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1996 DIGILAW 628 (RAJ)

Gir Raj Prasad v. State of Rajasthan

1996-06-06

M.A.A.KHAN, S.C.MITAL

body1996
Honble KHAN, J.–Heard learned counsel for the parties. When this matter was taken up for admission, a preliminary objection was raised on behalf of the respondents regarding the maintainability of this appeal under Section 18 of the Rajasthan High Court Ordinance, 1949 (hereinafter referred to as the `Ordinance, 1949). It was submitted on behalf of the respondents that the impugned order was an inter-locutory order which does not determine the rights of the parties finally and therefore, it does not fall within the purview of the definition of `judgment as used in the language of Section 18 of the Ordinance, 1949. It was further submitted that it has been the well-established view of this court not to entertain the Special Appeals under Section 18 of the Ordinance against the inter-locutory orders passed by the learned Single Judge of this Court. In support of their contention the learned counsel for the respondents relied upon the decisions of this court, in the cases of State vs. Hindo Open Sugar Mills (1), M/s. Gulam Abbas Kamruddin Bhalamwala vs. State of Rajasthan & Others (2), Ikram vs. Union of India (3) as also the Supreme Court decision in the case of Shah Babulal Khimji vs Jayaben D. Kania & Ors. (4). (2). Mr. Paras Kuhad, learned counsel for the petitioners frankly and fairly submitted that undoubtedly it has been the almost settled and consistent opinionof this court not to entertain appeals under Section 18 of the Ordinance, 1949, against the orders passed by the learned Single Judge, when such orders are inter-locutory in nature and do not determine the rights of the parties finally. Learned counsel further submitted that despite the view taken by several Benches of this court including Division Bench, certain Benches have entertained such appeals anddecided the matter in the Special Appeals. In support of this view, Mr. Kuhad referred to the decisions of the Division Bench of this Court in D.B. Special Appeal No. 19/95 M/s. Aditya Wooltex(I) Private Limited vs. Rajasthan Felts Manufacturing Company (5) and Gopal Sen vs. State of Raj. and Ors. (6), Mr. Paras Kuhad further submitted that this co-ordinate Bench should respect and regard the views expressed by another co- ordinate Bench. It was also submitted that the later view expressed by the co-ordinate Bench of this Court must be followed in order to maintain consistency in the views of the Court. (3). and Ors. (6), Mr. Paras Kuhad further submitted that this co-ordinate Bench should respect and regard the views expressed by another co- ordinate Bench. It was also submitted that the later view expressed by the co-ordinate Bench of this Court must be followed in order to maintain consistency in the views of the Court. (3). The controversy before us centers around whether the order passed by the learned Single Judge amounts to a `judgment or simply an `order not determining the rights of the parties finally. The operative part of the impugned order reads as under: ``Heard learned counsel for the parties on the application under Article 226(3). Though there is a serious dispute between the parties about the number of vacancies but without going into these questions prima facie I am of the view that the D.P.C. met on 27.12.1995 prior to passing of the stay order dated 3.1.1996, therefore, the ex-parte stay order dated 3.1.1996 could not affect the D.P.C. proceedings and the State may proceed with the selection in pursuance of the D.P.C. meeting held on 27.12.1995. However, the promotions so made will be subject to the decision of the writ petition. Accordingly, the application under Article 226(3) stands disposed of. As agreed the case be listed for final disposal in the month of July, 1996. (4). The above impugned order was passed in the context of a writ petition having been filed by the petitioners with he prayer that Circular issued by the State Government on May, 26, 1995, be declared illegal, invalid, ultra-vires and unconstitutional. The said Circular was assailed by the petitioners in the following circumstances. (5). Petitioners No.1 & 2 have been working temporarily for the last one & a half year against the post of Commercial Officer. The petitioners No.3 & 4 are said to be working as Assistant Commercial Taxes Officer on regular basis. It is stated that the petitioners were found fit for their appointment to the post of Commercial Taxes Officer/ACTOs by a D.P.C. meeting held prior to 13.6.95, may be in August, 1994, as stated at Bar by Mr. Kuhad. It appears that the State Government issued a Circular on May 26, 1995 regarding the reservation of vacancies for Scheduled Castes/Scheduled Tribes/other Back-ward Classes and the posts were to be filled by Direct Recruitment and/or by promotion. Kuhad. It appears that the State Government issued a Circular on May 26, 1995 regarding the reservation of vacancies for Scheduled Castes/Scheduled Tribes/other Back-ward Classes and the posts were to be filled by Direct Recruitment and/or by promotion. It further appears that taking note of the decision of the Supreme Court, in the case of R.K. Sabarwal & Others vs. State of Punjab & Ors. (7), State Government enjoined upon the appointing authorities concerned to follow the interpretation made by the Supreme Court of India to the working of roster in the matter of Direct Recruitment and promotions. It was however, clarified in the said circular that if in any cadre/category of posts in the service excess reservation of Scheduled Castes/Scheduled Tribes/other Back-ward Classes, had been made then for further vacancies, reservation in the promotion and direct recruitments shall be made after adjusting the excess reservation already made. Apprehending that the Circular assessed by the State Government would threaten their right to continue against the post they had been appointed to and working at, the petitioners, approached this Court. Their apprehension was that in the light of the recommendations of the Departmental Promotion Commi- ttee, to be held in pursuance of the Circular, the petitioners may be reverted from the posts, they have been working against. On Jan. 3, 1996, the learned Single Judge passed an ex-parte stay order in the following terms: ``Issue notice to the respondents to show cause as to why the writ be not admitted/finally disposed of. Notice of the stay application may also be issued, returnable within one month and be given `dasti to the counsel for the petitioners, who will get the respondents served within two seeks. Meanwhile, operation of the Circular dated 26.5.1995 shall remain stayed qua the petitioners. (6). When the matter came up before the learned Single Judge on 13.2.1996, it was found that the ex-parte stay order had been granted after the meeting of D.P.C. was held on Dec.27, 1995. Since the learned Single Judge was of the opinion that the stay order granted on 3.1.1996 could not affect the D.P.C. proceedings and, in his opinion, the State could proceed with the selection in pursuance of the D.P.C. meeting, held on 27.12.1995 subject to the final decision in the writ petition, he, there- fore, listed the case for final disposal in the month of July 1996. (7). (7). The controversy whether an interim order of the nature as has been passed in the present proceedings by the learned Single Judge, amounts to `judgment seems to have been considered not only by this court but also by the Apex Court in a number of cases. In the case of State vs. Hindo Open Sugar Mills (supra) the Division Bench of this court categorically held that inter- locutory orders staying operation of impugned notifications on certain conditions till final decisions are not `judgment for the purposes of Section 18 of the Ordinance, 1949 and are not therefore appealable. In arriving at this decision their Lordships of the Division Bench considered the Supreme Court decision in the case of Asrumati Debi vs. Kumar Rupendra Deb Rajkot & Ors. (8). In the case of Asrumati Debi vs. Kumar Rupendra Deb (supra) their Lordships of the Supreme Court, over-ruling the decision of the Madras High Court regarding the meaning of `judgment as given in the letter Patent of that High Court, had observed that: ``The question that requires determination in an application under Clause 13 of the Letters Patent is, whether a particular suit should be removed from any Court which is subject to the superintendence of the High Court and tried and determined by the latter as a Court of extra ordinary original jurisdiction. It is true that unless the parties to the suit are agreed on this point, there must arise a controversy bet- tween them which has to be determined by the Court.... (8). In the present case the learned Single Judge has not decided any question finally in favour of either of the parties to the suit. An interim order on each and every point of dispute between the parties to a suit is not a `judgment. The order in the present case neither affects the merits of the controversy between the parties in the suit itself nor does it terminate or deprive of either party to the suit of his rights. An order for transfer of a suit cannot be placed in the same category as an order dismissing a suit on a preliminary ground as has been referred to by the Supreme Court in para 3 of the decision, quoted above. An order for transfer of a suit cannot be placed in the same category as an order dismissing a suit on a preliminary ground as has been referred to by the Supreme Court in para 3 of the decision, quoted above. An order directing a plaint to be rejected or taken off the file amounts to a final disposal of the suit so far as the Court making the order is concerned. That suit is completely at an end and it is immaterial that another suit could be filed in the same or another court after removing the defects which led to the order of rejection. On the other hand, an order of transfer under Clause 13 of the Letters Patent, is, in the first place, not atall an order made by the court in which the suit is pending. In the second place the order does not put an end to the suit which remains perfectly alive and that very suit is to be tried by another Court, the proceedings in the latter to be taken only from the stage at which they were left in the court in which the suit was originally filed. (9). The above observations of their Lordships of the Supreme Court lay down the proposition that in order to fall within the purview of the definition `Judgment an order should fulfill the condition of finality, so far as a particular matter is concerned. If the order being questioned in appeal, does not so terminate the rights of the parties, it cannot fall within the definition of the term `Judgment. (10). The view expressed by their Lordships of the Supreme Court in the case cited above was followed by a Division Bench of this Court in the case of Ikram vs. Union of India (supra). In that case too the term `Judgment was considered and it was held that an order to become a Judgment, must determine some rights or settle the controversies between the parties. Unless it amounts to `Judgment, no appeal under Section 18 of the Ordinance can lie. An ex-parte stay order does not amount to `Judgment and is not appealable. In this case, the decision of this court in the case of State vs. Hindo Open Sugar Mills (supra) was considered. (11). Unless it amounts to `Judgment, no appeal under Section 18 of the Ordinance can lie. An ex-parte stay order does not amount to `Judgment and is not appealable. In this case, the decision of this court in the case of State vs. Hindo Open Sugar Mills (supra) was considered. (11). In the case of M/s. Gulam Abbas Kamruddin Bhalamwala (supra), the same controversy was again considered by a Division Bench of this Court. In that case too, the view taken in the cases of State vs. Hindo Open Sugar Mills (supra) & M/s. Gulam Abbas Kamruddin Bhalamwala (supra) was reiterated and it was held that no appeal is maintainable against the inter-locutory order of the nature of stay passed on a stay petition. In this case, the Supreme Court decision in the case of Shah Babulal Khim Ji (supra) was considered and relied upon. (12). In the case of Shah Babulal Khim Ji (supra) their Lordships of the Apex Court considered the question with reference to the relevant provisions of the Code of Civil Procedure. In para 119 of the report, their Lordships observed as follows: ``119. Apart from the tests laid down by Sir White C.J., the following considerations must prevail with the court: (1) That the trial Judge being a senior court with vast experience of various branches of law occupying a very high status should be trusted to pass discretionary or interlocutory orders with due regard to the well settled principles of civil justice. Thus, any discretion exercised or routine orders passed by the trial Judge in the course of the suit which may cause some inconvenience or, to some extent prejudice to one party or the other cannot be treated as a `Judgment, otherwise the appellate court (Division Bench) will be flooded with appeals from all kinds of orders passed by the trial Judge. The courts must give sufficient allowance to the trial Judge and raise a presumption that any discretionary order which he passes must be presumed to be correct unless it is ex- facie legally erroneous or causes grave and substantial injustice. (2) That the interlocutory order is order to be a Judgment must contain the traits and trappings of finality either when the order decides the questions in controversy in an ancillary proceedings or in the suit itself or in a part of the proceedings. (2) That the interlocutory order is order to be a Judgment must contain the traits and trappings of finality either when the order decides the questions in controversy in an ancillary proceedings or in the suit itself or in a part of the proceedings. (3) The tests laid-down by Sir White CJ., as also by Sir Couch, CJ. as modified by later decision of the Calcutta High Court itself which have been dealt with by us elaborately should be borne in mind. (13). In para 120 of the report their Lordships laid down certain guidelines to determine whether an order amounts to a Judgment in so far as an appeal under Clause 18 of the Ordinance, 1949, against such order was concerned. Para 120 of the report is reproduced as under: ``120. Thus, these are some of the principles which might guide a Divi- sion Bench in deciding whether an order passed by the trial Judge amounts to a `Judgment within the meaning of the Letters Patent. We might, however, at the risk of repetition,give illustrations of interlocutory orders which may be treated as judgments:- (1) An order granting leave to amend the plaint by introducing a new cause of action which completely takes away a vested right of limitation or any other valuable right accrued to the defendant. (2) An order rejecting the plaint. (3) An order refusing leave to defend the suit in an action Order 37, Code of Civil Procedure. (4) An order rescinding leave of the trial Judge granted by him under Clause 12 of the Letters Patent. (5) An order deciding a preliminary objection to the maintainability of the suit on the ground of limitation, absence of notice under Section 80, bar against competency of the suit against the defendant even though the suit is kept alive. (6) An order rejecting an application for a Judgment on admission under Order 12 Rule 6. (7) An order refusing to add necessary parties in a suit under Section 92 of the Code of Civil Procedure. (8) An order varying or amending a decree. (9) An order refusing leave to sue informa-pauperis. (10) An order granting review. (11) An order allowing withdrawal of the suit with liberty to file a fresh one. (12) An order holding that the defendants are not agriculturists within the meaning of the special law. (8) An order varying or amending a decree. (9) An order refusing leave to sue informa-pauperis. (10) An order granting review. (11) An order allowing withdrawal of the suit with liberty to file a fresh one. (12) An order holding that the defendants are not agriculturists within the meaning of the special law. (13) An order staying or refusing to stay a suit under Section 10 of the Code of Civil Procedure. (14) An order granting or refusing to stay execution of the decree. (15) An order deciding payment of court-fee against the plaintiff. (14). It is thus clear that the earlier Division Benches of this Court have consistently followed the view taken by the Apex Court in the case of Gulam Abbas Kamruddin Bhalamwala (supra). (15). In the cases relied upon by Mr. Kuhad, certain Division Benches of this Court, no doubt, appear to have taken the view that an appeal against an inter-locutory order was maintainable under Section 18 of the Ordinance, 1949 but such decisions clearly show that such view had been expressed by the Benches while disposing of the appeals on merits finally. In none of such decisions, the earlier view expressed by the Appellate Benches of the Court, were considered. No reference to the decision of the Apex Court in the case of Gulam Abbas Kamruddin Bhalamwala (supra) was made. That apart, we find that in the case of Gopal Sen vs. State & Ors. (supra), the Division Bench consisting of Honble Mrs.Justice Mohini Kapoor & Honble Mrs. Justice Gyan Sudha Misra, had maintained the appeal against some interlocutory order. However, in the case of Topkhana Desh Grah Sahakari Samiti vs.State & Ors. (9), another Division Bench consisting of the same Honble Judges expressed the view that an appeal against interim order was not maintainable. Same view appears to have been taken in the cases of Dr. A.K. Sharma vs. State of Rajasthan (10) and Rajasthan Hathkargha Vastra Utpadan Sahakari Samiti Ltd. & Another vs. State of Rajasthan (11). It is thus clear that whereas the earlier Benches of this Court have taken the view after directing their attention to the particular point which was raised before them, in the later cases, the Benches had made passing reference only to the question of maintainability of appeals while admitting the writ petitions and disposing of such writ petitions finally at the stage of admi- ssion itself. (16). It is the practice of this Court and judicial discipline also demands to do that, to follow the view expressed by a co- ordinate Bench on an issue which had arisen for the consideration of the Bench concerned and the Bench had given itsdecision on such issue. The decision of such Bench should be followed by a succee- ding Bench. If a successor Bench has not considered the earlier view of the co-ordinate Bench and which view was based on the view of the Apex Court then, in our opinion, it is open to another successor Bench to follow the view which directly decides the issue and follow a Supreme Court decision. (17). At this stage Mr. Kuhad relied on the decision of the Supreme Court in the case of Baddulal Lakshmaiah vs. Sri Naianehya Swami Temple (12), wherein, inter alia, it was observed that: ``A Letters Patent Appeal, as permitted under the Letters Patent, is normally an intra court appeal where under the Letters Patent, Bench, sitting as a Court of correction, corrects its own orders in exer- cise of the same jurisdiction as was vested in the Single Bench. Such is not an appeal against an order of a subordinate court. In such appellate jurisdiction the High Court exercises the powers of a Court of Error. (18). There can be no dispute to the proposition laid-down by the Apex Court. This court exercises its original, appellate or revisional jurisdiction as per Ordinance, 1949. It is upto this Court to carve out the manner and mode as to how such jurisdic- tions are to be exercised by it. It may exercise its jurisdiction once for all or may exercise that jurisdiction in stages. That is not the question arising in the present appeals. (19). This case, therefore, does not confer any benefit on the petitioners. (20). Reverting to the issue before us, we may again point out that by passing the impugned order, the learned Single Judge had not decided any rights of the parties. The tenor of the order passed by the learned Single Judge clearly indicates that he had decided no issues relating to the legal rights of the parties and what he had done was to list the case for final disposal in the month of July 1996. The tenor of the order passed by the learned Single Judge clearly indicates that he had decided no issues relating to the legal rights of the parties and what he had done was to list the case for final disposal in the month of July 1996. By the ex-parte impugned order, the operation of the Circular dated 26.5.1995, had been stayed by this Court. By the impugned order, the learned Single Judge, simply pointed out that the Circular dated 26.5.1995, had already come into effect when the stay order had been passed. In our opinion, the impugned order does not fall within the purview of the term `Judgment as used in the language of Clause 18 of the Ordinance, 1949. That being so, no appeal under that provision is maintainable. (21). In the result this Special Appeal is dismissed, as being not maintainable, with costs on the parties.