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[Relinquishment of Claims] Bar Under Order II Rule 2 CPC May Not Apply To Writ Petitions: SC [Read Judgment]

Ashok Kini
6 Feb 2020 11:48 AM GMT
[Relinquishment of Claims] Bar Under Order II Rule 2 CPC May Not Apply To Writ Petitions: SC [Read Judgment]
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The Supreme Court has reiterated that bar of Order II Rule 2 of the Civil Procedure Code may not apply to a writ petitions.The Court was considering a writ in which the issue raised was whether the service rendered by the petitioners in the Supreme Court Legal Aid Committee and Supreme Court Legal Services Committee prior to the promulgation of the Supreme Court Legal Services Committee...

The Supreme Court has reiterated that bar of Order II Rule 2 of the Civil Procedure Code may not apply to a writ petitions.

The Court was considering a writ in which the issue raised was whether the service rendered by the petitioners in the Supreme Court Legal Aid Committee and Supreme Court Legal Services Committee prior to the promulgation of the Supreme Court Legal Services Committee Rules, 2000 is to be counted while calculating their qualifying service for determination of pension.

The petitioners in this case, had earlier filed a writ petition in which there was a general claim to grant all the benefits including retiral benefits. Therefore, the contention was that the plea in the present case could have been taken in the earlier writ petition and, in fact, such a plea was raised but finally the Court did not grant this relief and, therefore, they cannot file the second petition. On this aspect, the bench comprising Justices L. Nageswara Rao and Deepak Gupta observed:

"Though it is correct that in the writ petition there was a general claim to grant all the benefits under Rule 6 which would include retiral benefits but it appears that the Court did not go into the same. There is no rejection of the plea and as such we are of the considered view that this petition is maintainable and cannot be rejected on this hyper¬technical ground."

The Court referred to the judgment in Devendra Pratap Narain Rai Sharma v. State of Uttar Pradesh and Others, in which the following observation was made

"The bar of O.2 R. 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."

The Court noted that this view has been followed in Gulabchand Chhotalal Parikh v. State of Gujarat. It therefore allowed the petition and directed that the entire service rendered by the petitioners in the Supreme Court Legal Aid Committee and the Supreme Court Legal Services Committee shall be treated as qualifying service for the purpose of pension and shall be taken into consideration for calculating their retiral benefits. 

Case name: BRAHMA SINGH vs. UNION OF INDIA
Case no.: WRIT PETITION (CIVIL) NO. 59 OF 2019 
Coram: Justices L. Nageswara Rao and Deepak Gupta 


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