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2016 DIGILAW 1016 (ALL)

HARIBANSH UPADHYAY v. STATE OF U. P.

2016-03-18

KRISHNA MURARI, RAGHVENDRA KUMAR

body2016
JUDGMENT By the Court.—This intra Court appeal under the Rules of the Court is directed against the order dated 19.2.2016 passed by learned single Judge on writ petition No. 7640 of 2006 filed by appellants calling for a counter-affidavit from the respondents within four weeks and connecting the writ petition with another writ petition No. 64917 of 2014, The order under challenge reads as under : “Heard Shri Alok Mishra, learned counsel for the petitioner, Shri Indra Raj Singh, who has filed caveat application on behalf of respondents No. 5 to 22 and Shri Vikram Bahadur Yadav for the respondents No. 1 to 4. All the respondents may file counter-affidavit within four weeks. List thereafter Connect with W. P. “A” No. 64917 of 2014 (Rakesh Kumar Lal and others v. State of U.P. and others)” 2. Learned counsel for the appellants submits that denial to decide the stay application by the learned single Judge adversely affects the rights of the petitioner-appellants for being regularized in service according to service rules resulting in serious irreparable loss. It is further submitted that though the order on the face of record amounts to procedural order passed in progression of the case but it is a trappings of finality of the judgment as the same would ultimately lead to the writ petition becoming infructuous. 3. Writ petition was filed by the appellants challenging the order dated 6.1.2016 passed by Commissioner, Basti Division, Basti according approval to the creation of 18 posts of Seasonal Collection Amin and peon and consequential order dated 7.1.2016 passed by District Magistrate, Basti. Appellants-petitioner averred in the writ petition that they are fully eligible for substantive appointment on the post of Seasonal Collection Amin and the reservation policy was not followed. Learned single Judge vide the aforesaid quoted order while entertaining the writ petition called for a counter-affidavit and connected the case with an earlier pending writ petition No. 64917 of 2014 filed by the petitioners challenging the regularization of 28 Seasonal Collection Amin on an alleged violation of the reservation policy. 4. Learned single Judge vide the aforesaid quoted order while entertaining the writ petition called for a counter-affidavit and connected the case with an earlier pending writ petition No. 64917 of 2014 filed by the petitioners challenging the regularization of 28 Seasonal Collection Amin on an alleged violation of the reservation policy. 4. The core issue for consideration is whether the order passed by learned single Judge calling for counter and rejoinder-affidavits without passing any interim order on the application of stay either granting or refusing stay tentamounts to a judgment within the meaning of Chapter VIII Rule 5 of the Rules of Court making it amenable to special appeal under Chapter VIII Rule 5 of the Rules of Court. Chapter VIII Rule 5 of the Rules of Court reads as under : “5. Special appeal.—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 and not being an order made in the exercise of revisional jurisdiction or in the exercise of its power of superintendence or in the exercise of criminal jurisdiction or in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award-(a) of a tribunal, Court or statutory arbitrator made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution or (b) of the Government or any Officer or authority, made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act of one Judge.” 5. A perusal of the aforesaid provision goes to show that appeal has been provided from a judgment or order of one judge of the High Court subject to excepted categories or exclusion where special appeal will not be maintainable. Thus, everything turns: upon the meaning of expression “judgment” used in Chapter VIII Rule 5 of the Rules of Court. 6. A perusal of the aforesaid provision goes to show that appeal has been provided from a judgment or order of one judge of the High Court subject to excepted categories or exclusion where special appeal will not be maintainable. Thus, everything turns: upon the meaning of expression “judgment” used in Chapter VIII Rule 5 of the Rules of Court. 6. The issue as to what constitute a judgment so as to make it amenable to special appeal under Chapter VIII Rule 5 is no longer res integra. 7. What constitutes a judgment within the meaning of the Letters Patent of the High Courts came up before the Supreme Court in the case of Asrumati Debi v. Kumar Rupendra Deb Raikot, AIR 1953 SC 198 . 8.The issue as to when a decision of the learned single Judge could be regarded as a ‘judgment1 within the meaning and scope of Clause 15 of the Letters Patent of Bombay High Court came up for consideration for the Supreme Court in the case of Shah Babulal Khimji v. Jayaben D Kania, 1981 (4) SCC 8 . It was held by the Hon’ble Apex Court that it would not be appropriate to project the definition appearing in Section 2 (9) of the Code of Civil Procedure, 1908 into the meaning of that expression for the purposes of the Letters Patent and the word “judgment” for the purposes of Clause 15 of the Letters Patent should receive a wider and more liberal interpretation than the expression “judgment” in the CPC. It was further held that judgment imports a concept of finality in a broader and not in a narrowed sense and can be of three kinds : (i) a final judgment; (ii) a preliminary judgment; and (iii) an intermediary or interlocutory judgment.. The Apex Court further went to observe that there may be such interlocutory orders which are not covered by Order XLIII Rule 1 C. P, C. but also possess a characteristic of finality. It was observed as under:. “(3) Intermediary or Interlocutory judgment.—Most of the interlocutory orders which contain the quality of finality are clearly specified in clause (a) to (w) of Order 43 Rule 1 and have already been held by us to be judgments within the meaning of the Letters Patent and, therefore, appealable. It was observed as under:. “(3) Intermediary or Interlocutory judgment.—Most of the interlocutory orders which contain the quality of finality are clearly specified in clause (a) to (w) of Order 43 Rule 1 and have already been held by us to be judgments within the meaning of the Letters Patent and, therefore, appealable. There may also be interlocutory orders which are not covered by Order 43 Rule 1 but which also possess-the characteristics and trappings of finality in that, the orders may adversely affect a valuable right of the party or decide an important aspect of the trial in an ancillary proceeding. Before such an order can be a judgment the adverse effect on the party concerned must be direct and immediate rather than indirect or remote.” 9. The Apex Court further went to observe that every interlocutory order is not a judgment. Only certain categories of interlocutory orders can be regarded as judgments. In this connection, it was held as under: “...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.” (emphasis supplied) 10. Thus, in view of the law laid down by Apex Court an interlocutory order must contain traits and trappings of finality. In the case of Central Mine Planning and Design Institute Ltd. v. Union of India, 20O1 (2) SCC 588, white laying down the test when interlocutory order would fall within the meaning of judgment for the purposes of Letters Patent, Apex Court has observed as under: “...to determine the question whether an interlocutory order passed by one Judge of a High Court falls within the meaning of “judgment” for purposes of Letters Patent the test is: Whether the order is a final determination affecting vital and valuable rights and obligations of the parties concerned. This has to be ascertained on the facts of each case.” 11. This has to be ascertained on the facts of each case.” 11. In Midnapore Peoples’ Cooperative Bank Ltd. v. Chunilal Nanda, 2006 (5) SCC 399, apart from other two issues, which have relevant bearing to the controversy herein, were as under: (i) Where the High Court in a contempt proceedings renders a decision on the merits of a dispute between the parties, either by an interlocutory order or final judgment, whether that would be appealable under Section 19 of the Contempt of Courts Act, 1971 and if not, what would be the remedy to the person aggrieved; and (ii) Where such a decision on merits is rendered by an interlocutory order of a learned Single Judge, whether an intra-Court appeal would be maintainable under Clause 15 of the Letters Patent of the High Court of Calcutta. The Hon’ble Apex Court observed that interlocutory or interim orders which are passed during the pendency of a case would fall under one or the other of the following categories: “(i) Orders which finally decide a question or issue in controversy in the main case; (ii) Orders which finally decide an issue which materially and directly affects the final decision in the main case; (iii) Orders which finally decide a collateral issue or question which is not the subject-matter of the main case; (iv) Routine orders which are passed to facilitate the progress of the case till its culmination in the final judgment; (v) Orders which may cause some inconvenience or some prejudice to a party, but which do not finally determine the rights and obligations of the parties.” 12. The issue with regard to maintainability of special appeal against almost identical order as the one in the case in hand came up before the Division Bench of this Court in the case of Ghisai Ram Krishak Vidyalaya Samiti v. State of U.P. and others, 2014(10) ADJ 211 (DB)(LB). The Division Bench of this Court after considering various aspects of the matter held that an order which only calls for a counter and rejoinder-affidavit under no circumstances be regarded as appellable order. It was observed as under: “...The case being adjourned with a direction to exchange affidavits causing a delay on account of this processual compulsory requirement, cannot be inferred to mean a refusal to pass an order. It was observed as under: “...The case being adjourned with a direction to exchange affidavits causing a delay on account of this processual compulsory requirement, cannot be inferred to mean a refusal to pass an order. There is nothing hidden or undecipherable so as to construe it as a decision amounting to a judgment. There is, therefore, no mystery that requires any probe or discovery to unravel more than what is actually written and clearly intended. It is not possible to read between the lines when there is no: even i\ remote exercise of discretion to make out a ground f appeal. Thus, in our considered opinion, the impugned order dated 15.10.2014 does not fall within the meaning of the word ‘judgment’ or an order as contemplated in Chapter VIII Rule 5 of the 1952 Rules so as to make this appeal competent against such an order. …… ...To put it simple, the proceedings before the learned Single Judge where it is alleged that the passing of an interim order has been withheld by itself in view of the terminology of the impugned order, may not be a ground for maintaining an appeal, but at the same time it may be a ground for pressing for an interim relief or disposal of the entire dispute on issues of jurisdiction or violation of principles of natural justice before the learned Single Judge in the background of the case where the appellant was ousted and was deprived from functioning till the end of his tenure.” 13. Recently, a Full Bench of this Court in Special Appeal No. 1140 of 2008, Ashutosh Shrotriya and others v. Vice-Chancellor, Dr. B.R. Ambedkar University and others, alongwith connected special appeals had an occasion to consideridentical issue. Recently, a Full Bench of this Court in Special Appeal No. 1140 of 2008, Ashutosh Shrotriya and others v. Vice-Chancellor, Dr. B.R. Ambedkar University and others, alongwith connected special appeals had an occasion to consideridentical issue. Noticing conflict in two Division Bench’s judgment, following questions were referred for decision to the Full Bench: “(1) Where a learned Single Judge while hearing a writ petition calls for counter and rejoinder-affidavits, but does not pass any order on the stay application either granting or refusing a stay, will the order amount to a refusal of interim relief to the petitioner either temporarily or impliedly and a ‘judgment1 within the meaning of Chapter VIII Rule 5 of the Rules of the Court, 1952; (2) Does an order which adversely affects the valuable rights of a party by a temporary or implied refusal of interim relief have the trappings of a judgment.” 14. After discussing the law on the subject Full Bench answered the questions as under : “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. 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 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.” 15. 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.” 15. In view of the settled law on the subject and particularly above quoted observations of the Full Bench, we are of the considered view that the order under appeal passed by learned single Judge is purely of procedural nature in aid of progression of the case to enable the Court to form a considered view after exchange’ of pleadings between the parties and it neither decided anything nor does it have the trappings of finality. Also, there is no material on record nor it is reflected from the impugned order of learned single Judge that issue of irretrievable injustice will result and substantive rights would be adversely affected for want of order immediately on the stay application was addressed before the learned single judge. In the absence of any such ground being pressed before the learned single Judge, it does not lie in the mouth of the appellant to say that the order decides the mattes of moment or is of such a nature that would affect vital and valuable rights of the parties and causes serious injustice. 16. In view of the above facts and discussions, special appeal under Chapter VIII Rule 5 of the Rules of Court is not maintainable and accordingly stands dismissed.