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2023 DIGILAW 773 (RAJ)

Ranjeet Singh Raisikh v. Union of India

2023-04-05

DINESH MEHTA

body2023
JUDGMENT : Dinesh Mehta, J. The matter comes up for consideration of the second stay application. 2. In spite of the direction given by this Court to list this case along with SBCWP No. 2811/2022, the said case has not been listed by the Registry. Surprisingly rather brazenly enough, concerned clerk has not listed the matter with following noting:— “CW 2811/22 already tagged a/w WCP 572/22 in which next date is 24/4/23”. 3. This Court takes a serious exception to the approach of the concerned clerk - once the Court directs to list the matter, he cannot refuse to list a matter for any reason, much less that the writ petition is tagged with the record of the contempt petition. 4. At this juncture, Mr. Nitin Trivedi, learned counsel, for the petitioner prayed that the interim order passed by this Court on 28.05.2020, which was extended from time to time till 09.09.2020, be extended till the next date. 5. Mr. Saluja, learned counsel for the respondents, on the other hand, opposed petitioner's such prayer and submitted that neither after 09.09.2020, the interim order was ever extended nor can the same be extended now, because perforce provisions contained under Article 226(3) of the Constitution, the interim order passed by this Court on 28.05.2020 has come to an end. 6. Before passing any order at the request of Mr. Trivedi, it would be apt to take note of the antecedent facts, including the relevant dates. 7. Instant writ petition (No. 4419/2020) was filed by the petitioner challenging the action of the respondents, who were about to discharge the petitioner from service. 8. On 28.05.2020, a coordinate Bench of this Court passed the following interim order:— “Issue notice. Issue notice of the stay application also, returnable on 13.07.2020. In the meanwhile and until further orders, the petitioner shall not be discharged from his services and he shall be allowed to perform his duties continuously till the next date of hearing.” 9. Thereafter, the matter was firstly listed on 22.07.2020 and the interim order was extended till 09.09.2020. 10. On 09.09.2020, Mr. Manish Shisiodia, learned counsel, put in appearance on behalf of the respondents and the matter was adjourned for two weeks with simultaneous direction of continuation of the interim order till the next date. 11. Thereafter, the matter was firstly listed on 22.07.2020 and the interim order was extended till 09.09.2020. 10. On 09.09.2020, Mr. Manish Shisiodia, learned counsel, put in appearance on behalf of the respondents and the matter was adjourned for two weeks with simultaneous direction of continuation of the interim order till the next date. 11. It is to be noted that thereafter, for about a year, no reply to the writ petition was filed and the same came to be filed by the respondent No. 2 and 3 on 22.11.2021 and on the next day (on 23.11.2021), ah application under Article 226(3) of the Constitution was filed while supplying a copy thereof to Mr. Trivedi on the even date. 12. As luck would have it, neither the application under Article 226(3) nor was the main case listed before the Court thereafter. 13. In the meantime, the respondent No. 3 passed an order dated 05.02.2022 (sic 05.02.2021) and discharged the petitioner from services, inter-alia, observing that the respondents have filed an application under Art. 226(3) of the Constitution of India on 23.11.2021 and in light of the constitutional provisions contained under Art. 226(3) of the Constitution of India, the interim order has automatically been vacated on expiry of fourteen days therefrom. 14. No sooner had the petitioner received the above referred order dated 05.02.2022, than he moved second stay application on 14.02.2022. 15. The record shows that Mr. Trivedi, learned counsel took permission for getting the second stay application listed on 18.02.2022, but to the petitioner's dismay, the second stay application could not be placed for consideration of the Court, as the record of the writ petition No. 4419/2020 was not traceable (as told by the Registry to the learned counsel for the petitioner). 16. Such being the position, the petitioner preferred a fresh writ petition, which was registered as S.B. Civil Writ Petition No.2811/2022 and noticing the fact–situation in detail, Coordinate Bench of this Court, per-viam order dated 18.02.2022, stayed the effect and operation of the order dated 05.02.2022. 17. 16. Such being the position, the petitioner preferred a fresh writ petition, which was registered as S.B. Civil Writ Petition No.2811/2022 and noticing the fact–situation in detail, Coordinate Bench of this Court, per-viam order dated 18.02.2022, stayed the effect and operation of the order dated 05.02.2022. 17. The order dated 18.02.2022, passed in S.B. Civil Writ Petition No. 2811/2022 reads thus:— “It is submitted by learned counsel for the petitioner that in the pending writ petition before this Court filed by the petitioner where interim order was granted by the Court, despite the fact that the application filed under Article 226(3) of the Constitution of India did not come up before the Court, assuming vacation of the interim order automatically, the petitioner has been superannuated and order has been passed to recover the amount, which was paid to the petitioner during pendency of the writ petition. In view of the submissions made, issue notice. Issue notice of the stay application also, returnable within a period of four weeks. In the meanwhile & till further orders, effect & operation of the order dated 05.02.2022 (wrongly indicated as 05.02.2021) shall remain stayed. Connect with SBCWP No. 4419/2020.” 18. Mr. Trivedi, learned counsel for the petitioner argued that the interim order that was granted by this Court on 28.05.2020 is still in currency in light of the judgment of this Court rendered in the case of Anil Chitoda v. State of Rajasthan, (2009) 4 RLW 3385 (Raj.), particularly para Nos. 29, 36, 37 and 38 thereof and prayed that the interim order which is continuing, deserves to be extended till the next date. 19. Mr. Saluja, learned counsel for the respondents, on the other hand, cited the judgment of this Court in the case of Gheesa Lal v. State of Rajasthan, AIR 1981 Raj 65 and submitted that in light of the law laid down by this Court that the provisions contained under Article 226(3) of the Constitution are mandatory and on filing of the application under Article 226(3), the interim order comes to an end after expiry of period of 14 days, irrespective of the fact whether the application or the matter came up for consideration of the Court or not, the interim order already stands vacated and hence, the same cannot be extended. 20. Heard and gone through the record and law on the subject. 21. 20. Heard and gone through the record and law on the subject. 21. A perusal of the record shows that the application under Article 226(3) of the Constitution, which has allegedly been filed by the respondents, is not tagged with the record of the present case (S.B. Civil Writ Petition No. 4419/2020) till today. 22. On enquiry being made by the Court Master, it has transpired that such application said to have been filed by the respondents on 23.11.2021, is still lying with the concerned clerk for reasons unknown. It is also informed that the same has not even been dealt with by the clerk. 23. The respondents have taken undue advantage of the petitioner's precarious situation and simply because the matter was not listed for consideration of the Court, after they had moved an application under subclause (3) of Article 226, they have gone ahead to declare that the interim order has come to an end by virtue of the provisions contained under Article 226(3) of the Constitution of India’ The respondents have not only superannuated the petitioner but also sought to recover from him, the salary which they had paid during the period interregnum. 24. It is, therefore, clear that for all effects and purposes the stay vacation application under Article 226(3) of the Constitution, which has been made, cannot be construed to have been properly filed, as the same has neither been dealt with nor is yet part of the record before the Court. (S.B. Civil Writ Petition No. 4419/2020). 25. It is ironical that though the petitioner had filed a second stay application on 14.02.2022, the same was not placed for consideration of the Court, on the ground or pretext that the record of the S.B. Civil Writ Petition No. 4419/2020 was not traceable. 26. Fortunately for the petitioner, in another writ petition filed by him being S.B. Civil Writ Petition No. 2811/2022, a Coordinate Bench of this Court appreciated petitioner's predicament and protected his interest and rights by way of passing an interim order on 18.02.2022. 27. Upon consideration of the judgments cited at the bar and on surfing through various law reports, it transpires that divergent views have been taken by different High Courts about the consequence of submission of an application under Article 226(3) of the Constitution, if the same is not decided within two weeks. 27. Upon consideration of the judgments cited at the bar and on surfing through various law reports, it transpires that divergent views have been taken by different High Courts about the consequence of submission of an application under Article 226(3) of the Constitution, if the same is not decided within two weeks. Some of the High Courts, including our Court in the case of Gheesa Lal, (supra) has held the provision to be mandatory, others have held it to be directory. Reference of a recent judgment of Gauhati High Court may be made here, in which all the judgments on this issue have been considered and disscussed in detail (Rukuvoto Ringa v. Meyalemla, decided on 26.06.2020 : 2020 SCC OnLine Gau 3206). 28. But then, the times have changed. Four decades have passed and in the meantime entire dynamics have changed. The law which was laid down by this Court in the year 1981 needs to be relooked, especially given the fact that the dockets of the Court are more than full and not less than 200 cases are listed before a Court on a daily basis, on account of multifold institution of the cases. 29. Being cognizant of such situation, in Anil Chitoda's case, (supra) this Court has taken a just and pragmatic view in the year 2009 and being mindful of the judgment in case of Gheesa Lal, (supra), it was held that the interim order cannot be said to have been vacated, simply because an application under Article 226(3) of the Constitution of India has been filed. 30. This Court deems it apt to reproduce the relevant abstract from the judgment of Anil Chitoda, (supra) “27. The ground realities cannot be ignored that with the boards of the Courts being heavy, very often it does happen that some of the matters do not reach for consideration in the regular Court hours and in the given circumstances, such ‘not-reached’ matters are ordered to be listed on another date, if mentioned about, and if mentioning is at all entertained by the Bench concerned. The fact that in such eventualities and circumstances, the Court has not heard the matter on merits before deciding whether to continue or to vacate the interim order is amply demonstrated by the expression used in several of the order sheets aforesaid that the interim order would continue, if existing. The fact that in such eventualities and circumstances, the Court has not heard the matter on merits before deciding whether to continue or to vacate the interim order is amply demonstrated by the expression used in several of the order sheets aforesaid that the interim order would continue, if existing. It is obvious that for all practical purposes, every such order had only been of placing the matter to other date without the Court having the occasion to apply itself to the record of the case so as to pass a considered order. 28. … … … 29. In such matters and in relation to such interim orders, where the indications are clear to the effect that the Court had not considered the matter on merits on the given dates, and never intended the interim order to come to end with efflux of time or with the end of a particular date, it would be rather extravagant to suggest that for mere use of expression ‘until then’, the Court intended the interim order to remain alive only until the next given date or that the Court had passed a considered order that the interim order would come to an end with such next date unless specifically extended irrespective whether the matter would be considered on the given date or not. In such kind of matters, in the opinion of this Court, even if the interim order had been granted or extended by the Court until the next date, in the event of the matter not reaching for consideration on the given date, the interim order cannot be treated as vacated. … … … … … … 36. In such kind of matters, in the opinion of this Court, even if the interim order had been granted or extended by the Court until the next date, in the event of the matter not reaching for consideration on the given date, the interim order cannot be treated as vacated. … … … … … … 36. This Court would hasten to clarify that there could be the circumstances or factors indicating contrary to such usual currency of the interim order like the application under Article 226(3) of the Constitution of India wherein, per the force of the constitutional provisions, the interim order stands vacated if the application is not disposed of within the given period; and there could also be the cases where the conduct of the petitioner would show his avoiding the matter and where the Court might not be inclined to let the interim order operate unless extended; and there could be other reasons where for usual currency of the interim order might not be countenanced but it cannot be assumed as a matter of course nor could be applied indiscriminately to the extent that despite there being no contrary reason, in every case the interim order must be taken as vacated if not extended irrespective whether the case has been taken up on a given date or not. 37. It may be observed that apart from not reaching of the matter for consideration in the regular Court time, there could be several factors and reasons where for a matter might not come up for consideration before the Court. The events and instances are not unknown that suddenly a given day is declared a holiday or the Court remains closed for any reason or circumstance. There are various other reasons and factors where for even on the given working day a matter does not appear on the board or is not taken up for consideration by the Court for a fault, mistake, reason, or circumstance that could be attributed anywhere but the litigant. There appears no necessity to dilate on all such factors and all such circumstances but this Court is clearly of opinion that no such factor or circumstance could region over and above the interest of justice. 38. Even when examined from a technical angle, the result is the same. There appears no necessity to dilate on all such factors and all such circumstances but this Court is clearly of opinion that no such factor or circumstance could region over and above the interest of justice. 38. Even when examined from a technical angle, the result is the same. When a matter is ordered to be posted another day, usually the Court would use the expression put up on or list on or stand over to’ etc. Any such direction is specifically meant to convey that the matter is to be brought before the Court on the stipulated date. Mere printing of the matter on the cause-list cannot be considered meeting with all the requirements of such directions unless the matter is specifically called out and placed before the Court; as is the usual practice in this Court that the Court Master would call out the matters one by one with serial number and shall display such serial number on the electronic board meant for the purpose. When a matter has not reached, and has not been called out at all, it cannot be said that the matter has been placed before the Court. In the context, the ‘next date’, for the purpose of the interim order could only be next effective date of hearing when the matter is in fact taken up and considered by the Court. Even if the interim order had been extended on the last date until next date while directing the matter to be placed before the Court on such next date, unless actually called out, the matter cannot be said to be have been placed before the Court. The requirement of the order of the last date in such a case would be met only when the matter would in fact be placed before the Court for consideration and not before. Until that happens, the interim order would, ordinarily continue; subject to what has been observed above.” 31. Instead of burdening the instant order by the different views that have been taken by different High Courts, this Court feels persuaded rather bound by what has been held in Anil Chitoda's case, (supra). 32. Apart from the reasons given in the case of Anil Chitoda, (supra), there are additional reasons to hold the view that the interim order has not ceased to operate in the present case. 32. Apart from the reasons given in the case of Anil Chitoda, (supra), there are additional reasons to hold the view that the interim order has not ceased to operate in the present case. Before setting out the reasons, it will not be out of context to first reproduce Article 226 of the Constitution. “226. Power of High Courts to issue certain writs (1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout the. territories in relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any Govt. “226. Power of High Courts to issue certain writs (1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout the. territories in relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any Govt. within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose (1) The power conferred by clause (1) to issue directions, orders or writs to any Govt., authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories (2) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1), without (a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and (b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the said next day, stand vacated. (4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme Court by clause (2) of Article 32.” 33. (4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme Court by clause (2) of Article 32.” 33. A careful reading of the above provision reveals that the expression ‘High Court’ has been used once each in clause (1), (2) and (4) and four times in clause (3). Indubitably, the expression ‘High Court’ in clause (1), (2) and (4) has been used to indicate the judicial side or seat of the ‘High Court’. Even in clause (3), the expression ‘High Court’ clearly indicates judicial seat of the High Court, subject of course to some confusion regarding the first such term existing in the second line, namely, ‘application to the High Court’. Some Courts have taken it to be referring to the Registry of the High Court to conclude that if an application has been filed under Article 226(3) the interim order will stand vacated, regardless of the fact that the application has not come up for consideration of the Court. 34. According to this Court, term ‘High Court’ used in second line of clause (3) of Article 226 cannot be read as ‘Registry of the High Court’. Ordinarily the rule of construction is that the same expression wherever it appears more than once in the same statute, more so in the same provision, must receive the same meaning, unless the context suggests otherwise. (See Suresh Chand v. Gujam Chishti, (1990) 1 SCC 593 : AIR 1990 SC 897 ). 35. The phrase used is ‘makes an application to the High Court’. The words used are ‘makes an application’ and not ‘files’ or ‘submits’ an application in the Registry of the High Court. 36. Accordingly, the phrase used in clause (3), ‘makes an application to the High Court’ should be construed to mean, the application to the Court hearing the matter - when the application is taken up for consideration by the appropriate Bench of the High Court. Merely moving or filing an application in the Registry of the High Court cannot be treated to be an application made to the High Court. 37. Merely moving or filing an application in the Registry of the High Court cannot be treated to be an application made to the High Court. 37. If such interpretation is not given, then, in cases where the 14th day expires on a Saturday or during summer vacation - when the Registry opens but the judicial work of the High Court does not take place, the interim order would stand vacated or treated to have been vacated by taking the view that the Registry of the High Court is open. Such interpretation would lead to the result which was never intended by the 44th Constitutional Amendment. 38. Furthermore, in cases where the application has some defects or the application is wanting in some respect or there are office objections relating to signature Court fee etc. and in extreme case where the application itself is misplaced, the Registry would not place the stay vacation application under Article 226(3) before the Court. In such an eventuality, even if the petitioner pursues, the application will not be placed for consideration of the Court. Result ? The interim order granted in such petitioner's favour will be treated to have been vacated for no fault of the petitioner. In other words, due to lapse or may be a dubious ploy of the applicant, who seeks to get the stay vacated - the interim order will stand vacated. 39. It may so happen that on account of unforeseen circumstances or an unprecedented situation like the pandemic, application under Article 226(3) may not even be listed on account of lack of staff or limited number of cases that are being listed. That is apparently what seems to have happened in the case in hands. Not only that the writ petition (CWP No. 4419/2020) has not seen the light of the day since 09.09.2020, even application under Article 226(3) has never come up for consideration before the Court since it was filed (on 23.11.2021). 40. The facts of the present case are telling. They are squarely covered by the situations and contingencies that were contemplated by this Court, while deciding the case of Anil Chitoda, (supra). 41. There is yet another aspect. 40. The facts of the present case are telling. They are squarely covered by the situations and contingencies that were contemplated by this Court, while deciding the case of Anil Chitoda, (supra). 41. There is yet another aspect. The respondents have themselves given a declaration that the interim order passed by the High Court has come to an end, without even caring to examine the record and ensuring as to whether their application is actually available on the record of the concerned case or not. 42. An inadvertent error, administrative inaction or ministerial mischief by the staff of Registry cannot wipe out or obliterate the order passed by the High Court in exercise of its plenary power. The fault, folly or caprice of the clerical staff cannot wither away protection granted to a citizen by the High Court simply on ticking of the clock or passing of 14 days on the principle of “Actus curiae neminem gravabit”. 43. Apart from what has been observed hereinabove and what has been said by this Court in Anil Chitoda's case, (supra), this Court is of the view that the order passed by a constitutional Court under Article 226 of the Constitution is not subservient to a procedural formality undertaken by the respondents. Merely by putting in or filing an application under Article 226(3) of the Constitution of India and waiting for 14 days to pass, an applicant cannot triumph. Until an application under Article 226(3) comes on board of the ‘High Court on judicial side’ i.e. the appropriate judicial Bench, the case is called out and then adjourned, without extending the interim order, the interim order passed in a writ petition cannot be construed or taken to have lapsed. 44. Clause (3) of Article 226 has been divided in two parts - first part deals with conditions/circumstances while the other part provides for consequence. The consequence can be deemed to follow only if the first part is satisfied or in other words, stay can be said to have been vacated if all the conditions mentioned in the first part are satisfied. 45. The disposal of the application can only be done by the Court - the judge assigned with the roster to deal with such application. 45. The disposal of the application can only be done by the Court - the judge assigned with the roster to deal with such application. Therefore, when the High Court has not had the occasion or opportunity, it cannot be said that the conditions(s) given under first part of clause (3) have been satisfied in order to hold that the second part i.e. consequence can be inferred. 46. A thing cannot be deemed or said to have not been done, where the authority or person responsible for doing such thing has no occasion or opportunity to do such thing. 47. Since, the application under Article 226(3) of the Constitution has not come on record and has not been placed for consideration of the Court, it cannot be said that the High Court has not disposed of the application within two weeks from the date it received the application. It would therefore, be wrong to infer that the interim order passed by this Court in exercise of powers under Article 226 of the Constitution has lived its life or has ceased to remain in currency. 48. Moving on to the facts of the present case - on 09.09.2020 the matter was adjourned while extending the interim order till the next date, whereafter the case has been listed for the first time on 29.03.2023. The interim order automatically continued till 29.03.2023, though on such date, at Mr. Shishodia's resistence the same was not extended, as he wanted to argue that the interim order has already come to an end and hence, cannot be extended. 49. If the request of the respondents is acceded to and the interim order is held not to be in currency, in a case like the one in hands, it would result in travesty of justice and divesting the petitioner of the protection he was otherwise having, for none of his faults. 50. The interim order passed by this Court on 28.05.2020 is, therefore, held to have never expired and is further extended till the next date i.e. 19.04.2023. 51. Registrar (Judicial) is hereby directed to look into the matter and call for explanation of the concerned clerk, as to why the application under Article 226(3) of Constitution, said to have been submitted by Mr. Shishodia, has not been dealt with and placed for consideration of the ‘Court’. 51. Registrar (Judicial) is hereby directed to look into the matter and call for explanation of the concerned clerk, as to why the application under Article 226(3) of Constitution, said to have been submitted by Mr. Shishodia, has not been dealt with and placed for consideration of the ‘Court’. He shall also seek explanation of the dealing clerk, who has refused to list the matter despite order of the Court. He is further directed to ensure that SBCWP No. 2811/2022 and Contempt Petition No. 572/2022 are listed on 19.04.2023, along with the present case. 52. The explanation be placed on record for consideration of the Court on the next date of hearing i.e. 19.04.2023.