Samita v. State of U.P. & Others)
Case Details
1 Neutral Citation No. - 2024:AHC:152414-DB Reserved On: 21.08.2024 Delivered On: 19.09.2024 Court No. - 21 Case :- SPECIAL APPEAL No. - 113 of 2024 Appellant :- Committee Of Management Arya Kanya Inter College Respondent :- State Of Up And 3 Others Counsel for Appellant :- Siddharth Khare Counsel for Respondent :- Prabhakar Awasthi Hon'ble Manoj Kumar Gupta,J. Hon'ble Manish Kumar Nigam,J. (Per: Manish Kumar Nigam,J.) 1. Heard Sri Ashok Khare, learned Senior Advocate assisted by Sri Siddharth Khare, learned counsel for the appellant, Sri Prabhakar Awasthi, learned counsel for respondent No. 4 and learned Additional Chief Standing Counsel for the State-respondents. 2. This intra court appeal has been filed against the order dated 11.01.2024 passed by learned single Judge in Writ A No. 18 of 2024 (Samita Vs. State of U.P. & Others). 3. Brief facts of the case are that the original petitioner (hereinafter referred as 'respondent No.4') was working as Lecturer in Arya Kanya Inter College, Bulandshahr. The institution is a recognised and aided intermediate college. Respondent No. 4 was appointed as officiating Principal of the institution on 08.01.2022, on account of transfer of the then Principal of the institution to another institution. The appellant is Committee of Management of Arya Kanya Inter College, Bulandshahr and is represented by its Manager. The Committee of Management passed a resolution dated 6.12.2022 suspending respondent No. 4 and authorising 2
Legal Reasoning
one Smt. Shashi to function as officiating Principal. After the resolution dated 6.12.2022, papers pertaining to suspension were forwarded to the District Inspector of Schools, Bulandshahr for approval. The District Inspector of Schools, Bulandshahr by its order dated 14.02.2023, approved the suspension order. Respondent No. 4 challenged the order of approval dated 14.02.2023 passed by the District Inspector of Schools, Bulandshahr by filing a writ petition being Writ A No. 4077 of 2023 (Samita Vs. State
Decision
of U.P. & Others) and the said writ petition was finally disposed of by judgement and order dated 04.04.2023. This court by judgement and order dated 04.04.2023 quashed the order dated 14.02.2023 passed by the District Inspector of Schools, Bulandshahr and remitted the matter back to the District Inspector of Schools, Bulandshahr for passing a fresh order after affording full opportunity of hearing to the parties. On 21.06.2023, the District Inspector of Schools, Bulandshahr passed a fresh order again approving the suspension of respondent No. 4. Respondent No. 4 again challenged the order dated 21.06.2023 passed by the District Inspector of Schools, Bulandshahr approving the suspension by means of a writ petition being Writ A No. 10710 of 2023 (Samita Vs. State of U.P. & Others). The said writ petition was disposed of by this Court by its judgment and order dated 04.08.2023 and the matter was again remitted to the District Inspector of Schools for fresh consideration. In the meantime, the Committee of Management started disciplinary proceedings against respondent No. 4 and ultimately passed a resolution dated 01.07.2023 awarding punishment of stoppage of two annual increments against respondent No. 4 and also resolving that respondent No. 4 be not given charge of the Principal of the institution. The resolution dated 01.07.2023 was sent for approval to the District Inspector of Schools, Bulandshahr on 06.07.2023. Before passing the resolution dated 01.07.2023, earlier the Committee of Management passed a resolution dated 04.02.2023 awarding the same punishment to respondent No. 4 which was communicated by the 3 Committee of Management to respondent No. 4 on 27.03.2023. The aforesaid resolution passed by the Committee of Management was disapproved by the District Inspector of Schools, Bulandshahr by its order dated 31.03.2023. In compliance of order dated 04.08.2023 passed in Writ A No. 10710 of 2023 (Samita Vs. State of U.P. & Others) by this Court on 26.08.2023, the District Inspector of Schools, Bulandshahr passed an order to the effect that since the enquiry against respondent No. 4 has been completed and a punishment has been awarded by the Committee of Management, there is no justification for keeping respondent No. 4 under suspension. The order dated 06.12.2022 by which respondent No. 4 was suspended was set aside. Respondent No. 4 was reinstated with salary. It was also provided in order dated 26.08.2023 that since prior to suspension, respondent No. 4 was being paid salary of Lecturer, therefore, in case respondent No. 4 works, she would be paid the salary of Lecturer. In pursuance to the order dated 26.08.2023 passed by District Inspector of Schools, Bulandshahr, the Manager of the Committee of Management by order dated 01.09.2023 reinstated respondent No. 4 on the post of Lecturer and the matter was reported to the District Inspector of Schools, Bulandshahr by means of letter dated 04.09.2023 by Committee of Management. The order dated 26.08.2023 passed by District Inspector of Schools, Bulandshahr was again challenged by respondent No. 4 by filing a writ petition being Writ A No. 15697 of 2023 (Samita, Officiating Principal Vs. State Of U.P. And 3 Others) which was finally disposed of by this Court vide judgment and order dated 16.10.2023. The direction is given by this Court vide order dated 16.10.2023 is quoted as under:- "Considering the submission of the rival parties as well as the stand taken by them, the writ petition is being disposed off without seeking any response from the respondents granting liberty to the writ petitioner to approach the second respondent, District Inspector of Schools, Bulandshahar along with a comprehensive representation accompanied with self-attested copy of the writ petition, who shall, on the receipt of the same, thereafter proceed decide the claim of the writ petitioner after putting to notice the third and fourth respondents within a period of six weeks from the date of production of 4 certified copy of the order bearing in mind the following fundamental and core issues: - (a) import and impact of the proposal of the order dated 27.03.2023 passed under the signature of the Manager of the third respondent-Institution; (b) the import and impact of the communication of the District Inspector of Schools, Bulandshahar dated 31.03.2023; (c) the issue with relation to passing of the order dated 26.08.2023 passed by the second respondent, District Inspector of Schools, Bulandshahar post-remand by virtue of the order dated 04.08.2023 in Writ-A No.10710 of 2023 with regard to the reinstatement of the writ petitioner with all consequential benefits; (d) any other ancillary or incidental issues connected with the same. Needless to point out that the writ petitioner has been decided without seeking any response from the respondents, thus passing of this order may not be construed to an expression that this Court has adjudicated the matter on merits. With the aforesaid observations the writ petition stands disposed off." 4. In compliance of order dated 16.10.2023 passed in Writ A No. 15697 of 2023, District Inspector of Schools, Bulandshahr passed an order dated 21.12.2023 after hearing the parties upholding the order passed by Committee of Management for reverting respondent No. 4 from the post of officiating Principal to the Lecturer. The order dated 21.12.2023 passed by District Inspector of Schools, Bulandshahr was challenged by respondent No. 4 by filing writ petition being Writ A No. 18 of 2024 (Samita Vs. State of U.P. and Others). In the aforesaid writ petition, an interim order has been granted by this Court dated 11.01.2024 which is impugned in this special appeal. The order dated 11.01.2024 passed by this Court is quoted as under:- "Heard Sri Prabhakar Awasthi, learned counsel for the petitioner and learned Additional Chief Standing Counsel for the State respondents. The submission advanced by learned counsel for the petitioner is that on similar charges when petitioner was placed under suspension that suspension order came to be disapproved by the District Inspector of Schools by passing a detailed order on 26th August, 2023 restoring the position of the petitioner as officiating principal of the institution as admittedly petitioner was placed under suspension by the order dated 6th December, 2022 while working as officiating principal of the institution. In the circumstances, therefore, it is submitted that once petitioner's position has been restored, neither the respondents are justified in taking charge of post of officiating principal of institution from the petitioner, nor District Inspector of Schools for those very 5 reasons which he did not accept while revoking the suspension order, is justified in approving the order of Committee of Management directing that the charges of officiating principal of the institution should be taken serious and that so petitioner should not be permitted to discharge officiating principal. Prima facie, the argument advanced by learned counsel for the petitioner appears to have substance and matter requires consideration. Let notices be issued to the respondent Nos. 3 & 4, returnable within eight weeks. Steps for service be taken within two weeks. Learned Standing Counsel appearing for the respondent Nos. 1 & 2 prays for and is granted four weeks' time to file counter affidavit. Rejoinder affidavit, if any, may be filed within two weeks thereafter. List on the date indicated in the notice. In the meanwhile and until further orders of this Court, the effect and operation of the order of District Inspector of Schools, Bulandshahar dated 21st February, 2023 approving the order of Committee of Management dated 1st September, 2023, shall remain stayed and petitioner shall be permitted to discharge her duties of officiating principal of the institution." 5. The submission of the learned counsel for the appellant is that by the order impugned in the appeal, the learned Single Judge has virtually decided the writ petition. According to the learned counsel, a relief which has the effect of deciding the writ petition finally cannot be granted at the interim stage. The impugned order has the force of a mandatory injunction and the law being well settled that no interim relief can be granted by the High Court while exercising its jurisdiction under Article 226 of the Constitution of India, which has the consequence of allowing the writ petition itself and this legal position having been precisely violated and that too without affording an opportunity to the appellant, who was not present at the time of hearing of the writ petition. It has also been contended by learned counsel for the appellant that the reasoning given by the learned Single Judge while granting interim order is incorrect and is based on misreading of orders referred in the order impugned. 6. Learned counsel for private respondent has raised a preliminary objection against the maintainability of the appeal. According to learned 6 counsel, appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 (hereinafter referred to as the "Rules of the Court") lies against a judgment and it is not against an interlocutory order. It is submitted that the order under appeal is not a judgment and therefore, the special appeal is not maintainable. Before proceeding further with the matter, it will be useful to 7. consider the relevant statutory provisions. Chapter VIII Rule 5 of the Rules of the Court under which the Special Appeal is provided, is reproduced hereinbelow:- "CHAPTER VIII MISCELLANEOUS PROVISIONS. Special Appeal.- An appeal shall lie to the Court from a judgment (not being a judgment passed in the exercise of Appellate Jurisdiction in respect of a decree or order made by a Court subject to the Superintendence of the Court and not being an order made in the exercise of revisional jurisdiction or in the exercise of its power of Superintendence or in the exercise of criminal jurisdiction [or in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award (a) of a tribunal, Court or statutory arbitrator made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution or (b) of the Government or any Officer or authority, made or purported to be made in the exercise or purported exercise of Appellate or Revisional Jurisdiction under any such Act] of one Judge". 8. If we delete the part by which certain judgments have been excluded from the purview of appellante jurisdiction of this Court, Rule 5 of Chapter VIII would read :- ‘a special appeal shall lie to the Court from a judgment of one Judge’. 9. In Shah Babulal Khimji v. Jayaban D. Kania and another, reported in AIR 1981 Supreme Court 1786 their Lordships were dealing with an appeal from a suit for specific performance of a contract filed on the original side of the Bombay High Court. The plaintiff had prayed for an interim relief by appointing a receiver of the suit-property and injuncting the defendant from disposing of the suit-property during the 7 pendency of the suit. A learned Single Judge dismissed the application for interim relief. The plaintiff filed special appeal under Clause 15 of the Letters Patent which was dismissed as not maintainable on the ground that the adjudication made on the application for interim relief did not amount to "judgment". Disagreeing with the view taken by the Bombay High Court their Lordships held that the appeal was maintainable as under Clause 15 lay against "judgment". In paragraph 112 of the Report at page 1814 their Lordships have observed that the, term "judgment" used in the Code of Civil Procedure, 1908 is linked with the term "decree" and has, therefore, a narrow and restricted meaning. In the Letters Patent the term is not linked with the term "decree" and has, therefore, a much wider connotation. After making this observation their Lordships have proceeded to classify judgments in three categories-(1) a final judgment, (2) a preliminary judgment and (3) intermediary or interlocutory judgment. It has been held that where a proceeding finally terminates after adjudication of all the issues or some of the issues the adjudication is a judgment. The adjudication will also be judgment, even though it does not result in termination of proceedings, if it "possesses the characteristics and trappings of finality". When an order may possess such characteristics and trappings has been explained it may possess such characteristics and trappings when the order adversely affects a valuable right of the party or decides an important aspect of the trial in an ancillary proceeding. It has been observed-"Before such an order can be a judgment the adverse effect on the party concerned must be direct and immediate rather than indirect or remote". 10. In paragraph 119 at page 1817 their Lordships have laid down the following tests for determining whether an interlocutory adjudication amounts to 'judgment’ or not. The tests are as follows:- 8 "(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." 11. The propositions deducible from the above authority are (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. 9 12. Learned counsel for the respondents has cited the judgment of a Division Bench in Special Appeal No. 418 of 1992 Narsingh Arya v. Jaswant Singh and another decided on 9.09.1992 for submitting that the present appeal is not maintainable. The writ petition in which the order under appeal had been passed was directed against order dated 14.08.1992 whereby the District Inspector of Schools had cancelled the appointment of Shri Jaswant Singh as Manager of the School. Apart from claiming quashing of the said order the petitioner had sought a writ of mandamus also to command the respondents not to interfere in the functioning of petitioner No. 2 as the Manager of the institution. By the order under appeal the learned Single Judge had stayed the operation of the order dated 14.08.1992 and directed that till the disposal of the writ petition Jaswant Singh would continue to function as Manager," Maintainability of the special appeal was challenged on the ground that the order appealed against did not amount to judgment within the meaning of Rule 5 of Chapter VIII of the Rules of Court. Relying upon the judgment of their Lordships in Shah Babulal Khimji case (supra) the Division Bench held that the order under appeal did not amount to judgment as by passing the same the learned Judge had not decided any controversy or matter of moment affecting vital and valuable rights of one of the parties. 13. The scope of special appeal under the Rules of the Court is very limited and is available to the parties only on legal grounds involved in the case and the judgment under challenge in appeal, if suffers from legal infirmity only then, it could be assailed in special appeal. The factual matrix of the case cannot be examined or taken into consideration for assailing or setting aside the judgment or order challenged in special appeal. 10 14. In case of Shanti Kumar R. Chanji Vs. The House Insurance Company of New York reported in AIR 1974 Supreme Court 1719, the Supreme Court in paragraph No. 19 of the judgment has held as under:- "19. In finding out whether the order is a judgment within the meaning of clause 15 of the Letters Patent it has to be found out that the order affects the merits of the action between the parties by determining some right or liability. The right or liability is to be found out by the court. The nature of the order will have to be examined in order to ascertain whether there has been a determination of any right or liability." 15. In case of Ashutosh Shrotiya and Others Vs. Vice Chancellor, Dr. BR Ambedkar University and Others reported in AIR 2015 Allahabad 187, the Full Bench of this Court has held in paragraph No. 23 of the judgment as under:- “23. The fourth principle which emerges from the judgment of the Supreme Court in Shah Babulal Khimji is that every 'interlocutory order' is not a 'judgment'. Only certain categories of interlocutory orders can be regarded as judgments: "...every interlocutory order cannot be regarded as a judgment but only those orders would be judgments which decide matters of moment or affect vital and valuable rights of the parties and which work serious injustice to the party concerned." (emphasis supplied) The Supreme Court ruled that an interlocutory order to be a judgment must contain traits and trappings of finality, either when it decides the questions in controversy in an ancillary proceeding or in the suit itself or in a part of the proceedings.” 16. In the present case, the learned Single Judge has stayed the operation of order dated 21.12.2023 passed by District Inspector of Schools, Bulandshahr by which the District Inspector of Schools, Bulandshahr after hearing the parties upheld the order passed by the Committee of Management for reverting respondent No. 4 from the post of officiating Principal to the Lecturer and has permitted the petitioner to discharge her duties as officiating Principal of the institution. 17. We are of the considered opinion that the order impugned does not effect the merits of the action between the parties by determining their rights or liability nor it decides any important aspect of the matter. 11 18. Further while passing the order impugned dated 11.01.2024, the learned Single Judge has issued notices to respondent Nos. 3 and 4 i.e. Committee of Management (appellant) and Smt. Shashi (Lecturer) respectively. Though, the order was passed on 11.01.2024, respondents of the writ petition has yet not appeared nor filed any application for vacating the interim order before learned Single Judge in the writ petition. It has also been informed by learned counsel for the respondent that the interim order passed by the learned Single Judge has been given effect to and the respondent No. 3 in the present appeal is working as officiating Principal of the institution and is also being paid salary. This fact has not been denied by counsel for the appellant. In view of this, we find no reason to disturb the position prevailing at present. 19. We are also of the considered opinion that challenge made to the order impugned by learned counsel for the appellant on various aspects is still to be decided by learned Single Judge and expressing any opinion would affect the pending proceedings in writ. 20. Consequently, we decline to interfere and dispose of the Special Appeal with liberty to the appellant to move an appropriate application for vacation of the interim order along with counter affidavit before the writ court and request the writ court for early disposal of the same. No order as to costs. Order Date: 19.09.2024 Nitika Sri. (Manish Kumar Nigam, J.) (Manoj Kumar Gupta, J.)