# Smt. Gopa Bahadur v. State of U.P. & Ors

- **Citation:** (2023) 4 ILRA 187
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-17
- **Case number:** Writ-A No. 2330 of 2023
- **Bench:** Suneet Kumar, Rajendra Kumar-Iv
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-gopa-bahadur-v-state-of-u-p-ors-50091
- **Pages:** 3

## Headnote

(A) Civil Law - Maintainability of second
writ petition - Code of Civil Procedure ,
1908 - Order 2 Rule 2 - Suit to include the
whole claim - while filing a petition or a
suit, whole of the claim, which the
plaintiff or the petitioner is entitled to
make in respect of a cause of action - shall
be required to be added failing which he
shall not afterwards be entitled to sue in
respect of the portion of the omitted or
relinquished claim - Explanation IV of
Section 11 - any matter which might and
188 INDIAN LAW REPORTS ALLAHABAD SERIES
ought to have been made a ground of
defence or attack in such former suit or
petition under Article 226 - shall be
deemed to have been a matter directly or
substantially in issue in such suit or
proceedings.(Para - 6)

Petition filed for same cause of action -
Petitioner foregone her claim and right - to
challenge women reservation in earlier writ
petition - issue and relief not claimed as an
alternative. (Para - 5,10)

HELD:-C.P.C. is based on public policy and
should be extended and made applicable in writ
jurisdiction. Any relief not claimed in the earlier
writ petition should be deemed to have been
abandoned. Second writ petition for same cause
of action not maintainable. (Para - 11)

Writ Petition dismissed. (E-7)

List of Cases cited:

## Text

4 All. Smt. Gopa Bahadur Vs. State of U.P. & Ors.
187
the petitioner or grant of the same cannot
dis-entitle the petitioner for grant of
maternity benefit. Maternity benefit and
Child Care Leave both operate in different
fields and are mutually exclusive. The Apex
Court in a recent case reported in AIR 2022
SC 4108 (Deepika Singh versus Central
Administrative Tribunal and others) held
that independent of the grant of maternity
leave, a women is also entitled to the grant of
Child Care Leave for taking care of her two
eldest surviving children whether for rearing
or for looking after any of their needs, such as
education, sickness and the like. Child Care
Leave can be availed of not only at the point
when the child is born but at any subsequent
period. Both constitute distinct entitlements.
A purposive interpretation is required to be
adopted. The object and intent of the grant of
maternity leave would stand defeated. The
grant of maternity leave is intended to
facilitate the continuance of women in the
work place. It is a harsh reality that but for
such provisions many women would be
compelled by social circumstances to give up
work on the birth of the child if they are not
granted leave and other facilitative measures.
No employer can perceive child birth as
detracting from the purpose of employment.
Child birth has to be construed in the context
of employment as a natural incident of life
and the provisions of the Maternity Benefit
Act are required to be construed in that
perspective.

20. This Court is of the opinion that the
District Basic Education Officer, Etah while
rejecting the claim of the petitioner has
overlooked the provisions of Maternity
Benefit Act, 1961. In view of above, the
impugned orders dated 14.11.2022 and
25.11.2022 passed by the Respondent No.4,
District Basic Shiksha Adhikari, Etah is not
sustainable in the eyes of law and are set
aside. The writ petition is allowed.

21. The District Basic Education
Officer, Etah is directed to pass fresh
orders keeping in mind the provisions of
the Maternity Benefit Act, 1961, within a
period of two weeks from the date of
production of certified copy of this order.

22. The District Basic Education
Officer, Etah is further directed to release
the arrears of salary and pay the salary
month to month to the petitioner as and
when the same falls due.
----------
(2023) 4 ILRA 187
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.02.2023

BEFORE

THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE RAJENDRA KUMAR-IV, J.

Writ-A No. 2330 of 2023

Smt. Gopa Bahadur ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Kamlesh Kumar Yadav, Sri Vijay Kumar
Srivastava, Sri Ashok Khare (Sr. Advocate)

Counsel for the Respondents:
C.S.C., Sri Ashish Mishra, Sri Chandan
Sharma

(A) Civil Law - Maintainability of second
writ petition - Code of Civil Procedure ,
1908 - Order 2 Rule 2 - Suit to include the
whole claim - while filing a petition or a
suit, whole of the claim, which the
plaintiff or the petitioner is entitled to
make in respect of a cause of action - shall
be required to be added failing which he
shall not afterwards be entitled to sue in
respect of the portion of the omitted or
relinquished claim - Explanation IV of
Section 11 - any matter which might and
188 INDIAN LAW REPORTS ALLAHABAD SERIES
ought to have been made a ground of
defence or attack in such former suit or
petition under Article 226 - shall be
deemed to have been a matter directly or
substantially in issue in such suit or
proceedings.(Para - 6)

Petition filed for same cause of action -
Petitioner foregone her claim and right - to
challenge women reservation in earlier writ
petition - issue and relief not claimed as an
alternative. (Para - 5,10)

HELD:-C.P.C. is based on public policy and
should be extended and made applicable in writ
jurisdiction. Any relief not claimed in the earlier
writ petition should be deemed to have been
abandoned. Second writ petition for same cause
of action not maintainable. (Para - 11)

Writ Petition dismissed. (E-7)

List of Cases cited:

1. Gramodyog Welfare Sanstha Vs St. of U.P. ,
(2008) 1 SCC 428

2. C.I.T., Bombay Vs T.P. Kumaran , (1996) 10
SCC 561

3. U.O.I. Vs Punnilal , (1996) 11 SCC 112

(Delivered by Hon'ble Suneet Kumar, J.
&
Hon'ble Rajendra Kumar-IV, J.)

1. Heard Shri Ashok Khare, learned
Senior Advocate assisted by Shri Kamlesh
Kumar Yadav and Shri Chandan Sharma,
lerned counsel appearing for the respondent
Nos. 2 and 3 and learned Standing Counsel
for the State-respondent.

2. Petitioner by the instant writ
petition, inter alia, seeks the following
relief:

"To issue a writ, order or
direction of a suitable nature commanding
the respondent to forthwith recommend one
additional candidate under the 20%
reservation for women in pursuance to
"Direct Recruitment" to the Uttar Pradesh
Higher Judicial Service - 2018 (Part-II)
within a period to be specified by this
Hon'ble Court."

3. It is not in dispute that petitioner
had earlier approached this Court by filing
a writ petition being Writ - A No. 2650 of
2022 (Smt. Gopa Bahadur Vs. High Court
of Judicature at Allahabad and Another).
The aforesaid writ petition came to be
dismissed vide order dated 4 April 2022.

4. On perusal of the aforenoted order,
it appears that a direction was sought by the
petitioner that the candidature of the
petitioner be considered under Scheduled
Caste category. The Court rejected the
contention as in the application form,
petitioner
applied
under
the
"General/Unreserved Category". Petitioner
in the present writ petition has raised the
correctness of twenty percent women
reservation under horizontal quota.

5. Learned counsel appearing for the
respondent Nos. 2 and 3 submit that the
second
writ
petition
would
not
be
maintainable as the petitioner admittedly
had foregone her claim and right to
challenge the women reservation in the
earlier writ petition. They submit that the
principle enshrined under Order 2 Rule 2 of
the Civil Procedure Code, 1908(for short
''C.P.C.'), would apply in the matter.

6. Order 2, Rule 2 of C.P.C., provides
that while filing a petition or a suit, whole
of the claim, which the plaintiff or the
petitioner is entitled to make in respect of a
cause of action, shall be required to be
added failing which he shall not afterwards
4 All. Union of India & Ors. Vs. Amit Kumar Mishra
189
be entitled to sue in respect of the portion
of the omitted or relinquished claim.
Similarly, Explanation IV of Section 11 of
the C.P.C., also provides that any matter
which might and ought to have been made
a ground of defence or attack in such
former suit or petition under Article 226,
shall be deemed to have been a matter
directly or substantially in issue in such suit
or proceedings.

7. The Hon'ble Supreme Court has
also, on more than one occasion deprecated
the practice of filing multiple writ petitions
on same or similar cause of action.
Reference in this regard can be made to the
judgment rendered in the case of Udyami
Evam
Khadi
Gramodyog
Welfare
Sanstha Vs. State of U.P. The question is
"Whether this Court should entertain
second petition particularly in view of the
defects pointed out above? The answer to
the aforesaid question, in the considered
view of this Court, has to be negative."

8. Supreme Court in Commissioner
of Income Tax, Bombay Vs. T.P.
Kumaran2; Union of India Vs. Punnilal,
observed as under:

"............ 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 nonexhaustion of alternative remedy, has come to
be accepted and followed as salutary rule in
exercise of writ jurisdiction of the Court."

9. Therefore, in view of the above
referred authorities, it is abundantly clear
that even if the provisions of the C.P.C. are
not applicable in writ jurisdiction, the
principle enshrined therein can be resorted
to for the reason that the principles, on
which the C.P.C. 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.

10. On specific query, learned counsel
for the petitioner does not dispute that the
writ petition arises from the same cause of
action and the issue and relief being
claimed in the present writ petition could
have been raised in the alternative in the
earlier writ petition.

11. In view thereof, the second writ
petition for the same cause of action is not
maintainable, accordingly, dismissed.
----------
(2023) 4 ILRA 189
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.02.2023

BEFORE

THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE RAJENDRA KUMAR-IV, J.

Writ-A No. 2805 of 2023

Union of India & Ors. ...Petitioners
Versus
Amit Kumar Mishra ...Respondent

Counsel for the Petitioners:
Sri Pranay Krishna