Pradipta Kumar Sahani Vs. State of Orissa and ors. - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - accordingly, the petitioner as well as opposite party no. he only served 1 year & 84 days & was discharged under rule 13(3) iv of the army rules on the ground of poor performance & the discipline was far from the requisite standard. 746 of 1995 as well as before this court in ojc no.sanju panda, j.1. the petitioner has filed this writ petition being aggrieved by the order dated 11.01.1999 passed by the state administrative tribunal in o.a. no. 746 of 1995.2. the factual backdrops of the case, as narrated in this writ petition, are as follows:in pursuance of an advertisement published on 3.9.1993 to fill up 87 posts of sub inspector police (general), the petitioner applied for the said post being an ex-serviceman. accordingly, the petitioner as well as opposite party no. 5 appeared in the interview conducted by the central selection board (in sort, 'csb') & a select list was published consisting of 87 candidates including 3 candidates, namely, biswanta rout, dibakar sahoo & puma chandra jena under ex-servicemen quota. orders of appointment were issued to them. biswanath rout & dibakar sahoo joined in the said post but puma chandra jena did not join. the petitioner came to know that some irregularities were committed by the csb in respect of selection of candidates in the ex-servicemen category, as the present opposite party no. 5 who was not coming within the category of ex-serviceman, his appointment was made under the said category. the petitioner also filed a representation to the president, csb-cum-dg & ig of police indicating the said facts in details. thereafter, he filed oa no. 796(c) of 1995 before the tribunal challenging the appointment of opposite party no. 5 which was disposed of on 12.12.1997 with a direction to the appointing authority to consider the representation of the petitioner. accordingly, the petitioner filed a fresh representation before the concerned authority indicating therein that the present opposite party no. 5 was not eligible to get the benefit of ex-serviceman. he also stated that the other candidates, namely, prahallad nayak & santosh kumar mishra were also not eligible to be considered for the vacancies. sri nayak did not appear before the csb. as sri mishra got an appointment in some other department & joined there, the petitioner being the next person in the select list was eligible for the said post. however, his representation was rejected by the authority on 18.2.1998 bypassing a non-reasoned order. therefore, the petitioner again approached, the tribunal by filing o.a. no. 496 of 1995.3. while the matter stood thus, the petitioner came to know that the present opposite party no 5 filed o.a. no. 746 of 1995 which was disposed of on 11.01.1999 wherein the tribunal held that on the basis of a certificate issued by the army headquarters through a.e.c, the petitioner was entitled to get the similar employment in any state including the state of orissa & in such matter there cannot be impediment by any state authority through any provision or act disentitling him from such civilian service & directed that his name needs to be included in the select list & his case is to be considered for the training in the p.t.c., angul for appointment to the post of sub-inspector of police. in o.a. no. 746 of 1.995 the present petitioner was not a party. when the said fact came to the knowledge of the petitioner, being aggrieved he filed review application no. 17 of 2003 before the t. ibunal. further, the petitioner also ascertained from the counter affidavit filed by the state in his earlier o.a. no. 746 of 1995 that the present opposite party no. 5 did not possess the requisite qualification to get a service of ex-army personnel as he did not serve the army for the statutory period as provided under army rules. he only served 1 year & 84 days & was discharged under rule 13(3) iv of the army rules on the ground of poor performance & the discipline was far from the requisite standard. the army discharge certificate produced by opposite party no. 5 in o.a no. 746 of 1995 on the basis of which the tribunal directed the authorities to include his name in the select list & recommend his name for training, was a forged & fake one. the petitioner thereafter on 10.12.2003 approached the secretary, rajya sainik board seeking specific information as to the genuineness of the discharge certificate furnished by opposite party no. 5. the secretary rajya sainik board issued a copy of the authentic certificate which reveals that the present opposite party no. 5 was not covered under the definition of the ex-serviceman (re- employment in central civil service & post) rules, 1979 & the discharge certificate produced by opposite party no. 5 was a fake & forged one. though the state government challenged the order dated 11.1.1999 passed by the tribunal in o.a.no.746 of 1995 in ojc no. 1441 of 2000, the said writ petition was dismissed on 23.2.2001 on the ground that there was nothing to be infejfered with the impugned order. therefore, the petitioner by abundant caution filed review petition no. 16 of 2004 seeking review of the said order dated 23.2.2001. in the meantime, opposite parties had filed their counter affidavit. the secretary rajya sainik board, opposite party no. 3 had also filed counter affidavit taking similar stand taken as of opposite party nos. 1 & 2. review petition no. 16 of 2004 was dismissed by this court on 17.5.2005 as not maintainable on the ground that the petitioner had not been delegated any power to file the review application on behalf of the other writ petitioners who had filed ojc no. 1441 of 2000.4. it is submitted by the learned counsel for the petitioner that since the review petition was not disposed of on merits, the said order was not coming within the doctrine of res judicata. during pendency of the writ petition, the petitioner under the right to information act obtained a copy of the letter dated 10.10.2006 from the secretary, rajya sainik board to the principal secretary to government home department alleging fraudulent appointment obtained by opposite party no. 5-ajay chandra muduli & further bringing to the notice of the government that the aforesaid aspect was not brought before the tribunal in oa no. 746 of 1995 as well as before this court in ojc no. 1441 of 2000.5. this court on 11.3.2008 directed to list this case after disposal of o.a. no. 694 of 1998 pending before the tribunal. the said original application was disposed of on 18.4.2008 by the tribunal with the following observation.xxx xxx xx3. a.c. muduli has not been impleaded in this application. so, i do not see here without dislodging a.c. muduli the applicant can enter into the vacancy caused by p.c. jena. accordingly, i dismiss this application as being devoid of merit. while so i am aware that since a case has been filed by the applicant before the hon'ble high court the respondents would have to act in accordance with the direction of the hon'ble high court.6. while the matter stood thus, on 2.9.2009 the present petitioner obtained another document i.e. letter dated 10.7.2009 of joint secretary to government, home department to dg & ig of police (admn.), orissa, cuttack under right to information act which was a communication made after crime branch enquired into the appointment of ajay chandra muduli, opposite party no. 5 on the basis of false army discharge certificate which reveals that opposite party no. 5 was not entitled to get relaxation under the category of ex- serviceman & deserves removal from service. but the said fact was not reflected in the order passed by the tribunal or by this court.7. above being the position, we are not inclined to pass any order in this writ petition at this stage. since the authorities have already taken steps regarding the false certificate submitted by opposite party no. 5, it is open to the authorities to take a decision in accordance with law as early as possible, preferably within a period of three months from the date of receipt of this order.8. with the aforesaid observation, the writ petition is disposed of.i.m. quddusi, a.c.j.i agree.