MASOODA BASHIR Vs. STATE OF J&K

JUDGEMENT

(1.) THE dispute in the present appeal relates to the selection and engagement of appellants and private respondents 5 and 6 for the post of Rehbar-e-Taleem in New Primary School, Checki Bondailgam. The writ petitioner-Showkat Ahmad Bhat has approached this Court by filing the writ petition with the prayer for direction to the respondent to proceed ahead with the selection process and make their selection absolute for the post of Rehbar-e-Taleem in newly opened SSA Govt. Primary School, Checki Bondailgam. The learned Single Judge proceeded to issue directions after recording the statement of Mr. Naik, learned AAG when he stated that with the disposal of the pending civil suit questioning the operation of the panel, no impediment is left to proceed with the selection panel. The State counsel, Mr. Naik had further stated that requisite steps would be taken by the respondents-State to issue the final selection list within a period of two months. It is appropriate to mention that the issue raised before the civil court and in the writ petition continuous to be the same. Once a civil suit has been filed covering the same subject matter then no writ petition could have been maintained by either of the parties to the proceedings. A civil suit takes its sustenance from Section 9 of the Civil Procedure Code whereas Article 226 of Constitution of India read with Section 103 of the Constitution provide for a Constitutional remedy. Both the jurisdictions are different. Once the party has chosen their remedy by filing a civil suit then the Constitutional remedy for filing a writ petition would not be available. It is trite to observe that the public policy discourages multiplicity of litigation by avoiding the same issue to be tried in two parallel but different proceedings. Therefore, in our view, the writ petition itself was not maintainable at the instance of Showkat Ahmad Bhat and Meema Akhter. It is appropriate to mention that SWP No. 2680/2011 was filed by them on 19.12.2011 and the application for impleading them as party namely Showkat Ahmad Bhat and Meema Akhter was allowed on 09.02.2011 which was much earlier. Therefore, the argument advanced by their counsel Mr. Rizwan Bhat that they became party later on would not be sustainable.

(2.) MR. Naik has stated that he has made a bonafide mistake with regard to disposal of the civil suit and in fact some applications were disposed of.

(3.) THE appeal is disposed of in the above terms.