High Court of H.P.IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CWP No.1879 of 2019.

Reserved on : 28.07.2021.

Date of decision: 02.08.2021.

Vinod Kumar …..Petitioner.

Versus

Union of India and others …..Respondents.

Coram

The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.

The Hon’ble Mr. Justice Satyen Vaidya, Judge.

Whether approved for reporting?

1

Yes

For the Petitioner :Mr. Lalit K. Sharma,

Advocate.

For the Respondents: Mr. Shashi Shirshoo, Central

Government Standing

Counsel.

(Through Video Conferencing)

Tarlok Singh Chauhan, Judge

The instant petition has been filed for grant of

the following substantive reliefs:-

“(i) That the impugned oral order dated

06.08.2019 whereby respondent No.4 has directed

the petitioner not to report for his duty as Lab.

Assistant in ECHS Polyclinic, Solan, District Solan, H.P.

1

Whether the reporters of the local papers may be allowed to see the Judgment?Yes

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after 18.08.2019 may kindly be set aside and

quashed.

(ii)That a writ in the nature of certiorari may

kindly be issued thereby quashing and setting aside

the impugned letter dated 04.02.2019 Annexure

P-8 and by way of writ of mandamus the respondent

may kindly be directed to allow the petitioner to

hold the post of Lab. Assistant at Ex-Servicemen

Contributory Health Scheme (ECHS) Polyclinic Solan,

District Solan, H.P. till the disposal of issue raised

in SLP No. 36359/2016 in the Hon’ble Apex Court

against the judgment passed by this Hon’ble Court

in CWP No. 9093/2014 decided on 02.12.2016.

(iii)That in alternate the respondent may be

directed to utilize the services of the petitioner as

X-Ray Technician in case the post of Lab Assistant by

all means is not required at all at Poly Clinic Solan as

the respondents themselves have registered the

name of the petitioner as Radiation Professional with

respect to ECHS Polyclinic Solan and he has issued

BARC Accredited TLD certificate by Defence

Laboratory Jodhpur.”

2. On 16.02.2008, the respondents issued the

employment notice for the direct recruitment to the

different posts on different Polyclinic under Ex-Servicemen

Contributory Health Scheme in ECHS Polyclinic Solan and

other places. In this notice, the applications from desirous

eligible candidates for the post of Lab. Assistant at

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Polyclinic, Solan were invited within fifteen days. The

petitioner being eligible submitted his candidature within

the stipulated period.

3. On 05.03.2008, the respondents conducted

interview and out of five other candidates, the petitioner

was selected for the above post. On 28.03.2008, the ECHS

Station Headquarter, Kasauli, issued the appointment letter

of MED Staff (Lab Assistant) in favour of the petitioner, who

was directed to report for duty at ECHS, Polyclinic Solan by

01.04.2008.

4. The petitioner joined as Lab Assistant at ECHS,

Polyclinic Solan, on 01.04.2008 and on the said date an

agreement of employment was executed wherein the

contractual period of 12 months was mentioned as initial

period and the same was made renewal for 12 months at a

time and subject to attaining the maximum age as

prescribed in Appendix A to Government of India, Ministry

of Defence Letter No. 24(6)/03/US/WE/D (RES) dated

22.09.2003 or as amended from time to time upto the age

of 58 years.

5. The respondents after the completion of

contractual period of 12 months entered upon the renewal

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contract of employment on the same terms and conditions

on yearly basis and last agreement was made on

22.09.2018 and 29.10.2018 wherein the contract of

employment was further renewal upto 18.08.2019.

6. However, the respondents on 04.02.2019 issued

notice to the petitioner that his services will be terminated

with effect from 31.03.2019 constraining him to approach

this Court by filing CWP No. 401/2019. This petition was

disposed of on the basis of the instructions imparted by the

respondents that the services of the petitioner shall be

retained till the expiry of the contract period i.e.

November, 2019.

7. On 06.08.2019, respondent No.4 orally directed

the petitioner not to report for duty after 18.08.2019,

hence, the petition.

8. The respondents contested the petition by filing

reply wherein in preliminary submissions, it has been

averred that the petitioner has suppressed material and

important facts from this Court while filing the present

petition. It is claimed that the petitioner had earlier filed

CWP No. 401/2019 on the same and similar facts for the

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same relief and the same was decided by this Court on

29.03.2019 by observing as under:-

“Learned Assistant Solicitor General of India informs

that as per the instructions received by him,

contract of the petitioner is valid till November, 2019

and he shall be retained in service till the expiry of

the contract period i.e. November, 2019 and at this

stage, instant writ petition has been rendered

infructuous. Ordered accordingly. Pending

applications, if any, also stand disposed of.”

9. In the other preliminary submissions, it is

averred that the petitioner has suppressed another vital

fact from this Court that the vacancy of the Lab Assistant

on which the petitioner was employed has since been

abolished vide letter dated 10.01.2019.

10. On merits, it is contended that the petitioner

had accepted the terms of his appointment on contractual

basis with his eyes wide open and, therefore, he is estopped

from filing the instant petition.

11. We have heard the learned counsel for the

parties and gone through the material placed on record.

12. At the outset, it needs to be noticed that it is the

specific case of the petitioner that he had right to hold the

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post in question till his superannuation or atleast till the

matter was not decided by the Hon’ble Supreme Court in

SLP. However, in case, the order dated 29.03.2019 passed

in CWP No. 401/2019 (supra) is now adverted to, the

petitioner did not object to the petition being disposed of

with the limited relief permitting him to continue till

November, 2019. Nowhere, the petitioner impressed upon

the Court at that time to claim that he had right to continue

till his superannuation or till the disposal of the appeal.

13. In such circumstances, the principles contained

under Order 2 Rule 2 of the Civil Procedure Code are clearly

applicable to the facts of the instant case.

14. It is more than settled that avoiding the

multiplicity of legal proceedings should be the aim of all

courts and, therefore, a litigant cannot be allowed to split

up his claim and file writ petition in piecemeal fashion. If

the litigant could have, but did not without any legal

justification claim a relief which was available to him at the

time of filing earlier writ petition, the same claim cannot be

allowed to be subsequently agitated by filing another writ

petition.

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15. In this context, it shall be apt to refer to the

judgment of the Hon’ble Supreme Court in M/s. D.

Cawasji and Co., etc vs. State of Mysore and another ,

AIR 1975 SC 813 wherein it was held as under:

“[18] But, that however, is not the end of the matter.

In the earlier writ petitions which culminated m the

decision in (1968) 2 Mys LJ 78 = (AIR 1969 Mys 23)

the appellants did pray for refund of the amounts

paid by them under the Act and the High Court

considered the prayer for refund in each of the writ

petitions and allowed the prayer in some petitions

and rejected it in the others on the ground of delay.

The Court observed that those writ petitioners whose

prayers had been rejected would be at liberty to

institute suits or other proceedings. We are not sure

that, in the context, the High Court, meant by 'other

proceedings', applications in the nature of

proceedings under Article 226, when it is seen that

the Court refused to entertain the relief for refund on

the ground of delay in the proceedings under Article

226 and that in some cases the Court directed the

parties to file representations before Government.

Be that as it may, in the earlier writ petitions, the

appellants did not pray for refund of the amounts

paid by way of cess for the years 1951-52 to 1965-

66 and they gave no reasons before the High Court

in these writ petitions why they did not make the

prayer for refund of the amounts paid during the

years in question. Avoiding multiplicity of

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unnecessary legal proceedings should be an aim of

all courts. Therefore, the appellants could not be

allowed to split up their claim for refund and file writ

petitions on this piecemeal fashion. If the appellants

could have, but did not, without any legal

justification, claim refund of the amounts paid during

the years in question, in the earlier writ petitions, we

see no reason why the appellants should be allowed

to claim the amounts by filing writ petitions again. In

the circumstances of this case, having regard to the

conduct of the appellants in not claiming these

amounts in the earlier writ petitions without any

justification, we do not think we would be justified in

interfering with the discretion exercised by the High

Court in dismissing the writ petitions which were

filed only for the purpose of obtaining the refund and

directing them to resort to the remedy of suits.”

16. In Commissioner of Income Tax, Bombay vs.

T.P. Kumaran, (1996) 10 SCC 561, the Hon’ble Supreme

Court observed as under:

“[4] The tribunal has committed a gross error of law

in directing the payment. The claim is barred by

constructive res judicata under Section 11,

Explanation IV, Civil Procedure Code which envisages

that any matter which might and ought to have been

made ground of defence or attack in a former suit,

shall be deemed to have been a matter directly and

substantially in issue in a subsequent suit. Hence

when the claim was made on earlier occasion, he

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should have or might have sought and secured

decree for interest. He did not seek so and,

therefore, it operates as res judicata. Even

otherwise, when he filed a suit and specifically did

not claim the same, Order 2 Rule 2 Civil Procedure

Code prohibits the petitioner to seek the remedy

separately. In either event, the OA is not

sustainable.”

17. Where the principle of constructive res judicata

would apply to writ petition was subject matter of

consideration before the Hon’ble Supreme Court in

Avinash Nagra vs. Navodaya Vidyalaya Samiti and

others, (1997) 2 SCC 534 wherein it was held as under:

“[13] The High court also was right in its conclusion

that the second writ petition is not maintainable as

the principle of constructive res judicata would apply.

He filed the writ petition in first instance but

withdrew the same without permission of the court

with liberty to file the second writ petition which was

dismissed. Therefore, the second writ petition is not

maintainable as held by the High court in applying

the correct principle of law. Thus considered we find

no merit in the appeal for interference.”

18. Apart from above, the provisions of Code of Civil

Procedure are not applicable in writ jurisdiction by virtue of

the provision of section 141 but the principles enshrined

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therein are applicable. (vide Gulabchand Chhotalal

Parikh vs. State of Gujarat , AIR 1965 SC 1153,

Babubhai Muljibhai Patel vs. Nandlal Khodidas Barot ,

AIR 1974 SC 2105 and Sarguja Transport Service vs.

STAT, AIR 1987 SC 88)

19. The question posed before this Court otherwise

stands directly answered by this Court in Kundlu Devi

and another vs. State of H.P. and others , Latest HLJ

2011 (HP) 579 wherein it was held as under:

“4. The contention of the learned counsel for the

petitioners is that though the grievance with regard

to quantum was dealt with, the grievance with

regard to the claim for rent and occupation charges

during the period the property was in possession of

the Government has not been dealt with. According

to the petitioners, they are entitled to the same in

view of the decision of the Apex Court in R.L. Jain

Versus DDA, (2004) 4 Supreme Court Cases 79. We

do not think that it will be proper for this Court at

this stage in proceeding under Article 226 of the

Constitution of India to go into the question as to

whether the petitioners are entitled to that

component of compensation. That grievance the

petitioners have pursued in accordance with the

procedure prescribed under the Land Acquisition Act,

1894 initially before the Collector, thereafter before

the Civil Court and finally in appeal before the High

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Court. According to the petitioners, though this

grievance was raised, the same has not been

adverted to. If that be so, a civil writ petition or for

that matter any other collateral proceeding is not the

remedy. All contentions, which a party might and

ought to have taken, should be taken in the original

proceedings and not thereafter. That is the well

settled principle under Order II Rule 2 CPC. Order II

Rule 2 reads as follows:

“2.Suit to include the whole claim. –

(1) Every suit shall include the whole of the

claim which the plaintiff is entitled to make in

respect of the cause of action; but a plaintiff

may relinquish any portion of his claim in order

to bring the suit within the jurisdiction of any

Court.

(2) Relinquishment of part of claim. – Where a

plaintiff omits to sue in respect of, or

intentionally relinquishes, any portion of his

claim, he shall not afterwards sue in respect of

the portion so omitted or relinquished.

(3) Omission to sue for one of several reliefs. –

A person entitled to more than one relief in

respect of the same cause of action may sue

for all or any of such reliefs; but if he omits,

except with the leave of the Court, to sue for

all such reliefs, he shall not afterwards sue for

any relief so omitted.”

5. This Rule is based on the principle that the

defendant shall not be vexed twice for one and the

same cause. The Rule also seeks to prevent two

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evils, one the splitting of claims and the other

splitting of remedies. If a plaintiff omits any portion

of the claim or omits any of the remedies in respect

of the cause, he shall not be permitted to pursue the

omitted claim or the omitted remedy. The

requirement of the Rule is that every suit should

include the whole of the claim which the plaintiff is

entitled to make in respect of a cause of action.

Cause of action is a cause which gives occasion for

and forms foundation of the suit. If that cause of

action enables a person to ask for a larger and

broader relief than to which he had limited his claim,

he cannot thereafter seek the recovery of the

balance of the cause of action by independent

proceedings. This principle has been also settled by

the Apex Court in Sidramappa versus Rajashetty, AIR

1970 SC 1059.

6. Order II Rule 2 applies also to writ proceedings.

The left out portion of a cause of action cannot be

pursued in a subsequent writ proceedings. All claims

which a petitioner might and ought to have taken,

should be taken in one proceedings and only in one

proceedings. {See the decision of the Supreme Court

in Commissioner of Income-tax vs. T.P. Kumaran,

1996(1) SCC 561}.

7. Equally, a person who has filed the suit seeking

certain relief in respect of a cause of action is

precluded from instituting another suit for seeking

other reliefs in respect of the same cause of action.

He shall not be entitled to invoke the writ jurisdiction

of the High Court for obtaining the very same relief.

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In other words, if a second suit is barred, a writ

petition would also be barred. What is directly

prohibited cannot be indirectly permitted. That is the

principle underlying under Order II Rule 2 CPC.”

20. Apart from the above, it has specifically come in

the reply filed by the respondents that they have already

abolished the vacancy of Lab. Assistant against which the

petitioner had been working vide letter dated 10.01.2019.

The petitioner has not assailed this action of the

respondents by amending the petition or even filing

rejoinder.

21. It is more than settled that power to abolish a

post is inherent in the right to create it. The Government

has always the power, subject, of course, to the

constitutional provisions to reorganize a department to

provide efficiency and to bring about economy that it can

abolish an office or post in good faith. However, the action

to abolish a post should not be just a pretence taken to get

rid of an inconvenient incumbent which is not a fact

situation obtaining in the instant case.

22. Lastly and more importantly, the appointment of

the petitioner was purely on contract basis and on a

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consolidated pay for a fixed period. The period of contract

was extended from time to time and thereafter the post

was abolished. Since, the contractual period had expired,

the petitioner has no right to continue.

23. The power of the Government in abolishing a

post and the role of the Court for interference has

succinctly been summarized by the Hon’ble Supreme

Court after taking into consideration the majority of the

earlier judgments in State of Haryana and others versus

Navneet Verma (2008) 2 SCC 65 wherein it was

observed as under:-

“11. Before proceedings to ascertain the answer for

the above question, it is useful to refer to the

appointment order of the Government of Haryana

dated 13-7-1993 whereby the respondent herein was

appointed as Accounts Executive in HBPE. Among

the other terms, Clause-2 of the said order is

relevant which reads as under:

“This offer of appointment is purely against

temporary post which is liable to be abolished at

any time and carries no promise of subsequent

permanent employment. No offer of permanent

vacancy can be made to him at present.

Consequently his services can be terminated

without notice whenever there is no vacancy

against which he can be retained.”

It is clear that the respondent herein was appointed

purely against temporary post and it is liable to be

abolished at any time. The said clause makes it

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clear that the post has no assurance or promise for

a permanent employment. It also makes it clear

that his services can be terminated without notice

whenever there is no vacancy against which he can

be retained. Now, with this background, let us

consider the law laid down by this Court with

regard to power of the Government in abolishing

temporary/permanent post.”

24. In view of the aforesaid discussion, we find no

merit in this writ petition and the same is accordingly

dismissed, leaving the parties to bear their own costs.

Pending application, if any, also stands disposed of.

(Tarlok Singh Chauhan)

Judge

(Satyen Vaidya)

Judge

2

nd

August, 2021.

(krt)

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