# Gagan Sharma v. State of U.P. & Ors

- **Citation:** (2022) 7 ILRA 651
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-04-29
- **Case number:** Writ A No. 620 of 2022
- **Bench:** Mrs. Manju Rani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gagan-sharma-v-state-of-u-p-ors-48823
- **Pages:** 11

## Headnote

A. Service Law - Selection - U.P. Police
Constable and Head Constable Service
Rules, 2015- Appendix-3 of Rule 16(g) -
Explanation IV to Section 11 and Order 2
Rule 2 C.P.C. - No litigant has a right to
unlimited drought on the Court time and
public money in order to get his affairs
settled in the manner he wishes. However,
access to justice should not be misused as
a licence to file misconceived and frivolous
petitions. (Para 18)

Filing
successive
misconceived
and
frivolous
applications
for
clarification,
modification or for seeking a review of the
order interferes with the purity of the
administration of law and salutary and
healthy practice. Such a litigant must be
dealt with a very heavy hand. (Para 20, 21,
22)

It is an admitted position between the parties
that for the same relief as made in the present
writ petition, the petitioner has already fled
Writ-A No. 12672 of 2020 (Gagan Sharma Vs St.
of U.P. & 3 Others), which has been dismissed
by a Writ Court vide judgment and order dated
03.08.2021, however, in the said writ petition,
according to the learned counsel for the
petitioner, the grounds taken in the same are
different from those, which have been taken in
the present writ petition. (Para 9)

The issue of filing successive writ petition has
been considered by the Apex Court time and
again, accordingly it has been held that even if
the earlier writ petition has been dismissed as
withdrawn, Public Policy which is reflected in
the principle enshrined in Order 23 rule 1
C.P.C., mandates that successive writ petition
cannot be entertained for the same relief.
(Para 10)

Even if a party does not pray for the relief in
the earlier writ petition, which he ought to
have claimed in the earlier petition, he
cannot file a successive writ petition claiming
that relief, as it would be barred by the
principle
of
constructive
res
judicata
enshrined in Explanation IV to Section 11
and Order 2 rule 2 C.P.C. (Para 12)

It is abundantly clear that even if the
provisions of the Code of Civil Procedure
are not applicable in writ jurisdiction,
the principle enshrined therein can be
resorted to for the reason that the
principles, on which the Code of Civil
Procedure is based, are founded on
public policy and, therefore, require to
be extended and made applicable in writ
jurisdiction
also
in
the
interest
of
administration of justice. Any relief not
claimed in the earlier writ petition should be
deemed to have been abandoned by the
petitioner to the extent of the cause of action
claimed in the subsequent writ petition and in
order to restrain the person from abusing the
process of the Court, such an order/course
requires not only to be resorted to but to be
enforced. (Para 17)
652 INDIAN LAW REPORTS ALLAHABAD SERIES
B. Medical fitness is a subject best left for
determination by experts and should not
be lightly interfered with unless it be
shown to be contrary to the standards
prescribed or otherwise be liable to be
assailed on other judicially manageable
parameters. (Para 28)

Opinion of a committee of non-experts
under Rule 15(d) for physical test of a
candidate cannot override the opinion of
the team of experts, i.e. Medical Board
under Rule 15(g) of the Rules. Any Court of
law or any person cannot express any opinion
about a person whether he is healthy or unwell
or what disease he has. It is the Doctor, who is
an expert of that field, can diagnose the disease
and give opinion about the same. (Para 27, 30)

The second writ petition is not maintainable for
issuing a direction upon the respondent
authorities to treat the petitioner medically fit in
the selection on the post of Constable Civil
Police pursuant to the advertisement dated
16.11.2018, as the earlier writ petition for the
same relief stood dismissed vide order dated
03.08.2021, wherein a Coordinate Bench of this
Court had found no error in the opinion of the
medical board as also the appellate medical
board. (Para 23)

C. Second writ petition file

## Text

7 All. Gagan Sharma Vs. State of U.P. & Ors.
651
same is hereby set aside. The respondents
are directed to reinstate the petitioner
forthwith on the post of Instructor (on
which she was working prior to passing of
termination order) (as writ challenging
reversion order is still pending).

23. With the aforesaid observations,
the writ petition is allowed.
----------
(2022)07ILR A651
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.04.2022

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Writ A No. 620 of 2022

Gagan Sharma ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri Seemant Singh

Counsel for the Respondents:
C.S.C.

A. Service Law - Selection - U.P. Police
Constable and Head Constable Service
Rules, 2015- Appendix-3 of Rule 16(g) -
Explanation IV to Section 11 and Order 2
Rule 2 C.P.C. - No litigant has a right to
unlimited drought on the Court time and
public money in order to get his affairs
settled in the manner he wishes. However,
access to justice should not be misused as
a licence to file misconceived and frivolous
petitions. (Para 18)

Filing
successive
misconceived
and
frivolous
applications
for
clarification,
modification or for seeking a review of the
order interferes with the purity of the
administration of law and salutary and
healthy practice. Such a litigant must be
dealt with a very heavy hand. (Para 20, 21,
22)

It is an admitted position between the parties
that for the same relief as made in the present
writ petition, the petitioner has already fled
Writ-A No. 12672 of 2020 (Gagan Sharma Vs St.
of U.P. & 3 Others), which has been dismissed
by a Writ Court vide judgment and order dated
03.08.2021, however, in the said writ petition,
according to the learned counsel for the
petitioner, the grounds taken in the same are
different from those, which have been taken in
the present writ petition. (Para 9)

The issue of filing successive writ petition has
been considered by the Apex Court time and
again, accordingly it has been held that even if
the earlier writ petition has been dismissed as
withdrawn, Public Policy which is reflected in
the principle enshrined in Order 23 rule 1
C.P.C., mandates that successive writ petition
cannot be entertained for the same relief.
(Para 10)

Even if a party does not pray for the relief in
the earlier writ petition, which he ought to
have claimed in the earlier petition, he
cannot file a successive writ petition claiming
that relief, as it would be barred by the
principle
of
constructive
res
judicata
enshrined in Explanation IV to Section 11
and Order 2 rule 2 C.P.C. (Para 12)

It is abundantly clear that even if the
provisions of the Code of Civil Procedure
are not applicable in writ jurisdiction,
the principle enshrined therein can be
resorted to for the reason that the
principles, on which the Code of Civil
Procedure is based, are founded on
public policy and, therefore, require to
be extended and made applicable in writ
jurisdiction
also
in
the
interest
of
administration of justice. Any relief not
claimed in the earlier writ petition should be
deemed to have been abandoned by the
petitioner to the extent of the cause of action
claimed in the subsequent writ petition and in
order to restrain the person from abusing the
process of the Court, such an order/course
requires not only to be resorted to but to be
enforced. (Para 17)
652 INDIAN LAW REPORTS ALLAHABAD SERIES
B. Medical fitness is a subject best left for
determination by experts and should not
be lightly interfered with unless it be
shown to be contrary to the standards
prescribed or otherwise be liable to be
assailed on other judicially manageable
parameters. (Para 28)

Opinion of a committee of non-experts
under Rule 15(d) for physical test of a
candidate cannot override the opinion of
the team of experts, i.e. Medical Board
under Rule 15(g) of the Rules. Any Court of
law or any person cannot express any opinion
about a person whether he is healthy or unwell
or what disease he has. It is the Doctor, who is
an expert of that field, can diagnose the disease
and give opinion about the same. (Para 27, 30)

The second writ petition is not maintainable for
issuing a direction upon the respondent
authorities to treat the petitioner medically fit in
the selection on the post of Constable Civil
Police pursuant to the advertisement dated
16.11.2018, as the earlier writ petition for the
same relief stood dismissed vide order dated
03.08.2021, wherein a Coordinate Bench of this
Court had found no error in the opinion of the
medical board as also the appellate medical
board. (Para 23)

C. Second writ petition filed for the same relief
cannot be entertained by this Court. The
proper remedy available to the petitioner
was to file a recall application in his
earlier writ petition referred to above or to
file a Special Appeal against the judgment
and order passed in the said writ petition.
(Para 32)

Writ petition dismissed. (E-4)

Precedent followed:

1. M/s Sarguja Transport Service Vs St.
Transport Appellate Tribunal & ors., AIR 1987
SC 88 (Para 10)

2. Ashok Kumar & ors. Vs Delhi Development
Authority, 1994 (6) SCC 97 (Para 10)

3. Khacher Singh Vs St. of U.P. & ors., AIR 1995
All. 338 (Para 10)
4. Commissioner of Income Tax, Bombay
Vs T.P. Kumaran, 1996 (1) SCC 561 (Para
12)

5. U.O.I. & ors. Vs Punnilal & ors., 1996 (11)
SCC 112 (Para 12)

6. M/s D. Cawasji & Co. & ors. Vs St. of Mysore
& anr., AIR 1975 SC 813 (Para 12)

7. Avinash Nagra Vs Navodaya Vidyalaya Samiti
& ors., (1997) 2 SCC 534 (Para 13)

8. Uda Ram Vs Central St. Farm & ors., AIR
1998 Raj. 186 (Para 13)

9. Rajasthan Art Emporium Vs Rajasthan St.
Industrial and Investment Corp. & anr., AIR
1998 Raj. 277 (Para 13)

10. St. of U.P. & anr. Vs Labh Chand, AIR 1994
SC 754 (Para 15)

11. Burn & Co. Vs Their Employees, AIR 1957
SC 38 (Para 16)

12. Dr. Buddhi Kota Subbarao Vs K. Parasaran &
ors., AIR 1996 SC 2687 (Para 18)

13. K.K. Modi Vs K.N. Modi & ors., (1998) 3 SCC
573 (Para 19)

14. Tamil Nadu Electricity Board & anr. Vs N.
Raju Reddiar & anr., AIR 1997 SC 1005 (Para
20)

15. Sabia Khan & ors. Vs St. of U.P. & ors.,
(1999) 1 SCC 271 (Para 21)

16. Abdul Rahman Vs Prasoni Bai & anr., (2003)
1 SCC 488 (Para 22)

17. Diwakar Paswan Vs St. of U.P. & ors., 2021
(1) ADJ 454 (Para 28)

18. St. of U.P. & ors. Vs Bhanu Pratap Rajput,
2021 (2) ADJ 451 (Para 31)

Precedent distinguished:

1. Madhvi Amma Bhawani Amma Vs Kunjijutty
Pillai Meenakshi Pillai, 2000 LawSuit (SC) 833
(Para 5, 25)
7 All. Gagan Sharma Vs. State of U.P. & Ors.
653
2. Abdul Razak Amjadulla Abusali Vs St. of
Karnataka by its Secretary, Department of Home
& Others, 2017 LawSuit (Kar) 709 (Para 5, 24)

(Delivered by Hon'ble Mrs. Manju Rani
Chauhan, J.)

1. Heard Mr. Seemant Singh, learned
counsel for the petitioner and Mr. Ashish Singh
Nagwanshi, learned Standing Counsel for the
State-respondents.

2. By means of the present writ petition, the
petitioner has prayed made following relief:

(a) Issue a writ, order or direction in
the nature of Mandamus directing the respondents
to treat the petitioner has medically fit in the
selection on the post of Constable Civil Police
initiated vide advertisement dated 16.11.2018
issued by the Additional Secretary (Recruitment),
Uttar Pradesh Police Recruitment and Promotion
Board, Lucknow in view of Appendix-3 of Rules
15 (9) of Uttar Pradesh Police Constable and
Head Constable Service Rules, 2015.

(b) Issue a writ, order of direction in
the nature of Mandamus directing the respondents
to appoint the petitioner on the post of Constable
Civil Police and also be sent for training on the
post of Constable Civil Police, treating the
petitioner to be not having any such physical
deformity which has been notified under the Uttar
Pradesh Police Constable and Head Constable
Service Rules, 2015 and by the State Government,
within stipulated period of time as fixed by this
Hon'ble Court.

(c) Issue any other suitable writ, order
or direction, which this Hon'ble Court may deem
fit and proper in the facts and circumstances of the
case.

(d) Award the cost of writ petition
to the Writ Petition. "

3. Before coming on the merits of the
claim set up on behalf of the petitioner, Mr.
Nagwanshi, learned Standing Counsel has
raised
preliminary
objection
to
the
maintainability of this writ petition by
contending that the petitioner has earlier
approached this Court by means of Writ-A
No. 12672 of 2020 (Gagan Sharma Vs.
State of U.P. & 3 Others). The said writ
petition has been dismissed by a Writ Court
vide judgment and order dated 3rd August,
2021. Learned counsel for the Staterespondents, therefore, submits that this
second writ petition nearly for the same
relief cannot be entertained by this Court
and the same is liable to be dismissed on
this ground alone. The proper remedy
available to the petitioner is to file a
recall/modification application in the said
writ petition or file a special appeal against
the order passed therein.

4. In the present writ petition, it is the
case of the petitioner that an advertisement
was issued by the Additional Secretary
(Recruitment), U.P. Police Recruitment and
Promotion Board, Lucknow i.e. respondent
no.3 dated 16th November, 2018 in respect
Constable Civil Police and Constable PAC
Direct Recruitment-2018. By the said
advertisement, total 49568 posts were
advertised, out of which, 31360 were
advertised for the post of Constable Civil
Police,
whereas
18208
posts
were
advertised for the post of Constable Police
Armed Constabulary. Pursuant to the
aforesaid advertisement, petitioner applied
under General Category. The petitioner
qualified in all the stages of recruitment
and ultimately, he was selected on the post
of Constable Civil Police in the final select
list issued by the respondent-authority vide
notification
dated
2nd
March,
2020.
Thereafter the petitioner was called for
appearing in Medical Examination at
654 INDIAN LAW REPORTS ALLAHABAD SERIES
Reserve Police Line, Bulandshahr, which
was conducted by the District Medical
Board, Bulandshahr, wherein he was
declared medically unfit due to having
cubitus valgus deformity, which means
excess curve in the elbows. The petitioner
also appeared in re-medical examination,
which was conducted at Reserve Police
Line, Meerut by the Regional Medical
Board, Meerut and in the said re-medical
examination, the petitioner was again
declared medically unfit on the same
deformity. Feeling aggrieved by the same,
the petitioner approached this Court earlier
by means of Writ-A No. 12672 of 2020
(Gagan Sharma Vs. State of U.P. & 3
Others), which was dismissed by a Writ
Court vide judgment and order dated 3rd
August, 2021, wherein the Writ Court
relying upon the medical report of the
petitioner, according to which the petitioner
was examined by the Medical Board, which
was duly constituted by the Chief Medical
Officer, Bulandshahr and he was found
medically unfit due to having excess angle
in both elbows.

5. Learned counsel for the petitioner
submits that it is no doubt true that for the
same relief, as has been made in the present
writ petition, petitioner filed Writ-A No.
12672 of 2020 (Gagan Sharma Vs. State of
U.P. & 3 Others) but grounds taken in the
present writ petition and in Writ-A No.
12672 of 2020 (Gagan Sharma Vs. State of
U.P. & 3 Others) are different. The
petitioner has filed the present writ petition
on some new grounds which he has not
taken in his earlier writ petition. Therefore,
the present writ petition is maintainable. In
support of this plea, learned counsel for the
petitioner has placed reliance upon the
judgment of the Apex Court in the case of
Madhvi Amma
Bhawani Amma
Vs.
Kunjijutty Pillai Meenakshi Pillai reported
in 2000 LawSuit (SC) 833 as well as the
Full Bench Judgment of the High Court of
Karnataka in the case of Abdul Razak
Amjadulla Abusali Vs. State of Karnataka
by its Secretary, Department of Home &
Others reported in 2017 LawSuit (Kar) 709.

6. New grounds pressed before this
Court by the learned counsel for the
petitioner are that in the Appendix-3 of
Rule 16 (g) of the U.P. Police Constable
and Head Constable Service Rules, 2015
(hereinafter referred to as the "Rules,
2015"), which provides the deformities, for
which the candidates are required to be
medically tested, cubitus valgus deformity
has
been
mentioned.
Neither
any
notification has been issued by the State
Government mentioning that the cubitus
valgus is a deformity nor the respondent
authorities had ever disclosed at any point
of time to the petitioner about the same i.e.
at the time of the medical examination
conducted by the District Medical Board
and re-medical examination conducted by
the Regional Medical Board. So long as the
cubitus valgus is not taken into as physical
deformity, the claim of the petitioner
cannot be rejected on account of the same.
On
the
Cumulative
strength of
the
aforesaid, learned counsel for the petitioner
submits that in view of Rules, 2015, the
claim of the petitioner is liable to be
considered treating the petitioner to be
medically fit in all aspects.

7. On the other-hand, learned Counsel
for the State-respondents submits that there
is no provision of law to dispute the
medical examinations of the petitioner
which were conducted by teams of Doctors
only on the allegation that in Rules, 2015,
the cubitus valgus deformity has not been
notified
nor
in
any
notification
or
Government Order of the State the said
7 All. Gagan Sharma Vs. State of U.P. & Ors.
655
deformity
has
been
notified.
The
candidature of the petitioner has rightly
been rejected by the Medical Boards
referred to above. Therefore, on merits
also, no interference is required to be made
by this Court in exercise of powers under
Article 226 of the Constitution of India.

8. I have considered the submissions
made by the learned counsel for the parties
and have gone through the records of the
present writ petition.

9. It is an admitted position between
the parties that for the same relief as made
in the present writ petition, the petitioner
has already filed Writ-A No. 12672 of 2020
(Gagan Sharma Vs. State of U.P. & 3
Others), which has been dismissed by a
Writ Court vide judgment and order dated
3rd August, 2021, however, in the said writ
petition, according to the learned counsel
for the petitioner, the grounds taken in the
same are different from those, which have
been taken in the present writ petition.

10. The issue of filing successive writ
petition has been considered by the Apex
Court time and again, accordingly it has
been held that even if the earlier writ
petition has been dismissed as withdrawn,
Public Policy which is reflected in the
principle enshrined in Order 23 rule 1
C.P.C., mandates that successive writ
petition cannot be entertained for the same
relief. (Vide M/s. Sarguja Transport
Service Vs. State Transport Appellate
Tribunal & Ors., AIR 1987 SC 88; Ashok
Kumar & Ors. Vs. Delhi Development
Authority, 1994 (6) SCC 97; and Khacher
Singh Vs. State of U.P. & Ors., AIR 1995
All. 338).

11. In Sarguja Trasnport Service
(Supra), the Apex Court has specifically
opined that in the instant case, the High
Court was right in holding that a fresh writ
petition was not maintainable before it in
respect of the same subject-matter since the
earlier writ petition had been withdrawn
without permission to file a fresh petition.

12. Even if a party does not pray for
the relief in the earlier writ petition, which
he ought to have claimed in the earlier
petition, he cannot file a successive writ
petition claiming that relief, as it would be
barred by the principle of constructive res
judicata enshrined in Explanation IV to
Section 11 and Order 2 rule 2 C.P.C. as has
been explained, in unambiguous and crystal
clear language by the Apex Court in
Commissioner of Income Tax, Bombay
Vs. T.P. Kumaran reported in 1996 (10)
SCC 561; Union of India & Ors. Vs.
Punnilal & Ors. reported in 1996 (11)
SCC 112; and M/s. D. Cawasji & Co. &
Ors. Vs. State of Mysore & Anr. reported
in AIR 1975 SC 813.

13. Similar view has been reiterated
by the Apex Court in Avinash Nagra Vs.
Navodaya Vidyalaya Samiti & Ors.
reported in (1997) 2 SCC 534 and by the
other Court in Uda Ram Vs. Central State
Farm & ors. reported in AIR 1998 Raj.
186; and M/s. Rajasthan Art Emporium
Vs. Rajasthan State Industrial and
Investment Corporation & Anr. reported
in AIR 1998 Raj. 277.

14. In the case of M/s. D. Cawasji &
Co. etc. (Supra), the Apex Court observed
as under:-

"Be that as it may, in the earlier
writ petitions, the appellants did not pray
for refund of the amounts paid by way of
cess for the years 1951-52 to 1965-66 and
they gave no reasons before the High Court
in these writ petitions why they did not
656 INDIAN LAW REPORTS ALLAHABAD SERIES
make the prayer for refund of the amounts
paid during the years in question. Avoiding
multiplicity
of
unnecessary
legal
proceedings should be an aim of the
Courts. Therefore, the appellants could not
be allowed to split up their claims for
refund and file writ petitions in this
piecemeal fashion. If the appellants could
have, but did not, without any legal
justification, claim refund of the amounts
paid during the years in question, in the
earlier writ petitions, we see no reason why
the appellants should be allowed to claim
the amounts by filing writ petitions again.
In the circumstances of this case, having
regard to the conduct of the appellants in
not claiming these amounts in the earlier
writ petitions without any justification, we
do not think, we would be justified in
interfering with the discretion exercised by
the High Court in dismissing the writ
petitions which were filed only for the
purpose of obtaining the refund....in view of
the above, the petition is liable to be
dismissed as not maintainable and it is
dismissed accordingly...."

15. Similarly, in the case of State of
U.P. & Anr. Vs. Labh Chand reported in
AIR 1994 SC 754, the Apex Court has held
as under:-

"This reason is not concerned
with the discretionary power of the Judge
or Judges of the High Court under Article
226 of the Constitution to entertain a
second writ petition whose earlier writ
petition was dismissed on the ground of
non-exhaustion of alternative remedy but
of such a Judge or Judges having not
followed the well established salutary rule
of judicial practice and procedure that an
order of a Single Judge Bench or a Larger
Bench of the same High Court dismissing
the writ petition either on the ground of
latches or non-exhaustion of alternative
remedy as well shall not be bye-passed by
a Single Judge Bench or Judges of a
Larger Bench except in exercise of review
or appellate powers possessed by it..... But
as the learned Single Judge constituting a
Single Judge Bench of the same Court, who
has in the purported exercise of jurisdiction
under Article 226 of the Constitution byepassed the order of dismissal of the writ
petition made by a Division Bench by
entertaining a second writ petition filed by
the respondent in respect of the subject
matter which was the subject matter of the
earlier writ petition, the question is,
whether the well established salutary rule
of
judicial
practice
and
procedure
governing such matters permit the learned
Single Judge to bye-pass the order of the
Division Bench on the excuse that High
Court has jurisdiction under Article 226 of
the Constitution to entertain a second writ
petition since the earlier writ petition of the
same person had been dismissed on the
ground of non-availing of alternative
remedy and not on merits.... Second writ
petition cannot be so entertained, not
because the learned Single Judge had no
jurisdiction to entertain the same, but
because entertaining of such a second writ
petition would render the order of the same
Court dismissing the earlier writ petition,
redundant and nugatory although not
reviewed by it in exercise of its recognized
power. Besides, if a learned Single Judge
could entertain a second writ petition of a
person respecting a matter on which his
first writ petition was dismissed in limine
by another Single Judge or a Division
Bench of the same Court, it would
encourage an unsuccessful writ petitioner
to go on filing writ petitions after writ
petition in the same matter, in the same
High Court and for it brought up for
consideration before one Judge after
7 All. Gagan Sharma Vs. State of U.P. & Ors.
657
another. Such a thing, if is allowed to
happen, it would result in giving full scope
and encouragement to an unscrupulous
litigant to abuse the process of the High
Court exercising its writ jurisdiction under
Article 226 of the Constitution in that any
order of any Bench of such Court refusing
to entertain a writ petition could be ignored
by him with impunity and the relief sought
in the same matter by filing a fresh writ
petition.
This
would
only
lead
to
introduction of disorder, confusion and
chaos
relating
to
exercise
of
writ
jurisdiction by Judges of the High Court,
for there could be no finality for an order of
the Court refusing to entertain a writ
petition. It is why the rule of judicial
practice and procedure that a second writ
petition shall not be entertained by the
High
Court
on
the
subject
matter
respecting that the writ petition of the same
person was dismissed by the same Court
even if the order of such dismissal was in
limine, be it on the ground of latches or on
the ground of non-exhaustion of alternative
remedy, has come to be accepted and
followed as salutary rule in exercise of writ
jurisdiction of the Court."
 (Emphasis added).

16. In the case of Burn & Co. Vs.
Their Employees, reported in AIR 1957
SC 38, the Apex Court has held as under:-

"That would be contrary to the
well-recognised principle that a decision
once rendered by a competent authority on
a matter in issue between the parties after a
full enquiry should not be permitted to be
re-agitated. It is on this principle that the
rule of res judicata enacted in Section 11,
Civil P.C. is based. That section is, no
doubt in terms in application to the present
matter, but the principle underlying it,
expressed in the maxim "interest rei
publicae ut sit finis litium", is founded on
sound public policy and is of universal
application. (Vide Broom's Legal Maxims,
Tenth Edition, page 218). 'The rule of res
judicata is dictated' observed Sir Lawrence
Jenkins C.J. in Sheoparasan Singh Vs.
Ramnandan Prasad Narayan Singh, 43 Ind.
App. 91: ILR 43 Cal. 694: (AIR 1916 PC
78) (C), by a wisdom which is for all time."

17. Therefore, in view of the above
referred judgments, it is abundantly clear
that even if the provisions of the Code of
Civil Procedure are not applicable in writ
jurisdiction, the principle enshrined therein
can be resorted to for the reason that the
principles, on which the Code of Civil
Procedure is based, are founded on public
policy and, therefore, require to be
extended and made applicable in writ
jurisdiction
also
in
the
interest
of
administration of justice. Any relief not
claimed in the earlier writ petition should
be deemed to have been abandoned by the
petitioner to the extent of the cause of
action claimed in the subsequent writ
petition and in order to restrain the person
from abusing the process of the Court, such
an order/course requires not only to be
resorted to but to be enforced.

18. In the case of Dr. Buddhi Kota
Subbarao Vs. K. Parasaran & Ors.,
reported in AIR 1996 SC 2687, the Apex
Court has observed as under:-

"No litigant has a right to
unlimited drought on the Court time and
public money in order to get his affairs settled
in the manner he wishes. However, access to
justice should not be misused as a licence to
file misconceived and frivolous petitions."

19. Similar view has been reiterated
by the Apex Court in the case of K.K.
658 INDIAN LAW REPORTS ALLAHABAD SERIES
Modi Vs. K.N. Modi & Ors., reported in
(1998) 3 SCC 573.

20. In Tamil Nadu Electricity Board
& Anr. Vs. N. Raju Reddiar & Anr.
reported in AIR 1997 SC 1005 the Apex
Court
held
that
filing
successive
misconceived and frivolous applications for
clarification, modification or for seeking a
review of the order interferes with the
purity of the administration of law and
salutary and healthy practice. Such a
litigant must be dealt with a very heavy
hand.

21. In Sabia Khan & ors. Vs. State
of U.P. & ors., reported in (1999) 1 SCC
271, the Apex Court held that filing totally
misconceived petition amounts to abuse of
the process of the Court and such litigant is
not required to be dealt with lightly.

22 In the case of Abdul Rahman
Vs. Prasoni Bai & Anr., reported in
(2003) 1 SCC 488, the Apex Court held
that wherever the Court comes to the
conclusion that the process of the Court is
being abused, the Court would be
justified in refusing to proceed further
and refuse the party from pursuing the
remedy in law.

23. Thus, in view of the above, the
second writ petition is not maintainable for
issuing a direction upon the respondent
authorities to treat the petitioner medically
fit in the selection on the post of Constable
Civil Police pursuant to the advertisement
dated 16th November, 2018, as the earlier
writ petition for the same relief stood
dismissed vide order dated 3rd August,
2021, wherein a Coordinate Bench of this
Court had found no error in the opinion of
the medical board as also the appellate
medical board.

24. The Full Bench Judgment of the
High Court of Karnataka relied upon by the
learned counsel for the petitioner in the
case of Abudul Razak, Amjadulla,
Abusali (Supra) is not applicable in the
case of the petitioner. The Full Bench of the
Karnataka High Court while deciding the
point no.1 in the said case has answered
that that a second writ petition based on the
very same grounds which were raised in the
first writ petition assailing the order of
detention is not maintainable on the
principles of res judicata. However, the Full
Bench has also clarified that a second writ
petition assailing the very same detention
order passed on fresh grounds or new
grounds that were not available when the
first writ petition was filed, is maintainable.
When as matter of fact in the present case,
the new grounds taken in the present
petition with respect to the fact that the
relevant rule does not take the cubitus
valgus as a medical deficiency, were
already available to the petitioner, while
filing earlier writ petition being Writ-A No.
12672 of 2020.

25. The judgment of the Apex Court
in the case of Madhvi Amma Bhawani
Amma (Supra) is also not applicable in the
case of the petitioner because the same
issue was already been decided against the
petitioner by a Coordinate Bench of this
Court vide order dated 3rd August, 2021
and no new issue has been pressed in this
second writ petition.

26. In view of the aforesaid, this
Court is of the opinion that this second writ
petition is not maintainable and is liable to
be dismissed on this ground alone.

27. This Court has also not found any
good ground to interfere in the present writ
petition on merits. Any Court of law or any
7 All. Gagan Sharma Vs. State of U.P. & Ors.
659
person cannot express any opinion about a
person whether he is healthy or unwell or
what disease he has. It is the Doctor, who is
an expert of that field, can diagnose the
disease and give opinion about the same.

28. A learned Single Judge of this
Court in the case of Diwakar Paswan Vs.
State of U.P. & 6 Others reported in 2021
(1) ADJ 454, wherein the learned Single
Judge has opined as follows:

"No material has been placed on
record, or otherwise referred, to suggest
that the opinion of the Medical Board or
the Appellate Medical Board could in any
manner be said to be casual, inchoate,
perfunctory or vague. We are therefore of
the view that the Medical Board being an
expert body, its opinion is entitled to be
given due weight, credence and value.

A similar view has been taken in
recent judgments of this Court in Vivek
Kumar v. State of U.P.1 and Md. Arshad
Khan v. State of U.P.2 wherein it was held
that matters relating to medical evaluation
of candidates in a recruitment process
involve expert determination and it may not
be desirable to supplant the procedure
prescribed as laid down under the relevant
recruitment rules and taking any other view
may have the effect of derailing the
recruitment process.

Dealing
with
an
identical
challenge this Court in Prakash Singh Vs.
State of U.P.3 held:

"The petitioner essentially calls
upon the Court to rule on and evaluate the
correctness of the reports submitted by
experts in their fields. These submissions
and reliefs have evidently been sought and
addressed without bearing in mind the
contours of the writ jurisdiction. The
opinion of a Medical Board is the outcome
of an evaluation by experts in the subject.
Except in exceptional situations such as
where a finding of unfitness is returned in
violation or disregard of the standards
prescribed or on grounds which may call
upon this Court to consider the correctness
of the opinion on a legal plain, it would be
wholly inappropriate for this Court to
either interfere with the same or substitute
its own opinion with respect to the medical
fitness of a particular candidate. Treading
this path may also cause serious prejudice
and jeopardise the recruitment process
itself. The Court is constrained to enter this
note of caution conscious of its own
limitations with respect to adjudging the
medical fitness or otherwise of a particular
candidate. In the ultimate analysis, it would
be pertinent to emphasise that such
requests must be entertained with due care
and circumspection."

The Delhi High Court in a recent
decision handed down in the matter of Km
Priyanka Vs. Union of India cautioned
against interfering with the opinion formed
by medical boards constituted for selection
of members of the armed forces on the
strength of certificates issued by private or
civilian doctors in the following terms: -

"8. We have on several occasions
observed that the standard of physical
fitness for the Armed Forces and the Police
Forces is more stringent than for civilian
employment. We have in Priti Yadav Vs.
Union of India 2020 SCC Online Del
951;Jonu Tiwari VS. Union of India 2020
SCC Online Del 855; Nishant Kumar Vs.
Union of India SCC Online Del 808; and
Shravan Kumar Rai Vs. Union of India
2020 SCC Online Del 924 held that once
no mala fides are attributed and the
660 INDIAN LAW REPORTS ALLAHABAD SERIES
doctors of the Forces who are well aware
of the demands of duties of the Forces in
the terrain in which the recruited personnel
are required to work, have formed an
opinion that the candidate is not medically
fit for recruitment, opinion of private or
other government doctors to the contrary
cannot be accepted inasmuch as the
recruited personnel are required to work
for the Forces and not for the private
doctors or the government hospitals and
which medical professionals are unaware
of the demands of the duties of the Forces."

Although learned counsel for the
petitioner has placed reliance upon certain
interim orders passed by learned Judges of
the Court and which stand appended as
Annexure 7 to the writ petition, the Court
notes that none of those interim orders
notice or deal with the principles as
elucidated by the Division Bench in Rahul
or the decisions in Manish Kumar and
Prakash Singh noticed above.

It becomes pertinent to note that
the opinions formed by the Medical and
Review Boards have not been assailed by
the petitioner on the ground of mala fides.
A review of those decisions is sought solely
on the basis of a contrary opinion
rendered by a doctor of a government
hospital. Permitting a reopening of a
medical examination conducted by the
respondents solely on that basis would set
a dangerous precedent especially when the
Court by virtue of its inherent limitations
would be wholly unequipped to undertake
a comparative analysis or evaluation of
competing medical opinions. Medical
fitness
is
a
subject
best
left
for
determination by experts and should not
be lightly interfered with unless it be
shown to be contrary to the standards
prescribed or otherwise be liable to be
assailed on other judicially manageable
parameters.

Quite apart from the consistent
view taken by Courts on this question
regard must also be had to the fact that
the medical examination in the present
case was undertaken in accordance with
the provisions made in the statutory rules.
Those Rules confer finality upon the
opinions formed by the Medical Boards
subject to an appeal against the same
before a Review Medical Board. Those
Rules do not envisage or contemplate a
challenge to those reports based upon
reports and opinions privately obtained by
candidates. Permitting such a course of
action would not only be contrary to the
Rules which apply and bind the candidate
but also result in derailing the recruitment
process itself"

 (Emphasis added)

29. This Court, therefore, is in
respectful agreement with the decision
taken by the learned Single Judge in the
case of Diwkar Paswan (Supra) and finds
no good ground to entertain the present writ
petition.

30. A Division Bench of this Court in
the case of State of U.P. and others Vs.
Bhanu Pratap Rajput, reported in 2021
(2) ADJ 451, has observed as follows:

"16. The medical examination by
the Medical Board consisting of medical
experts under Rule 15(g) cannot be said to
be inferior to the physical standard test
conducted by a team of non-experts.
Therefore, we find that the finding recorded
by the learned Single Judge in the
impugned judgment that the assessment of
physical
standard
by
the
committee
7 All. Anoop Kumar Singh & Anr. Vs. State of U.P. & Ors.
661
constituted under Appendix-2 to the Rules,
2015 is liable to be preferred over the
determination made by the Medical Board
in terms of the Appendix-3, is not
sustainable. Opinion of a committee of
non-experts under Rule 15(d) for physical
test of a candidate cannot override the
opinion of the team of experts, i.e.
Medical Board under Rule 15(g) of the
Rules."

31. This Court also agrees with the
observations made by the Division Bench
of this Court in the aforesaid case.

32. Lastly, this Court finds substance
in the submission made by the learned
Standing Counsel that this second writ
petition filed for the same relief cannot be
entertained by this Court. For same relief,
second writ petition is not maintainable.
The proper remedy available to the
petitioner was to file a recall application in
his earlier writ petition referred to above or
to file a Special Appeal against the
judgment and order passed in the said writ
petition.

33. The present writ petition is devoid
of merits, and, accordingly, dismissed.

34. There shall be no order as to costs.
----------
(2022)07ILR A661
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.05.2022

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Writ A No. 3146 of 2022

Anoop Kumar Singh & Anr. ...Appellants
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellants:
Sri Abhay Kumar Singh

Counsel for the Respondents:
C.S.C., Sri Gagan Mehta

A. Service Law - U.P. Higher Education
Service
Commission
(Procedure
for
Selection of Teachers) Regulations, 2014 -
Regulation 12 - The examiners as well as
experts being an independent body, their
decision cannot be interfered as the same is
given
after
proper
consultation
and
research. In case of any mistake, the benefit of
change in the answer key is given to each and
every candidate, after following due process. The
change in the tentative answer key can be made
only after the expert opinion, the Commission
takes into consideration the objections as raised by
the candidates and after placing the same before
the experts, the answer key is uploaded. The
deletion of answer can be possible only after the
experts opinion and benefit of deleted question is
given to each and every candidate, in such a
manner
that
there
is
no
discrepancy
or
discrimination with any candidates. (Para 12)

B. Sympathy or compassion does not play
any role in the matter of directing or not
directing re-evaluation of an answer
sheets. The law is well settled that the
burden is on the candidates, not only to
demonstrate that the key answer is
incorrect but also to show that it is a
glaring mistake which is totally apparent
and no inferential process or reasoning is
required to show that the key answer is
wrong. (Para 22)

Even the policy decision incorporated in the
Rules/Regulations
providing
for
rechecking/verification/re-evaluation cannot be
challenged unless there are grounds to show
that the policy itself is in violation of some
statutory provision. (Para 20)

In the present case, the final key was published
on
11.02.2022
only
after
taking
into