ORDER Binod Kumar Roy and Lakshmi Bihari, JJ.
1. This Special Appeal under Chapter VIII, Rule 5 of the Rules of the Court, was directed vide order dated 14.9.1999 by the Bench presided over by Hon'ble the Chief Justice to be listed before a Bench presided over by one of us (Binod Kumar Roy, J) today and that is how even though the office had issued notices of this Appeal and the Stay petition to respondent No. 1 by registered post with A/D fixing 21,9.1999 in regard thereto. It has been listed today before us.
2. The order under appeal passed in Civil Misc. Writ Petition No. 21685 of 1999 filed by respondent No. 1 herein, reads thus :
"Heard learned counsel for the parties.
Until further order I direct that petitioner shall get salary of L. T. Grade teacher and no recovery shall be made in respect of L. T. Grade which she has already received."
3. Perusal of the record discloses that when this appeal was listed before the Bench presided over by Hon'ble Chief Justice, the operation of the order of the learned single Judge was stayed vide order dated 18.8.1999.
4. Sri R. N. Singh, learned senior counsel appearing in support of this appeal as well as stay application, contended as follows : (i) Even though the learned Judge had heard the parties at length, without recording any reason whatsoever, either rejecting the submission made on behalf of the appellants and/or expressly accepting the submissions made personally by respondent No. 1 had incorrectly issued the mandamus commanding that respondent No. 1 shall get salary of L. T. Grade teacher and that no recovery shall be made in respect of that salary which she had already received. For the aforementioned infirmity alone the impugned order be set aside, (ii) The impugned order has the force of a mandatory injunction and the law being well settled that no interim relief can be granted by the High Court while exercising its jurisdiction under Article 226 of the Constitution of India which has the consequence of allowing the writ petition itself, and this legal position having been precisely violated and that, too, without fixing any date for hearing the writ petition, it is liable to be set aside.
He also contended that since the impugned order is a 'judgment' within the meaning of Rule 5, Section C. Chapter VIII, thus an appeal lies.
In support of his submissions, he placed reliance on the following decision : (i) U. P. Jr. Doctor's Action Committee v. Dr. B. Sheetal Nandwani, 1992 (1) JT (SC) 571 (ii) State of U. P. and others v. Committee of Management, 1994 (3) High Court Views Daily (Allahabad) 153 (iii) State of U. P. and another v. Smt. Dayavanti Khanna. 1994 ALR 140, (iv) Ramayan Rao and others v. Rama Shanker Prasad and others. 1993 (2) ACJ 938, and (v) State of U. P. and others v. Km. Renu Tiwari and others. 1993 (2) ALR 233.
5. Respondent No. 1, appearing in person, contended that (i) since the order impugned is an interlocutory one and, therefore, not a Judgment within the meaning of the Rule aforementioned and thus no appeal lies and consequently this appeal be dismissed as not maintainable, (ii) She had personally appeared before the learned Judge and prosecuted her case. The learned Judge, after being satisfied of her arguments showing apparent illegal, mala fide and unconstitutional acts of the appellants, had granted interim retief, after exchange of affidavits and after having heard Sri V. C. Misra, learned senior counsel who had entered appearance on behalf of the appellants herein, before him and in order to protect her constitutional rights enshrined under Article 16 of the Constitution of India.
5.1. After some time she expressed that if we so like, may ask any learned counsel to appear on her behalf. Accordingly, on our suggestion Smt. Sarita Singh, learned standing counsel of the State agreed to conduct the proceedings on her behalf, which she gladly accepted and we at 12:47 p.m. retired to our chambers to hear her further arguments.
5.2. After lunch Smt. Singh added further that Article 21 also comes into play inasmuch as even though respondent No. 1, who was illegally suspended moved this Court in Civil Misc. Writ Petition No. 18266 of 1997 in which an interim order was granted staying the operation of her suspension, and as despite that she was not paid anything, she took recourse to initiation of proceedings in contempt in which notices have been served on the appellants but cause has not been shown.
6. We also heard Sri H. R. Misra, learned standing counsel, who accepts notice on behalf of respondent Nos. 2 and 3 and submits that whatever orders which we will pass, that will be abided by respondent Nos. 2 and 3.
7. Mr. Singh, in reply, contended that the appeal is maintainable and the stay order passed by this Court in C.M.W.P. No. 18266 of 1997 stood automatically vacated as envisaged under Article 226(3) of the Constitution of India as despite filing of a petition for vacating the interim order of stay, it was not disposed of.
8. Having heard the learned counsel appearing on behalf of the parties, we proceed to dispose of this appeal, with their consent, at the stage of its admission itself waiving the requirement of the Rules clarifying that this, however, shall not be treated to be a binding precedent in future.
9. Having gone through the decisions cited at the Bar by Mr. Singh, which support his submissions, we fully agree with him that the appeal is maintainable and that the order in the form in which it has been passed should not have been passed without recording any reason, either prima facie accepting the arguments made on behalf of the respondent No. 1 herein and/or rejecting those expressly made on behalf of the appellants.
10. We do not want to record any finding in regard to the applicability of Article 226(3) of the Constitution of India in view of the fact that the said question is still subjudice either In the writ proceeding and/or in the proceedings in contempt.
11. Accordingly, we set aside the impugned order and remand the case (the interlocutory application filed by respondent No. 1 and other allied applications) to be disposed of afresh in accordance with law.
12. In the peculiar facts and circumstances, however, we make no order as to cost.
13. Before parting, however, we put on record the stand of Mr. R. N. Singh that without prejudice to further orders of this Court, which may be passed in the writ petition of Respondent No. 1 herein, within one week the appellants will submit the bills for payment of salary of respondent No. 1 though as C.T. Grade teacher. Taking in account this concession, we direct that if the Bills are submitted within one week, they shall be passed by the appropriate authority without any hitch or murmur clarifying that this will be only as an ad hoc measure and subject to the result of the connected writ petition and shall not mean any adjudication of the controversy raised by respondent No. 1 that in fact she was appointed as L T. Grade teacher and that from the audit report Itself it is clear that the appellants had manipulated and/or interpolated her appointment order showing it to be C.T. Grade teacher or by the appellants denying her allegation. We further clarify that withdrawal of the salary as a C.T. Grade teacher by respondent No. 1 therein will not mean that she has given up her claim as L T. Grade teacher which is required to be gone into in the pending writ petition.
14. We also request Hon'ble Chief Justice to consider the desirability of issuance of a direction to the office to place the writ petition of respondent No. 1 herein at the earliest before an appropriate Bench so that the controversies be set at rest at the earliest.
15. The office is directed to hand over a copy of this order by Saturday dated 18.9.1999 to Sri H. R. Misra, learned standing counsel for its intimation to and follow up action by respondent Nos. 2 and 3.