Dhadi Mallik and 7 ors. Vs. Sri Maheswar Rout and 31 ors. - Court Judgment

Excerpt:
- labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - for amendment of the plaint for impleading the state as a party to the suit as well as the some averments to be included in the plaint itself.orderl. mohapatra, j.1. heard learned counsel for the petitioners and learned counsel for the state.2. the order dated 30th august 2007 passed by the learned civil judge (senior division), jajpur in title suit no. 32 of 1987 rejecting the application filed under order 1, rule 10(2) of the code of civil procedure to implead the state of orissa as defendant in the suit is under challenge.3. as it appears, an application had earlier been filed under order 6, rule 17 of the c.p.c. for amendment of the plaint for impleading the state as a party to the suit as well as the some averments to be included in the plaint itself. the said petition was rejected on the ground that notice under section 80 of the c.p.c. had not been given to the state but the present case is under order 1, rule 10(2) c.p.c. to implead the state, which stands on a different footing. i am, therefore of the view that mere rejection of the earlier petition filed under order 6, rule 17 of the c.p.c. shall not stand on the way in deciding the present application filed under order 1 rule 10(2) c.p.c. this petition having not been dealt with on merit, the order is unsustainable. i, accordingly set aside the order dated 30th august 2007 and direct the learned civil judge to reconsider the application filed under order 1, rule 10(2) c.p.c. on merit and dispose of the same with reasons. since this writ application is disposed of without issuing notice to the opposite parties, it will be open for them to seek for variation of the order, if aggrieved.

Judgment:
ORDER

L. Mohapatra, J.

1. Heard learned Counsel for the petitioners and learned Counsel for the State.

2. The order dated 30th August 2007 passed by the learned Civil Judge (Senior Division), Jajpur in Title Suit No. 32 of 1987 rejecting the application filed under Order 1, Rule 10(2) of the Code of Civil Procedure to implead the State of Orissa as defendant in the suit is under challenge.

3. As it appears, an application had earlier been filed under Order 6, Rule 17 of the C.P.C. for amendment of the plaint for impleading the State as a party to the suit as well as the some averments to be included in the plaint itself. The said petition was rejected on the ground that notice under Section 80 of the C.P.C. had not been given to the State but the present case is under Order 1, Rule 10(2) C.P.C. to implead the State, which stands on a different footing. I am, therefore of the view that mere rejection of the earlier petition filed under Order 6, Rule 17 of the C.P.C. shall not stand on the way in deciding the present application filed under Order 1 Rule 10(2) C.P.C. This petition having not been dealt with on merit, the order is unsustainable. I, accordingly set aside the order dated 30th August 2007 and direct the learned Civil Judge to reconsider the application filed under Order 1, Rule 10(2) C.P.C. on merit and dispose of the same with reasons. Since this writ application is disposed of without issuing notice to the opposite parties, it will be open for them to seek for variation of the order, if aggrieved.