Honble AGRAWAL, CJ. - This is an appeal filed against the judgment of the learned single Judge allowing the writ petition of the respondent-Madan Lal Mudgal, who had been selected for being appointed as Primary Teacher in the Kendriya Vidhyalaya Sangthan (Ahmedabad Region). According to the respondent, he joined the service at Udaipur and, thereafter, in August, 1980 he was transferred to Jaipur in the same Institution.

(2) A complaint was filed on 27.12.1981 against the respondent for assault and outraging the modesty of a minor girl student on 26.12.1981. The said complaint was forwarded to the Assistant Commissioner, who sent the same to the Commissioner reporting about immoral behaviour of the respondent. Thereafter, the Commissioner directed that Asstt. Commissioner to make a detailed inquiry. In pursuance of the order of the Commissioner, the. Asstt. Commissioner made a detailed enquiry and found the respondent guilty of exhibition of sexual behaviour towards girl student Kusum Wadhwa. This followed dismissal of the respondent, which had been challenged by means of the writ petition giving rise to this appeal

(3) The respondent denied the charge in the writ petition. The learned Single Judge allowed the writ petition on the ground of violation of principles of natural justice. Against the said judgment and order, the present appeal has been filed by the Kendriya Vidhyalaya Sangthan.

(4) The appeal was listed for hearing before this Bench today. To the hearing of which, the learned counsel for the respondent raised an objection on two grounds; the first was that the appeal was admitted behind his back and without any notice although he had filed a caveat in the appeal and the second was that the amendment of the memorandum of appeal was allowed without an opportunity of hearing to him. The learned counsel for the respondent relied on Section 148-A of the Code of Civil Procedure and Rule 159 of the Rajasthan High Court Rules in support of his objection. He also placed reliance on a decision of the Division Bench of this Court reported in H.G. Shankar Narayan vs. The State of Rajasthan (1).

(5) We do not find any substance in the submission made by the learned counsel for the respondent. Before we proceed to deal with them, it may be mentioned that the respondents counsel had put in appearance in the appeal much before its admission on 24.1.1992. He gave an undertaking on 24.7.1991 that judgment of the learned Single Judge would not be implemented till further orders.

(6) On 6.12.1991, the Court allowed two weeks time to the appellants counsel for filing amendment application. The respondents counsel was given 7 days time for reply which he did not do. The amendment application was on the point that Kendriya Vidhyalaya Sangthan was not a State within the meaning of Art. 12 of the Constitution of India. The amendment application was filed by the appellant within time.

(7) The appeal was admitted on 24.1.1992, to which objection had been raised by Mr. Joshi, learned counsel for the respondent. He contended that a caveator is entitled to be heard on merits before its admission. That submission does not appear to us to be correct. Section 148-A of the Code of Civil Procedure was added by the Code of Civil Procedure (Amendment) Act, 1976. The purpose of that amendment is as follows: —

"Clause-53 - Under the Code, sometimes a party obtains an ex parte order on an application without informing the other party of his intention to make such an application. Where a party, with a view to preventing such ex parte orders being passed, intimates to the Court of his intention to have notice at an intended application by the adverse party, he may be authorised to do so. New Section 148-A is being inserted to provide for a caveat."

(8) I appears that the legislature did not provide for hearing of a caveator before admission. The admission made in the absence of the caveators counsel does not nullify or invalidate. The admission, as a matter of fact

Click Here to Read the rest of this document