At, High Court of Rajasthan Jaipur Bench
By, THE HONOURABLE CHIEF JUSTICE MR. NAVIN SINHA & THE HONOURABLE MR. JUSTICE VIJAY KUMAR VYAS
For the Appellants: Anoop Dhand, Advocate. For the Respondents: G.S. Gill, AAG with Harish C. Kandpal, Additional Government Counsel, Mahendra Shah, Advocate.
1. The present appeal arises from order dated 19.09.2014 dismissing S.B. Civil Writ Petition No.7654/2012. The learned Single Judge held that the earlier S.B. Civil Writ Petition No.4015/2002 preferred by the appellants having been dismissed on merits and D.B. Civil Special Appeal(w) No.2625/2011 preferred against the same having been withdrawn on 06.04.2102, there was no merit in the writ petition, even if liberty had been granted in appeal to file a fresh writ petition pursuant to t
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e order dated 01.05.2009 passed by the respondents authorities in pursuance of certain orders passed in S.B. Civil Writ Petition No.2393/2002 and other cases preferred by certain others and appeals against which were unsuccessful.2. Learned counsel for the appellants submitted that the appeal was withdrawn reserving the right to pursue matters further in accordance with law consequent to the fresh order of the State Government dated 01.05.2009, by which respondent Nos.3 to 5 who had lesser marks than the appellants were re-appointed consequent to the order of the Court. Since earlier the private respondents had also been terminated, the order of their reinstatement on 01.05.2009 naturally gave a fresh cause of action to the appellants and the learned Single Judge erred in holding that the liberty granted in the appeal to the appellants was inconsequential.3. We have heard Counsel for the respondents also.4. 200 posts of Ayurved Nurse/Compounder Junior Grade were advertised on 24.04.1999 under the Rajasthan Ayurvedic Unani Homoeopathy and Naturapathy Subordinate Service Rules, 1966 (hereinafter referred to as 'the Rules'). Appointment letters were issued. The State Government decided to review the merit list. Several writ petitions were filed by those who were aggrieved by the review of the merit list leading to their termination and by persons like the appellants who claimed that though they had higher marks than those appointed, had wrongly been denied appointment. By a common order dated 13.08.2002, the writ petitions of those who had been terminated consequent to the revision of the merit list were allowed with directions for reinstatement with all consequential benefits. The writ petitions of the appellants and certain others similarly situated were dismissed. We are not concerned with the third solitary case where five vacancies were directed to be kept reserved from anticipated vacancies and to give them preference.5. D.B. Civil Special Appeal No.902/2002 was preferred by the State assailing the relief granted for reinstatement to some of the candidates and which was dismissed on 12.09.2008. Consequent to the same, the State issued orders on 01.05.2009 with regard to them of reinstatement in compliance of the order of the Court.6. The appellants had also preferred D.B. Civil Special Appeal(W) No.2625/2011 against the dismissal of their S.B. Civil Writ Petition No.4015/2002. In pursuance of the fresh order dated 01.05.2009 issued by the State Government, the appellants withdrew their appeal to file a fresh writ petition assailing the same. The appeal was dismissed as withdrawn with that liberty.7. In the considered opinion of the Court, the order of dismissal in S.B. Civil Writ Petition No.4015/2002 attained finality inter parties when their appeal was withdrawn on 06.04.2012. The order dated 01.05.2009 was not an independent suo moto order passed by the State authorities furnishing fresh cause of action to the appellants. It was an inter-parties order consequent to the dismissal of D.B. Civil Special Appeal (W) No.902/2002 preferred by the State. It is not possible to accept the contention that it gives a fresh cause of action to the appellants. Appropriately the appellants should have contested their appeal on merits if aggrieved by dismissal of their writ petition.8. It is a matter of common practise in the Court room that when a party is unable to persuade the Court and obtain relief, rather than to obtain an adverse verdict, the case is withdrawn in the hope that relief may follow in some other form. The fact that Court may have granted liberty while permitting the appeal to be withdrawn will not tantamount to a cause of action if it did not exist independently on its merit against the order dated 01.05.2009 passed in a completely different context. We therefore find no reason to interfere with the conclusion of the learned Single Judge that the order for dismissal in S.B. Civil Writ Petition No.4015/2002 attained finality in the facts and circumstances of the case. To that extent the appeal is dismissed.9. Counsel for the respondents have no objection to the waiving of costs imposed only. The appeal is allowed only to the extent indicated.Appeal dismissed to that extent but allowed to extent of waiver of costs by Respondent's Counsel.