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2016 DIGILAW 846 (KER)

VASAVAN N. , ASSISTANT AUDIT OFFICER v. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDHYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM

2016-10-06

DAMA SESHADRI NAIDU

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JUDGMENT : While the petitioner, now retired, was an Assistant Audit Officer, he had a grievance that he had been denied promotion to the next category-Accounts Officer/Regional Audit Officer. His juniors were promoted. This Court, on 12.04.2007, issued an interim direction to the respondent Board to provisionally promote the petitioner under Rule 31(a)(i) of Part II of K.S. & S.S.R., if any of his admitted juniors had already been promoted. 2. Accordingly, the petitioner was promoted; later he retired from service while the writ petition had been pending. 3. The learned counsel for the petitioner submits that since the interim order has already been acted upon, and the petitioner has even retired, nothing further survives in the matter to be adjudicated upon. According to him, the interim order may be made absolute, and the writ petition closed. 4. It is, indeed, a very convenient, painless method to dispose of a writ petition-grant an interim order; direct the authorities to act on it; later, with the efflux of time, declare that the lis does not survive; and finally close it-minus adjudication. 5. Nevertheless, the Apex Court has repeatedly cautioned against the court's permitting the suitors to withdraw their proceedings or dismissing the writ petitions as having become infructuous-primarily, on the premise that the interim order had been complied with. It is deprecated. The judicial dictum is loud and clear as has been laid in Union of India v. Narender Singh, 2005 (6) SCC 106 , State of Gujarat v. Dilipbhai Shaligram Patil, 2006 (8) SCC 72 and Abhimanuyoo Ram v. State of U.P., 2008 (17) SCC 73. 6. In Narender Singh, questioning an Administrative Tribunal's order, the aggrieved State filed a writ petition. While it was pending, the authorities implemented the Tribunal's order. The High Court closed the writ petition holding that it had become infructuous. In that context, the Supreme Court has held that merely because an order of reinstatement had been implemented by the authorities, that did not render the writ petition infructuous. The Court has cited with approval its earlier decision in Union of India v. G.R. Prabhavalkar, (1973) 4 SCC 183 . 7. In that context, the Supreme Court has held that merely because an order of reinstatement had been implemented by the authorities, that did not render the writ petition infructuous. The Court has cited with approval its earlier decision in Union of India v. G.R. Prabhavalkar, (1973) 4 SCC 183 . 7. In Shree Chamundi Mopeds Ltd. v. Church of South India Trust Assn., (1992) 3 SCC 1 , the Supreme Court has distinguished between an order getting stayed and its getting quashed: Quashing of an order results in the restoration of the position as it stood on the date of the order which has been quashed. The stay of operation of an order does not, however, lead to such a result. It only means that the order which has been stayed would not be operative from the date of the stay order. And it does not mean that the said order has been wiped out from existence. 8. In Abhimanyoo Ram, the Supreme Court has noted with concern the raising trend among the litigants to secure the relief as an interim measure, and then avoid adjudication on merits. The modus operandi, the Court observes, adopted in such matters is as follows: The litigant approaches the court in the last minute for relief with an interim prayer. He persuades the court to grant the interim relief by highlighting the urgency, irreparable loss, and balance of convenience. He obtains the interim relief and secures the desired benefit with the help of such interim order. Once the purpose of securing the interim order is achieved (particularly where the interim order granted is the same as the final relief prayed), he makes an innocuous submission to the court that he does not want to press the petition and gets the matter disposed of, thereby achieving the goal of securing relief without adjudication. He takes advantage of the fact that invariably courts do not spell out the consequences when dismissing the petitions as not pressed. The result is that in many cases, a litigant who would not get the relief on detailed scrutiny of his claim during a contested final hearing gets away with undeserved relief secured by way of an interim order. 9. Abhimanyoo Ram further emphatically holds that any attempt by a litigant to retain the benefit of the interim order by avoiding final adjudication requires to be deprecated. 9. Abhimanyoo Ram further emphatically holds that any attempt by a litigant to retain the benefit of the interim order by avoiding final adjudication requires to be deprecated. In fact, it requires to be dealt with sternly. Courts should bestow caution while dismissing cases where interim relief had been granted as not pressed or as withdrawn. The courts cannot proceed on the assumption that all concerned would know about the legal consequences of dismissal and, therefore, it is not necessary to make any order concerning the interim relief already granted. Even though the legal effect of dismissal on withdrawal is vacation of the interim order, the respondents concerned not being aware of the legal consequences, will not take consequential action but continue the benefit extended to the petitioner by the interim order, unless there is a specific direction spelling out the consequences. Sometimes, the departmental officials concerned, because of collusion with the petitioners who had obtained the interim relief, will not withdraw or reverse the benefit granted to the petitioner in pursuance of the interim order, when the petition is withdrawn or dismissed as not pressed. Therefore, appropriate consequential directions cancelling or vacating the interim order should be passed so as to restore status quo ante, cautions the Apex Court. 10. Finally, Abhimanyoo Ram observes that in cases where the prayer for dismissal (as not pressed or withdrawn) is made even before the respondent is served, then the order vacating the interim order should be communicated to the authority against whom the interim order was issued, so that any benefit extended because of the interim order can be withdrawn or reversed. The only exception is where the respondents agree for the continuance of the interim order as a final relief, or agree that the benefit of the interim order already granted need not be disturbed, in which event, the court should record such submission and pass appropriate consequential orders. 11. Telling as the above proposition of law is, to avoid any hasty closure of the matter without adjudication on merits, this Court decided to hear the respondent employer as well. Yesterday, when the matter was listed, none represented the respondent. Therefore, I directed it to be listed today under the caption 'for disposal' with a view to letting the respondent know that the matter would be taken up and disposed of on merits. 12. Today, too, the respondent remains unrepresented. Yesterday, when the matter was listed, none represented the respondent. Therefore, I directed it to be listed today under the caption 'for disposal' with a view to letting the respondent know that the matter would be taken up and disposed of on merits. 12. Today, too, the respondent remains unrepresented. In the absence of any countervailing evidence to contradict the petitioner's claim for promotion, I deem that the petitioner's pleas in the writ petition remain uncontroverted and, accordingly, admitted. I, therefore, make the interim order, dated 12.04.2007, absolute and close the writ petition.