Dr. Vijay Kumar Agarwal vs State of Rajasthan

Ar. Lakshmanan, C.J.—This appeal is directed against the order of rejection in the stay application filed by the appellant herein in the writ petition. The writ petition was filed with the following prayers :--

"(1) declare the action of the respondents in not providing reservation to the disabled persons while making selections for PG Courses, as bad in law;

(ii) further by writ of mandamus the respondents be directed to implement the Act of 1955 and the recommendations given by the Commissioner Disabilities and provide at least 3% reservations to the physically handicapped persons in the Pre PG Entrance Examination 2000 for admission to MD/MS Diploma Courses;

(iii) the respondents be further directed to seek option from the petitioner for PG seats for the various faculties and grant him admission as per his merit vis-a-vis other physically handicapped persons;

(iv) direct the respondents to prepare a separate merit for physically handicapped persons in the Pre PG Entrance Examination, 2000:

(v) any other order or direction as may be deemed fit and proper in the facts and circumstances of the present case may also be passed in favour of humble petitioner;

(vi) Cost of this writ petition may also be awarded in favour of humble petitioner".

Along with the writ petition, the appellant filed a stay application requesting this Court to direct the respondents to keep at least one post in the PG Course vacant for physically handicapped persons or in the alternative direct the respondents to keep 3% of seats in the Pre PG Course reserved for physically handicapped persons and also further direct the respondents to provisionally prepare a separate merit list for physically handicapped persons, who have applied for the Pre PG Entrance Test, 2000. The said application was rejected by Justice A.K. Parihar against which the present Special Appeal was filed. A Division Bench of this Court on 19-4-2000 issued notices to the respondents to show cause as to why tills appeal should not he admitted and disposed of at this stage. Notice was ordered returnable by six weeks. The Division Bench on the same day issued a direction in stay application No. 1767/2000 in the following terms :---

"19-4-2000

Hon. V.S. Kokje. Actg. C. J.

Hon. P.P. Naolekar, J.

Mr. S.P. Sharma, for applicant

issue Notice, returnable by six weeks.

Meanwhile one seat be kept vacant in the Pre-PG Course 2000 so that in case the applicant succeeds he shall have a chance to compete under the quota of physically handicapped persons.

Sd/ Sd/"

We heard Mr. S.P. Sharma learned counsel for the appellant and Mr. Narendra Jain learned counsel for respondents Nos. 1 & 3. Learned counsel for respondents Nos. 1 and 3 raised a preliminary objection in re gard to the maintainability of the writ ap peal. According to the learned counsel for respondents Nos. 1 & 3, both the stay appli cations are liable to be dismissed on the ground that the main special appeal itself is not maintainable in the facts and circum stances of the present case as it is directed against an interlocutory order dated 7-4- 2000 passed by the learned single Judge. It is further submitted by the learned counsel for respondents Nos. 1 & 3 that the State has already filed a detailed reply to the writ petition and therefore, the writ petition itself may be directed to be disposed of at an early date. In support of his contention learned counsel for respondents Nos. 1 & 3 invited our attention to Sec. 18 of the Rajasthan High Court Ordinance, 1949, which reads thus :--

"18. Appeal to the High Court from judgment of Judges of the Court :--(1) An appeal shall lie to the High Court from the judgment (not being a judgment passed in the exercise of appellate Jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the High Court and not being an order made in the exercise of revisional jurisdiction and not being a sentence or order passed or made in the. exercise of the power of superintendence u/s 43 or in the exercise of crimlnal jurisdiction) of one Judge of the High Court.

(2) Notwithstanding anything hereinbefore provided, an appeal shall lie to the High Court from a judgment of one Judge of the High Court made in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the High Court where the Judge who passed the judgment declares that the case is a fit one for appeal."

Learned counsel for respondents Nos. 1 & 3 has also cited two decisions of this Court rendered by two Division Benches the first case is reported in 1997 (3) RLW 1757 : (AIR 1988 Raj 216) (Finn Swaroop Singh Sher Singh v. MohanLal). While considering the scope of Section 18, the Division Bench held that the special appeal is not maintainable if the impugned order is only a Order under Order 45, Rule 13, C. P. C. and dismissed the special appeal. The Bench also held that an order rejecting an application under Order 45, Rule 13, C. P. C. is not a Judgment and therefore, the special appeal is not maintainable. The above judgment was rendered by the Division Bench comprisingof Hon''ble V.S. Kokje and Hbn''ble Arun Madan, JJ.

Another Division Bench of this Court comprising of Hon''ble C.M. Lodha and Hon''ble M. C. Jain, JJ. also in an identical matter (AIR 1980 RJ 82) held that an order vacating a previous stay order does not determine any rights of parties nor determines any points of controversy between the parties and that the stay order does not amount to a ''Judgment'' and no appeal lies against that order. We respectfully agree with the opinion expressed by the above two Division Benches. As pointed out earlier, the prayer in the stay petition and the prayer in the main writ petition are one and the same. Since the writ petition is pending, the points raised by the writ petitioner can be considered and decided only in the main writ petition. In our opinion, the learned single Judge has rightly rejected the stay application.

The submission made by the learned counsel for respondents Nos. 1 & 3 in regard to the interim direction that one seat be kept vacant in the Pre PC Course, 2000 by the Division Bench also merit acceptance . According to the learned counsel when the appeal itself is not maintainable, no interim order can be issued. There is merit and substance in the arguments advanced by the learned counsel for respondents Nos. 1 & 3. We, therefore, dismiss the appeal on the ground of maintainability and request the learned single Judge to take this matter on priority basis and dispose of the same within one month from today.

The Registry is directed to list the rase before the concerned single Judge for final disposal. The points raised by both the parties in the writ petition is left open to be urged and argued before the learned single Judge.

At this juncture, the learned counsel for the appellant seeks permission from this Court to file another slay petition. We are not expressing any opinion on this request. It is open to the learned counsel for the appellant to move to the learned single Judge for further directions, if he so desires. Both the learned counsel shall be at liberty to mention before the learned single Judge for fixing a date for hearing of the writ petition.