Krushan Ch. Panda Vs. State of Orissa and ors.

Decided On : Jul-12-2007

Court : Orissa

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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. 
 -  Learned Counsel further submits that the averments made in the Writ Petition clearly indicates that the advertisement made for engagement of Sikshsya Sahayak (Annexure-3), which was under challenge in the Writ Petition, is not in conformity with the Scheme/Circular.',
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			'judgement' => '<p style="text-align: justify;">N. Prusty, J.</p><p style="text-align: justify;">1. This review application has been filed for review of Order-Dated 30.03.2007 passed by this Court in W.P.(C) No. 2283 of 2007. Heard Mr. K.K. Swain, Learned Counsel for the Petitioner.</p><p style="text-align: justify;">2. Mr.Swain, Learned Counsel submits that inadvertently he could not file the Government Circular dated 21.04.1997 relating to enhancement of the upper age limit for engagement of Sikshya Sahayak and if he would have filed the said Circular then the order passed in the Writ Petition would have been otherwise. Learned Counsel further submits that the averments made in the Writ Petition clearly indicates that the advertisement made for engagement of Sikshsya Sahayak (Annexure-3), which was under challenge in the Writ Petition, is not in conformity with the Scheme/Circular.</p><p style="text-align: justify;">3. As it appears from the prayer made in W.P.(C) No. 2283 of 2007, the Petitioner had not challenged the advertisement (Annexure-3) itself, which is said to be not in conformity with the Scheme/Circular dated 21.04.1997 relating to enhancement of upper age limit for engagement of Sikshya Sahayak. The Petitioner has also not prayed for quashing the advertisement (Annexure-3)in the Writ Petition. He has only challenged the Order Dated 12.02.2007 (Annexure-8) passed by the State Government in compliance with the Order Dated 03.01.2007 in W.P.(C) No. 16540 of 2006 filed by the Petitioner earlier along with the prayer for a direction to the Opposite Parties to relax upper age limit of the Petitioner. The Petitioner has not referred to the so-called Government Circular dated 21.04.1997 in his statement made in the Writ Petition. As such, he cannot develop his case, which was not there in the main Writ Petition, in an application for review by introducing new facts and documents. In this regard, the law is sell settled that in a review application if there is material error manifests on the face of the record, then only the Court can interfere with the matter. Jurisdiction of review of an order is very limited and it can never be exercised as an Appellate jurisdiction and also it can never be used as a routine procedure.</p><p style="text-align: justify;">4. In view of the above, since I do not find any illegality, irregularity or material error manifests on the face of the record, in the Order Dated 30.03.2007 passed in W.P.(C) No. 2283 of 2007, which is sought to be reviewed in this application, I am not inclined to entertain the same.</p><p style="text-align: justify;">5. The Review Application is accordingly dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'casenote' => ' - 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. 
 -  Learned Counsel further submits that the averments made in the Writ Petition clearly indicates that the advertisement made for engagement of Sikshsya Sahayak (Annexure-3), which was under challenge in the Writ Petition, is not in conformity with the Scheme/Circular.',
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		'judgement' => '<p style="text-align: justify;">N. Prusty, J.</p><p style="text-align: justify;">1. This review application has been filed for review of Order-Dated 30.03.2007 passed by this Court in W.P.(C) No. 2283 of 2007. Heard Mr. K.K. Swain, Learned Counsel for the Petitioner.</p><p style="text-align: justify;">2. Mr.Swain, Learned Counsel submits that inadvertently he could not file the Government Circular dated 21.04.1997 relating to enhancement of the upper age limit for engagement of Sikshya Sahayak and if he would have filed the said Circular then the order passed in the Writ Petition would have been otherwise. Learned Counsel further submits that the averments made in the Writ Petition clearly indicates that the advertisement made for engagement of Sikshsya Sahayak (Annexure-3), which was under challenge in the Writ Petition, is not in conformity with the Scheme/Circular.</p><p style="text-align: justify;">3. As it appears from the prayer made in W.P.(C) No. 2283 of 2007, the Petitioner had not challenged the advertisement (Annexure-3) itself, which is said to be not in conformity with the Scheme/Circular dated 21.04.1997 relating to enhancement of upper age limit for engagement of Sikshya Sahayak. The Petitioner has also not prayed for quashing the advertisement (Annexure-3)in the Writ Petition. He has only challenged the Order Dated 12.02.2007 (Annexure-8) passed by the State Government in compliance with the Order Dated 03.01.2007 in W.P.(C) No. 16540 of 2006 filed by the Petitioner earlier along with the prayer for a direction to the Opposite Parties to relax upper age limit of the Petitioner. The Petitioner has not referred to the so-called Government Circular dated 21.04.1997 in his statement made in the Writ Petition. As such, he cannot develop his case, which was not there in the main Writ Petition, in an application for review by introducing new facts and documents. In this regard, the law is sell settled that in a review application if there is material error manifests on the face of the record, then only the Court can interfere with the matter. Jurisdiction of review of an order is very limited and it can never be exercised as an Appellate jurisdiction and also it can never be used as a routine procedure.</p><p style="text-align: justify;">4. In view of the above, since I do not find any illegality, irregularity or material error manifests on the face of the record, in the Order Dated 30.03.2007 passed in W.P.(C) No. 2283 of 2007, which is sought to be reviewed in this application, I am not inclined to entertain the same.</p><p style="text-align: justify;">5. The Review Application is accordingly dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
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ORG: N. Prusty, Order-Dated, Court, Learned Counsel, Learned Counsel, the Government Circular, Circular, the Writ Petition, Learned Counsel, the Writ Petition, Scheme, the Scheme/Circular, Annexure-8, the State Government, the Order Dated, Government Circular, Court, Appellate, The Review Application

NORP: J.1

PERSON: W.P.(C, K.K. Swain, Swain, Sikshya Sahayak, Sikshsya Sahayak, W.P.(C, Sikshya Sahayak, the Order Dated, W.P.(C, W.P.(C

DATE: 2283 of 2007, 2283 of 2007, 12.02.2007, 2006, 2283 of 2007

CARDINAL: 21.04.1997, 21.04.1997, 21.04.1997

LOC: the Writ Petition