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2020 Supreme(Guj) 329
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
VIKRAM NATH, ASHUTOSH J. SHASTRI, JJ.
Ruturaj Sankabhai Desai – Appellant
Versus
State Of Gujarat – Respondent
R/Letters Patent Appeal No. 234 of 2020, In R/Special Civil Application No. 5182 of 2020 With Civil Application (For Stay) No. 1 of 2020
Decided on : 11-03-2020
Advocate Appeared:
For the Appellant :MR YATIN N OZA SENIOR ADVOCATE WITH MR TUSHAR L SHETH, Adv.
For the Respondent: MS MANISHA L. SHAH, MR KB PUJARA, Adv.
Point of Law:
Until and unless the interlocutory order determines the rights of the parties in one way or the other, it cannot be said to be a judgment.
Headnote:
Civil procedure code, 1908 - Service Matter - Seniority - Respondent authority to consider objections of petitioners and take a decision by said date and till decision is taken Judge provided that provisional list shall not operate - Appeal has raised three grounds before us assailing correctness of aforesaid order of Judge - Firstly that interim order passed by Single Judge is non-speaking order - Secondly that petition suffers from vice of non joiner of necessary parties and therefore Single Judge ought to have stayed his hands off and at first instance petitioners were required to impaled affected parties as party respondents in writ petition and till time the affected parties were imp leaded and adequate opportunity given no interim order ought to have been passed - Decision could have been taken about merit of seniority list - In support of his submission placed reliance upon a Division Bench judgment of this Court Letters Patent Appeal of between Gujarat Public Service Commission through Secretary - Held, Court order no rights of parties are decided or have been permanently affected - Only action to be taken on provisional list may be for purpose of determination of seniority for giving promotion has been stalled and that limited extent of deciding objections against provisional list and publishing a final list where upon necessary exercise to be undertaken for giving effect to promotion - Thus relying upon judgment of Supreme Court in case of Life Insurance Corporation of India - Court has been held that until and unless interlocutory order determines rights of parties in one way or other it cannot be said to be a judgment and as see no reason why not to accept preliminary objection of counsel for private respondents regarding maintainability of present appeal judgment in case of Life Insurance Corporation of India - Appeal dismissed (Para 7)
Facts of the Case:
Appeal under clause 15 of the Letters Patent has been preferred assailing the correctness of the order dated 28.02.2020 passed by the learned Single Judge in Special Civil Application No.5182 of 2020, whereby the learned Single Judge fixed 11.03.2020 as next date and further requiring the respondent authority to consider objections of the petitioners and take a decision by the said date and till such decision is taken, the learned Single Judge provided that the provisional list shall not operate.
Finding of the Court:
Court order no rights of parties are decided or have been permanently affected - Only action to be taken on provisional list may be for purpose of determination of seniority for giving promotion has been stalled and that limited extent of deciding objections against provisional list and publishing a final list where upon necessary exercise to be undertaken for giving effect to promotion - Thus relying upon judgment of Supreme Court in case of Life Insurance Corporation of India - Court has been held that until and unless interlocutory order determines rights of parties in one way or other it cannot be said to be a judgment and as see no reason why not to accept preliminary objection of counsel for private respondents regarding maintainability of present appeal judgment in case of Life Insurance Corporation of India.
Result: Appeal dismissed
ORDER :
VIKRAM NATH, J.
1. We have heard Shri Yatin N. Oza, learned Senior Advocate assisted by Shri Tushar Sheth, learned counsel for the appellants, Ms. Manisha L. Shah, learned Government Pleader for the State respondent Nos. 1 and 2 and Shri K.B.Pujara, learned counsel for the private respondent Nos.3 to 60.
2. This appeal under clause 15 of the Letters Patent has been preferred assailing the correctness of the order dated 28.02.2020 passed by the learned Single Judge in Special Civil Application No.5182 of 2020, whereby the learned Single Judge fixed 11.03.2020 as next date and further requiring the respondent authority to consider objections of the petitioners and take a decision by the said date and till such decision is taken, the learned Single Judge provided that the provisional list shall not operate. The said order is reproduced below:
“Issue notice to the respondents, returnable on 11.03.2020. In the meantime, it is open for the respondents to consider the objection of the petitioners and take a decision thereon by the 11.03.2020. Till such a decision is taken, provisional list shall not operate. Direct service, today, is permitted”.
3. Shri Oza, learned Senior Advocate has raised three grounds before us assailing the correctness of the aforesaid order of the learned Single Judge. Firstly, that the interim order passed by the learned Single Judge is non-speaking order. Secondly that the petition suffers from the vice of non-joinder of necessary parties, and therefore, the learned Single Judge ought to have stayed his hands off and at the first instance, the petitioners therein were required to implead the affected parties as party respondents in the writ petition and till such time the affected parties were impleaded and adequate opportunity given, no interim order ought to have been passed. Thirdly that in matters of seniority, interim order ought not to have been passed and it is only at the stage of final disposal, the decision could have been taken about the merit of the seniority list. In support of his submission, Shri Yatin Oza placed reliance upon a Division Bench judgment of this Court dated 11.09.2015 passed in Letters Patent Appeal No.1480 of 2013 between the Gujarat Public Service Commission through the Secretary viz. Parmar Nilesh Rajendrakumar and 99 others on the proposition that in the absence of necessary parties having been impleaded, the petition itself was liable to be thrown out rather than being entertained and interim order being passed.
4. Ms. Manisha L. Shah, learned Government Pleader appearing for the State respondents, although not in appeal has supported the submission of the appellants that there was no occasion for the learned Single Judge to pass interim order in a matter relating to determination of seniority and promotion being affected on the basis of provisional list. It has been submitted that there are 47 vacancies of Additional Collectors and the State Administration Department requires urgent filling up of such posts so that the work of administration continues smoothly throughout on various vital posts, which are lying vacant. Reliance has been placed by learned Government Pleader on a Division Bench judgment of this Court in the case of Abhuji Karshaji Thakore vs. Thakore Jitaben Manchaji, reported in 2003(0) GLHELHC 200139, for the proposition that in a dispute relating to seniority an interim order ought not to have been passed.
5. Shri K.B.Pujara, learned counsel for the private respondents, at the outset, raised preliminary objection regarding maintainability of appeal, as according to him Letters Patent Appeal would lie against a judgment and not against an interim order. According to him, until and unless order passed by the learned Single Judge had some trappings of finality, an appeal would not be maintainable. In the present case, the order passed by the learned Single Judge impugned in the present appeal has no trappings of any finality and is purely an interim order,
