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2015 DIGILAW 548 (ALL)

STATE OF U. P. v. RAM SHANKER

2015-03-25

D.Y.CHANDRACHUD, P.K.S.BAGHEL

body2015
JUDGMENT By the Court.—This special appeal by the State and by the Basic Shiksha Adhikari, Etawah arises from the judgment and order of the learned Single Judge dated 28 May 2013 in a second appeal. 2. At the outset, we must note that we had called upon the learned Additional Advocate General to submit on the maintainability of the special appeal since the impugned judgment and order of the learned Single Judge has been rendered in a second appeal. The submission which has been urged is that the State and the Basic Shiksha Adhikari are in appeal only against the directions issued by the learned Single Judge in paragraphs 15, 16 and 17 of the impugned judgment and order. 3. The grievance of the appellants is that though the learned Single Judge held that the second appeal which has been filed by the Basic Shiksha Adhikari was not maintainable, the learned Single Judge, instead of dismissing the second appeal, proceeded to issue directions which are not relatable to the exercise of the jurisdiction in the second appeal arising out of a decree passed by the trial Court. Hence, it has been submitted that the special appeal would be maintainable. 4. Before we deal with the issue of maintainability, a brief reference to the facts would be in order. A suit was instituted by the first and the second respondents before the trial Court for declaratory and injunctive reliefs. The suit was decreed with a declaration that the defendants including the State shall treat the date of appointment of the original plaintiffs as 13 July 1977 and that since they are working as permanent teachers since then, they would be entitled to consequential benefits from 1 July 1985. A permanent injunction was granted restraining the defendants from interfering with the functioning and working of the plaintiffs. A first appeal was filed both by the State as well as the Basic Shiksha Adhikari against the judgment and decree of the trial Court. The first appeal was dismissed by the Additional District Judge, Etawah on 17 January 2013. A second appeal under Section 100 of the Code of Civil Procedure, 1908 was filed only by the Basic Shiksha Adhikari, Etawah. The State was not in second appeal. 5. The first appeal was dismissed by the Additional District Judge, Etawah on 17 January 2013. A second appeal under Section 100 of the Code of Civil Procedure, 1908 was filed only by the Basic Shiksha Adhikari, Etawah. The State was not in second appeal. 5. The learned Single Judge, before whom the second appeal came up for hearing, concluded by the impugned judgment and order of 28 May 2013 that the second appeal filed by the Basic Shiksha Adhikari was not competent and was hence, not maintainable since no permission has been obtained from the State Government for filing the appeal. The appeal, it must be noted, was dismissed by the learned Single Judge only on the ground of maintainability, without expressing any opinion on the merits of the issues raised in the second appeal. However, having held that the second appeal was not maintainable, the learned Single Judge proceeded to issue the following directions in paragraphs 15, 16 and 17 of the judgment and order, which read as follows: 15. Let an inquiry be made by Principal Secretary, Basic Education as to how the present appellant has acted in this matter and that too by engaging a counsel not appointed by State of U.P. but by one appointed by Basic Education Board. He shall also make an inquiry to find out in how many such matters, other Basic Education Officers are behaving in similar manner and how much funds from State Exchequer, they have consumed, without knowledge or permission from State of U.P. 16. The Principal Secretary, Law is also directed to find out as to in how many matters, cases are being contested by various authorities of State without seeking any permission from Law Department and, if so, what action has been taken by Law Department in such matters. 17. After making such inquiry and taking appropriate action, as directed above, both the above Principal Secretaries, shall submit report before this Court, but not later than a period of six months. This case shall be listed only for this purpose i.e. perusal of compliance report on 2.12.2013.” 6. The Learned Additional Advocate General has stated before the Court that the special appeal is confined only to the legality of the aforesaid directions. 7. This case shall be listed only for this purpose i.e. perusal of compliance report on 2.12.2013.” 6. The Learned Additional Advocate General has stated before the Court that the special appeal is confined only to the legality of the aforesaid directions. 7. Insofar as the issue of maintainability of the special appeal is concerned, Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 provides, inter alia, that an appeal shall lie to the Court from a judgment (not being a judgment passed in the exercise of appellate jurisdiction) in respect of a decree or order made by a Court subject to the superintendence of the Court. In view of the provisions of Chapter VIII Rule 5, a special appeal would not be maintainable where a judgment of the learned Single Judge has been rendered in the exercise of the appellate jurisdiction in respect of a decree or order made by a Court subject to the jurisdiction of this Court. However, in a judgment of a Division Bench of this Court in Manau Lal v. Sita Devi Asthana, ILR 1969 (All) 100, the Division Bench of this Court has held as follows : “There is a clear distinction between the exercise of the appellate jurisdiction of this Court in the second appeal in disposing of the controversy between the parties on merits in the appeal and disposing of miscellaneous matters not connected with the merits of the controversy and not arising of the suit. In the first case it can be said that the judgment was passed in the exercise of appellate jurisdiction in respect of a decree. In the latter case it can only be said that the judgment was passed in exercise of appellate jurisdiction in a miscellaneous matter arising in an appeal directed against a decree or order. We are, therefore, of the opinion that the instant special appeal is competent. In our opinion the words “in the exercise of appellate jurisdiction in respect of a decree or order” occurring in r.5 of Ch. VIII of the Rules of Court, extracted above, mean an order passed in the appeal itself which has arisen from the suit or proceeding finally terminated by the Court subject to the superintendence of this Court. In our opinion the words “in the exercise of appellate jurisdiction in respect of a decree or order” occurring in r.5 of Ch. VIII of the Rules of Court, extracted above, mean an order passed in the appeal itself which has arisen from the suit or proceeding finally terminated by the Court subject to the superintendence of this Court. These words have no relation to nor have they any connection with proceedings which do not originate from the suit or the proceedings filed before the Court subject to the superintendence of this Court and which are not the main appellate proceedings, but are only subsidiary proceedings arising out of miscellaneous matters at the appellate stage of the suit in the High Court.” 8. The directions which have been issued by the learned Single Judge in paragraphs 15, 16 and 17 of the impugned judgment and order have not arisen from the suit or proceedings in which the original decree was passed nor do those directions have any reasonable or proximate relationship with the lis between the plaintiffs and the defendants. Ex facie the directions in paragraphs 15, 16 and 17 of the impugned judgment and order relate to matters not arising out of the suit. In the circumstances, those directions cannot be construed as directions in a judgment passed in the exercise of the appellate jurisdiction in respect of a decree or order made by a Court subject to the superintendence of the High Court. The special appeal is, hence, maintainable. 9. On the merits of the special appeal, we find considerable substance in the submission which has been urged on behalf of the appellants. The second appeal filed by the Basic Shiksha Adhikari was dismissed by the learned Single Judge on the ground that it was not maintainable since the officer was not competent to file an appeal against the judgment rendered in the first appeal by the Additional District Judge, Etawah in the absence of a sanction or approval of the State. If the appeal was not maintainable, it ought to have been dismissed as such and the matter would rest there. However, the learned Single Judge has transgressed the jurisdiction of the Court in a second appeal by issuing directions of the nature which are contained in paragraphs 15, 16 and 17 of the impugned judgment and order. If the appeal was not maintainable, it ought to have been dismissed as such and the matter would rest there. However, the learned Single Judge has transgressed the jurisdiction of the Court in a second appeal by issuing directions of the nature which are contained in paragraphs 15, 16 and 17 of the impugned judgment and order. Those directions had absolutely no nexus to the lis between the plaintiffs and the defendants, and are akin to the exercise of the jurisdiction under Article 226 of the Constitution by the learned Single Judge. While exercising the jurisdiction in the second appeal, the Court has to deduce as to whether a substantial question of law arises for the consideration by the Court. Holding that the second appeal was not maintainable, the learned Single Judge was not justified in issuing the directions as contained in paragraphs 15, 16 and 17 of the impugned judgment and order, which we have extracted in the present judgment. 10. In the circumstances, we are inclined to allow the special appeal. However, we expressly clarify that nothing contained in this order shall amount to any expression of opinion by the Court on the merits of the decree or order of the first appellate Court which has enured to the benefit of the plaintiffs and the plaintiffs would be at liberty to pursue their remedy to execute the same according to law. The special appeal filed by the appellants is allowed by setting aside the directions of the learned Single Judge contained in paragraphs 15, 16 and 17 of the impugned judgment and order dated 28 May 2013. 11. The special appeal is, accordingly, disposed of. There shall be no order as to costs. ——————