Nagar Palika Inter College, Jaunpur v. Hawaldar Singh And Others

S.C Mathur, A.C.J:— This appeal is directed against the order dated 3rd February, 1993 passed by a learned single Judge on the application for interim relief filed by respondent No. 1, Dr. Hawaldar Singh in his writ petition No. 19956 of 1989.

2. In the aforesaid writ petition, primary relief claimed is to issue a writ, order or direction in the nature of Mandamus directing opposite parties 2, 3 and 4 to appoint the petitioner (respondent No. 1 herein) to the post of Principal of Nagar Palika Inter College, Jaunpur (appellant herein) and to permit him to join on the said post. Alternative prayer made is for issuance of a writ, order or direction in the nature of Mandamus commanding opposite party No. 2 (Deputy Director of Education) to exercise power under Section 17 of the U.P Secondary Education Services Commission and Selection Boards Act, 1982 and issue suitable order directing the management of Nagar Palika Inter College, Jaunpur to appoint the petitioner and pay his salary from the date to be specified in the order. From the aforesaid reliefs claimed in the petition, it would be seen that respondent No. 1 seeks appointment to the post of Principal of Nagar Palika Inter College, Jaunpur. In the order under appeal, the learned single Judge says:

“In the circumstances I direct that the petitioner shall be appointed as Principal of Nagar Palika Inter College, Jaunpur within a month of production of a certified copy of this order before the District Inspector of Schools and shall be given salary regularly.”.

3. The submission of the learned counsel for the appellant is that by the order under appeal, the learned single Judge has virtually decided the writ petition. According to the learned counsel, a relief which has the effect of deciding the writ petition finally cannot be granted at the interim stage.

4. Learned counsel for respondent No. 1 has raised a preliminary objection against the maintainability of the appeal. According to the learned counsel appeal under chapter VIII Rule 5 of the Rules of Court lies against a ‘judgment’; it does not lie against an interlocutory order. It is submitted that the order under appeal is not ‘judgment’ and, therefore, the special appeal is not maintainable.

5. The prelimianry objection raised by learned counsel for respondent No. 1 is squarely covered by the decision of a Division Bench of this Court, of which of us (S.C Mathur, ACJ) was a member, in Special Appeal No. 32 of 1993, State of U.P v. Km. Renu Tiwari decided on 3-2-1993. In that case, the petitioner had claimed salary in the grade of Rs. 2200-4000/-. While disposing of application for interim relief, a learned single Judge had directed that the petitioner shall be paid salary in the said scale with effect from 1-10-1992. In the special appeal filed by the State, a preliminary objection was raised on behalf of the respondents against the maintainability of the appeal. The ground raised therein was identical to the one raised in the present case. Relying upon several decisions of their Lordships of the Supreme Court, it was held that the order under appeal amounted to ‘judgment’ and, therefore, the special appeal was maintainable.

6. The view taken in the aforesaid decision has the support of the decision of their Lordships of the Supreme Court in Shah Babulal Khimji v. Jyaban D. Kama, (1981) 4 SCC 8 : AIR 1981 SC 1786. In paragraph 113(3) of the Report it has been observed that interlocutory orders which contain the quality to finality are ‘judgments’ within the meaning of Letters Patent and, therefore, appealable.

7. The order under appeal also contains the quality of finality and is, therefore, ‘judgment’ within the meaning of Chapter VIII, Rule 5. The preliminary objection is, accordingly, overruled. In Renu Tiwari's case (supra) parameters of an interim order have also been discussed and it has been observed:—

“An interim order is generally passed to preserve the State of affairs obtaining on the date of institution of the proceedings. It is seledom 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 to service which has not taken effect or to stay the alteration in the scale of pay. The order under appeal instead to preserving the state of affairs obtaining on the date of the filing to the writ petition alters the name by accepting the claim of parity raised by the respondents. No exceptional circumstance has been pointed out by the learned Judge warranting departure from the normal rule.”

8. The order under appeal in the present case also alters the position obtaining on the date of institution of the writ petition and the learned single Judge has not given any reason for departing from the normal rule. Accordingly, the order under appeal cannot be sustained.

9. In view of the above, the appeal is allowed and the orders dated 8-3-1993 and 3-2-1993 are hereby set aside.

Appeal allowed.