Poonam Dwivedi vs State Of U.P. Thru. Addl. Chief ...
2022 Latest Caselaw 12945 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 2
 

 
Case :- SPECIAL APPEAL No. - 392 of 2022
 

 
Appellant :- Poonam Dwivedi
 
Respondent :- State Of U.P. Thru. Addl. Chief Secy. Dept. Of Medical Health And Family Welfare And 4 Others
 
Counsel for Appellant :- Alok Mishra
 
Counsel for Respondent :- C.S.C.,Gaurav Mehrotra
 

 
Hon'ble Devendra Kumar Upadhyaya,J.

Hon'ble Saurabh Srivastava,J.

Heard Sri Alok Mishra, learned counsel representing the appellant-petitioner, learned State Counsel representing the State-respondents and Sri Gaurav Mehrotra, learned counsel representing the U.P. Subordinate Services Selection Commission.

By means of this intra-court appeal filed under Chapter VIII Rule 5 of the Rules of the Court, the appellant-petitioner has questioned the order dated 07.09.2022, passed by the learned Single Judge in Writ-A No.5392 of 2022 whereby notices have been issued to the private respondents in the writ petition and from official respondents counter affidavit has been invited and the matter has been ordered to be listed accordingly on 10.10.2022. Learned Single Judge while passing the said order has also provided that the respondents in the writ petition shall proceed with the selection but the result of such selection shall be subject to final outcome of the writ petition.

At the outset, learned State Counsel as also learned counsel representing the U.P. Subordinate Services Selection Commission have raised a preliminary objection as regards the maintainability of the instant Special Appeal on the ground that the order under appeal herein passed by the learned Single Judge is not a judgment and hence no Special Appeal would lie against the said order.

Replying to the said submission, learned counsel for the appellant-petitioner has submitted that in the facts and circumstances of the case, learned Single Judge ought to have reserved one post for the appellant-petitioner and by not doing so, learned Single Judge has erred in law. In support of his submission, Sri Mishra, learned counsel representing the appellant-petitioner has relied upon a judgment of Hon'ble Supreme Court in the case of Deoraj Vs. State of Maharashtra and others, reported in (2004) 4 SCC 697. On the basis of said judgment, it has thus been argued by Sri Mishra that there are the situations where granting an interim relief by a court becomes inevitable and further that the facts of the instant case, which have been pleaded by the learned counsel for the appellant-petitioner before the learned Single Judge, warranted an order to be passed to the effect that one post be reserved for the appellant-petitioner.

So far as the law laid down by the Hon'ble Supreme Court in the case of Deoraj (supra) is concerned, there cannot be any quarrel on the legal principles. The factors which are taken into consideration by any court while considering the prayer for grant of interim relief are well established. The facts of a particular case may warrant indulgence by a court in granting an interim relief or interim order, however, the same cannot be claimed as a matter of right by the person approaching the court. The facts of the case and the legal issues involved therein are to be considered by the court and thereafter in the discretion of the court it is for the court to pass the interim order of a particular nature.

So far as the instant case is concerned, the learned Single Judge by the order under appeal, dated 07.09.2022 has already provided that the result of the selection shall be subject to final outcome of the writ petition. The case set up by the appellant-petitioner before the learned Single Judge is that she is an applicant for recruitment to the post of Health Worker (Female) pursuant to the advertisement issued by the Selection Commission. Further, it appears that she had applied to be granted reservation available to the Economically Weaker Section (EWS) of the society and for the said purpose, she submitted certain certificate which according to the learned counsel representing the Commission was not in the prescribed format and accordingly the same was not taken into consideration for the purposes of granting benefit to the appellant-petitioner as a candidate belonging to EWS category.

As to whether the certificate submitted by the appellant-petitioner was in the format and as to what is the legal implication on a candidate not furnishing the certificate in a particular format, are the issues which still require consideration by the learned Single Judge and the same shall be considered and decided once the writ petition is finally considered. In the meantime, learned Single Judge has already provided that result of the selection shall be subject to the final outcome of the writ petition.

Learned counsel for the appellant-petitioner raises a plea that in case the post for the appellant-petitioner is not reserved, such a situation will result in creation of third party rights which will create complications.

We are not in agreement with the said submission of the learned counsel for the appellant-petitioner for the reason that learned Single Judge while passing the order dated 07.09.2022 has provided that the result shall be subject to final outcome of the writ petition, meaning thereby, whether or not selected person/persons is/are party to the writ petition, he/they will have to abide by the final outcome of the writ petition. The interest of the appellant-petitioner has been, thus, protected by the learned Single Judge.

A Full Bench of this Court in the case of Ashutosh Shrotriya and others Vs. Vice-Chancellor, Dr. B.R. Ambedkar University and others, reported in (2015) 6 All LJ, 383, has held that the order passed by a learned Single Judge in a writ petition under Articles 226 and 227 of the Constitution of India only calling for counter affidavit and rejoinder affidavit is merely a procedural order and it is in aid of the progression of such case. The Full Bench has accordingly held that such an order will not be amenable to the Special Appeal under Chapter VIII Rule 5 of the Rules of the Court.

We further record that the order under appeal herein, dated 07.09.2022 cannot, in any manner, be termed to be a judgment for the reason that it neither decides any lis or issue between the parties nor can it be termed to have even the trappings of a judgment.

In view of the law laid down by the Full Bench in the case of Ashutosh Shrotriya (supra), order under appeal before us is an order which is a procedural order and it is in aid of the progression of the case. Further, even the interest of the appellant-petitioner has been protected by providing that result of the selection shall be subject to the final outcome of the writ petition.

For all the aforesaid reasons, we are not inclined to entertain this Special Appeal, which is hereby dismissed.

We, however, request the learned Single Judge to decide the writ petition itself, as expeditiously as possible.

Order Date :- 14.9.2022

Sanjay