V.K. Anant vs State Of Chhattisgarh

This appeal has been filed against the order dated 26.07.2018 passed by learned Single Judge in Writ Petition (S) No. 4325/2018 still pending before

learned Single Judge, rejecting the application for grant of interim relief filed by the appellant/petitioner herein.

Facts necessary for disposal of this Writ Appeal, in brief, are that by order dated 16.04.2018 (Annexure P-1 to the Writ Petition) the

appellant/petitioner has been transferred as Transport Inspector, Jagdalpur. This order is already under challenge before learned Single Judge and

consequent upon the rejection of interim application seeking stay of the said order, this Writ Appeal has been preferred by him.

According to the counsel for the appellant/petitioner the order dated 16.04.2018 has been passed contrary to the transfer policy of the State of

Chhattisgarh and that too just to accommodate respondent No.5 herein.

Learned counsel for the respondent/State raised an objection as to maintainability of the Writ Appeal submitting that under the proviso to sub-

section (1) of Section 2 of the Chhattisgarh High Court (Appeal to Division Bench) Act, 2006, (hereinafter referred to as Act of 2006) no appeal shall

lie against an interlocutory order passed by learned Single Judge and therefore, the Writ Appeal is liable to be dismissed being not maintainable.

We have heard counsel for the parties and perused the order impugned.

Before appreciating the rival submissions of the parties, it seems necessary to take note of Section 2 of the Act of 2006, which reads 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 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.â€​

A bare reading of the above provision makes it crystal clear that a judgment or order passed by one Judge of the High Court in exercise of the

original jurisdiction under Article 226 of the Constitution of India is appealable in nature. However, the interlocutory order is inhibited by the proviso to

Section 2 of the Act of 2006.

The Full Bench of this Court in Ajay Gupta v. State of Chhattisgarh and others reported in AIR 2017 Chh. 45 has extensively dealt with the issue

with regard to maintainaiblity of the Writ Appeal against an interlocutory order in the following terms:-

“We, therefore, answer the question referred to us by holding that proviso to Section 2 (1) of the Act of 2006 bars appeals against those interim

orders which are totally interloctory in nature, do not decide the matters of moment and do not have an element of finality attached to them. If the

order vitaly affects right of the parties having bearing on the final ajudication 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 attched to them. The orders, effect of cannot be termed to be interlocutory orders and in such eventuality, an appeal

woud like against such orders.â€​

This view has also been followed by the Division Bench of this Court in the matter of Abhishek Sharma and others v. State of Chhattisgarh and others

reported in AIR 2017 CG 113.

The interlocutory order literally means the one purely interim or temporary in nature not deciding the rights or libalities of the parties. However, an

order which substantially affects or decides such rights cannot be said to be an interlocutory order so as to bar an appeal there-against.

Order under challenge herein makes it clear that learned single Judge has not finally adjudicated the controversy between the parties. Learned

Single has just not found prima facie the order dated 16.04.2018 and its communication dated 25.05.2018 to be in contravention of the transfer policy

of the State of Chhattisgarh or it being based on irrelevant ground by way of punishment. Merits or demerits of the case are still to be gone into by the

learned single Judge in the petition which still pends.

In view of what has been stated above, this Court is of the opinion that the present Writ Appeal assailing the order passed by learned single Judge

â€" the one purely interlocutory in character with no element of finality attached, is not maintainable and liable to be dismissed as such. Dismissal

accordingly with no costs.