Full Judgment Text
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CASE NO.:
Appeal (civil) 1604 of 2008
PETITIONER:
U.P. Avas Evam Vikas Parishad & Anr
RESPONDENT:
Rajendra Kumar Aggarwal & Ors
DATE OF JUDGMENT: 22/02/2008
BENCH:
Tarun Chatterjee & Harjit Singh Bedi
JUDGMENT:
JUDGMENT
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 \026 (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 \026 (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
M. Nagaraj Vs. Union of India [(2006) 8 SCC 212], the writ
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 \026 (Third Amendment) Rules 2007
has been challenged and submitted that the decision of this court in M.
Nagaraj Vs. Union of India [supra] has already been considered by
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.
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6. Having heard the learned counsel for the parties and after going
through the decision of this court in M. Nagaraj Vs. Union of India
[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 \026 (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
considering the decision of this court in M. Nagaraj Vs. Union of
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 \026 (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.