Anju Devi And Others (In Wria 3079 ... vs State Of U.P. Thru. Addl. Chief ...
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HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 2
 
Case :- SPECIAL APPEAL No. - 300 of 2022
 
Appellant :- Anju Devi And Others (In Wria 3079 Of 2022)
 
Respondent :- State Of U.P. Thru. Addl. Chief Secy. Med. Health And Family Deptt. Civil Secrt. Lko And Ors
 
Counsel for Appellant :- Lalta Prasad Misra
 
Counsel for Respondent :- C.S.C.,Gaurav Mehrotra
 

 
Hon'ble Rajesh Singh Chauhan,J.

Hon'ble Subhash Vidyarthi,J.

1. Heard Dr. L.P. Mishra, learned counsel assisted by Sri Navin Shukla, Advocate for the appellants, Sri Rajesh Tiwari, learned Additional Chief Standing Counsel for the State-respondents and Sri Gaurav Mehrotra, learned counsel assisted by Sri Utkarsh Mishra, Advocate for the opposite party Nos.3 & 4.

2. By means of this appeal filed under Chapter-VIII Rule 5 of the Allahabad High Court Rules, 1952, the appellants/ writ petitioners have challenged the validity of the order dated 26.05.2022 passed by the learned Single Judge in Writ-A No.3079 of 2022; Anju Devi and others vs.State of U.P. & others rejecting the interim relief application of the appellants/ writ petitioners granting four weeks' time to the respondents to file counter affidavit and two weeks' time to file rejoinder affidavit listing the petition thereafter.

3. Before adverting to the grounds so raised in the present appeal challenging the order of learned Single Judge, we would first examine as to whether the present intra-court appeal against the interlocutory order would be maintainable. Our attention has been drawn towards Annexure No.2 which is a copy of the second application for interim relief filed on 30.05.2022. The aforesaid second application for interim relief is pending considering before the learned Single Judge. Therefore, we are unable to comprehend that when the appellants/ writ petitioners have filed their second application for interim relief on 30.05.2022 immediately after rejection of their first interim relief application vide impugned order dated 26.05.2022 and the said application is pending consideration, then as to why the present appeal may be entertained.

4. Besides, the appellants/ writ petitioners have enclosed Annexure No.1 with the second application for interim relief which is a letter dated 26.05.2022 issued by the Secretary, Uttar Pradesh Subordinate Service Selection Commission, Lucknow in the title of 'Important Information' putting a specific condition upon all the eligible persons, who have been selected in the examination in question, which has been conducted pursuant to the Advertisement No.02-Examination-2021 to the effect that their selection shall remain subject to the final outcome of the writ petitions bearing Writ-A No.7283 of 2021 (pending before this Court at Allahabad), Writ-A No.25 of 2022 (pending before this Court at Allahabad) and Writ-A No.3079 of 2022 which is pending before this Court wherein the impugned order dated 26.05.2022 has been passed. It has been informed at the Bar that in Writ-A No.7283 of 2021 pending before this Court at Allahabad the virus of the Uttar Pradesh Medical Health and Family Welfare Department Health Workers and Health Supervisors (Male and Female), Non-Gazetted Service Rules, 2018 have been assailed. Even though while rejecting the first interim relief application of the appellants/ writ petitioners vide order dated 26.05.2022 the learned Single Judge has not directed that such selection shall remain subject to final outcome of the writ petition, but as an abundant precaution the Secretary of the Selection Commission has issued such letter.

5. It would be apt to observe here that by means of an impugned order dated 26.05.2022 the issue between the parties have not been decided finally. The second application for interim relief of the appellants/ writ petitioners is pending considering which was filed immediately after passing the impugned order dated 26.05.2022, meaning thereby the appellants/ writ petitioners are willing to press their second application for interim relief. Further, the interest of the appellants/ writ petitioners has been protected by the Selection Commission itself issuing a letter dated 26.05.2022 (supra).

6. The controversy as to whether an intra-court appeal may lie against an interlocutory order has been set at rest by the Apex Court in catena of cases and the High Courts have been following such trite law. A well celebrated the case of Apex Court for the controversy in question is Shah Babulal Khimji vs. Jayaben D. Kania and another (1981) 4 SCC 8.

7. Almost the similar controversy has been considered by the Division Bench of this Court in the case in re: Premwati vs. State of U.P. and 3 others; Special Appeal No.171 of 2020; wherein the co-ordinate Bench was pleased to dismiss such appeal. Paras-2, 3 & 4 of the aforesaid judgment are being reproduced here-in-below:-

"2. This intra-Court appeal under Chapter VIII Rule 5 of Allahabad High Court Rules, 1952 (hereinafter referred to as "Rules, 1952") has arisen from order dated 10.01.2020 passed in Writ Petition No. 39160 of 2019 whereby learned Single Judge after noticing contention of appellant has found that matter required consideration and, therefore, granted time to respondents to file counter affidavit.

3. We enquired from learned counsel for applicant as to how appeal is maintainable inasmuch as under Chapter VIII Rule 5 of Rules, 1952 appeal lies only against a judgment and not an order, to which he could give no reply.

4. Special appeal under aforesaid provision lie against judgment and not against an order. While considering similar question in Special Appeal Defective No.1124 of 2007 (Usha Devi and others vs. State of U.P. and others) decided on 07.12.2007, this Court said :

"However, in our view, this appeal is not maintainable. The Hon'ble Single Judge while permitting the respondents to file counter affidavit has granted an interim order till the next date of listing. Neither the rights of the parties have been adjudicated finally nor any issue has been decided. When an order can be construed as a "judgment" whereagainst a special appeal under Chapter-VIII Rule 5 is maintainable has been considered repeatedly in catena of cases by this Court time and again. Earlier while Letters Patent appeal under Clause 15 was maintainable against the judgment of the Hon'ble Single Judge, the question as to when an "order" would be a "judgment" came up for consideration before a full Bench in the case of Shital Din and others Vs. Anant Ram, 1993 A.L.J. 127 (FB) and it held as under:-

".......on a reading of several clauses of the Letters Patent of the High Court we have come to the conclusion that a final decision, which effectually disposes of the appeal before the High Court, should amount to a judgment, whether it amounts to a decree or not."

The Apex Court in the case of Shah Babulal Khimji Vs. Jayaban D. Kania and another, AIR 1981 SC, 1786 while dealing with an appeal from a suit for specific performance of a contract considered the question as to whether under clause 15 of the Letters Patent, special appeal would be maintainable. In the said case the plaintiff sought an interim relief of appointment of a Receiver on the suit property during the pendency of the suit. The learned Single Judge dismissed the application seeking interim relief. The plaintiff filed special appeal under clause-15 of the Letter Patent, which was dismissed as not maintainable. The Apex Court while reversing the judgment of the appellate court, classified judgments in three categories:-

a) Final judgment

b) Preliminary judgment

c) Intermediary or interlocutory judgment.

It was also held by the Apex Court where a proceeding finally terminates after adjudication of all the issues or some of the issues the adjudication is a judgment. The adjudication is also a judgment, even though it does not result in termination of proceedings, if it possesses the characteristics and trappings of a judgment. An order may possess such characteristics and trappings when the order adversely affects a valuable right of the party by deciding an important aspect of the trial in an ancillary proceeding.

The Apex Court in para-119 at page-1817 also held as under:

"(1 ) That the trial Judge being a senior court with vast experience of various branches of law occupying a very high status should be trusted to pass discretionary or interlocutory orders with due regard to the well settled principles of civil justice. Thus, any discretion exercised or routine orders passed by the trial Judge in the course of the suit which may cause some inconvenience or, to some extent, prejudice one party or the other cannot be treated as a judgment otherwise the appellate court (Division Bench) will be flooded with appeals from all kinds of orders passed by the trial Judge. The courts must give sufficient allowance to the trial Judge and raise a presumption that any discretionary order, which he passes, must be presumed to be correct unless it is ex facie legally erroneous or causes grave and substantial injustice.

(2) That the interlocutory order in order to be a judgment must contain the traits and trappings of finality either when the order decides the questions in controversy in an ancillary proceeding or in the suit itself or in a part of the proceedings."

In the case of State of U.P Vs. Kumari Renu Tiwari,1993(2) UPLBEC,1325 the following propositions were laid down:

"(1) When the term "judgment" is used in a Statute or rule linked with the term "decree" as defined in the Code of Civil Procedure, it will have a restricted and narrow meaning but when it is not so linked, it will have a wider connotation;

(2) ordinarily for an adjudication to be a "judgment" it should bring about termination of the proceeding in which the adjudication is made; and

(3) an order passed on an application for interim relief is ordinarily not a "judgment" but it will qualify to be called ''judgment' if it affects valuable right of the party or decides an important aspect of the trial and the effect of the order on the party concerned is direct and immediate rather than indirect and remote"

We have also followed and taken the same view in Special Appeal No. 1247 of 2005, Musafir Singh Vs. Shiv Ram Yadav and others decided on 20.10.2005. A similar contention has also been dispelled by this Court in Special Appeal No. 1288 of 2006 Rajendra Singh Bhadauriya Vs. Committee of Management & others decided on 6.11.2006. Moreover, after perusing the relief sought by petitioner-respondent no. 5, we are not convinced that the interim order passed by the Hon'ble Single Judge can be treated to have granted any final relief to the petitioner-respondent no. 5." (emphasis supplied)

8. Dr. L.P. Mishra, learned counsel for the appellants/ writ petitioners has however raised some grounds in appeal by submitting that the appellants/ writ petitioners despite having strong prima-facie case, balance of convenience was in their favour and on account of the impugned advertisement the appellants/ writ petitioners have suffered irreparable loss and injury but the learned Single Judge without considering the aforesaid parameters rejected the interim relief application of the appellants/ writ petitioners granting time to exchange the pleadings for final disposal of the writ petition, but on being confronted the learned counsel for the appellants/ writ petitioners on the point that as to why they have filed the present special appeal when after rejection of the first interim relief application of the appellants/ writ petitioners they have filed another second interim application on 30.05.2022 which is pending considering; Service Commission has issued a letter dated 26.05.2022 putting a condition that the selection of final selectees shall remain subject to final outcome of those writ petitions which are pending at Allahabad and at Lucknow including the present petition; in view of the trite law to the effect that the special appeal cannot be maintained against an interlocutory order if that order has not attained its finality and by means of an order dated 26.05.2022 the issue between the parties have not been decided finally as the direction has been issued to complete the pleadings, no proper reply could be given by learned counsel for the appellants/ writ petitioners.

9. In view of the aforesaid facts and circumstances and also considering the case laws referred above, we are not inclined to interfere with this appeal.

10. Accordingly, the special appeal is dismissed.

11. However, the Writ-A No.3079 of 2022; Anju Devi and 171 others vs. State of U.P. and 3 others be listed in the week commencing 04.07.2022 and the learned counsel for the appellants/ writ petitioners may press the second application for interim relief which was filed on 30.05.2022 and if the pleadings are exchanged in the meanwhile the writ petition may be pressed for final disposal.

[Subhash Vidyarthi,J.] [Rajesh Singh Chauhan,J.]

Order Date :- 9.6.2022

Suresh/