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2024 DIGILAW 1112 (AP)

Venkateswara Veterinary University, Rep. By its Registrar Administration Building, Tirupati v. State of Andhra Pradesh, Rep. By its Chairman

2024-08-14

G.NARENDAR, KIRANMAYEE MANDAVA

body2024
JUDGMENT : G. Narendar, J. 1. Heard the learned senior counsel for the appellant-University and the learned counsel for the contesting respondent-Writ Petitioner. 2. The Writ Appeal is directed against the interim orders granted in W.P.No.15661 of 2024, dated 23.07.2024 whereby, the learned Single Judge was pleased to grant interim order in the following terms : “A perusal of the extracted Rule position would makes it clear that lien of Government Servant’s on a post shall stand terminated on his acquiring a lien on a permanent post or on completion of three years in new department. Case at hand, respondent No.5 was appointed as Registrar on 28.06.2021 (permanent post) for a period of three years. As seen from the 2nd reference of the impugned memo, respondent No.5 handed over charge to Dr. V. Chengalvarayulu, Controller of Examinations on 28.06.2024. After handling over charge, respondent No.5 issued proceedings appointing him as a Professor at Department of Animal Nutrition, College of Veterinary Science, Tirupati. Since respondent No.5 lien on the said post was terminated, he cannot be appointed again on the cadre of Professor, the proceedings vide Memo. No.440735/O.P/2023, dated 29.06.2024 (Ex.P1), is hereby suspended.” 3. It is pertinent to note that the Writ Petition is one for issuance of Writ of Quo-Warranto and the relief sought for, reads as under : “For the reasons stated above, it is prayed that this Hon’ble Court may be pleased to issue an appropriate Writ, order or direction mostly one which is in the nature of a Writ of quo warranto calling upon 5th respondent under what authority of law he is reverted to the post of Professor and holding the said post of “Professor” in College of Veternity Science, Tirupati along with resultant positions of “University Head of the Department & Member, Academic Council” of 2nd respondent University and thereby declare the posting orders in Proc.No.440735/O.P/2023, dated 29.06.2024 of 2nd respondent as illegal, void ab initio and violative of Andhra Pradesh Fundamental Rules FR 14-A (d) read with Clause 3 (vi) of Additional Statutes of the University, Rule 30 (e) of A.P. State Subordinate Service Rules, 1996 apart from being violative of law enunciated by Hon’ble Apex Court in Dr. S.K. Kacker Vs. S.K. Kacker Vs. AIIMS ( 1996 10 SCC 734 ) and set aside the same and consequently to issue a public law declaration that his status in the “University Teaching Services” as deemed resignation in accordance with Rule 30 (e) of A.P.S.S.S.R 1996 read with Clause 3 (vi) of Additional Statutes of the University and pass such other order or orders as this Hon’ble Court may deem fit and proper in the circumstances of the case.” 4. The issue that is canvassed before us is whether a person who has been appointed to a permanent post can be prohibited to revert back or be repatriated back to his original post. The petitioner has placed reliance on the ruling reported in the case of Dr. S.K. Kacker Vs. AIIMS, (1996) 10 SCC 734 . 5. We have perused the said ruling and more particularly facts in paragraph No.4 and discussion in paragraph Nos. 6 and 7, wherein, the Hon’ble Apex Court has placed reliance on the Fundamental Rules of the State, which notified the post of the Director, AIIMS Institute. The said issue has also been considered by the Hon’ble Apex Court in one of its latter Rulings in the case of P. Venugopal Vs. Union of India and the said issue had been dealt in paragraph No.29. 6. On a reading of the above Ruling, it would demonstrate that the issue is not settled as sought to be canvassed by the petitioner. That apart, it is not in dispute that the question of deemed resignation again depends on a complete appreciation of the facts in the case and drawing interferences and any prima facie appreciation could result in injury or loss to a party which cannot be compensated by the Court if the Writ Petition was found to be misconceived or un-sustainable. That apart, a reading of the interim relief in our opinion amounts to virtually granting the main relief itself. The tenor of the interim order has virtually placed the University at a disadvantageous position and not merely the University but also the candidate whose tenure as a Registrar expired and by prima facie accepting the interpretation placed by the petitioner, the interim order has resulted in one of the parties being virtually superannuated or removed from his post without a final determination of facts and law. In our considered opinion, the interim order cannot be sustained as it virtually amounts to allowing the main relief itself. It is also to be noted that the grant of interim relief was not to protect the interest of the petitioner but rather would cause detriment to the parties, who have not been heard by the Court. 7. The principle regarding grant of interim relief is well settled. In this regard, we could make a useful reference to the observations and law settled by the Hon’ble Apex Court in Samir Narain Bhojwani v. Aurora Properties and Investments, (2018) 17 SCC 203 in paragraph No.24 which reads as under : “24. That apart, the learned Single Judge as well as the Division Bench have committed fundamental error in applying the principle of moulding of relief which could at best be resorted to at the time of consideration of final relief in the main suit and not at an interlocutory stage. The nature of order passed against the appellant is undeniably a mandatory order at an interlocutory stage. There is marked distinction between moulding of relief and granting mandatory relief at an interlocutory stage. As regards the latter, that can be granted only to restore the status quo and not to establish a new set of things differing from the state which existed at the date when the suit was instituted. This Court in Dorab Cawasji Warden v. Coomi Sorab Warden, (1990) 2 SCC 117 , has had occasion to consider the circumstances warranting grant of interlocutory mandatory injunction. In paras 16 & 17, after analysing the legal precedents on the point as noticed in paras 11-15, the Court went on to observe as follows : (SCC pp. 126-27) “16. The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines. Generally stated these guidelines are: (1) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction. (2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money. (3) The balance of convenience is in favour of the one seeking such relief. 17. Being essentially an equitable relief the grant or refusal of an interlocutory mandatory injunction shall ultimately rest in the sound judicial discretion of the court to be exercised in the light of the facts and circumstances in each case. Though the above guidelines are neither exhaustive nor complete or absolute rules, and there may be exceptional circumstances needing action, applying them as prerequisite for the grant or refusal of such injunctions would be a sound exercise of a judicial discretion.” (emphasis supplied)” 8. We place further reliance on the observations of the Hon’ble Apex Court in Hammad Ahmed v. Abdul Majeed, (2019) 14 SCC 1 . Particular reference to the enunciation of law as settled in paras 57 and 58 reads as under : “57. The grant of mandatory injunction is not prohibited even in Samir Narain Bhojwani case [Samir Narain Bhojwani v. Aurora Properties and Investments, (2018) 17 SCC 203 : (2019) 2 SCC (Civ) 257]. It has held that unless clear and prima facie material justifies a finding that status quo has been altered by one of the parties the order in mandatory injunction can be given. 58. The ad interim mandatory injunction, is to be granted not at the asking but on strong circumstance so that to protect the rights and interest of the parties so as not to frustrate their rights regarding mandatory injunction. 58. The ad interim mandatory injunction, is to be granted not at the asking but on strong circumstance so that to protect the rights and interest of the parties so as not to frustrate their rights regarding mandatory injunction. In Deoraj v. State of Maharashtra, (2004) 4 SCC 697, this Court held that Court would grant such an interim relief only if it is satisfied that withholding of it would prick the conscience of the Court and do violence to the sense of justice, resulting in injustice being perpetuated throughout the hearing, and at the end the Court would not be able to vindicate the cause of justice. Therefore, in appropriate case, ad interim injunction in mandatory form can be granted. The Court held as under : (SCC p. 703, para 12) “12. Situations emerge where the granting of an interim relief would tantamount to granting the final relief itself. And then there may be converse cases where withholding of an interim relief would tantamount to dismissal of the main petition itself; for, by the time the main matter comes up for hearing there would be nothing left to be allowed as relief to the petitioner though all the findings may be in his favour. In such cases the availability of a very strong prima facie case — of a standard much higher than just prima facie case, the considerations of balance of convenience and irreparable injury forcefully tilting the balance of the case totally in favour of the applicant may persuade the court to grant an interim relief though it amounts to granting the final relief itself. Of course, such would be rare and exceptional cases. The court would grant such an interim relief only if satisfied that withholding of it would prick the conscience of the court and do violence to the sense of justice, resulting in injustice being perpetuated throughout the hearing, and at the end the court would not be able to vindicate the cause of justice. Obviously such would be rare cases accompanied by compelling circumstances, where the injury complained of is immediate and pressing and would cause extreme hardship. The conduct of the parties shall also have to be seen and the court may put the parties on such terms as may be prudent. 9. Obviously such would be rare cases accompanied by compelling circumstances, where the injury complained of is immediate and pressing and would cause extreme hardship. The conduct of the parties shall also have to be seen and the court may put the parties on such terms as may be prudent. 9. Thus as can be seen, an interim relief cannot be in the nature of placing a party to a proceedings at a disadvantageous position without affording an opportunity. That apart, the facts reveal that the petitioner is neither a contender for the post nor any of his private interest is affected, the Writ Petition has been canvassed in the public interest. In these circumstances, we are of the considered opinion that the exparte interim order could not have been in the nature as now granted by the learned Single Judge as it virtually amounts to superannuating or removing candidates from services and that apart, it also amounts to interpreting the University statutes which do not confer permanent appointment on any person who comes to occupy the post of Registrar. 10. In that view, we are of the considered opinion that the Writ Appeal requires to be allowed in part and the matter is remitted back to the learned Single Judge to consider the interim relief afresh and pass orders. 11. The learned Single Judge is requested to take up and dispose of the Writ Petition on its own merits without being influenced by any of the observations passed herein. 12. Accordingly, the Writ Appeal is partly allowed. There shall be no order as to cost. As a sequel thereto, the miscellaneous petitions, if any, pending in this Writ Appeal shall stand closed.