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Madhava Sastri Vs. Director, Post-graduate Centre, Anantapur - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtAndhra Pradesh High Court
Decided On
Case NumberW.P. No. 4150 of 1979
Judge
Reported in(1982)ILLJ66AP
ActsSpecific Relief Act - Sections 34; Code of Civil Procedure (CPC) (Amendment) Act, 1976; Constitution of India - Article 226; Writ Proceedings Rule, 1977 - Rule 54; Code of Civil Procedure (CPC), 1908 - Order 2, Rule 2
AppellantMadhava Sastri
RespondentDirector, Post-graduate Centre, Anantapur
Excerpt:
.....or purport to given the proceedings in this court under art. public policy underlying order 2, rule 2, civil procedure code is attracted with equal vigour in this situation as well. that clearly is opposed to considerations of public policy on which res judicata is based and would mean harassment and hardship to the opponent. we are, therefore, satisfied that the second writ petition filed by the appellant in the present case is barred by constructive res judicata. while we agree that no plaintiff can achieve indirectly what he could not achieve directly by camoug flagging the reliefs or by a clever and ingenious draftsmanship we are not satisfied that the present case is of a like nature. we are therefore, not satisfied that this writ petition is either barred or is liable to be..........pradesh administrative tribunal order, 1975 is not attracted in the case of the petitioner, and a civil suit even with respect to a condition of service maintainable in a civil court, at the instance of the plaintiff, and against the respondent herein. we are, therefore, unable to see how the aforesaid observations can be of any help to the respondent. while the state government may, in a given case, be entitled to say that it is not bound by a mere declaration of age granted by a civil court, in favour of its employee in matters relating to his conditions of service - in view of the absence of jurisdiction in a civil court to grant any declaration affecting conditions of service - no such plea can be put forward by the respondent herein. the first objection of the learned counsel for.....
Judgment:

Jeevan Reddi, J.

1. This writ petition has been referred to a bench by Gangadhara Rao, J, on the ground that the questions raised by it arise frequently and, therefore, an authoritative decision thereon is desirable.

2. The petitioner is an employee in the Post-Graduate Centre, Anantapur, which has been declared to be an autonomous institution with effect from 1st May, 1976, in accordance with Act XVI of 1976. The petitioner initially joined the service of Sree Venkateswara University on 25th July, 1960, as a Lecturer. On that occasion his date of birth was recorded as 1st June, 1919. He was transferred to the Post-Graduate Centre in April, 1976 - at that time under the Control of the University. He continued in the centre even after it was declared an autonomous institution. The age of superannuation in this Centre is sixty years. According to his date of birth recorded in the service-registers, the petitioner was to retire on 31st May, 1979. Sometime before that, he instituted a suit O.S. No. 604 of 1978, on the file of the Court of District Munsiff, Anantapur, for a declaration that his correct date of birth is 29th December, 1921. The respondent herein, i.e., the Director, Post-Graduate Centre, Anantapur was made the sole defendant in the suit. The defendant was set ex parte, and the suit was decreed on 27th November, 1978. On 10th May, 1979 it appears, the petitioner submitted an application to the respondent, drawing his attention to the decree of the civil Court, and contending that, according to it, he attains the age of superannuation only on 29th December, 1981. He enclosed a certified copy of the decree to his application. The petitioner says that he received no reply to his application, and that, when he personally met the Director, he was told that he was to retire on 31st May, 1979. He then approached this Court by way of this writ petition, on 28th May, 1979, and obtained an interim direction from this court to continue him in service pending disposal of the writ petition.

3. On 11th June, 1979 the respondent herein applied to the learned District Munsif, Anantapur, for setting aside the ex parte decree. His application, I.A. No. 599 of 1979, we are told, is still pending. The petitioner contends that the respondent, a party to the decree is bound by it and cannot, therefore, retire him from service on any date earlier than 29th November, 1981.

4. The respondent has filed a counter stating that at the time of his entering into service, the petitioner himself gave his date of birth as 1st June, 1919, that all these years he never raised any objection recording its correctness and that the controversy raised by him just at or about the time of retirement is only an afterthought, and is not true. It is submitted that, on account of certain internal disturbances in the Centre, the suit papers received by the then Director could not be traced and out and, therefore, the suit could not be contested and that, as soon as he took charge, he has taken immediate steps for contesting the suit. It is also submitted that in the suit filed by the petitioner, he did not ask for a relief or a direction to correct the service record and that, until and unless that is done, a bare declaration is of no consequence. Only because of the interim direction given by this Court, it is stated, has the petitioner been continued in service beyond 31st May, 1979.

5. Mr. P. Kodandaramayya, learned counsel for the petitioner, submitted that the respondent being a party to the declaratory decree is bound by it and that, merely because an application for setting aside the ex parte decree is pending. The respondent cannot refuse to obey or honour the decree. He submitted that this is not a suit attracting S. 34 of the Specific Relief Act and therefore, a suit for a bare declaration is valid and maintainable and that, it was not obligatory upon the petitioner to ask for any consequential direction for correction of the service-record.

6. On the other hand Sri A. Venkataramana, the learned counsel for the respondent submitted firstly that a bare decree of declaration obtained by the petitioner does not oblige the respondent to correct his date of birth entered in the service record and that inasmuch as the petitioner could have asked for correction of the service record also in the said suit but did choose to do so, he is precluded from claiming that relief by way of this writ petition. He submitted that the writ petition itself is not maintainable being barred under order 2, Rule 2, Civil Procedure Code, which Code has been applicable to proceedings under Art. 226 of the Constitution, by virtue of Rule 24 of the Writ proceedings Rules 1977, framed by this Court under Art 225 of the Constitution of India. He submitted that having not asked for correction of the service-record in the suit, the petitioner is precluded from instituting a fresh suit for that relief, and if so, he is equally precluded from maintaining a writ petition therefor. Counsel submitted further that the very fact that the petitioner, a highly educated person, took no steps whatsoever all these years to question his date of birth as recorded in the service register and thought of only on the eve of his retirement, shows that it is only an afterthought. Even after obtaining the decree, the petitioner kept quite for a long time and brought it to the notice of the respondent only at the last minute.

7. The petitioner could have certainly asked for rectification of his service-record also in the suit instituted by him. Had he done that there would have been no room for controversy. But he did not do so. Two questions accordingly arise in this writ petition, viz : (i) whether the respondent is entitled to ignore the decree on the ground that to does not direct the rectification of the service-record and that is merely a declaratory decree; and (ii) whether the present writ petition is barred and is not maintainable.

8. So far as the first question is concerned, it must be remembered that the suit was instituted against the director of Post-Graduate Centre, Anantapur, who is the petitioner's employer. The only relief sought was a declaration that the correct date of birth of the petitioner is 29th December, 1921, and not 1st June, 1919. Reasonably and realistically speaking there could have been no purpose behind the said suit, except to bind the respondent with he declaration, and thereby obtain the benefit of extended service. The plaint allegations make the objective clear so long as the decree stands the respondent cannot say that the petitioner's date of birth is not 29th December, 1921 but that it is 1st June, 1919. Admittedly this is not a suit governed by S. 34 of the Specific Relief Act, and hence the suit for a bare declaration, without a consequential relief was certainly maintain able in law. The stand taken by the Director that because there is no further direction to him to correct the service record and, therefore, he would still act upon the entries in the service-record as they stand, and retire the petitioner is an unjustifiable one, which a public authority cannot be heard to say. Mr. A. Venkataramana relied upon certain observations in a Bench decision of this Court in D. Sambamurthy v. Collector, East Godavari, : AIR1979AP152 . (to which one of us, viz., the learned Acting Chief Justice, was a party), in support of his contention that a person may obtain a declaration as to his age for many a purpose and it cannot be said that any and every declaration obtained by him is necessarily designed to obtain variation in the conditions of his service. We are unable to see how the said decision supports the learned counsel. That was a case where the question arose whether a suit filed in a civil Court for a declaration as to the correct date of birth of a Government employee, is maintainable in the civil Court in view of clause 6 of the Andhra Pradesh Administrative Tribunal Order, 1975. Under clause 6 a civil Court is precluded from entertaining a suit relating to conditions of service of an employee of the State Government, and all such matters are to be agitated in the Andhra Pradesh Administrative Tribunal. The employee concerned therein instituted the suit for a declaration that his correct date of birth is a particular date. At that time he was holding a 'public post' as defined in the 1975 Order and, therefore, all disputes with respect to the conditions of his service could be entertained only by the Administrative Tribunal and not by a civil Court. Having instituted the suit, the plaintiff concerned therein also obtained an interim injunction restraining the defendant, viz., the Collector East Godavari, from relieving him from Government service on the basis of the date already recorded in the service-register. Thereupon the Collector, East Godavari, filed a writ petition in this Court, asking for the issuance of a writ of prohibition restraining the District Munsif from proceeding with the suit filed by the employee. He based his contention relating to lack of jurisdiction in the civil Court on clause 6 of the 1975 order. A learned single Judge allowed the writ petition. In appeal it was pointed out by the Bench that, of the two reliefs asked for in the suit, viz., (a) declaration to the effect that the correct date of birth of the plaintiff is 30th April, 1925 and not 30th April, 1923; and (B) a permanent injunction restraining the defendant therein from relieving the plaintiff from service on 30th April, 1978, the civil Court cannot admittedly grant the second relief. So far as the first relief is concerned, it was observed that the suit cannot be said to be not maintainable. Wholly, in as much as grant of declaration regarding the age is a matter undoubtedly within the jurisdiction of the civil Court. It was then observed :

'It may be that the date of superannuation would directly depend upon his date of birth but that is no ground for holding that a suit for declaration that a person was born on a particular date is related to a condition of service. It is no doubt true that in this particular case the immediate cause for filing the suit was the threat on the part of the Government to retire him on 30th April, 1978. But it is not difficult to visualise a suit for declaration that a person was born on a particular date which has no reference at all to any condition of service. We may give few instances .... Similarly a number of instances can be given where a plaintiff may require the civil Court to adjudicate upon his date of birth for the reasons totally unconnected with the conditions of service. A suit, therefore, for a declaration that a person was born on a particular date cannot by itself be regarded as suit relating to the condition of service ... The suit in so far as it relates to the claim of the plaintiff for a declaration that his date of birth is 30th April, 1923, cannot by itself be regarded as one relating to condition of service. It cannot, therefore, be said that the suit as a whole is not entertainable.

The said observations were made vis-a-vis the jurisdiction of the civil Court, and the Administrative Tribunal, and must be understood accordingly. The Bench reiterated the well-known position that a civil Court has jurisdiction to try all suits of a civil nature, except those the cognizance whereof is barred either expressly, or by necessary implication. Accordingly, it observed that any and every suit filed by an employee in Government service for a declaration of his age, is not wholly barred. While holding that it is barred in so far as it affects the conditions of service, the Bench observed that it is not barred in other fields or in other respects, as the case may be. Nor can the said decision be read or understood as warranting an employee in the State Government to achieve indirectly what he could not achieve directly. But, so far as the present case is concerned, there is no such bar, Clause 6 of the Andhra Pradesh Administrative Tribunal Order, 1975 is not attracted in the case of the petitioner, and a civil suit even with respect to a condition of service maintainable in a civil Court, at the instance of the plaintiff, and against the respondent herein. We are, therefore, unable to see how the aforesaid observations can be of any help to the respondent. While the State Government may, in a given case, be entitled to say that it is not bound by a mere declaration of age granted by a civil Court, in favour of its employee in matters relating to his conditions of service - in view of the absence of jurisdiction in a civil court to grant any declaration affecting conditions of service - no such plea can be put forward by the respondent herein. The first objection of the learned counsel for the respondent is, accordingly, rejected.

9. Regarding the second objection raised by the learned counsel for the respondent, it may be noted that the Code of Civil procedure, 1908, which applied to all proceedings in any Court of Civil jurisdiction, by virtue of S. 141 thereof, ceased to be so applicable on account of the Explanation introduced by the Civil Procedure Code (Amendment) Act, 1976. The Explanation reads :

'In this section the expression 'proceedings includes proceeding under Order 9, but does not include any proceedings under Art. 226 of the Constitution.'

The provisions of the Code of Civil Procedure are however, made applicable to writ proceedings, by Rule 24 of the Rules framed by this Court under Art. 225 of the constitution of India, Rule 24 says :

'24, All other Rules relating to causes and matters coming before the Original Side and the Appellate Side of the High Court and the provisions of the Code of Civil Procedure, 1908, will apply to the writ petitions and the writ appeals in so far as they are not inconsistent with these Rules.'

Obviously, these Rules cannot be understood as applying the entire code of Civil Procedure, as such, to writ proceedings. Indeed, it is impossible to do so. There are many provisions in the Code of Civil Procedure, which cannot be any stretch of imagination, be attracted in a writ proceeding. As observed by the Supreme Court in Babubhai v. Nanalal : [1975]2SCR71 while discussing an identical question with reference to S. 141, Civil Procedure code.

'....... The words 'as far as it can be made applicable' make it clear that, in applying the various provisions of the Code to proceedings other than those of a suit, the Court must take into account the nature of those proceedings and the relief sought. The object of Article 226 is to provide a quick and inexpensive remedy to aggrieved parties. Power has consequently been vested in the High Courts to issue to any person or authority, including in appropriate cases any government, within the jurisdiction of the High Court, orders or writs in the nature of hebeas corpus mandamus, prohibition, quo warranto and certiorari. It is plain that if the procedure of a suit had also to be adhered to in the case of writ petition the entire purpose of having a quick and in expensive remedy would be defeated. A writ petition under Art, 226 it needs to be emphasized, is essentially different from a suit and it would be incorrect to assimilate and incorporate the procedure of a suit into the proceeding of a petition under Article 226 ......'

Rule 24 must, therefore, be understood as saying that the provisions of the Civil Procedure code, are applicable to proceedings under Art. 226 of the Constitution, as far as possible and in so far as they are not inconsistent with the said Rules

10. In the context, it is also well to remember the field intended to be covered by the Writ Proceedings Rule, 1977. The Rules merely seek or purport to given the proceedings in this Court under Art. 226. It is for that purpose that the provisions of the Code of Civil Procedure are also brought in. The Original Side and the Appellate Side Rules of the High Court are also similarly imported. It is necessary to bear in mind the above aspects while answering the question, whether Order 2, Rule 2 of the Civil Procedure Code applies to writ proceedings; and if so, to what extent Now this question may arise in more that one way. It may arise vis-a-vis two writ petitions; it may arise vis-a-vis a writ petition and an earlier suit. So far as the first situation is concerned, there can be little doubt that the principle underlying Order, 2 Rule 2, being based upon public policy, should indeed apply. In other words, a petitioner who is entitled to more than one relief in respect of a cause of action should ask for all those reliefs in the same writ petition. He cannot distribute those reliefs in as many writ petitions as the number of reliefs sought. To put it differently he cannot seek reliefs in instalments. At the same time, we must caution that this cannot be treated as an absolute rule. Extraordinary situations may arise where the very public policy, upon which Order 2, Rule 2, is based demands that this rule should be ignored. But as a general rule - it goes without saying - this court would insist upon observance of Order 2, Rule 2, Civil Procedure Code, by the parties invoking the writ jurisdiction.

11. Now, so far the second situation is concerned, here too there cannot be any doubt about the general principle that Order 2, rule 2, would apply. A person who files a suit seeking certain relief in respect of a cause of action and who is precluded from instituting another suit for seeking other reliefs with respect to the same cause of action, cannot be allowed to invoke the writ jurisdiction of this Court for obtaining the very same reliefs. Indeed, if a suit is barred, a writ petition would equally be barred. Public policy underlying Order 2, Rule 2, Civil Procedure Code is attracted with equal vigour in this situation as well.

12. Mr. Kodandaramayya, the learned counsel for the petitioner relied upon the observations of the Supreme Court in Devendra Pratap v. State of Uttar Pradesh [1962-I L.L.J. 266], in support of his contention that Order 2, Rule 2, Civil Procedure Code does not apply to writ proceedings. That was a case where a Government servant, on being dismissed from service, instituted a suit for a declaration that the order of dismissal is void. That declaration was ultimately granted by the civil Court, and it was declared that the order dismissing him was void, inoperative and illegal and that the employee concerned must be deemed to have continued in service. He was reinstated, but the arrears of salary for the period he was actually out of service were not paid. He made a representation in that behalf to the Government, which was pending consideration, meanwhile he was suspended again and fresh disciplinary proceedings were started against him. An order was also passed saying that he is entitled only to a token salary of Re. 1 per month, for the period commencing from the date of his dismissal to the date of his reinstatement. The employee then filed a writ petition in the High Court of Allahabad, questioning the fresh enquiry ordered against him and also for a direction permitting him to draw his full salary and allowances for the period during which he was under suspension, during the earlier proceedings and also for the period during which the order of dismissal was operative. The High Court granted both the both the reliefs. But, so far as the second relief is concerned, it appears to have limited the relief of arrears of salary only to the period commencing from the date of suit. On appeal, the Supreme Court held that the fresh enquiry is not barred. On the second question the Supreme Court held that the fresh enquiry is not barred. On the second question the Supreme Court held, that once the order of dismissal was held to be void by a Court, the employees was entitled to full salary and that, Rule 54 of the Fundamental Rules has no application. In that context, it observed :

'The High Court has disallowed to the appellant his salary prior to the date of the suit. The bar of Order 2, Rule 2, of the Civil Procedure Code on which the High Court apparently relied may not apply to a petition for a high prerogative writ under Art. 226 of the Constitution but the High Court having disallowed the claim of the appellant for salary prior to the date of the suit, we do not think that we would be justified in interfering with the exercise of its, discretion by the High Court ......'

Accordingly, the order of the High Court was affirmed, we are of the opinion that the above observations of the Supreme Court cannot be treated as a declaration of law on the subject First, it may be noted that the Court used the expression 'may not apply'. Secondly, the question was neither put in issue nor discussed, nor argued. While observing that Order 2, Rule 2, Civil Procedure Code, may not apply, the Supreme Court yet confirmed the High Courts order in that behalf.

13. Another factor to be borne in mind is that, by 1962. The Supreme Court had not even clarified the position about the applicability of the rule of constructive res judicata in writ proceedings. Indeed the very applicability of the rule of res judicata in writ proceedings came to be raised and discussed from Daraya's case, : 1961CriLJ573a . It is only later that the Supreme Court clarified in Devilal v. Sales Tax Officer, Ratlem, that the rule of constructive res judicata also applies to writ proceeding. It observed :

'....... Considerations of public policy and the principle of the finality of judgments are important constituents of the rule of law and they cannot be allowed to be violated just because a citizen contends that his fundamental rights have been contravened by an impugned order and wants liberty to agitate the question about its validity by filing one writ petition after another.

If constructive res judicata is not applied to such proceedings a party can file as many writ petitions as he likes and take one or two points every time. That clearly is opposed to considerations of public policy on which res judicata is based and would mean harassment and hardship to the opponent. Besides, if such a course is allowed to be adopted, the doctrine of finality of judgments pronounced by this Court would also be materially effected. We are, therefore, satisfied that the second writ petition filed by the appellant in the present case is barred by constructive res judicata..'

14. To the same effect is the judgment of one of us (learned Acting Chief Justice) sitting singly in Writ Petition No. 4939 of 1972, dated 15th July, 1975. It was observed therein :

'... In my view the bar of constructive res judicata is also applicable as that is also based upon public policy. Any person ought not to be permitted to keep some contentions in reserve and urge them at a later stage if he fails in the first instance ...'

15. Now, it may be seen that if the rule of constructive res judicata which is not only a cognate rule to the one contained in Order 2 Rule 2. Civil Procedure Code, but is based upon an identical public policy, applies there is no reason why Order 2, Rule 2, should not apply.

16. Bearing the above principle in mind let us see whether the present writ petition is hit by the rule contained in Order 2, Rule 2, Civil Procedure Code. The relief sought for in this writ petition is not for correction of the service record. Had that been the case the bar may have been attracted But in his writ petition, the petitioner is only seeking for a direction to the respondent to honour, respect and implement the decree of the civil Court. While we agree that no plaintiff can achieve indirectly what he could not achieve directly by camoug flagging the reliefs or by a clever and ingenious draftsmanship we are not satisfied that the present case is of a like nature. We are therefore, not satisfied that this writ petition is either barred or is liable to be dismissed on the ground that the petitioner is seeking to obtain a relief herein which he could not obtain by way of a suit.

17. For the above reasons the writ petition is allowed, and the respondent is directed to act in a manner consistent with the decree in O.S. No. 64 of 1978, on the file of the Principal District Munsif, Anantapur. There shall be no order as to costs.


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