1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- 1.CIVIL WRIT No. 5271 of 1992 SUNIL JOSHI V/S STATE & ORS 2.CIVIL WRIT No. 4025 of 2001 PRADEEP BHARDWAJ & ORS. V/S STATE OF RAJ. ORS. Mr. PK LOHRA & Mr. VAIBHAV PAREEK for Mr. MR SINGHVI, for the petitioners. Mr. RL JANGID, Mr. MS SINGHVI, Mr. VIMAL MATHUR & Mr. DS RAJVI for the respondents. Date of Order : 24.11.2009 HON'BLE SHRI N P GUPTA,J. ORDER ----- Both these matters were being listed sometimes individually, sometimes independently. In both the matters from time to time positive statements were made before this Court that the matter be listed with each other, and that the identical controversy is pending before the Division Bench of this Court at Jaipur Bench so much so that in Writ Petition No. 5271/92 on 7.7.2008 it was stated by the learned counsel for the petitioner that the matter involving identical controversy is pending consideration before the Division Bench at Jaipur Bench, and the matter was got adjourned. Then, on 6.8.2008 learned counsel for the respondent Mr. M.S.Singhvi stated that identical matter pending before the Division Bench of this Court at Jaipur Bench has not been decided yet, and 2 the case was adjourned, and in Writ Petition No. 5271/92 on 13.3.2008 the matter was prayed to be listed along with Writ Petition No. 4025/2001. In this background in Writ Petition No. 4025/2001, on 13.10.2003 it was submitted by the learned counsel for the petitioner that the controversy involved in the instant petition was decided in favour of the petitioner in identical writ petition to which the then learned Additional Advocate General submitted that against the order of the learned Single Judge dated. 1.11.2002 D.B. Special Appeal No. 10/2003 was filed before the Division Bench and the Division Bench had stayed the order of the learned Single Judge. Thereupon short adjournment was sought to ascertain whether the matter has been concluded by the Division Bench or not. In this sequence on 16.2.2004 it was again submitted to this Court by all the learned counsel present that D.B. Special Appeal (Writ) No. 10/2003 has already been finally heard by the Division Bench at Jaipur and the judgment thereof is expected very shortly, and it was also submitted that the judgment in the aforesaid appeal will have a very material bearing on the controversy involved in the present writ petition, therefore, the matter was got adjourned. Then, on 23.3.2004 it was submitted by the learned counsel present as under:- “All the learned counsel for the parties submit that the judgment that may be rendered by the Division Bench at Jaipur in D.B.C.Special Appeal (Writ) No. 10/2003 will wholly cover all the controversies involved in the present writ petition and no further arguments will be needed to be made in this writ petition. In that view of the matter, the petition is adjourned to be listed after disposal of the said Special Appeal. Learned counsel for the parties to inform the Registry about disposal of that appeal.” Then, on 27.2.2006 it was informed by the learned 3 counsel for the respondent that in the Division Bench the judgment was reserved but then it has been released, and that the matter is listed there tomorrow, therefore, the matter was again adjourned for two weeks. Since the matter was so being adjourned on 22.3.2006 it was directed that the matter be listed for consideration after some concrete outcome, comes in that Division Bench matter at Jaipur, information whereof shall be given to the Registry by the learned counsel. Thereafter when the matter came up on application for modification of stay on 28.7.2008 some interim order was modified, then again the matter came up before the Court on 18.9.2008 on which date the application filed being I.A. No. 10131/2008, by the petitioner was considered for deciding the writ petition on the basis of the Division Bench judgment rendered in D.B. Special Appeal (Writ) No. 10/2003 dated 28.7.2008, and reference was made to the order of this Court dated. 23.3.2004, while learned counsel for the private respondent submitted that the decision rendered in Vijay Singh Deora's case do not cover the controversy raised in the writ petition in view of the judgment of the Hon'ble Supreme court in State of Rajasthan Vs. Anil Kumar reported in 2001(3) SCC- 174 wherein the decision of Vijay Singh Deora's case came to be considered, and it was submitted that the writ petition needs to be heard and decided on its own merit, and not on the decision rendered in D.B.C. Special Appeal (Writ) No. 10/2003. It was directed that in this view of the matter, the writ petition cannot be allowed on interim application at this stage, and the matter was directed to be heard on merits, and was ordered to be listed in third week of October. Thereafter again the matter came up before this Court on 28.10.2009 on which date learned counsel for the respondent prayed for time 4 to examine as to whether the present writ petition is covered by the judgment of this Court, or not, and the matter was ordered to be listed on 9.11.2009, and has now come up today. It is not in dispute that the writ petition filed by the State seeking to challenge the order of the Service Appellate Tribunal was decided by the learned Single Judge on 1.11.2002 being S.B. Civil Writ Petition No. 6495/1997. It is also not in controversy that against that judgment D.B.C. Special Appeal (Writ) No. 10/2003 was filed, which has been decided on 28.7.2008. Now a controversy which is sought to be raised is, that according to the petitioners the matter is covered by the decision dt. 28.7.2008, while according to the respondents (private respondents) in view of the judgment of the Hon'ble Supreme Court in Anil Kumar's case it cannot be said that the controversy is covered by the decision of this Court in State of Raj. Vs. Ram Swaroop Bhargava D.B.C. Special Appeal No. 10/2003. In my view, so far the judgment in Anil Kumar's case is concerned that was rendered in 2001, and as would be clear from the recapitulation of various order sheets of both the files as made above, does show that the statements were made by the learned counsel for either side knowing fully well the judgment in Anil Kumar's case, and in my humble view, the parties cannot be allowed to wriggle out from their submission. It is again a different story, that sitting singally, it would not be appropriate for me to embark upon the correctness of the judgment of Division Bench, on the ground that Anil Kumar's case has not been considered, and Vijay Singh Deora's case is not applicable, and so on, and so forth. 5 In that view of the matter, both the writ petitions are decided on the line of the judgment rendered by the Division Bench on 28.7.2008 in D.B.C. Special Appeal No. 10/2003. The parties shall get the same reliefs as flow from the said Division Bench judgment dt. 28.7.2008. ( N P GUPTA ),J. /Sushil/