This order is concerned with the disposal of appellant's application for amendment of his pleadings under section 5 of the Service Tribunals Act 1973, read with Order VI Rule 17 and Order 1 Rule 10 of the Code of Civil Procedure.
2. Apart from the prayer regarding permission to make certain additions to the grounds of appeal, it has been requested that the appellant may be allowed to implead the Establishment Division as respondent No, 4 in the appeal on the ground that his case was also examined by that Division. No relief has been sought against the Establishment Division and we do not think that they are a proper party merely because of the fact that they dealt with the appellant's case for any purpose on a reference having been made to them. We are of the considered view that examination of the case by the Establishment Division is certainly not enough to make them a necessary party when no relief has been sought against them and it would be possible to implement the Tribunal's order in the event of success in this appeal, even in the absence of Establishment Division as a party.
3. As for amendments in the pleadings, the appellant wishes to make certain additions to the averments made in Paragraph 10 of the appeal which reads that "the reasons for adverse decision are contained in U.O. Note of Deputy Secretary (Finance) of Respondent No, 1, a copy of which was furnished to appellant by memo. dated 24-11-1984 (Annexure A-16/A and A-16)". With the proposed additions it will further read that "thus neither enhancement of pension under 1977 Rules was allowed, nor any increment was given for intervening period. Increments as well as Pension are vested rights of appellant. A calculation of loss of monetary benefits is given in Annexure A-18."
4. Apart from the aforementioned additions, the appellant wishes to add the following ground as No, 2-A to the grounds of appeal: "Action taken under para. 3(3) of MLR-114 of 1972 and under proviso to para. 5 of MLO-23 cannot be deemed taken in accordance with law being repugnant to Sharia and Art. 4 of Constitution by condemnation of Appellant without notice depriving him of monetary benefits of service during 12-3-1972 to 12-6-1978, and resultantly due to Appellant being discriminated against his other colleagues."
5. We are of the considered view that there is no legal justification for allowing the proposed amendments in the pleadings. As the appeal stands at present, the relief sought is that "the respondents be directed to refund to appellant amount of Rs,16,752.73 wrongfully recovered from appellant and a direction be further given to fix gross pension of appellant in accordance with law".
By making the proposed additions to para. 10 of the appeal, the appellant will evidently be able to plead that no increment was given to him for the intervening period from 13-3-1972 to 12-6-1978 during which he stood compulsorily retired under Martial Law Regulation 114. By making this averment, the appellant wants to be able to raise the question of increments and seek consequential relief for fresh assessme nt of his emoluments during the aforementioned period. It is not difficult to guess that he wants to achieve the purpose in an indirect manner by making the proposed additions to his averments. Therefore, although, no change is being apparently sought in the relief, the character of the appeal will certainly undergo a change, if the proposed additions to para. 10 of the grounds of appeal are allowed.
6. The same considerations would apply to the proposed addition of ground No, 2-A to the grounds of appeal. In the new ground sought to be added, the appellant wants to challenge the validity of action against him under MLO-114 of 1972. He also wishes to plead that the order of his reinstatement under MLO-23 with certain conditions mentioned in the proviso to that Regulation was repugnant to Sharia and Article 4 of the Constitution because these orders were passed without due notice "depriving him of monetary benefits of service during 12-3-1972 to 12-6-1978".
There can hardly be any doubt about the fact that the proposed additions, if allowed, would entirely change the character of the appeal, which, as it stands now, proceeds on the acceptance of the situation resulting from the passage of orders under MLRs-114 and 23. As a matter of fact, the appeal is based on what happened after the appellant's reinstatement in service under MLO-23 of 1977 with effect from 12-6-1978. Now, by the proposed amendments, the appellant wants to challenge the validity of what seems to have been relied upon as basis for the previous appeal.
7. For these reasons, therefore, we do not feel any hesitation in saying that the proposed amendments should not be allowed, especially when they are sought c to be made after the expiry of period of limitation. The proposed additions, if allowed, will amount to the institution of a fresh appeal with additional grounds on a different cause of action and that too after the expiry of period of limitation. It may be mentioned that the appeal has already been opposed on the ground of limitation. The application for amendments is accordingly dismissed. The appeal may be fixed for regular hearing in due course.