1. Writ petition concerning caste claim – Involuntary migration due to father's employment – New plea raised in rejoinder – Remand for fresh hearing. (Para 2 , 3 )
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2014 Supreme(SC) 1197
SUPREME COURT OF INDIA
R.M. Lodha, CJI., Madan B. Lokur, Kurian Joseph, JJ.
Rajive Nandan Mourya - Appellant
Versus
State of Bihar and Others - Respondents
Civil Appeal No. 8168 of 2014 [Arising out of S.L.P. (C) No. 7854 of 2009]
Decided On : 25-08-2014
A party may be permitted to amend a writ petition to include a new plea of involuntary migration raised in a rejoinder-affidavit, and the case may be remanded for fresh hearing and verification of caste and residence claims.
Headnote:(A) Constitution of India - Writ Jurisdiction - Caste and Reservation - Involuntary Migration - Where a plea of involuntary migration due to parental employment and being born and brought up in a state is raised for the first time in a rejoinder-affidavit and was not part of the original writ petition, the court may allow the amendment of the petition and remand the matter for fresh consideration given the importance of the issue. (Paras 2, 3 and 4)
(B) Service Law - Reversion from promotional post - If a candidate is reverted pending the final decision of a writ petition, no recovery shall be made for the period the candidate worked on the promotional post as a reserved category candidate. (Para 6)
Facts of the case:
An appellant challenging a decision regarding caste-based benefits claimed in a rejoinder-affidavit that he was a victim of involuntary migration as his father was employed in the state where he was born and brought up, thus suffering the same disability associated with his caste. This plea was not raised in the original writ petition before the High Court.
Findings of Court:
The court observed that because the specific plea regarding involuntary migration was raised for the first time in a rejoinder-affidavit and not in the original writ, the matter needs to be considered afresh by the High Court.
Issues: Whether the High Court should reconsider a writ petition after the appellant introduces a new plea of involuntary migration and residence in a rejoinder-affidavit.
Ratio Decidendi: In matters of significant importance, a party may be permitted to amend a writ petition to include a new plea introduced in a rejoinder-affidavit, and the matter may be remanded to the lower court for fresh hearing and verification of claims.
Result: Appeal allowed.
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2. Court observed that new factual plea raised for first time required fresh consideration by High Court. (Para 3 )
3. New plea raised for first time in rejoinder before Supreme Court warrants remand to High Court for fresh hearing and amendment. (Para 3 , 4 )
4. Appeal allowed – Matter remanded to High Court for fresh hearing – Reversion subject to outcome – No recovery. (Para 4 , 5 , 6 )
5. Can a new factual plea raised for the first time in a rejoinder before the Supreme Court be considered?
Such a new plea warrants remand to the High Court for fresh hearing and amendment of the writ petition. (Para 3 , 4 )
6. What is the effect of reversion pending fresh decision?
Reversion is subject to final decision in writ petition; no recovery of salary during work on promotional post. (Para 6 )
ORDER :
Leave granted.
2. In the course of hearing, Dr. Krishan Singh Chauhan, learned counsel for the appellant invited our attention to the rejoinder-affidavit filed by the appellant to the counter-affidavit of the respondent No. 1 - State of Bihar. In the rejoinder-affidavit, it is stated that the case of the appellant was one of the involuntary migration due to the employment of his father in the State of Bihar and having been born and brought up in the State of Bihar, he suffers the same disability particular to his caste.
3. Since, this fact is averred by the appellant for the first time in the rejoinder-affidavit before this Court which was not the plea set-up by him in the writ petition before the High Court, having regard to the importance of the matter insofar as the appellant is concerned, we are satisfied that matter needs to be considered afresh by the High Court.
4. We, accordingly, remand the matter to the High Court for fresh hearing and consideration of the writ petition being CWJC No. 16097 of 2007, titled " Rajive Nandan Mourya v. The State of Bihar and others". The appellant is permitted to amend the writ petition on the above lines. It will be open to the respondents to traverse the claim of the appellant by filing counter-affidavit. The High Court may direct the residence and caste claim of the appellant being verified by the appropriate authority before hearing the matter.
5. Civil Appeal is allowed as above. CWJC No. 16097 of 2007, titled " Rajive Nandan Mourya v. The State of Bihar and others" is restored to the file of the High Court for fresh hearing and disposal as noted above.
6. We are informed that the appellant has already been reverted on 22.11.2007. His reversion will be subject to the final decision in the writ petition before the High Court. Needless to say that no recovery shall be made by the State during the period the appellant worked on the promotional post as reserved category candidate before his reversion. No costs.
Appeal allowed.
