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2006 DIGILAW 816 (CAL)

ABHA BERA v. STATE

2006-12-21

ARUNABHA BASU, PRANAB KUMAR CHATTOPADHYAY

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( 1 ) THE appellant herein being aggrieved by the order dated November 6, 2006 passed by the learned Single Judge in W. P. No. 28198 (W) of 2006 has filed the instant appeal and also filed an application for injunction in connection with the said appeal. ( 2 ) ON examination of the impugned order under appeal, we find that the learned Single Judge refused to extend the interim order granted earlier by the learned Vacation Judge on the ground that such interim order would virtually grant final relief at the admission stage although, according to the learned Judge, a strong prima facie case has been made out by the writ petitioner. We fail to understand what the learned Single Judge actually wanted to mean by using the expression "admission of the present writ petition" when the present writ petition was undisputedly moved for the first time before the learned Vacation Judge on 23rd October, 2006 and the said learned Vacation Judge passed an interim order on the said wirt petition granting interim relief to the petitioner. On reopening of the Court after puja Vacation the said writ petition was listed before the learned Single judge on 6th November, 2006 when the said learned Single Judge even after coming to the conclusion that a strong prima facie case has been made out by the writ petitioner refused to pass any interim order on the sole ground that the same would amount to grant of final relief at the admission stage. Scrutinising the writ petition it appears that the writ petitioner prayed for several direction upon the respondent authorities and claimed various reliefs including declaration of Clause 4 (B) of the procedure framed under the West Bengal School Service Commission Act as unconstitutional and ultra vires. ( 3 ) ON 23rd October, 2006 the learned Vacation Judge passed an interim order restraining the respondents from giving effect to the order dated 9th september, 2005 issued by the Chairman West Bengal Regional School service Commission being Annexure P-6 to the Writ Petition and also the subsequent communication dated 27th September, 2006 issued by the secretary of the concerned school being Annexure P-7 of the writ petition till one week after the vacation or until further order whichever is earlier. ( 4 ) IN the present case, interim order was admittedly granted by the learned vacation Judge upon hearing the submissions of the learned Advocate of the writ petitioner and the State-respondents. The said interim order was not extended by the learned Single Judge subsequently on 6th November, 2006 even though no application was filed by the respondent opposing such extension of interim order not any specific objection of the respondents regarding extension of the interim order has been recorded in the order under appeal. ( 5 ) THE learned Single Judge in the order under appeal specifically mentioned that the interim order should not be granted as the same would amount to grant of final relief in the facts of the present case which we respectfully disagree. ( 6 ) FURTHERMORE, staying of the operation of the impugned orders does not and cannot mean cancellation and/or quashing of the same. In the present case also the impugned orders passed by the West Bengal School Service commission and the school authorities were only stayed by the interim order passed by the learned vacation Judge for a limited period and if the same was further extended then the same could not grant final relief to the petitioner. ( 7 ) UPON hearing the learned Counsel appearing for the parties and on examination of the writ petition and other available documents, we are convinced that by the said interim order the learned Vacation Judge did not grant final relief to the writ petitioner. As a matter of fact, by the aforesaid interim order the impugned decisions of the West Bengal Regional School service Commission and the school authorities have not been quashed and the same have been only stayed for some time although the writ petitioner specifically claimed that as final relief the same should be quashed or set aside apart from granting specific declaration that clause 4 (B) of the procedure framed under the West Bengal School Service Commission Act is unconstitutional and ultra vires. Furthermore, it is also not in dispute that no application has been filed on behalf of the respondents for vacating the interim order granted by the learned Vacation Judge nor any argument was advanced to that effect. Furthermore, it is also not in dispute that no application has been filed on behalf of the respondents for vacating the interim order granted by the learned Vacation Judge nor any argument was advanced to that effect. ( 8 ) NORMALLY, no Court should refuse to extend the interim order granted by the previous Judge in absence of a proper application submitted by the aggrieved party with sufficient materials unless the concerned Judge is satisfied that the said interim order was passed due to misrepresentation and/or suppression of material facts. ( 9 ) MR. Gangopadhyay, representing the School Service Commission, fairly submits that the said respondent School Service Commission is only interested to defend its action before this Court and not very much interested relating to the issue regarding the extension of the interim order granted by the learned vacation Judge. ( 10 ) HAVING heard the learned Counsel appearing for the parties and on examination of the writ petition and other available records and further considering the impugned order under appeal we are also of the opinion that a strong prima facie case has been made out by the petitioner for granting interim order in the matter which, in fact, was granted by the learned vacation Judge on 23rd October, 2006. Furthermore, we do not agree that by the said interim order any final relief can be granted to the petitioner. ( 11 ) NEEDLESS to mention that various interesting issues have been raised in the writ petition which are required to be decided finally after filing of affidavits by the parties and we do not want to express any opinion on the said issues at this stage. However, we are of the opinion that there is no valid reason for not extending the interim order granted initially by the learned Vacation Judge on 23rd October, 2006. ( 12 ) FOR the aforementioned reasons, we extend the interim order passed on 23rd October, 2006 by the learned Vacation Judge till the disposal of the writ petition. The order dated 6th November, 2006 passed by the learned single Judge thus stands modified to the extent mentioned hereinabove. ( 13 ) THE instant application, therefore, stands disposed of. ( 14 ) THERE will be no order as to costs. The order dated 6th November, 2006 passed by the learned single Judge thus stands modified to the extent mentioned hereinabove. ( 13 ) THE instant application, therefore, stands disposed of. ( 14 ) THERE will be no order as to costs. ( 15 ) IN view of the disposal of this application in the manner mentioned hereinabove, no further issue is required to be decided in the appeal. Accordingly, by consent of the parties the appeal is treated as on day's list and the same is also disposed of without any further order as to costs. Application and appeal disposed of.