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State Of U.P And Others v. Km. Renu Tiwari And Others
Factual and Procedural Background
The respondents (lecturers) filed a writ petition seeking, inter alia, a writ of mandamus directing the State of U.P. and its officers to pay them salary in the University Grants Commission scale of Rs. 2200-4000, together with attendant benefits. The respondents were appointed as part-time lecturers and were paid on a per-lecture basis (18–24 lectures weekly) at Rs. 20 per lecture in the plains and Rs. 30 in the hills. Regularly appointed lecturers received salary in the scale Rs. 2200-4000 plus benefits and vacation pay. The respondents claimed parity on the principle of equal pay for equal work.
A learned Single Judge granted interim relief, directing payment to the respondent-lecturers of salary in the grade Rs. 2200-4000 per month with effect from 1-10-1992 and entitlement to other benefits available to regular lecturers, including vacation pay and certain leave benefits. The State (appellants) and its officers filed this Special Appeal against that interim order. The underlying writ petition remains pending.
Legal Issues Presented
- Whether the interim order passed by the Single Judge — granting substantive relief (payment of salary in the regular scale and attendant benefits) — amounts to a "judgment" within the meaning of Rule 5, Chapter VIII of the Rules of Court, 1952, so as to make a special appeal maintainable.
- Whether a Single Judge at the interlocutory stage may grant relief that alters the status quo by effectively deciding a matter of merit (here, parity and payment) without exceptional circumstances — i.e., the appropriate parameters for interim relief and whether the impugned interim relief was sustainable.
Arguments of the Parties
Appellants' Arguments
- The order under appeal settles a substantial part of the controversy on the merits at the interim stage, which is impermissible when disposing of an application for interim relief.
- If the writ petition is ultimately dismissed, the appellants may be unable to obtain restitution for the sums paid pursuant to the interim order.
- The interim order alters the state of affairs rather than preserving the status quo and no exceptional circumstances were shown to justify such departure from normal interim practice.
Respondent-Lecturers' Arguments and Preliminary Objection
- The respondents advanced the claim of parity asserting they performed duties identical to regularly appointed lecturers and were thus entitled to salary in the Rs. 2200-4000 scale and attendant benefits (equal pay for equal work).
- A preliminary objection was raised by the respondents (or argued on their behalf) that the special appeal is not maintainable because Chapter VIII Rule 5 of the Rules of Court, 1952, permits appeal only against a "judgment" (construed as a final order), and the order under appeal was not a final order. Reliance was placed on the Division Bench decision in Narsingh Arya v. Jaswant Singh (Special Appeal No. 418 of 1992) in support of non-maintainability.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Shital Din v. Anant Ram (Full Bench of Allahabad High Court) | Held that an order which effectually disposes of the matter before the Court amounts to a "judgment" even if it does not amount to a decree. | The Court relied on this authority to support the proposition that an order which effectively decides the matter before the Court may qualify as a "judgment" for purposes of appeal maintainability. |
| Begum Aftab Zamani v. Shri Lal Chand Khanna (Full Bench, Delhi High Court) | Observed that "judgment" should be determined by the effect of the adjudication (whether it puts an end to the proceeding or decides disputed rights), not merely by form; a judgment may be final, preliminary or interlocutory depending on effect. | The Court cited this decision to emphasize that the term "judgment" is to be understood by its effect on proceedings, and an order giving a party what it could obtain only after final adjudication may be a "judgment". |
| Shah Babulal Khimji v. Jayaban D. Kania (Their Lordships, Supreme Court) | Explained a wider connotation of "judgment" under Letters Patent — classified judgments into final, preliminary and interlocutory; laid down tests for when an interlocutory order may amount to a judgment (traits/trappings of finality; direct and immediate adverse effect). | The Court reproduced the tests and principles from this authority (including presumption in favor of trial Judge's discretion and the requirement of "traits and trappings of finality") and applied them to determine whether the Single Judge's interim order was a "judgment". |
| S.S.V. Post Graduate College v. Sushil Kumar Sharma (Division Bench) | Described an order passed on interim relief as a "pre-hearing judgment" and entertained a special appeal against such an order. | The Court used this decision as a precedent where a Division Bench entertained a special appeal against an interim order that effected substantive relief, treating it as a pre-hearing judgment, analogous to the present facts. |
| Narsingh Arya v. Jaswant Singh (Special Appeal No. 418 of 1992) | Division Bench held that the order under appeal did not amount to a "judgment" under Rule 5; the remand/stay did not affect vital rights in a manner to qualify as judgment. | The Court distinguished this decision from the present case, holding that Narsingh Arya was inapplicable because in the present case the interim order ex facie decided a controversy of moment and cast an immediate financial burden on the appellants. |
| National Power Transmission Corporation Ltd. v. Corporate Executive Association of NTPC (CEAN) | Set aside an interim direction granting parity where no irreparable injury would have been caused to employees if the interim direction were not given. | The Court relied on this case to support the proposition that where no irreparable injury would result from refusing the interim relief, substantive relief on parity should not be granted at the interlocutory stage; applied that reasoning to set aside the impugned interim order. |
| U.P. Junior Doctor's Action Committee v. Dr. B. Sheetal Nandwani | Observed the rule of practice that an interlocutory stage ordinarily should not grant relief which is available at the final disposal of the matter. | The Court cited this authority to reinforce that relief which can be granted at final hearing should not ordinarily be granted at interlocutory stage absent exceptional circumstances. |
Court's Reasoning and Analysis
The Court proceeded in two main stages: (A) whether the interim order was a "judgment" making the appeal maintainable; and (B) whether the interim order was legally sustainable in exercise of interlocutory jurisdiction.
A. On maintainability under Rule 5:
- The Court examined the scope of the word "judgment" in Rule 5 (Chapter VIII) with reference to precedents. It adopted authorities which hold that the meaning of "judgment" depends on the effect of the adjudication rather than merely its form.
- Drawing on Shital Din, Begum Aftab Zamani and Shah Babulal Khimji, the Court summarized propositions: (1) where "judgment" is linked with "decree" the meaning may be narrow, but where not linked it has wider connotation; (2) ordinarily a judgment brings about termination of the proceeding where made; and (3) an interlocutory order may nevertheless be a judgment if it affects valuable rights directly and immediately and possesses the traits and trappings of finality.
- Applying these principles to the Single Judge's interim order, the Court noted that the Single Judge, on an ex facie consideration, upheld the respondents' parity claim and directed payment in the substantive scale from a retrospective date, thereby imposing an immediate financial burden and deciding an issue central to the writ petition's merits.
- Because the order directly affected the merits and produced immediate and direct consequences for the appellants, the Court concluded the order had the "trappings of a judgment" and that the special appeal was maintainable. The preliminary objection to maintainability was overruled.
B. On the merits of interim relief and parameters for interlocutory orders:
- The Court reiterated the ordinary function of interim orders: to preserve the status quo obtaining at the date of institution of proceedings, not to alter it.
- It observed that the Single Judge's order did not preserve the status quo but altered it by accepting parity and directing substantive payments and benefits without exceptional circumstances being shown.
- The Court referenced National Power Transmission Corporation Ltd. v. CEAN and U.P. Junior Doctor's Action Committee v. Nandwani for the principle that substantive relief available at final disposal should not ordinarily be granted at interlocutory stage, especially where no irreparable injury would result from refusing interim relief.
- Finding no indication of how appellants could be restored to their pre-order position if the writ petition ultimately failed (i.e., no effective restitution mechanism shown), the Court concluded that the interim relief was effectively final in practical consequences and therefore unsustainable as an interim order.
Holding and Implications
Holding:
Special appeal allowed; the judgment and order under appeal dated 29-9-1992 is hereby set aside.
Additional immediate directions contained in the holding:
- The preliminary objection to maintainability of the appeal was overruled.
- The writ petition (which remains pending) was directed to be listed for hearing in the week commencing 1st March, 1993; the Court noted the appellants had not filed a counter-affidavit and directed that the listing should not be postponed for that reason.
Implications:
- Direct effect on the parties: the interim directions (payment of salary in the Rs. 2200-4000 grade and attendant benefits to respondent-lecturers with retrospective effect from 1-10-1992) granted by the Single Judge are vacated; the respondents will not continue to receive those interim payments pursuant to the set-aside order.
- Procedural principle reinforced: a Single Judge should not ordinarily grant substantive relief at the interlocutory stage that alters the status quo and effectively decides matters of merit absent exceptional circumstances or a showing of irreparable injury.
Note: This summary is confined to and derived from the contents of the provided opinion. No information outside the opinion has been added.
S.C Mathur, A.C.J:— State of U.P and its officers have directed this Special Appeal against the order of a learned Single Judge passed in a writ petition filed by the respondents claiming, inter alia, a writ of Mandamus to direct the appellants to pay salary to them in the scale of pay prescribed by the University Grants Commission i.e, Rs. 2200-4000. The order under appeal has been passed on an application for interim relief. The writ petition is still pending.
2. In the aforesaid writ petition the claim of the respondents is that they were appointed part time lecture and were paid emoluments on the basis of the number of lectures delivered by them. The lectures per week varied from 18 to 24. Payment was made at the rate of Rs. 20/- per lecture in the plains and at the rate of Rs. 30/- in the hills. As against this, the regularly appointed lecturers were paid salary in the scale of Rs. 2200-4000. Apart from the salary, these lecturers got other benefits and allowances also, including salary for the vacations. The respondents asserted that this was arbitrary add discriminatory as they were performing duties identical to those performed by regularly appointed lecturers. On this basis it was claimed that they were entitled to payment of salary in the said scale and were also entitled to other benefits and allowances. In short, the respondents invoked the principle of equal pay for equal work. The writ petition is being opposed by the appellants on a number of grounds, including the ground that the respondents are not at par with the regularly appointed lecturers, and, therefore, their claim of parity is misconceived. In the aforesaid writ petition an application for interim relief was made on which the order under appeal has been passed.
3. After referring to certain decisions of their Lordships of the Supreme Court, the learned Single Judge has observed that the doctrine of equal pay for equal work cannot be disregarded on the ground that the employment of respondents is temporary while that of the regularly appointed lecturers in permanent. With this observation direction has been issued as follows:
“The petitioners shall also be paid salary is the grade of Rs. 2200-4000 per month with effect from 1-10-1992 and they shall also be entitled to other benefits which are available to the regularly appointed lecturers and can get salary and allowances for the period of any vacation for which regular lecturers are paid their salary. Maternity or medical leave facilities shall also be given to the petitioners so long as they hold the posts.”
4. The submission of the learned counsel for the appellants is that by the order under appeal substantial part of the controversy involved in the writ petition itself stands settled and this is not permissible at the stage of the disposal of the application for interim relief. It is pointed out that in the event of dismissal of the writ petition, it may not be possible for the appellants to obtain restitution from the respondent-lecturers.
5. A preliminary objection has been raised on behalf of the respondent-lecturers against the maintainability of the appeal. It is submitted that an appeal under Chapter VIII Rule 5 of the Rules of Court, 1952, for short Rules, lies only against “judgment” which means final order in a case and since the order under appeal is not a final order, the appeal is not maintainable. In support of the submission, reliance has been placed on the judgment of a Division Bench of this Court dated 9th September, 1992 in Special Appeal No. 418 of 1992, Narsingh Arya v. Jaswant Singh.
6. Rule 5 of Chapter VIII of the Rules reads as follows:
“5. Special appeal — Appeal shall lie to the Court from a judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made by a Court subject to the superintendence of the Court and not being an order made in the exercise of revisional jurisdiction or in the exercise of its power of superintendence or in the exercise of criminal jurisdiction or in the exercise of jurisdiction conferred by, Article 226 or Article 227 of the Constitution in respect of any judgment, order or award (a) of a tribunal, Court or statutory arbitrator made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution or (b) of the Government or any officer or authority, made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act of one Judge).
7. Under the above provision appeal lies against “judgment”. This leads us to explore the connotation of the term “judgment”. The matter is covered, by authorities and we may examine them.
8. In Shital Din v. Anant Ram,1 a Full Bench of this Court has observed at page 130 as follows:
“……………On a reading of several clauses of the Letters Patent of the Allahabad High Court we have, come to the conclusion that a final decision, which effectually disposes of the appeal before the High Court, should amount to a judgment, whether it amounts to a decree or not.
9. This was an appeal under Clause 10 of the Letters Patent dated 17-3-1866 creating the High Court of Allahabad. The appeal was directed against the judgment of a learned Single Judge of the High Court remanding the case to the lower appellate court under Order 41 Rule 23 of the Code of Civil Procedure, 1908, for short Code. Maintainability of the appeal was challenged on the ground that the remand order did not amount to decree. The remand order was passed by a learned Single Judge exercising appellate jurisdiction. Clause 10 of the Letters Patent provided appeal, inter alia, against the judgment of one Judge made in exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the Superintendence of the High Court. With the observation extracted hereinabove the plea of non-maintainability of the appeal was negatived. This judgment is authority for the proposition that an order which effectually disposes of the matter brought before the Court amounts to a “judgment”.
10. In Begum Aftab Zamani v. Shri Lal Chand Khanna,2 a Full Bench of the Delhi High Court was considering the question of amount of court fee payable on an appeal filed against the judgment of a learned Single Judge of the Court. The appeal lay under Ciause 10 of the Letters Patent (Lahore) against the “judgment” of a Single Judge. The question arose whether the order appealed against amounted to “Judgment” or not. By the order under appeal the suit itself had been finally disposed of. The order was held to be “judgment”. Some significant observations have been made which bear reproduction. In paragraph-4 at page 89 of the Report it has been observed—
“………………The Letters Patent, when providing for appeals from judgments, in our view, contemplate judgments which have both the effect of a decree as defined in the Code and of such order as may affect the merits of a controversy between the parties by determining some disputed right or liability. A judgment may thus be either final or preliminary or interlocutory. In order to decide whether an adjudication should be treated as a “judgment” within the meaning of Clause 10 of the Letters Patent, we feel that regard should be had not to the form of the adjudication but to its effect upon the suit or the civil proceeding in which it is made. If its effect, whatever its form and whatever the nature of the proceeding in which it is made is to put an end to the suit or proceeding, or if its effect, if not complied with, is to put an end to the suit or proceeding, the adjudication is indisputably a “judgment within the meaning of this clause. Other decisions or determinations adjudicating upon a disputed controversy on the merits in a suit or proceeding may also appropriately fall within the contemplation of the word “judgment”.
(Emphasis supplied).
11. From the emphasized portions it would appear that in order to be a “judgment” an adjudication need not finally put an end to the proceeding in which it has been made. The said proceeding may remain pending but if the order gives to the party what it could get only after final adjudication on the disputed questions, it would amount to “judgment”.
12. In Shah Babulal Khimji v. Jayaban D. Kania,3 their Lordships were dealing with an appeal from a suit for specific performance of a contract filed on the original side of the Bombay High Court. The plaintiff had prayed for an interim relief by appointing a receiver of the suit-property and injunctioning the defendant from disposing of the suit-property during the pendency of the suit. A learned Single Judge dismissed the application for interim relief. The plaintiff filed special appeal under Clause 15 of the Letters Patent which was dismissed as not maintainable on the ground that the adjudication made on the application for interim relief did not amount to “judgment”. Disagreeing with the view taken by the Bombay High Court their Lordships held that the appeal was maintainable as under Chapter VIII Rule 5 appeal under Clause 15 lay against “judgment”. In paragraph 112 of the Report at page 1814 their Lordships have observed that the, term “judgment” used in the Code of Civil Procedure, 1908 is linked with the term “decree” and has, therefore, a narrow and restricted meaning. In the Letters Patent the term is not linked with the term “decree” and has, therefore, a much wider connotation. After making this observation their Lordships have proceeded to classify judgments in three categories—(1) a final judgment, (2) a preliminary judgment and (3) intermediary or interlocutory judgment. It has been held that where a proceeding finally terminates after adjudication of all the issues or some of the issues the adjudication is a judgment. The adjudication will also be judgment, even though it does not result in termination of proceedings, if it “possesses the characteristics and trappings of finality”. When an order may possess such characteristics and trappings has been explained. It may possess such characteristics and trappings when the order adversely affects a valuable right of the party or decides an important aspect of the trial in an ancillary proceeding. It has been observed—“Before such an order can be a judgment the adverse effect on the party concerned must be direct and immediate rather than indirect or remote”.
13. In paragraph 119 at page 1817 their Lordships have laid down the following tests for determining whether an interlocutory adjudication amounts to ‘judgment’ or not. The tests are as follows:
“(1) That the trial Judge being a senior court with vast experience of various branches of law occupying a very high status should be trusted to pass discretionary or interlocutory orders with due regard to the well settled principles of civil justice. Thus, any discretion exercised or routine orders passed by the trial Judge in the course of the suit which may cause some inconvenience or, to some extent, prejudice one party or the other cannot be treated as a judgment otherwise the appellate court (Division Bench) will be flooded with appeals from all kinds of orders passed by the trial Judge. The courts must give sufficient allowance to the trial Judge and raise a presumption that any discretionary order which he passes must be presumed to be correct unless it is ex facie legally erroneous or causes grave and substantial injustice.
(2) That the interlocutory order in order to be a judgment must contain the traits and trappings of finality either when the order decides the questions in controversy in an ancillary proceeding or in the suit itself or in a part of the proceedings.”
14. The propositions deducible from the above authorities are—(1) when the term “judgment” is used in a Statute or rule linked with the term “decree” as defined in the Code of Civil Procedure it will have a restricted and narrow meaning but when it is not so linked, it will have a wider connotation; (2) ordinarily for an adjudication to be a ‘judgment’ it should bring about termination of the proceeding in which the adjudication is made; and (3) an order passed on an application for interim relief is ordinarily not a ‘judgment’ but it will qualify to be called ‘judgment’ if it affects valuable right of the party or decides an important aspect of the trial and the effect of the order on the party concerned is direct and immediate rather than indirect and remote.
15. It is in the backdrop of the above propositions that we have to consider the true nature of the order under appeal. The order under appeal runs into four typed pages. After discussing the submissions made by the learned counsel for the appellants and the learned counsel for the respondent-lecturers the learned Single Judge states—“……I do not want to make any comments on the merit of the case at this stage. However, ex facie it appears that the wages paid to the petitioners for doing the same work which is being done by the regular lecturers are not the same. There is difference in the payment of wages. Even regularly appointed lecturers are supposed to deliver fixed number of lectures. So far the number of lectures to be delivered by the petitioners and by the regularly appointed lecturers are concerned, there is no difference. Therefore, the petitioners are entitled to be paid the same pay scale which is drawn by the regularly employed lecturers. Regular lecturers are drawing pay scale at the rate of Rs. 2200-4000/- per month. The petitioners are also entitled to get the same pay scale in future till they continue to remain as lecturers and deliver the lectures in accordance with the Government order.” With this observation direction has been issued that the respondent-lecturers shall also be paid salary in the grade of Rs. 2200-4000 per month with effect from 1-10-1992.
16. The question of parity between the regular lecturers and the respondent-lecturers is directly involved in the writ petition. In the order under appeal the learned Single Judge has upheld the claim of parity even though in an ex facie manner. Thus the order under appeal affects the merit of the controversy directly involved in the writ petition itself. The said order directly affects the appellants immediately. The order has all, the trappings of a judgment. We are accordingly of the opinion that the instant appeal is maintainable.
17. A Division Bench of this Court of which one of us (brother S.P Srivastva, J.) was a member, entertained Special Appeal No. 378 of 1992, Committee of Management, S.S.V Post Graduate College v. Sushil Kumar Sharma, decided on 16-11-1992 against an order passed on the application for interim relief describing the order under appeal as “pre-hearing judgment”. This appeal arose from a writ petition in which directions had been sought to the Committee of Management to issue letter of appointment to the petitioner appointing him to the post of Lecturer with effect from 20-12-1991 and to pay salary to him from the said date and to continue the payment of salary till the petitioner continued to hold the post. A learned Single Judge while disposing of the application for interim relief directed the appellant (Committee of Management) to appoint the petitioner as Lecturer within one month and pay him salary regularly. This was the order which was subject matter of appeal before the Division Bench. Like the order under challenge in that special appeal the order under appeal in the present case is also a “pre-hearing judgment”.
18. Learned counsel for the respondents has cited the judgment of a Division Bench in Special Appeal No. 418 of 1992 Narsingh Arya v. Jaswant Singh decided on 9-9-1992 for submitting that the present appeal is not maintainable. The writ petition in which the order under appeal had been passed was directed against order dated 14-8-1992 whereby the District Inspector of Schools had cancelled the appointment of Shri Jaswant Singh as Manager of the School. Apart from claiming quashing of the said order the petitioner had sought a writ of mandamus also to command the respondents not to interfere in the functioning of petitioner No. 2 as the Manager of the institution. By the order under appeal the learned Single Judge had stayed the operation of the order dated 14-8-1992 and directed that till the disposal of the writ petition Jaswant, Singh would continue to function as Manager. Maintainability of the special appeal was challenged on the ground that the order appealed against did not amount to judgment within the meaning of Rule 5 of Chapter VIII of the Rules of Court. Relying upon the judgment of their Lordships in Shah Babulal Khimji case (supra) the Division Bench held that the order under appeal did not amount to judgment as by passing the same the learned Judge had not decided any controversy or matter of moment affecting vital and valuable rights of one of the parties. This judgment has no application to the facts of the present case as by the order under appeal the learned Single Judge has decided a controversy and a matter of moment affecting vital and valuable rights of one of the parties. The claim of party raised by the respondents has been ex facie upheld and financial burden has been cast upon the appellants.
19. In view of the above, the preliminary objection is overruled.
20. We may now pass on to consider the parameters of an interim order. An interim order is generally passed to preserve the state of affairs, obtaining on the date of institution of the proceeding. It is seldom passed to alter that position. Thus an interim order may be passed to restrain the respondent from interfering in the possession of the petitioner over an immovable property, or to stay the operation of an order of termination of service which has not taken effect or to stay the alteration in the scale of pay. The order under appeal instead of preserving the state of affairs obtaining on the date of the filing of the Writ petition alters the same by accepting the claim of parity raised by the respondents. No exceptional circumstance has been pointed out by the learned Single Judge warranting deparature from the normal rule. The order under appeal cannot, therefore, be sustained.
21. In National Power Transmission Corporation Ltd. v. Corporate Executive Association of NTPC (CEAN) New Delhi. Their Lordships were dealing with an appeal directed against an interim order. In this case also the petitioners before the High Court had invoked the principle of “equal pay for equal work.” The High Court had accepted the principle of parity and made directions for payment of salary accordingly during the pendency of the petition. Their Lordships set aside this direction observing “No irreparable injury was going to be caused to the employees of NTPC if the third direction quoted above by us was not given.” In the present case also no irreparable injury was going to be caused to the respondents if the impugned order had not been passed as direction could have been made at the stage of final hearing for payment of balance amount if the claim of partly was ultimately upheld.
22. In U.P Junior Doctor's Action Committee v. Dr. B. Sheetal Nandwani their Lordships have observed in paragraph 8 of the Report thus—
“It is a well known rule of practice and procedure that at interlocutory stage a relief which is asked for and is available at the disposal of the matter is not granted.”
23. In the present case also the learned Single Judge has granted to the respondents the relief which may be granted to them at the disposal of writ petition if their claim is found to be sustainable. There is no indication in the judgment as to how the appellants will be restored to the original position, if the writ petition ultimately fails. Accordingly, for all practical purposes, the relief granted to the respondents through the judgment under appeal is final. Such an order/judgment given at the interim stage cannot be sustained.
24. In view of the above, the appeal is allowed and the judgment and order under appeal dated 29-9-1992 is hereby set aside. In the judgment under appeal, the learned Single Judge has directed the listing of the writ petition before the appropriate Bench for further orders. We have been informed that the appellants have not so far filed counter-affidavit. This is indeed unfortunate as the writ petition was filed in the year 1988. The listing of the case cannot be postponed till the filing of the counter-affidavit. The writ petition shall accordingly be listed for hearing in the week commencing 1st March, 1993.
25. Special appeal allowed.
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