Soman and Others Vs. State of U.P. and Others - Court Judgment

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civil - reconsideration of matter - order 20 rule 3 of code of civil procedure, 1908 and article 226 of constitution of india - judgment delivered but not signed - whether matter can be put up for reconsideration where the subsequently engaged counsel did not obtain consent of previous counsel for appearing in the matter - order does not become illegal merely on the ground that consent of previous counsel not obtained - held reconsideration of order not justified as adequate reasons were not shown. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under rule 2 (f) of the cantonment fund servants rules, 1937 can file appeal under rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [deolali cantonment board v usha devidas dongre, 1993 mah. lj 74; 1993 lab ic 1858 overruled]. -- maharashtra employees of private schools (conditions of service) regulations act, 1978 [act no. 3/1978]. sections 9 & 2(21): jurisdiction of school tribunal whether a school run by cantonment board is not a recognised school within the meaning of section 2(21)? - held, the act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the act shall apply to all private schools in the state whether receiving any grant-in-aid from the state government or not. private school is defined in section 2(2) of the act as a recognised school established or administered by a management other than the government or a local authority. recognised means recognised by director, the divisional board or state board. thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four directors, the divisional boards and four state boards. the second part of this definition which comes after the comma refers to any officer authorised by director or by any of such boards. the question to be examined is whether school run by the cantonment board could be said to be one run by any such boards. a private school has to be recognised by the state or the divisional board or by any officer authorised in that behalf. when this phrase namely: recognised by any officer authorised by the director or by any such boards, is included in the latter part of section 2(21), such boards will be of the level of the state board or the divisional board. the boards referred to in the definition of the word recognised means the boards which deal with education at levels other than that of the level at which primary schools are operating. thus for being recognised, the school has to be recognised by the board and therefore, it has to be operating at a higher level i.e., secondary level. section 2(21) of the act defines the term recognised. the last clause therein is by any of such boards. the term such is defined in oxford dictionary as of the kind or degree indicated or implied by the context. therefore, the term such board will have to mean a divisional board of or the level of divisional board or the state board. the divisional board holds the examination and issues certificates after 10th and 12th standard examinations. the state board advises the state government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. the cantonment board does not discharge any of such duties nor is there any other board or body under the cantonments act discharging any such duties. the duties of the cantonment board are laid down in section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. the cantonment board is not required to enter into the area of secondary education. therefore, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. that being the position, it is not possible to accept it to be a recognised school for being a private school under the act. for the reasons state above, the school tribunal constituted under section 8 of the act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - once that stage is reached and the court pronounces the judgment, the same should not be reopened unless there be some exceptional circumstance or a review is asked for and is granted. a judgment pronounced in open court should be acted upon unless there be some exceptional feature and if there be any such, the same should appear from the record of the case. in this case there are no such exceptional circumstances or features for not signing the order already pronounced in open court.order1. this petition was listed for orders on 17-9-1991, when the case taken up, sri k. p. pandey, learned counsel for the petitioners, made an oral request that the petition may be dismissed to which sri m. d. misra, learned counsel for the respondent had no objection. earlier also the petitioners had moved an application on 23-8-1991 to dismiss the petition as not pressed. accordingly, the following order was dictated in open court :--'the petitioners have moved an application on 23-8-1991 to dismiss this petition as not pressed. sri. k. p. pandey learned counsel for the petitioner makes an oral prayer also that this petition may be dismissed to which sri m. d. misra learned counsel for the respondent has no objection. accordingly this petition is hereby dismissed as not pressed with no order as to costs.' dt. 17-9-1991. 2. after the said order was transcribed, mr. swaraj prakash, advocate, who was engaged by the petitioners earlier, appeared and made a request that the order may not be signed as sri k, p. pandey, advocate, who was engaged subsequently had no power to make such a request for dismissing the writ petition without his concurrence. on his request the order was not signed on 17-9-1991.3. sri s. prakash, and sri k. p. pandey learned counsel for the petitioners and mr. m. d. misra learned counsel for the respondents have been beard today.4. sri s. prakash has relied on a decision of this court in the case of r. n. singh v. state of u. p., 1988 all cj 48. in this case it has been held that where counsel subsequently engaged appears for the petitioner without obtaining prior consent from the previous counsel already appearing, an error is being committed by the subsequent counsel by violating rule 39 of the rules framed by the bar council of india. holding that because counsel's instructions were unilaterally terminated by clients without reasonable cause, the previous counsel was entitled to full fees settled with clients.5. this case is no authority on the point that if an order has been dictated in open court after hearing the counsel subsequently engaged it becomes illegal on the ground that prior consent of the previous counsel already appearing was not obtained.6. in the case of vinod kumar singh v. banaras hindu university, air 1988 sc 371, the supreme court has held (paras 7 and 9) :'when a judgment is pronounced in open court, parties act on the basis that it is the judgment of the court and that the signing is a formality to follow. ordinarily judgment is not delivered till the hearing is complete by listening to submissions of counsel and perusal of records and a definite view is reached by the court in regard to the conclusion. once that stage is reached and the court pronounces the judgment, the same should not be reopened unless there be some exceptional circumstance or a review is asked for and is granted. when the judgment is pronounced in court is not acted upon, certainly litigants would be prejudiced. confidence of the litigants in the judicial process would be shaken. a judgment pronounced in open court should be acted upon unless there be some exceptional feature and if there be any such, the same should appear from the record of the case.'7. in the instant case, the order was pronounced in open court and the writ petition was dismissed as not pressed. the order was transcribed but not signed for the reasons already given above. while the court has undoubted power to alter or modify a judgment, delivered but not signed, such power should be exercised judicially, sparingly and for adequate reasons. in this case there are no such exceptional circumstances or features for not signing the order already pronounced in open court. the ground that while making a lequest to dismiss the writ petition as not pressed, sri k. p. pandey, counsel engaged subsequently did not obtain prior consent of the previous counsel already appearing in the case is not such a circumstance which may justify reconsideration of the order and not to sign it. sri s. prakash, the previous counsel of the petitioners, has not urged that the petition has been got dismissed without the consent of the petitioners. he may seek his remedy for the professional misconducl, if any, on the part oi' sri k. p. pandey, advocate, at a proper forum but there are no reasons for not signing the order dictated in open court yesterday. accordingly, the said order which was pronounced and transcribed on the order sheet yesterday is being signed today.8. order accordingly.

Judgment:
ORDER

1. This petition was listed for orders on 17-9-1991, when the case taken up, Sri K. P. Pandey, learned counsel for the petitioners, made an oral request that the petition may be dismissed to which Sri M. D. Misra, learned counsel for the respondent had no objection. Earlier also the petitioners had moved an application on 23-8-1991 to dismiss the petition as not pressed. Accordingly, the following order was dictated in open Court :--

'The petitioners have moved an application on 23-8-1991 to dismiss this petition as not pressed. Sri. K. P. Pandey learned counsel for the petitioner makes an oral prayer also that this petition may be dismissed to which Sri M. D. Misra learned counsel for the respondent has no objection. Accordingly this petition is hereby dismissed as not pressed with no order as to costs.'

Dt. 17-9-1991.

2. After the said order was transcribed, Mr. Swaraj Prakash, Advocate, who was engaged by the petitioners earlier, appeared and made a request that the order may not be signed as Sri K, P. Pandey, Advocate, who was engaged subsequently had no power to make such a request for dismissing the writ petition without his concurrence. On his request the order was not signed on 17-9-1991.

3. Sri S. Prakash, and Sri K. P. Pandey learned counsel for the petitioners and Mr. M. D. Misra learned counsel for the respondents have been beard today.

4. Sri S. Prakash has relied on a decision of this Court in the case of R. N. Singh v. State of U. P., 1988 All CJ 48. In this case it has been held that where counsel subsequently engaged appears for the petitioner without obtaining prior consent from the previous counsel already appearing, an error is being committed by the subsequent counsel by violating Rule 39 of the Rules framed by the Bar Council of India. Holding that because Counsel's instructions were unilaterally terminated by clients without reasonable cause, the previous counsel was entitled to full fees settled with clients.

5. This case is no authority on the point that if an order has been dictated in open Court after hearing the counsel subsequently engaged it becomes illegal on the ground that prior consent of the previous counsel already appearing was not obtained.

6. In the case of Vinod Kumar Singh v. Banaras Hindu University, AIR 1988 SC 371, the Supreme Court has held (paras 7 and 9) :

'When a judgment is pronounced in open Court, parties act on the basis that it is the judgment of the Court and that the signing is a formality to follow. Ordinarily judgment is not delivered till the hearing is complete by listening to submissions of counsel and perusal of records and a definite view is reached by the Court in regard to the conclusion. Once that stage is reached and the Court pronounces the judgment, the same should not be reopened unless there be some exceptional circumstance or a review is asked for and is granted. When the judgment is pronounced in Court is not acted upon, certainly litigants would be prejudiced. Confidence of the litigants in the judicial process would be shaken. A judgment pronounced in open Court should be acted upon unless there be some exceptional feature and if there be any such, the same should appear from the record of the case.'

7. In the instant case, the order was pronounced in open Court and the writ petition was dismissed as not pressed. The order was transcribed but not signed for the reasons already given above. While the Court has undoubted power to alter or modify a judgment, delivered but not signed, such power should be exercised judicially, sparingly and for adequate reasons. In this case there are no such exceptional circumstances or features for not signing the order already pronounced in open Court. The ground that while making a lequest to dismiss the writ petition as not pressed, Sri K. P. Pandey, counsel engaged subsequently did not obtain prior consent of the previous counsel already appearing in the case is not such a circumstance which may justify reconsideration of the order and not to sign it. Sri S. Prakash, the previous counsel of the petitioners, has not urged that the petition has been got dismissed without the consent of the petitioners. He may seek his remedy for the professional misconducl, if any, on the part oi' Sri K. P. Pandey, Advocate, at a proper forum but there are no reasons for not signing the order dictated in open Court yesterday. Accordingly, the said order which was pronounced and transcribed on the order sheet yesterday is being signed today.

8. Order accordingly.