Madhusudan Upadhyay vs State of M.R and Others

Dipak Misra, J.

The question that has cropped up in this appeal whether the appeal preferred u/s 2 of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 (for brevity the ''Act'') should be entertained against the order passed by the learned Single Judge on 2.4.2007 in W.P.S No. 4306/2007.

To appreciate the factual scenario and the law that emerges for consideration, it is seemly to reproduce the order passed by the learned Single Judge as under:

Shri Rajneesh Gupta, counsel for the Petitioner. Heard on admission.

Issue notice to the Respondents on payment of process fee within a week.

The notice shall be made returnable within six Weeks. No ground for interim relief is made out. The prayer for interim relief is rejected.

It is contended by Mr. Rajneesh Gupta, learned Counsel appearing for the Appellant that the aforesaid order is appealable as it has vital impact on the litigation and eventually affects the vital and valuable rights and obligations of the Appellant. It is urged by him that by refusing to pass an interim order, the learned Single Judge has really foreclosed the rights of the Appellant as a result of which he would face immense inconvenience and remaining state of constant misery. Submission of Mr. Rajneesh Gupta is that the Appellant/Petitioner, an Assistant Account Officer was allocated to the State of Madhya Pradesh after bifurcation of the original State of Madhya Pradesh into two States, namely, State of Madhya Pradesh and State of Chhattisgarh as per the M.P. Reorganisation Act, 2000 which came into effect on 1.11.2002 and if no protective order is passed his agony would be multiplied.

Learned Counsel for the Appellant further contended that seniority of the Appellant was erroneously determined as a result of which he was compelled to assail the same before this Court and eventually the employer determined his seniority but did not communicate to the Central Government, as a consequence of which, he had to face his allocation to the State of Chhattisgarh as per order dated 14.2.2007. It is further urged by him that the Appellant is under suspension as a departmental proceeding has been initiated against him. The learned Single Judge would have been well-advised to pass an interim order so that the Appellant could have been retained in the State of Madhya Pradesh even in the present situation.

To appreciate whether the aforesaid order would be an order for the purpose of assail in appeal, it is appropriate to refer to Section 2 of the Act. The said provision reads as under:

2 (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 the same High Court:

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

(2) An appeal under Sub-section (1) shall be filed within 45 days from the date of order passed by a single Judge.

Provided that any appeal may be admitted after the prescribed period of 45 days, if the Petitioner satisfies the Division Bench that he had sufficient cause for not preferring the appeal within such period.

Explanation - The fact that the Petitioner was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause with the meaning of this Sub-section.

On a perusal of the aforesaid order, it is quite clear that as per the proviso envisaged no appeal shall lie against an interlocutory order. Though such a prohibition is there, certain interlocutory orders have different status and under certain circumstances an appeal can lie.

In this context, learned Counsel for the Appellant has commended us to the decision rendered in Liverpool and London S.P. and I Asson. Ltd. Vs. M.V. Sea Success I and Another, . In the said case, in paragraph 124, it has been held as under:

Clause 15 of the Letters Patent is not a special statute. Only in a case where there exists an express prohibition in the matter of maintainability of an intra-court appeal, the same may not be held to be maintainable. But in the event there does not exist any such prohibition and if the order will otherwise be a "judgment" within the meaning of Clause 15 of the Letters Patent, an appeal shall be maintainable.

If the aforesaid paragraph is properly understood, their Lordships have expressed the opinion that under Clause 15 of the Letters Patent when there exists an express prohibition in the matte of maintainability of an intra-i court appeal, the same may not be held to be maintainable and further in the

event there does not exist any such prohibition and if the order will otherwise be a "judgment" within the meaning of Clause 15 of the Letters Patent, the appeal shall be maintainable.

In this context, we may refer with profit to the decision rendered in Midnapore Peoples'' Co-op. Bank Ltd. and Others Vs. Chunilal Nanda and Others, , whereby a two-judge bench of the Apex Court in paragraphs 15 and 10 has expressed the opinion as under:

Interim order/interlocutory orders passed during the pendency of a case, fall under one or the other of the following categories:

(i) Orders which finally decide a question or issue in controversy in the main case.

(ii) Orders which finally decide an issue which materially and directly affects the final decision in the main case.

(in) Orders which finally decide a collateral issue or question which is not the subject-matter of the main case.

(iv) Routine orders which are passed to facilitate the progress of the case till its culmination in the final judgment.

(v) Orders which may cause some inconvenience or some prejudice to a party, but which do not finally determine the rights and obligations of the parties.

The term "judgment" occurring in Clause 15 of the Letters Patent will take into its fold not only the judgments as defined in Section 2 (9) Code of CPC and orders enumerated in Order 43 Rule 1 CPC, but also other orders which, though may not finally and conclusively determine the rights of parties with regard to all or any matters in controversy, may have finality in regard to some collateral matter, which will affect the vital and valuable rights and obligations of the parties. Interlocutory orders which fall under categories (i) to (iii) above, are, therefore, "judgments" for the purpose of filing appeals under the Letter Patent. On the other hand, orders falling under categories (iv) and (v) are not "judgments" for the purpose of filing appeals provided under the Letters Patent.

Submission of Mr. Rajneesh Gupta, learned Counsel for the Appellant is that his case would come under category (ii) which finally decides an issue which materially and directly affects the final decision in the main case. Submission of Mr. Rajneesh Gupta that when an issue is not decided that affects materially and directly the final decision in the main case and, therefore, the appeal should be entertained.

On a first flush, the aforesaid submission looks quite attractive but on a deeper scrutiny the same melts into insignificance inasmuch as the emphasis which has been highlighted by Mr. Rajneesh Gupta though relates to in certain realm of rights, it is basically a case of inconvenience. Hence, we are inclined to think that this case would come under the category (v). In view of the aforesaid, we are of the considered opinion that as far as the present order is concerned, the appeal would not lie u/s 2 of the Act.

At this juncture, learned Counsel appearing for the Appellant submitted that an observation be made that the learned Single Judge should rehear the application of stay on merits. We are of the considered opinion that the learned Single Judge has rejected the grant of interim relief on the foundation that no ground exists for the same. However, as the Respondents are State of Madhya Pradesh, Union of India, M.P. Civil Supplies Corporation Limited and State of Chhatisgarh who have their standing counsel for the High Court we would request the learned Single Judge to dispose of the writ petition finally, if possible, before the ensuing summer vacation.

We may hasten to clarify that ordinarily we could not have made such a request but as Mr. Rajneesh Gupta has urged that the Appellant is in immense stress because he is facing a departmental proceeding and he has been allocated to the State of Chhatisgarh and that keeps the Appellant in a State of "Trishanku". To put is differently; submission of Mr. Rajneesh Gupta is that the Appellant is neither in the State of Madhya Pradesh nor in the State of Chhattisgarh and he is not in a position ''to be or not to be'' and, therefore, we so request.

At this juncture, we would be failing in our duty if we do not record the submission of Mr. Rajneesh Gupta. It was put for the by him that the allocation to the State of Chhatisgarh should be treated subject to result of the writ petition. When the matter is subjudice; the lis is alive and there is refusal of interim relief, it does not require Solomn''s wisdom to understand and appreciate that any impugned order has to be guided by the final decision of the writ petition unless it has any kind of inherent infructuous conceptualism in it.

The writ appeal is accordingly disposed of.

Certified copy as per rules within three days.