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In the High Court of Gauhati
BEFORE N. KOTISWAR SINGH AND S. HUKATO SWU, JJ.
Rukuvoto Ringa and Others - Appellants
Versus
Meyalemla and Others - Respondents
Writ Appeal 3(K) of 2020
Decided on : 26-06-2020
Constitution of India – Article 226 – Application – Interim orders – Present appeal has been filed challenging the order passed in IA (Civil) by which the application filed by the present appellants for vacating the interim orders passed by this Court earlier in WP (C) was rejected – Held, On perusal of the impugned order, it is seen that Learned Single Judge did record the submissions advanced by the contesting parties on the merit of the case. – However, no definitive determination was made based on the aforesaid three cardinal principles and Single Judge disposed of the matter by observing that neither the State respondents nor the private respondents have filed their counter affidavits. – Single Judge, by observing that although the opposite parties/writ petitioners who are Class II officers in the Department may have challenged the seniority positions assigned to the applicants/respondents in the cadre of Class-I officers in the Department by the impugned order yet, in view of the fact that the opposite parties/writ petitioners have also challenged the regularization of the services of the applicants/respondents, took the view that the entire writ petition itself be adjudicated on merit, once the counter affidavits are filed by the respondents in the writ petition and accordingly, dismissed the application filed by the appellants. – Appeal Partly Allowed
JUDGMENT AND ORDER :
N. KOTISWAR SINGH, J.:
1. Heard Mr. R. Iralu, Learned Senior counsel for the appellants assisted by Mr. L. Iralu, Learned Counsel. Heard also Ms. Z. Zhimomi, Learned Counsel for the private respondents/writ petitioners and also Mr. N. Mozhui, Learned Counsel for the State respondents.
2. The present appeal has been filed challenging the order dated 12.02.2020, passed in IA (Civil) No. 176/2019, by which the application filed by the present appellants for vacating the interim orders passed by this Court earlier on 19.08.2019 and 17.09.2019 in WP (C) No. 126/2019 was rejected.
3. According to the appellants the aforesaid application, I.A. (Civil) No. 176/2019, was filed on 13.12.2019 and was moved on 16.01.2020 on which date no one appeared for the respondents and 2 (two) weeks' notice was issued to the respondents in the said application.
4. According to the appellants, a copy of the application was served upon the respondents (writ petitioners) on 21.01.2020.
5. When the matter was listed again on 31.01.2020, this Court passed the following order:
By filing this application, the applicants seek the vacation/modification/alteration of the interim Order dated 19.08.2019 and 17.09.2019 passed in the main writ petition i.e. WP (C) No. 126(K)/2019. Although 2 (two) weeks time was granted to the opposite parties to file their objection but it is submitted at the bar that the respondents have received their copy of the application only on 31.01.2020.
Considering the fact that interim order was passed way back in 19.08.2019, I am inclined to grant 10 (ten) days to the opposite parties to file their objection, if any.
List this case again on 12.02.2020.
The opposite party should file their objection before that date.”
6. Accordingly, the matter came to be listed on 12.02.2020 on which date the impugned order was passed by the Learned Single Judge rejecting the application for vacating the interim orders, against which the present appeal has been preferred.
7. Learned Senior Counsel for the appellants has taken the following pleas, in challenging the impugned order dated 12.02.2020.
8. It has been submitted that the Learned Single Judge erred in appreciating the fact that a copy of the application for vacating of stay orders was served on the Learned Counsel for the respondents/writ petitioners on 21.01.2020 and as such, 2 weeks would have expired on 04.02.2020, and since the application was not disposed of within 04.02.2020, that is, within 2 weeks of furnishing of the application for vacating the stay orders, by virtue of the provision under Article 226(3), the said interim orders passed by the Court on 19.08.2019 and 17.09.2019 in WP (C) No. 126/2019 would stand automatically vacated.
9. Mr. R. Iralu, Learned Senior Counsel also has submitted that in fact, contrary to own admission of the Learned Counsel for the respondents (writ petitioners) that she received the application on 21.01.2020, the Learned Single Judge took the view that it was furnished on 31.01.2020 by referring to the order passed by the Court on 31.01.2020, wherein it was mentioned that it has been submitted at the Bar that the respondents received their copy of application only on 31.01.2020.
10. It has been submitted by the Learned Senior Counsel for the appellants that the Learned Single Judge ought to have considered the recording in the order dated 31.01.2020 that the respondents received a copy of application only on 31.01.2020 was a clerical mistake and as such, the said date ought to have been ignored in the light of the admission made by the Learned Counsel for the respondents that she received a copy of the application on 21.01.2020 and rather ought to have corrected the error.
11. Accordingly, it has been submitted that the Learned Single Judge has erroneously given the finding that the Learned Counsel for the respondents (writ petitioners) received a copy of the
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