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IN THE HIGH COURT OF ALLAHABAD
Binod Kumar Roy and Lakshmi Bihari, JJ.
COMMITTEE OF MANAGEMENT, SUJOBAI GIRLS INTER COLLEGE, HATHRAS - Appellant
Versus
MANJU KESHI DIXIT - Respondents
Special Appeal 630 Of 1999
Decided On : 09/15/1999
CONSTITUTIONAL LAW - ARTICLE 226 - INTERIM RELIEF - MANDATORY INJUNCTION - WRIT PETITION - MAINTAINABILITY OF APPEAL - JUDGMENT - RULE 5, SECTION C, CHAPTER VIII OF THE RULES OF THE COURT - INTERLOCUTORY ORDER - APPEALABILITY - ARTICLE 226 (3) OF THE CONSTITUTION OF INDIA - AUTOMATIC VACATION OF INTERIM ORDER OF STAY - CONTEMPT PROCEEDINGS - APPLICABILITY OF ARTICLE 226 (3) OF THE CONSTITUTION OF INDIA - AD HOC MEASURE - PAYMENT OF SALARY - WITHDRAWAL OF SALARY - EFFECT ON CLAIM - DESIRABILITY OF EARLY HEARING OF WRIT PETITION.
Fact of the Case:
Respondent No. 1, a teacher, filed a writ petition challenging her suspension and seeking payment of salary as an L.T. Grade teacher. The single judge granted an interim order directing the appellants to pay her salary as an L.T. Grade teacher and restraining them from recovering any amount already paid to her. The appellants filed an appeal against the interim order, contending that it was a mandatory injunction and, therefore, not maintainable under Article 226 of the Constitution of India.
Finding of the Court:
The court held that the appeal was maintainable as the impugned order was a judgment within the meaning of Rule 5, Section C, Chapter VIII of the Rules of the Court. The court further held that the single judge erred in passing the interim order without recording any reasons and without considering the submissions made on behalf of the appellants.
Issues: 1. Whether the appeal against the interim order was maintainable? 2. Whether the single judge erred in passing the interim order without recording any reasons?
Ratio Decidendi: 1. The court held that the appeal was maintainable as the impugned order was a judgment within the meaning of Rule 5, Section C, Chapter VIII of the Rules of the Court. The court relied on the decisions of the Supreme Court in U.P. Jr. Doctors Action Committee v. Dr. B. Sheetal Nandwani and other cases to support its conclusion. 2. The court held that the single judge erred in passing the interim order without recording any reasons and without considering the submissions made on behalf of the appellants. The court observed that the impugned order had the force of a mandatory injunction and that the law was well settled that no interim relief could be granted by the High Court while exercising its jurisdiction under Article 226 of the Constitution of India which had the consequence of allowing the writ petition itself.
Final Decision: The court set aside the impugned order and remanded the case to the single judge for fresh consideration in accordance with law. The court also directed the appellants to submit the bills for payment of salary of respondent No. 1 as a C.T. Grade teacher within one week, which would be passed by the appropriate authority without any hitch or murmur. The court clarified that this was only an ad hoc measure and subject to the result of the connected writ petition.
( 1 ) THIS Special Appeal under Chapter VIII, Rule 5 of the Rules of the Court, was directed vide order dated 14. 9. 1999 by the Bench presided over by Honble the Chief Justice to be listed before a Bench presided over by one of us (Binod Kumar Roy, J) today and that is how even though the office had issued notices of this Appeal and the Stay petition to respondent No. 1 by registered post with A/d fixing 21,9. 1999 in regard thereto. It has been listed today before us.
( 2 ) THE order under appeal passed in Civil Misc. Writ Petition No. 21685 of 1999 filed by respondent No. 1 herein, reads thus :
"heard learned counsel for the parties. Until further order I direct that petitioner shall get salary of L. T. Grade teacher and no recovery shall be made in respect of L. T. Grade which she has already received. "
( 3 ) PERUSAL of the record discloses that when this appeal was listed before the Bench presided over by Honble Chief Justice, the operation of the order of the learned single Judge was stayed vide order dated 18. 8. 1999.
( 4 ) SRI R. N. Singh, learned senior counsel appearing in support of this appeal as well as stay application, contended as follows : (i) Even though the learned Judge had heard the parties at length, without recording any reason whatsoever, either rejecting the submission made on behalf of the appellants and/or expressly accepting the submissions made personally by respondent No. 1 had incorrectly issued the mandamus commanding that respondent No. 1 shall get salary of L. T. Grade teacher and that no recovery shall be made in respect of that salary which she had already received. For the aforementioned infirmity alone the impugned order be set aside, (ii)The impugned order has the force of a mandatory injunction and the law being well settled that no interim relief can be granted by the High Court while exercising its jurisdiction under Article 226 of the Constitution of India which has the consequence of allowing the writ petition itself, and this legal position having been precisely violated and that, too, without fixing any date for hearing the writ petition, it is liable to be set aside. He also contended that since the impugned order is a judgment within the meaning of Rule 5, section C. Chapter VIII, thus an appeal lies. In support of his submissions, he placed reliance on the following decision : (i) U. P. Jr. Doctors action Committee v. Dr. B. Sheetal Nandwani, 1992 (1) JT (SC) 571 (ii) State of U. P. and others v. Committee of Management, 1994 (3) High Court Views Daily (Allahabad) 153 (iii)State of U. P. and another v. Smt. Dayavanti Khanna. 1994 ALR 140, (iv) Ramayan Rao and others v. Rama Shanker Prasad and others. 1993 (2) ACJ 938, and (v) State of U. P. and others v. Km. Renu Tiwari and others. 1993 (2) ALR 233.
( 5 ) RESPONDENT No. 1, appearing in person, contended that (i) since the order impugned is an interlocutory one and, therefore, not a Judgment within the meaning of the Rule aforementioned and thus no appeal lies and consequently this appeal be dismissed as not maintainable, (ii) She had personally appeared before the learned Judge and prosecuted her case. The learned Judge, after being satisfied of her arguments showing apparent illegal, mala fide and unconstitutional acts of the appellants, had granted interim retief, after exchange of affidavits and after having heard Sri V. C. Misra, learned senior counsel who had entered appearance on behalf of the appellants herein, before him and in order to protect her constitutional rights enshrined under article 16 of the Constitution of India. 5. 1. After some time she expressed that if we so like, may ask any learned counsel to appear on her behalf. Accordingly, on our suggestion Smt. Sarita Singh, learned standing counsel of the state agreed to conduct the proceedings on her behalf, which she gladly accepted and we at 12:47 p. m. retired to our chambers to hear her further arguments. 5. 2. After l
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