of U.P. & Ors Vs. Ram Sukhi Devi  Insc 608 (5 October 2004)
ARIJIT PASAYAT & C.K. THAKKER (Arising out of SLP (C) No. 1343 of 2004) ARIJIT PASAYAT, J.
The State of U.P. calls in question legality of the judgment passed by a Division
Bench of the Allahabad High Court dismissing the Special Appeal filed by the
present appellants. The Division Bench upheld the interim order passed by
learned Single Judge dated 24.6.2002 in Writ Petition No.3334/2002 (SS).
Background facts as projected by the appellants in a nutshell are as
Respondent's husband was appointed as a part-time tubewell operator on
14.6.1989. While Uttar Pradesh Recruitment of Dependents of Government Servant
Dying-in-Harness Rules, 1974 (in short the '1974 Rules') were in operation, in
compliance with the judgment passed by this Court in some cases on 16.12.1996
Uttar Pradesh Sinchai Vibhag Mein Nalkoop Chalakon Ke Pado Par Anshalik Nalkoop
Chalakon Ke Viniyamitikaran Niyamawali, 1996 (hereinafter referred to as the
'1996 Rules') was notified and same was made applicable with effect from the
date of notification. Under Sub-rule (1) of Rule 4 of the said Rules, the cut
off date was fixed to be 1.10.1986. On 26.10.1998 a Government order was issued
by the State Government clarifying that under the 1974 Rules benefit could not
be given to the dependents of the part-time employees.
On 15.11.2001 husband of the respondent died leaving behind the respondent
and four children. On 3.4.2002 respondent submitted an application before the
Executive Engineer, Tubewell Division-I, Sitapur (appellant No.4 herein)
seeking appointment under the 1974 Rules. Her request was turned out on the
ground that she was not eligible for such appointment under the 1974 Rules.
Writ Petition No.3334/2002 (SS) was filed by the respondent, inter alia,
seeking for a direction to the present appellants to appoint the writ
petitioner in any suitable Class IV post under the Dying-in-Harness Rules.
Learned Single Judge while issuing notice directed that the competent
authorities shall consider the writ petitioner's claim of giving compassionate
appointment under the Dying-in-Harness Rules ignoring the Government Order
dated 26.10.1998 within the stipulated period. Legality of the order was
challenged before the Division Bench by filing a Special Leave. The same has
been dismissed by the impugned judgment.
The High Court disposed of the appeal directing that the present respondent
should be given a Class IV appointment within the stipulated time. It was
observed that on the facts of the case without going into the legal merits on a
humanitarian consideration, compassionate appointment should be made.
In support of the appeal, learned counsel for the appellants submitted that
the direction given by the learned Single Judge that the appointment should be
made during the pendency of the writ application ignoring the Government Order
dated 26.10.1998 is clearly unsustainable. Division Bench of the High Court did
not consider legality of the order and without going into the merits
straightaway disposed of the appeal on purportedly humanitarian ground. It was
submitted that the direction as given by the learned Single Judge and affirmed
by the Division Bench run counter to the specific provision in the operative
Per contra, learned counsel for the respondent submitted that both the
learned Single Judge and the Division Bench have acted on humanitarian grounds
and this Court should not interfere with any interim order passed by learned
Single Judge which has been upheld by the Division Bench.
To say the least, approach of the learned Single Judge and the Division
Bench is judicially unsustainable and indefensible. The final relief sought for
in the writ petition has been granted as an interim measure. There was no
reason indicated by learned Single Judge as to why the Government Order dated
26.10.1998 was to be ignored. Whether the writ petitioner was entitled to any
relief in the writ petition has to be adjudicated at the time of final disposal
of the writ petition.
This Court has on numerous occasions observed that the final relief sought
for should not be granted at an interim stage. The position is worsened if the
interim direction has been passed with stipulation that the applicable Government
Order has to be ignored. Time and again this Court has deprecated the practice
of granting interim orders which practically give the principal relief sought
in the petition for no better reason than that of a prima facie case has been
made out, without being concerned about the balance of convenience, the public
interest and a host of other considerations. [See Assistant Collector of
Central Excise, West Bengal v. Dunlop India Ltd. (1985 (1) SCC 260 at p. 265),
State of Rajasthan v. M/s Swaika Properties (1985 (3) SCC 217 at p.224), State
of U.P. and Ors. v. Visheshwar (1995 Supp (3) SCC 590), Bharatbhushan Sonaji Kshirsagar
(Dr.) v. Abdul Khalik Mohd. Musa and Ors. (1995 Supp (2) SCC 593), Shiv Shankar
and Ors. v. Board of Directors, U.P.S.R.T.C. and Anr. (1995 Supp (2) SCC 726)
and Commissioner/Secretary to Govt. Health and Medical Education Department
Civil Sectt., Jammu v. Dr. Ashok Kumar Kohli (1995 Supp (4) SCC 214).] No basis
has been indicated as to why learned Single Judge thought the course as
directed was necessary to be adopted. Even it was not indicated that a prima
facie case was made out though as noted above that itself is not sufficient.
We, therefore, set aside the order passed by learned Single Judge as affirmed
by the Division Bench without expressing any opinion on the merits of the case
we have interfered primarily on the ground that the final relief has been
granted at an interim stage without justifiable reasons. Since the controversy
lies within a very narrow compass, we request the High Court to dispose of the
matter as early as practicable preferably within six months from the date of
receipt of this judgment.
The appeal is allowed with no order as to costs.