Uttarakhand High Court
WPSS/1736/2023 on 14 September, 2023
Office Notes,
reports, orders or
SL. proceedings or
Date COURT'S OR JUDGES'S ORDERS
No directions and
Registrar's order
with Signatures
WPSS No. 1736 of 2023
Hon'ble Sharad Kumar Sharma, J.
Mr. Vijay Bhatt, Advocate, for the
petitioners.
Mr. Narayan Dutt, Standing Counsel, for the
State of Uttarakhand.
The facts of the case are, that the petitioner
had earlier approached the Writ Court by filing
Writ Petition (S/S) No. 2221 of 2022, praying for
the following reliefs :-
"I. Issue a writ, order or direction in the
nature of mandamus directing the respondents to
pass appropriate order (s) to adjust the Petitioners
on the Respective posts of Assistant Teacher LT
Grade in the college, as provided in Government
Order dated 4.8.2015 (Annexure no. 3), and to pay
the Petitioners as per the prescribed pay scale
against their posts, as is being paid to other regular
Assistant Teacher LT Grade engaged in the college;
II. Issue an appropriate writ order or
direction to the respondents to pay the arrears of
salary, as due per pay scale, with effect from
4.8.2015 with interest at the rate of 8% per annum
from the date the same fell due;
III. Issue any suitable writ, order or
direction, which this Hon'ble court may deem fit
and proper on the basis of the facts and
circumstances of the case;"
For the reason best known to the petitioners
and his counsel, who represented their cause at that
point of time, the relief which was chosen to be
pressed for was for getting a direction to decide the
representation.
Accordingly, the Coordinate Bench has
passed an order to the following effects :-
"Accordingly, the writ petition is disposed of
with a direction to Secretary, Sanskrit Education to
take decision on petitioners' representations dated
07.11.2022 & 09.11.2022 (enclosed as Annexure
No.11 to the writ petition) as early as possible; but,
not later than eight weeks from the date of
production of certified copy of this order alongwith
copies of representations."
Subsequently, when the representation was
considered by the Secretary, the same has been
rejected by an order dated 12th June, 2023, which is
now the subject matter under challenge and under
the garb of the said order, which he has solicited,
based on the direction as issued by the Coordinate
Bench to decide the representation, this Writ
Petition has been preferred.
In fact, this principle of getting a direction
from the Court to decide the non statutory
representation, without pressing the principle relief,
would create a bar for filing of the subsequent Writ
Petition for the same relief on the pretext that the
representation has been rejected.
The said principle was considered by the
Coordinate Bench of Allahabad High Court in a
judgment as reported in 2004 SCC OnLine All
1783, Ummed Ali Vs. Deputy Registrar
Cooperative Societies, Saharanpur U.P. and
others, wherein in para 27, the Coordinate Bench in
its specific terms has observed, that the petitioner
should not be permitted to take recuse for filing the
consecutive writ petition for the same cause of
action and relief, when she has earlier approached
the Writ Court for the same relief and has opted out
to get the representation decided without pressing
the principle relief. Relevant para 27 is extracted
hereunder :-
"27. For the aforesaid reasons, this Court is
unable to give petitioner any relief. The petitioner is
severally reprimanded for filing repeated writ
petitions and making these representations to this
Court. The time has now come that the petitioner
must be stopped from filing any further writ petition
in this Court unless he discloses the entire
background with any fresh cause of action to
maintain the writ petition. The writ petition is
accordingly dismissed with Rs. 10,000/- as cost
against the petitioner and with a warning that any
further filing of the writ petitions on the same cause
of action will be treated to abuse of the process of
the Court, and in such case the Court will be
constrained to draw proceeding against him for
misusing the legal process. In case the petitioner
files any further writ petition before this Court, the
registry of the Court is directed to put up a report,
giving the details of all the earlier writ petitions
filed by him and this order. The copy of the order
shall be given to the Registrar General of this Court
for compliance."
Not pressing of the principle relief by the
petitioners at the first available opportunity would
attract the provisions as contained under Order 2
Rule 2 of the CPC, which is principally applicable
in writ jurisdiction.
In fact, it was at the first stage, when the
petitioners should have pressed their relief on
merits. Having not done so, the principle of waiver
will come into play.
Almost a similar view has been taken by the
Division Bench of Allahabad High Court in a
judgment as reported in AIR 1994 Allahabad 187,
Sri Swatantra Kumar Agrawal Vs. The
Managing Director, U.P. Financial Corporation,
Kanpur and another, that once a Writ Petition is
decided in limine without expressing any opinion
on the merits of the matter, filing of the subsequent
Writ Petition would not be maintainable in view of
Rule 7 of the Rules of the Court to be read with
Order 2 Rule 2 of the CPC.
In fact, this aptitude, which is being adopted
by the litigants of getting the Writ Petition decided
with a direction to decide the representation, in fact,
it is an abuse of the process of law, and it burdens
the litigants and the Court too with the litigation, on
the subsequent decision being taken by the
respondents on the same subject.
It has often come to the notice of the Court,
that the petitioners, who press the Writ Petition
limited to the extent of deciding the representation,
in fact, before filing the Writ Petition, they have
already negotiated with the officers for deciding an
issue, which they are otherwise not legally entitled
to receive under law, and under the garb of the
direction to decide the representation, the officers
who are in collusion with the petitioners, they for
the purposes of their motivation due to illegal
gratification, they pass an order on the
representation in favour of the petitioners on the
basis to satisfy the superior authority, that they were
helpless because of the directions issued by the
High Court to decide the representation. Thus, this
system of disposing of the Writ Petition to decide
the representation has to be curbed because, apart
from the fact, it burdens the litigants and it burdens
the High Court with the cases. Further, it burdens
the State and its authorities to get the liberty to
adopt all recourses of corruption, which stands
increased by this attitude of directing to decide the
representation in a Writ Petition.
There could not have been an argument
extended by the learned counsel for the petitioner,
that it is a fresh cause of action, and hence, the Writ
Petition would lie. But the issue would be, that one
who has solicited this fresh cause of action to be
attracted based upon a direction to get the
representation decided is for same cause, which
rather facilitates corruption for the above reasons.
The petitioners cannot take an advantage of
their own wrong. He ought to have addressed
before the Court, when they had first approached
for the first time on merits of the matter and should
have solicited the judgment on merits. Having not
done so, they cannot under the garb of an order
passed on the representation, file a subsequent Writ
Petition for the same cause of action.
In view of the above, I do not find that this
Writ Petition would at all be tenable, because in the
light of the principles of waiver or not pressing the
relief No.II, which was akin to the one pressed in
the earlier Writ Petition, the provisions and
principles of Order 2 Rule 2 would be attracted.
Thus, the Writ Petition lacks merits owing to
the above, and the same is accordingly dismissed.
(Sharad Kumar Sharma, J.)
Dated 14.09.2023
Shiv
