State Of Rajasthan vs Ashmita (Asmita) Singh W/O Shri ...
2021 Latest Caselaw 6861 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

                   S.B. Civil Writ Petition No. 13021/2021
1.        State Of Rajasthan, Through Its Principal Secretary,
          Revenue Department, Government Secretariat, Jaipur.
2.        District Collector, Jaipur.
                                                                       ----Petitioners
                                         Versus
1.        Ashmita (Asmita) Singh W/o Shri Rai Singh, Aged About
          46 Years, Permanent Resident Of 58, Rathore Nagar,
          Queens Road, Vaishali Nagar, Jaipur
2.        Board Of Revenue, Through Its Registrar, Rajasthan,
          Ajmer.
                                                                     ----Respondents

For Petitioner(s) : Mr. Akshay Sharma, Addl.G.C. For Respondent(s) : Mr. R.N. Mathur, Senior Advocate through VC with Mr. Abhishek Pareek

HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL Order

24/11/2021 By this writ petition, the petitioners have assailed the legality

and validity of the order dated 26.10.2021 passed by the

Rajasthan Civil Services Appellate Tribunal, Jaipur (for brevity, 'the

learned Tribunal') whereby, the suspension order dated

04.10.2021 passed in respect of respondent no.1/appellant (for

brevity, 'the appellant') has been stayed and the petitioners have

been directed to let her work at her prior place of posting where

she was posted by the competent authority.

The facts in brief are that vide order dated 04.10.2021, the

appellant, a Tehsildar posted at Sanganer, District Jaipur, was

placed under suspension by the District Collector, Jaipur, in

contemplation of a departmental enquiry. It was directed therein

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that during the period of suspension, her headquarter shall remain

at the Board of Revenue, Rajasthan, Ajmer (for brevity, 'the

BOR'). The validity of the aforesaid order was challenged by the

appellant by way of an appeal no.5142/2021 before the learned

Tribunal, which has, vide order impugned dated 26.10.2021,

granted ad-interim relief to her.

Learned counsel for the petitioners contended that order of

the learned Tribunal is without jurisdiction as suspension is not

covered under 'service conditions' as enumerated in Section 2(f)

of the Rajasthan Civil Services (Service Matters Appellate

Tribunals) Act, 1976 (for brevity, 'the Act of 1976'). Relying on a

Division Bench judgment of this Court dated 06.01.1998 passed in

D.B. Civil Special Appeal No.777/1996, State Insurance &

GPF Department, Jaipur Vs. Rajasthan Civil Services

Appellate Tribunal and Ors., learned counsel submitted that

therein, while considering the case of termination simplicitor of an

employee, it was held that the learned Tribunal did not have

jurisdiction to entertain the dispute involving termination

simplicitor as it was not covered under any of the Clauses of

Section 2(f) of the Act.

Shri Akshay Sharma submitted that the appellant has an

alternative remedy against the order of suspension under Rule 22

of the Rajasthan Civil Services (Classification, Control and Appeal)

Rules, 1958 (for brevity, 'the Rules of 1958') and Section 4(A) of

the Act of 1976 bars entertainment of any appeal without first

exhausting the alternative remedy. He submitted that on this

count also, the order impugned deserves to be quashed and set

aside.

(3 of 17) [CW-13021/2021]

Learned counsel submitted that contention of the appellant

that the order of suspension dated 04.10.2021 passed by the

District Collector was without jurisdiction as her appointing

authority happens to be BOR, is not tenable in view of its

ratification by the BOR vide its order dated even. He submitted

that their Lordships have held in case of National Institute of

Technology and Ors. Vs. Pannalal Choudhary and Ors.: AIR

2015 SCC 2846 that once an order of an incompetent authority is

ratified by the competent authority, the invalidity attached with

the order goes.

He submitted that despite entering into a caveat, neither

name of the learned counsel for the petitioners was reflected in

the cause list dated 26.10.2021 nor, a copy of the appeal was

furnished nor, any opportunity of hearing was afforded although,

the order records his presence which is factually incorrect as is

apparent from its later part. Drawing attention of this Court

towards Rule 37 of the Rajasthan Civil Services (Service Matters

Appellate Tribunal) Rules, 1976 (for brevity, 'the Rules of 1976'),

learned counsel submitted that once the petitioners have entered

into a caveat before the learned Tribunal, it was enjoined upon it

to have granted an opportunity of hearing to them before passing

any interlocutory order. Learned counsel submitted that a co-

ordinate Bench of this Court has, in case of Hari Ram Vs.

Ratanlal: AIR 1980 Raj 82, while dealing with an identical

situation wherein an interim order was passed in favour of the

petitioner without affording the respondent-caveator an

opportunity of hearing, recalled the order of stay and directed

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hearing of the stay application afresh. He submits that in view

thereof, the order impugned deserves to be set aside.

Shri Sharma urged that the order impugned dated

26.10.2021 is a completely non-speaking order and suffers from

vice of non-application of mind. He submitted that no reason

whatsoever has been assigned by the learned Tribunal while

passing the order impugned.

Learned counsel submitted that the allegations against the

appellant are of grave nature which invite applicability of Rule 3 of

the Rajasthan Civil Services (Conduct) Rules, 1971 (for brevity,

'the Rules of 1971') and hence, no fault could have been found in

the order dated 04.10.2021 whereby the appellant was placed

under suspension under contemplation of a departmental enquiry.

Drawing attention of this Court towards the judgment of Hon'ble

Apex Court of India in case of State of Orissa Vs. Bimal Kumar

Mohanty: AIR 1994 SC 2296, learned counsel submitted that

the order of suspension passed by the competent authority should

not be interfered with unless it is actuated by malafide or the

ulterior motive or the action is arbitrary. Advancing his arguments

further, learned counsel submitted that a co-ordinate Bench of this

Court has, in case of Babu Lal Jaiswal Vs. State of Raj. & Anr.:

1983 RLR 536, held that suspension of a government employee

in contemplation of enquiry or during an enquiry cannot be

challenged except on the limited ground of malafide or malice. He

submits that there is no allegation of malice by the appellant in

the memo of appeal and hence, the learned Tribunal erred in

interfering with the suspension order.

(5 of 17) [CW-13021/2021]

Lastly, Shri Sharma submitted that vide order impugned, the

appellant has been extended final relief in the garb of ad interim

order which is impermissible.

He, therefore, prayed that the writ petition be allowed and

the order impugned dated 26.10.2021 be quashed.

Shri R.N. Mathur, learned Senior Counsel inviting attention of

this Court towards the Section 2(f)(v) of the Act of 1976,

submitted that an order denying or varying pay, allowances,

pension and other service conditions to the disadvantage of a

Government Servant, otherwise than as a penalty, is covered

under the definition of "service matter". Shir Mathur submitted

that an Order of suspension does not amount to penalty, but

surely is to the disadvantage of the appellant and hence, the order

is not without jurisdiction. Learned Senior Counsel distinguished

the judgment of this Court in case of State Insurance & GPF

Department, Jaipur (supra) contending that therein the question

was of 'termination simplicitor' of the services of the respondent

employee who ceased to be a Government employee whereas, in

the present case, relationship of master and servant still subsists

and hence, the learned Tribunal had jurisdiction to entertain the

appeal against the order of suspension. With regard to objection

as to availability of alternate remedy, Shri Mathur, referring

Section 4 of the Rajasthan Land Revenue Act, 1956 (for brevity,

'the Act of 1956'), submitted that the BOR is an independent

statutory body and once the order of suspension was ratified by it,

it was no more appealable before any other authority. Hence,

neither Rule 22 of the Rules of 1958 nor, Section 4(a) of the Act of

1976 has any applicability. He submitted that therefore, the

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learned Tribunal was well within its jurisdiction to entertain the

appeal against the suspension order.

With regard to objection as to the relief granted under the

order impugned dated 26.10.2021 being in the nature of "final

relief", learned Senior Counsel submitted that the learned Tribunal

could have granted injunction in mandatory form and once, it was

satisfied that the order was not legally tenable, it committed no

error in passing the mandatory injunction. Shri Mathur submitted

that the material on record did not warrant suspension of the

appellant, a low Ranking Officer. Inviting attention of this Court

towards the complaints against her placed by the petitioners on

record, learned Senior Counsel submitted that all these three

complaints pertain to the year, 2019 and no reason is forthcoming

as to why the appellant was placed under suspension with an

inordinate delay of about two years thereafter. With regard to

allegation of corruption against the appellant, Shri Mathur

submitted that the Anti Corruption Bureau, Rajasthan did not find

the allegation of corruption against the appellant established even

prima facie. He submitted that though the suspension is not

punishment but, it cannot be resorted to in a casual manner and

before placing an employee under suspension, the competent

authority must be satisfied with the gravity of allegations and

circumstances which warrant such harsh action which not only

tarnishes the reputation/image of an employee; but, also results

into financial loss as the employees is paid subsistence allowances

only during the period of suspension and not the full salary. Shri

Mathur in this regard relied upon a judgment of the Hon'ble Apex

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Court of India in case of Capt. M. Paul Anthony Vs. Bharat

Gold Mines Ltd. and Another: (1999) 3 SCC 679.

Learned Senior Counsel submitted that the learned Tribunal

has passed the order impugned dated 26.10.2021 taking into

consideration the contentions advanced by the learned counsel for

the appellant and since, the order is interlocutory in nature,

nothing more was required to justify it.

Learned Senior Counsel submitted that the order is ex-parte

and the petitioners are at liberty to seek its vacation as the stay

application in the matter is still subjudice before the learned

Tribunal. He, therefore, prayed for dismissal of the writ petition.

Heard learned counsels for the parties and perused the

record.

A perusal of the order impugned dated 26.10.2021 does not

reveal any finding in support of the ad-interim mandatory

direction issued thereby. The learned Tribunal has merely recorded

the contentions/submissions by the learned counsel for the

appellant without even recording its prima facie

satisfaction/agreement with the contentions/submissions so made.

It is trite law that even for passing an ad interim order, the

judicial/quasi-judicial authority is required to record reasons in

support thereof, may be briefly.

A co-ordinate Bench judgment of this Court has, in case of

Adreem Vs. District Collector, Jalore: AIR 2021 Raj 115, held as

under:

"11. In the opinion of this Court, the judicial authorities and quasi-judicial authorities are required to give at least brief reasons while passing interim or ad-interim injunction. And, when it comes

(8 of 17) [CW-13021/2021]

to vacation of an interim order, the requirement of recording reasons becomes all the more necessary."

Recently a three-Judges Bench of the Hon'ble Apex Court of

India has, in case of Neeharika Infrastructure Pvt. Ltd. Vs.

State of Maharashtra and Ors.: AIR 2021 SC 1918, held as

under:

"21. Now so far as the legality of the impugned interim order passed by the High Court directing the investigating agency/police "not to adopt any coercive steps" against the Accused is concerned, for the reasons stated hereinbelow, the same is unsustainable:

i) xxxxxxxxxxx

ii) xxxxxxxxxx

iii) that no reasons whatsoever have been assigned by the High Court, while passing such a blanket order of "no coercive steps to be adopted" by the police;

iv) that it is not clear what the High Court meant by passing the order of "not to adopt any coercive steps", as it is clear from the impugned interim order that it was brought to the notice of the High Court that so far as the Accused are concerned, they are already protected by the interim protection granted by the learned Sessions Court, and therefore there was no further reason and/or justification for the High Court to pass such an interim order of "no coercive steps to be adopted". If the High Court meant by passing such an interim order of "no coercive steps" directing the investigating agency/police not to further investigate, in that case, such a blanket order without assigning any reasons whatsoever and without even permitting the investigating agency to further investigate into the allegations of the cognizable offence is otherwise unsustainable. It has affected the right of the investigating agency to investigate into the cognizable offences. While passing such a blanket order, the High Court has not indicated any reasons.

21.1. As observed and held by this Court in the case of Special Director v. Mohd. Ghulam Ghouse, MANU/SC/0025/2004MANU/SC/0025/2004 : (2004) 3 SCC 440 that though, while passing interim orders, it is not necessary to elaborately deal with the merits, it is certainly desirable and proper for the High Court to indicate the reasons which have weighed with it in granting such an extraordinary relief in the form of an interim protection.

(9 of 17) [CW-13021/2021]

21.2. In the case of Nitco Tiles Ltd. v. Gujarat Ceramic Floor Tiles Mfg. Association, (2005) 12 SCC 454, it is observed and held by this Court that when an interim order should, particularly when that order may be impugned before the higher authority/Forum, contain reasons, however brief, in support of the grant or refusal thereof. It is further observed that in the absence of such reasons, it is virtually impossible for such higher authority/Forum to determine what persuaded the grant or refusal of relief.

21.3. In the case of Hindustan Times Limited v. Union of India, MANU/SC/0016/1998MANU/SC/0016/1998 : (1998) 2 SCC 242, while emphasising on giving reasons by the High Court, it is observed that necessity to provide reasons, howsoever brief, in support of the High Court's conclusions is too obvious to be reiterated. Obligation to give reasons introduces clarity and excludes or at any rate minimises the changes of arbitrariness and the higher forum can test the correctness of those reasons.

21.4. While considering the importance of the reasons to be given during the decision-making process, in the case of Kranti Associates (P) Ltd. v. Masood Ahmed, MANU/SC/0682/2010MANU/SC/0682/2010 : (2010) 9 SCC 496, in paragraph 47, this Court has summarised as under:

47. Summarising the above discussion, this Court holds:

(a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially.

(b) A quasi-judicial authority must record reasons in support of its conclusions.

(c) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well.

(d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power.

(e) Reasons reassure that discretion has been exercised by the decision-maker on relevant grounds and by disregarding extraneous considerations.

(f) Reasons have virtually become as indispensable a component of a decision-making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies.

(10 of 17) [CW-13021/2021]

(g) Reasons facilitate the process of judicial review by superior courts.

(h) The ongoing judicial trend in all countries committed to Rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the lifeblood of judicial decision-making justifying the principle that reason is the soul of justice.

(i) Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system.

(j) Insistence on reason is a requirement for both judicial accountability and transparency.

(k) If a judge or a quasi-judicial authority is not candid enough about his/her decision-making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism.

(l) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or "rubber- stamp reasons" is not to be equated with a valid decision- making process.

(m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision-making not only makes the judges and decision-makers less prone to errors but also makes them subject to broader scrutiny.

(See David Shapiro in Defence of Judicial Candor [(1987) 10 Harvard Law Review 731-37].)

(n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision- making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See Ruiz Torija v. Spain[(1994)19 EHRR 553] EHRR, at 562 para 29 and Anya v. University of Oxford [MANU/UKWA/0114/2001 : 2001 EWCA Civ 405 (CA)], wherein the Court referred to Article 6 of the European Convention of Human Rights which requires,

adequate and intelligent reasons must be given for judicial decisions.

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(o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of "due process".

Therefore, even while passing such an interim order, in exceptional cases with caution and circumspection, the High Court has to give brief reasons why it is necessary to pass such an interim order, more particularly when the High Court is exercising the extraordinary and inherent powers Under Section 482 Code of Criminal Procedure and/or Under Article 226 of the Constitution of India. Therefore, in the facts and circumstances of the case, the High Court has committed a grave error of law and also of facts in passing such an interim order of "no coercive steps to be adopted" and the same deserves to be quashed and set aside."

The Hon'ble High Court of Madras (Madurai Bench) has, in

case of Latha Ilangovan Vs. Usha Rajaram and Ors.: 2020

(1) CTC 799 after referring the provisions of Order 39 Rule 3

CPC, held as under:

"14. The above proviso makes it clear that when a Court proposes to grant an interim order of injunction, without giving notice of the application to the opposite party, being of the opinion that the object of granting injunction itself would be defeated by delay, it shall record the reasons as to why an ex parte order of injunction is being passed. Therefore, it is mandatory for a Court to record reasons for granting an ex parte interim order.

15. In the case of Morgan Stanley Mutual Fund vs. Kartick Das, MANU/SC/0553/1994 : (1994) 4 SCC 225, the Hon'ble Apex Court has enunciated the principles which govern the grant of ex parte injunction by a Court. The principles which have been laid down are:

"36. As a principle, ex parte injunction could be granted only under exceptional circumstances. The factors which should weigh with the court in the grant of ex parte injunction are-

(a) whether irreparable or serious mischief will ensue to the plaintiff;

(b) whether the refusal of ex parte injunction would involve greater injustice than the grant of it would involve;

(c) the court will also consider the time at which the plaintiff first had notice of the act complained so that the making of improper order against a party in his absence is prevented;

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(d) the court will consider whether the plaintiff had acquiesced for sometime and in such circumstances it will not grant ex parte injunction;

(e) the court would expect a party applying for ex parte injunction to show utmost good faith in making the application.

(f) even if granted, the ex parte injunction would be for a limited period of time.

(g) General principles like prima facie case balance of convenience and irreparable loss would also be considered by the court."

16. In the case of Shiv Kumar Chadha Vs. Municipal Corporation of Delhi and others, reported in MANU/SC/0522/1993 : (1993) 3 SCC 161, in the matter of grant of ex parte injunction, the Hon'ble Apex Court has held as follows:

"34. The imperative nature of the proviso has to be judged in the context of Rule 3 of Order 39 of the Code. Before the Proviso aforesaid was introduced, Rule 3 said "the Court shall in all cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite party". The proviso was introduced to provide a condition, where Court proposes to grant an injunction without giving notice of the application to the opposite party, being of the opinion that the object of granting injunction itself shall be defeated by delay. The condition so introduced is that the Court "shall record the reasons "why an ex parte order of injunction was being passed in the facts and circumstances of a particular case. In this background, the requirement for recording the reasons for grant of ex parte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed why instead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the Court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the Court about the gravity of the situation and Court has to consider briefly these factors in the ex parte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the Court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But same cannot be said in respect of the proviso to Rule 3 of Order

39. The Parliament has prescribed a particular procedure for passing of an order of injunction without notice to the

(13 of 17) [CW-13021/2021]

other side, under exceptional circumstances. Such ex parte orders have far reaching effect, as such a conditions has been imposed that Court must record reasons before passing such order. If it is held that the compliance of the proviso aforesaid is optional and not obligatory, then the introduction of the proviso by the Parliament shall be a futile exercise and that part of Rule 3 will be a surplusage for all practical purposes. Proviso to Rule 3 of Order 39 of the Code, attracts the principle, that if a statute requires a thing to be done in a particular manner, it should be done in that manner or not all. This principle was approved and accepted in well-known cases of Taylor v. Taylor, (1875) 1 Ch. D. 426, Nazir Ahmed v. Emperor, MANU/PR/0111/1936 : AIR 1936 PC 253 (2). This Court has also expressed the same view in respect of procedural requirement of the Bombay Tenancy and Agricultural Lands Act in the case of Ramachandra Keshav Adke v. Govind Joti Chavare, MANU/SC/0511/1975 : AIR 1975 SC 915.

35. As such whenever a Court considers it necessary in the facts and circumstances of a particular case to pass an order of injunction without notice to other side, it must record the reasons for doing so and should take into consideration, while passing an order of injunction, all relevant factors, including as to how the object of granting injunction itself shall be defeated if an ex parte order is not passed. But any such ex parte order should be in force upto a particular date before which the plaintiff should be required to serve the notice on the defendant concerned."

(emphasis supplied)

17. When an ex parte interim order came to a challenge on the ground that there was no reason assigned, a learned Single Judge of this Court in an unreported decision in NLC India Limited, Chennai and another Vs. M/s. SICAL Logistics Limited, Chennai, (C.R.P.(MD). Nos. 2429 to 2432 of 2018) dated 31.10.2018, has held as follows:

"14. Since in the very nature of things, the opposite party will be affected, the Court will have to state the reason as to why it is dispensing with the requirement to issue notice in that particular case. Recording reasons is the very soul of nature justice. It is a fundamental postulate of natural justice that no one shall be condemned unheard. No order to the prejudice of a party shall be passed without hearing him. Of course, no Court will pass the final order without serving notice on the opposite party. But, one cannot deny that an interim order also has an impact on the rights of the opposite party. That is why, it is stipulated that even an interim order cannot be passed without notice to the opposite party. But, then there can be occasions where insistence on issuance of notice would render the interim application itself infructuous. Therefore, Courts are empowered to pass interim orders on an ex parte basis, that is without notice to the other side. But, then, it is a

(14 of 17) [CW-13021/2021]

departure from the standard approach. In order to ensure that this power is not abused and that the Court applies its mind, it is insisted that reasons must be recorded as to why passing of an ex parte order is warranted. This is a requirement apart and over the above the triple tests of prima facie case, balance of convenience and irreparable injury.

15. In this case, the Court below has no where recorded the reasons as to why it did not order notice to the opposite party before granting interim relief. The Court below has not stated as to why it felt constrained to grant ex parte relief. When there is a departure from the general approach, the reasons must be set out justifying such a departure. Reasons are the only key to unlocking the mind of the Court. Since in this case admittedly no reasons have been assigned as to why an ex parte interim order is being passed, this Court has to necessarily come to the conclusion that there was non application of mind.

16. I hold that the principles underlying Rule 3 to Order 39 of C.P.C. will have to be borne in mind while considering an application under Section 9 of the 1996 Act. Since in this case the same has been lost sight of totally, I have no hesitation to set aside the orders impugned in these civil revision petitions. Accordingly, the orders impugned in these civil revision petitions are set aside."

Although, the aforesaid observations were made in respect of

provisions contained under Order 39 CPC; but, in view of the fact

that neither the Act of 1976 nor the Rules framed thereunder

entitles the learned Tribunal expressly for passing any interim

order, it is deemed to exercise such power under its inherent

jurisdiction and it can safely be held that while doing so, it is

required to follow the provisions contained in the mother

procedural law i.e. CPC for grant of injunction.

There is another important aspect of the matter. Rule 33 of

the Rules of 1976 reads as under:

"33. Order:- The order of the Bench shall be in writing and shall state the points of determination, its findings thereon and the reasons for these findings in a concise manner."

Thus, even the Rule 33 enjoins upon the learned Tribunal to

record the reasons in support of its order. Vide order impugned,

(15 of 17) [CW-13021/2021]

ad-interim injunction in the nature of mandatory form has been

issued in favour of the appellant whereby not only the order of

suspension has been stayed but, the petitioners have been

directed to permit the appellant to work at her prior place of

posting. Therefore, in the considered opinion of this Court, the

order impugned being non-speaking order, cannot be sustained in

the eye of law.

The matter needs to be examined from another angle also.

Indisputably, the petitioners herein, who are respondents in the

appeal, have entered into a caveat before the learned Tribunal.

Rule 37 of the Rules of 1976 provides as under:

"37. Caveat:- Any Government servant or the State Government may file a caveat with the Tribunal in respect of any matter which such party consider likely to be raised before the tribunal and where such a caveat is filed the Tribunal shall, before passing any interlocutory order, give an opportunity of being heard to the party which has filed the caveat."

The Rule is couched in mandatory form whereby a duty has

been cast upon the learned Tribunal to give an opportunity of

being heard to the respondents-caveator before passing any

interlocutory order. The appellants/respondents were neither

informed of the filing of the appeal, nor name of their counsel was

reflected in the cause list dated 26.10.2021 nor, they were

afforded any opportunity of hearing before passing the order

impugned.

While considering the Rule 159 of the Rajasthan High Court

Rules, 1952 which is pari materia with the Rule 37 of the Rules of

1976, a co-ordinate Bench judgment of this Court has, in case of

Hari Ram Vs. Ratanlal: AIR 1980 Raj 82, held as under:

(16 of 17) [CW-13021/2021]

"4. Rule 159 of the Rajasthan High Court Rules, 1952 provides that where an appeal, petition or application is expected to he lodged, or has been lodged but is pending admission, any person claiming a right to appear before the Court on the hearing of such appeal, petition or application may lodge a caveat in the matter thereof, and shall thereupon be entitled to receive from the Registrar notice of the lodging of the appeal, petition or application. Rule 159 (4) provides that where a caveat has been lodged as aforesaid, notice of the hearing of the appeal, petition or application shall be given to the caveator.

5. In the instant case, no responsibility can be laid on the petitioner that notice to the respondent on whose behalf caveat had been filed was not given. In the Instant case, it appears to be an act of omission on the part of the Registry. Once the caveat had been filed, the names of the Advocates for the respondent ought to have appeared in the cause list. It is a settled principle of jurisprudence that nobody can be prejudiced by the acts and omissions of a Court of Law. The fault on the part of the Registry comes with in the ambit of acts and omissions of this Court. In view of this settled proposition of law, the respondent Ratanlal had a right to be heard before the admission of the writ petition could be ordered. In this view of the matter, the order dated 26-7-1979, admitting the writ petition for hearing is hereby recalled. As the writ petition relates to an election matter, its urgency cannot be disputed. The writ petition shall be listed for admission on 3-8-1979.

6. The order of stay issued on 26-7-1979 is accordingly also recalled. The stay application shall also be listed for order on 3-8-1979 along with the main file. This matter may be listed as case' No. l for admission."

Therefore also, the order impugned deserves to be quashed

and set aside.

In view of the aforesaid, without entering into merits of other

submissions raised by the learned counsels for the respective

parties as to jurisdiction of the learned Tribunal to entertain an

appeal against the order of suspension, validity and legality of the

suspension order on its merit, this Court deems it just and proper,

in the backdrop of observation made hereinabove, to set aside the

order dated 26.10.2021 passed by the learned Tribunal. The

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learned Tribunal shall be at liberty to pass the order afresh on stay

application/appeal after hearing the parties, as per law.

The writ petition is allowed accordingly.

(MAHENDAR KUMAR GOYAL),J

MADAN/142

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