MAHESHWARI, J. - (1.) THE petitioners, 17 in number, holding the posts of teacher with qualification of School Training Certificate ('stc for short), and posted at different Upper Primary Schools, having been transferred to different Primary Schools on the vacant posts under Sarva Shiksha Abhiyan ('ssa' for short) by the order dated 25. 09. 2007 (Annex. 3) issued by the respondent No. 3 District Education Officer (Elementary Education) and Additional Chief Executive Officer, Zila Parishad, Dungarpur in pursuance of an order dated 30. 07. 2007 (Annex. 4) issued by the State Government seek to question the said orders dated 25. 09. 2007 and 30. 07. 2007 by way of this joint petition for writ.
(2.) WHILE considering the matter for motion-admission, this court expressed its reservations on competence of such petition jointly on behalf of 17 petitioners where the transfer/posting order in relation to each of the petitioner affords a separate and distinct cause of action; and the petitioners cannot be considered having the same cause of action. In response, learned counsel appearing for the petitioners has made elaborate submissions giving out the grounds of challenge to the orders impugned and contended that essentially the petitioners are commonly challenging the very basis of the order dated 30. 07. 2007 (Annex. 4) issued by the State Government directing that the STC qualification holder teachers be shifted to Primary Schools under SSA without regard to the rules and the law; and the petitioners are commonly aggrieved of the action of the respondents in shifting them to SSA on a pick and choose method and without framing proper policy. According to the learned counsel, the challenge to the transfer/posting order is merely an ancillary relief and else, the petition has been filed essentially to question the order dated 30. 07. 2007 (Annex. 4) as being wholly unauthorised and without jurisdiction. Learned counsel contended that cause of action in relation to the challenge to such order being one and the same, the petitioners have rightly joined in this single petition. Learned counsel has referred to and relied upon the decision of this Court in Jagdish Narayan Sharma and Ors. vs. State of Rajasthan & Ors. : 1994 (2) WLC 615 and that of the Hon'ble Supreme Court in A. N. Pathak and Ors. vs. Secretary to the Government, Ministry of Defence & Anr. : AIR 1987 SC 716. Learned counsel further submitted with reference to the decision of this court in the case of Laxmi Narayan Sharma & Ors. vs. State of Rajasthan & Ors. :2001 (5) WLC 729 = (RLW 2002 (3) Raj. 1748) that if at all there be any dispute about joining of the petitioners in a single petition, they are ready to make payment of additional court fees in relation to each of the petitioners and the petition may be entertained thus. Having given anxious consideration to the submission made by the learned counsel for the petitioner, having examined the subject matter of this petition, and having considered the law applicable to the case, this court is firmly of opinion that this joint petition cannot be entertained. Chapter-XXII of the Rules of High Court of Judicature for Rajasthan, 1952 (referred to as 'the Rules of 1952' hereafter) deals with the application for direction under Article 226 of the Constitution of India other than a writ in the nature of habeas corpus; and Rule 375 thereof deals with the frame of such application, i. e. a writ petition. Sub-rule (4) of Rule 375 provides that, -      " (4) An application by more than one person shall not be entertained except when the relief claimed is founded on the same cause of action. " A Division Bench of this Court in the case of Chandmal Naurat Mai and Ors. vs. State of Rajasthan and Anr. : AIR 1968 Raj. 20 = (1967 RLW 144) has specifically considered the effect and operation of the said Rule 375 (4) of the Rules of 1952. In the said case the question arose about maintainability of the joint petition filed by 41 petitioners for restraining the respondents from enforcing the provisions of Rajasthan Agricultural Produce Markets Act, 1961, the Rules made thereunder and the bye-laws made by Krishi Upaj Mandi Samiti, Kishangarh; and it was contended on behalf of the petitioners that such joint petition was maintainable for it raises common questions of law and fact as the petitioners' freedom to carry on trade and commerce would be affected by the law, validity whereof was put to challenge in the petition. The Hon'ble Division Bench negatived such contention and held,-      " It is true the petitioners are challenging the validity of the same law in the same manner and it may be assumed that they are affected in the same way. But all the same this is not sufficient for holding that they have the same rights which are allegedly infringed by this law. In other words, the injury with which they are threatened or have already suffered cannot be said to be the same. " The Hon'ble Division Bench further noticed, observed, and held,-      " (11) It has been laid down in Halsbury's Laws of England Vol. 2 (Vide para 155 page 83) that persons having a common and joint interest in the subject-matter in controversy may be joined as relators in mandamus, but persons having similar but wholly separate and distinct interests in the subject-matter of the controversy may not do so. This again prompts us to consider as to what is really the subject matter of the present writ petition, that is, whether it is merely for the declaring of the impugned law as unconstitutional or at the same time it is the upholding of the petitioners' right to carry on their business unhampered and for this to issue an adequate writ forbidding the respondents from interfering with the petitioners' rights and on going through the writ petition we are again confirmed in our belief that the rights of the petitioners being different though identical, their causes of action are not the same. "
(3.) THE Hon'ble Division Bench, thus, in the aforesaid case of Chandmal Naurat Mai and others, held that in the matters where the petitioners are having similar or identical cause, they could still not be said to be having the same cause and, therefore, cannot maintain a joint petition. THE course adopted by the Hon'ble Division Bench in such an incompetent petition has been to give an opportunity to such joint petitioners to choose as to on whose behalf the petition would be continued leaving the others to file separate petitions, if they wish to do so. So far the decision of Hon'ble Supreme Court in the case of A. N. Pathak and others (supra) is concerned, therein 6 petitioners filed a joint writ petition (under Article 32 of the Constitution of India) before the Hon'ble Supreme Court raising the grievance about operation of the service Rules to the detriment of the petitioners who were promotees and were being deprived of rightful placement in the seniority list vis-avis the direct recruits. While disposing of the preliminary objection on maintainability of the joint petition, the Hon'ble Supreme Court observed that nothing prevents it from modulating the relief and giving directions to the respondents to reconsider the offending lists. The said observations of the Hon'ble Supreme Court on its powers of modulating the relief are obviously inapplicable to the present writ petition. In the said case, the Hon'ble Supreme Court was not concerned with kind of a Rule as is available for the petitions for writ under the Rules of 1952; nor the Hon'ble Supreme Court has held that in every such case involving similar cause, a joint petition could be maintained. So far the case of Jagdish Narayan Sharma and others (supra) decided by a learned Single Judge of this Court is concerned, it appears that the decision of the Hon'ble Division Bench in the case of Chandmal Naurat Mai and others (supra) was not brought to the notice of the court and the said decision in Jagdish Narayan Sharma, with respect, cannot be read as an authority for the proposition that in every matter where a common order is made in relation to the petitioners, a joint petition would be competent. It appears that in the said case of Jagdish Narayan Sharma and others, the petitioners who were the Ward Members of Municipal Board, Merta City challenged their suspension order particularly after a single FIR leveling common allegations was lodged whereupon a case under Section 323 IPC read with Section 3 (1 ) (x) Scheduled Castes & Schedule Tribes (Prevention of Atrocities) Act was registered against them and consequent thereto, a common suspension order was passed. In any case, in view of the law declared by the Division Bench of this Court in the case of Chandmal Naurat Mai and others in no uncertain terms, the said decision in Jagdish Narayan Sharma is of no assistance to the petitioners. ;