THOKCHOM ANITA DEVI Vs. TAYENJAM HEROJIT

JUDGEMENT

(1.) THESE four miscellaneous applications being inter -connected with each other having been heard together are now being disposed of by this common order. We thought the controversy is no longer res integra. However, by the last two miscellaneous applications, we have been called upon to decide afresh the question of extending an interim order passed by this Court, which has ceased to operate by the operation of a constitutional provision like Article 226(3) of the Constitution, by adopting an ingenious argument that the applicants could not earlier move for vacation of the interim order as this Court was practically not functionally for the about three/four months after the passing of the interim order in question. We will consider the submission in due course. But first, the brief facts of cases. In WP(C) No.149 of 2012, there are some 56 writ petitioners, who challenged the legality of the selection process for appointment of Primary Teachers under the Sarva Shiksha Abhiyan (SSA) Scheme. As an interim order had been passed in WP(C) No.159 of 2012 staying the select list of the same recruitment process, this Court by the order dated 2 -4 -2012 also stayed the impugned select list therein until further order. In this writ petition, there are 1495 private respondents in addition to the State -respondents. In WP(C) No.159 of 2012, ten writ petitioners also challenged the constitutionality of the recruitment rules called 'The State Mission Authority, Sarva Shiksha Abhiyan (for short SSA) Upper Primary Teacher Recruitment Rules, 2011' and the corresponding recruitment rules for the Power Primary Teachers by arraigning 1076 as private respondents in addition to the State -respondents. As in the connected WP(C) No.87 of 2012, this Couret passed an interim order on 30 -3 -2012 staying the appointment of the private respondents, who are in the select list of Primary Teachers (Science & Mathematics) until further order.

(2.) ADMITTEDLY , both the interim orders dated 2 -4 -2012 and 30 -3 -2012 were passed by this Court ex -parte in so far as the applicants are concerned and, that too, without furnishing a copy of the writ petition and all documents in support of the plea for such interim order and without giving an opportunity of being heard to the private respondents of both the writ petitions. It is the contention of Mr. Rarry Mangsatabam, the learned counsel for the applicants/private respondents, that though the applicants have filed both the two miscellaneous application for vacating/modifying the ex -parte interim orders on 20 -6 -2012 and furnished copies of the two applications to learned counsel for the writ petitioners on the same day, this Court could not dispose of the their applications before the expiry of two weeks from the date on which the applications were received and, as such, both the interim orders stood vacated and should be so declared to be so by this Court under Article 226(3) of the Constitution. On the other hand, Mr. HNK Singh, the learned senior counsel for the writ petitioners, submits that as this Court was not functioning during the period in question, this Court was unable to dispose of the applications within the period stipulated by the Constitution, for which the writ petitioners can hardly be blamed and should not be victimized/penalized for no fault of theirs. According to the learned senior counsel, the provision of Article 226(3) should not be read literally or in a pedantic manner and must be construed in such a manner as to prevent gross injustice to the writ petitioners or, conversely, to subserve the interest of justice actus curiae neminem gravabit. He, therefore, contends that applications for vacation of the interim orders are liable to be dismissed on this ground alone.

(3.) A number of decisions have been cited by the learned counsel for the applicants to fortify his submissions. Suffice it to refer to the Full Bench decision of the Gujarat High Court in District Development Officer v. Maniben Virabhai, 2000 AIR(Guj) 255, which, with due respect, in our opinion, has correctly laid down the legal position. This is what it said: