K. Seshasaila Prabhu vs Government of Andhra Pradesh and others

S.B. SINHA, CJ

This writ petition is directed against an order dated 17-1-2001 passed by the Andhra Pradesh Administrative Tribunal, Hyderabad (hereinafter referred to as ''the Tribunal'' for the sake of brevity) in OA No.123 of 2001 whereby and whereunder the following interim relief had been granted:

"Pending further consideration of the OA, the official respondents are directed to review the promotion given to unofficial respondent No. 3 in accordance with G.O. Ms. No.55, TR and B Department, dated 23-3-1998 and also not to consider his case for any further promotion. The official respondents are further directed to consider the claim of applicant No.2 for promotion as Chief Engineer in the existing vacancy, if any, or after the promotion of any person and thereafter the claim of applicants 1 and 2 has to be considered for further promotion considering them as seniors to unofficial respondent No.3 and this exercise has to be completed within a period of six weeks from the date of receipt of a copy of this order."

On a bare perusal of the impugned order it would appear that the learned Tribunal ex parte went into the merit of the matter and arrived at findings of fact without giving an opportunity of hearing to the petitioner as regards the merit of the case. We do not intend to make any observations as regards the merit of the matter, although the learned Counsel for the parties took us to various GOs including G.O. Ms. No.55 and G.O. Ms. No.72.

Suffice it to point out that even before the learned Tribunal the respondents herein apprehended that the petitioner is likely to be considered for further promotion in preference to them, having regard to the seniority list, but, by reason of the order impugned in the writ petition, a larger relief has been granted. Further more, in a case of this nature, the Tribunal should bear in mind the dicta of the Apex Court in Morgan Stanley Mutual Fund Vs. Kartick Das, , wherein it has been held:

"4. As a principle, ex parte injunction could be granted only under exceptional circumstances. The factors, which should weigh with the Court in the grant of ex parte injunction are-

(a) Whether irreparable or serious mischief will ensue to the plaintiff;

(b) Whether the refusal of ex parte injunction would involve greater injustice than the grant of it would involve;

(c) The Court will also consider the time at which the plaintiff first had notice of the act complained so that the making of improper order against a party in his absence is prevented;

(d) The Court will consider whether the plaintiff had acquiesced for sometime and in such circumstances it will not grant ex parte injunction;

(e) The Court would expect a party applying for ex parte injunction to show utmost good faith in making the application;

(f) Even if granted, the exparte injunction would be for a limited period of time;

(g) General principles like prima facie case, balance of convenience and irreparable loss would also be considered by the Court.

It may also be placed on record that in terms of Section 24 of the Tribunal''s Act an ex parte interim order can be passed only for fourteen (14) days, which is indicative the fact that such mandatory order directing the respondents to complete the process of promotion within a period of six (6) weeks is not contemplated.

For the reasons aforementioned, the impugned order cannot be sustained and it is accordingly set aside. However, having regard to the statements made at the Bar that the petitioner herein has filed another OA questioning the legality of G.O. Ms. No.55, TR and B Department, dated 23-3-199S, it is desirable that the Tribunal should consider the mailer afresh and pass an appropriate order as expeditiously as possible, after giving an opportunity of hearing to both the parties. It is further desirable that all the connected matters may be heard out and disposed of at an early date, preferably within a period of six (6) weeks from the date of communication of this order.

Having regard to the apprehensions raised by respondent No.4 herein, the official respondents are directed to maintain status quo for a period of three (3) weeks from date.

With the aforementioned observations and directions, the writ petition is disposed of. No order as to costs.