This appeal challenged the rejection of a writ petition alleging it was barred as a second petition for the same cause of action. The Single Judge dismissed it previously; hence, it was a Special Appeal.
Impugned order set aside; matter remanded to learned Single Judge for deciding the writ petition on merits.
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Court No. - 3 Case :- SPECIAL APPEAL DEFECTIVE No. - 706 of 2021 Appellant :- Kuldeep Sharma And Another Respondent :- State Of U.P. And 2 Others Counsel for Appellant :- Ram Raj Prajapati,Rama Kant Gupta Counsel for Respondent :- C.S.C.
Hon'ble Manoj Kumar Gupta,J. Hon'ble Dr. Yogendra Kumar Srivastava,J.
The appellant has filed certified copy of the impugned order of learned Single Judge and thus the defect pointed out by the Stamp Reporter stands cured. Office is accordingly directed to allot a regular number to the instant appeal.
Order on the Memo of Appeal
Heard learned counsel for the appellants and learned Standing Counsel for the State.
This intra-court appeal has been preferred against the following order of learned Single Judge dated 11.8.2021 passed in Writ-A no. 5484 of 2021: -
"Heard learned counsel for the petitioner and learned Standing Counsel for the State.
Learned counsel for the petitioner at the very outset has pointed out that this is the second writ petition filed on behalf of the petitioner, as the first writ petition filed on behalf of the petitioner being Writ-A No.15504 of 2018 has been dismissed by a Coordinate Bench of this Court vide order dated 08.08.2018, copy of which is annexed as Annexure-3 to the writ petition. Relevant extract of the order dated 08.08.2018 is being reproduced here-in-below:-
"It appears that remedy of appeal available to petitioners in terms of recruitment exercise has otherwise not been availed by the petitioners. The result of physical standard test is based upon detail procedure contemplated in Rule 15 (d) as well as Appendix 2 thereof. In the absence of anything brought on record to show perversity in measurement of height, this Court would not be inclined to interfere in the matter.
Writ petition, accordingly, is dismissed."
Since the first petition filed on behalf of the petitioner has already been dismissed, the present second writ petition for the same cause of action is not maintainable. It is, accordingly, dismissed. "
The sole submission of learned counsel for the appellants is that learned Single Judge has wrongly dismissed the writ petition, treating it to be second writ petition on behalf of the petitioners for the same cause of action, the earlier one having been dismissed by order dated 8.8.2018, whereas, in fact, the said writ petition was entertained by the Court only in respect of Jitendra Kumar Gupta (petitioner-1 therein) and liberty was reserved in favour of the other petitioners therein to move by way of a fresh petition. It is pointed out that the appellants were petitioner nos. 3 and 4 in the earlier writ petition and consequently, the petition giving rise to the instant appeal, was fully maintainable. In support of his submission, he has invited our attention to the memo of parties in the earlier writ petition bearing number 15504 of 2018, according to which, appellant nos. 1 and 2 herein were petitioner nos. 3 and 4 in the said writ petition. He has also invited our attention towards the order dated 1.8.2018, passed in the earlier writ petition, whereby the writ petition in respect of the appellants herein was dismissed with liberty to file a fresh petition which is as follows: -
""Four petitioners have joined in filing the present petition raising their grievance relating to their non-selection for appointment to the post of Constable.
Separate and distinct individual causes have been raised in this petition. All petitioners belong to different districts and therefore, medical, etc. has also been conducted at different places.
It is difficult to entertain petition of this kind, particularly, as inviting a response would be difficult.
In such circumstances, this petition is entertained only with reference to petitioner no. 1 and is dismissed with reference to petitioner nos. 2 to 4, with liberty reserved to them to file a fresh petition.
Learned standing counsel may obtain instructions in the matter as to for what reason, the petitioner has been declared medically unfit.
Put up this matter on 08.08.2018."
Learned Standing Counsel is not in position to dispute the said factual aspect.
It is thus evident that the learned Single Judge has proceeded on a wrong notion that the writ petition filed by the appellants herein has to be treated as second writ petition. It seems that the order passed in the earlier writ petition dated 1.8.2018 was not brought to the notice of the learned Single Judge.
Consequently, we set aside the impugned order and remit the matter back to learned Single Judge for deciding the writ petition on merits.
The appeal stands allowed accordingly.
(Yogendra Kumar Srivastava, J.) (Manoj Kumar Gupta, J.)
Order Date :- 17.12.2021 Jaideep/-
2 issues framed by the court
Whether the writ petition filed by the appellants constitutes a second petition for the same cause of action barred by restraint principles.
Whether the lower court erred in dismissing the appeal of the subsequent petitioners who were excluded from the earlier order.
Kuldeep Sharma
Another
State Of U.P.
Manoj Kumar Gupta
Dr. Yogendra Kumar Srivastava
As recorded by the court registry
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