Full Judgment Text
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CASE NO.:
Appeal (civil) 6510 of 2004
PETITIONER:
State of U.P. and Ors.
RESPONDENT:
Ram Sukhi Devi
DATE OF JUDGMENT: 05/10/2004
BENCH:
ARIJIT PASAYAT & C.K. THAKKER
JUDGMENT:
J U D G M E N T
(Arising out of SLP (C) No. 1343 of 2004)
ARIJIT PASAYAT, J.
Leave granted.
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 follows:
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
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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 Government Order.
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.