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Madhya Pradesh High Court · body

2001 DIGILAW 430 (MP)

M. P. Electricity Board v. Vasantrao Shinde

2001-05-16

N.G.KARAMBELKAR, S.P.SRIVASTAVA

body2001
Judgment ( 1. ) THIS Letters Patent Appeal is directed against an ex parte interlocutory order passed by a learned Single Judge whereunder the present appellants had been directed to ensure that the petitioner/respondent is allowed to work and be paid monthly salary and allowances of the post of Telephone Operator/t. A. Grade-II until further orders. ( 2. ) WE have heard the learned counsel representing the appellants as well as the learned counsel representing the petitioner/respondent, and have carefully perused the record. ( 3. ) THE writ petition giving rise to his appeal had been filed praying for a direction requiring the present appellants to absorb and regularise the service of the petitioner on the post of Telephone Operator or on equivalent post of Testing Assistant, Grade-II with a further direction requiring the appellants to pay to the petitioner the pay and allowances attached to the post of Telephone Operator with effect from 3-10-1991. It had further been prayed that the present appellants be directed not to demote him to the post of Line Attendant, Grade-II and for quashing of the order dated 13-6-1997 passed by the appellants. ( 4. ) IT may be noticed that the writ petition had been presented on 8-3-1999 and the ex parte interim order had been granted by the learned Single Judge on 14-7-1999. ( 5. ) THE facts in brief shorn of details and necessary for the disposal of this appeal lie in a narrow compass : The petitioner-respondent had been initially appointed on nominal muster roll on daily wage basis on 1-10-1991. Vide an order dated 20-2-1993, the petitioner-respondent who was NMR employee was appointed on the post of Line Attendant, Grade-II on a fixed pay of Rs. 970/- in the time scale of Rs. 970-1600, on sports ground, as a special case indicating that he will be absorbed in the cadre of Line Attendant, Grade-II as soon as vacancies arise in that cadre and till then his pay will be drawn from the vacant post of Daftari. It was also made clear that his case for regular appointment will be considered subject to his satisfactory performance and according to his seniority at the regional level after selection by the regional selection committee in due course. ( 6. It was also made clear that his case for regular appointment will be considered subject to his satisfactory performance and according to his seniority at the regional level after selection by the regional selection committee in due course. ( 6. ) THE petitioner-respondent had filed a writ petition bearing No. 792/96 raising a grievance that he was not being paid the salary admissible to the post of the Line Attendant, Grade-II and his service had not been regularised. ( 7. ) DURING the course of the hearing of the aforesaid writ petition, the present petitioner/respondent had contended that since he had worked as a Telephone Operator and had been sent for the training of Telephone Operator, he had a right to be appointed as a Telephone Operator. ( 8. ) THE learned Single Judge observed that the petitioner could not point out what was his legal right to be appointed on the post of Telephone Operator. ( 9. ) HOWEVER, the writ petition was disposed of vide the order dated 20-8-1996 providing that if the post of Telephone Operator is lying vacant, the Board shall consider the claim of the petitioner for the post of Telephone Operator. ( 10. ) THE Board challenged the aforesaid order of the learned Single Judge by means of Letters Patent Appeal No. 415/96 which was disposed of vide the order dated 17-1-1997. ( 11. ) THE Division Bench while disposing of the Letters Patent Appeal maintained the direction of the learned Single Judge to the effect that the claim of the petitioner for appointment on the post of Telephone Operator be considered. However, the other observation to the effect that at present the petitioner cannot claim right to be regularised on the post of Telephone Operator was expunged holding the same to be premature. ( 12. ) THE claim of the petitioner/respondent was considered thereafter and rejected by the Board vide the order dated 13-6-1997. It was observed in that order that the post of Telephone Operator was required to be filled up by direct recruitment on the basis of the merit adjudged in the written test and the interview. ( 12. ) THE claim of the petitioner/respondent was considered thereafter and rejected by the Board vide the order dated 13-6-1997. It was observed in that order that the post of Telephone Operator was required to be filled up by direct recruitment on the basis of the merit adjudged in the written test and the interview. It was also indicated that the petitioner did not hold the minimum qualifications and did not satisfy the minimum eligibility criteria for being considered for the appointment on the post which was required to be filled up taking recourse to the method of the direct recruitment. ( 13. ) IT was thereafter that the present writ petition had been filed by the petitioner/respondent. ( 14. ) THE learned Single Judge in his impugned order has issued the ex parte interim directions referred to hereinabove which were shown to have been issued taking into consideration the facts and circumstances including the implications arising under the order dated 30-8-1996 passed by a learned Single Judge in the earlier writ petition filed by the petitioner and the order passed by the Division Bench dated 17-1-1997 referred to hereinabove. ( 15. ) IT is well known rule of practice and procedure that at an interlocutory stage a relief which is asked for and is available at the disposal of the matter is not granted unless there is any special reason to be indicated in clear terms in an interlocutory order. ( 16. ) AN interlocutory order, it may be noticed is an order by way of an aid to the proper adjudication of the claims and disputes arising in the case. Such orders do not dispose of any dispute or claim which is a subject matter of the main case or the original proceeding itself. ( 17. ) THE present appeal has been filed under Clause X of the Letters Patent. An appeal is permissible under that provision from the judgment of one Judge of the High Court subject to certain conditions. Nonetheless, the order must amount to a "judgment" before it could be taken to be appealable. An order affecting the vital and valuable rights amounting to a pre-hearing decision have to be taken to be falling within the expression "judgment". ( 18. ) IN its decision in the case of Mt. Daroupadi Debi and another Vs. S. K. Dutt and another, reported in AIR 1957 All. An order affecting the vital and valuable rights amounting to a pre-hearing decision have to be taken to be falling within the expression "judgment". ( 18. ) IN its decision in the case of Mt. Daroupadi Debi and another Vs. S. K. Dutt and another, reported in AIR 1957 All. 48 , it had been indicated by the Allahabad High Court that the expression "judgment" as used in the Letters Patent could not be equated with the judgment as contemplated under the Civil Procedure Code. ( 19. ) IN the present case, what is apparent is that the learned Single Judge vide the impugned order has in fact granted the relief to the petitioner which could be available at the disposal of the writ petition; without assigning any special reasons. ( 20. ) IT will be useful to notice at this stage the observations of the Honble Apex Court in its decision in the case of Union of India Vs. Era Educational Trust and another, reported in (2000) 5 SCC 57 . ( 21. ) THE Honble Apex Court in its aforesaid decision had indicated that the extraordinary powers under Article 226 of the Constitution of India are to be exercised for rendering justice in accordance with law and further that even though Order XXXIX of the Civil Procedure Code would not be applicable at the stage of granting interim relief in a petition under Article 226 or 227 of the Constitution of India, but at the same time various principles laid down under Order XXXIX of the aforesaid Code for granting ad interim or interim reliefs are required to be taken into consideration. Referring to its earlier decision in the case of Morgan Stanley Mutual Fund Vs. Referring to its earlier decision in the case of Morgan Stanley Mutual Fund Vs. Kartick Das, reported in (1994) 4 SCC 225 , it was indicated that as a principle, ex parte injunction could be granted only under exceptional circumstances and the factors which should weigh with the Court in the grant of ex parte injunction, which were indicated, included the factor as to whether irreparable or serious mischief will ensue to the applicant and also the factor whether the refusal of ex parte injunction would involve greater injustice than the grant of it would involve and further that the ex parte injunction even if granted should be for a limited period of time, emphasising further that the general principles like prima facie case, balance of convenience and irreparable loss should also be considered by the Court. ( 22. ) IN its decision in the case of Amina Ahmed Dossa and others Vs. State of Maharashtra, reported in JT 2001 (1) SC 530, the Apex Court had clarified that an interlocutory order in taw means, not that which decides the cause but which only settles intervening matter relating to the cause. Such an order is made pending the cause and before the final hearing on the merits. It is made to secure some end and purpose necessary and essential to the progress of the case and generally collateral to the issues to be settled by the Court in the final judgment. Orders passed as steps-in-aid of the pending proceedings amount to interlocutory orders. ( 23. ) IT may further be noticed that from the materials already brought on record, it was apparent that the petitioner/respondent had not been selected for appointment as against the post of Telephone Operator which required to be filled up taking recourse to the method of direct recruitment after judging the merits on the basis of the performance in the written examination and the interview. There could be no regularisation de hors the rules in force. In the garb of regularisation, a mode of recruitment other than that as prescribed under the rules could not be provided. There could be no regularisation de hors the rules in force. In the garb of regularisation, a mode of recruitment other than that as prescribed under the rules could not be provided. Even the appointment of the petitioner on the post of Line Attendant, Grade-II was on a fixed salary purely on temporary basis and that too subject to the condition that his case for appointment on regular establishment was to be considered subject to his satisfactory performance and according to his seniority at the regional level and further after selection by the regional selection committee. There is nothing to indicate on the record that the petitioner-respondent had any statutory right as claimed. ( 24. ) WE are of the considered opinion that the impugned order amounts to a pre-hearing judgment" and since it vitally affects the rights of the parties and virtually has the effect of releasing in favour of the petitioner the benefits flowing from the regular appointment granting him the ultimate relief claimed in the petition, it clearly falls within the ambit of the expression "judgment" as contemplated under Clause X of the Letters Patent. ( 25. ) THE learned counsel for the respondent has tried to urge drawing support from a decision of this Court in the case of Raymond Cement Works, Bilaspur and another Vs. State of M. P. and others, reported in 1999 (2) MPLJ 689 , that no Letters Patent Appeal is maintainable against an order passed by the learned Single Judge in a writ petition vacating the stay order or confirming the same. ( 26. ) IN the aforesaid decision, it maybe noticed that it had been indicated that the Letters Patent Appeal will only lie in case where there is adjudication of the rights of the parties or controversy involved in the matters and the interlocutory order which does not decide the controversy finally are not appealable. In that case, initially, the entire demand which was subject matter of the writ petition had been stayed but the said order was subsequently modified with the direction for the payment of only 50% of the amount. It was not a case where any mandatory injunction had been granted. In that case, initially, the entire demand which was subject matter of the writ petition had been stayed but the said order was subsequently modified with the direction for the payment of only 50% of the amount. It was not a case where any mandatory injunction had been granted. Further, it was not a case where the order could fall within the ambit of the expression "pre-hearing judgment" whereunder one of the final reliefs claimed in the writ petition had been granted at the initial stage postponing the hearing of the writ petition. ( 27. ) THE aforesaid decision cannot come to the rescue of the respondent. ( 28. ) THIS appeal in our considered opinion is clearly maintainable and is well founded. ( 29. ) TAKING into consideration the facts and circumstances as brought on record including those noticed hereinabove, we are satisfied that sufficient ground has been made out for an interference in the impugned order. ( 30. ) IN the result, this appeal succeeds in part and the order of the learned Single Judge impugned in the present appeal is set aside. ( 31. ) IT will however be open to the respondent to move a fresh application seeking interim relief which application shall be dealt with on its own merits in accordance with law. ( 32. ) THERE shall however be no-order as to costs. ( 33. ) LPA Parity allowed.