IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1295 of 2002 THE STATE OF BIHAR & ORS Versus DR.NARMADESHWAR JHA ----------- 5 8.8.2008 Heard. In the opinion of this Court, the whole issue has been rather taken on a tangent angle by the Court below inasmuch as it was only an application filed by the opposite party for partly abandoning his claim as with regard to the relief no.-A sought in this plaint. The Court below however has approached the entire situation from an angle as if the plaintiff, opposite party was seeking an amendment in the plaint. It need not be overemphasized that while seeking amendment in the plaint would only enable the party to advance his submissions and/or lead his evidence on the basis of such amended plaint, abandoning such a claim would altogether preclude a party to claim that particular relief. In the present case, the plaintiff, opposite party had brought the suit for the following relief:- “ (a) To declare annexure V of the plaint as entirely illegal, invalid and unenforceable. (b) To issue permanent injunction against the defendant restraining them to issue any fresh relieving letter or relieve to the plaintiff on the basis of annexure II, III, V and VIII of the plaint from Samastipur sadar Hospital (and further added by amendment 2 by order dated 29.11.99) “till all the salary” of the plaintiff is paid uptodate and besides that the other direction as contained in Annexure IX of the plaint is fully complied with by defendant no. 4(b)(1) To declare that the plaintiff is stil working on his post in Sadar hospital, Samastipur (added by amendment order dated 29.11.99/4.12.99). (c) The cost of the suit be awarded to the plaintiff. (d) The other relief or reliefs whichever be deemed fit be awarded to the plaintiff. ” That suit came to be dismissed by a judgment dated 27th February, 2001 wherein there were clear findings that the order of transfer of the plaintiff, opposite party was wholly justified and it was a routine chain transfer and that the plaintiff, opposite party having not complied the order of transfer, had committed misconduct. It was further held that the plea of the plaintiff, opposite party that he was a member of association or an office bearer of association would have no impact on the power of transfer of the State Government in placing the petitioner from one place to another. It was in this regard that a specific finding had been recorded by the Trial Court that at a time of relieving, no salary was due and payable to the plaintiff, opposite party and that the amount of advance or T.A. could have been also claimed by him at the new station of his posting. Right or wrong, the Trial Court had also held that the plaintiff, opposite party was entitled to get his salary 3 only up to the month of June, 1992 which has already paid to him. The Trial Court thus having dismissed the suit on all scores when a prayer was made by plaintiff, opposite party before the Appellate Court for withdrawing/abandoning appeal in respect of relief number (a) of the plaint that is with regard to the order of transfer being declared as illegal, invalid and enforceable, the appellate Court was still required to examine as to whether for the remaining relief, the suit/appeal could have been pursued by the plaintiff, opposite party. In the opinion of this Court, the relief no. (b) as quoted above was wholly dependant of relief no. (a), being a permanent injunction for restraining issue of any fresh relief in pursuance of the order of transfer. The question is when the petitioner does not want to challenge the order of transfer, where is the occasion now for him to contend and assail the validity and correctness of his relieving order. In that view of the matter, the Lower Appellate Court before whom the appeal, Title Appeal No. 16/2001 was/or is pending was required to view the whole thing strictly in parlance of service jurisprudence which would require a Court to go into any issue of transfer and consequential relief of payment of salary including the issue of relieving letter if the issue of transfer was still alive. The moment in the opinion of this Court, the petitioner had abandoned his claim against the transfer order, 4 nothing survive for adjudication and accordingly, the Court below ought to have considered that the appeal itself had become infructuous on account of withdrawing the challenge towards the order of transfer. Mr. Satish Chandra Jha, appearing on behalf of the plaintiff, opposite party, is not aware as to what is the present position with regard to the transfer order of the plaintiff, opposite party. He is also not in a position to say as to whether he has joined at new place of posting pursuant to the liberty given by this Court by an order dated 5.1.2004 while admitting the civil revision application. Thus, considering the fact that the petitioner is a Government servant holding Class-1 post of a doctor in a Sadar Hospital and is required to be given a place of posting, if he has not yet been given any place of posting, he may be given such a place of posting, which would be, however, prejudice to the right of the Government to proceed against the petitioner for violation of earlier transfer order. In that view of the matter, the impugned order having been passed on altogether wrong premises cannot be sustained and the same is hereby set aside. The Lower Appellate Court is also directed to now proceed in the matter of appeal and decide the same in the light of the observations and findings given above. In the result, this civil revision application is 5 allowed with the aforementioned observations and directions. There would be however no order as to costs. Rsh (Mihir Kumar Jha, J.)