Nazir Ahmad Akhoon vs State Of J&K And Others

Rajesh Bindal, J

The petitioner filed the present petition way back in the year 2013 praying for the following reliefs:

i) A writ in the nature of Prohibition, prohibiting the Official Respondents from passing any appointment orders in favour of the private respondents on the basis of judgment passed by this Hon'ble court in SWP No. 864/2008 so far it pertains to private respondents herein vide judgment dated 27/05/2013 forming Annexure F to this Writ Petition.

ii) A writ in the nature of Mandamus commanding the Official Respondents to consider and appoint the petitioner against the post of Doctor ISM in PHC of Block Tangmarg which became vacant due to quashment of selection/appointment of Dr. Manzoor Ahmed Khanday and Bilal Ahmed Wani as per the judgment referred above.

iii) A writ in the nature of Mandamus commanding the Official Respondents to consider the representation of the petitioner dated 08/06/2013 forming Annexure H to the writ petition and also conduct the formal enquiry regarding residential status of the private respondents herein."

A perusal of the aforesaid reliefs shows that a writ in the nature of prohibition has been prayed for restraining the official respondents to issue appointment letter in favour of the private respondents on the basis of earlier judgment passed by this Court in Peerzada Naseer Ahmad Vs. State of J&K and others, SWP No. 864/2008, decided on 27.05.2013.

The learned counsel for the petitioner sought to raise the argument that the parties in the aforesaid writ petition had been able to mislead the Court with reference to the block, to which they belonged for the purpose of post in question. It came to the notice of the petitioner after the writ petition was decided. The information was received by him in response to an application filed under Right to Information Act. As a fraud has been committed, the present petition has been filed seeking to restrain the official respondents from issuing appointment letters to the persons in terms of the directions issued in Peerzada Naseer Ahmad's case (Supra)

He further submitted that LPAW No. 112/2013 titled as Syed Sitbul Hassan Vs. State of J&K and others, has already been filed by the affected persons challenging Single Bench judgment of this Court in Peerzada Naseer Ahmad's case (supra), which is still pending for consideration. In support of the argument that fresh writ is maintainable to challenge an earlier order passed in exercise of writ jurisdiction by the same Court, reference was made to Single Bench judgment of this Court in Avtar Krishan Pandita Vs. State of J&K and others reported in 2001 SLJ 453.

Heard learned counsel for the petitioner and perused of the paper book.

The argument raised by learned counsel for the petitioner on merits of the issue need not been noticed in detailed for the reason that the basic issue regarding the maintainability of the writ petition is to be considered first, as challenge in the present petition is to an earlier order passed by this Court in Peerzada Naseer Ahmad's case (supra), exercise of its writ jurisdiction. The prayer is that the appointment orders in favour of the private respondents on the basis of judgment passed earlier on 27.05.2013 in SWP No. 864/2008, be not issued.

No doubt in Avtar Krishan Pandita's case (supra), the Single Bench of this Court had opined that a fresh writ petition could be filed as there is no bar in Article 226 of the Constitution of India to preclude a High Court from exercising the power of review which inheres in every court to prevent miscarriage of justice. The fact remains that in the aforesaid order passed by the learned Single Judge, reliance was placed upon an earlier order passed by Hon'ble the Supreme Court in case titled Shivdeo Singh and others v. State of Punjab and others reported in AIR 1963 SC 1909. The learned Single Judge did not consider an earlier Division Bench judgment of this Court in case titled as Sajal Gupta Vs. State of J&K reported in AIR 1998 J&K 1 on the issue. An identical issued was involved therein and the opinion expressed by the Division Bench of this court was that an order passed by the writ court in exercise of its extraordinary jurisdiction cannot be challenged by filing a separate writ petition. Relevant paragraph of the aforesaid judgment is reproduced hereunder:

".......... The order passed by the writ court in exercise of the extraordinary writ jurisdiction under Article 226 of the Constitution of India can be modified and altered in the same proceedings by the writ court but cannot be sought to be set aside by filing a separate writ petition invoking extra ordinary writ jurisdiction. The remedy for the writ petitioners was either to seek modification or the basic order dated 31.12.1996 or to challenge it before any available competent forum."

While coming to the aforesaid conclusion, reliance was placed upon a nine-judge Bench judgment of Hon'ble the Supreme Court in case titled Naresh Shridhar Mirajkar v. State of Maharastra and another reported in AIR 1967 SC 1.

While relying upon the judgment of the Hon'ble the Supreme Court in Naresh Shridhar Mirajkar's case (supra), even a Division Bench of Punjab and Haryana High Court in case titled as P. S. Sawhney v. Union of India and others reported in 2014 (30) R.C.R. (Civil) 171 opined that against an earlier order passed by the High Court in exercise of writ jurisdiction under Article 226 of the Constitution of India, any person aggrieved would be free to file appeal or review application along with an application for impleadment, in case he is not party to the litigation and affected by the judgment. It was also opined that an earlier order passed in exercise of writ jurisdiction cannot be subject matter of challenge in another writ petition in the same Court.

In view of the aforesaid authoritative enunciation of law based on the nine-judge Bench judgment of Hon'ble the Supreme Court in Naresh Shridhar Mirajkar's case (supra), an order passed by the learned Single Judge in Avtar Krishan Pandita's case (supra) cannot possibly be relied upon. The view expressed by the learned Single judge was otherwise also contrary to an earlier division bench judgment of this Court Sajal Gupta's case (Supra). Hence, the writ petition filed by the petitioner to restrain the official respondent from implementing an earlier order passed by this Court in exercise of writ jurisdiction, will not be maintainable.

Hence the same is dismissed.

In any case, the petitioner cannot be left remediless. He had submitted that LPA No. 112/2013 is already pending in this Court impugning the judgment of learned Single Judge passed in SWP No. 864/2008. If the law permits, the petitioner can join those proceedings. He shall be free to avail of his any other appropriate remedy for the purpose, including filing of review application or separate appeal.