Allahabad High Court
State Of U.P. Thru. Prin. Secy. ... vs Rameshwar Kumar Mishra on 6 January, 2023
Bench: Ramesh Sinha, Manish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 1
Case :- SPECIAL APPEAL DEFECTIVE No. - 6 of 2023
Appellant :- State Of U.P. Thru. Prin. Secy. Deptt. Irrag. And Water Resou. Govt. U.P. Civil Secrt. Lko. And Ors
Respondent :- Rameshwar Kumar Mishra
Counsel for Appellant :- C.S.C.
Counsel for Respondent :- Meenakshi Singh Parihar
Hon'ble Ramesh Sinha,J.
Hon'ble Manish Kumar,J.
(Order on C. M. Application No.1 of 2023: Application for condonation of delay)
Heard Shri Amitabh Kumar Rai, learned Additional Chief Standing Counsel for State/appellants and Shri H.G.S. Parihar, Senior Advocate assisted by Ms. Meenakshi Singh Parihar, learned counsel for respondent.
This is an application seeking condonation of delay in filing appeal.
We have gone through the affidavit filed in support of the application.
Cause shown in the affidavit filed in support of the application for condonation of delay is sufficient.
Accordingly, the application for condonation of delay is allowed and the delay in filing the appeal is hereby condoned.
(Order on Special Appeal)
This intra-Court appeal under Chapter VIII Rule 5 of Allahabad High Court Rules, 1952 has been filed challenging the order dated 03.03.2020 passed by the learned Single Judge in Writ Petition No.5762 (S/S) of 2020, whereby the writ petition filed by the petitioner was disposed of with a direction to the opposite parties to conduct and conclude the departmental enquiry and till the conclusion of departmental enquiry and till passing the final order, the suspension order of the petitioner dated 19.02.2020 shall be kept in abeyance and consequences to follow and also liberty was given to the opposite parties to post the petitioner at any appropriate place, which the appointing authority deems fit and proper and the shall be paid his regular salary.
Learned counsel for respondent has raised a preliminary objection regarding maintainability of the instant special appeal and states that the order under appeal does not decide the rights of the parties and as such the same cannot be held to be a judgment for the purposes of filing of an intra Court appeal.
Learned Additional Chief Standing Counsel for State/appellants has supported the maintainability of instant appeal by referring to the merits of the case and trying to contend that the order under appeal was legally unjustifiable. He further states that the departmental enquiry against the petitioner is still pending.
The law is as has been declared and clarified in the case of Midnapore Peoples' Coop. Bank Ltd. and others vs. Chunilal Nanda and others: (2006) 5 SCC 399, the Apex Court has emphasized that routine orders which are passed to facilitate the progress of the case till its culmination in the final judgment are not to be held as "judgments" for the purposes of filing intra-Court appeals. It was also held that 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, would not amount to "judgments".
In the facts and circumstances of the present case, the interim order dated 03.03.2020, against which the present appeal has been preferred, is merely of a procedural nature and cannot in any manner be said to touch the merits of the controversy or the dispute between the parties so as to be deemed to have been issued in exercise of powers conferred under Article 226 of the Constitution.
Considering the submissions advanced by learned counsel for parties and perusing the record including the impugned order; and taking into account the fact that departmental enquiry is still pending against the petitioner as well as law laid down by the Apex Court in Midnapore Peoples' Coop. Bank Ltd. (supra), this Court is of the view that the preliminary objection raised with regard to maintainability of the special appeal under the provisions of Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952, is sustained.
The Special appeal is dismissed as not maintainable.
(Manish Kumar, J.) (Ramesh Sinha, J.)
Order Date :- 6.1.2023
Shubhankar
