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2015 DIGILAW 301 (UTT)

ANIRUDH v. SURESH LAL

2015-06-15

U.C.DHYANI, V.K.BIST

body2015
JUDGMENT : Hon’ble U.C. Dhyani, J. Respondent no.1-petitioner filed writ petition no.1030 of 2014 (S/S) for following reliefs:- “(i) Issue a writ, order or direction in the nature of mandamus directing the respondent no.3 to permit the petitioner to discharge the duties of peon pursuant to appointment letter dated 01.02.2014. (ii) Issue a writ, order or direction in the nature of mandamus directing the respondent to paid entire arrears of salary to the petitioner including month to month salary. (iii) Issue any other writ, order or direction, which this Hon’ble Court may deem fit and proper under the facts and circumstances of the case. (iv) Award the cost of the petition to the petitioner”. 2. The writ petition was allowed by the learned Single Judge on 02.06.2015 by setting aside the appointment of the appellant. Further direction was issued to give appointment to the petitioner on the post of peon. Aggrieved by the said judgment, present appeal has been filed. 3. The contention of learned Senior Counsel for the appellant is that the learned Single Judge has erred in quashing the appointment of the appellant ignoring the fact that there was no challenge to the appointment of the appellant. He submitted that it is not the case of the petitioner that appointment of the respondent no.1-petitioner was not in his knowledge. Rather same was in his knowledge as appointment order of the appellant dated 21.05.2014 was annexed with the counter affidavit of Committee of Management. The said counter affidavit was filed on 01.06.2015. Learned Senior Counsel for the appellant referred to paragraphs 29, 30, 31, 32 and 33 of the judgment of the Hon’ble Apex Court reported in 2010(1) SCC, 234 (Bharat Amratlal Kothari and Another Versus Dosukhan Samadkhan Sindhi and Others). Same are being reproduced herein: “29. The approach of the High Court in granting relief not prayed for cannot be approved by this Court. Every petition under Article 226 of the Constitution must contain a relief clause. Whenever the petitioner is entitled to or is claiming more than one relief, he must pray for all the reliefs. Under the provisions of the Code of Civil Procedure, 1908, if the plaintiff omits, except with the leave of the court, to sue for any particular relief which he is entitled to get, he will not afterwards be allowed to sue in respect of the portion so omitted or relinquished. 30. Under the provisions of the Code of Civil Procedure, 1908, if the plaintiff omits, except with the leave of the court, to sue for any particular relief which he is entitled to get, he will not afterwards be allowed to sue in respect of the portion so omitted or relinquished. 30. Though the provisions of the Code are not made applicable to the proceedings under Article 226 of the Constitution, the general principles made in the Civil Procedure Code will apply even to writ petitions. It is, therefore, incumbent on the petitioner to claim all reliefs he seeks from the court. Normally, the court will grant only those reliefs specifically prayed for by the petitioner. Though the court has very wide discretion in granting relief, the court, however, cannot, ignoring and keeping aside the norms and principles governing grant of relief, grant a relief not even prayed for by the petitioner. 31. In Krishna Priya Ganguly v. University of Lucknow, overlooking the rule relating to grant of admission to postgraduate course in Medical College, the High Court in the exercise of powers under Article 226 of the Constitution directed the Medical Council to grant provisional admission to the petitioner. This Court set aside the order passed by the High Court observing that: (SCC p. 319, para 26) “26. ……in his own petition in the High Court, the respondent had merely prayed for a writ directing the State or the college to consider his case for admission yet the High Court went a step further and straightway issued a writ of mandamus directing the college to admit him to the MS course and thus granted a relief to the respondent which he himself never prayed for and could not have prayed for.” 32. Again, in Om Prakash vs. Ram Kumar, this Court observed: (SCC p.445, para 4) “4. ……A party cannot be granted a relief which is not claimed, if the circumstances of the case are such that the granting of such relief would result in serious prejudice to the interested party and deprive him of the valuable rights under the statute.” 33. Again, in Om Prakash vs. Ram Kumar, this Court observed: (SCC p.445, para 4) “4. ……A party cannot be granted a relief which is not claimed, if the circumstances of the case are such that the granting of such relief would result in serious prejudice to the interested party and deprive him of the valuable rights under the statute.” 33. Though a High Court has power to mould reliefs to meet the requirements of each case, that does not mean that the draftsman of a writ petition should not apply his mind to the proper relief which should be asked for and throw the entire burden of it upon the court”. In the said judgment, the Hon’ble Apex Court has observed that though provisions of CPC are not made applicable to the proceedings under Article 226 of the Constitution of India but the general principles made in the CPC will apply even to writ petitions. Hon’ble Apex Court also observed that the approach of High Court in granting relief not prayed cannot be approved by the Supreme Court. In the present case though the petitioner has prayed for permitting him to discharge the duties of peon pursuant to appointment order dated 01.02.2014, but there is no challenge to the appointment order of the appellant. This relief prayed for in the writ petition could only be granted after setting aside the appointment order of the appellant. 4. Learned counsel for the respondent no.1-petitioner Mr. Amar Shukla submits that on 01.06.2015, Committee of Management filed the counter affidavit in which appointment letter of the appellant was annexed and on 02.06.2015 the writ petition was finally disposed of and infact he could not get sufficient time to challenge the appointment order of the appellant. At this learned Senior Counsel for the appellant submitted that one recall application was moved by the Committee of Management earlier. In paragraph 2 and 6 of the said recall application it was referred that the appointment of the appellant had been made and infact the respondent no.1-petitioner had sufficient knowledge prior to 01.06.2015. 5. We are not going into the merit of the case but we are simply considering the issue, whether appointment of the appellant could be set aside without challenge to the same. In our view, this could not be done. 5. We are not going into the merit of the case but we are simply considering the issue, whether appointment of the appellant could be set aside without challenge to the same. In our view, this could not be done. The learned Single Judge erred in quashing the appointment of the appellant without any challenge to the same. Consequently, the judgment and order dated 02.06.2015 is set aside and matter is remanded back to the learned Single Judge. The appeal stands allowed. Considering the facts of the case, we however, permit the respondent no.1-petitioner to move an amendment application before the learned Single Judge, if he so advised.