JUDGMENT
Lalit Mohan Sharma, J.
1. The plaintiff Shashi Bhushan Prasad filed a suit in the Court of Munsif, Gaya, for a declaration that he should be deemed to be posted as Assistant Public Prosecutor, Group 2 Senior Service, with effect from 1-4-1974 and for certain other reliefs. His case is that he was appointed as the Assistant District Public Prosecutor in 1961 and continued as such till 31-3-74. With effect from 1-4-74, a single cadre of Public Prosecutors was formed under the provisions of the Code of Criminal Procedure, 1973 and he automatically became a member of this cadre. By a decision as contained in memo No. 3217 (marked Ext. 6(a) at the trial of the suit) dated 30-3-1974 (Home Police), the State of Bihar divided the cadre in three groups being Grades I, II and III, and by the notification No. 3253(marited as Ext. A) dated 30-3-1974, the plaintiff was appointed in the Third Grade. Subsequently, a Board constituted for this purpose recommended the plaintiffs name for promotion to Grade II. The plaintiff has challenged the memo No. 3217, Ext. 6(a); the notification No. 3253, Ext. A; and the Board’s reference, mentioned above, as illegal on the ground that any attempt of classification and division of the cadre of the Assistant Public Prosecutor is invalid.
2. The State of Bihar challenged the plaintiffs case by filing a written statement.
3. The case was heard and the learned Munsif decreed the suit holding that Ext. 6(a) is illegal and void. The Court further held that in view of the provisions of Section 113 and Rr. 1 to 4A of O. 46, Civil P.C. a reference to the High Court was called for. The learned Munsif directed the stay of further proceeding pending the decision of this Court on the reference.
4. A preliminary objection has been taken on behalf of the State that the reference is not maintainable. Section 113 reads as follows:
113. Subject to such conditions and limitations as may be prescribed, any Court may state a case and refer the same for the opinion of the High Court and High Court may make such order thereon as it thinks fit:
Provided that where the Court is satisfied that a case pending before it involves a question as to the validity of any Act, Ordinance or Regulation or of any provision contained in an Act, Ordinance or Regulation, the determination of which is necessary for the disposal of the case and is of opinion that such Act, Ordinance, Regulation or provision is invalid or inoperative, but has not been so declared by the High Court to which that Court is subordinate or by the Supreme Court, the Court shall state a case setting out its opinion and the reasons therefor, and refer the same for the opinion of the High Court.
Explanation.- In this section, ‘Regulation’ means any regulation of the Bengal, Bombay or Madras Code or regulation as defined in the General Clauses Act, 1897, or in the General Clauses Act of a State.
A reference in a case which is covered by the Proviso is mandatory. In view of the opening words of the Sections, it must be held to be subject to the provisions of R. 1 of O. 46 which is in the following terms:
Where, before or in the hearing of a suit or an appeal in which the decree is not subject to appeal, or where, in the execution of any such decree, any question of law or usage having the force of law arises on which the Court trying the suit or appeal, or executing the decree, entertains reasonable doubt, the Court may, either of its own motion or on the application of any of the parties, draw up a statement of the facts of the case and the point on which doubt is entertained, and refer such statement with its own opinion on the point for the decision of the High Court.
The second rule permits the Court to pass a final decree in the suit but directs that the decree would not be executed until the receipt of a copy of the judgment of the High Court. This rule is made applicable by Rule 4A to a reference under the Proviso to Section 113.
5. In view of the language of R. 1, it must be held that no reference can be made in a suit in which the decree passed is subject to appeal unless it is covered by the Proviso to Section 113. An appeal under Section 96 of the Code is clearly maintainable against the decree of the Court below in the present case. The question, therefore, remains as to whether the Proviso is applicable in the present case.
6. The Proviso to Section 113 will apply only to a case which involves a question as to validity any (i) Act, (ii) Ordinance, (iii) Regulation or (iv) any provision contained in an Act, Ordinance or Regulation. The trial Court is not empowered to make a reference in a case where the validity of any other provision e.g. a rule, bye-law, order under enactment, et cetera is involved. The impugned orders, Ext. d(a) and Ext. A. are certainly not parts of any Act or Ordinance. The Court below has observed that they are ‘Regulations’ within the meaning of the section. 1 am afraid, there is no warrant for such an assumption. The Explanation to the section, quoted above, indicates that the word “Regulation” means a regulation of the Bengal, Bombay or Madras Code which admittedly it is not, or as explained in the General Clauses Act, 1917 or the Bihar and Orissa General Clauses Act, 1917. The expression has been defined in the two Acts as referring to a regulation made by the President under Article 240 or 243 (now repealed) of the Constitution, or a regulation made by the Governor under para. (5)(2) of the Fifth Schedule to the Constitution, as also a regulation made by the Central Government under the Government of India Act, 1917, or Government of India Act, 1950, or Government of India Act, 1935. A mere reference of these provisions will show that none of the Ext. 6(a) and Ext. A is covered by the definition ‘Regulation’ within the meaning of Section 113 of the Code. I, therefore, hold that the reference made by the Court below is incompetent.
7. It was jointly stated that an appeal by the State of Bihar was filed against the decree of the Munsiff awaiting the decision of this Court in the present case. The parties should now appear before the lower appellate Court and argue the appeal so that it may be disposed of expeditiously.
8. The Civil Reference case is disposed of, as indicated above. There will be no order as to costs of this Court. The order of stay passed by the learned Munsif pending decision of this Court now no longer continues to operate.
Binodanand Singh, J.
9. I agree.