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Allahabad High Court · body

2015 DIGILAW 2997 (ALL)

COMMITTEE OF MANAGEMENT, PUBLIC INTER COLLEGE RABUPURA v. STATE OF U. P.

2015-09-21

D.Y.CHANDRACHUD, YASHWANT VARMA

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JUDGMENT By the Court.—The special appeal has arisen from an order of the learned Single Judge dated 1 September 2015, which reads as follows: “Learned Standing Counsel prays for and is allowed a month’s time to file counter-affidavit. List thereafter.” 2. The issue as to whether a special appeal would lie against an interim order of this nature has been dealt with in a recent judgment of the Full Bench Ashutosh Shrotriya v. Vice-Chancellor, Dr. B.R. Ambedkar University, 2015(8) ADJ 248 (FB). The Full Bench observed as follows: “We, accordingly, are of the view that a direction issued by the learned Single Judge in the course of the hearing of a writ petition, calling for the filing of a counter and a rejoinder or, in other words, for the completion of pleadings is a direction of a procedural nature, in aid of the ultimate progression of the case. The object and purpose of such a direction is to enable the Single Judge to have the considered benefit of a response to the petition so as to enable the Court to deal with an application of an interlocutory nature upon a fair consideration of the rival perspectives and eventually for the purpose of the disposal of the case at the final stage. A purely procedural direction of this nature would ordinarily not be amenable to the remedy of a special appeal even if the consequence of the issuance of such a direction is to cause some inconvenience or prejudice to one or other party. The Court, in order to decide a lis, either at the interlocutory or at a final stage, would generally require the benefit of a response filed by a party which would be affected by the order which is sought and the reliefs which are claimed. Compliance with the principles of natural justice is as much a safeguard for the parties as it is for the Court of having considered the matter in all its perspectives before rendering a final decision. If a party to the proceeding seeks to press an application for ad interim relief even before a reply is filed on grounds of extreme urgency or on the ground that the situation would be irreversibly altered or that irretrievable injustice would result unless a protective order is passed, such a submission must be urged before the Single Judge. If a party to the proceeding seeks to press an application for ad interim relief even before a reply is filed on grounds of extreme urgency or on the ground that the situation would be irreversibly altered or that irretrievable injustice would result unless a protective order is passed, such a submission must be urged before the Single Judge. If such a submission is urged, it must be recorded and dealt with however briefly to obviate a grievance that an application for ad interim relief was pressed but not dealt with. A purely procedural direction of calling for a counter-affidavit and rejoinder would not be amenable to a special appeal since it decides no rights and does not affect the vital and substantive rights of parties. However, the appellate Court has the unquestioned jurisdiction to decide whether the direction is of a procedural nature against which a special appeal is not maintainable or whether the interlocutory order decides matters of moment or affects vital and valuable rights of parties and works serious injustice to the party concerned. Where the Division Bench in a special appeal is of the view that the order of the learned Single Judge is not just a procedural direction but would result in a grave detriment to substantive rights of an irreversible nature, the jurisdiction of the Court is wide enough to intervene at the behest of an aggrieved litigant. The Rules of Court are in aid of justice. We, therefore, affirm the principle that a purely processual order of the nature upon which the reference is made would not be amenable to a special appeal not being a judgement. The Division Bench will have to decide in the facts of each case, the nature of the order passed by a Single Judge while determining whether the appeal is maintainable.” 3. In the present case, the order of the learned Single Judge, as it stands, is a procedural direction for filing a counter-affidavit within a period of one month after which, the case is to be listed. 4. In the memo of appeal, the very first ground which is sought to be pleaded is that there was a stay application which was pressed before the learned Single Judge, but no order was passed therein. 4. In the memo of appeal, the very first ground which is sought to be pleaded is that there was a stay application which was pressed before the learned Single Judge, but no order was passed therein. The order which is under challenge before the learned Single Judge has been passed on 10 August 2015 by the Joint Director of Education, Meerut, appointing an Authorised Controller under Section 6 (1) of the Uttar Pradesh High Schools and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971. 5. In the present case, it has been submitted that the teacher in question was terminated from service and a reference has been made to the Secondary Education Board for its approval. The submission which has been urged is that ex facie the ground which weighed with the Joint Director of Education in appointing the Authorised Controller cannot be sustained with reference to the provisions of Section 6 (1) of the Act and hence, the order is without jurisdiction. 6. Since we find from the impugned order that it is purely in the nature of a procedural direction and these submissions, which have been urged in the appeal, have not been considered, the appropriate remedy for the appellants would be to move the learned Single Judge afresh for seeking an order on the application for interim relief. As held in the judgment of the Full Bench, if a party to the proceeding seeks to press an application for ad interim relief even before a reply is filed on grounds of extreme urgency or on the ground that the situation would be irreversibly altered or that irretrievable injustice would result unless a protective order is passed, such a submission must be urged before the learned Single Judge. If such a submission is urged, it must be recorded and dealt with however briefly to obviate a grievance that an application for ad interim relief was pressed but not dealt with. 7. In this view of the matter, we grant liberty to the appellants to move the learned Single Judge for consideration of the application for interim relief. If such an application is pressed, we request the learned Single Judge to deal with the application with all reasonable despatch. 7. In this view of the matter, we grant liberty to the appellants to move the learned Single Judge for consideration of the application for interim relief. If such an application is pressed, we request the learned Single Judge to deal with the application with all reasonable despatch. However, we leave open the issue as to whether such an application was originally pressed before the learned Single Judge when the impugned order dated 1 September 2015 was passed since it is the Court of the learned Single Judge which would be best in a position to determine that issue. 8. The special appeal is, accordingly, disposed of. There shall be no order as to costs.