State of Gujarat Through Secretary and anr. Vs. B.D.Trivedi - Court Judgment

Excerpt:
1. we have heard mr. n. j. shah, learned assistant government pleader appearing for the appellants and mr. s.n. shelat, learned senior counsel assisted by mr. devang trivedi for the respondent. 2. this intra-court letters patent appeal has been filed challenging the interim orders dated 25.06.2010 and 26.02.2010 passed by the learned single judge in special civil application no.1209 of 2010. 3. learned assistant government pleader has placed before us paragraph 26 (c) of the writ petition which reads as under :- “(c) pending admission and hearing of this petition, your lordships may be pleased to restrain the respondents from implementing the impugned order dated 27.01.2010 (annexure-a)” 4. what is challenged in the writ petition is the order dated 27.01.2010. by the said order, the appellants have modified the earlier order of pension dated 31.05.1998 passed by appellants to the effect that the respondent would be getting pension for the post of deputy section officer instead of under secretary. on 26.02.201, in the writ petition, while granting time to the learned assistant government pleader to file affidavit-in-reply, the court granted interim order.the pension for the period of february 2010 was protected and the implementation of the order dated 27.01.2010 was stayed. the effect was that the respondent was to be given pension of the post of under secretary which was the main relief claimed in the writ petition. 5. the apex court in state of u.p. & others v/s. ram sukhi devi, (2005) 9 scc 733 wherein in paragraph 8, the apex court clearly held that final relief cannot be granted by way of interim relief. paragraph 8 of the aforesaid decision is extracted below :- “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.” 6. even after exchange of affidavits, instead of deciding the matter finally, the learned single judge has by his order dated 25.06.2010 confirmed the interim relief granted vide order dated 26.02.2010. since it is well settled by the apex court that by way of interim relief, final relief cannot be granted, therefore, the orders dated 26.02.2010 and 25.06.2010 passed by the learned single judge in special civil application no.1209 of 2010 cannot be maintained and deserves to be set aside. 7. in the result, this appeal succeeds and is allowed. the orders dated 26.02.2010 and 25.06.2010 passed by the learned single judge in special civil application no.1209 of 2010 are set aside. parties shall bear their own costs. 8. before parting, we request the learned single judge to decide special civil application no.1209 of 2010 on merits at an early date subject to his lordships convenience. 9. since the appeal is allowed, no order is required to be passed in the civil application and the same stands disposed of.

Judgment:

1. We have heard Mr. N. J. Shah, learned Assistant Government Pleader appearing for the appellants and Mr. S.N. Shelat, learned Senior Counsel assisted by Mr. Devang Trivedi for the respondent.

2. This Intra-Court Letters Patent Appeal has been filed challenging the interim orders dated 25.06.2010 and 26.02.2010 passed by the Learned Single Judge in Special Civil Application No.1209 of 2010.

3. Learned Assistant Government Pleader has placed before us paragraph 26 (C) of the writ petition which reads as under :-

“(C) Pending admission and hearing of this petition, YOUR LORDSHIPS may be pleased to restrain the respondents from implementing the impugned order dated 27.01.2010 (Annexure-A)”

4. What is challenged in the writ petition is the order dated 27.01.2010. By the said order, the appellants have modified the earlier order of pension dated 31.05.1998 passed by appellants to the effect that the respondent would be getting pension for the post of Deputy Section Officer instead of Under Secretary. On 26.02.201, in the writ petition, while granting time to the learned Assistant Government Pleader to file affidavit-in-reply, the Court granted interim order.

The pension for the period of February 2010 was protected and the implementation of the order dated 27.01.2010 was stayed. The effect was that the respondent was to be given pension of the post of Under Secretary which was the main relief claimed in the writ petition.

5. The Apex Court in State of U.P. & Others V/s. Ram Sukhi Devi, (2005) 9 SCC 733 wherein in paragraph 8, the Apex Court clearly held that final relief cannot be granted by way of interim relief. Paragraph 8 of the aforesaid decision is extracted below :-

“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.”

6. Even after exchange of affidavits, instead of deciding the matter finally, the Learned Single Judge has by his order dated 25.06.2010 confirmed the interim relief granted vide order dated 26.02.2010. Since it is well settled by the Apex Court that by way of interim relief, final relief cannot be granted, therefore, the orders dated 26.02.2010 and 25.06.2010 passed by the Learned Single Judge in Special Civil Application No.1209 of 2010 cannot be maintained and deserves to be set aside.

7. In the result, this appeal succeeds and is allowed. The orders dated 26.02.2010 and 25.06.2010 passed by the Learned Single Judge in Special Civil Application No.1209 of 2010 are set aside. Parties shall bear their own costs.

8. Before parting, we request the Learned Single Judge to decide Special Civil Application No.1209 of 2010 on merits at an early date subject to His Lordships convenience.

9. Since the appeal is allowed, no order is required to be passed in the Civil Application and the same stands disposed of.