- (1.) H. L. Gokhale, J. Heard Mr. Ashok Khare, learned Senior Advocate in support of this appeal. Mr. Y. K. Srivastava, learned Standing Counsel appears for respondent Nos. 1,2 and 3 and Mr. Shashi Nandan, learned Senior Advocate appears for the contesting respondent No. 5.
(2.) THE appeal seeks to challenge the order passed by the learned Single Judge on second writ petition between the appellant and respondent No. 5 being writ petition No. 56933 of 2007, which came to be dismissed by the order passed on 6. 12. 2007. Both of them are contesting for the appointment to the post of Shiksha Mitra in village Pahinarendrapur in district Jaunpur. The short facts leading to this appeal are this-wise that the appellant as well as respondent No. 5 were the applicants for the said post. Both were for merly working as Instructors. The appellant was selected in December 2005 for the post on the basis of better quality marks. The Government came out with an order on 24. 4. 2006 that between any two Instructors, one who has got larger experience will be preferred. Such a rule was not existing when the initial selection of the appellant was made in December, 2005. The matter having come to the Court earlier in writ petition No. 39995 of 2007, a learned Single Judge, by order passed on 12. 7. 2007, directed the District Magistrate to examine the rival claim on the basis as to whose experience was larger. It is material to note that prior to this order, a Division Bench has already held in the case of Km. Rita Yadav v. State of UP. and others, 2007 (2) ESC 788 (All) (DB) that this circular dated 24. 4. 2006 will apply prospectively. This was on the basis of the judgment of the Apex Court in Secretary, Andhra Pradesh Public Service Commission v. 6. Swapna and others, 2005 (2) ESC 247 (SC ). The learned Judge who was party to this judgment somehow did not notice it and in his order directed that whoever has the larger experience be preferred. Accordingly, the District Magistrate passed an order in September, 2007 holding that the respondent No. 5 has the larger experience and therefore, she should be preferred. That order was challenged by the appellant by filing this second writ petition being writ petition No. 56933 of 2007 which has led to the impugned order passed on 6th December, 2007. The learned Single Judge observed in this order that although the law was what was laid down in Km. Rita Yadav's case (supra), the learned Judge having earlier directed on 12. 7. 2007 that in the present controversy the larger experience be considered, the Magistrate was to pass an order accordingly. He therefore dismissed the petition filed by the appellant. Hence this appeal. Mr. Khare, learned Senior Advocate for the appellant submitted that the learned Single Judge ought to have looked into the fact that the earlier order was contrary to the law laid down in Km. Rita Yadav's case (supra) and therefore he should not have passed an order that merely because an earlier order was passed,which prima facie was erroneous one, the error should be continued. He drew our attention to the two judgments of the Apex Court, first in the case of United Provinces Electric Supply Co. Ltd. , Allahabad v. Their Workmen, (1972) 2 SCC 54 where the Apex Court has observed in paragraph 20 that ultimately the orders of remand are concluded only with the final decision in the original proceedings. When it is an interlocutory order and did not purport to dispose of the case, the parties are not bound to appeal against every interlocutory order, which order is merely a step in the procedure that leads up to a final decision or award.
(3.) SIMILAR are the observation in Mangal Prasad Tamoliv. Narvdeshwar Mishra and others, 2005 (2) AWC 1305 (SC) that the appellants are entitled to point out the infirmities in the remand order at an appellate stage. Mr. Shashi Nandan, learned Senior Advocate for the contesting respondent No. 4 defended the order by submitting that the appellant ought to have challenged the earlier order of the learned Single Judge, if it was erroneous one. The answer to that the submission lies in the observation in the Apex Court in para 20 of United Provinces Electric Supply Co. Ltd. 's case (supra ).;