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2000 DIGILAW 1274 (ALL)

KANPUR JAL SANSTHAN v. DILAWAR ALI

2000-09-28

BHAGWAN DIN, G.P.MATHUR

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G. P. MATHUR, J. ( 1 ) THIS special appeal has been preferred against the order dated 2. 12. 1999 of a learned single judge passed in Writ Petition No. 5497 of 1997, Dilawar Ali and 23 others v. State of U. P. and others. ( 2 ) SRI Arun Tandon learned counsel for the appellant has contended that though the impugned order is an interim order but it has not only granted a relief which could be given only at the stage of final hearing but has also granted such relief which was not even claimed in the writ petition. Sri Fauzdar Rai learned counsel for the contending respondents has supported the order and has submitted that on the facts and circumstances of the case the order is fully Justified. ( 3 ) IN order to appreciate the contentions raised at the bar, it is necessary to reproduce the impugned order which reads as under : "heard learned counsel for the petitioner. None appears for the respondents. Since the petitioners are working since 1983 to 1985. therefore, the respondents are directed to consider the case of the petitioners for reguiarisation. During the pendency of regularisation. the petitioners shall be paid minimum of the pay scale against the post they are working. " in the writ petition, the following reliefs have been claimed by the petitioners : " (i) to issue a writ of mandamus, order or direction in the nature of mandamus commanding the respondents to pay the petitioners salary which is being paid to the regular employee in the similar situation since the same became due and continue to pay with admissible benefits till the petitioners are in service. (ii) to issue any such other writ, order or direction as this Honble Court may deem fit and proper under the circumstances of the case. (iii) to award the costs of the petition to the petitioners. " the petitioners have not claimed any relief for their regularisation in service in the writ petitions filed by them. However, by the impugned order dated 2. 12. 1999. a direction has been issued at an interim stage commanding the respondents to consider the case of the petitioners for regularisation. In our opinion, no such direction could have been issued in view of the nature and scope of the writ petition and that too by an interim order. However, by the impugned order dated 2. 12. 1999. a direction has been issued at an interim stage commanding the respondents to consider the case of the petitioners for regularisation. In our opinion, no such direction could have been issued in view of the nature and scope of the writ petition and that too by an interim order. ( 4 ) SRI Arun Tandon learned counsel for the appellant has next submitted that a post can be created in Jal Sansthan with the prior approval of the State Government under Section 27 of the u. P. Water Supply and Sewerage Act. 1975 and the Jal Sansthan cannot by itself-create any post. He has further submitted that the petitioners have not disclosed in the writ petition whether they were continuously working ever since their initial appointment and whether the petitioners have the prescribed minimum qualification for the post of which they were claiming salary. We find substance in the submission made by the learned counsel for the appellant. In view of the provisions of the Act, the Jal Sansthan cannot create any post save with the approval of the State government. In the writ petition, the petitioners have not averred that they were continuously working ever since the date of their first appointment nor they have averred that there has been no break in their service. Similarly no averment has been made with regard to their qualification. These are the necessary factors which have to be taken into consideration while taking a decision for payment of same salary to the petitioners which is being paid to a regular employee. ( 5 ) THERE is another aspect of the matter which deserves consideration. The impugned order virtually grants a relief which may be granted to the writ petitioners at the disposal of the writ petition if their claim is found to be sustainable. In State of U. P. v. Kumari Renu Tiwari, 1993 uplbec 1323, a division Bench of our Court, after considering several decisions of Apex court, held as follows : "an interim order is generally passed to preserve the state of affairs obtaining on the date of institution of the proceedings. It is seldom passed to alter that position. In State of U. P. v. Kumari Renu Tiwari, 1993 uplbec 1323, a division Bench of our Court, after considering several decisions of Apex court, held as follows : "an interim order is generally passed to preserve the state of affairs obtaining on the date of institution of the proceedings. It is seldom passed to alter that position. Thus, an interim order may be passed to restrain the respondent from interfering in the possession of the petitioner over an immovable property, or to stay the operation of an order of termination of service which has not taken effect or to stay the alteration in the scale of pay. Moreover, the learned single Judge has granted to the respondent the relief which may be granted to him at the disposal of the writ petition if his claim is found to be sustainable. There is no indication in the judgment as to how the appellants will be restored to the origir at position. if the writ petition ultimately falls. Accordingly, for all practical purposes, the relief granted to the respondent through the judgment under appeal is final. Such an order/judgment given at the interim stage can not be sustained. " ( 6 ) SIMILAR view was taken in U P. Junior Doctors Action Committee v. B. Sheetal Nandwani. JT 1992 (1) SC 571 and Committee of Management v. Sushil Kumar Sharma. 1993 (2) UPLBEC 1263. Recently in Special Appeal No. 1230 of 1999. Indian Telephone Industries Ltd. v. Director (D. O. T.), decided on 3. 3. 2000. a similar order passed by a learned single Judge directing the employer to continue the writ petitioner in service and pay him salary was set aside on this ground. ( 7 ) ABOUT eight hundred employees of the forest department had filed large number of writ petitions in this Court claiming regularisation in service. A Division Bench while allowing the writ petitions, issued direction to constitute a committee to consider the case of regularisation and further directed that the employees shall be paid regular wages till their matter is finally disposed of. Against the said order, the State of U. P. preferred Civil Special Appeal No. 3634 of 1998, State of U- P. v. Putti Lal and others, In the Supreme Court which by its order dated 27. 9. Against the said order, the State of U. P. preferred Civil Special Appeal No. 3634 of 1998, State of U- P. v. Putti Lal and others, In the Supreme Court which by its order dated 27. 9. 1999 set aside the direction for payment of regular salary with the following order : "as a result of the orders of this Court, the question of paying the regular wages to the daily rated workers cannot be allowed. The persons working wilt be paid only the amount payable to daily wagers. " In our opinion, the view taken by the Apex Court in the aforesaid case is also applicable here. ( 8 ) FOR the reasons mentioned, we are of the opinion that the impugned order of the learned single judge cannot be sustained and has to be set aside. ( 9 ) THE special appeal is, accordingly, allowed and the impugned order dated 2. 12. 1999 of the learned single Judge is set aside. The record shows that the writ petition has not been heard for admission though it was filed in February, 1997. We accordingly direct that the writ petition shall be listed for admission before the appropriate Bench on 18. 12. 2000. It is made clear that any observation made in this order is only for the purpose of deciding the special appeal and shall not be construed as an expression of opinion regarding the merits of the claim made by the parties.