The State Of Andhra Pradesh, vs Y.Ramakoteswara Rao,
2023 Latest Caselaw 4247 AP

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      * HIGH COURT OF ANDHRA PRADESH: AMARAVATI

            HON'BLE MR. JUSTICE D.V.S.S. SOMAYAJULU

                                AND
      HON'BLE SRI JUSTICE DUPPALA VENKATA RAMANA

                      I.A.Nos.1 and 2 of 2023

                                In
                      + W.A. No.815 of 2023
% 14.09.2023
# The State of Andhra Pradesh,
Rep., by its Principal Secretary,
Revenue (endowments) Department,
Secretariat, Velagapudi,
Amaravathi, Guntur District and 2 others
                                                           ... Petitioners
      Vs.
$ Y.Ramakoteswara Rao, S/o Late Venkateswarlu,
Aged 59 years, Occ: Junior Assistant,
Sri Durga Malleswara swamy Vari Devasthanam,
Indrakeeladri, Vijayawada.
                                                       ... Respondents


! Counsel for the petitioners: Sri Kasa Jaganmohan Reddy

! Counsel for the Respondents : Sri Gangaih Naidu for Sri D.V.Sasidhar

< Gist:


> Head Note:
? Cases referred:
1
 (2023) 1 SCC 634
2
 1995 Supp (4) SCC 465
3 (1992) 4 SCC 167
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           HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
                                        AND
      HON'BLE SRI JUSTICE DUPPALA VENKATA RAMANA


                           I.A.Nos.1 and 2 of 2023
                                         in
                             W.A.No.815 of 2023


ORDER: (per Hon'ble Sri Justice D.V.S.S.Somayajulu)


           I.A.No.1 of 2023 is filed to condone the delay of 76 days

in filing the appeal.

2.     I.A.No.2 of 2023 is filed to stay the operation of the order

dated 20.04.2023 passed by the learned single Judge which is

impugned in the writ appeal.

3.     This Court has heard Sri Kasa Jaganmohan Reddy, learned

counsel for the appellants and Sri Gangaih Naidu, learned senior

counsel instructed by Sri D.V.Sasidhar.

4.     After hearing the learned counsel, this Court is of the notices

that after the interim order was granted on 20.04.2023, the

respondents/appellants have filed an application to vacate the

stay on 03.07.2023.             Thereafter, the matter was not heard.

Contempt application was also filed. Delay occurred in view of the
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above in filing the appeal and so the application is filed to condone

the delay in filing the appeal. Considering all of the above, this

Court is of the opinion that there is sufficient cause in condoning

the delay I.A.No.1 of 2023 is therefore allowed.

5.    With regard to I.A.No.2 of 2023, the counsel for the

appellants submits that the impugned order passed is contrary to

law and has ignored certain important aspects. He points out that

ordinance which is relied upon is not applicable to the temple

employees and that the order in W.A.No.1033 of 2022 and batch

also comes to the aid of the respondents. It is stated that the writ

petitioners are not employed by the State and are not entitled to

the benefits of the Act 23 of 1984. Therefore, he submits that this

is a fit case to grant stay.

6.    Sri Gangaih Naidu, learned senor counsel essentially argues

that the writ appeal is not maintainable for two reasons, firstly,

the petitioners/appellants have filed a vacate stay petition and

they have to pursue the same to its logical conclusion.           He

submits that they cannot also file an appeal while the said

application is pending.        Secondly, he submits that an appeal is

not maintainable because the impugned order is not a 'final' order

and appeal only lies against an order having finality.      He relies
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upon a judgment reported in Shyam Sel & Power Ltd. v. Shyam

Steel Industries Ltd.,1.

7.      This Court after hearing learned senior counsel notices that

the law is well settled and the ratio of case of Shyam Sel &

Power Ltd. (1 supra) is not in doubt.       In that case, the Court

adjourned the matter for filing an affidavit in opposition. The said

order was challenged.       In those circumstances, the Hon'ble

Supreme Court while discussing the character of 'finality' in an

order has discussed the case law on the subject. However, if the

impugned order in this case is seen, it virtually grants the relief

that is claimed in the writ petition. The prayer in the writ petition

is that the petitioners should be continued till they attain the age

of 62 years. The interim order granted directed the respondents to

continue the petitioners in service as the Court felt that the G.O.

is applicable to all the employees. Therefore, this Court holds that

an appeal is maintainable, as the order has the trappings of

finality in this case.

8.      However, on the second point namely, vacate stay versus

appeal, the learned senior counsel is on a stronger ground. Once

the vacate stay application has been filed, this Court is of the

opinion that the appellant cannot also file a writ appeal.     There
1
    (2023) 1 SCC 634
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can be conflicting orders in such cases. Only one of the two can

be heard and decided.

9.      Propriety   however   requires   that   when   a   vacate   stay

application is filed; the same should be taken up by the Judges in

the shortest possible period of time. The Writ Proceedings Rules,

1977 mandate the hearing of a vacate stay petition within two

weeks (Rule 9).       The Rules also provide for a hearing of an

interlocutory application within 14 days (Rule 46). This issue is

also inter linked to the contempt application which is pending.

10.     The law on the issue is also well settled.     If a vacate stay

application is filed and a contempt application is also pending, the

contempt application should not be insisted upon by the learned

single Judges. The Hon'ble Supreme Court in the case of an

Modern Food Industries (India) Ltd. v. Sachidanand Dass 2, has

held that when a stay petition in an appeal and contempt both are

pending, propriety would require that the stay application should

be taken up for hearing.      Because if a party is made to comply

with the order under the threat of contempt, the vacate stay may

in certain cases become infructuous.        To a similar effect is the




2
    1995 Supp (4) SCC 465
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judgment reported in State of J and K v. Mohd. Yaqoob Khan

and others3, where the following was held in para 7:

        7. We, therefore, hold that the High Court should have first
      taken up the stay matter without any threat to the
      respondents in the writ case of being punished for contempt.
      ..............................

The High Court should first take up the stay matter in the writ case, and dispose it of by an appropriate order. Only thereafter it shall proceed to consider whether the State and its authorities could be accused of being guilty of having committed contempt of court.

11. Therefore, if a vacate stay application is filed soon after the

notices were served on the respondents and soon after passing of

an ex parte order, the same should be taken up on a priority and

disposed. If a vacate stay application is however filed, long after

the interim order is passed or after a contempt application is

moved for disobedience, it is left to the discretion of the learned

Judge to decide if he would take up the vacate stay or the

contempt first. The date of the order passed; the date of filing of

the contempt application and the vacate stay application etc.,

should be considered by the learned Judge in deciding such

matters. If there is a deliberate ploy to delay the compliance of the

order passed and to oppose a contempt by filing a vacate stay,

3 (1992) 4 SCC 167

then the discretion is vested in the Judge to hear the matters as

per his/her choice. Otherwise, if a vacate stay application is filed

by the respondents soon after the order is granted and the

contempt is also pending, it will be proper if the vacate stay

application is taken up for hearing and disposed of first.

Depending upon the said orders further orders can be passed in

the other applications.

12. In case a stay application is moved before the appellate

Court in line with the Judgment in Modern Food Industries

(India) Ltd., (2 supra), the stay application must be heard first

and on priority. The judicial consensus seems to be that both the

original Court and appellate Court must first decide the stay of

operation of order application or the application for vacating the

stay before the contempt application is heard and decided. This is

however subject to the caveat that if it appears that there is delay

in complying the order passed and vacate stay is moved to

avoid/delay the contempt. This Damocles sword should be

allowed to hang till the stay/vacate stay is decided because at the

end of the day-contempt involves the implementation of orders

and the majesty of the Court.

13. The caveat entered about deliberate delay in enforcing the

order or disobedience in following the order etc., must be decided

on a case to case basis. Otherwise the vacate stay/stay

applications must be disposed on a priority. In view of the large

number of cases in which this issue is coming up; an attempt is

made to answer this question in this order.

14. Therefore, I.A.No.2 of 2023 is disposed of with a direction to

the learned single Judge to hear and dispose of the vacate stay

application within a period of two weeks from the date of receipt of

a copy of this order. Both the parties are directed to cooperate

with the disposal of the said I.A. Depending on the orders passed

in the application, further orders can be passed in the matter.

With the above observations, I.A.No.1 of 2023 is allowed and

I.A.No.2 of 2023 is disposed of.

__________________________ D.V.S.S.SOMAYAJULU, J

__________________________________ DUPPALA VENKATA RAMANA, J Date:14.09.2023 Note: L.R. copy be marked.

KLP