Param Hans Mishra vs State of Uttar Pradesh and Others

The present special appeal has been filed against the judgment and order dated 26.10.2010 passed by the learned Single Judge, whereby the writ petition preferred by the present Appellant has been dismissed with costs of Rs. 20,000/- to be paid to Mediation Centre at Allahabad.

We have heard Sri Sudhakar Pandey, learned Counsel for the Appellant and the learned Standing Counsel, who represents State-Respondents and have gone through the impugned judgment and order dated 26.10.2010 passed by the learned Single Judge, giving rise to present appeal, the grounds taken in the memo of appeal and the documents filed along with it.

It appears that the Petitioner is claiming appointment on a Class-IV post in Sarvodaya Inter College, Lakhansenpur, Post Office Bankat, district Varanasi. The said post has been filled up by the appointment of Sri Sanjay Kumar Vishwakarma under the provisions of Dying-in-Harness Rules. The Petitioner came before this Court by filing a writ petition, which was dismissed on 30th July, 2010 against which he preferred Special Appeal No. 1403 of 2010, which too had been dismissed on the ground that the Appellant had not challenged the appointment of Sri Sanjay Kumar Vishwakarma. After the dismissal of the special appeal the Petitioner again approached this Court by filing Writ Petition No. 63949 of 2010 with the following reliefs:

(i) Issue a writ, order or direction in the nature of mandamus directing to the opposite parties to adjust to Respondent No. 5 to supernumerary post in any of recognised or aided institution of District Varanasi by considering the rules of reservation of 1994.

(ii) Issue a writ, order or direction in the nature of mandamus directing to the opposite parties to initiate the proceeding of appointment according to provision as provided under the Act and by considering the rules of reservation, so that Petitioner may also applied for the said post and if he may found eligible and suitable for the said post the concerned authorities may consider for his appointment as general category for which post in question.

(iii) issue a writ, order or direction which this Hon''ble Court may deem fit and proper in the circumstances of the case.

(iv) Award the cost of the writ petition in favour of the Petitioner.

The learned Single Judge came to the conclusion that the Petitioner had not specifically challenged the appointment of Sri Sanjay Kumar Vishwakarma and, therefore, the writ petition is nothing but an abuse of process of Court and is liable to be dismissed with an exemplary costs.

Sri Sudhakar Pandey submitted that in the relief No. 1 the Petitioner had challenged the appointment of Sri Sanjay Kumar Vishwakarma, who was arrayed as Respondent No. 5 in the array of parties in the writ petition and therefore, he has a right to file the writ petition pursuant to the direction made by this Court in Special Appeal No. 1403 of 2010 decided on 14th September, 2010 and, therefore view of the learned Single Judge to the contrary is not correct.

We have already reproduced the relief No. 1 claimed by the Petitioner and find that it does not challenge the appointment of Sri Sanjay Kumar Vishwakarma instead it seeks adjustment of Sri Sanjay Kumar Vishwakarma in some other institution. That being the position we are of the considered opinion that the learned Single Judge has rightly come to the conclusion that the writ petition is not maintainable as the controversy has been settled in earlier round of litigation. Learned Single Judge has also rightly imposed the costs of Rs. 20,000/-.

We do not find any good ground for interference. The appeal fails and is dismissed.