M SRINIVAS Vs. J N T UNIVERSITY

JUDGEMENT

(1.) This reference to the Full Bench has been made by Jeevan Reddi, J. (as he then was) and Syed Shah Mohd. Quadri, J. doubting the correctness of an earlier Full Bench decision in Sattemma vs. Vishnumurthy 1 in view of the decision of the Supreme Court in Shah Babulal Khimji vs. Jaber2. I he question is whether a Letters Patent Appeal lies to a Division Bench under Clause 15 of the Letters Patent (Madras) as applicable to Andhra Pradesh High Court, against an order of a learned single Judge refusing to review under O. 47 R. 4(1), CPC and whether O. 47, R. 7 (1) is a bar to the maintainability of such an appeal. The Division Bench thought that what the Supreme Court, they thought, stated in the above case in the context of the bar created in S. 104(2) C.P.C. to the maintainability of Letters Patent Appeals, equally applied to a similar bar created in Order 47, Rule 7(1), C.P.C. They also thought that the Full Bench in Sattemma's case (1 supra) had wrongly quoted what the Supreme Court had actually decided in another case in Union of India vs. Mohinder Supply Co.3. The Division Bench further observed that the decision rendered in Amruthappa vs. Abdul Sasool by one of us (Jagannadha Rao, J.), which was approved by a Division Bench in G. Seshamma Vs. G. Rajaratnam 5, hold ing that no Letters Patent Appeals lay in view of S. 104(2), C.P.C. against orders passed by learned single Judges of this Court in appeals against orders under S. 104(1) read with O. 43 R. 1, C.P.C. was correct. If a Letters Patent Appeal lies, the further question will be whether an order refusing to review an order dismissing a Writ Petition is a 'judgment' for purposes of Clause 15 of the Letters Patent.

(2.) Before going into the questions raised in the reference, it will be appropriate to state the fads. The writ petitioner passed the common entrance examination in 1988 conducted for admission to the B.E. course and claimed selection as a candidate belonging to Scheduled Tribe, Konda Kapu. He was selected and given a seat in B. E. (Electronics) subject to verification of his social status as a member of the Scheduled Tribe by the Director of Social Welfare. There was some litigation thereafter but the ultimate position was that the petitioner was given a show-cause notice by the said Director, the petitioner submitted his explanation and documentary evidence. Thereafter the Director passed an order dated 11-11-1988 holding that the petitioner does not belong to Scheduled Tribe. Even before that order was passed, the present writ petition was filed seeking admission to B.E. course and later on, the relief was amended in WPMP No. 22781/88 for quashing the said order of the Director dated 11-11-1988. The writ petition was dismissed on 3-8-1989 on merits. Then the petitioner filed a review petition Rev. WPMP No. 15100 of 1989 and the same was dismissed on merits by orders dated 17-9-89. It is against the said order that the present writ appeal is filed under Clause 15 of the Letters Patent when the objection as to its maintainability was taken by the 1st respondent, invoking O. 47, R. 7, CPC. Then the present reference was made.

(3.) Learned counsel for the appellant Sri Duba Mohan Rao contended that the decision of the Full Bench in Sattemma's case (1 supra) was correct, and that the right conferred by Cl. 15 of the Letters Patent was an independent right and was in no way affected either by the bar created in O. 47, R. 7, CPC or even the bar created in S. 104 (2) CPC. According to him the propositions of law ultimately listed by the Supreme Court in Shall Babulal Khimji's case (2 supra) should be treated as the law laid down therein and viewed in that light, both Amruthappa Vs. Abdul Rasool(4 supra) and G. Seshamma Vs. G. Rajaratnam (5 supra) were wrongly decided. He also relied upon the decision of the Supreme Court in State of U. P. Vs. Vijay Anand for holding that an order refusing to review an earlier order is a 'judgment' for purposes of Clause 15 of the Letters Patent. On the other hand, it is contended by the learned counsel for the 1st respondent, Sri Y. Suryanarayana and Sri Naik, the learned Government Pleader, that the above contentions cannot be accepted.