Lajja Devi vs State Of Uttarakhand And Others

Ravi Malimath, J

By the order dated 23.06.2020, passed by the learned Single Judge in Writ Petition (S/S) No. 361 of 2019, the present matter has been referred to

the Hon’ble Division Bench of this Court in view of the two contrary views expressed by two learned Single Judges of this Court in their

respective judgments. One such order has been passed in Writ Petition (S/S) No. 2680 of 2017 dated 18.09.2017. Therein, it was held, by following

the earlier directions of this Court in the judgment passed in Writ Petition (S/S) No. 429 of 2017 dated 30.05.2017, that non-furnishing of the

appointment letter will not create an impediment in considering the application of the petitioner for appointment.

However, in yet another writ petition, being Writ Petition (S/S) No. 266 of 2017, a similar impugned order was challenged and the Writ Petition was

dismissed by the learned Single Judge by its order dated 04.04.2018.

Therefore, the learned Single Judge was of the view that there are two separate views by two learned Single Judges and, hence, the matter

requires to be clarified by the Hon’ble Division Bench.

We have considered both the orders. In terms of the impugned order in Writ Petition (S/S) No. 2680 of 2017 dated 18.09.2017, the candidature of

the writ petitioner was rejected on the ground that the writ petitioner had not annexed the copy of the appointment order. Based on the earlier order

passed by this Court, in Writ Petition (S/S) No. 429 of 2017 dated 30.05.2017, the Writ Petition was allowed by the learned Single Judge.

In yet another Writ Petition, a similar set of facts had arisen and the same was challenged by the writ petitioner by filing Writ Petition (S/S) No. 226

of 2017. The said writ petition was dismissed by the learned Single Judge by its order dated 04.04.2018.

However, on considering both the orders, we are of the view that there does not seem to be any difference of opinion on the question of law vis-Ã -

vis the order passed in Writ Petition (S/S) No. 226 of 2017 dated 04.04.2018 and the order passed in Writ Petition (S/S) No.2680 of 2017 dated

18.09.2017 is concerned.

A specific view has been narrated by the learned Single Judge in the order passed in Writ Petition (S/S) No. 2680 of 2017 dated 18.09.2017.

However, no such view has been expressed by the learned Single Judge in the order passed in Writ Petition (S/S) No. 226 of 2017 dated 4.04.2018.

In its order in Writ Petition (S/S) No. 226 of 2017 dated 04.04.2018, the learned Single Judge has dismissed the writ petition on facts. There is no

reference to the position in law. The said order has been passed by the learned Single Judge without reference to the earlier orders passed by the

Court. Therefore, the said order has to be read as being per incuriam.

Furthermore, we are of the view that the question of difference of opinion will arise only when each of the Hon’ble Judges have expressed

their individual views.

In the instant case, an opinion has been expressed by the learned Single Judge in the order passed in Writ Petition (S/S) No. 2680 of 2017 dated

18.09.2017. There is no opinion expressed by the learned Single Judge in the order passed in Writ Petition (S/S) No. 226 of 2017 dated 04.04.2018.

Therefore, it cannot be said that there is a difference of opinion. In view of the order, passed in Writ Petition (S/S) No. 226 of 2017 dated 04.04.2018,

being held as per incuriam it has to be construed that the order passed in Writ Petition (S/S) No. 2680 of 2017 dated 18. 09.2017 is an order that has

declared the law on the point.

We also verified from the Registry whether any Special Appeal(s) have been filed against the aforesaid two orders. The Registry has informed us

that there are no Special Appeals filed against these two orders.

Hence, for all these reasons, we are of the view that, in view of the absence of any opinion expressed by the learned Single Judge in the order

passed in Writ Petition (S/S) No. 226 of 2017 dated 04.04.2018, and the said order being held to be per incuriam, the law, as declared by the learned

Single Judge, in its order in Writ Petition (S/S) No. 2680 of 2017 dated 18.09.2017, will hold the field.

Hence, the reference is, accordingly, answered.

Registry to place the Writ Petition before the concerned Hon’ble Judge for necessary orders.