The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.A. No. 765 of 2023 … Appellant Dr. Prasanta Kumar Swain, aged about 48 years, S/o. Late Sri Sankhali Swain, at present working at Associates Professor & H.O.D. in the Department of Dentistry, QR Colony, VSSIMSAR, Burla, PIN-768017, Dist- Sambalpur. No.3R/54, Doctors‟ Mr. Prajit Kumar Pradhan, Advocate -versus- 1. State of Odisha, represented through its Commissioner-cum-Secretary, Health and Family Welfare Deptt., Secretariat Building, Bhubaneswar, Dist-Khurda. Public Service The Odisha 2. Commission, represented its Secretary, 19, Dr. P.K. Parija Road, P.O. Buxibazar, Dist-Cuttack, PIN-753001. through … Respondents 3. The Director, VSSIMSAR, Ayurbihar, At/P.O./P.S. Burla, Dist-Sambalpur, PIN- 768017. 4. The Director of Medical Education and of Departments Training, Heads Building, At/P.O. Bhubaneswar, Dist- Khurda, PIN-751001. Principal 5. Secretary, General Administration and Public Grievance Department, Khurda. 6. Dr. Choubarga Naik, aged about 43 years, S/o. Nabin Naik, At-Ainlasari, P.O. Samalaichuan, P.S. Dungripali, Dist- Sonepur, At present D-104, Balaji Green Page 1 of 9 Apartment, Near Tangarpali Over bridge, Ainthapali, Sambalpur, Odisha,
Legal Reasoning
Mr. B. Pujari, Advocate Mr. S.K. Purohit, Advocate (OP No.6) CORAM: HON’BLE THE CHIEF JUSTICE HON’BLE MISS JUSTICE SAVITRI RATHO
Decision
ORDER 29.10.2024 The matter is taken up through Hybrid mode. Order No. 10. 2. Opposite Party No.5 in W.P.(C) No.31258 of 2020 has put to challenge, in the present intra-court appeal, an order dated 31.03.2023 passed in the said case whereby the writ application has been disposed of with a direction to the opposite party No.2 to take a decision on the grievance of the writ petitioner-respondent No.6 within a period of two months from the date of the said order. 3. The writ petition was filed seeking the following relief: “It is therefore, most respectfully prayed that your Lordships may graciously be pleased to: Admit the writ petition. And Issue writ Mandamus or any other appropriate writ Direction(s) or Order(s) to the opposite party No.2 and 1 to redraw the Merit List published in Notice No.4804/PSC, dtd. 30.07.2016 and consequential Notification No.2310, dtd 03.11.2016 the recruitment of Assistant Professor in the discipline of Dentistry in VIMSAR, Burla pursuant to Advt. No.17 of 2015 as per law.” for Page 2 of 9 4. Assailing the impugned order, learned counsel appearing on behalf of the appellant has, with reference to the statements made in the writ appeal, submitted that suppressing the facts regarding previous filings of the writ petitions in relation to the same dispute, the present writ application was filed and, therefore, the writ petition deserved to be dismissed on that ground alone. 5. We have heard learned counsel appearing on behalf of the appellant and learned counsel appearing on behalf of the respondents including respondent No.6. I 6. It is not in dispute that pursuant to an advertisement No.17 of 2015-16 issued by the Odisha Public Service Commission (OPSC) for the post of Assistant Professor in Dentistry of VSSIMSAR, Burla, the appellant and respondent No.6 had applied and both of them were recommended. Whereas the appellant was placed at Sl.No.1 in the merit list, respondent No.6 was placed at Sl.No.2. Pursuant to the said selection, both of them had joined. 7. Thereafter, respondent No.6 filed a writ petition before this Court giving rise to W.P.(C) No.12918 of 2017 challenging the merit position of the appellant and sought a direction to redraw the merit list. Parties appeared in that case. The OPSC refuted the claim of respondent No.6. For the reasons best known, the respondent No.6 sought withdrawal of the writ petition and, accordingly, the same was Page 3 of 9 dismissed as withdrawn by an order dated 21.08.2018. Pending the said writ petition, respondent No.6 filed another writ petition before this Court giving rise to W.P.(C) No.12602 of 2018 to consider his representation in relation to the same selection process. The said writ petition stood disposed of as withdrawn with a liberty to file representation before the appropriate forum. 8. Seeking similar relief, respondent No.6 approached the Odisha Administrative Tribunal, Cuttack Bench, Cuttack, he filed another O.A. No.2350(C) of 2018 seeking a direction to the Government to consider his representation regarding the same selection process. After abolition of the Tribunal, the petitioner filed writ petition vide W.P.(C) No.1277 of 2020 and W.P.(C) No.1279 of 2020 which were disposed of allowing the petitioner to make application before the Registry of the Tribunal for transfer of both the cases to this Court. Later, one of the applications stood transferred to this Court and came to be registered as W.P.(C) (OAC) No.2350 of 2018. Respondent No.6 filed yet another writ petition i.e. the present writ petition with the same prayer which he had earlier made in W.P.(C) No.31258 of 2020 without disclosing the fact that he had earlier moved before this Court for the same prayer. 9. The OPSC filed its counter affidavit refuting the allegations of respondent No.6 and questioned the maintainability of the writ petition on the ground of filing of earlier writ applications. It is also noteworthy that the petitioner had approached the Supreme Court for early listing of the writ petition i.e. W.P.(C) No.31258 of 2020 which was dismissed by an order dated 08.10.2021 passed in Page 4 of 9 SLP (C) No.15441 of 2021. WPC (OAC) No.2350 of 2018 was disposed of on 21.09.2022. 10. Learned counsel appearing on behalf of the appellant has submitted that the impugned order has been passed by the learned Single Judge for consideration of the same representation in relation to which the order dated 21.09.2022 was passed in W.P.(C) (OAC) No.2350 of 2018. He has argued that earlier, the present writ petition was disposed of as infructuous by an order dated 01.11.2022. The petitioner filed a review application being RVWPET No.315 of 2022 which was disposed of vide order dated 23.11.2022 permitting the petitioner to file an appropriate application in accordance with law. Thereafter, he filed an interlocutory application for recall of the order which was allowed on 30.11.2022. The writ petition thus stood restored and later came to be disposed of by the impugned order. 11. Learned counsel appearing for the appellant has also argued that the time of hearing on 20.02.2023 a question of maintainability of the writ petition was raised on the ground of delay. He submits that the learned Single Judge, however, instead of dismissing the writ petition on the ground that respondent No.6 had been misusing the process of the Court, disposed of the writ petition with a direction to take a decision on his representation dated 24.02.2018. He has argued that a writ petition which deserved to be dismissed for suppression of material facts has been disposed of with a direction to consider the case of the respondent. He has relied on the Supreme Court’s decisions in the case of M/s. Prestige Lights Ltd. Vs. State Bank of India reported in (2007) SCC 449 and Page 5 of 9 Udyami Evam Khadi Gramodyog Welfare Sanstha and Another vs. State of U.P. and Others reported in (2008) 1 SCC 560 to submit that the writ petition ought to have been dismissed. 12. Learned counsel appearing on behalf of respondent No.6 has submitted that W.P.(C) No.12918 of 2017 was filed through another advocate which was withdrawn in view of the preliminary objection of maintainability taken by the opposite parties in that case. He has also submitted that W.P.(C) No.12602 of 2018 was also filed, not through the present set of lawyers. Further, a learned senior counsel was approached in this case, through whom an application was filed before the Tribunal but the said senior counsel died. He has also submitted that when the issue of promotion to the post of Associate Professor cropped up, the present writ petition was filed. He has argued that the failure on the part of respondent No.6 to make statement as regards filing of previous writ petition is a technical suppression of fact, which cannot be termed as suppression of relevant facts and abuse of judicial process. 13. After having noticed relevant facts and submissions noted above, it is an admitted position that the petitioner did not disclose filing of the previous writ applications in W.P.(C) No.31258 of 2020. Conduct of respondent No.6 in filing one application after the another without disclosing the same in the writ petition which came to be disposed of by the impugned order cannot be countenanced. Failure on the part of respondent No.6 to disclose the facts regarding earlier filing of the writ petition seeking same/similar relief, in the Courts opinion, amounts to intentional suppression of material facts. Page 6 of 9 The Supreme Court in the case of M/s. Prestige Lights Ltd. (supra) has held in paragraph 32 as under: “32. It is thus clear that though the appellant- Company had approached the High Court under Article 226 of the Constitution, it had not candidly stated all the facts to the Court. The High Court is exercising discretionary and extraordinary jurisdiction under Article 226 of the Constitution. Over and above, a Court of Law is also a Court of Equity. It is, therefore, of utmost necessity that when a party approaches a High Court, he must place all the facts before the Court without any reservation. If there is suppression of material facts on the part of the applicant or twisted facts have been placed before the Court, the Writ Court may refuse to entertain the petition and dismiss it without entering into merits of the matter.” 14. In the case of Udyami Evam Khadi Gramodyog Welfare Sanstha and Another (supra), the Supreme Court has laid down as under: “6. A fresh writ petition was filed. The same has been dismissed by reason of the impugned judgment holding that the appellants have suppressed the material fact, viz., filing of four writ petitions on the same cause of action and, thus, it was not maintainable. Appellants are, thus, before us. xxx xxx xxx 14. In their counter-affidavit, the respondents stated: “21. That in reply to the events mentioned against 03.06.2003 and 09.06.2003 it is submitted that the sale proclamation was necessary legal proceeding since even after citation had been issued, the payment of the amount under recovery had not been made. In this view of the matter, the writ petition which was of the same Page 7 of 9 nature as the earlier writ petitions was not only misconceived but was also abuse of process of court by the Samiti. It is pertinent to state here that the recovery certificates which were issued on 14.09.2005 and 19.07.2005 since by that time, the further interest on the loan amount had accrued which required issue of fresh recovery certificates. However, the recovery certificates dated 10.09.2002 had been issued earlier before filing of the writ petition. In view of the facts, it is submitted that there was no occasion for the petitioner no. 2 joining hand with so-called Sanstha, the petitioner no. 1 challenged these recovery certificates. The challenge, which was made by the petitioners before the Lucknow Bench, Allahabad, High Court was clearly an abuse of the process of Court.” In the said counter-affidavit, it has further been disclosed that after being unsuccessful in their attempt to stall the recovery proceedings against the Samiti, a fictitious welfare Sanstha, namely, Udhyami Evam Khadi Gramodyog Welfare Sanstha was started by Appellant No. 2. We, therefore, are of the opinion that the attempt on the part of the appellants herein must be termed as „abuse of the process of law‟. 15. A writ remedy is an equitable one. A person approaching a superior court must come with a pair of clean hands. It not only should not suppress any material fact, but also should not take recourse to the legal proceedings over and over again which amounts to abuse of the process of law. In Advocate General, State of Bihar v. M/s. Madhya Pradesh Khair Industries and Another [(1980) 3 SCC 311], this Court was of the opinion that such a repeated filing of writ petitions amounts to criminal contempt.” (Underlined for emphasis) Page 8 of 9 15. After having noticed, the conduct of the respondent No.6, in the Court’s opinion, the writ petition ought not to have been entertained by learned Single Judge. The impugned order passed by the learned Single Judge deserves interference and the same is set aside. The writ appeal is, accordingly, allowed. 16. We deprecate the conduct of the respondent No.6 in pursuing the litigations, one after another for the same cause of action. 17. We were inclined to impose cost on respondent No.6. However, we have refrained ourselves from doing so. Accordingly, there shall be no order as to costs. Chief Justice (Chakradhari Sharan Singh) Judge (Savitri Ratho) SK Jena/Secy. Page 9 of 9