# Khurkhur and another v. Union of India and others 408 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

- **Citation:** (2013) 1 ILRA 407
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-03-14
- **Bench:** Shiva Kirti Singh, Chief Dilip Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/khurkhur-and-another-v-union-of-india-and-others-408-indian-law-reports-42517
- **Pages:** 4

## Headnote

Constitution of India,Art.-226- Principle
of
Constructive
Res-judicata-
scope
explained-first writ petition dismissed
without liberty to file fresh-second writ
petition seeking direction to decide
representation-held-not maintainable.

Held: Para-8

In our considered view, a party is required
to take all available grounds and raise all
available pleas available to him and if he
fails to do so, the principle of constructive
res judicata comes into play. Otherwise
also, only by finding out better or more
grounds, the legal position would not
change because there is no scope to take a
different view than what was taken by this
Court earlier in the judgments noted above
as well as in another Division Bench
Judgement in the case of Ashok Pratap
Singh vs. State of U.P. and others, (2004) 2
UPLBEC 1909.

Case Law discussed:
AIR 1979 SC 1328; (1999) 4 SCC 149; (1997)2
SCC 534; (1999)1 UPLBEC 513; AIR 1987 SC
88; (2004) 2 UPLBEC 1909

## Text

1 All Mahip Narayan Singh Vs. State of U.P. and others
407

3. It is further stated in Para 36 as an
alternative argument that the petitioner's
engagement
was
in
a
stop
gap
arrangement as A.B.R.C. (English) till a
regular selection is made in terms of the
Government Order applicable. It has been
stated that no regular selection has been
held so far. He contends that even
otherwise the petitioner should be made to
continue till such arrangement is made
and therefore the impugned order is
erroneous.

4. Having heard Sri Tewari, the
engagement
of
a
Block
Resource
Coordinator or an Assistant is governed
by
the
provisions
of
the
relevant
Government Orders one of them being
dated 2nd February, 2011 copy whereof
has been filed as Annexure 1 to the writ
petition.

5. It is admitted to the petitioner that
he was never selected or appointed in
terms of the procedure prescribed under
the
said
Government
Order.
His
appointment
by
the
District
Basic
Education Officer, Mirzapur was by way
of a stop gap arrangement vide order
dated 22nd July, 2011 till selections are
held in accordance with the same.

6. I have perused the appointment
order which categorically recites that the
petitioner
was
being
appointed
till
selections are held. In the aforesaid
circumstances, the appointment of the
petitioner does not appear to have been
made in accordance with the prevalent
rules. The Government Order nowhere
indicates that the Basic Education Officer
has the authority to make an appointment
by way of a stop gap arrangement. In the
circumstances,
appointment
of
the
petitioner does not appear to have been
made in accordance with the Government
Order.

7. The issue therefore as to whether
the District Magistrate had issued a
direction or not to the Basic Education
Officer becomes purely academic and
irrelevant on the facts of the present case
when the appointment cannot be sustained
on merits. In view of the reasons given
hereinabove the discontinuance of the
petitioner therefore does not suffer from
any
infirmity,
inasmuch
as,
fresh
selections have to be held by the authority
in accordance with the said Government
Order. Accordingly, I do not find any
reason to interfere with the impugned
order.

8. A feeble opposition had been
raised to the qualification of the petitioner
that he is a science graduate and therefore
he could not have been appointed as a
coordinator in the subject of English.
Since the petitioner's very appointment is
not founded on the procedure prescribed,
therefore, it is not necessary to go into
this question.

9. The writ petition is dismissed
with the said observations.
---------
 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.03.2013.

BEFORE
THE HON'BLE SHIVA KIRTI SINGH, CHIEF
JUSTICE
THE HON'BLE DILIP GUPTA, J.

Civil Misc. Writ Petition No. 13702 Of 2013

Khurkhur and another
 ...Petitioner
Versus
Union of India and others ...Respondents
408 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

Counsel for the Petitioner:
Sri Risu Mishra
Sri Umakant

Counsel for the Respondents:
Sri Sudhir Bharti, Sri M.K. Sharma
Sri M.P. Sharma

Constitution of India,Art.-226- Principle
of
Constructive
Res-judicata-
scope
explained-first writ petition dismissed
without liberty to file fresh-second writ
petition seeking direction to decide
representation-held-not maintainable.

Held: Para-8

In our considered view, a party is required
to take all available grounds and raise all
available pleas available to him and if he
fails to do so, the principle of constructive
res judicata comes into play. Otherwise
also, only by finding out better or more
grounds, the legal position would not
change because there is no scope to take a
different view than what was taken by this
Court earlier in the judgments noted above
as well as in another Division Bench
Judgement in the case of Ashok Pratap
Singh vs. State of U.P. and others, (2004) 2
UPLBEC 1909.

Case Law discussed:
AIR 1979 SC 1328; (1999) 4 SCC 149; (1997)2
SCC 534; (1999)1 UPLBEC 513; AIR 1987 SC
88; (2004) 2 UPLBEC 1909
(Delivered by Hon'ble Shiva Kirti Singh,
Chief Justice)

1. Heard learned counsel for the
petitioners and Mr. M.P. Sharma, learned
counsel appearing for the respondents no.
1 and 2.

2. On 12.3.2013, we had indicated
the preliminary objection taken by learned
counsel for respondents no. 1 and 2 that
this second writ petition by the petitioners
is not maintainable in view of facts
disclosed in paragraph 34 of the writ
petition. In paragraph 34, the petitioners
have stated that earlier Writ Petition No.
60061 of 2012 (Khurkhur and another
vs. Union of India and others) was filed
challenging
the
proceeding
of
compensation but due to faulty pleadings,
it was not pressed and withdrawn.
Consequently, it was dismissed as not
pressed on 21.11.2012.

3. After the dismissal of the earlier
writ petition, the petitioners claim to have
made
another
representation
before
respondent no. 3 on 27.11.2012 and it has
been alleged that no decision is being
taken by respondent no. 3 on that
representation filed for setting aside the
award on various grounds.

4. The prayer in this writ petition is
for a direction to the Special Land
Acquisition
Officer
to
dispose
of
petitioners'
representation
dated
27.11.2012 and also for issuance of a
mandamus to award compensation on the
basis of market value of the land and on
some other principles along with interest.
A prayer has also been made for a writ of
certiorari to quash the award dated
6.6.2011.

5.

Learned
counsel
for
the
petitioners
has
submitted
that
the
preliminary objection has no substance
because no issue was decided while
dismissing the petitioners' earlier writ
petition as not pressed vide order dated
21.11.2012. He has placed reliance upon
the judgement of the Supreme Court in
the case of Hoshnak Singh vs. Union of
India and others, AIR 1979 SC 1328
and another judgement in the case of
Ferro Alloys Corporation Ltd. and
1 All Khurkhur and another Vs. Union of India and others
409
another vs. Union of India and others,
(1999) 4 SCC 149.

6. In reply, learned counsel for the
respondents has submitted that principle
of res judicata will no doubt arise only
when issues are determined and are
decided by the Court in a previous
litigation between the same parties, but he
has
submitted
that
the
bar
to
maintainability
of
subsequent
writ
petition, when no leave of the Court was
sought at the time of withdrawal or
dismissal of the first writ petition, is on
account of public policy and principles
flowing from Rule 1 of Order XXIII of
the Code of Civil Procedure, 1908
(hereinafter referred to as 'CPC'). In
support of this contention, he has placed
reliance upon a judgement of the Supreme
Court in the case of Avinash Nagra vs.
Navodaya Vidyalaya Samiti and others,
(1997) 2 SCC 534. In paragraph 13, it has
been held that where the first writ petition
challenging the order of termination of
service was withdrawn without grant of
liberty by the Court to file a second writ
petition, the second writ petition for that
very purpose would attract the principle
of constructive res judicata and would,
therefore, not be maintainable. He has
further placed reliance upon a judgement
of this Court in the case of Shyam
Narain Dwivedi vs. The State of Uttar
Pradesh and others (1999) 1 UPLBEC
513. In paragraph 29 of this judgement,
reliance was placed upon principle of
Order XXIII of CPC and it was held that
this principle is applicable in writ
proceedings, by way of public policy, if
the writ petition is withdrawn without the
leave or liberty. In this judgement, learned
Single Judge considered large number of
earlier judgments including Division
Bench Judgement of this Court taking
similar view and also judgement of the
Supreme Court in the case of Sarguja
Transport Service vs. State Transport
Appellate
Tribunal,
Gwalior
and
others, AIR 1987 SC 88. Paragraph 9 of
the judgement in the case of Sarguja
Transport Service (supra) clinches the
legal issue that is clearly in favour of
preliminary objection raised on behalf of
respondents.

7.

Learned
counsel
for
the
petitioners drew our attention to several
grounds indicated in the present petition
for claiming the reliefs noted above. The
grounds
include
challenge
to
the
provisions of Sections 20E (1), 20F (4)
and
20F
(6)
of
The
Railways
(Amendment) Act, 2008. It has been
submitted that vires of sub-section was
not challenged as a ground for claiming
the reliefs in the earlier writ petition.

8. In our considered view, a party is
required to take all available grounds and
raise all available pleas available to him
and if he fails to do so, the principle of
constructive res judicata comes into play.
Otherwise also, only by finding out better
or more grounds, the legal position would
not change because there is no scope to
take a different view than what was taken
by this Court earlier in the judgments
noted above as well as in another Division
Bench Judgement in the case of Ashok
Pratap Singh vs. State of U.P. and
others, (2004) 2 UPLBEC 1909.

9. In view of aforesaid discussion,
the writ petition is dismissed on the
preliminary
ground
as
not
being
maintainable because no liberty was
sought for filing another writ petition by
the petitioners and nor was it granted
410 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
when their earlier writ petition was
dismissed as not pressed.
---------
 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.03.2013

BEFORE
THE HON'BLE AMRESHWAR PRATAP SAHI,J.

Civil Misc. Writ Petition No. 15106 Of 2013

Smt. Reeta Singh
 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Ashok Khare
Sri Deepak K. Jaiswal

Counsel for the Respondents:
C.S.C., Sri B.P.Singh

Constitution
of
India,
Art.-226.-
compassionate appointment-claimed by
divorced daughter-whether the divorces
'Daughter' within definition of familyview taken in Kusum Devi-deferredmatter
referred
to
larger
BenchSecretary may take appropriate steps for
necessary amendment if desired.

Held: Para-11

A divorced daughter is not included in
the
list
of
dependants.
In
such
circumstances by including a divorced
daughter also in the Rules would be
increasing the ambit of the Rules, which
will fall within the realm of legislation
and cannot be stretched by judicial
interpretation.
Accordingly,
the
reasoning given in the paragraphs 9, 10
and 11 of the judgment in the case of
Smt. Kushum Devi (supra) may require
reconsideration as I am unable to
respectfully subscribe to the reasoning
given in the aforesaid judgment.

(Delivered by Hon'ble Amreshwar Pratap
Sahi, J)

1. Heard learned counsel for the
petitioner Sri Ashok Khare, Senior
Counsel, learned Standing for Respondent
No. 1 and Sri V.P. Singh for the
Respondent Nos. 2 to 5.

2. The petitioner is the daughter of
late Shyam Dulari Singh her mother, who
was an Assistant Teacher in primary
school Kakrahi and died in harness on
12th September, 2009. The petitioner's
father had already died leaving behind her
and her mother.

3.

The
petitioner
claimed
compassionate appointment on the ground
that she is a divorced lady and was
dependent on her mother.

4. It is undisputed that the petitioner
was divorced on a date, later than the
death of her mother in 2010. The
petitioner earlier filed Writ Petition No.
35687 of 2012 which was disposed of
with a direction upon the Respondent No.
5 to decide the matter of her appointment
on compassionate grounds.

5. Vide order dated 25.7.2012, the
District Basic Education Officer rejected
the representation of the petitioner on the
ground that a divorced daughter does not
fall within the definition of a dependant.
A copy of the order impugned has been
annexed as Annexure No. 7 to the writ
petition.

6. Sri Khare has relied upon on the
decision in the case of Smt. Kushum Devi
Vs. State of U.P. and others (2001) Vol.3
Education and Service cases Page 1283 to
contend that a divorced daughter would