1 2026:HHC:28342 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.168 of 2018 Date of Decision : 10.07.2026 Khub Chand …… Petitioner versus State of Himachal Pradesh and others ……Respondents Coram: The Hon’ble Mr. Justice Bipin Chander Negi, Judge Whether approved for reporting?1 No For the petitioner : Mr. Amit Singh Chandel, Advocate as Legal Aid Counsel. For the respondents : Mr. Shalabh Thakur, Additional Advocate General, for respondents No.1 to 3/State. Ms. Archana Dutt, Advocate, for respondent No.4. Mr. Ranbir Singh, Advocate, vice Mr. L.S. Mehta, Advocate, for respondents No.5 to 7. Bipin Chander Negi, Judge (oral) The present petition has been filed by the petitioner, seeking the following reliefs:- “1. That annexure P-8 dated 11-9-2017 passed by respondent no. 2 may be quashed and set aside in ends of Law, equity and Justice. 2. That respondent may be directed to appoint the petitioner as per the R&P Rules of Vidya Upasak which were applicable in the year 2000. 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 2026:HHC:28342 3. That respondent may be directed to consider the petitioner similarly situated to that of respondent no. 5-7 and grant him all consequential benefits in the ends of justice.” 2. An advertisement bearing No.4/99 was made for filling up of 30 posts of Vidya Upasak from the Scheduled Caste, on 27.03.1999. In pursuance whereof, the petitioner was interviewed along-with 49 other candidates for the posts, on 26.06.2000. As a sequel thereto, 30 Scheduled Caste candidates were appointed as Vidya Upasak by the then District Primary Education Officer, Mandi on the basis of merit, as per the list provided by the Himachal Pradesh Staff Selection Commission, Hamirpur (respondent No.4). 3. Subsequent thereto, after a lapse of about eleven years in September 2011, the present petitioner had preferred a petition bearing CWP No.8036 of 2011. In the said petition filed by the petitioner, relief was claimed with respect to setting aside of appointments of 16 Vidya Upasak, who had been wrongly benefited on account of tampering/forgery in the marks obtained by them. List of 16 such candidates had been placed on record as Annexure P-4 (in CWP No.8036 of 2011), a letter dated 10.05.2006 issued by the Additional Director General of Police, Enforcement, Himachal Pradesh to the Principal Secretary (Home & Enforcement) to the Government of Himachal Pradesh. In the said petition, quashing and setting aside of appointments of 16 Vidya Upasak, direction to prepare a fresh merit list of the appeared candidates for interview and appointment, in accordance with the rules, had been sought. The said petition was withdrawn on 24.04.2013. While 3 2026:HHC:28342 withdrawing the same, no liberty was reserved to file a fresh petition on the same cause of action. 4. Thereafter, in January, 2017, a fresh writ petition was preferred by the petitioner. The same was numbered as CWP No.282 of 2017. In the said petition, it was averred specifically in Paragraph-10 thereof that had the selection process been done in accordance with law, the petitioner would have been a successful candidate. Other than the aforesaid, reliance was placed on an information obtained under the Right to Information Act, 2005 (RTI) placed on record as Annexure P-7 in the said petition, wherein it had been pointed out that in District Mandi, 58 posts of JBT Teachers were lying vacant. 5. Response thereto was filed by the respondents therein. Respondent No.4, i.e., Staff Selection Commission, specifically raised objection with respect to the fact that while withdrawing the previous petition bearing CWP No.8036 of 2011, on 24.04.2013, no liberty had been reserved. Other than the aforesaid, the plea that the petition was barred by limitation/delay and latches, had also been raised. 6. On merits, numerous objections had been raised by the respondents. In the aforesaid facts and circumstances, vide order dated 22.06.2017, the present petitioner had withdrawn the said petition (CWP No.282 of 2017) with liberty reserved to file an appropriate representation. In terms of order dated 22.06.2017, upon receipt of such representation, the authorities were to consider and decide the same by passing a detailed reasoned order. All questions of law were left open and liberty 4 2026:HHC:28342 had been reserved to the petitioner to approach the Court, in case of decision not being in favour of the petitioner. 7. It is in the aforesaid backdrop that the impugned order (Annexure P-8) had been passed, in the case at hand. 8. Heard learned counsel for the parties and perused the pleadings in the present case, as well as pleadings in CWP No.8036 of 2011 & CWP No.282 of 2017. 9. From a perusal of the impugned order, it is evident that no candidate who had secured less marks than the petitioner, has been appointed in pursuance to the selection process held and concluded in the year, 1999/2000. Even though in the impugned order the plea of limitation/delay and latches, res judicata under lying principle of order 23 CPC as applicable to writ petitions has not been considered by the authority while disposing the representation in pursuance to order dated 22.06.2017, passed in CWP No.282 of 2017, despite all questions of law being left open, this court is not precluded from examining these legal pleas. Moreso when in response filed by the respondent (Staff Selection Board), the plea of limitation/delay and latches, the petition being barred by the principle of res judicata, in view of withdrawal of the petition, vide order dated 24.04.2013, have specifically been raised. 10. A pure question of law where there is no controversy w.r.t. the facts in the interest of justice can be raised at any stage. In this respect, a reference can be made to M.J. Exporters (P) Limited vs. 5 2026:HHC:28342 Union of India and others, (2021) 13 SCC 547. Relevant extract whereof reads as under:- “12 . No doubt, if the question of law raised in the final Court is a pure question of law and there is no controversy on facts,which are already on record, and on the basis of those facts, the question of law can be determined in the interest of justice, such a question of law could be allowed to be raised even if it was not raised in the Court.” 11. The petition, in the case at hand, has been filed in the month of January, 2018. Admittedly, it pertains to selection process initiated in the year, 1999 and concluded in the year, 2000. The petitioner had participated in the same as unsuccessful candidate. He had participated in the Reserved Category. The first challenge was made by the petitioner to the aforesaid recruitment process by way of filing CWP No.8036 of 2011 (in the year, 2011). Herein, challenge was made to the appointment of 16 candidates alleged to have been beneficiaries of tampering in the marks sheet done by the then Chairman of the H.P. Subordinate Selection Commission. The said 16 candidates belonged to the un-reserved (General Category). 12. From a perusal of the said petition, i.e., CWP No.8036 of 2011, it is evident that the petitioner did not claim any right of appointment for himself in the said petition. The said petition was dismissed as withdrawn on 14.04.2013. While withdrawing the same, no liberty had been reserved by the present petition. Principles of order 23 CPC are also applicable to writ petitions. In this respect, a reference can be made to Sarguja Transport Service vs. State Transport Appellant Tribunal 6 2026:HHC:28342 M.P., Gwalior and others (1987) 1 SCC 5. Relevant extract whereof reads as under:- 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 subrule (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 rounded 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 sub- stantially 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 adjudi- cation 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. 9. The point for consideration is whether a petitioner after withdrawing 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 administra- tion 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 withdraw- al does not amount to res judicata, the remedy under Article 226 of the Constitution of India should be deemed to have 7 2026:HHC:28342 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 fight 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 petition- er prays for the issue of a writ in the nature of habeas corpus or seeks to enforce the fundamental fight guaranteed under Article 21 of the Constitution since such a case stands on a different footing altogether. We however leave this question open. 13. Subsequently, a fresh petition was filed by the petitioner in January, 2017 bearing CWP No.282 of 2017. Herein, the petitioner claimed a right to be appointed in the selection process pertaining to the years, 1999/2000. The said petition was withdrawn vide judgment dated 22.06.2017. While withdrawing, the petition in terms of order dated 22.06.2017, all questions of law were left open. The petitioner had been granted a right to make representation which was to be decided by passing a detailed speaking order. 14. In the aforesaid backdrop, it is clearly evident that the petition now filed (present petition No.168 of 2018) filed in January, 2018 laying challenge with respect to a selection process initiated in the year, 1999 and concluded in the year, 2000, clearly suffers from delay and latches. 15. Other than the aforesaid, when the first petition had been filed by the petitioner, i.e., CWP No.3086 of 2011, no claim to be appointed in the recruitment process initiated in the year, 1999 and concluded in the year, 2000 had been raised nor any relief in this respect had been made by the petitioner. Constructive res judicata is applicable 8 2026:HHC:28342 to writ petitions. A reference in this respect can be made to Shiv Chander More and others vs. Lieutenant Governor and others (2014) 11 SCC 744. Relevant extract whereof reads as under:- “22. Principles of constructive res judicata which are also a part of the very same doctrine have been held to be applicable to writ proceedings, by another Constitution Bench decision of this Court in Devilal Modi v. STO (AIR 1965 SC 1150) where this Court observed: It may be conceded in favour of Mr. Trivedi that the rule of constructive res judicata which is pleaded against him in the present appeal is in a sense a somewhat technical or artificial rule prescribed by the Code of Civil Procedure. This rule postulates that if a plea could have been taken by a party in a proceeding between him and his opponent, he would not be permitted to take that plea against the same party in a subsequent proceeding which is based on the same cause of action; but basically, even this view is founded on the same considerations of public policy, because if the doctrine of constructive res judicata is not applied to writ proceedings, it would be open to the party to take one proceeding after another and urge new grounds every time; and that plainly is inconsistent with considerations of public policy to which we have just referred." 24. is in the light of the above authoritative decisions of this Court no longer open to the appellants to contend that the principles of constructive res judicata would not debar them from raising the question which, as observed earlier, could and indeed ought to have been raised by them in the previous round of litigation. The High Court was, in that view of the matter, perfectly justified in holding that the plea sought to be raised by the appellants in the purported exercise of liberty given to them by the orders of this Court dated 9th April, 2008 in Civil Appeal No.5091 of 2004 was not legally open and should not be allowed to be urged. Moreover the said petition had been withdrawn without liberty reserved. 16. In the aforesaid backdrop, on account of the principle of constructive res judicata, the petitioner being barred from raising a stale claim (delay and laches) qua the recruitment process initiated and concluded in the year, 1999/2000 and the fact that while withdrawing CWP No.8036 of 2011 no liberty to file afresh had been reserved the present petition deserves to be dismissed. Besides the claim of the petitioner that his case be considered for appointment, in terms of 2000 9 2026:HHC:28342 rules, at this belated stage, cannot be granted as any recruitment made now would be covered by the Recruitment and Promotion Rules, as presently applicable. 17. In view of the above terms, present petition, being devoid of merit, is dismissed, so also the pending miscellaneous application(s), if any. (Bipin Chander Negi) July 10, 2026 (KS) Judge