U.P. Avas
Evam Vikas Parishad & Anr Vs. Rajendra Kumar Aggarwal & Ors [2008] Insc
276 (22 February 2008)
Tarun
Chatterjee & Harjit Singh Bedi
CIVIL
APPEAL NO 1604 OF 2008 (Arising our of SLP (C) No. 3097 of 2008) O R D E R
1.
Leave granted.
2.
This appeal by special leave is directed against an interim order passed by the
High Court of Judicature, Allahabad at Lucknow in a writ petition by which the
respondents have challenged the constitutional validity of the provisions of
Article 16 (4-A) of the Constitution of India and Rule 8(A) of the UP
Government Servants Seniority (Third Amendment) Rules 2007. The High Court,
while granting the interim order, quoted herein below, has observed that since
in a bunch of writ petitions, the question regarding the constitutional
validity of the provisions of Article 16 (4-A) of the Constitution of India and
Rule 8(A) of the UP Government Servants Seniority (Third Amendment) Rules 2007
is already under challenge and the interim order, quoted herein below, has
already been passed in those bunch of writ petitions, similar interim order
shall also be passed in the present writ application.
3. The
interim order granted by the High Court runs as under: - "In the meantime,
as an interim measure, we provide that the seniority of the petitioners as
existing prior to the enforcement of the U.P. Government Servants Seniority
(Third Amendment) Rules, 2007, shall not be disturbed in pursuance of the
Rules."
4. Mr.
Trivedi, the learned senior counsel appearing for the appellants has drawn our
attention to the fact that since the constitutional validity of Article 16(4-A)
has already been upheld in application itself could not be entertained and in
that view of the matter, the question of granting the interim order shall not
arise at all.
5. Mr.
P.P. Rao, the learned senior counsel appearing for the respondents, however,
has drawn our attention to an interim order passed in a pending writ petition
in which the constitutional validity of Article 16 (4-A) of the Constitution of
India and Rule 8(A) of the UP Government Servants Seniority (Third Amendment)
Rules 2007 has been challenged and submitted that the decision of this court in
M.
another
division bench of the High Court after explaining the said decision and the
interim order in the manner indicated above has been continued. Therefore, Mr. Rao
submitted that instead of interfering with the interim order passed by the
Division Bench of the High Court, direction may be given to the High Court to
dispose of the pending writ application at an early date preferably within 3
months from this date.
6.
Having heard the learned counsel for the parties and after going [supra] in
which the constitutional validity of the provisions of Article 16 (4-A) of the
Constitution of India and Rule 8(A) of the UP Government Servants Seniority (Third
Amendment) Rules 2007 has already been upheld, we are unable to agree with Mr.
P.P. Rao that at the interim stage, there was any occasion for the High Court
to grant the interim order in this pending writ application. In any view of the
matter, in our view, it was not a fit case for grant of the interim order.
It is
true that another Division Bench of the High Court, after India [supra], has
granted the interim order but we feel that since the grant of interim order is
discretionary in nature and therefore, only because an interim order has been
passed by another coordinate bench of the High Court, it cannot be said that
the interim order should also be passed in this pending writ application when the
constitutional validity of Article 16 (4-A) of the Constitution of India and
Rule 8(A) of the UP Government Servants Seniority (Third Amendment) Rules 2007
has already been upheld.
7. For
the reasons aforesaid, we set aside the interim order, as quoted hereinabove,
and request the High Court to dispose of the pending writ application at an
early date preferably within 2 months from the date of communication of this
order to the High Court. The appeal is allowed to the extent indicated above.
There will be no order as to costs.
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