The Judgment of the Court was delivered by

B.S Chauhan, J.:— The instant appeal has been filed under Sec. 18 of the Rajasthan High Court Ordinance, 1949 against the judgment and order of the learned Single Judge dated 12.9.2001 passed in S.B Civil Writ Petition No. 2139/2001 by which the labour court award dated 20.11.2000 has been upheld.

2. The facts and circumstances giving rise to this appeal are that the respondent workman raised an industrial dispute and the appropriate Government vide order dated 24.12.1996 made a reference under Sec. 10 of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act’) as to whether termination of the workman w.e.f 24.2.1993 was in accordance with law and if not to what relief he was entitled for. In pursuance of the said reference, the labour court made the award dated 20.11.2000 in favour of the workman holding that termination of his services had been in flagrant violation of the provisions of the Act particularly compliance of the provisions of Sections 25-F and 25-G of the Act and the Rule 77 of the Industrial Disputes (Central) Rules, 1957 had not been made. The workman was directed to be reinstated with 50% of the back-wages from the date of reference till that of award. Being aggrieved and dissatisfied, the appellants preferred writ petition No. 2139/2001. The learned Single Judge dismissed the writ petition by an elaborate and reasoned judgment and order dated 12.9.2001 Hence, this appeal.

3. This appeal has been preferred under the provisions of Sec. 18 of the Rajasthan High Court Ordinance, 1949 (hereinafter referred to as ‘the Ordinance’). That Ordinance provided intracourt appeal against the judgment and order of the Single Judge passed in writ petitions and also against the judgments in first appeal by the Single Judge. The said Ordinance stood repealed by the Judicial Administration Laws (Repeal) Act, 2001 (Act No. 22 of 2001) which received the assent of Hon'ble the President of India on 29.8.2001 and has been published in the Gazette of India, Extra Ordinary, Part II, dated 29.8.2001

4. The relevant part of the Act reads as under:—

‘(2) The enactments specified in the Schedule are hereby repealed.

… … … … ….. ………..

1949 Rajasthan Ord. XV The Rajasthan High Court Ordinance, 1949”

5. Thus, the mute question involved in this case is as to whether the appeal is maintainable in spite of the Ordinance being repealed.

6. A Division Bench of this Court in Mohan Lal v. Lal Chand (1), has traced the history of the said Ordinance and considered in detail the reorganisation of States and emerging of the State of Rajasthan. The State of Rajasthan, as it exists today, is the result of process of integration and amalgamation of different Princely States. On formation of the State of Rajasthan in 1949, the Rajasthan High Court came to be established under the said Ordinance. Clause 18 of the same provided for intra-Court appeal. Though all the High Court in India after commencement of the Indian Constitution owe their existence under Articles 214 and 225 of the Constitution of India, still their powers of letters patent appeal or special appeal flow from paramount charter under which they came into existence.

7. Thus, it is in this way that special appeal could be filed under Sec. 18 of the Ordinance.

8. The Ordinance had an effect of law as an Act passed by the Legislature and could not be understood as Ordinance having a limited life as provided under the Government of India Act, 1935 or Constitution of India, for the reason that the same had been promulgated by the Raj Pramukh under his legislative powers conferred upon him by Article 10(2) of the Covenant, 1949 (an instrument under which the Princely States united and united State of Rajasthan came into existence) to be read with Articles 372 and 366 of the Constitution of India.

9. On 31.8.1956, the State Reorganisation Act, 1956 (Act No. 37 of 1956) (hereinafter referred to as ‘the Reorganisation act’) was promulgated by Hon'ble the President of India in pursuance of which certain provisions had been made in respect of the Rajasthan High Court. After considering all historical aspects and relevant provisions, the Division Bench came to the conclusion that the special appeal was an intra-court appeal like letters patent appeal. It could not be a substitute of letters patent appeal but was analogous to the same.

10. Rule 134 of the Rules of the High Court of Judicature for Rajasthan, 1952 made in exercise of the powers conferred by Section 46 of the Ordinance, 1949 read with Article 225 of the Constitution of India framed by the Rajasthan High Court provides the proforma manner and procedure of presenting the appeal within 30 days from the date of the judgment of the Single Judge. As the Rule is only procedural and cannot provide for the forum of appeal of its own, it is of no avail on this court. Similarly, Part V of the Reorganisation Act, 1956 provides for High Courts in general and Sections 49 to 69 are related to the establishment and working of the High Courts. It provides for establishment of the High Courts for the new states and for abolition of certain courts and in exercise of the powers under Sec. 50 of the Act abolished amongst others the Court of Judicial Commissioner for Ajmer Sec. 64 deals with the Rajasthan High Court and it creates a jurisdiction of this Court over the area transferred from Madhya Bharat and takes away the said area from the territorial jurisdiction of the Bombay High Court. But none of those provisions create any substantive right of appeal from Single Bench to Division Bench.

11. Shri R.L Jangid, learned Addl. Advocate General, appearing for the State could not point out any provision existing in any statute/Ordinance/Rule providing for appeal against the judgment and order of a Single Bench to Division Bench other than Section 18 of the Ordinance and as the said Ordinance stood repealed, it is difficult to assume that the present appeal is maintainable.

12. Appeal is a creation of statute and it cannot be created by acquiescence of the party or by the order of the Court. (Vide the Constitution Bench Judgment of the Hon'ble Supreme Court in the United Commercial Bank Ltd. v. Workmen (2). In Kesar Singh v. Sadhu (3), the Apex Court held that a decree without jurisdiction is a nullity and when the matter goes to the root of the jurisdiction, it can be raised even in execution proceedings. The finding of a Court or a Tribunal becomes irrelevant and unenforceable/inexecuteable once the forum is found to have no jurisdiction. (Vide State of Gujarat v. Rajesh Kumar Chimanlal Barot (4).

13. Jurisdiction cannot be conferred by mere acceptance, acquiescance, consent or by any other means as it can be conferred only by the legislature. Conferring a Court or Authority with jurisdiction, is a legislature function. In Union of India v. Devki Nandan Aggarawal (5), the Hon'ble Apex Court observed that “the Court cannot usurp legislative functions. The Court cannot re-write, recast or reframe the legislation for the very good reason that it has no power to legislate. The power to legislate has not been conferred on the Courts.”

14. In Karnal Improvement Trust v. Prakash Wanti (6), the Hon'ble Supreme Court has observed that acquiescence of parties cannot confer jurisdiction upon a court/authority and an erroneous interpretation equally should not be permitted to perpetuate and perpetrate defeating of legislative animation. A similar view has been taken in U.P Rajkiya Nirman Nigam Ltd. v. Indure Pvt. Ltd. (7).

15. In Sardar Hasan Siddiqui v. State Transport Appellate Tribunal (8), the Allahabad High Court observed that a Court or a Tribunal cannot derive jurisdiction apart from the Statute. “No amount of acquiescence, waiver or the like can confer jurisdiction which a Tribunal is lacking. The doctrine of nullity will come into operation and any decision taken or given by such a Tribunal will be a nullity.”

16. In A.R Antuley v. R.S Nayak (9), the Hon'ble Supreme Court referred to and relied upon the judgment of the House of Lords in Attorney General v. Herman Jamas Sillern (10), wherein it had been reiterated as under:—

“A decision touching the jurisdiction….. has to be not only consistent with the fundamental rights guarantee by the Constitution, the same cannot even be inconsistent with substantive provisions of the statutory law….. Creation of a right to an appeal is an act which requires legislative authority, neither an inferior Court nor the Superior Court nor both combined, can create such a right it being one of the limitation and extension of jurisdiction.”

17. In view of the above, any concession made by any lawyer which is contrary to the provisions of law or even a consent decree which is in violation of the statutory provisions, remains unenforcible and inconsequential. (Vide Smt. Nai Bahu v. Lala Ram Narain (11); and Natraj Studio Pvt. Ltd. v. Navrang Studio, (12).

18. In Kondiba Dagadu Kadam v. Savitribai Sopan Gujar (13), the Hon'ble Supreme Court held as under:—

“It has to be kept in mind that the right or appeal is neither a natural nor an inherent right attached to the litigant being a substative statutory right it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before an appeal can be maintained and no Court has the power to add to or enlarge those grounds. The appeal cannot be decided on merit on merely equitable jurisdiction.”

19. Similar view has been reiterated by the Apex Court in Collector of Central Excise, Kanpur v. Flock (India) Pvt. Ltd., Kanpur (14), observing that a right of appeal is a creation of the statute and is a substantive right.

20. Thus, no appeal can be entertained under the inherent jurisdiction of the Court or by consent or acquiescence of the parties. Pre-requisite condition for maintainability of the appeal is that there must be a statutory provision providing for appeal.

21. As Shri Jangid, learned Addl. Advocate General, could not point out any provision providing for the appeal and to show that the instant appeal is maintainable in absence of Section 18 of the Ordinance i.e after the ordinance stood repealed, we are not inclined to entertain the appeal.

22. It has been pointed out by the learned counsel for the appellants that this Court has been entertaining the special appeals under Sec. 18 of the Ordinance inspite of the Ordinance being repealed. Hence, the appellants should not be subjected to hostile discrimination.

23. The submission made by Shri Jangid, learned Addl. Advocate General is preposterous for the reason that if this Court has entertained the special appeals inadvertantly, it should not continue to do so in spite of the fact that competence to entertain the appeal does not exist any more.

24. It is settled preposition of law that Article 14 of the Constitution is not meant to perpetuate an illegality. (Vide Snehprabha v. State of U.P (15); Secretary, Jaipur Development Authority v. Daulat Mal Jain (16); State of Haryana v. Ram Kumar Maan (17) and Faridabad Ct. Scan Centre v. Director General, Health Services (18).

25. In Jalandhar Improvement Trust v. Sampuran Singh (19); and Union of India v. Rakesh Kumar (19), the Apex Court held that any order/action contrary to law does not give right to others for similar treatment.

26. Thus, in view of the above, it can be summarised that appeal is a creation of the statute, and conferring a particular jurisdiction upon the court falls exclusively within the domain of the Legislature. Therefore, in absence of any provision in the Act/Rules/Ordinance/Notification, providing for an appeal, the appeal cannot be held to be maintainable. If the Legislature, in its wisdom, has withdrawn the provision providing for an appeal, the court lacks competence to create the forum.

27. The Ordinance, Sec. 18 of which provided for an appeal, stands repealed an the repealing Act does not contain any saving clause, and Shri Jangid could not point out any provision analogous to Sec. 18 of the Ordinance, existing in any Statute in force. In such a fact-situation, appeal cannot be entertained.

28. Appeal is accordingly dismissed, without entering into merit, as not maintainable.