner. The candidates of such waiting list may be

pushed up for appointment only against those vacancies


                                 4
 which    may     have    arisen        out   on   account    of   non-

joining/resignation of the candidate of select list during

the life of waiting list. Hence, the said period having been

expired and the waiting list could not reach up to the rank

of   writ-petitioner,    the    respondents        were     absolutely

justified   in   declining     the appointment         to   the   writ-

petitioner. It is not the fundamental right of a candidate,

whose name appears in the waiting list, to claim

appointment when the life of waiting list itself stood

expired.


8.          Coming      to   the   question       of   application   of

principles of res judicata in the present case, it is

undisputed that the very writ-petitioner preferred writ

petition before this Court and the same was rejected on

merits and the judgment passed therein attained finality,

therefore, it would not be open for the petitioner to again

file a writ petition and ask the same relief which was not

granted by this Court earlier. Undoubtedly, the decision in

the earlier writ petition binds the writ-petitioner.


9.          In case of Daryao and others vs. State of U.P.

and others reported in AIR 1961 SC 1457, the Hon'ble

Supreme Court has categorically observed and held that



                                   5
 if the earlier order is on merits, second petition would be

barred. As discussed above, undoubtedly in the present

case, the order passed by the learned Single Judge in

Writ Petition (S/S) NO. 319 of 2013, in which the writ-

petitioner prayed for the same relief which has been

sought in the subsequent writ petition, was dismissed on

merits and the special appeal preferred against the same

was also dismissed on 28.04.2014 and the same had

attained finality Therefore, the learned Single Judge was

absolutely justified in dismissing the subsequent writ

petition on the ground of the writ petition being barred by

principles of res judicata.


10.       In view of what has been set-forth above, the

present   Special    Appeal   fails   and   is,   accordingly,

dismissed.


                    _____________________________
                    RAGHVENDRA SINGH CHAUHAN, C.J.


                                            ___________
                                            N.S. Dhanik, J.

Dt: 08th November, 2021 Shiksha