The Apex Court of India has reiterated that bar of Order II Rule 2 of the CPC may not apply to a writ petition.
The Court was considering a writ in which the difficulty raised was whether the service rendered by the petitioners within the Supreme Court Legal Aid Committee and Supreme Court Legal Services Committee before the promulgation of the Supreme Court Legal Services Committee Rules, 2000 is to be counted whereas scheming their qualifying service for determination of pension.
The petitioner during this case, had earlier filed a writ petition within which there was a general claim to grant all the advantages together with retiral benefits. Therefore, in the present case the contention was that the plea could have been taken in the previous writ petition and, in fact, such a plea was raised.
However finally the court failed to grant this relief and, therefore, they cannot file the 2nd petition. On this side, the bench comprising Justices L Nageswara Rao and Deepak Gupta observed:
“Though it’s correct that within the writ petition there was a general claim to grant all the advantages underneath rule 6 which might embody retiral advantages however it seems that the court did not go into the similar. There’s no rejection of the plea and we are of such a view that this petition is maintainable and can’t be rejected on this hyper technical ground.”
The court refered to the judgement in Devendra Pratap Narain Rai Sharma vs State Of UP and others, within which the subsequent observations was made:
“The bar of order 2 rule 2 of the CPC on which the HC apparently relied might not apply to a petition for a high privilege writ under Article 226 of the Indian Constitution, however the high court having disallowed the claim of the appellant for remuneration before the date of the suit, we don’t assume that we would be justified in interfering with the exercise of its discretion by the high court.”
The court noted that this view has been followed in Gulabchand Chhotalal Parikh vs State of Gujarat. It thus allowed the petition and directed that the whole service rendered by the petitioners within the Supreme Court Legal Aid Committee and the Supreme Court Legal Services Committee shall be treated as qualifying service for the aim of pension and shall be taken into the thought for scheming their retiral advantages.
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