Debiprasad Sengupta, J.
1. Subject matter of challenge in the aforesaid appeals is a common Judgment and order dated 26th June, 2007 passed by the learned single Judge in W.P. No. 20074(W) of 2006. Since same point is involved in the aforesaid three appeals, those are taken up for analogous hearing in presence of the learned Advocates of the respective parties.
2. In the writ petition the writ petitioner/respondent No. 1 Rita Kar challenged the selection process initiated for appointment in the post of Principal in the District Institute of Education and Training (DIET) under the School Education Department, Government of West Bengal. Since selection process was conducted by the State Public Service Commission, it was the case of the writ petitioner before the learned single Judge that State Public Service Commission had no power or authority to conduct such selection process and make recommendation for the post. It was contended on behalf of the petitioner that since the scheme was sponsored Central Government for appointment in the post of Principal in the DIET, selection, appointment were to be done strictly in accordance with the guidelines issued by the Central Government. It was further contended before the learned single Judge that since the scheme was a Central Government Scheme and was funded by the Central Government, the employees under the scheme should be considered to be the employees under the scheme and not employees in the services of the Union or the State. The learned single Judge on being satisfied on the submission made by the learned Advocate of the petitioner observed as follows:
Nothing has been shown to me from which it can be held that the state public service commission was authorized or empowered to recruit, select and recommend candidates also for posts such as the one for which it published the advertisement.
3. The learned Judge held that the respondent authorities acted in violation of the guidelines, which were to govern the recruitment, selection and appointment in the post of Principal, DIET. Writ application was allowed with following directions:
For these reasons, I allow this writ petition and quash the selection process for which the state public service commission published the advertisement dated September 10th, 2005. All steps taken by the respondents for appointing the principal in DIET under the School Education Department, West Bengal are hereby quashed. Needless to say that if any appointment has been given, that shall also stand quashed. The respondents will be at liberty to initiate appropriate selection process in terms of provisions of the guidelines, and if the petitioner is entitled to participate, she will be at liberty to do that. There shall be no order for costs in the case.
4. Mr. Kar, learned Advocate appearing on behalf of the appellants in MAT No. 2663 of 2007 submits that the impugned order was passed as the learned Judge was not assisted properly and the writ application was moved without serving any notice to the private individuals, who were selected in the selection process and were vitally affected by the order impugned.
5. It is submiitted by the learned Advocate of the appellants that although District Institute of Education and Training (DIET) is under a centrally sponsored scheme, significantly the implementation of the scheme is an essential responsibility of the State Government. This will be evident from the guidelines itself. The guidelines, it is submitted by the learned Advocate of the appellants, are not rigid and rather flexible and have given full liberty to the State Government to formulate modalities as to how the recruitment of Principal as also in other posts in the DIET is to be made. In such view of the matter, the School Education Department (Primary Branch), Government of West Bengal, by a Notification in the Calcutta Gazette on 14th December, 2000 formulated modalities for recruitment of Principals in the District Institute of Education and Training (DIET) thereby entrusting the responsibility of recruitment to the Public Service Commission, West Bengal. In such circumstances, it is incorrect to say that State Public Service Commission is not authorized to conduct the selection process for appointment in the post of Principals in the DIET. Relevant portion of the Notification dated 14th December, 2000 is quoted below:
Government of West Bengal
School Education Department
Primary Branch
Notification
6. No. 1885-SE(Pry)--dated, Calcutta 14th December, 2000--In exercise of the power conferred by the proviso to Article 309 of the Constitution of India, the Governor is pleased hereby to make the following rules regulating the recruitment to the posts noted below for the District Institutes of Education and Training (DIET):
1. Principal,
2. Senior Lecturer,
3. Lecturer,
4. Librarian,
5. Assistant Technician (Computer),
6. Assistant Technician (Educational Technology), and
7. Assistant Technician (Statistics).
********
1. Name of the post: Principal, in the scale of pay of Rs. 10000-325-15525.
(A) Method of Recruitment:
By selection (direct recruitment) through tie Public Service Commission, West Bengal.
8. From the Notification dated 14th December, 2000 it is evident that Governor of West Bengal in exercise of powers conferred by proviso to Article 309 of the Constitution of India made recruitment rules regulating the recruitment of various posts for District Institute of Education and Training including Principals.
9. Mr. Kar, learned Advocate submits that vide G.O. No. 619-SE (Pry.) dated 14th September, 2006 nine persons were given appointment as Principals in the District Institute of Education and Training (DIET) on the recommendation of the State Public Service Commission. In the said appointment letter dated 14.9.2006, it is clearly stated that 'pay protection as admissible in terms of Rule 42A of WBSR (Part - 1) will be allowed in deserving cases.' Mr. Kar submits that Government servants, whose services come under WBSR, automatically come under the purview of DCRB Rules.
10. Mr. Kar, learned Advocate of the appellants, submits that the specific case of the writ petitioner was that the recruitment process initiated at the instance of the State Public Service Commission was wholly without jurisdiction and the respondent authorities acted in clear violation of the guidelines, which were to govern the recuitment, selection and appointment to the post of Principal in the DIET, for which selection process was initiated. It is submitted by Mr. Kar that since this Notification dated 14th December, 2000 was not produced before the learned single Judge, the learned Judge accepted the contention made on behalf of the writ petitioner and held that State Public Service Commission had no authority to conduct such selection process. The Notification dated 14th December, 2000 was deliberately suppressed by the writ petitioner and had it been produced before the learned Judge, the situation would have been otherwise.
11. Mr. Kar points out that in the impugned order itself the learned Judge has held that the guidelines issued by the Central Government have no statutory force, but in spite of such observation, the learned Judge crime to a finding that the appellants are under obligation to follow them. Mr. Kar submits that intention of these guidelines is not to lay out a rigid set of guidelines. In support of his contention, Mr. Kar refers to certain portions of the said guidelines, which are reproduced below. In Chapter I para 1.12 it is provided as follows:
1.12 Guidelines in this document -- Largely Indicative
As in the case of the earlier guidelines, the intention in this document too is not to lay down a rigid set of guidelines for the whole country. These guidelines should be treated, in the main as indicative rather than prescriptive; and State Government would be expected to implement the programme of DIET with such local variations and adaptations as may be necessary in their respective contexts. At several places in this document, alternatives and flexibilities have also been specifically indicated.
12. Paragraph 1.9 provides that DIETs would be institutions of the State Government or U.T. Administration and will, therefore, be answerable to them. The State Govt./U.T. Administration may exercise its supervisory functions through the SCFRT and SRC.
Para 4.3 of Chapter 4 of the guidelines provides as follows:
4.3 Main Features of the DIET Scheme
Following are the main features of the DIET Scheme:(i) DIETs will be set up by the concerned State Governments, and Union Territory Admns., with Central assistance.
13. Para 6.2.5 in Chapter 6 speaks about creation of posts by the State Education Department upon receiving sanction from the Finance Department of the State Government. Referring to relevant paragraphs in the guidelines, it is submitted by Mr. Kar that in conformity with these guidelines, posts were created by the State and those posts were 'civil posts' and were required to be filled up by the State Public Service Commission.
14. In support of his contention that Guidelines have no statutory force, Mr. Kar, learned advocate, relied upon the following Judgments:
a) AIR 1989 SC 2138 (Narendra Kumar Maheswari v. Union of India and Ors.).
b) (1993)4 SCC 357 (Union of India and Ors. v. S.L. Abbas).
c) 2001(1) CWN 448 (Syndicate Bank v. Vidya G. Nayak).
15. We have gone through the Judgments. It is settled principle of law that guidelines have no statutory force and those do not confer any right upon any Government employee a legally enforceable right. This has also been accepted by the learned single Judge in the impugned order itself. So, we are of the view that we need not deal with the Judgments referred to above.
16. Next argument advanced by the learned Advocate of the appellants is that the writ petitioner offered her candidature for appointment in the post of Principal in DIET, but the same was turned down by the Commission on the ground that she had crossed the age bar. Writ petitioner being unsuccessful in the selection process challenged the selection process by filing a writ application under Article 226 of the Constitution of India, which is not permissible in view of the Judgments of the Hon'ble Apex Court. In support of his contention, the learned Advocate relies upon a Judgment of the Hon'ble Supreme Court reported in (1998)3 SCC 694 (Union of India and Anr. v. N. Chandrasekharan and Ors.). In paragraph 13 of the said Judgment, it was held as follows:
We have considered the rival submissions in the light of the facts presented before us. It is not in dispute that all the candidates were made aware of the procedure for promotion before they sat for the written test and before they appeared before the Departmental Promotion Committee. Therefore, they cannot turn around and contend later when they found they were not selected by challenging that procedure and contending that the marks prescribed for interview and confidential reports are disproportionately high and the authorities cannot fix a minimum to be secured either at interview or in the assessment on confidential report.
17. Next Judgment on the same point relied upon by the learned advocate of the appellants is reported in (2003)9 SCC 401 (Vijay Syal and Anr. v. State of Punjab and Ors.). In the said Judgment it was held that normally, Court should not interfere with the assessment made by the interview committee in absence of any mala fides or extraneous considerations. Moreover when candidates knowing well the criteria fixed for selection and allocation of marks appeared in the interview and were not successful, it was not open to them to turn around and attack the very criteria.
18. Relying upon the aforesaid Judgments, it is submitted by the learned Advocate of the appellants that the writ petitioner offered her candidature, which was not accepted by the Commission on the ground of age bar and it was only after rejection of her candidature, she approached this Court by invoking writ jurisdiction, which is not permissible in view of the Judgments of the Hon'ble Apex Court referred to above.
19. Next submission made by the learned Advocate of the appellants is that in the present case no legal right having been infringed, the writ petition is not maintainable and that Mandamus can be issued to enforce the rule of law and not to act contrary to law. The learned Advocate relies upon a Judgment of the Supreme Court reported in (2003) 11 SCC 627 (Union of India and Ors. v. C. Krishna Reddy). In para 13 of the said Judgment it was held as follows:
It is well settled by a catena of decisions of this Court that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. The chief function of the writ is to compel performance of public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions within the limit of their jurisdiction.
20. In the Judgment reported in (1996)4 SCC 453 (Union of India and Ors. v. Kirloskar Pneumatic Co. Limited), relied upon by the learned Advocate of the appellants, it was held by the Hon'ble Supreme Court that power under Article 226/227 of the Constitution of India is designed to effectuate the law, to enforce the rule of law and to ensure that the several authorities and organs of the State act in accordance with law. It cannot be invoked for directing the authorities to act contrary to law.
21. Relying upon the aforesaid Judgments, it is submitted by the learned Advocate of the appellants that in order that a mandamus may issue to compel the authorities to do something, it must be shown that there is a statute, which imposes a legal duty/obligation and the aggrieved party has a legal right under the statute to enforce its performance. In the present case in absence of such ingredients, the learned Judge should have dismissed the writ application on that score alone. In the present case, no judicially enforceable legal right of the writ petitioner was abrogated by any action of the appellants.
22. Last point raised by the learned Advocate of the appellants is the point of jurisdiction and maintainability of the writ petition. It is submitted by the learned advocate of the appellants that although such point of jurisdiction was raised before the learned single Judge, the same was not decided. It is submitted by the learned Advocate that the post of a Principal in the District Institute of Education and Training (DIET) is a 'civil post' under the State and if a selection process initiated for recruitment in such a 'civil post' is to be challenged, in view of the provisions laid down in the Administrative Tribunals Act, the same can only be challenged before the West Bengal State Administrative Tribunal and not before any other forum. Mr. Kar, learned Advocate points out that appointment letters of Principals, District Institute of Education and Training (DIET) are issued in the name of the Governor since these posts are of Government servants. Service conditions of these Principals are guided by the West Bengal Service Rules. So, when the selection process initiated by the State Public Service Commission at the instance of the Government in the School Education Department is to be questioned at the first instance, the same can only be entertained by the State Administrative Tribunal.
23. Mr. Kar, learned advocate refers to Section 15 of the Administrative Tribunals Act, 1985, which is reproduced below:
15. Jurisdiction, powers and authority of State Administrative Tribunals--(1) Save as otherwise expressly provided in this Act, the Administrative Tribunal for a State shall exercise, on and from the appointed day, all the jurisdiction, powers and authority exercisable immediately before that day by all Courts (except the Supreme Court (***) in relation to-
(a) recruitment, and matters concerning recruitment, to any civil service of the State or to any civil post under the State;
(b) all service matters concerning a persons [not being a person referred to in Clause (c) of this Sub-section or a member, person or civilian referred to in Clause (b) of Sub-section (1) of Section 14] appointed to any civil service of the State or any civil post under the State and pertaining to the service of such person in connection with the affairs of the State or of any local or other authority under the control of the State Government or of any corporation [or society]* owned or controlled by the State Government;
(c) all service matters pertaining to service in connection with the affairs of the State concerned a person appointed to any service or post referred to in Clause (b), being a person whose services have been placed by any such local or other authority or corporation [or society] * or other body as is controlled or owned by the State Government, at the disposal of the State Government for such appointment.
24. Referring to the aforesaid provision of Administrative Tribunals Act, it is submitted by the learned Advocate of the appellants that when the Act of 1985 specifically provides that disputes pertaining to any 'civil post' under the State and when it is clear that the post of a Principal in the DIET is a 'civil post', the selection process for appointment in such 'civil post' can only be questioned in the State Administrative Tribunal and not before any other forum.
25. Mr. Sumit Panja, learned Advocate appearing for the appellants in AST No. 1803 of 2007 adopts the arguments advanced by Mr. Kar, learned Advocate. It is submitted by Mr. Panja, learned Advocate, that the State Government entrusted the State Public Service Commission to hold selection process only after framing of Rules under Article 309 of the Constitution of India and the Rules framed under Article 309 of the Constitution having statutory force are mandatory unlike the guidelines framed by the Government of India. Mr. Panja submits that the guidelines issued by the Central Government entrusted the State Government to frame recruitment rules for the DIET faculty and accordingly State Government framed Rules under Article 309 of the Constitution of India. Mr. Panja further submits that the writ petitioner after participating in the selection process and on being unsuccessful cannot challenge the sulection process initiated by State Public Service Commission. The writ petitioner after submitting to the jurisdiction of the State Public Service Commission cannot subsequently challenge its jurisdiction after her candidature was rejected on the ground of age bar. So far as the point of jurisdiction and maintainability of the writ petition is concerned, Mr. Panja adopts the arguments advanced by Mr. Kar, learned advocate and submits that such a dispute regarding recruitment of a person in the 'civil post' can only be adjudicated in State Administrative Tribunal in view of the provision in Section 15 of the Act of 1985.
26. Mr. Kashikanta Moitra, learned senior counsel appearing on behalf of the appellants in AST No. 3110 of 2007, submits that the writ petitioner approached this Court praying for cancellation of selection process initiated for appointment in the posts of Principal in the District Institute of Education and Training (DIET) under School Education Department on the ground that State Public Service Commission had no authority to conduct such selection process. Writ application was allowed only on the ground that nothing could be produced before the learned Trial Judge to show that the State Public Service Commission was duly authorized to conduct such selection process. But unfortunately the Notification dated 14.12.2000 wherein and whereby Rule was framed empowering the Public Service Commission to conduct such selection process for appointment in the post of Principal as also in other posts in the DIET was not produced before the learned single Judge. Writ petitioner suppressed the material facts as she having failed to participate in the selection process on the ground of age bar approached this Court and obtained an order. Mr. Moitra submits that it has now been well settled in number of Judgments of the Hon'ble Apex Court that a candidate having participated in the selection process and having been unsuccessful, cannot challenge such selection process.
27. It is submitted by Mr. Moitra that there cannot be any doubt that post of a Principal in the DIET is a 'civil post'. A person holding a post under the State is a person serving or employed under the State. There is a relationship of master and servant between the State and a person holding a post under it. The existence of this relationship is indicated by the States' right to select and appoint the holder of the post, its right to suspend and dismiss him, its right to control the manner and method of his doing the work and the payment by it of his wages or remuneration. In the case of a Principal in the DIET there is no doubt that he is remunerated by the State, method of his work is controlled by the State and State exercises the power to suspend, dismiss and reinstate him. Mr. Moitra submits that all the circumstances as indicated above clearly suggest that the post of a Principal in the DIET is a 'civil post' under the State. So, in view of the provision laid down in Section 15 of the Administrative Tribunal Act, 1985, if anybody wants to challenge the recruitment process for appointment in such post, the same can be challenged in the State Administrative Tribunal and not before any other forum. Mr. Moitra, learned Counsel, adopts the other parts of argument advanced by Mr. Kar, learned advocate for the appellants in MAT No. 2663 of 2007.
28. Mr. Sadhan Roy Chowdhury, learned Advocate appearing for the writ petitioner/respondent submits that the Public Service Commission under Article 320 of the Constitution of India is empowered to hold process of selection only relating to 'civil post' which is connected with the affairs of the State. The post of a Principal in the District Institute of Education and Training (DIET) is not a civil post related to the affairs of the State, because the post is created under the Central Government Scheme which is also totally financed by the Central Government. It is submitted by Mr. Roy Chowdhury, learned Advocate that the State Government has been given the authority to execute the progr imme as a nodal agency of the Government of India under the scheme and it can only regulate the recruitment procedure according to the guideline of the scheme.
29. Commenting on the legislative competence of the State Government, Mr. Roy Chowdhury has submitted that under Article 246(2) of the Constitution of India, the legislature of any state has the power to make laws in respect of any of the matters enumerated in List III in the VIIth Schedule (referred to as the concurrent list). The legislature of a state has also got exclusive power to make laws for such state or any part thereof with respect to any of the matters enumerated in List II of the VIIth Schedule (referred to as State List). Under Article 246(1) Parliament will have exclusive power to make laws with respect to any of the matters enumerated in List-I of the VIIth Schedule (Union List). The creation of union agencies and institutions for professional, vocational and technical training having been made, the matter comes under the purview of item No. 65 of the Union List under the VIIth Schedule. Conceding that education including technical education falls under the concurrent list, it is submitted that State Government has authority to make legislation on education subject to the provisions of entries 63, 64, 65 and 66 of List-1. The matter coming well within the scope of entry No. 65 of Union List of the VIIth Schedule, the State Government would not be competent to make any legislation on such subject. It is submitted by Mr. Roy Chowdhury that since the entire fund is provided by the Central Government for running the DIET, which is an Union agency and institution, the Rule authorizing the State Public Service Commission to conduct selection process for selection in the post of Principal in the DIET, is to be treated as void and unconstitutional. What the State Government is authorized to do is to frame a rule for recruitment to the post under the scheme and not beyond what is prescribed. Such a procedure postulated under the scheme not having been followed, framing of Rules under Article 309 of the Constitution is totally unwarranted.
30. In reply to the submission made above, it is submitted by Mr. Kar, learned Advocate of the appellants that the scheme itself has conferred on the State Government extensive powers to frame rules for recruitment in the posts of Principal and other teaching and non teaching staff of DIET. It is submitted by Mr. Kar that DIET is neither a Central Agency nor it is a Central Institution. Accordingly, State Government will be well within its power to enact law relating to educational matter as provided in entry 25 of the concurrent list in the VHth Schedule. Accepting the proposition that DIET is under the Central Government Scheme, it is submitted that the scheme itself has bestowed the entire responsibility of execution of the scheme on the State Government. Acting on such guidelines as prescribed under the scheme, the State Government issued the G.O. No. 692-AC (PRY) dated 27th July, 2004 thereby converting Government Primary Teachers' Training Institutes of Education and Training into DIETs with the Director of School Education, West Bengal as the 'Controlling Officer' in respect of the Principals of the DIET in terms of the provisions of Rule 4(5) of the West Bengal Service Rules, Part-II. The relevant Rule for recruitment of Principals and other staff of the DIET was also made in terms of the provision contained in Article 309 of the Constitution of India. The Principals in the DIET having been brought under the W.B.S.R., West Bengal Public Service Commission is only authorized to take appropriate step for recruitment of such posts in the DIET under Articles 320(1) and 320(3) of the Constitution of India.
31. We have heard the learned Advocates of the respective parties. We have also gone through the Judgments of the Hon'ble Apex Court. Considering the materials placed before us, we are of the view that a Principal of DIET holds a civil post under the State. Creation of posts in the DIET was made by the School Education Department, Government of West Bengal through G.O. No. 692-SE(Pry) dated 27th July, 2004 wherein it was categorically stated that by virtue of the scheme sponsored by the Central Government, thirteen Government Primary Teachers' Training Institutes of Education and Training were converted to DIET. By notification No. 978-SE(Pry) dated 31st August, 2005, the Director of School Education, West Bengal was made the 'Controlling Officer' in respect of the Principals in the DIET in terms of Rule 4(5) of the West Bengal Service Rules, Part-II. By the same notification Principals in the DIET were declared 'Head of Office' in terms of the provisions in Rule 5 of the West Bengal Service Rules, Part-II. As the provisions of West Bengal Service Rules have been made applicable in the case of the Principals, there cannot be any doubt that Principals in the DIET are Government servants within the meaning of Rule 2 of the W.B.S.R. (Part-I). By G.O. No. 619-SE (Pry) dated 14th September, 2006 nine persons were given appointment as Principals in the DIET being recommended by the State Public Service Commission. In view of the provisions laid down in Article 320(1) and 310(3) of the Constitution of India, State Public Service Commission is the authority to conduct selection process for appointment in the post of Principals in the DIET.
32. Appointment letters of Principals of DIET are issued in the name of the Governor as they are Government servants. Service conditions of the Principals are governed by the West Bengal Service Rules. So when the selection process initiated by the State Public Service Commission at the instance of the Government in the School Education Department, is to be challenged, the same can only be challenged in the West Bengal State Administrative Tribunal.
33. There is no doubt that the scheme is a centrally sponsored scheme, which is funded by the Central Government. But the implementation of the scheme is an essential responsibility of the State Government. In the guidelines full liberty was given to the State Government to formulate the modalities regarding recruitment in the posts of DIET. Accordingly, the School Education Department, Government of West Bengal by notification dated 14th December, 2000 formulated modalities as to how the recruitment in the post of Principals of DIET was to be made and by the said notification the State Public Service Commission was entrusted with the responsibility of recruitment in the post of Principals in the DIET.
34. A perusal of the guidelines makes it clear that although the scheme is funded by the Central Government, the entire responsibility of implementation and execution of the scheme was bestowed upon the State Government. Accordingly, State Government by issuing a notification entrusted the responsibility of recruitment in the posts of Principal in the DIET. We are of the view that there was no illegality or infirmity in the entire process.
We find that the notification dated 14th December, 2000 was not produced before the learned single judge when the writ application was allowed by the learned single Judge when the writ application was allowed by the learned Judge and the entire selection process was quashed.
35. It is the contention of the learned Advocate of the writ petitioner respondent that the writ proceeding, Rule under Article 309 of the Constitution of India is not the subject matter of challenge and the only point to be decided is whether the Public Service Commission, West Bengal is competent to hold the selection process. Mr. Roy Chowdhury challenges the legislative competence of the State Government to issue Recruitment Rules under Article 309 of the Constitution of India. It is argued by the learned advocate that DIET is an institution under the Central Government Scheme and the same comes under entry No. 65 of List-I of the VIIth Schedule and Central Government only has authority to make law. State Government, according to Mr. Roy Chowdhury, has no legislative competence to touch the subject covered under the Central Government Scheme under any of the entries made either in the List-II or List-III of VIIth Schedule. But such argument does not appeal to us. In our view DIET is neither a central agency nor it is a central institution. Prior to 42nd Amendment Act, subject to entries 63 to 66 of List-I and entry No. 25 of List-III of VIIth Schedule, 'Education including Universities' was a state-subject. This led to much controversy as to scope of the State jurisdiction via-a-vis the union power under entry 63 to 66 to List-I of VIIth Schedule. This controversy has been obviated by transferring 'Education' entirely to List-Ill, Entry No. 25 - excluding subjects included in entries 63 to 66 of List-I. Accordingly, State Government is well within its power to enact law relating to educational matter as provided in entry 25 of List-III (concurrent list) of the VIIth Schedule.
36. In view of the discussion made above, we find sufficient merit in the submissions made by the learned Advocates of the appellants. We hold that State Public Service Commission is the appropriate authority to conduct selection process for appointment in the posts of Principals in the District Institutes of Education and Training (DIET).
37. The aforesaid three appeals are accordingly allowed. The impugned Judgment and order of the learned single Judge is hereby set aside.
Writ petition is also accordingly dismissed.
There will be no order as to costs.
Urgent xerox certified copy of the order, if the same is applied for, may be supplied to the learned advocates of the respective parties.
P.K. Deb, J.
38. I agree.
Later:
The learned advocate of the writ petitioner/respondents makes a prayer for stay of operation of the Judgment and order, which is refused by the Court.