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Judgment
Appellant is respondent no. 3 in the writ petition.
The impugned decision of the of the learned Single Judge
dated 29.06.2017 reads as follows:
"Mr. Rajendra Dobhal, Senior Advocate assisted by Mr. Shubhang Dobhal, Advocate present for the petitioner. Mr. P.C. Bisht, Standing Counsel present for the State. Mr. Shobhit Saharia, Advocate present for the intervener. Supplementary affidavit filed in Court today on behalf of the petitioner is taken on record. Stay vacation application has been filed by the intervener. Considering that in connected matter being ARBAP No. 18 of 2017, order has been passed for appointment of an arbitrator for taking decision within a stipulated period, stay vacation application is not liable to be heard at this stage. Matter is adjourned for one month. List this case on 31.07.2017 in the daily cause list. Interim order dated 12.04.2017 is extended till the next date of listing."
We heard Mr. Shobhit Saharia, learned counsel on behalf
of the appellant, Mr. Rajendra Dobhal, learned senior counsel
on behalf of respondent no. 1 and Mr. Hari Mohan Bhatia,
learned Brief Holder on behalf of the State/respondent nos. 2
and 3.
Mr. Shobhit Saharia, learned counsel for the appellant
would submit that the impugned order, produced as Annexure,
affects his vital rights in the following factual background:
A project work consisting of Regional Support (Field
NGO), was awarded to the writ petitioner (Mr. Rajendra
Dobhal, learned senior counsel points out that it was done on
11.02.2015 for a period of four years). The Government,
however, issued a new advertisement on 19.10.2016. On
10.01.2017, the appellant was selected in respect of one Block of
District Nainital. Another advertisement was issued on
17.01.2017 in respect of District Champawat. The appellant
came to be selected for Champawat District. On 25.03.2017, he
was issued a communication calling him for signing the
agreement (Mr. Rajendra Dobhal, learned senior counsel points
out that this is actually a communication addressed by the
Director to the Deputy Director to call the appellant for signing
the agreement). 01.04.2017 was the date fixed. The writ petition
in this case was thereupon filed on 09.04.2017. On 12.04.2017,
originally, this Court granted stay of the operation of the order
dated 25.03.2017. Thereafter, it would appear that the appellant
filed application for intervention/impleadment. We find from
the order dated 01.05.2017 that the impleadment application
was allowed and the writ petitioner was directed to implead
the appellant as the third respondent. Learned counsel for the
appellant would submit that actually the scope of the work
involved in the works which was awarded to the appellant is
different from the scope of the work which was awarded in
favour of the writ petitioner, and this is also the stand of the
Government in the counter affidavit. Stay Vacation Application
has also been filed. He would further contend that actually the
writ petition itself was not maintainable being a contractual
matter and what is more, this is a case, where there is an
Arbitration clause. He would further point out that in the
earlier writ petition filed by the writ petitioner, official
respondent was asked to consider the Arbitration clause. He
would point out that there is a remedy under Section 9 of the
Arbitration and Conciliation Act, 1996 (hereinafter referred to
as the "Act"). He would submit that great prejudice is caused to
him as he has mobilized the resources and is employing staff
for the project. He would further point out that a perusal of the
impugned order would show the reasoning of the learned
Single Judge for extending the interim order and not
considering the Stay Vacation Application; the same cannot be
sustained. He would submit that actually in proceedings under
Section 11 of the Act, a person has been appointed as
Arbitrator. A request was made by the Court appointing the
Arbitrator to dispose of the matter within one month. It is
pointed out that the Arbitrator has not entered upon
appearance. The rationale for not considering the matter of
vacating the interim order was that an Arbitrator was
appointed and understanding was that the matter would be
disposed of by the Arbitrator. He would submit that the rights
of the appellant have not been considered. He also would harp
to enlist the support of Article 226(3) of the Constitution of
India insofar as when the appellant has moved the Stay
Vacation Application, under Article 226, if the Stay Vacation
Application is not finally disposed of within the period
mentioned therein, the Constitution provides for an automatic
vacation of the interim order as provided there, but he would
submit that by the impugned order the learned Single Judge
has expressly extended the order, though the application for
Vacation of Stay is not finally disposed of. This has produced a
great injury to appellant as the appellant is left remediless.
Per contra, Mr. Rajendra Dobhla, learned senior counsel
would point out that the impugned order is not a judgment and
the appeal is not maintainable. He would also submit that in
the earlier round of litigation, the writ petitioner had
challenged the advertisement dated 19.10.2016. He would
submit that in the light of the Full Bench Judgment of the
Hon''ble Allahabad High Court and also the orders passed by
this Court, the appeal is not maintainable.
We are of the view that we need not go into this aspect in
the light of the course we intend to adopt. We would dispose of
the appeal by permitting the appellant to file review/recall
application before the learned Single Judge, leaving open the
right of the appellant to approach this Court against the
impugned order, if need arises and also leaving open the
contentions of the parties.
Accordingly, we leave open the right of the appellant to
challenge this order again, if necessary. We leave it open to the
appellant to file review/recall application against the impugned
order dated 29.06.2017. We earnestly hope that if the
review/recall application is filed, it will be disposed of at the
earliest and if possible, on the same day, on which the matter is
listed.
Let certified copy of this Judgment be issued today itself.