JUDGMENT Vineet Saran, J.
1. This writ petition was filed with the prayer for quashing the subsequent transfer order passed in the case of the petitioner. After issuing notices to the respondents, this Court passed an interim order dated 8.9.2005, which reads as under:
"Issue notice to the respondents fixing a date immediately after six weeks.
The petitioner as well as the respondent No. 5 are both the Account Clerks working in Nehru Yuva Kendra Sangathan, which is a Government of India undertaking. On their own request the respondent No. 5 was transferred from Ghazipur to Lucknow whereas the petitioner was transferred from Man to Ghazipur by order dated 13,7.2005 passed by the Zonal Director, Nehru Yuva Kendra Sangathan, Lucknow, respondent No. 3. In pursuance of the aforesaid order the petitioner was relieved from Mau on 15.7.2005 and he went to Ghazipur to join on 16.7.2005. However, although the respondent No. 5 had been relieved from Ghazipur but the petitioner was not permitted to join there. Meanwhile the respondent No. 3 passed a fresh order dated 16.8.2005 stating that the transfer of respondent No. 5 shall remain stayed till' April 2006 and by another order dated 28/29.8.2005 the petitioner was attached to Nehru Yuva Kendra Sangathan, Gorakhpur until further orders. The submission of the petitioner is that since the transfer of the petitioner as well as respondent No. 5 had both been made on their own request and the respondent No. 5 having been already relieved from Ghazipur, the petitioner ought to have been permitted to join at Ghazipur on 16.7.2005. It has further been contended that the impugned orders dated 16.8.2005 and 28/29.8.2005 have been passed for extraneous consideration and on the ; influence of respondent No. 5 and the petitioner who was working at Mau has consequently been attached to Gorakhpur for indefinite period instead of being permitted to join at Ghazipur in pursuance of initial transfer order dated 13.7.2005. Considering the aforesaid facts and circumstances of this case, the operation of the impugned orders dated 16.8.2005 and 28/29.8.2005 passed by the respondent No. 3 shall remain stayed and the petitioner shall he permitted to join in the office of Nehru Yuva Kendra Sangathan, Ghazipur as already directed by initial order dated 13.7.2005."
2. Respondent No. 5 has filed his recall application under Chapter XXJJ of the Rules of the Court 1952 read with Section 151 of the Code of Civil Procedure, with the prayer for recalling the interim order dated 8.9.2005 passed by me. The said application is supported by an affidavit of respondent No. 5. No counter affidavit to the averments made in the writ petition has been filed Because a recall application has been filed, this matter haws been listed before me as a tied up matte r.
3. The preliminary question which requires consideration is as to whether a recall application in such a case would be maintainable or not, as the option open to the applicant-respondent No. 5 was to file an application for vacating the exparte stay order alongwith a counter affidavit,
4. Sri A.K. Mehrotra, learned counsel appearing for the applicant-, respondent No. 5 has submitted that since by the interim order dated 8.9.2005 final relief had been granted, the same would amount to be a judgment and therefore the party aggrieved by such an order would have an option of either filing a recall application or stay vacation application or challenging the said order in special appeal. In support of his submission he has relied upon a Division Bench decision of this Court dated 12,7.2004 rendered in Special Appeal No. (555) of 2004, State of U.P. v. Smt. Meera Sankhwar. In the alternative, it has also been submitted that since the order has been obtained by fraud, as material information was concealed by the petitioner at the time of filing of the writ petition, this Court has jurisdiction to recall the order passed by it.
5. Having heard learned counsel for the applicant-respondent No. 5 and considering the provisions of law, in my view, in the facts and circumstances of this case, the recall application filed by the applicant-respondent No. 5 would not be maintainable and the proper course for 'him, available under law, would be to file an application for vacation of the stay order alongwith a counter affidavit.
6. The decision in the case of State of U.P. v. Smt. Meera Sankhwar (supra) would not apply to the facts of this case. In the said case an appeal had been filed challenging the interim order passed by the learned Single Judge and since the Court was of the opinion that the interim order passed actually amounted to grant of final relief, it was held that the special appeal against such an interim order would be maintainable.
7. Rule 12 of Chapter V of the Rules of Court, 1952 provides for filing of an application for review of a judgment. Rule 13 provides for filing subsequent application on the same subject matter. Rule relates to tied up cases. In all such cases any application filed would be heard by the same Judge who had passed the earlier order. The present application filed by the applicant-respondent No. 5 cannot be treated as a review application. Rule 14, which relates to tied up cases, reads as under:
"14. Tied up cases. - (I) A case partly heard by a Bench shall ordinarily be laid before the same Bench for disposal. A case in which a Bench has merely directed notice to issue to the opposite party or passed an ex parte order shall not be deemed to be a case partly heard by such Bench."
8. In the present case notice was issued to the respondents and the interim order had been granted. The order had not. attained finality, which could only be after any such order had been passed after hearing counsel for both the sides. Even assuming (without expressing any opinion) that any final relief had been granted by the aforesaid ex-parte interim order, the same may have trappings o. final judgment or order for the purposes of filing a. special appeal, bin the procedure of filing an application for recall cannot be permitted especially when the other procedure of getting the said ex-parte stay order vacated is provided by filing an application alongwith a counter affidavit. By filing a recall application under Section 151 the base gets tied up to this Bench, which is neither proper nor permissible under the Rules of Court.
9. The other submission of the applicant-respondent No. 5 since the said ex-parte interim order has been obtained by fraud and by not disclosing the material information in the writ petition and hence the application for recall can be filed by the respondents, also does not. have force. The decisions in the cases of R.K. Parasher v. Dinesh Kumar AIR 2000 S.C. 1168; Indian Bank v. Satyam Fibres (India) Pvt. Ltd. ; Vidyottama Gupta v. Km. Nirmala Gupta 1994 (2) Education & Service Cases 498 as have been relied upon by the learned counsel for the applicant-respondent No. 5 do not help him. All the said cases relate to filing of a recall or review application where the final orders had been passed by the Court.
10. It is true that in case if final order has been passed by a Court and subsequently it was found that fraud had been played upon the Court or that a party had not disclosed any material" information which had subsequently come to the knowledge of the other party, an application for recall or review of the said order can be filed in which case application has to be heard by the same Bench which had passed the earlier order. Such is not the position in the present case Here since exparte interim order had been passed by this Court, the proper course available for the applicant would be to file an application for vacation of the stay order, supported by a counter affidavit giving detailed reply to the contents of the writ petition. If such a procedure of filing application to recall exparte interim orders is permitted to be adopted by the respondents, then in every case the respondents can file such applications, instead of; filing an application for vacation of the stay order, and in all such cases the matter would get tied up to that Bench which had initially heard the matter and had granted the exparte interim order. This would frustrate the provisions of Rule 14 of Chapter V of the Rules of the Court which specifically provides that, a case shall not be deemed to be tied up to the Bench merely directing issue of notice to the respondents or granting an exparte interim order.
11. Thus, this application filed with the prayer for recall of the exparte interim order dated 8.9.2005 is being rejected on the aforesaid grounds, without expressing any opinion on the merits of the case. The applicant-respondent No. 5 shall be at liberty to file an application for vacation of the aforesaid exparte interim order alongwith a counter affidavit giving detailed reply to the averments made in the writ petition.