Union of India (Uoi) and ors. Vs. Dharmendra Sahu and anr. - 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. s. panda, j.1. in this writ application, the petitioners have challenged the order dated 17.1.2003 passed by the central administrative tribunal (hereinafter, referred to as the 'tribunal'), cuttack bench, cuttack, in o.a. no. 137 of 2002.2. the facts of the case are that : bhaskar sahu, who was the father of opposite party no. 1 died on 4.4.1998 while working as head postman at chhatrapur head post office. opposite party no. 1 applied for compassionate appointment. his name was approved by the circle relaxation committee and allotted to berhampur division in postal assistant cadre. at that time, there was no vacancy and the authority asked all the approved candidates to express their willingness for consideration for appointment in pursuance of ministry of personnel, pg and pension, department of personnel and training, new delhi in om no. 42012/4-2000-estt (d), dated 24.11.2000 communicated in dg posts letter no. 24-1-/99-spb.i, dated 8.2.2001. subsequently, the authority found that the chances for absorption in other ministries are remote since there are also not enough vacancies within the ceiling limit of 5% of vacancies falling under the direct recruitment quota and the practice of circulating names of the deserving applicants to other ministries/departments has been discontinued. keeping this in view, it was felt that an opportunity can be given to such wait listed candidates who are waiting for some time to be considered for vacant posts of gramin dak sevaks, if they are willing and eligible for the post. accordingly, opposite party no. 1 who is the applicant in the o.a. has given his willingness. hut the authority has given appointment to one debasis mohanty on 22.11.2001. hence, being aggrieved, the opposite party no. 1 approached the tribunal for redressal of his grievance and prayed for absorbing him in p.a. cadre on compassionate ground in berhampur division/army/postal service/or in other ministry/department within a stipulated period.3. the main objection of the present petitioners who were the respondents in the tribunal was that the opposite party no. 1 could pot be given a regular appointment for want of vacancies in the department clue to the guidelines/instructions within the stipulated quota of minimum 5% of vacancies falling under direct recruitment quota.4. the tribunal, after hearing both the parties allowed the o.a. as per annexure-a/1 and held that the only limitation put in annexure-1 was that the actual letter of appointment would be issued as soon as a vacancy would arise. if there was no vacancy, debasis mohanty could not have been accommodated therein in 2001 in preference to the petitioner who is a candidate of the approved list of 1998. from the facts and circumstance of the case, there is no doubt that the applicant has received an unfair deal from the respondents because no one from compassionate quota could have ever been appointed in berhampur division in preference to him and there is no doubt that appointing a person out of turn from bhadrak division was not only a breach of departmental rules but also smacks of favouritism.5. challenging the aforesaid conclusion of the tribunal in the present writ application, the learned counsel for the petitioner raised the following contentions:(a) rehabilitation scheme cannot be claimed as a matter of right.(b) second contention is, the tribunal has no jurisdiction to direct the petitioners to transfer a person from a particular post and appoint the opposite party no. 1 to that post.6. none of these contentions has any merit.the opposite party no. 1 has applied for appointment under rehabilitation assistance scheme in the year 1998. his name was approved by the circle relaxation committee and his willingness to join any post was obtained by the authority year to year and last on 8.2.2001. but the authorities have not given him any appointment and delayed the matter. due to the laches of the petitioners, the opposite party no. 1 who was otherwise eligible, should not suffer. so far as the other contention is concerned, the tribunal has only observed that the petitioners are to take action to absorb the opposite party no. 1 in army postal service if he is fit medically for that' purpose and in the process has given consequents directions. hence, both the contentions lack merit.7. the general principle for providing appointment under the rehabilitation assistance scheme is that at the time of death of the deceased it is to be seen as to who are the dependents and what are their income from all sources. the jerk in the family due to death of the bread winner can only be absorbed if a lump sum amount is made available to his family. at this juncture, if a lump sum amount is made available with a compassionate appointment, the grief stricken family may get some financial assistance to compensate the sudden loss of income. that benefit would be a replacement of the bread winner and compassionate appointment is meant to tackle such situation.8. in view of the above, the decision of the tribunal needs no interference by this court in exercise of its power under articles 226 and 227 of the constitution of india.9. the writ petition is accordingly dismissed. there will be no order as to costs.a.k. ganguly, c.j.i agree.