The discretionary power of the court in deciding writ petitions under Article 226 of the Constitution and the exclusion of writ proceedings from the provisions of the Code of Civil Procedure.

ORDER

1. This review petition is filed under Order XLVII Rule 1 of the Code of Civil Procedure, 1908, seeking review of order dated 17.01.2023 passed in W.P. No.26250/2022 (Raj Kumar Pateriya Vs. The State of Madhya Pradesh and others) on the ground that when case was listed on 17.01.2023 in motion hearing S.No.63 (wrongly mentioned by the petitioner as 'mother hearing No.63') by the time counsel for the petitioner reached the Court, writ petition was dismissed finally without hearing or giving opportunity to the petitioner.

2. Reliance is placed on the judgment of the Supreme Court in Ajit Kumar Singh and others Vs. Chiranjibi Lal and others, (2002) 3 SCC 609, wherein in para 8 it is held that in absence of Advocate for the petitioner, appeal can be dismissed for non prosecution. The High Court ought not to have considered the merits of the case to dismiss the second appeal.

3. Placing reliance on this judgment of the Hon'ble Supreme Court in Ajit Kumar Singh (supra), it is submitted that this Court committed a mistake in deciding the petition in absence of the learned counsel for the petitioner.

4. Shri Sourabh Soni, learned Panel Lawyer appears for the State but, his appearance is formal.

5. A perusal of the writ petition reveals that petitioner Raj Kumar Pateriya has filed a writ petition claiming relief that writ in the nature of certiorari be issued, quashing the impugned order dated 19.10.2022 (Annexure P-1) and after quashing the same, it may be pleased to issue a writ in the nature of mandamus, directing the respondents to continue the petitioner in service till 31.12.2025 i.e. till the age of 65 years, with all consequential benefits.

6. Petitioner placed reliance on the judgment of the Supreme Court in Dr. Jacob Thudipara Vs. The State of Madhya Pradesh and others, (2022) 7 SCC 764, whereby appeal of the appellant was allowed and it is held that appellant therein, is entitled to the benefit of enhanced age of superannuation i.e. 65 years. He shall be entitled to all the consequential and monetary benefits including arrears of salaries, etc. has if he would have been continued in service up to the age of 65 years.

7. Placing reliance on this judgment of Supreme Court in Dr.Jacob Thudipara (supra) dated April 21, 2022, prayer is made that the petitioner be also allowed to continue in service up to the age of 65 years.

8. This Court noted a fact that petitioner's counsel had not appeared on 17.01.2023 and this Court decided the writ with the help of the learned Panel Lawyer appearing for the State.

9. In the impugned order, it is categorically noted that petitioner is an employee of School Education Department for whom age of superannuation is not enhanced by making any amendment in the relevant rules, namely, Fundamental Rules-56, whereas reference made by the petitioner to the judgment of the Supreme Court deals with cases of Professors / Teachers appointed in the Higher Education Department i.e. the College Education for whom the age of superannuation was enhanced from 62 to 65 years and, therefore, finding that there is no merit in the petition as Assistant Teacher in a School Education Department is not covered under the amendment carried in FR-56, dismissed the petition.

10. The question which is raised by the learned counsel for the petitioner / review petitioner is that without hearing him, matter could not have been decided on merits.

11. The case in hand which is cited by the learned counsel for the petitioner i.e. Ajit Kumar Singh (supra) is in regard to the decision in a civil matter in second appeal. Supreme Court's judgment is in relation to Rule 11(1) of Order XLI of the Code of Civil Procedure, 1908.

12. Section 141, CPC deals with miscellaneous proceedings. It reads as under:-

''141. Miscellaneous proceedings. - The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction.

[Explanation. - In this section, the expr