TMI Blog2022 (6) TMI 621X X X X Extracts X X X X X X X X Extracts X X X X ..... tory order and does not partake the character and status of an Order, as per Section 421 (1) of Companies Act, 2013. Further, the point of difference formulated by the Hon ble Members of the Tribunal on 11.02.2022 does not finally and conclusively determine the Right of Parties, in quite earnest, as opined by this Tribunal. Although, in the instant case, it is argued on the side of the Appellants that an Appeal lies against any Order passed by the Tribunal and therefore, the instant Company Appeal Nos. 67, 68 and 69 of 2022 are preferred before this Tribunal as against the Order dated 11.02.2022 made in CP Nos. 112, 113 and 114 of KB of 2021, because of the fact that the term, `any proceedings before the `Tribunal occurring in Section 420 (1) of the Companies Act, 2013, is wider than Judicial Proceedings, this Tribunal is of the earnest opinion that the said `impugned order dated 11.02.2022 of the Tribunal in CP Nos. 112, 113 and 114 of KB of 2021 cannot be termed by no stretch of imagination as an Order, in the teeth of culling out of the point of difference (between the Hon ble Two Members of the Tribunal) and formulating the same, is just a Ministerial Act (on Administrati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... VIND SRINIVASAN, SHRI. SHIV DAYAL KAPUR, SHRI. KRISHNA DAMANI, HARSH VARDHAN LODHA [Justice M. Venugopal] Member (Judicial) And [Dr. Ashok Kumar Mishra] Member (Technical) For the Appellants : Mr. Joy Saha, Senior Advocate, Mr. Avishek Guha, Mr. Rajat Gupta, Mr. Ishaan Saha, Mr. Chitresh Saroigi, Advocates for Appellant No. 1 Mr. Jishnu Saha, Senior Advocate, Mr. Soumya Dutta, Ms. Somali Mukhopadhyay, Mr. Ritoban Sarkar, Advocates for Appellant No. 2 For the Respondents : Mr. Arun Kathpalia, Senior Advocate, Mr. SaubhikChowdhury, Advocate for R1 Mr. P.S. Raman, Senior Advocate for R2, Ms. Maithreyi Sharma, Lakshana Viravalli, Mr. Madhurpeetha Elano, Mr. Saubhik Chowdhury, Advocates for R-2 Mr. Ramji Srinivasan, Senior Advocate, Mr. Saubhik Chowdhury for R-3 Mr. Ranjan Bachawat, Senior Advocate, Mr. Sayan Roy Chowdhury, Mr. Satyaki Mukherjee, Mr. Paritosh Sinha, Mr. Saubhik Chowdhury, Advocates for R4 Ms. Manju Bhuteria, Mr. Saubhik Chowdhury, Advocates for R5 Mr. Abhrajit Mitra, Senior Advocate, Mr. Debanjan Mandal, Mr. Kunal Vajani, Mr. Soumya Ray Chowdhury, Mr. Sarvapriya Mukherjee, Mr. Sanjiv Trivedi, Mr. Kunal Mimani, Mr. Iram Hasan, Mr. Kartikey Bhatt, Mr. Sanket ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d capacity as the Significant Beneficial Owners of the shares of the Respondent No.1 Company in each of the CPs, is at all maintainable before this Tribunal, in view of the fact that there is no registered shareholding of any of the Petitioner Companies in Respondent No.1 Company and the above was required to be communicated to the `Registrar , NCLT, New Delhi, for further action. 6. According to the Appellants, the following points are required to be added in addition to and modification of the point of difference earlier framed by the Hon ble Members of the Special Bench, `National Company Law Tribunal Kolkata, dated 11.02.2022 and they run to the following effect: (A) Whether the Petition filed by Insilco Agents Limited Ors. in C.P. No. 112/KB/2021, by August Agents Limited Ors.in C.P.No. 113/KB/2021 and Laneseda Agents Limited in C.P.No. 114/KB/2021 in their alleged capacity as the Significant Beneficial Owners of the shares of the Respondent No.1 Company in each of the CPs, is at all maintainable before this Tribunal, in view of the fact that there is no registered shareholding of any of the Petitioner Companies in Respondent No.1 Company. (B) When in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... KB/2021, CA No.92/KB/2021 and CA No.93/KB/2021. and resultantly, dismissed the CP No.112/KB/2021, CP No.113/KB/2021 and CP No.114/KB/2021. 9. However, the Hon ble Member (Technical) of `National Company Law Tribunal , Kolkata Bench, on 02.07.2021, opined a prima facie view that `the present `Petition is very much maintainable, because for granting injunction, the Courts or for that matter this `Tribunal cannot strictly go by the `Legislated Law , it has the discretion in the specific circumstances, and those circumstances do exist in the present case because there is a long history of litigation between the parties and there are orders subsisting and binding on this Tribunal. Unless and until the whole controversy between the `Member vs. `Significant Beneficial Owner , which for the present is a grey area and does not have so many binding judicial precedents, views and authorities of the higher courts clinching the issue, is settled in the final hearing of these petitions, the injunction Orders sought by the petitioner have to be granted, etc., and granted the `Interim Reliefs to the Petitioners in terms of prayers (a), (b) and (d) of the three petitions, Viz., CP/112/K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kata Bench, in its judgment and order dated 02.07.2021. First Appellant s Submissions: 12. According to the Learned Counsel for the 1st Appellant, the formulation of question made by the Hon ble Members of the `Tribunal dated 11.02.2022 is a `Judicial Order and as per Section 421(1) of the Companies Act, 2013, `any person aggrieved by the order of the Tribunal may prefer an Appeal to the `Appellate Tribunal . Furthermore, it is the stand of the 1st Appellant before this `Tribunal that the word occurring in Section 421(1) of the Companies Act, 2013, `an order includes `any order and, as such, the instant `Appeals are maintainable `Ex facie , before this `Tribunal . 13. According to the Learned Counsel for the 1st Appellant, the 1st Appellant is denied of his reasonable and legitimate right to ventilate his grievance in an effective and efficacious manner because of the fact that the point of reference made by the Hon ble Members dated 11.02.2022 is in a limited and restricted fashion. 14. The Learned Counsel for the 1st Appellant refers to Section 98 of the Civil Procedure Code, `Decision where `Appeal heard by `two or more Judges , which runs as under: ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n , factually `incorrect or `legally `an inform one . 17. The Learned Counsel for the 1st Appellant adverts to the `Order of this `Tribunal dated 20.11.2017 in Pankaj Khandelia Another V Khandelia Oi and General Mills Private Limited Ors. vide Company Appeal (AT) No. 271 of 2017 and Company Appeal (AT) No. 385 of 2017, reported in (2017) SCC Online NCLAT 593, whereby and whereunder at paragraphs 10 to 15, it is observed as under: 10.``Section 419 of the Companies Act, 2013 deals with the 'Benches of the Tribunal'. Sub-Section (5) therein stipulates the manner in which the case is to be decided in case of difference of opinion on any point or points, as quoted below: 419. Benches of Tribunal __ (1) ..... (5) If the Members of a Bench differ in opinion on any point or points, it shall be decided according to the majority, if there is a majority, but if the Members are equally divided, they shall state the point or points on which they differ, and the case shall be referred by the President for hearing on such point or points by one or more of the other Members of the Tribunal and such point or points shall be decided according to the opinion o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be guided by the principles of natural justice, and, subject to the other provisions of this Act [or of the Insolvency and Bankruptcy Code, 2016] and of any rules made thereunder, the Tribunal and the Appellate Tribunal shall have power to regulate their own procedure. .... 14. The basic principle of Justice Delivery System is that a Court or a Tribunal, while passing an order is not only required to give reasonable opportunity of being heard to the parties but is also required to give good reasons based on record/evidence. It is also required to show that the order is passed after being satisfied itself on issues raised by the parties. 15. In Indian Judiciary, Justice Delivery System including provisions of Companies Act, 2013, the Tribunal is required to give hearing in an open Court. Once such hearing is given in the open Court, the Court or the Tribunal, while passing an order is also required to pronounce order in the open Court. 18. The Learned Counsel for the 1st Appellant contends that the `Reference must include `All Points of Differences and it cannot be a `selective one . In fact, it is submitted on behalf of the 1st Appellant that the `National Compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the statute under which the enquiry is held. The old distinction between a judicial act and an administrative act has withered away. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. Expression 'civil consequences' encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations, and non-pecuniary damages. In its wide umbrella comes everything that affects a citizen in his civil life. 20. Natural justice has been variously defined by different Judges. A few instances will suffice. In Drew v. Drew and Lebura (1855(2) Macq. page 8, Lord Cranworth defined it as 'universal justice'. In James Dunber Smith v. Her Majesty the Queen (1877-78 (3) AC, p 623) Sir Robort P. Collier, speaking for the judicial committee of Privy council, used the phrase 'the requirements of substantial justice', while in Arthur John Specman v. Plumstead District Board of Works (1884-85, AC P 240), Earl of Selbourne, S.C. preferred the phrase 'the substantial requirement of justice'. In Vionet v. Barrett (1885(55) LJRD P 41), Lord Esher, MR defined natural justice a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a pars' is used, meaning very much the same thing. A corollary has been deduced from the above two rules and particularly the audi alteram partem rule, namely 'qui aliquid statuerit parte inaudita alteram actquam licet dixerit, haud acquum facerit' that is, 'he who shall decide anything without the other side having been heard, although he may have said what is right, will not have been what is right' (See Bosewell's case (1605) 6 Co.Rep. 48-b, 52-a) or in other words, as it is now expressed, 'justice should not only be done but should manifestly be seen to be done'. Whenever an order is struck down as invalid being in violation of principles of natural justice, there is no final decision of the case and fresh proceedings are left upon (sic open). All that is done is to vacate the order assailed by virtue of its inherent defect, but the proceedings are not terminated. 21. The Learned Counsel for the 1st Appellant cites the decision of the Hon ble Supreme Court in Shankarlal Aggarwal and Ors. V Shankarlal Poddar and Ors., reported in AIR (1965) Supreme Court at Page 507, wherein at paragraphs 11 to 13, it is observed as under: 11.``This inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore the contention of the respondent were accepted it would mean that in the case of orders passed by the District Courts appeals would lie only against what would be decrees under the Code as well as appealable orders under Section 104 and 0.43. r.1 and very few of the orders passed in the Courts of the winding up would fall within these categories. On the other hand, the expression judgment used in cl. I 5 is wider. The learned judge pointed out that the position would therefore be that a decision rendered or an order passed by a District Court would not be appealable because the conditions laid down by the Civil Procedure Code were not satisfied, yet an exactly identical order or decision by the judge of the High Court would be appealable because it might constitute a judgment within cl.15. The learned judge therefore rejected a construction which would have meant that the same orders passed by District Courts and by a Single judge of a High Court would be subject to different rules as to appealability. The learned judge observed that the right of appeal was conferred by the 1st limb of Section 202 and that the second limb merely dealt with the procedural limitations of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section after enumerating certain orders which are made appealable, contains a residuary clause (i) conferring a right of appeal in respect of any order made under rules from which an appeal is expressly allowed by rules -and the rule referred to is 0. 43. r. 1. Now under s. 122 of the Code each of the High Courts is vested with power to make rules, to annul, alter or add to all of any of the rules in the 1st Schedule . In exercise of this power High Courts have in respect of the Civil Courts subject to their appellate jurisdiction made alterations and additions in the rules including those in 0. 4 3. r. 1 . either extending or restricting the right of appeal conferred by the Code as originally enacted. The question that arises on this state of circumstances is whether the legislature, when it enacted Section 202 of the Companies Act, intended that the right of appeal should vary from State to State depending on the particular rule in force in that State by reason of the exercise by the High Court of its power under Section 122, Civil Procedure Code. 13. The anomaly created by the construction urged by learned Counsel for the appellant does not stop here. Even taking the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SCC Online Del 3889, wherein at paragraphs 9 to 14, it is observed as under: 9. That judgment and order do not mean the same thing is obvious from the fact that the CPC itself defines them separately. Judgment has been defined under Section 2(9) of CPC as below: judgment means the statement given by the Judge of the grounds of a decree or order. while an Order has been defined under Section 2(14) of CPC as under: - order means the formal expression of any decision of a Civil Court which is not a decree. 10. It is, therefore, clear that an order is something that does not result in a decree or, therefore, a final conclusion of a matter, though a judgment may include an order . The term judgment indicates a judicial decision given on the merits of the disputes brought before the Court. It determines the rights of the parties finally. In contrast, an order may not be so but could be an interlocutory one, if it does not determine or decide the rights of the parties once and for all. Thus, there are, broadly speaking, two kinds of orders , one, that is in the nature of a final order and the other not determining the main issue with a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Supreme Court also discussed intermediary or interlocutory judgment and order, again in order to answer whether a Letters Patent Appeal was maintainable. Depending on the effect of the decision taken by the trial judge, the court held that if such an order vitally affected a valuable right of the defendant, it would be treated as a judgment , such as, where leave to defend is declined. However, where the order, though affecting the plaintiff adversely, does not cause him direct or immediate prejudice, but only remote prejudice, or damage was of a minimal nature as his rights to prove his case and show the defence to be false still remained, the order would not partake of the characteristics of a judgment . 13. It was further observed that not every interlocutory order can be regarded as a judgment , as there were many orders that were routine in nature, such as, condonation of delay in filing the documents, orders refusing adjournment, orders refusing to summon additional witness, etc., which may involve exercise of jurisdiction in respect of a procedural matter against one party or the other. 14. On the other hand, interlocutory orders which would have the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the attributes of character of finality so as to be judgments within the meaning of clause 15 of the letters patent and hence, appealable to a larger bench. (Para 78) There is also no force in the contention that while Order 43 makes provision for appeal from one court to another, it is not intended to apply to an appeal from one Judge of the High Court to a Bench of the same Court. If Order 43 Rule 1 were to apply to orders passed by the Single Judge (trial Judge), the order would be one passed by only one Judge of the High Court and, therefore, in the context of the original jurisdiction exercised by a Single Judge of the High Court, the appellate jurisdiction would lie with the Division Bench as contemplated by the letters patent and the Rules framed by the High Court. (Paras 64 and 65) The scope of Sections 96 to 100 CPC is quite different from that of Section 104 which is couched in very general terms and cannot be limited to appeals against orders passed by the courts contemplated in Section 96 to 100. Moreover, Section 104 does not deal with appeal against a decree at all but provides a forum for appeal against orders under Order 43, Rule 1 which are ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcise of framing the `points of difference should not be deemed to be `an Order . 28. Yet another argument advanced on behalf of the 1st Appellant is that the `Tribunal considered `impugned order dated 11.02.2022 in CP Nos. 112, 113 and 114/KB of 2021 (formulation of `point of difference ) to be `an Order , it was duly communicated to the parties in accordance with Section 420 (3) of the Companies Act, 2013. 29. The Learned Counsel for the 1st Appellant submits that even pending `Adjudication on issues of `Maintainability and `interim relief can be granted, as per the `settled proposition of law and the `contra plea that there can be no question of `granting interim relief before an `Adjudication of an issue , whether or not the `Petitions are maintainable is an erroneous one. 30. The Learned Counsel for the 1st Appellant cites the decision of the Hon ble Supreme Court in the matter of Tayyabhai M. Bagasarwalla and Ors. V Hind Rubber Industries Pvt. Ltd., and Ors., reported in AIR 1997 SC 1240, wherein at paragraphs 15 and 16, it is observed as under: 15.`` The next thing to be noticed is that certain interim orders were asked for and were granted by the Civi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e jurisdiction. 16. According to this section, if an objection is raised to the jurisdiction of the court at the hearing of an application for grant of, or for vacating, interim relief, the court should determine that issue in the first instance as a preliminary issue before granting or setting aside the relief already granted. An application raising objection to the jurisdiction to the court is directed to be heard with all expedition. Sub-rule (2), however, says that the command in sub-rule (1) does not preclude the court from granting such interim relief as it may consider necessary pending the decision on the question of jurisdiction. In our opinion, the provision merely states the obvious. It makes explicit what is implicit in law. Just because an objection to the jurisdiction is raised, the court does not become helpless forthwith - nor does it become incompetent to grant the interim relief. It can. At the same time, it should also decide the objection to jurisdiction at the earliest possible moment. This is the general principle and this is what Section 9-A reiterates. Takes this very case. The plaintiff asked for temporary injunction. An ad-interim injunction was gran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration of grant of `interim relief by the Hon ble third Member and in the event of refusal in granting any `interim relief as fresh reference will have to be made before the Hon ble third Member to consider the question of `interim relief , which will be a `waste of judicial time leading to `plurality and `duplicity of `judicial proceedings . 32. The Learned Counsel for the 1st Appellant points out that because of the specific view of the Hon ble third Member of the `Tribunal dated 20.09.2019 that only `specific points referred can be heard by her, it is imperative that the `points of reference be made `wide to include every `point of difference both on `Facts and `Law . 33. The Learned Counsel for the 1st Appellant submits that the Hon ble Judicial Member had rejected the `prayer for the `grant of interim relief and the said rejection was not based on `merits but because of non-maintainability of the `Company Petition itself and the said rejection will constitute a `point of difference . 34. The Learned Counsel for the 1st Appellant forcefully submits that `if the issue `Are the company petitions maintainable and if so, are the petitioners entitled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the course of the administration. It does not on that account follow that the determination of the particular amount due from a debtor who is brought before the Court is an administrative order. It is perhaps not possible to formulate a definition which would satisfactorily distinguish, in this context, between an administrative and a judicial order. That the power is entrusted to or wielded by a person who functions as a Court is not decisive of the question whether the Act or decision is administrative or judicial. But we conceive that an administrative order would be one which is directed' to the regulation or supervision of matters as distinguished from an order which decides the rights of parties or confers or refuses to confer rights to property which are the subject of adjudication before the Court. One of the tests would be whether a matter which involves the exercise of discretion is left for the decision of the authority, particularly if that authority were a Court, and if the discretion has to be exercised on objective, as distinguished from a purely subjective, consideration, it would be a judicial decision. It has sometimes been said that the essence of a judi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... do not mean the same thing is obvious from the fact that the CPC itself defines them separately. Judgment has been defined under Section 2(9) of CPC as below: judgment means the statement given by the Judge of the grounds of a decree or order. while an Order has been defined under Section 2(14) of CPC as under: - order means the formal expression of any decision of a Civil Court which is not a decree. 10. It is, therefore, clear that an order is something that does not result in a decree or, therefore, a final conclusion of a matter, though a judgment may include an order . The term judgment indicates a judicial decision given on the merits of the disputes brought before the Court. It determines the rights of the parties finally. In contrast, an order may not be so but could be an interlocutory one, if it does not determine or decide the rights of the parties once and for all. Thus, there are, broadly speaking, two kinds of orders , one, that is in the nature of a final order and the other not determining the main issue with any finality. If such orders have been passed to help with the progress of the case, they may dispose of a specif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whether a Letters Patent Appeal was maintainable. Depending on the effect of the decision taken by the trial judge, the court held that if such an order vitally affected a valuable right of the defendant, it would be treated as a judgment , such as, where leave to defend is declined. However, where the order, though affecting the plaintiff adversely, does not cause him direct or immediate prejudice, but only remote prejudice, or damage was of a minimal nature as his rights to prove his case and show the defence to be false still remained, the order would not partake of the characteristics of a judgment . 13. It was further observed that not every interlocutory order can be regarded as a judgment , as there were many orders that were routine in nature, such as, condonation of delay in filing the documents, orders refusing adjournment, orders refusing to summon additional witness, etc., which may involve exercise of jurisdiction in respect of a procedural matter against one party or the other. 14. On the other hand, interlocutory orders which would have the effect of depriving a party of a valuable right, though purely discretionary, may contain attributes and charac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fer, however, may be because the date of the pronouncement of judgment co-incidentally was the last working day of one of the Hon'ble Judges, as such, they probably did not get time to frame the points of difference. JUDICIAL PRECEDENTS: 50. Relevant excerpts of the judicial precedents are being extracted to find out whether any of the decision deals with the present situation or otherwise applies to the facts and circumstances or not. 51. In Mussammat Sardar Bibi v. Haq Nawaz Khan another, AIR 1934 Lah 371, at page 379, the full bench of Lahore High Court observed, In the case before us the points of difference between the learned Judges of the Division Bench have not been stated expressly and to this extent the reference is defective. These points are however apparent from their respective judgments, and counsel for both sides agreed before' us that it was unnecessary to remit the case to the Division Bench to have the question formally drawn up. Accordingly at the commencement of the hearing, the points requiring decision by the Bench were formulated by us, with the concurrence of both parties, as follows: 52. In Firm Ladhuram Rameshwardayal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... int' on which the Judges are divided in opinion. However, the third Judge cannot 'decide' that point. (He has to leave to the Division Bench to 'decide' the point as directed under Clause 26 of the Letters Patent). Nor can he enter into any other point on which the Judges of the Division Bench were not divided in opinion. If the third Judge expresses his opinion on any other point or finally decides the case as a whole, the latter part of his opinion (be it styled as 'order' or 'judgment') has to be ignored as without jurisdiction . After the third Judge has recorded his opinion; the case must be laid before the Division Bench for deciding the point or points which were referred to the third Judge according to the method provided by Clause 26 of the Letters Patent and it is at this stage that a Division Bench will finally decide the case before it. It is not the requirement of law that the case must be laid before the same Division Bench which first heard it, after it is returned by the third Judge. When one of the Judges constituting the Division Bench which first heard the case, has retired or is not otherwise available, the Chief Justice can c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , read with Clause 26 of the Letters Patent. 56. In DLF Universal Ltd v. State Bank of India, 2012 SCC OnLine Guj 972, Ld. Single Bench of Gujrat High Court observed that in case of difference of opinion, the point of difference should be decided following the procedure referred in S. 98 of the Code of Civil Procedure and Clause 36 of the Letters Patent Appeal, thus, held the reference as incompetent, and since one of the Hon'ble Judges stood transferred, referred the matter to Hon'ble Acting Chief Justice for considering whether the entire matter needed rehearing. 57. In Amarendra Arya v. State of Bihar others, LPA No. 1469 of 1995, decided on 25 Sep 2019, the full bench of Patna High Court observed, 60. In view of the aforesaid, it is very much clear that in the event of difference of opinion between the members of the Division Bench, the Division Bench will record its difference of opinion and on the discretion of the Chief Justice the matter will be referred to the third Judge, either Single or Division Bench and the third Judge will confine his opinion on the point which has been referred and will not embark on the point or points not referred, but in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use 26 of the Letters Patent. All other decisions mentioned above were on entirely different circumstances and would not apply in the circumstances and factual matrix of this case. 59. None of the decisions mentioned above state what prejudice would it cause if the third Judge also culls out the points. What difference would it actually make if another Division Bench is constituted and they state the points of difference? Authors of Letters Patent did not contemplate the current situation. Moreover, culling out the points of difference is not a herculean task but just a ministerial act, that even the third Judge can also do very comfortably. Lex necessitatis est lex temporis i.e. instantis - In a case of extreme necessity everything is common. The law of necessity is the law of time, that is time present. 61. Now, culling out the points of a difference does not require analysis and forming an opinion on the matter's merits. Hypothetically, even if this job was to be done by a new division bench, this Court can also do the same. In the Application filed under Section 26 of Letters Patent, even the applicant has thrown light on some points of difference. The Doctrine o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... procrastinated period of time, since the apt contentious inter se seniority, becoming clinched or settled. Obviously, hence, when the afore assigned reason, by the learned Single Judge, is, also necessarily entwined with the merits, of, the case, (b) given his necessarily making a concomitant conclusion, vis-a-vis, the contentious inter-se seniority, amongst, the aggrieved appellants, and, the private respondents, hence, becoming finally rested or settled, (c) whereas, for, the reasons to be assigned hereinafter, the contentious inter se seniority amongst them, is, yet in a state of flux or is yet to be formidably clinched, hence, thereupon, it is deemed fit to also decide, the, entire lis engaging the parties at contest, hence, on merits. (d) The further reason for this Court, becoming constrained, to, allow the writ petitions, after, its proceeding, to delve deep into the merits, of, the case, and, to thereafter also obviously make a complete adjudication, vis-a- vis, the contentious competing claims, of, the contesting litigants concerned, is, sparked, by, the factum, that, the Hon'ble Apex Court in Roma Sonkar Vs. Madhya Pradesh S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owing terms: As the hearing was in progress, Mr. Rajiv 7. The concurrent predominant reason, which prevailed, upon, the learned Single Judge, and, also, upon, the, Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge, for, both making a conjoint verdict, upon, the afore LPAs, is, grooved, (ii) upon, a decision of the Hon'ble Apex Court rendered in a case titled as B.S. Bajwa and another v. State of Punjab and others, reported in AIR 1999 SC 1510, wherein, the Hon'ble Apex Court, has expostulated, that, any belated endeavours, as, made by the aggrieved, in, challenging, the, drawing(s), of, seniority lists, cannot be countenanced, when hence it would untenably beget disturbing(s) or unsettling(s), of, a clinched or a finally rested controversy. Further thereonwards reliance, is, also conjointly placed, by the learned Single Judge, and, by one of us (Hon'ble Mr. Justice Dharam Chand Chaudhary, J.), upon, a Sharma, learned Senior counsel appearing for respondent o. 2 submitted that his client has issued communication No. HHC/GAZ/10- 17/90-Vol-II-1933-35 dated 28th January, 2005, (which is hereby taken on rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'ble Apex Court, rendered in a case titled, as, Bimlesh Tanwar vs. State of Haryana and others, reported in (2003)5 SCC 604, (i) wherein, it has been propounded, vis-a- vis, claims, of, seniority not being a fundamental right, rather being merely, a, civil right. Furthermore, it has also been expostulated therein, that, inter se seniority, of, all candidates, who are appointed, on the same day, would be dependent, on, the rules governing the same, and, that in the absence of rules governing seniority, an executive order,may be issued, to, fill up the gap. 8.However, the decision of the Hon'ble Apex Court, as, rendered in a case titled, as, B.S. Bajwa and another v. State of Punjab and others, and, reported in AIR 1999 SC 1510, for, hence detailed/ad nauseam reasons assigned hereinafter, is, applicable, only, upon, the contentious seniority becoming finallysettled or it becoming conclusively rested, (a) and, obviously it becomes inapplicable, as hereat, upon, the contentious seniority list(s), as prepared, vis-a-vis, the contesting litigants concerned, being, yet in a state of flux, or it remaining unsettled, rather, it remaining not finally clinched. Moreover, the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t only through the mechanism of a written representation. No such person shall have any right of a personalhearing. The High Court on its administrative side shall take a final decision in the aforesaid matter on its merits and in accordance with law as expeditiously as possible and in any case by 31st July, 2005. If anyone feels aggrieved by the decision of the High Court, it shall be open to such person to approach this Court againon the judicial side. In view of the aforesaid order, no earlier representation filed on the subject by any one shall be entertained. All such earlier representations shall be consigned to records without taking any action thereupon. Since this Writ petition is being disposed of as settled in the light of the aforesaid agreement between the parties, we wish to clearly place on record that we have not gone into any question relating to the merits of the controversy between the parties nor have expressed any opinion with regard thereto. All questions and issues are left open. 26. Consequent upon this order, representations were made by the members of H.P. Subordinate Judicial Service including the Judicial Officers similarly situated to the petitioners, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt, rendered in a case titled as K.R. Mudgal and others vs. R.P. Singh and others, reported in AIR1986 SC 2086, besides also from a decision, of, the Hon'bleApex Court rendered, in, a case titled as Shiba Shankar Mohapatra and others vs. State of Orissa and others, reported in (2010)12 SCC 471, (i) wherein, it has been expostulated, that, the controversy appertaining to the seniority, of,the litigants therein, was amenable rather for declinings, as, the apposite agitations happened, rejection was also conveyed to the representationists. Though, in the order ibidpassed in CWP No. 61 of 1999, liberty was granted to the representationists in case their representations rejected by the High Court on administrative side, however, they opted for not challenging the order of rejection of their representation(s). hence, at a belated stage, and, further that the Courts exercising public law jurisdiction, rather not encouraging agitations, of, stale claims, especially where the right of third parties hence crystallise, in, the interregnum. However, with all firmness, and, formidability, the afore verdicts are again applicable only qua sett ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 334 of 2014 in 10. The Hon'ble Apex Court, in, a verdict rendered in a case titled, as, Direct Recruit Class II Engineering Officers' Association vs. State of Maharashtra and others, reported in (1990)2 SCC 715, has in paragraphs No. 47 (D) and 47(E) thereof rather held:- 47. To sum up, we hold that:- ................ Writ Petition (Civil) No. 1022 of 1989, as it appears to us from the materials on record, relates to the disputes inter se between the individuals/groups, which, in our considered view, would not be appropriate for determination by this Court in an I.A. (No. 334 of 2014) filed in W.P. (C) No. 1022/1989 (All India Judges Association and others v. Union of India and other). We, therefore, decline to entertain the I.A. any further leaving the parties to have resort to such remedies as may be available to them in law. I.A. No. 334 of 2014 in Writ Petition (Civil) No. 1022/1989 is disposed of in the above terms. It is thus seen from the order ibid that the apex Court has declined to entertain the interim application keeping in view the disputes inter se between the individuals/groups raised therein and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g vigour, dependence, is, made thereon, by, the private respondents concerned, to, contend qua even, if their induction into service, is, in excess, of, the afore norms, as, become prescribed, in, a case titled as All India Judges' Association Ors vs. Union of India, reported in (2002)4 SCC 247, yet they are not amenable, for, theirs being pushed down below, the, appointees drawn from other valid source(s), hence subsequent, to their induction into service. However, even the afore dependence, as, made thereon, is, rendered extremely frail, and, also becomes completely enfeebled, through, the imperative diktat rendered, by, the Hon'ble Apex Court, in, a case titled as All India Judges' Association Ors vs. Union of India, reported in (2002)4 SCC 247, besides, through, categorical directionsrendered, upon, the High Court, of, H.P., by the Hon'ble Apex Court, in, IA No. 17/2011 in IA No.244/2009 and IA Nos. 1 2 in IA Nos. 17/2011 in IA No.244/2009 and IA Nos. 334/2014, IA Nos. 335, 336, 337, 338/2015 and IA No. 339 341/2016, on 28.4.2016, the relevant portion whereof reads, as, under:- In as much as, 34 point roster having beendrawn by the High Court and the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s vs. Union of India, reported in (2002)4 SCC 247, to, hence for therefrom, it making determination(s), of, the inter se seniority, of, the inductees, into, the rank or post of Addl. District Judge(s)/District Judge(s), and, who become drawn thereinto, from, the afore contemplated streams or channels. The inviolability of the afore imperative diktat, as afore stated, has been acquiesced, to be breached, in, the afore report, of, Hon'bleJudges Committee, and, when rather in pursuance thereto, the other Two Hon'ble Judges Committee of this Court, comprising Hon'ble Mr. Justice Sandeep Sharma, J., and, Hon'ble Mr. Justice Vivek Singh Thakur, J., has, in completest deference thereto, hence, made anadnauseam prescription, for, determining or settling the inter se seniority, of, the inductees, to, the posts of Addl. District Judge(s)/District Judge(s), (i) whether appointed, from, the direct recruits, (ii) or from amongst the Civil Judges (Senior Division), (iii) besides from the category(ies) appertaining, to, the Limited Competitive Examination, (iv) thereupon, the afore report, of, the abovesaid committee, does warrant, qua hence the deepest deference being meted there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t has been noticed in the report that after coming into force 2004 Rules, respondent No. 2 is still following vacancy based roster i.e. the rotation of the vacancies in the ratio of 2:1:1 amongst promotee, selection made by limited competitive examination and direct recruitment from amongst the practicing Advocates. The Judges committee, therefore, had every suspicion qua the correctness of following vacancy based roster and as such recommended that in future respondent No. 2 should follow the post based roster . The vacancies in existence on 30.3.2010 when the report Annexure P-9 was submitted was, therefore, recommended to be filled by way of applying the post based roster . The report Annexure P-9 when taken up for consideration by the Full Court was approved and as such on and w.e.f. 31.3.2010, respondent No. 2 is following the post based roster . 43. True it is that respondent No. 2 was following vacancy based roster contrary to the direction of the Apex Court in Judges Association case (supra), however, respondent No. 2 when detected such mistake has taken a decision to follow the post based roster in the matter of recruitment to the cadre of District/Addl. Distr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purpose. In the verdict supra, the hon'ble Apex Court has rendered explicit directions, upon, all the High Courts concerned, to specify the quotas, in, relations to posts, and, not in relation to vacancies. Further thereonwards it has also been mandated therein, that, the afore quotas shall constitute, the, regulatory mechanism, hence, for settling all disputes arising, amongst, the competing litigants' claims, vis-a-vis, their contentious inter-se seniority, upon, theirs respectively becoming inducted against the post, of, Additional District Judge(s)/District Judge(s), from amongst, the stream, of, direct recruits, and, from the afore apposite alternative thereto channels or streams, of, Civil Judges (Senior Division). However, the afore expostulation of law borne in All India Judges' Association Ors vs. Union of India, reported in (2002)4 SCC 247, has been directed, to, hold only prospective effect, and, also a further mandate, is, borne therein, vis-a-vis, the seniority of the apposite inductees, into, service,as, Addl. District Judge(s)/District Judge(s), especially prior to 31st March, 2003, even if, their respective indu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cent appointment by promotion and 25 per cent by direct recruitment to the higher judicial service is maintained, we are, however, of the opinion that there should be two methods as far as appointment by promotion is concerned : 50 per cent of the total post in the higher judicial services must be filled by promotion on the basis of principle of merit-cum-seniority. For this purpose, the High Courts should devise and evolve a test in order to ascertain and examine the legal knowledge of those candidates and to assess their continued efficiency with adequate knowledge of case law. The remaining 25 per cent of the posts in the service shall be filled by promotion strictly on the basis of merit through the limited departmental competitive examination for which the qualifying service as a Civil Judge (senior division) should be not less than five years. The High Courts will have to frame a rule in this regard. 28. As a result of the aforesaid, to recapitulate, we direct that recruitment to the higher judicial service i.e., the cadre of District Judge will be: [1](a) 50 per cent by promotion from amongst the Civil Judges (senior division) on the basis of principle of merit-cum- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ster principle as approved by this Court in R.K. Sabharwal's case (supra) as early as possible. We hope that as a result thereof, there would be no further dispute in the fixation of seniority. It is obvious that this system can only apply prospectively except where under the relevant rules seniority is to be determined on the basis of quota and rotational system. The existing relative seniority of the members of the higher judicial service has to be protected but the roster has to be evolved for the future. Appropriate rules and methods will be adopted by the High Courts and approved by the States, wherever necessary by 31st March, 2003. 44. There is no quarrel so as to law laid down by the Apex Court and cited on behalf of the petitioners in M.S. Sandhu another vs. State of Punjab others (2014) 6 SCC 514, Narinder Singh vs. Surjit Singh (1984) 2 SCC 402, M/S Shenoy Co. represented by its partner Bele Srinivasa Raoa Street Bangalore and others vs. Commercial Tax Officer, Circle II, Bangalore and others, (1985(2) SCC 512, Spencer Company Ltd. And another vs. Vishwadarshan Distributors Pvt. Ltd. others (1995)1 SCC 259, M/S Bayer India L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules at par the recruitment from this category was stopped and the posts in existence as on 31.3.2010 have beenfilled up by way of promotion from amongst eligible Sr. Civil Judges/by way of accelerated promotion. Therefore, the loss on account of inadvertent mistake attributed to respondent No. 2 either caused to promotee or the eligible Sr. Civil Judges by way of accelerated promotion has now been made good. The direct recruits had also to suffer as their recruitment stopped till each category gets its quota. any, estopping inference(s), of, waivers, acquiescence, and, abandonments, (c) nor also the hereat belated challenge, vis-a-vis, the gradation lists, wherein, theirs names occur below, the private respondents, would adversarially work against them, merely on anvil of vices, of, delay, and, laches, hence purportedly operating against them. Immense fortification, to, the afore view, is, garnered, from, a, decision of the Hon'ble Apex Court, rendered, in, a case titled as Fazlunbi vs. K. Khader Vali and another, reported in (1980)4 SCC 125, the relevant paragraphs No.7 to 10 whereof, stand extracted hereinafter:- 7. We need not labour the point beca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was ready to sell her body and give up her soul The point must beclearly understood that the scheme of thecomplex of provisions in Chapter IX has a social purpose. III-used wives and desperate divorcees shall not be driven to material and moral dereliction to seek sanctuary in the streets. This traumatic horror animates theamplitude of Section, 127. Where the husband, by customary payment at the time of divorce, has adequately provided for the divorce, a subsequent series of recurrent doles is contraindicated and the husband liberated. This is the teleological interpretation, thesociological decoding of the text of Section 127.The keynote though is adequacy of payment: which will take reasonable care of her maintenance. The payment of illusory amounts by way of customary or personal law requirement will be considered in the reduction of maintenance rate but cannot annihilate the rate unless it is a reasonable substitute. The legal sanctity of the payment is certified by the fulfilment of the social obligation, not by a ritual exercise rooted in custom. No construction which leads to frustration of thestatutory project can secure validation if the court is to pay true homage to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hence, in tandem therewith, the, acquiesced departure(s), from, the verdict, of, the Hon'ble Apex Court rendered in All India Judges' Association Ors vs. Union of India, reported in (2002)4 SCC 247, and, also from, the, in consonance therewith Rule 13, borne in the H.P. Judicial Rules, can neither be brooked nor can be countenanced, irrespective, of any purported delay, and, laches, arising from any belated challenges, being made by the writ petitioners, vis-a-vis, the gradation list(s) concerned, wherein, their names occur, below, the names, of, the private respondents. 45. In the matter of seniority, as per the settled legal principles, the seniority already settled cannot be unsettled even if a particular category has exceeded its quota. It has been held by the Apex Court in Hon ble Punjab Haryana High Court at Chandigarh vs. State of Punjab ors., AIR 2018 SC 5284 that in case any category has exceeded its quota in the cadre and the appointment made as perthe Rules, the promotees who have exceeded thequota neither have to be pushed down in the seniority nor their seniority has to be downgraded. However, the conduct of the petitioners ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue relates to payment or re-fixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. In so far as the consequential relief of recovery of arrears for a past period, the principles relating to recurring/successive wrongs will apply. As a consequence, High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition. 46. The ratio of the judgment of the Apex Court in State of Himachal Pradesh ors. vs. Rajesh Chander Sood (2016) 10 SCC 77, is that in service matters, delay and laches or limitation may not thwart the claim so long as it may be, however, if such claim if allowed does not have any adverse repercussions on the settled third party rights. The present is a case where the seniority list of 2005 and also 2018 (Annexures P-2 P-16, respectively) have thereupon, they render themselves rather guilty of vices, of, delay and lache ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso unworthy, for acceptance, (b) as, the apt suitable aspirants, vis-a-vis, the contentious post of judicial officers, are those, who were to be legitimately drawn, from, the stream or feeder channel of Civil Judges (Senior Division), for, hence, their claim, for, been sought to be quashed. In case such relief is granted at such a belated stage, it will certainly amount to unsettle the seniority of the officers in the cadre settled long back which is not legally permissible. The arguments that S.C.Kainthla, petitioner in CWP No. 2061 of2018 was inducted to the cadre in the year 2006 whereas Rajeev Bhardwaj in CWP No. 2292 of 2018 in the year 2009 and as such the cause of action accrued to them from the said date(s) is again without any help to the writ petitioners as they wake up from deep slumber for the first time only in the year 2014 when I.A. No. 334 of2014 was filed in the Apex Court and thereafter when these writ petitions in the year 2018 in thisCourt. 47. In a case where the impugned seniority list was published at least 12 times was sought to be quashed, the apex Court in V.Bhasker Rao others vs. State of A.P. ors. (1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity test, for, the relevant purpose nor when the High Court, in its reply, hence, projects any further reason, qua, hence, any dire exigencies, of, service or for any other scribed well reasoned circumstances, their non induction, to, the promotional post, of, District Judge/Additional District Judge, rather becoming necessitated, (g) thereupon, the non consideration, of the afore contemplated stream, of, valid inductees, as, Additional District Judge/District Judge, or their non consideration, for, promotion thereinto, is, wholly impermissible, and, also is arbitrary, (h) rather the seniority list, as, drawn by the Hon'ble Judges Committee, hence, in consonance with the expostulation of law, declared in All India Judges' Association Ors vs. Union of India, reported in (2002)4 SCC 247, and also in consonance with Rule 13, as, became drawn in concurrence therewith, is enjoined to berevered. (I) Preeminently also for, the preeminent factum, qua, hence only thereupon, the dilution, of, the, apposite Rule hence extantly governing, the, contentious inter se seniority, of, the writ petitioners, and, of the private respondents, and, encapsulating, the, trite canon, vis-a-vis, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vs. Union of India, reported in (2002)4 SCC 247, is, a judgment in rem, hence within, the, domain, of, the trite postulations, as, are borne, in, relevant paragraphs No. 21 to 23, of, a decision of the Hon'ble Apex Court rendered, in, a case titled, as, State of Uttar Pradesh and others vs. Arvind Kumar Sribastava and others, reported in (2015)1 SSC, the, afore relevant paragraphs whereof, read as under:- 21. Holding that the respondents had also acquiesced in accepting the retirements, the appeal of U.P. Jal Nigam was allowed with the following reasons( Jaswant Singh Case,(2006) 11 SCC 464): 13. In view of the statement of law as summarised above, the respondents are guilty since the respondents have acquiesced in accepting the retirement and did not challenge the same in time. If they would have been vigilant enough, they could have filed writ petitions as others did in the matter. Therefore, whenever it appears that the claimants lost time or whiled it away and did not rise to the occasion in time for filing the writ petitions,then in such cases, the court should be veryslow in granting the relief to the incumbent.Secondly, it has als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay not apply in those cases where the judgment pronounced by the Court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the Court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated person. Such a situation can occur when the subject matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K.C. Sharma Ors. v. Union of India (supra). On the other hand, if the judgment of the Court was in personam holding that benefit of the said judgment shall accrue to the parties before the Court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence. 23. Viewed from this angle, in the present case, we find that the selection process tookplace in the year 1986. Appointment orders were issued in the year 1987, but were alsocancelled vide orders dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... signed by one of us(Hon'ble Mr. Justice Dharam Chand Chaudhary, J.) while concurring, with an alike therewith inference, as, became earlier drawn, by the learned Single Judge of this Court, qua, with the, purported immense procrastinated delay hereat, and, also with an immense hiatus elapsing, in, theirs challenging, the, purportedly settled gradation lists, as, became much earlier thereto hence drawn, hence, naturally attracting against the petitioners, the, estopping vices, of, delay, laches, and, acquiesces (a) and, therealongwith reiteratedly also the afore immediately prior hereto alluded, conclusion, as, drawn, by one of us (Hon'ble Mr. Justice Dharam Chand Chaurdhary, J.), rather becomes completely unhinged, (b) conspicuously, given, the verdict rendered by the Hon'ble Apex Court,in, a case titled as All India Judges' Association Ors vs. Union of India, reported in (2002)4 SCC 247, hence, for the reasons aforestated, holding a perennial immense inviolable legal command, and, clout, (c) and, also the rules drawn in consonance therewith also enjoying, an, alike perennial command, and, fiat, (d) and, when an acquiesced breach thereof, by, H.P.High Court, is, ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in applicable, vis-a-vis, the factual matrix prevailing hereat. 15. One of us (Hon'ble Mr. Justice Dharam Chand Chaudhary, J.) has also expressed, a, view, that, since subsequent to 2010, the, stream or feeder category of Civil Judges (Senior Division), became compensated rather for earlier purported errors or departures, from, the verdict, of, the Hon'ble Apex Court rendered in a case titled as All India Judges' Association Ors vs. Union of India, reported in (2002)4 SCC 247, and, also from theconsonant therewith incorporated Rule 13, (i)inasmuch, as their services became regularised, from their hitherto adhoc basis service(s), as, Presiding Officer, Fast Track Court, hence, into/as, Addl. District Judges/District Judges, (ii) whereupon, with the afore candid wrong(s) or error(s), if any, arising from depatures, if any, from, the verdict of the Hon'ble Apex Court in case supra, becoming undone, (iii) thereupon, the writ petitioners rather not holding any valid surviving, and, subsisting grievance, and, the verdict recorded, by, the learned Single Judge, being, well merited, and, warrant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... came available, for,operating thereons rather the commensurate thereto, number(s), of, roster points, for, therethroughs, hence, determining, the validities, of, all the apposite contentious inductions, conspicuously at the apposite disputed phase(s), and, also for, concomitantly reckoning, the, contentious inter se seniority. In other words, the, operation, of, the 34 point roster, does solitarily, vis-a-vis, the compatible therewith encadred posts, rather becomes, the, governing or the apposite regulating parameter. Consequently, only after the encadrement hence after 2013, the hitherto adhoc posts, of, Presiding Officer, Fast Track Courts, into, permanent posts, of Additional District and Sessions Judges, the working, of, a 34 point roster, would halt, and, not earlier, (xi) conspicuously nor when the apposite regularizations were not given any retrospective effects, nor also when any concomitant restrospectively operating additions, vis-a-vis, the roster point(s), were hence made through validly made rule(s). Necessarily, upon, increase, in, the strength, of, the apposite cadre hence after 2013, also, the requisite rules, hence, requ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cences, ordelays and laches, if any, on the part, of, the writpetitioners, also cannot concomitantly, render halted, the, ever awakened or never slumbering, rather, the absolutest command, and, diktat of the expostulation, of, law, as, pronounced, in, the verdict rendered by the Hon'ble Apex Court,in, a case titled as All India Judges' Association Ors vs. Union of India, reported in (2002)4 SCC 247. Moreso, when it has becomeacquiesced, by, the afore alluded report, of, Hon'ble Judges' Committee, to be untenably departed from. 52. No doubt in the case in hand, the subordinate Judicial Officers, including the member of the then H.P. Higher Judicial Service raked up the issue of excess quota of direct category candidates in the Higher Judicial Service and inter se seniority, however, either unsuccessfully or without taking such dispute to its logical end. In a case titled Rabindranath Bose ors. vs. The Union of India ors.,(1970) 1 SCC 84, where the dispute of seniority was brought to Court after about 15 years, it hasbeen held by the Apex Court that petitioners are not entitled to the relief sought without there being any reasonabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot be interpreted in a manner so as to violate the directions issued by this Court in the above judgment. 5) Rule 7(4) read with Appendix-B has to be re ad in the light of direction of this Court in All India s cas e and harmonious construction of the rule clearly indicates that roster which has been expressly made appli cable for filling the post of all the three streams shall be applicable while determining the seniority. And granted the following reliefs: 71. In view of foregoing discussion, the seniority lis t dated 24.12.2015 is to be set aside. After setting aside the seniority list, two courses are open. Firstly, to re mit this matter to the High Court again to re- cast the seniority list as per our direction and secondly, to finalize sen iority list in this judgment itself. We choose to a dopt the second course for two reasons: Already period of three years has elapsed when the tentative seniority list was published. Finalization of seniority as early as possible is essential and ne cessary for administration of justice. There is no dispute regarding interse - seniority of the promotees under Rule 7(3) (a) and is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 2 SCC 552 cited on behalf of petitioners are not applicable for the reason that ratio thereof would have been of some help to the case of the petitioners on merits. The claim of the petitioners, however, herein has been rejected being barred by delay and laches and they having acquiesced their claims as isapparent from the acts and deeds attributed to them and their conduct. There cannot be any quarrel to the law laid down by the Apex Court in Dwarikesh Sugar Industries Ltd. Vs. Prem Heavy Engineering Works (P) Ltd. And another,(1997) 6 SCC 450. In terms of the law laid down by the Apex court in Judges Association case, post based roster in the matter of recruitment to the cadre of District/Addl. District Sessions Judges was required to be followed after the Rules framed in the year 2004. Respondent No. 2 has started following post based roster on and w.e.f. 31.3.2010, as discussed in detail hereinabove. Therefore, there may be delay which as per the discussion hereinabove is on account of respondent No. 2 was inadvertently following the vacancy based roster . The writ petitioners, however, failed to explain their conduct in not agitating the matter if not from an early d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Apex Court, as, become cited in the report made, by, the Hon'ble Judges', in their meeting convened, in, the year 2016, minutes whereof also became placed, before the Hon'ble Apex Court. The further argument, which, has been strived to be erected thereon, is, hence the High Court, rather concomitantly, accepting, the, validity of the application hereat, of, the verdict supra, of, the Hon'ble Apex Court, in its, meeting held, in, the year 2016. Furthermore, it is also canvassed,that, in consonance therewith, there cannot, yet, be any adoption, of, the principle of pushing down . However, even the afore submission, apart from, the hitherto assigned reason, does, further falter and also stagger(s), (i) as, the apt expostulated therewithin hence special circumstance(s), for, hence, validating, the, departing(s) therefrom, remain unpropounded,in the reply furnished, to, the writ petition, by the High Court, (ii) besides, the, stark factum that in case the High Court, had deemed it fit, to, mete, the, completest condoningcompliance(s) thereto, or to derive, the fullest vigour therefrom, (iii) thereupon, it became both imperative and incumbent, upon, the HighCourt, to ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplicable, vis-a-vis, the hereat finally, conclusively or completely enforceable verdict, as, became rendered by the Hon'ble Apex Court, in, All India Judges' Association Ors vs. Union of India, reported in (2002)4 SCC 247, nor is applicable, vis-a-vis, the order rendered, on, 28.4.2016, by, the, Apex Court, upon, I.A. No.17 of 2011, in, IA No.244 of 2009, and, IA Nos. 1 2, in, IA Nos. 17/2011, in, IA NO. 244/2009, and, IA No.334/2014, IA Nos. 335, 336, 337, 338/2015 and IA No. 339 341/2016, instituted, in Writ Petition (Civil) No. 1022/1989, as, thereuponthe law declared, by, the Hon'ble Apex Court, would become untenably breached. Contrarily, the afore condonatory reliances anvilled, upon, the verdict supra are deemed, to be waived or abandoned, with, a concomitant estoppel quatherewith hence working against the High Court. Paramountly, for, all afore reasons, all the afore strived condonations, of, all the afore acquiesced departures, is, also deemed, to, be not accepted, by, the Hon'ble Apex Court. 67. The present is rather a case where the petitioners on account of their acts, deeds and conduct as well as acqu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rther, the Hon ble Judicial Member of the `Tribunal , had not examined the `interim orders . 44. The Learned Counsel for the 1st Respondent points out that Section 419 (5) of the Companies Act, 2013, speaks of the `Members of a Bench `differs in opinion on `any point or `points only. Moreover, according to the Learned Counsel for the 1st Respondent, the point of difference between the Hon ble Member (Judicial) and the Hon ble Member (Technical) of the `NCLT , Kolkata Bench, revolves around only on the `question of maintainability . 45. The Learned Counsel for the 1st Respondent submits that the Hon ble Member (Judicial) of the `Tribunal has not adjudicated the `aspect of injunction and the formulation of point by the Hon ble Tribunal is not `an order and that the ingredients Section 98 of the Civil Procedure Code, 2002, does not apply to the facts of the case in three `Appeals . As such, the instant three `Appeals preferred by the `Appellants are not maintainable. 46. The other argument projected on the side of the 1st Respondent is that Section 98 of the Civil Procedure Code, 2002, is not to supplement the Companies Act, 2013, and as such, Section 98 of the Civil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... than two members and there is difference of opinion amongst the members who constitute the Bench, the point of difference has to be decided according to the opinion of the majority, where there is a majority. While the latter part of the provision stipulates that where the Bench consists of two members or more than that but of even number, and the members are equally divided, it is incumbent upon such members to set out the point, or points on which they differ. Upon such point or points of difference being stated a reference is required to be made to the President who, on the administrative side, is required to pass an order for placing the case for hearing either before himself or before any other member or other members, as the facts and circumstances of the case may require, but the case, upon such a reference being made, can be heard by the President or the Member or Members only appeal. The President or the Third Member does not derive any independent jurisdiction and has no powers to decide the appeal in entirety. 19. Therefore, the members who expressed dissenting opinions are bound by the statute to state the point or points of difference and make reference after mak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an see, the third Member has not been given any right to decide the appeal. According to Section 5-A (6) of the Income-tax Act, the appeal must be decided by the Tribunal which must consist of a Bench of not less than two Members. 6. . The last part of Section 5-A(7) of the Act provides that the point or points have to be decided according to the opinion of the majority of the Members of the Tribunal who had heard the case including those who had first heard it. 7. After the opinion of the third Member had been obtained the case should have gone back to the Tribunal for its final orders. We do not know what is the practice followed by the Tribunal. The rules framed by the Tribunal, which have been placed before us by the learned counsel, which are relevant on this point, throw no light on the point. The rules are as follows: Rule 33 (1) -- The order of the Bench shall be signed and dated by the members constituting it. Rule 33 (2) -- Where a case is referred under Sub-section (7) of Section 5-A, the order of the member or members to whom it is referred shall be signed and dated by him or them as the case may be. Rule 34 -- The Tribunal shall, afte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reported in (1953) Vol. 23 ITR at Page 445, Spl pgs: 446 to 451, wherein, on a `difference of opinion between Members of the Income Tax Appellate Tribunal, the case was referred to the President of the `Tribunal for decision without formulating the `point or points of difference , it was among other things observed and held as under: Section 5A of the Income-tax Act requires that if the members of the Tribunal are equally divided they should state the point on which they differ and the case shall be referred to the President of the Tribunal for hearing on such point by one or more of the other members of the Tribunal and such point shall be decided according to the opinion of the majority of the members of the Tribunal who have heard the case including those who first heard it In the present case it is manifest that as regards quantum of assessment not only two members of the Appellate Tribunal but also the President have each of them taken a different view. It is manifest that there is no majority opinion in favour of any particular figure of assessment. In a matter of this description where there is difference of opinion as to the quantum of assessment, we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... President in this case is not legally valid and that the assessment cannot be legally completed in accordance with the direction contained in the order of the President of the Appellate Tribunal. The two questions formulated in the statement of the case must be answered to the above effect. The result therefore is that the reference under Section 5A(7) to the President of the Tribunal is incompetent and the case must now go back to the Income-tax Appellate Tribunal for being dealt with and disposed of in accordance with law. 60. The Learned Counsel for the 1st Respondent (Mr. Aryama Sundaram) contends that the point of reference is `vital and it affects the 1st Respondent right and therefore the right to agitate in `law is very much available to the 1st Respondent. In this connection, the Learned Counsel for the 1st Respondent submits that if something affects the right of a `Litigant in a `Judicial proceedings , then, it is a `Judicial Order , which can be questioned before a Judicial / Quasi-judicial Fora . Before an `Administrative Authority , `an Administrative Order can be assailed. 61. The Learned Counsel for R1 (Mr. Aryama Sundaram) comes out with a plea t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es. The Learned Counsel for the 2nd Respondent cites the decision in Commissioner of Income Tax Appellate Tribunal V Sahara India Limited (vide Income Tax Appeal Nos. 118 to 123 of 2005, decided on 24.01.2017 (with regard to the dissenting orders passed by the Income Tax Appellate Tribunal, wherein reference was made to Section 254 read with Section 255 (4) of the Income Tax Act, 1961, whereby and whereunder at paragraph 8, it is observed as under: Para 8. In other words, we can say, when specific points of dissent were referred to be answered by Third Member, it was not open to him to sit in appeal over the matter and decide some questions and leave some questions unanswered in his own way. The Third Member ought to have endeavoured to answer the question referred to him in a specific manner so that the matter ultimately could have been decided by Regular Bench in the light of majority opinion but that has not been done in the case in hand. Therefore, we find that the Third Member as well as the Regular Bench have not acted in the manner, as contemplated in law. 65. The Learned Counsel for the 2nd Respondent cites the order of the Hon ble Madras High Court dated 23 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r available cannot be equated with that of a review nor an exercise resulting in sitting in judgment over the other. 66. The Learned Counsel for the 3rd Respondent submits that the `point(s) of difference formulated by the `Hon ble Members of the Tribunal is not `an Order because of the fact that the same is neither `an expression of any decision nor `there being determination of any right or liability of the parties . As such, the `point of difference formulated by the `Tribunal is not an `Appealable Order and hence the `Appeals are `ex facie , `not maintainable in `law . In this connection, the Learned Counsel for the 3rd Respondent adverts to Section 2 (14) of the Civil Procedure Code, which defines `an Order meaning the `formal expression of any decision of a Civil Code which is not a decree . 67. The Learned Counsel for the 3rd Respondent proceeds to submit that as per Section 419 (5) of the Companies Act, 2013, `no power is vested on the Referral Member to `add or `modify any `point of difference . 68. The Learned Counsel for the 4th Respondent contends that when the `point of difference was framed by the `Hon ble Tribunal on 11.02.2022, there was no `p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in reality this `Tribunal is not an `Advance Tribunal . Furthermore, only when the `Hon ble Third Member says something, then an `Appeal will lie against the same. 74. It is the plea of the 7th Respondent if the instant three `Appeals are not `maintainable then, nothing can be decided and in fact, there is no `Appeal being filed from the `Order of the Third Member dated 20.09.2021. In fact, the `Appellants ought to have preferred the `Appeals against the `Order of the `Hon ble Third Member dated 20.09.2021. In fact, only the `Hon ble Third Member decision is an `Appealable one. 75. Moreover, it is the contention of the 7th Respondent that the order of the `Tribunal dated 11.02.2022 (where the `point of difference was formulated) which was ordered to be communicated to the `Registrar , `National Company Law Tribunal , New Delhi, for further orders is only an `internal communication and this is not an `Order as per Section 420 of the Companies Act, 2013. 76. This `Tribunal has heard the Learned Counsels appearing for the `respective Parties on the `aspect of Maintainability of Company Appeal (AT) Nos. 67, 68 and 69 of 2022 and noticed their contentions. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellate Tribunal Rules, 2016 , to deal with a situation of happening of `Contingency . 80. Section 420 of the Companies Act, 2013, enjoins that; (1) The Tribunal may, after giving the parties to any proceeding before it, a reasonable opportunity of being heard, pass such orders thereon as it thinks fit. Section 420 (3) of the Companies Act, 2013, provides that (3) the `Tribunal shall send a copy of every order passed under this section to all the parties concerned. 81. Section 421 (1) of the Companies Act, 2013, says that (1) Any person aggrieved by an order of the Tribunal may prefer an appeal to the Appellate Tribunal. 82. It is to be pointed out that Section 421 (1) of the Companies Act, 2013, corresponds to Section 10 FQ of the Companies Act, 1956, which provided that an `Appeal could be filed only by a `person who is `aggrieved by an `Order or `decision of a `Tribunal . 83. Indeed, the meaning of Section 10 F of the Companies Act, 1956, provided that an `Appeal shall lie against `any decision or `order passed by the Company Law Board. However, the Companies Act, 2013, provision uses the `word in sub-section 1 of Section 421 of the Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... / `Vakils or `Pleaders stand on the same footing in regard to their power to act on behalf of their clients. As per Section 2 (15) of the Civil Procedure Code, `Pleader means any person entitled to `appear and `plead for another in Court and includes `an Advocate , a `Vakil and an `Attorney of `High Court . The privilege of a `Pleader is to plead and claim audience. In fact, the Lawyers / Advocates, Vakils or Pleaders stand on the same footing in regard to their power to act on behalf of their clients. Assessment: 88. It comes to be known that in CP Nos. 112, 113 and 114/KB of 2021, on the file of `National Company Law Tribunal , Kolkata Bench-I, the `two Hon ble Members of the `Tribunal , after hearing these matters, had given their `dissenting judgments and hence the matter was referred to the `Hon ble President of the National Company Law Tribunal, Principal Bench, New Delhi, who had nominated the third Member and that the `Hon ble Third Member of the `Tribunal had observed in the `Order dated 20.09.2021, that the `points of difference between the `Hon ble Dissenting Members , were not placed on record and proceeded to make an `observation that `the j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing `the formal expression of any decision of a Civil Court which is not a decree . As a matter of fact, an `Order must be read, as it is, and the Courts intention cannot be `inferred on the basis of an `extraneous , `evidence and `conjecture . Further, an `Order must be clear, logical and is not to create confusion in the minds of the parties. It is to be remembered that if the Court passes an `Order , adjourning the hearing of the case, the same is not an `Order as per Section 2 (14) of the Civil Procedure Code and it is not a `case decided. 95. Be it noted, that an `Order is a `formal Order in contra-distinction to a `Decree . A `Decree / Order can come into existence only if there is an `Adjudication of relevant `issues which conclusively determines the `right of the `parties . A `Judicial Order must contain discussions of question of issue and reasons therefor. Order: 96. In fact, the `term `Order is not defined under the Companies Act, 2013. It is to be remembered that an `Order must cause a `legal grievance by wrongfully depriving him of something as per decision of Hon ble Supreme Court in Adipheroz Shah Gandhi V H.M. Seervai, reported in AIR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onflicting `opinion of two Hon ble Members, are placed before the `Hon ble Third Member or Judge , he would consider the `two opinions and `render his `opinion . No wonder the `Third Judge is completely free in resolving the `difference as he thinks fit as per the decision of the Hon ble Supreme Court in Babu and Three Ors. V State of Uttar Pradesh, reported in AIR 1965 SC 1467, wherein it is held as under: (i) Section 429 of the Criminal Procedure Code contemplates that it is for the third Judge to decide on what points he shall hear arguments, if any, and that postulates that he is completely free in resolving the difference as he thinks fit. 104. Further, in the decision of Hon ble Supreme Court in Hethubha Alias Jithuba Madhuba and . V The State of Gujarat, reported in AIR 1970 SC 1266, wherein under the Caption `Headnote and Held, it is observed as under: Headnote: The three appellants were charged with offences under ss. 302 and 323 read with s. 34 of the Penal Code and appellants 1 and 2 were charged with the individual offences under ss. 302 and 323 for intentionally causing the death of A, mistaking him for V and for causing simple hurt to V. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riminal Procedure Code, states that when the judges comprising the Court of Appeal are equally divided in opinion the case with their opinion thereon shall be laid before another Judge of the same Court and such Judge, after hearing, if any, as he thinks fit, shall deliver his opinion, and the judgment or order shall follow such before another Judge, and, secondly, the Judgment and order will follow the, opinion of the third learned Judge. It is, therefore, manifest that the third learned Judge can or will deal with the whole case. [35 D-F] 105. It cannot be lost sight of that although the `third opinion is rendered after considering the `earlier opinion , the `third opinion cannot be equated to an `Appeal , in the considered opinion of this `Tribunal . In reality, the `Third Member /`Third Judge based on strong grounds can `differ from the `Referring Judges on a `point which both the `Members /`Judges had agreed. The opinion of Hon ble Third Judge is held to be a decision of a `Case , as per decision AIR 1968 Cal 220. As a matter of fact, the `Hon ble Third Member is to exercise discretion informed by legal traditions, arranging in an orderly and systematic manner, o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urring in Section 420 (1) of the Companies Act, 2013, is wider than `Judicial Proceedings , this `Tribunal is of the earnest opinion that the said `impugned order dated 11.02.2022 of the `Tribunal in CP Nos. 112, 113 and 114 of KB of 2021 cannot be termed by no stretch of imagination as `an Order , in the teeth of culling out of `the point of difference (between the `Hon ble Two Members of the Tribunal ) and formulating the same, is just a `Ministerial Act (`on Administrative Side ) of the `Tribunal , without an entry upon any `Adjudicatory Process . It does not effectively determine any `Right or `Obligation of the `Parties to the `LIS . Apart from that, the `impugned order dated 11.02.2022, passed by the `Hon ble Members is nothing but a `part and parcel of their `Statutory Duty because of their `occupational status enjoined upon them, in referring the `matter to the `Hon ble President of the Principal Bench of National Company Law Tribunal, to resolve the `impasse in regard to the `point of difference formulated by them and `no opportunity is to be provided to the `Parties for the `purpose of hearing , when Section 419 (5) of the Companies Act, 2013, is conspi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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