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2003 DIGILAW 1068 (ALL)

Prakash Pandey v. Krishna Kumar Dixit

2003-05-05

G.K.GUPTA, JAGDISH BHALLA

body2003
JAGDISH BHALLA, J. ( 1 ) AGGRIEVED by the order dated 7. 3. 2003 passed in Writ Petition No. 3111[ss] of 1991, the appellant has filed this Special Appeal. The order dated 7. 3. 2003 passed in the aforesaid writ petition by the learned Single judge reads as under:- "heard Learned Counsel for the petitioner and Sri K. M. N. Chak appearing on behalf of the opposite party no. 4 and the learned standing Counsel the petitioner has alleged in the petition that due to his illness and thereafter due to the death of his father, he could not attend the School. Learned Counsel for the petitioner submits that the termination order dated 19. 7. 1984 passed by the opposite parties 2 and 3 was not approved by the Basic Shiksha Adhikari by the order dated 23. 8. 1984. He further submits that the resignation letter dated 11. 10. 1984 was also withdrawn by the petitioner on 12. 10. 1984 and till date the resignation has also not been accepted by the opposite parties. In view of the aforesaid facts, the opposite parties are directed to allow the petitioner to work from 11. 3. 2003. The Basic shiksha Adhikari shall ensure the compliance of the order. " ( 2 ) THE aforesaid order has been challenged by the appellant mainly on the ground that on account of this order the services of the appellant, who is a regularly selected permanent Clerk of the School and is working continuously since 1985, are in jeopardy and that the aforesaid order has the traits and trapping of finality and affects vital and valuable rights of the appellant. Appellant has also contended that the writ petition itself was liable to be dismissed on the ground of extraordinary delay and laches as the cause of action accrued to the respondent no. 1 way back in the year 1984-85 but he has filed the writ petition in the year 1991. ( 3 ) DR L. P. Misra appearing for the respondent no. 1 apart from arguing on the merits has also raised the question regarding maintainability of the Special Appeal and on the strength of the decisions laid down by this court in Lucknow University and another Vs. Ashwani Kumar; 1995 (13) LCD 7,society Madarsa Mazahir Uloom Mubarak Shah, saharanpur vs. Muzaffar Hussain; (1994)1 UPLBEC 277, Udai Bhan singh and another Vs. 1 apart from arguing on the merits has also raised the question regarding maintainability of the Special Appeal and on the strength of the decisions laid down by this court in Lucknow University and another Vs. Ashwani Kumar; 1995 (13) LCD 7,society Madarsa Mazahir Uloom Mubarak Shah, saharanpur vs. Muzaffar Hussain; (1994)1 UPLBEC 277, Udai Bhan singh and another Vs. Deputy Director of Education; 1995 (13) 239 and the Apex Court decision in Shah Babulal Khimji vs. Jayaben D. Kania and another; AIR 1981 SC 1786 , has contended that the impugned order passed by learned Single Judge does not express any opinion on the merits of the contentions raised on behalf of the parties and as such it cannot be said that by the impugned order learned Single judge has decided matters of moment or affected vital and valuable rights of the parties which work serious injustice to the party concerned. ( 4 ) DR L. P. Misra next contended that Chapter XLIII of the Code of Civil procedure deals with Appeal and provides as to when an appeal shall lie and every interlocutory order cannot be regarded as a judgment but only those orders would be judgments which decide matters of moment or affected vital and valuable rights of the parties. Placing reliance on muzaffar Husains case [supra], he submitted that the interim order may cause some inconvenience or, to some extent, prejudice one party or the other but it cannot be treated as a judgement otherwise the Appellate court will be flooded with appeals from all kinds of orders passed by the learned Single Judge. ( 5 ) IN Udai Bhan Singh Vs. D. D. E. [supra] the Special Appeal was filed against the interim order passed by the learned Single Judge staying the operation of the order passed by the Deputy Director of education and provided that the authorized Controller shall discharge the function as before. This Court held that the Special Appeal lacks merit as the order passed by the learned Single Judge was in the interest of the Institution, permitting authorized Controller to manage the college and it cannot be said to be arbitrary or perverse. This Court held that the Special Appeal lacks merit as the order passed by the learned Single Judge was in the interest of the Institution, permitting authorized Controller to manage the college and it cannot be said to be arbitrary or perverse. In Lucknow University v. A. K. Walia [supra] the controversy between the parties was whether an order passed by the Registrar can be rescinded or cancelled by the vice Chancellor under S. 13 (1) (e) of the Act and the learned Single Judge by the interim order has only issued a direction for permitting A. K. Walia to appear in the examination. This Court dismissed the appeal on the ground that if substantial justice has been done in a case, the appellate court will not interfere. In Shah Babulal Khimji v. Jayaben [supra] on which reliance has been placed by the learned Counsel for the answering respondent, the substantial question of law raised before the Supreme court was regarding the scope, ambit and meaning of the word judgement appearing in Clause 15 of the Letters Patent of the Bombay high Court and corresponding clauses in the Letters Patent of other High courts. The Supreme Court held :- "thus, in other words every interlocutory order cannot be regarded as a judgement but only those orders would be judgments which decide matters of moment or affect vital and valuable rights of the parties and which work serious injustice to the party concerned. Similarly, orders passed by the trial Judge deciding question of admissibility or relevancy of a document also cannot be treated as judgements because the grievance on this score can be corrected by the appellate court in appeal against the final judgement. " ( 6 ) ARGUING on merits, Dr. L. P. Misra submitted that the respondent no. 1 was legally appointed on the vacant post of Clerk on 24. 3. 1983 and continued to work as such till 7. 3. 1984 without there being any complaint or adverse material. On account of serious illness and death of answering respondents father, he sent an application for leave by registered post. On 26. 3. 1984, respondent no. 1 reported for duties but he was not allowed to join. Later on, i. e. 26. 3. 1984, he came to know that his leave was not sanctioned. By the letter-dated 19. 7. 1984, his services were terminated w. e. f. 8. 3. On 26. 3. 1984, respondent no. 1 reported for duties but he was not allowed to join. Later on, i. e. 26. 3. 1984, he came to know that his leave was not sanctioned. By the letter-dated 19. 7. 1984, his services were terminated w. e. f. 8. 3. 1984 without issuing any show cause notice or enquiry in the matter. However, this order of termination was not approved by the District Basic Education Officer, Unnao. It has also been submitted that so far as resignation letter is concerned, the resignation letter dated 11. 10. 1984 was withdrawn by the respondent no. 1 on 12. 10. 1984 and till date the resignation letter has also not been accepted by the opposite parties. ( 7 ) ACCORDING to the Counsel for answering respondent, it is in these circumstances the order impugned in this Appeal was passed by the learned Single Judge. It has been further contended by him that the impugned order dated 7. 3. 2003 makes only an interim arrangement and cannot be termed as the final judgment and further the interim order will ultimately merge into final judgment and thus it cannot be treated to be an order having trappings of the final order. ( 8 ) ON the other hand, Sri S. K. Kalia argued with vehemence that the order under appeal amounts to disposal of a vital issue and infact is affecting vital and valuable right of the appellant. It is further submitted that the learned Single Judge while disposing application for interim relief has granted reliefs, which are final in nature and, therefore, Interim relief granted by the learned Single Judge have the trappings of final order. It is further submitted that the learned Single Judge while disposing application for interim relief has granted reliefs, which are final in nature and, therefore, Interim relief granted by the learned Single Judge have the trappings of final order. Relying upon the decisions in State of U. P. and others vs. Kumari Renu Tewari and others; (1993) 2 UPLBEC 1325, Sri ramayan Rao and another vs. Rama Shankar; 1993 (11) LCD 1182, abhay Kumar vs. Chairman Samyut Kshetriya Gramin Bank and others; (1994)3 UPLBEC 1954 and in the case of Navyug Radiance and another vs. Registrar Firm, Societies and Chits, Lucknow, [ Special Appeal No. 282 of 2002], learned Counsel for the appellant contended that an order passed on an application for interim relief is ordinarily not a judgment but it will qualify to be called judgment if it affects valuable right of the part or decide an important aspect of trial and the effect of the order on the party concerned is direct and immediate rather than indirect and remote. ( 9 ) IN Renu Tewaris case[supra] the learned Single Judge upheld the claim of parity even though in an ex-facie manner. This order was challenged in appeal. This Court held that the order under appeal affects the merit of the controversy directly involved in the writ petition itself and, therefore, the order has all the trappings of a judgment. In ramayan Raos case [supra] the learned Single Judge without giving any reason, has altered the position, which existed between the parties for over two years. By interim mandamus the State of U. P. was required to permit the respondent to function as President of Nagar Palika, which office he had ceased to hold with effect from 6th February, 1991. This honble Court after following various authorities on the subject held that the appeal against the said order of learned Single Judge to be maintainable as the learned Single Judge has decided a question of some moment viz. entitlement of the person to discharge the duties of the president of Nagar Palika during the pendency of the writ petition. This honble Court after following various authorities on the subject held that the appeal against the said order of learned Single Judge to be maintainable as the learned Single Judge has decided a question of some moment viz. entitlement of the person to discharge the duties of the president of Nagar Palika during the pendency of the writ petition. In navyug Radiance Societys case [supra] this Court followed the supreme Court decision rendered in Shah Babulal Khimji vs. Jayaven; air 1981 SC 1786 and held that if the interlocutory order amounts to disposal of a vital issue and infact is affecting vital and valuable rights having trappings of final orders, in that case the Special Appeal is maintainable. ( 10 ) ELABORATING further, Sri S. K. Kalia submitted that the respondent no. 1 was appointed as Clerk on 24. 3. 1983 for a period of one year. During Probation Period, he went on leave on 7. 3. 1984 and thereafter remained absent without sanction of leave. Consequently, the Committee of Management on 17. 6. 1984 decided to terminate the services of the respondent no. 1. Thereafter he submitted his resignation on 11. 10. 1984 which was immediately accepted by the Manager. The answering respondent has filed the present writ petition in the year 1991 i. e. after a long lapse of seven years without explaining the inordinate delay in approaching the Court. The answering respondent did not challenge the appointment of the petitioner when he filed the writ petition and it was challenged only in the year 1998 by way of Amendment in the writ petition and no reasonable explanation has been offered by the respondent for not challenging the appointment of the appellant earlier. Moreover, the appellant applied for appointment to the post of clerk in pursuance of the advertisement on 20. 6. 1985 and he was given appointment on the post of Clerk after being declared successful. At present, the appellant is a regularly selected permanent Clerk of the school and is continuously working since 1985. According to him, on account of the impugned order the services of the appellant who is in service since 1985 is in jeopardy and he will be out of job for the reason there is no vacant post of Clerk available in the School and that too without there being any fault on his part. According to him, on account of the impugned order the services of the appellant who is in service since 1985 is in jeopardy and he will be out of job for the reason there is no vacant post of Clerk available in the School and that too without there being any fault on his part. Moreover, the learned Single judge has not given any reasons, which necessitated him in passing the interim order quoted above. ( 11 ) WE may refer the observations made by the Supreme Court in shah Babulal Khimji v. Jayaben, AIR 1981 SC 1786 , which has been subsequently followed by this Court in several cases, their Lordships of the Supreme Court held as under:- " Thus, the only point which emerges from this decision is that whenever a trial judge decides a controversy which affects valuable rights of one of the parties, it must be treated to be a judgment within the meaning of the Letters Patent. " Their Lordships further observed in paragraph 116 of the report as under:-"thus, in other words every interlocutory order cannot be regarded as a judgment but only those orders would be judgments which decide matters of moment or affect vital and valuable rights of the parties and which work serious injustice to the party concerned. Similarly, orders passed by the trial judge deciding question of admissibility or relevancy of a document also cannot be treated as judgments because the grievance on this score can be corrected by the appellate court in appeal against the final judgment. " ( 12 ) IN nutshell, we can conclude that in cases where a proceeding finally terminates after adjudication of all the issues or some of the issue the adjudication is a judgment. The adjudication will also be a judgment, even though it does not result in termination of proceedings, if it possesses the characteristics and trappings of finality. In the above backdrop, the preliminary objection is over-ruled and the Special Appeal is held to be maintainable. ( 13 ) NOW, we come to the merits of the order under appeal. Admittedly, services of respondent no. 1 were terminated on 19. 7. 1984. According to the respondent the resignation was a given by the respondent no. In the above backdrop, the preliminary objection is over-ruled and the Special Appeal is held to be maintainable. ( 13 ) NOW, we come to the merits of the order under appeal. Admittedly, services of respondent no. 1 were terminated on 19. 7. 1984. According to the respondent the resignation was a given by the respondent no. 1 in the year 1984, which he withdrew on the next day but he filed the writ petition in the year 1991 without challenging the appointment of the appellant who was appointed in the year 1985 itself. Surprisingly, the appointment order of the appellant was challenged in the year 1999 although the respondent no. 1 had prior knowledge that the post on which answering respondent was working, appellant has been appointed. The answering respondent had knowledge regarding appointment of the appellant is proved from the fact that a copy of the counter affidavit filed on behalf of opposite parties nos. 2 and 3 was served in May, 1993. ( 14 ) A perusal of the order under appeal reveals that the learned Single judge has directed the opposite parties to allow answering respondent no. 1 to work from 11. 3. 2003 meaning thereby this order will have adverse effect on the appellant because the appellant was appointed on the post which the answering respondent was holding prior to his termination of services/ resignation. In case, the order of learned Single judge is allowed to be implemented now, there will be direct and immediate effect on the appellant and the result would be that the appellant, who was appointed about 18 years ago, would be out of service. The learned Single Judge without giving any reason has altered the position and further has not pointed out any illegality committed either by the Committee of Management or District Basic Education officer. There is no indication in the judgment as to how the appellant will be restored to the original position, if the writ petition ultimately fails. ( 15 ) FOR all the aforesaid reasons, we are of the opinion that the appeal deserves to be allowed and the order under appeal dated 7. 3. 2003 is liable to be quashed. ( 16 ) ACCORDINGLY, the appeal is allowed and the judgment and order dated 7. 3. 2003 passed by the learned Single Judge is hereby set aside. 3. 2003 is liable to be quashed. ( 16 ) ACCORDINGLY, the appeal is allowed and the judgment and order dated 7. 3. 2003 passed by the learned Single Judge is hereby set aside. Since the parties have exchanged the affidavits and the writ petition is ripe for hearing, the writ petition itself be listed before the learned Single judge immediately for expeditious hearing and disposal of the case. . .