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2008 DIGILAW 511 (MP)

RESHMA PHILIP v. STATE OF M P

2008-04-01

A.K.PATNAIK, SHANTANU KEMKAR

body2008
Judgment ( 1. ) THIS is an appeal filed Section 2 (1) of Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 against the order dated 18-2-2008 passed by learned Single Judge in W. P. No. 17635/07 (S ). ( 2. ) THE relevant facts briefly are that the appellant was posted as lower Division Teacher in Government Primary School, Railway Sarai, jabalpur w. e. f. 1-8-2005. Respondent No. 4 was posted as Lower Division teacher in the aforesaid school w. e. f. 24-7-2006 and the respondent No. 5 was posted in the said school as Lower Division Teacher w. e. f. 20-7-2007. By an order dated 10-7-2007 the appellant was shifted from Government Primary school, Railway Sarai to Government Primary School, Chhui Khadan. Aggrieved, the appellant filed W. P. No. 17635/2007 (s) contending inter alia that as per the policy of rationalisation of the Government, the surplus staff was to be shifted on the basis of last come first go. The appellants case was that the respondent Nos. 4 and 5 who had joined the appellant later than the appellant should have been shifted as per this policy of rationalization and appellant would not be shifted from Government Primary School, Railway Sarai to government Primary School, Chhui Khadan. The learned Single Judge admitted the writ petition on 9-1-2008 and after taking into consideration this contention raised in the writ petition passed an interim order directing the respondents to maintain status quo which existed as on 9-1-2008. But thereafter the order of transfer of the appellant was modified by another order dated 22-12-2007 and the learned Single Judge held in the impugned order dated 18-2-2008 that the order dated 22-12-2007 raised a fresh cause of action and hence the appellant may file fresh writ petition challenging the order dated 22-12-2007 and dismissed the writ petition as infructuous. Aggrieved, the appellant has filed his appeal. ( 3. ) MR. A. K. Pathak, learned Counsel for the appellant submitted that the case of the appellant all though was that she should not have been treated as surplus employee of the institution and instead respondent Nos. 4 and 5 should have been treated as surplus staff. Aggrieved, the appellant has filed his appeal. ( 3. ) MR. A. K. Pathak, learned Counsel for the appellant submitted that the case of the appellant all though was that she should not have been treated as surplus employee of the institution and instead respondent Nos. 4 and 5 should have been treated as surplus staff. He submitted even after the order dated 10-7-2007 was modified by the order dated 22-12-2007, this issue raised by the appellant could be decided by the Court in the Writ Petition No. 17635/07 (s)and for this reason the appellant had filed an application for amendment in the writ petition proposing to incorporate in the writ petition the challenge to the order dated 22-12-2007 by which the order dated 10-7-2007 was modified, but the learned Single Judge instead of allowing the application for amendment has dismissed the writ petition as infructuous after holding that a fresh cause of action arose for the petitioner to file a fresh writ petition. ( 4. ) MR. Vivekanand Awasthy, learned Government Advocate sought to sustain the order passed by the learned Single Judge saying that appellant ought to have filed a fresh writ petition challenging the order dated 22-12-2007 whereby the earlier order dated 10-7-2007 transferring the appellant from the institution was modified. Respondent Nos. 4 and 5 have chosen not to appear before the learned Single Judge and hence we have not issued notice of the writ appeal to respondent Nos. 4 and 5. ( 5. ) WE have considered the submissions of learned Counsel for the parties and we are of the considered opinion that the power vested in the High court under Article 226 of the Constitution whether to allow or not to allow an amendment has to be judiciously exercised in accordance with the settled principles of law. Although the Explanation to Section 141 of the Code of Civil procedure, 1908 (for short cpc) has made it clear that the provisions of the cpc do not apply to proceedings under Article 226 of the Constitution, many of the principles incorporated in the CPC have been held to be applicable to proceedings under Article 226 of the Constitution by the Courts. Thus provisions of the CPC do not strictly apply to the proceedings under Article 226 of the Constitution, but the High Court while exercising its powers have to keep in mind the principles incorporated in different provisions of the CPC. ( 6. ) ORDER II Rule 1 of the CPC provides that every suit shall as far as practicable be framed so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them. Order II Rule 2 states that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action. Order II Rule 2 further provides that where a person is entitled to more than one relief in respect of the same cause of action, he may sue for all or any of such reliefs, but if he omits except with the leave of the Court to sue for all such reliefs he shall not afterwards sue for any relief so omitted. Order VI Rule 17 further provides that the Court may at any stage of the proceedings allow either party to alter or amend any pleadings in such manner and on such terms as may be just and all such amendments may be allowed as may be necessary for the purpose of determining the real questions in controversy between the parties. Therefore, the legislative policy is to ensure that as far as possible all controversies between the parties in respect of the same subject matter of the dispute are decided by the court in one and the same proceedings and the parties are not driven to multiply legal proceedings between themselves. ( 7. ) SO far as the facts of the present case are concerned, the grievance of the appellant in W. P. No. 17635/2007 (s) was that she was working as a teacher in the Government Primary School, Railway Sarai, Jabalpur earlier than respondent Nos. 4 and 5 and therefore under the policy of rationalization, instead of the appellant, respondent No. 4 or respondent No. 5 could be shifted to another institution. On this main ground, the appellant challenged the order dated 10-7-2007 under which she had been shifted from Government Primary school, Railway Sarai to Government Primary School, Chhui Khadan. 4 and 5 and therefore under the policy of rationalization, instead of the appellant, respondent No. 4 or respondent No. 5 could be shifted to another institution. On this main ground, the appellant challenged the order dated 10-7-2007 under which she had been shifted from Government Primary school, Railway Sarai to Government Primary School, Chhui Khadan. Subsequently, by the order dated 22-12-2007 the earlier order dated 10-7-2007 was modified and the appellant was posted in Primary School, Ghamapur No. 5, sankul Ghamapur instead of Government Primary School, Chhui Khadan, but the grievance of the appellant that not the appellant but the respondent Nos. 4 and 5 who were surplus employees should have been shifted from Government primary School, Railway Sarai continued even after the order dated 22-12- 2007 modifying the order dated 10-7-2007. ( 8. ) THE learned Single Judge has taken the view that the order dated 22-12-2007 modifying the earlier order dated 10-7-2007 constitutes a fresh cause of action for the appellant to file a fresh writ petition. What the learned Single judge has failed to appreciate is that cause of action for filing the writ petition constituted the whole bundle of material facts as stated in the writ petition and the material facts were that appellant was not a surplus employee of the institution but the respondent Nos. 4 and 5 were surplus employees of the institution and instead of the appellant, respondent Nos. 4 and 5 should have been shifted from Government Primary School, Railway Sarai. These material facts which constitute cause of action remain the same and there was only alteration of one material fact that the appellant was posted by the order dated 27-12-2007 in Government Primary School, Ghamapur No. 5, Sankul ghamapur instead of Government Primary School, Chhui Khadan. Considering the broad policy of law that parties should not be driven to separate proceedings and an amendment should be allowed for the purposes of deciding the real controversy in issue between the parties, the learned Single Judge should not have held that the appellant should file a fresh writ petition challenging the order dated 27-12-2007 and instead should have allowed the application for amendment incorporating the order dated 22-12-2007. ( 9. ( 9. ) WE accordingly allow the appeal, set aside the order dated 18-2-2008, allow the application for amendment and remit the matter to the file of the learned Single Judge for deciding the writ petition on merits after giving due opportunities of filing replies and of hearing to the parties.