Anil Kumar, J.
(C.M. Application No. 27400 of 2013)
Heard Dr. L.P. Misra, learned counsel for petitioners, Sri A.N. Trivedi, learned Additional Chief Standing Counsel on behalf of O.P. Nos. 1 to 3 and Sri P.K. Khare, learned counsel appearing on behalf of O.P. Nos. 4 to 7 on interim relief and perused the record.
An advertizement No. 19-F Up. Niyu./2010/1/33 Lucknow dated 03.11.2011 published in the daily Newspaper Dainik Jagran dated 10.11.2011by means of which advertisement for selection of 428 posts of Staff Nurses (Male and Female) have been issued with reserved backlog of 97 posts through direct recruitment having the eligibility criteria for the candidates who have obtained Certificate of Training in General Nursing from Government Training Institutions as well as Private Training Institutions and from U.P. State Medical Faculty, the said advertizement provided that the selection process on the post of Staff Nurses shall be made as per provisions provided for direct recruitment for Group C Posts (Outside the Purview of U.P. Public Service Commission) Rules, 2002 as amended in the year 2003 and the U.P. Subordinate Nursing (Non-Gazette) Service Rules (First Amendment), 1999 and letter No. 862 (5-11-2005-8(1)/78 dated 25.02.2005.
Smt. Neetu Singh, Km. Puja, Km. Poonam Singh and Km. Seema have challenged the same by filing a Writ Petition No. 9081 (SS) of 2011with the following main grounds:-
"(a) the aims and objects of framing of the above Rules and Regulations is only to impart training to the selected candidates at the government Training Centers and provide them selection on the post of Staff Nurses. The Government Female Student Nurses under Rule 5 of the Rules, 1999 means Nurses who have obtained training from the Government Training Centers and not the Nurses who obtained training from the Training Centers other than the Government Training Centers.
(b) Even if any Government Order has been issued to this effect which have included the candidates who have obtained training from the Private Training Institutions within the scope of the Rules, 1999, it would not have any effect because no such amendment has been made under Rule 5 of Rules 1999.
(c) All the petitioners have obtained training from the Government Training Center and the certificate of Diploma in General Nursing and Midwifery has been issued to them by State Medical Faculty Uttar Pradesh."
And the main prayer as prayed by them in the said matter, reads as under:-
"i) a writ of certiorari or a writ, order or direction in the nature of certiorari quashing the impugned advertisement dated 03.11.2011, so far as it relates to the selection and appointment of Staff Nurses Male and Female from the candidates who have obtained the Nursing Diploma in Midwife Training from Private Training Institutions being eligible for recruitment and appointment as Staff Nurse alongwith all consequential action taken pursuant to the said advertisement."
On 29.10.2012, this Court has passed an order, the same is quoted as under:-
"Heard learned counsel for petitioner as well as learned Standing Counsel.
Short question involved in the writ petition is with respect to the import of Rule 5(c) of the Uttar Pradesh Subordinate Nursing (Non-Gazetted) Service (Ist Amendment) Rules, 1999. In the counter affidavit filed by opposite parties it has been stated that advertisement has been issued for the post of Staff Nurse which are to be filled up as per aforesaid 1999 Rules and also in accordance with Government Order dated 25.1.2005.
The rules cannot be amended or supplemented by the Government Orders. The post in question shall be filed up strictly in accordance with Uttar Pradesh Subordinate Nursing (Non-Gazetted) Service (Ist Amendment) Rules, 1999.
Since the affidavits have been exchanged as such matter can be heard finally.
List this case for hearing in the hearing list.
In the meantime, in case, selection is to be held in pursuance of the impugned advertisement and the same has not been finalized till date it is hereby provided that the post in question shall be filed up strictly in accordance with Uttar Pradesh Subordinate Nursing (Non-Gazetted) Service (Ist Amendment) Rules, 1999."
Thereafter, Pratima Chaudhary, Smt. Vasundhara Pandey and Smt. Angira Chaudhary who have obtained Diploma in General Nursing and Midwife from institution of Training and Medical recognized by the State Government as well as U.P. Medical Faculty, Lucknow, filed a Writ Petition No. 660 (SS) of 2013 with the following main prayer:-
"i) issue a writ order or direction in the nature of mandamus commanding the opposite parties to amend the import of rule 5(c) of U.P. Subordinate Nursing (Non-Gazette) Service Rules (First Amendment), 1999 in pursuance of 5(d) one government order dated 25.02.2005 issued by the Sri C.B. Paliwal, Secretary, U.P. Civil Secretariat Lucknow forthwith so the benefit will be provided all the persons and petitioners may not be suffered for irreparable loss and injury in order to meet the ends of justice."
In the meantime, on 04.03.2013, an advertizement has been issued by Director General, Medical and Health Services, Lucknow thereby inviting applications for appointment on the post of staff nurse (male and female), challenged by Pratima Chaudhary, Smt. Vasundhara Pandey and Smt. Angira Chaudhary by filing Writ Petition No. 1599 (SS) of 2013 (who are also petitioners in Writ petition No. 660(SS) of 2013), with the following main prayer:-
"(a) To issue a writ, order or direction in the nature of certiorari quashing the impugned advertisement dated 04.03.2013.
(b) To issue a writ, order or direction in the appropriate nature directing the Opp.-parties to proceed to hold the selection pursuant to the Government Order dated 25.02.2005 which correctly explains Rule 5(e)(1) of U.P. Subordinate Nursing (Non-Gazette) Service (First Amendment) Rules, 1999 or in the alternative it is prayed that the said rule be declared as illegal, arbitrary and discriminatory being violative of Article 14 and 21 of the Constitution of India."
Dr. L.P. Misra, learned counsel for petitioners while pressing for the interim relief in Writ Petition No. 1599 (SS) of 2013 submits that the petitioners are Nurse and Midwives who possess diploma in General Nursing and Midwife from institution of Training and Medical recognized by the State Government as well as U.P. Medical Faculty, Lucknow in accordance with rule.
He further submits that in order to save the U.P. Subordinate Nursing (Non-Gazetted) Service Rules, 1979 as amended vide U.P. Subordinate Nursing (Non-Gazetted) Service (First Amendment) Rules, 1999(hereinafter referred to as Rule 1999) from the said vices, it is necessary that either the words 'Government Female students Nurses and Mid-wives who possess the qualification laid down in Rule 10 for Female Staff Nurse occurring under Rule 5 (e) (1) of 1999 First Amendment Rules are to be read down by application of the principle of 'reading down', taking into consideration the clause 2 of the Government Order dated 25.02.2005.
Accordingly, it is submitted by him that Government Order dated 25.02.2005 is a clarificatory Government Order and on the basis of which, in past, two selections were held, so, Female Student Nurses and Mid-wives/petitioners who possess the qualification laid down in Rule 10 of Rule 1999 for Female Staff Nurse from State Government Recognized institutions be allowed to submit their candidature in response to advertizement in order to save the said rule being in contravention to Articles 14 and 21 of the Constitution of India and if the same is not done it will be discriminatory and leading to hostile discrimination. He further submits that a cause of action has arisen to the petitioners on issuance of Advertisement through which only female student nurses having obtained Diploma in Medical and Surgical Nursing from Government Institutes have been made eligible for applying against the Advertisement of vacancies of Staff Nurses and the petitioners and alike who have obtained Diploma in Medical and Surgical Nursing not from the State Government Training Institutes but from the Private Training Institutes duly recognized by the State Government and registerable with the U.P. Nurses and Mid-wives Council and who have under gone the same syllabus courses as impartable in State Government Nursing Institutes are being deprived from offering their candidature for public employment. Therefore, applying the principle of reading down Rule 5 (e) (1) of 1999 Amendment Rules read with Rule 10 of Rule 1999 and Government Order dated 25.02.2005 to be taken, interpreted and applied in such a manner that the same be survive; and the petitioners be permitted to submit their candidature in response to the advertizement, failing which the said Rule 5(e)(1) of Rule 1999 deserves to be struck down as ultra vires. In support of his argument, he placed reliance on the judgment dated 10.02.2011 of Hon'ble the Supreme Court passed in the case of Sri Indra Das Vs. State of Assam (in Criminal Appeal NO. 1383 of 2007).
Dr. L.P. Misar, learned counsel for petitioners further submits that from the bare reading of Rule 5 (e)(2) and Rule 5(e)(1) of Rule 1999 the position which emerged out that in Rule 5(e)(1) , it is mentioned as Government female student nurse whereas in Rule 5(e)(2), it is mentioned as male candidate, as such the said action is discriminatory in nature on the basis of sex, so, violative of Article 16 of the Constitution of India.
Dr. L.P. Misra, learned counsel for petitioners further submits that the Rule 5(e)(1) of the Rules of U.P. Subordinate Nursing (Non-Gazette) Service (First Amendment) Rules, 1999 is an ultra vires and is liable to be struck down in view of the following facts;
(a) The said Rule 5(e)(1) of the Rule is violative of Article 14 of the constitution of India as it debars the nurse students who have done their diploma course from other institutions which are recognized by State Medical Authority and registrable with U.P. Nurse and Midwives Council and not from Government Institution.
(b) The petitioners possess the same qualification as prescribed under Rule 10 of the Rules, 1999, which are to be passed by the student nurse who have done Diploma from Government institution, so they cannot be debarred from appearing/submitting their candidature in response to the advertisement as per Rule 5(e)(1) of the Rules, 1999.
(c) Rule 5 (e)(1) of Rule 1999 is to be interpreted in such a manner that both Rule 5(e)(1) and Rule 10 of Rules 1999 may survive.
Accordingly, he requests that the present petitioners as an interim measure may be allowed to submit/apply their candidature for appointment on the post of Staff Nurse (Female) in pursuance to the advertisement (Anneuxre No. 1) and they should not be debarred from doing so only in view of the Rule 5(e)(1) of the Rules of U.P. Subordinate Nursing (Non-Gazette) Service (First Amendment) Rules, 1999
Sri P. K. Khare, Advocate, Sri A.N. Trivedi, learned Additional Chief Standing counsel while opposing the interim relief submits that the advertisement (Annexure No. 1) has been issued as per the provisions as provided under Rule 5 (e) (1) of U.P. Subordinate Nursing (Non-Gazette) Service (First Amendment) Rules, 1999 by which the female candidates should have obtained diploma from Government institution. In the present case, admittedly the petitioners does not obtain diploma from Government institution, so they are not entitled to submit their candidature in response to the advertisement in question, as such, keeping in view the said fact as well as the order dated 29.10.2012 passed by this Court in Writ Petition No. 9081 (SS) of 2011, the petitioners are not entitled for any relief as claimed by them in the present matter.
Sri P.K. Khare, learned counsel further submits that the present petitioners, namely, Pratima Chaudhary, Smt. Vasundhara Pandey and Smt. Angira Chaudhary have already filed a writ petition No. 660 (SS) of 2013, so as per the relief as claimed therein, the present writ petition filed by them is not maintainable, liable to be dismissed as per the provisions of Order 2 Rule 2 CPC read with Order 23 Rule 1 Sub rule 2 CPC. In support of his argument he placed reliance of the judgment and order passed by this Court in Writ Petition No. 2555 (SS) of 2008 (Rame Kumar Mishra Vs. State of U.P. and others) and Hon'ble Supreme Court in the case of Kunjan Nair Sivaraman Nair Vs. Narayanan Nair and others (2004) 3 SCC 277.
Sri P.K. Khare, learned counsel for opposite parties while opposing the interim relief as prayed by the petitioners submits that order dated 25.02.2005 on which reliance has been placed on behalf of the petitioners is not a Government Order keeping in view the Article 162 of the Constitution of India rather the same is a letter/order written by the Secretary of the Department to the Director.
He further submits that even otherwise by means of the Government Order dated 25.02.2005, the provisions of Rule 5(e)(1) of Rule 1999 cannot be amended, so the argument advanced on behalf of the petitioners by applying the principles of "reading down", they cannot derive any benefit as in the present case, the advertisement in question has been issued taking into consideration the said rule and the order passed on 29.10.2012 in Writ Petition No. 9081 (SS) of 2011 by which a direction has been issued to fill up the post strictly in accordance with U.P. Subordinate Nursing (Non-Gazette) Service (First Amendment) Rules, 1999, hence the petitioners are not entitled for any relief as claimed by them.
I have heard learned counsel for parties, for the purpose of interim relief and perused the records of the matter in question i.e. Writ Petition No. 1599 (SS) of 2013, Writ Petition No. 9081 (SS) of 2011, and Writ Petition No. 660 (SS) of 2013.
First and foremost question which is to be considered in the present case on the basis of the argument advanced by Sri P.K. Khare, appearing on behalf of O.P. Nos. 4 to 7 that whether the present writ petition filed by the petitioners is liable to be dismissed in view of the provisions as provided under Order 2 Rule 2 CPC read with Order 23 Rule 1 CPC as they had earlier filed Writ Petition No. 660 (SS) of 2013.
Order 2 Rule 2 CPC provides as under :- Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any court.
The object of Order 2 Rule 2 is to prevent multiplicity of suits. The same is founded on the principle that a person shall not be vexed twice for one and the same cause. It is directed against two evils - (i) the splitting up of claims and (ii) the splitting up of remedies.
In order to make Order 2 Rule 2 applicable, the defendant must satisfy the following three conditions:-
(a) The previous and second suit must arise out of the same cause of action.
(b) The cause of action on which the subsequent clause is founded should have arisen to the claimant where he sought for enforcement of the first claim before any court.
(c) Both the suits must be between the same parties; and
(d) The earlier suit must have been decided on merits. (See Union of India v. H. K. Dhruv (2005) 10 SCC 218).
Further, the principles governing the applicability of Order 2 Rule 2 CPC are :-
(1) The correct test is whether the claim in the new suit is in fact founded upon a cause of action distinct from that which was the foundation for the former suit. (See Deva Ram v. Ishwar Chand AIR 1996 SC 378).
(2) The cause of action means every fact which will be necessary for the plaintiff to prove if traversed in order to support his right to the judgment.
(3) If the evidence to support the two claims is different, then the causes of action are also different.
(4) The cause of action in the two suits may be considered to be the same, if in substance4 they are identical. If there is no independent contract in respect of the extra work done, two suits are not maintainable in respect of the main work and the extra work covered by the same contract.
(5) The cause of action has no relation whatever to the defence that may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff.
Moreover, the 'cause of action' means the 'cause of action' for which the suit was brought.
Cause of action which gives occasion for and forms the foundation of the suit.
As the plea of Order 2 Rule 2 is a technical bar, it has to be established satisfactorily and cannot be presumed merely on the basis of inferential reasoning. The plea of bar under Order 2 Rule 2 CPC can be established only if the defendant proves to the Court the identity of the cause of action as well as the identity of the parties in the two suits. (See. Gurinderpal Vs. Jognitteir Singh, 2004 (11) SCC 219). Where the earlier suit was not in respect of the same cause of action or was not decided on merits, Order 2 Rule 2 does not apply. (See. Nirmala Vs. Hari Singh, AIR 2000 H.P. 1)
In addition to the abovesaid position, the Hon'ble Supreme Court has considered the provisions of Order 23 Rule 1 of the Civil Procedure Code and its applicability/effect in the matters under Article 226/227 of the constitution of India and it has been held as under:-
"The provisions of the CPC, 1908 (hereinafter referred to as 'the Code') are not in terms applicable to the writ proceedings although the procedure prescribed therein as far as it can be made applicable is followed by the High Court in disposing of the writ petitions. Rule 1 of Order XXIII of the Code provides for the withdrawal of a suit and the consequences of such withdrawal. Prior to its amendment by Act 104 of 1976, Rule 1 of Order XXIII of the Code provided for two kinds of withdrawal of a suit, namely, (i) absolute withdrawal, and (ii) withdrawal with the permission of the Court to institute a fresh suit on the same cause of action. The first category of withdrawal was governed by Sub-rule (1) thereof, as it stood then, which provided that at any time after the institution of a suit the plaintiff might, as against all or any of the defendants 'withdraw' his suit or abandon a part of his claim. The second category was governed by Sub-rule (2) thereof which provided that where the Court was satisfied (a) that a suit must fail by reason of some formal defect, or (b) that there were sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it might, on such terms as it thought fit, grant the plaintiff permission to withdraw from such suit or abandon a part of a claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim. Sub-rule (3) of the former Rule 1 of Order XXIII of the Code provided that where the plaintiff withdrew from a suit or abandoned a part of a claim without the permission referred to in Sub-rule (2) he would be liable to such costs as the Court might award and would be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. Since it was considered that the use of the word 'withdrawal' in relation to both the categories of withdrawals led to confusion, the rule was amended to avoid such confusion. The relevant part of Rule 1 of Order XXIII of the Code now reads thus:
Rule 1. Withdrawal of suit or abandonment of part of claim(1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim:
**** **** **** ****
(3) Where the Court is satisfied
(a) that a suit must fail by reason of some formal defect, or
(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim,
it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim.
(4) Where the plaintiff
(a) abandons any suit or part of claim under Sub-rule(1),or
(b) withdraws from a suit or part of a claim without the permission referred to in Sub-rule (3),
he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.
6. It may be noted that while in Sub-rule (1) of the former Rule 1 of Order XXIII of the Code the words 'withdraw his suit' had been used, in Sub-rule (1) of the new Rule 1 of Order XXIII of the Code, the words 'abandon his suit' are used. The new Sub-rule (1) is applicable to a case where the Court does not accord permission to withdraw from a suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim. In the new Sub-rule (3) which corresponds to the former Sub-rule (2) practically no change is made and under that sub-rule the Court is empowered to grant subject to the conditions mentioned therein permission to withdraw from a suit with liberty to institute a fresh suit in respect of the subject-matter of such suit. Sub-rule (4) of the new Rule 1 of Order XXIII of the Code provides that where the plaintiff abandons any suit or part of claim under Sub-rule (1) or withdraws from a suit or part of a claim without the permission referred to in Sub-rule (3), he would be liable for such costs as the Court might award and would also be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.
7. The Code as it now stands thus makes a distinction between 'abandonment' of a suit and 'withdrawal' from a suit with permission to file a fresh suit. It provides that where the plaintiff abandons a suit or withdraws from a suit without the permission, referred to in Sub-rule (3) of Rule 1 of Order XXIII of the Code, he shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. The principle underlying Rule 1 of Order XXIII of the Code is that when a plaintiff once institutes a suit in a Court and thereby avails of a remedy given to him under law, he cannot be permitted to institute a fresh suit in respect of the same subject-matter again after abandoning the earlier suit or by withdrawing it without the permission of the Court to file fresh suit. Invito benificium non datur. The law confers upon a man no rights or benefits which he does not desire. Whoever waives, abandons or disclaims a right will loose it. In order to prevent a litigant from abusing the process of the Court by instituting suits again and again on the same cause of action without any good reason the Code insists that he should obtain the permission of the Court to file a fresh suit after establishing either of the two grounds mentioned in Sub-rule (3) of Rule 1 of Order XXIII. The principle underlying the above rule is founded on public policy, but it is not the same as the rule of res judicata contained in Section 11 of the Code which provides that no court shall try any suit or issue in which the matter directly or substantially in issue has been directly or substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. The rule of res judicata applies to a case where the suit or an issue has already been heard and finally decided by a Court. In the case of abandonment or withdrawal of a suit without the permission of the Court to file a fresh suit, there is no prior adjudication of a suit or an issue is involved, yet the Code provides, as stated earlier, that a second suit will not lie in Sub-rule (4) of Rule 1 of Order XXIII of the Code when the first suit is withdrawn without the permission referred to in Sub-rule (3) in order to prevent the abuse of the process of the Court.
8. The question for our consideration is whether it would or would not advance the cause of justice if the principle underlying Rule 1 of Order XXIII of the Code is adopted in respect of writ petitions filed under Articles 226/227 of the Constitution of India also. It is common knowledge that very often after a writ petition is heard for some time when the petitioner or his counsel finds that the Court is not likely to pass an order admitting the petition, request is made by the petitioner or by his counsel, to permit the petitioner to withdraw from the writ petition without seeking permission to institute a fresh writ petition. A Court which is unwilling to admit the petition would not ordinarily grant liberty to file a fresh petition while it may just agree to permit the withdrawal of the petition. It is plain that when once a writ petition filed in a High Court is withdrawn by the petitioner himself he is precluded from filing an appeal against the order passed in the writ petition because he cannot be considered as a party aggrieved by the order passed by the High Court. He may as stated in Daryao and Ors. v. The State of U.P. and Ors. in a case involving the question of enforcement of fundamental rights file a petition before the Supreme Court under Article 32 of the Constitution of India because in such a case there has been no decision on the merits by the High Court. The relevant observation of this Court in Daryao's case (supra) is to be found at page 593 and it is as follows:
If the petition is dismissed as withdrawn it cannot be a bar to a subsequent petition under Article 32, because in such a case there has been no decision on the merits by the Court. We wish to make it clear that the conclusions thus reached by us are confined only to the point of res judicata which has been argued as a preliminary issue in these writ petitions and no other.
9. The point for consideration is whether a petitioner after with-drawing a writ petition filed by him in the High Court under Article 226 of the Constitution of India without the permission to institute a fresh petition can file a fresh writ petition in the High Court under that Article. On this point the decision in Daryao's case (supra) is of no assistance. But we are of the view that the principle underlying Rule 1 of Order XXIII of the Code should be extended in the interests of administration of justice to cases of withdrawal of writ petition also, not on the ground of res judicata but on the ground of public policy as explained above. It would also discourage the litigant from indulging in bench-hunting tactics. In any event there is no justifiable reason in such a case to permit a petitioner to invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution once again. While the withdrawal of a writ petition filed in a High Court without permission to file a fresh writ petition may not bar other remedies like a suit or a petition under Article 32 of the Constitution of India since such withdrawal does not amount to res judicata, the remedy under Article 226 of the Constitution of India should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the writ petition when he withdraws it without such permission. In the instant case the High Court was right in holding that a fresh writ petition was not maintainable before it in respect of the same subject-matter since the earlier writ petition had been withdrawn without permission to file a fresh petition. We, however, make it clear that whatever we have stated in this order may not be considered as being applicable to a writ petition involving the personal liberty of an individual in which the petitioner prays for the issue of a writ in the nature of habeas corpus or seeks to enforce the fundamental right guaranteed under Article 21 of the Constitution since such a case stands on a different footing altogether. We, however leave this question open.
There can be no quarrel to the legal proposition that when the High Court in exercising of its powers under Article 226 of the Constitution of India grants interim relief; the interest of Justice requires that any undeserved or unfair advantage gained by a party invoking the jurisdiction of the Court must be neutralized. (See. Grindlays Bank Ltd. v. Income Tax Officer, Calcutta and Ors, [1980]122ITR55(SC) ; Ram Krishna Verma etc. etc. v. State of Uttar Pradesh and Ors. [1992]2SCR378 ; State of Madhya Pradesh and Ors. v. M.V. Vyavsaya and Co. : AIR1997SC993 ; and Smt. Rampati Jaiswal etc. etc. v. State of U.P. and Ors. AIR1997All170).
In Nooruddin v. Dr. K.L. Anand : (1995)1SCC242 , the Hon'ble Supreme Court observed as under :
"...................................Equally, the judicial process should never become an instrument of appreciation or abuse or a means in the process of the Court to subvert Justice."
In view of the abovesaid facts, the argument which has been advanced by Sri P.K. Khare that in view of the principles of Order 2 rule 2 CPC read with Order XXIII Rule 1 Sub Rule 2 CPC, the present writ petition filed by the petitioners is not maintainable as the petitioners have already filed a writ petition on the same cause of action i.e. Writ Petition No. 660 (SS) of 2013, I am of the opinion that that cannot be impediment on the part of petitioners to file the instant writ petition as after filing of the Writ Petition No. 660 (SS) of 2013, the official respondent had issued an advertisement dated 04.03.2013 thereby inviting applications for appointment on the post of Staff Nurse (male and female) and the said advertisement has been challenged by the petitioners in the instant writ petition as well as they has also prayed to declare Rule 5 (e)(1) of U.P. Subordinate Nursing (Non-Gazette) Service (First Amendment) Rules, 1999 as ultra vires.
Thus, the cause of action on the part of the petitioners to challenge the advertisement dated 04.03.2013 was not in existence when they filed the Writ Petition No. 660 (SS) of 2013, so keeping in view the said peculiar facts and circumstances of the case, the objection in question raised by Sri P.K. Khare, are rejected.
Initially, the State Government framed service rules U.P. sub-ordinate Nursing (Non-Gazetted) Service Rules, 1979 for recruitment and appointment on the post of Staff Nurse. Subsequently, amended in the year 1999 by the Rules known as U.P. Subordinate Nursing (Non-Gazette) Service (First Amendment) Rules, 1999.
Thereafter, on 03.11.2011, an advertisement has been issued for appointment of Staff Nurses (male and female) from the candidates, the said advertisement has been challenged by filing Writ Petition No. 9081 (SS) of 2011 (Smt. Neetu Singh and others Vs, State of U.P. and others) to the extent, it relates to selection and appointment of Staff Nurse (male and female) from the candidates who have obtained the Nursing Diploma, Mid-Wife Training from private institutions being eligible for recruitment and appointment as staff nurse. In the said matter, on 29.10.2012, this Court has passed an order, quoted hereinabove.
In the writ petition, an application for impleadment has been moved by the present petitioners to be impleaded as opposite parties, allowed by an order dated 01.04.2013, they are impleaded as respondent Nos. 4 to 7.
Subsequently, on 04.03.2013, an advertisement has been issued for appointment on the post of Staff Nurse (male and female), challenged by the petitioners/Pratima Chaudhary, Smt. Vasundhara Pandey and Smt. Angira Chaudhary by filing Writ Petition No. 1599 (SS) of 2013 and in the said matter, Smt. Neetu Singh, Km. Puja, Km. Poonam Singh and Km. Seema, (petitioners of Writ Petition No. 9081 (SS) of 2011) has been impleaded as O.P. Nos. 4 to 7.
Further, advertisement dated 04.03.2013 (Annexure No. 1) has been issued as per the provisions as provided under Rule 5 (e)(1) of U.P. Subordinate Nursing (Non-Gazette) Service (First Amendment) Rules, 1999 and also keeping in view of the direction /order dated 29.10.2012 passed by this Court in Writ Petition No. 9081 (SS) of 2011.
Rule 5(e)(1) of U.P. Subordinate Nursing (Non-Gazette) Service Rules (First Amendment), 1999 provides as under:-
"Ninety five percent by direct recruitment form amongst Government Female Student Nurses and midwives who possessed the qualification laid down in rule 10 for Female Staff Nurse."
From the reading of the said rule, the position is clear that 95% direct recruitment from amongst Government Female students Nurse and mid-wife and 5% by way of direct recruitment from amongst male candidates who fulfill the qualification laid down in Rule 10 of 1999 may apply for candidature in response to the advertizement in question, hence it call for no further elucidation, any intention of the legislature is clear from the bare reading of the said rules.
In Atma Ram Mittal v. Ishwar Singh Punia (1998) 4 SCC 284, Hon'ble the Supreme Court held as under:-
"9..... Blackstone tells us that the fairest and most rational method to interpret the will of the legislator is by exploring his intentions at the time when the law was made, by signs most natural and probable. And these signs are either the words, the context, the subject-matter, the effects and consequence, or the spirit and reason of the law"
In Sangeeta Singh v. Union of India (2005) 7 SCC 484, Hon'ble the Supreme Court held as under:-
"5. It is well-settled principle in law that the court cannot read anything into a statutory provision or a stipulated condition which is plain and unambiguous. A statute is an edict of the legislature. The language employed in a statute is the determinative factor of legislative intent. Similar is the position for conditions stipulated in advertisements."
Lord Brougham in Crawford v. Spooner 13 ERS 82 has stated that:-
".........[one has] to take the words as the legislature [has] given them, and to take the meaning which the words given naturally imply, unless where the construction of those words is, either by the preamble or by the context of the words in question, controlled or altered..........."
Viscount Haldane in Attorney General v. Milne 1914 AC 765 has stated that the language used:-
"has a natural meaning we cannot depart from that meaning unless, reading the statute as a whole, the context directs us to do so".
Viscount Simon, L.C. in Nokes v. Doncaster Amalgamated Collieries Ltd. (1940) 3 ALLER 549 has stated that:-
".........The golden rule is that the words of a statute must prima facie be given their ordinary meaning."
In Poppatlal Shah v. State of Madras AIR 1953 SC 274, Hon'ble Supreme Court has has been laid down that each word, phrase or sentence is to be construed in the light of purpose of the Act/Rule itself.
Keeping the abovesaid facts and admittedly in the instant case, the advertisement for appointment on the post of in question has been issued as per the provisions as provided under Rule 5(e)(1) and 5(e)(2) of the Rules, 1999 for appointment on the post of Staff Nurse (male and female).
Further, Rule 5(e)(1) of the U.P. Subordinate Nursing (Non-Gazette) Service Rules (First Amendment), 1999 which deals with the source of recruitment provides that only Government female students nurse shall submit their candidature in response to the advertisement, so till they said rule hold good the field in question i.e. in existence, the argument advanced by learned counsel for petitioner for the purpose of interim relief that by applying the principle of "Reading down", and taking into consideration Rule 5(e)(1) and Rule 10 of Rules 1999 and Government Order dated 25.02.2005, the petitioners may be permitted to submit applications for consideration of their candidature in response to advertizement dated 04.03.2013 for appointment on the post of Staff Nurse (Female) has got no force, as in the present case the petitioners have also claimed a relief that the Rule 5(e)(1) of the U.P. Subordinate Nursing (Non-Gazette) Service Rules (First Amendment), 1999 to be declared ultra vires and it is settled position of law that unless and until the same is declared as ultra vires, it is valid and it would not justified in restraining the State Government/appropriate authority from implementing the provisions of the impugned Rule 5(e)(1) of the U.P. Subordinate Nursing (Non-Gazette) Service Rules (First Amendment), 1999 passed by the legislature pending disposal of the writ petition. (see. State of H.P. And others Vs. Mahendra Pal and another, 1995 Supp (2) SCC 731).
For the foregoing reasons, the application for interim relief (C.M.A. No. 27400 of 2013) is rejected.