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2020 DIGILAW 624 (KER)

Ashadevi N. P. v. State of Kerala

2020-07-22

C.S.DIAS

body2020
ORDER : 1. The writ petitioners - seven in number - are retired High School Assistants, who worked in different aided schools in various parts of the State. 2. The petitioners have averred in the writ petition that they joined aided school service, initially on temporary vacancies of different broken spells, but later got regular appointments. The controlling officers under the 3rd respondent - Director General of Education granted approval to the appointments, which have found place in their respective service books, and are reckoned for their service benefits, including increments and grade promotions. The petitioners were under the impression that their entire service would be counted for calculating pensionary benefits. It is a right, as on date of their entry in regular service, as contemplated under the relevant provisions of Part - III of the Kerala Service Rules read with the Kerala Education Rules, 1959. But, the 1st respondent has issued Government orders, and thereafter, by SRO No. 572/2018 dated 10/08/2018, has curtailed reckoning of broken/leave/temporary spells of aided school service for pensionary benefits. This act has caused prejudice to the petitioners. The petitioners entitlement to reckon broken spells is no longer res integra in view of the judgment dated 04/07/2019 of the Division Bench of this Court in W.A. No. 1235 of 2018 and connected cases. Subsequently, the 1st respondent by GO(MS) No. 401/2019 Fin dated 28/10/2019 (Exhibit P-10) has directed broken service of aided school teachers, who retired prior to 10/08/2018, to be reckoned for their pensionary benefits. In the said circumstances, the petitioners, relying on Exhibits P - 11 series to P - 17 series documents have sought for the following reliefs: (i) Issue a writ of certiorari or any other appropriate writ, direction or order, quashing substituted clauses of sub-rule (a) in R.14E, insertion of sub-rule (d) in R.14E of Part III KSR introduced as per Exhibit - P1 amendment. (ii) Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents 1 & 2 to issue appropriate direction to the Pension sanctioning officers of the petitioners under 3rd respondent and 4th respondents to reckon the approved broken period of service for pensionary benefits along with continuous service and issue revised verification report, pension payment order and gratuity payment order reckoning the broken/temporary aided school service of the petitioners. (iii) Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to issue appropriate orders permitting, reckoning, sanctioning and disbursement or pensionary benefits of 1 year 9 months 23 days (1Y9M23D) broken aided school service to the 1st petitioner on submission of revised pension proposal. (iv) Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to issue appropriate orders permitting, reckoning, sanctioning and disbursement of pensionary benefits of 1 year 3 months (1Y3MOD) broken aided school service to the 2nd petitioner on submission of revised pension proposal. (v) Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to issue appropriate orders permitting, reckoning, sanctioning and disbursement or pensionary benefits of 4 years 8 months (4Y8MOD) broken aided school service to the 3rd petitioner on submission of revised pension proposal. (vi) Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to issue appropriate orders permitting, reckoning, sanctioning and disbursement or pensionary benefits of 1 years 2 months, 19 days (1Y2M19D) broken aided school service to the 4th petitioner on submission of revised pension proposal. (vii) Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to issue appropriate orders permitting, reckoning, sanctioning and disbursement of pensionary benefits of 11 months, 6 days (0Y11M6D) broken aided school service to the 5th petitioner on submission of revised pension proposal. (viii) Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to issue appropriate orders permitting, reckoning, sanctioning and disbursement or pensionary benefits 1 years 2 months, 16 days (01Y02M16D) broken aided school service to the 6th petitioner on submission of revised pension proposal. (ix) Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to issue appropriate orders permitting, reckoning, sanctioning and disbursement or pensionary benefits of 1 year 4 months 10 days (1Y4M10D) broken aided school service to the 7th petitioner on submission of revised pension proposal. (x) Declare that different spells of broken/leave/provisional aided school services rendered by petitioners are eligible for reckoning pensionary benefits by virtue of R.3 of Chapter XXVII - B of K.E.R. (xi) Grant such other and necessary orders which are deem fit and proper to secure the ends of justice. 3. (x) Declare that different spells of broken/leave/provisional aided school services rendered by petitioners are eligible for reckoning pensionary benefits by virtue of R.3 of Chapter XXVII - B of K.E.R. (xi) Grant such other and necessary orders which are deem fit and proper to secure the ends of justice. 3. When this writ petition came up for admission, this Court entertained a doubt as to the maintainability of reliefs (iii) to (x) in a single writ petition in respect of separate, independent and distinct causes of action. 4. Heard Shri. Shiji Antony, the learned counsel for the petitioners and Shri. C. M. Suresh Babu, the learned Special Government Pleader appearing for the respondents. 5. Chapter XI of the Rules of the High Court of Kerala, 1971 (for brevity referred to as "Rules") deals with proceedings under Art.226, Art.227 and Art.228 of the Constitution of India. The Rules do not contain an analogous provision to Order II R.3 of the Code of Civil Procedure, 1908 (in short "Code"), pertaining to joinder of causes of action. 6. R.147A of the Rules state that when more persons than one join in one writ petition as petitioners, each person joining in such writ petition has to pay court - fee payable under Art.11(r) of Schedule II(ii) of the Kerala Court Fees and Suit Valuation Act, 1959 as if each of them have filed a separate writ petition. 7. A learned Single Judge of this Court in John Varghese v. Kerala State Road Transport Corporation and others ( 2009 (4) KLT 671 ) held as follows: "2. xxxxxxxxxxxxxxxxxxxxxxxx The different decisions of the Apex Court and of this Court stand to advise that the procedure prescribed under the CPC is founded on the fundamental principles of natural justice and unless it is necessary to exclude the application of CPC on grounds of grave inconvenience etc., it would always be advisable to follow the broad principles of the Code even in writ matters." 8. The above legal proposition was re - iterated by the Division Bench of this Court in Dhanu Joby @ Dhanu Shaji v. Joby Cheriyan and another ( 2016 (1) KHC 678 ). 9. Order II R.3 and R.6 of the Code of Civil Procedure, reads thus:"3. Joinder of causes of action. The above legal proposition was re - iterated by the Division Bench of this Court in Dhanu Joby @ Dhanu Shaji v. Joby Cheriyan and another ( 2016 (1) KHC 678 ). 9. Order II R.3 and R.6 of the Code of Civil Procedure, reads thus:"3. Joinder of causes of action. - (1) Save as otherwise provided, a plaintiff may unite in the same suit several causes of action against the same defendant, or the same defendants jointly; and any plaintiffs having causes of action in which they are jointly interested against the same defendant or the same defendants jointly may unite such causes of action in the same suit""6. Power of Court to order separate trials. - Where it appears to the Court that the joinder of causes of action in one suit may embarras or delay the trial or is otherwise inconvenient, the Court may order separate trials or make such other order as may be expedient in the interests of justice" 10. The Hon'ble Supreme Court in Mota Singh and others v. State of Haryana and others (1981 KHC 781) has held as follows: "25. Having regard to the nature of these cases where every owner of a truck plying his truck for transport of goods has a liability to pay tax impugned in the petition, each one has his own independent cause of action. A firm as understood under the Partnership Act or a Company as understood under the Indian Companies Act, if it is entitled in a law to commence action either in the firm name or in the Company's name can do so by filing a petition for the benefit of the Company or the partnership and in such a case court - fee would be payable depending upon the legal status of the petitioner. But it is too much to expect that different truck owners having no relation with each other either as partners or any other legally subsisting jural relationship of association of persons would be liable to pay only one set of court - fee simply because they have joined as petitioners in one petition. But it is too much to expect that different truck owners having no relation with each other either as partners or any other legally subsisting jural relationship of association of persons would be liable to pay only one set of court - fee simply because they have joined as petitioners in one petition. Each one has his own cause of action arising out of the liability to pay tax individually and the petition of each one would be a separate and independent petition and each such person would be liable to pay legally payable court - fee on his petition. It would be a travesty of law if one were to hold that as each one uses high way, he was common cause of action with the rest of truck pliers"(emphasis given) 11. In Dhanyalakshmi Rice Mills v. The Commissioner of Civil Supplies and another (1976 KHC 1007), the Hon'ble Supreme Court held thus:"27. The remedy under Art.226 is not appropriate in the present cases for these reasons as well. First, several petitioners have joined. Each petitioner has individual and independent cause of action. A suit by such a combination of plaintiffs would be open to misjoinder." 12. Similarly, the High Court of Andhra Pradesh in Management of Singarnini v. Industrial Tribunal and others (1975 ILLJ 470 AP) observed as follows:"25. Thus we find that writ proceedings are proceedings in a Civil Court and that only the provisions of C.P.C. which can be conveniently applied, will apply to writ proceedings. There is preponderance of judicial opinion in favour of maintainability of a single writ petition at the instance of several petitioners, when the cause of action arises out of the same act or transaction giving rise to a common question of law or fact and out of a common order. Similarly a single writ petition can be filed by a petitioner against several respondents, if the right to relief arises out of same Act or transaction giving rise to common question of law or fact and out of a common order. It is only in cases where there are distinct and different causes of action and those cases are disposed of by similar, but separate orders, a single writ petition cannot be filed. In such cases, as many writ petitions have to be filed as the number of petitioners. It is only in cases where there are distinct and different causes of action and those cases are disposed of by similar, but separate orders, a single writ petition cannot be filed. In such cases, as many writ petitions have to be filed as the number of petitioners. Filing of a single writ petition by several persons or by a petitioner against several respondents, in the circumstances stated above, is only a practical rule of convenience.xxxxxxxxxxxx"(emphasis given) 13. Writ proceedings arise out of the extraordinary jurisdiction conferred on the High Courts as enshrined under Art.226 of the Constitution of India. They, to a certain extent, stand on a separate footing from civil proceedings. Halsbury's Laws of England (Lord Simon's iii Edition) Volume 11 Page 83 paragraph 155 reads thus: "155. Enforcement of separate claims. Two persons cannot join in a single application for an order of mandamus to enforce separate claims. There must be separate applications for separate orders, and that although the several applicants are successors in the office in respect of which the claims arise." 14. In the case on hand, the petitioners who are retired High School Assistants, worked at various schools at different Districts in State under the jurisdiction of different Educational Officers. They have by way of reliefs (iii) to (x) sought eight writs of mandamus, for the disbursement of their pensionary benefits for various broken spells of service rendered by them based on Exhibits P - 11 series to P - 17 series documents. 15. Going by the pleadings and materials on record in the writ petition, this Court finds that reliefs relate to the respective petitioners based on Exhibits P - 11 series to P - 17 series documents. The reliefs are separate, distinct and different, and not common to the petitioners. Moreover, none of the Educational Officers, who have issued Exhibits P - 11 series to P17 series documents, within whose jurisdiction the petitioners worked, are impleaded in this writ petition. The respondents, who are on record, if they have to file a counter affidavit in this writ petition would have to get instructions pertaining to each of the petitioners from the different Educational Officers working at various Districts. Thereafter, this Court would have to segregate the pleadings in respect of each petitioner, to decide reliefs (iii) to (x), which would cause inconvenience and delay in the determination of the writ petition. Thereafter, this Court would have to segregate the pleadings in respect of each petitioner, to decide reliefs (iii) to (x), which would cause inconvenience and delay in the determination of the writ petition. Unlike Order II R.6 of the Code, where the Court can order separate trials for each cause of action, a writ petition has to be decided on the basis of the pleadings and the materials on record. If all the petitioners are to succeed, seven separate mandamuses will have to be issued. There is a likelihood of the claim of some of the petitioners being allowed and some being disallowed. In such an eventuality, it would mean that a part of the writ petition will have to be allowed and a part will have to be disallowed, which is the problem in jumbling up of the causes of action. 16. In light of the decisions of this Court in John Varghese and Dhanu Joby @ Dhanu Shaji (cited supra) holding that it is advisable to follow the broad principles of the Code, I hold that Order II of the Code applies to writ petitions filed under Art.226 of the Constitution of India, particularly in the absence of such a provision in the Rules. In view of the said finding and the decisions in Mota Singh and Others, Dhanyalakshmi Rice Mills and Andhra Pradesh in Management of Singarnini (cited supra) I hold that the clubbing of reliefs (iii) to (x) makes the writ petition is bad for multifariousness due to the misjoinder of causes of action, which would cause delay and inconvenience the Court. Hence, I hold that reliefs (iii) to (x) are not maintainable in law. Therefore, I admit the writ petition in respect of reliefs (i) and (ii), and dismiss the writ petition in respect of reliefs (iii) to (x), but by granting liberty to the petitioners to file independent writ petitions in respect of reliefs (iii) to (x) for enforcement of their respective independent claims.