Arun Kumar Pathak vs State Of Chhattisgarh And Ors

Sanjay K. Agrawal, J

Heard the Appellant in person on I.A. No.01 of 2019, application for condonation of 297 days delay in filing the appeal.

After hearing the Appellant in person and the reasons assigned in the application, we are satisfied that the Appellant has shown sufficient cause for delay in filing the writ appeal. In view of same, I.A. No.01 of 2019 is allowed and delay in filing the appeal is hereby condoned.

The writ appeal is directed against the interim order dated 21.06.2018 by which the learned Single Judge has permitted the writ Petitioners including the Appellant in person to appear in the main examination to be held on 22.06.2018 and further directed that results of the writ Petitioners shall not be released without leave of this Court and that the result shall be subject to the outcome of the writ petitions.

Shri Arun Kumar Pathak, Appellant in person, would submit that despite interim order, he could not appear in the main examination due to personal reasons. He would further submit that the writ petition may take fairly long time for hearing, therefore, impugned order be set aside.

Shri Gagan Tiwari, learned Deputy Government Advocate submits that this writ appeal is not maintainable under the proviso to Section 2(1) of the Chhattisgarh High Court (Appeal to Division Bench) Act, 2006 (hereinafter referred to as 'Act of 2006').

We have heard the Appellant in person as well as learned Deputy Government Advocate at length on the question of admission/maintainability of writ appeal.

Section 2(1) of the Act of 2006 provides as under:-

"2. Appeal to the Division Bench of the High Court from a Judgment or order of one judge of the High Court made in exercise of original jurisdiction.- (1) An appeal shall lie from a judgment or order passed by one Judge of the High Court in exercise of original Jurisdiction under Article 226 of the Constitution of India, to a Division Bench comprising of two Judges of same High Court:

Provided that no such appeal shall lied against an interlocutory order or against an order passed in exercise of supervisory jurisdiction under Article 227 of the Constitution of India."

Thus, proviso to Section 2(1) of the Act of 2006 expressly bars writ appeal. The scope and ambit of writ appeal particularly, against the interlocutory order came to be considered before the Full Bench of this Court in Ajay Gupta v. State of Chhattisgarh and Others, reported in AIR 2017 Chh 45.

The Full Bench in Ajay Gupta (supra) while dealing with the maintainability of writ appeal against the interlocutory order, held as under:-

"We therefore answer the question referred to us by holding that proviso to Section 2(1) of the Chhattisgarh High Court (Appeal to Division Bench) Act, 2006 bars appeals against those interim orders which are totally interlocutory in nature, do not decide matters of moment and do not have an element of finality attached to them.

Conversely, if the order vitally affects rights of the parties having bearing on the final adjudication of the case, then even though the order is interim, it cannot be termed as interlocutory order and an appeal would lie. An appeal would also lie against those orders which cannot be undone at the time of final hearing and which have an element of finality attached to them. The orders, effect of cannot be termed to be interlocutory orders and in such eventuality, an appeal would lie against such orders."

Thus, the proviso to Section 2(1) of the Act of 2006 bars writ appeal against the interlocutory order. The Full Bench has also held that writ appeal against those interim orders which are totally interlocutory in nature, do not decide matters of moment and do not have an element of finality attached to them and appeal would not lie under Section 2 (1) of the Act of 2006. The Full Bench has further held that if order vitally affects the right of the parties having bearing on a final adjudication of the case and which has an element of finality attached to them even though the order is interlocutory, the writ appeal would be maintainable against that order under Section 2(1) of the Act of 2006.

Now the question would be whether the impugned interim order is purely an interim order or the order affecting the rights of the Appellant to some extent making this appeal maintainable under Section 2(1) of the Act of 2006 ?

The learned Single Judge, by the impugned order has simply permitted the Appellant in person and other writ Petitioners to appear in the main examination to be held on 22.06.2018 and directed that the results of the candidates shall be subject to outcome of the writ petitions. No right of the Appellant in person including the other writ Petitioners was decided by the impugned order, as such, it is purely an interim order against which, the writ appeal is not maintainable by the proviso to Section 2(1) of the Act of 2006.

Interference is declined. Writ appeal is dismissed. However, the Appellant in person would be at liberty to file application for urgent hearing before the learned Single Judge for deciding his case. If such an application is made, the learned Single Judge would be at liberty to consider the urgency shown by the Appellant in person to take up his case on priority basis, if any.