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2020 DIGILAW 437 (GUJ)

Ruturaj Sankabhai Desai v. State Of Gujarat

2020-03-11

A.J.SHASTRI, VIKRAM NATH

body2020
ORDER : VIKRAM NATH, J. 1. We have heard Shri Yatin N. Oza, learned Senior Advocate assisted by Shri Tushar Sheth, learned counsel for the appellants, Ms. Manisha L. Shah, learned Government Pleader for the State respondent Nos. 1 and 2 and Shri K.B.Pujara, learned counsel for the private respondent Nos.3 to 60. 2. This appeal under clause 15 of the Letters Patent has been preferred assailing the correctness of the order dated 28.02.2020 passed by the learned Single Judge in Special Civil Application No.5182 of 2020, whereby the learned Single Judge fixed 11.03.2020 as next date and further requiring the respondent authority to consider objections of the petitioners and take a decision by the said date and till such decision is taken, the learned Single Judge provided that the provisional list shall not operate. The said order is reproduced below: “Issue notice to the respondents, returnable on 11.03.2020. In the meantime, it is open for the respondents to consider the objection of the petitioners and take a decision thereon by the 11.03.2020. Till such a decision is taken, provisional list shall not operate. Direct service, today, is permitted”. 3. Shri Oza, learned Senior Advocate has raised three grounds before us assailing the correctness of the aforesaid order of the learned Single Judge. Firstly, that the interim order passed by the learned Single Judge is non-speaking order. Secondly that the petition suffers from the vice of non-joinder of necessary parties, and therefore, the learned Single Judge ought to have stayed his hands off and at the first instance, the petitioners therein were required to implead the affected parties as party respondents in the writ petition and till such time the affected parties were impleaded and adequate opportunity given, no interim order ought to have been passed. Thirdly that in matters of seniority, interim order ought not to have been passed and it is only at the stage of final disposal, the decision could have been taken about the merit of the seniority list. In support of his submission, Shri Yatin Oza placed reliance upon a Division Bench judgment of this Court dated 11.09.2015 passed in Letters Patent Appeal No.1480 of 2013 between the Gujarat Public Service Commission through the Secretary viz. In support of his submission, Shri Yatin Oza placed reliance upon a Division Bench judgment of this Court dated 11.09.2015 passed in Letters Patent Appeal No.1480 of 2013 between the Gujarat Public Service Commission through the Secretary viz. Parmar Nilesh Rajendrakumar and 99 others on the proposition that in the absence of necessary parties having been impleaded, the petition itself was liable to be thrown out rather than being entertained and interim order being passed. 4. Ms. Manisha L. Shah, learned Government Pleader appearing for the State respondents, although not in appeal has supported the submission of the appellants that there was no occasion for the learned Single Judge to pass interim order in a matter relating to determination of seniority and promotion being affected on the basis of provisional list. It has been submitted that there are 47 vacancies of Additional Collectors and the State Administration Department requires urgent filling up of such posts so that the work of administration continues smoothly throughout on various vital posts, which are lying vacant. Reliance has been placed by learned Government Pleader on a Division Bench judgment of this Court in the case of Abhuji Karshaji Thakore vs. Thakore Jitaben Manchaji, reported in 2003(0) GLHELHC 200139, for the proposition that in a dispute relating to seniority an interim order ought not to have been passed. 5. Shri K.B.Pujara, learned counsel for the private respondents, at the outset, raised preliminary objection regarding maintainability of appeal, as according to him Letters Patent Appeal would lie against a judgment and not against an interim order. According to him, until and unless order passed by the learned Single Judge had some trappings of finality, an appeal would not be maintainable. In the present case, the order passed by the learned Single Judge impugned in the present appeal has no trappings of any finality and is purely an interim order, which would fall within the definition of “interlocutory order” and as such the appeal would not be maintainable. He has placed reliance upon the judgment of the Supreme Court in the case of Life Insurance Corporation of India vs. Sanjeev Builders Private Limited and Others, reported in (2018)11 SCC 722 . Referring to paras 8 and 9 thereof, Shri Pujara submitted that the present Letters Patent Appeal deserves to be dismissed on the ground of maintainability itself. 6. He has placed reliance upon the judgment of the Supreme Court in the case of Life Insurance Corporation of India vs. Sanjeev Builders Private Limited and Others, reported in (2018)11 SCC 722 . Referring to paras 8 and 9 thereof, Shri Pujara submitted that the present Letters Patent Appeal deserves to be dismissed on the ground of maintainability itself. 6. Arguments have also been made by the learned counsels for the parties on merit of the matter. But we are not inclined to go into the merits as the learned Single Judge is seized of the matter. The order of the learned Single Judge although at a glance may appear to be non-speaking, but nevertheless if examined carefully, it contains the reason as to why the interim order was passed. The learned Single Judge clearly mentions in his order that it is open to the respondents to consider the objections of the petitioners and take a decision thereof by 11.03.2020, which is the date fixed for the notice to return. Learned Single Judge further directed that till such decision is taken provisional list shall not operate. Now, the above analysis of the interim order would show that there is a provisional list against which the objections have been filed and such objections having not been decided, the plea of the petitioners therein that no decision will be taken on the provisional list without first deciding the objections is the reason, which has weighed with the learned Single Judge while passing the interim order. Thus, it cannot be said that the interim order of the learned Single Judge is completely non-speaking. 7. Further by the interim order no rights of the parties are decided or have been permanently affected. The only action to be taken on the provisional list, may be for the purpose of determination of seniority for giving promotion, has been stalled, and that too, to the limited extent of deciding the objections against the provisional list and publishing a final list, where upon the necessary exercise to be undertaken for giving effect to promotion. The only action to be taken on the provisional list, may be for the purpose of determination of seniority for giving promotion, has been stalled, and that too, to the limited extent of deciding the objections against the provisional list and publishing a final list, where upon the necessary exercise to be undertaken for giving effect to promotion. Thus, relying upon the judgment of the Supreme Court in the case of Life Insurance Corporation of India (supra), wherein in paragraphs 8 and 9 it has been held that until and unless the interlocutory order determines the rights of the parties in one way or the other, it cannot be said to be a judgment and as such we see no reason why not to accept the preliminary objection of the learned counsel for the private respondents regarding maintainability of the present appeal. Paragraphs 8 and 9 of the aforesaid judgment in the case of Life Insurance Corporation of India (supra) are produced below: “8. First contention is that the order of Single Judge was not a 'judgment' finally affecting the rights of the parties and the non-maintainability of Letters Patent Appeal. Clause 15 of Letters Patent provides for intra court appeals against the judgment of Single Judge of the High Court. The right of the Letters Patent Appeal to the High Court depends upon whether or not the decision of the Single Judge appealed from affects the merits of the question between the parties and their valuable rights. Whether an order is a 'judgment' or an 'interlocutory order' depends upon whether or not, it has finally decided the rights of the parties and whether it has the effect of affecting the rights of the parties. For an order to be a 'judgment', it is not always necessary that it should put an end to the controversy or terminate the suit. An 'interlocutory order' determining the rights of the parties in one way or other is also a 'judgment'. 9. Elaborating upon nature of 'interlocutory order' or "judgment" and observing that the Letters Patent Appeal would lie from the judgment which would affect the vital and valuable rights of the parties and which work serious injustice to the parties concerned, in Shah Babulal Khimji v. Jayaben D. Kania, (1981)4 SCC 8 , it was held as under (SCC pp. 53 & 57, paras 106 & 114-17): "106. 53 & 57, paras 106 & 114-17): "106. 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. * * * * * 114. In the course of the trial, the trial Judge may pass a number of orders whereby some of the various steps to be taken by the parties in prosecution of the suit may be of a routine nature while other orders may cause some inconvenience to one party or the other, e.g., an order refusing an adjournment, an order refusing to summon an additional witness or documents, an order refusing to condone delay in filing documents, after the first date of hearing an order of costs to one of the parties for its default or an order exercising discretion in respect of a procedural matter against one party or the other. Such orders are purely interlocutory and cannot constitute judgments because it will always be open to the aggrieved party to make a grievance of the order passed against the party concerned in the appeal against the final judgment passed by the trial Judge. 115. 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. 116. We might give another instance of an interlocutory order which amounts to an exercise of discretion and which may yet amount to a judgment within the meaning of the letters patent. Suppose the trial Judge allows the plaintiff to amend his plaint or include a cause of action or a relief as a result of which a vested right of limitation accrued to the defendant is taken away and rendered nugatory. Suppose the trial Judge allows the plaintiff to amend his plaint or include a cause of action or a relief as a result of which a vested right of limitation accrued to the defendant is taken away and rendered nugatory. It is manifest that in such cases, although the order passed by the trial Judge is purely discretionary and interlocutory, it causes gross injustice to the defendant who is deprived of a valuable right of defence to the suit. Such an order, therefore, though interlocutory in nature contains the attributes and characteristics of finality and must be treated as a judgment within the meaning of the letters patent. This is what was held by this Court in Shanti Kumar case (1974) 2 SCC 387 , as discussed above. 117. Let us take another instance of a similar order which may not amount to a judgment. Suppose, the trial Judge allows the plaintiff to amend the plaint by adding a particular relief or taking an additional ground which may be inconsistent with the pleas taken by him but is not barred by limitation and does not work serious injustice to the defendant who would have ample opportunity to disprove the amended plea taken by plaintiff at the trial. In such cases, the order of the trial Judge would only be a simple interlocutory order without containing any quality of finality and would therefore not be a judgment within the meaning of clause 15 of the letters patent." (emphasis supplied) 8. For the reasons recorded above, we dismiss this appeal. 9. However, in the facts and circumstances of the case, if any of the parties apply for vacation of the interim order, the learned Single Judge would consider such application for vacation of interim relief on priority basis and if possible may dispose of the same at the earliest subject to other important and urgent matters on Board. Learned counsels for the parties will cooperate in the disposal of the stay vacation application filed, if any, and also in final disposal of the petition. Shri Pujara, learned counsel for the private respondents undertakes that he will not seek any undue or long adjournment in the matter. 10. Consequently, Civil Application No.1 of 2020 stands disposed of.