Kalawati Devi vs The State of Haryana and Others

G.S. Singhvi, J.—At the very outset we may mention that both the learned counsel agreed that while deciding the Letters Patent Appeal the Court may dispose of the writ petition as well. Therefore, we have heard arguments on the letters patent appeal as well as the writ petition.

The fact which are necessary for deciding the LPA and the Writ Petition are that the petitioner-appellant, Kalawati Devi, who is a widow, was engaged in the service of Panchayat Samiti, Nangal Chaudhary as a Craft Teacher for a period of six months commencing from 24.6.1964. The term of her appointment was extended from time to time till 12.3.1983 when her services were regularised. After about 6 months of her attaining the age of 55 years, the Deputy Commissioner, Narnaul issued Order dated 9,12.1987 Annexure P.1 retiring the petitioner from service on the ground that the Regional Development and panchayat Office, Ateli Nangal has made wrong entries in her service book and her annual confidential reports were incomplete and also on the ground that her case was sent late for sanction.

Smt. Kalawati Devi challenged the order dated 9.12.1987 in C.W.P. No. 2254 of 1988. She prayed that the impugned order be quashed and the respondents be directed to allow her to continue in service. On March 22, 1988, a Division Bench issued the notice of motion and stayed the operation of the Order dated 9.12.1987. After hearing the parties, the Court admitted the writ petition and ordered that the interim order shall continue. However, liberty was given to the respondents to apply for modification/revision of the stay Order. Taking clue from the observations made by the Court the respondents filed application dated 21.3.1989 for vacation of the stay Order. A learned Single Judge accepted that application on 19.7.1989 and vacated the stay Order. However, in the appeal filed by Smt. Kalawati Devi, the Division Bench stayed her retirement from service. Subsequently, it was clarified that Smt. Kalawati Devi shall stands retired on attaining the age of 58 years.

We shall first take up the LPA No. 1581 of 1989 which has been filed against the Order dated 19.7.1989 passed by the learned Single Judge. Shri M.M. Kumar argued that the Order of the learned Single Judge is erroneous in law because the same has been passed without due consideration of the merits of the case of the writ petitioner-appellant. He submitted that but for the ex-parte stay order which was passed by the Division Bench on 7.8.1989 the petitioner-appellant would have suffered irreparable injury and no amount of money could have compensated the injury suffered by her. Learned counsel relied on the observations made by a learned Single Judge in The Punjab State Co-operative Supply and Marketing Federation v. Radhe Sham and Anr. 1983(2) SLR 65. The learned Deputy Advocate General argued that the appeal of the petitioner is misconceived and should not have been entertained because the learned Single Judge vacated the interim Order after duly considering the issue of irreparable injury.

Having perused the record of the case and after giving serious thought to the rival arguments, we agree with the learned Deputy Advocate General that the Order dated 19.7.1989 passed by the learned Single Judge does not suffer from any jurisdictional error or Patent illegality warranting interference by the Letters Patent Bench. A bare reading of the Order dated 19.7.1989 shows that the learned Single Judge was conscious of the basic principles which should govern the exercise of the power By the High Court to pass interim Orders during the pendency of the writ petition. He felt that the writ petitioner can get monetary benefits in the event of the success of the Writ Petition and no irreparable injury will be caused to her by not continuing the interim Order. This approach of the learned Single Judge was quite consistent with the settled principles of law which govern the exercise of the discretion in matters like retirement from service. It is not a case in which the employment of the petitioner was sought to be aborted in the midst of her service career or at a young age. In fact she had already completed the age of 55-1/2 years. What the competent authority did by passing the Order dated 9.12.1987 was not to extend the service of the petitioner after the age of 55 years. Whether the Order passed by the Deputy Commissioner, Narnaul was legal or not is an issue which could have been decided only at the time of final adjudication of the writ petition. However, there can be no doubt that he was possessed with the power to pass appropriate Order under Rule 12 of the Punjab Panchayat Samiti and Zila Parishad Rules, 1965 as they were applicable to the State of Haryana. Thus there was no justification to stay the operation of Order of retirement. In our opinion, the grant of ex-parte interim Order was not at all warranted and the learned Single Judge rightly observed that no irreparable injury will be caused to the petitioner if the stay Order was not continued.

As a general rule the administrative action taken by the government/other competent authority can be nullified/Voided when the High Court finally decides a case. Appropriate relief including compensation can be given if the action impugned in a writ petition is found to be patently arbitrary of malicious. However, the Court will be extremely slow to pass ad interim orders against the Orders passed by the Public authorities. We are not suggesting that in no case ex-parte interim order should be passed by the High Court but what we wish to emphasize is that the Court must not only be convinced that the three basic ingredients, namely, a strong prima facie case, the irreparable injury and the balance of convenience are in favour of the petitioner but must also feel satisfied that it is in public interest to pass interim Order. In service matters like appointment, promotion, confirmation, seniority on retirement etc. the power to grant interim Order has to be exercised with great care and circumspection because it is extremely unusual for the Court to stay the operation of the government Order merely because the petitioner seeks to make out a prima facie case. It has to be realised that stay orders in such matters obstruct the functioning of the public authorities. If the administrative Order passed by the public authority is settled by passing interim Order, it may become impossible to retrieve the situation in a large number of cases. Whenever the Court feels that immediate relief should be given to the aggrieved person then the only appropriate course which the Court should adopt is to decide that matter at an early date. That would not only be in the interest of the parties but will be conducive to public interest. In The Punjab State Co-operative Supply and Marketing Federation v. Radhe Sham and Anr. (supra), the learned Single Judge examined the correctness of the Order passed by the Additional District Judge, Barnala who had granted temporary injunction in a suit filed by the respondents for invalidation of the Order of dismissal passed by the competent authority. The learned Single Judge made reference to the three ingredients which are to be kept in view at the time of deciding an application for grant of injunction. He held that the respondents had succeeded in making out a prima facie case. On the issue of balance of convenience and irreparable loss the learned Single Judge held:-

"The next consideration is the rule of balance of convenience. It would be seen that unemployment looms large on the horizon of our society. The respondent who is stated to be about 43 years of age and possibly a married man having children would be on the road. So, the balance of convenience lies that some suitable Order be passed so that he is not made to starve and at the same time the Order be made conditional so that the interests of the petitioner do not get jeopardised. By passing such an order, the third condition of ''irreparable loss'' would also be met for ultimate grant of salary etc. can be no compensation for unemployment and starvation during the intervening period. Thus, I am of the view that an equitable Order coming within the domain of Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure, be passed in favour of the respondent in this manner that during the pendency of the suit an ad interim injunction be and is hereby issued to the defendant-petitioner to pay to the plaintiff-respondent half the salary and other allowances pending suit on the fiction that he remains on the rolls of the petitioner but in a suspended manner, but such drawal of salary etc. would be subject to his furnishing an undertaking and surety that in case of the dismissal of the suit, he would return the said sum/sums back to the petitioner. As conceded, the respondent would deliver charge forthwith."

With great respect we are unable to subscribe with the view of the learned Single Judge that balance of convenience is in favour of grant of interim relief to a person who has been dismissed from service on the allegation of misconduct. In our opinion, the Order of dismissal became effective as soon as it was issued by the competent Authority. The hardship which may be suffered by a dismissed employee or his family cannot afford sound legal justification for passing an interim Order. The consideration of equities cannot be imported for granting interim relief to an dismissed public servant. Grant of injunction in such matters is greatly injurious to public interest and, therefore, in cases of dismissal, an order of injunction directing the payment of salary does not deserve to be passed.

That apart, so far as this case is concerned, there could be no justification to extend the service of the petitioner beyond the age of 55 years without quashing the order dated 9.12.1987. While deciding the writ petition appropriate relief could always be given to the petitioner but stay of the Order of retirement was wholly unwarranted. As the facts of this case have shown, the stay Order has operated till the writ petitioner attained the age of 58 years and in a way the entire matter has been rendered infructuous. Even if we were to dismiss the writ petition at this stage, it may not have been possible to recover the amount paid to the writ petitioner by way of monthly salary.

On the basis of the above discussion, we hold that the Order passed by the learned Single Judge on 19.7.1987 vacating the stay does not suffer from any error of law requiring interference in this appeal.

In support of the writ petition Shri M.M. Kumar argued that no material was available with the respondent-Deputy Commissioner which could justify his refusal to extend the service of the petitioner after 55 years of age. Shri Kumar submitted that the exercise of power by the Deputy Commissioner is vitiated due to non-application of mind and arbitrariness. On the other hand Shri Jaswant Singh argued that the competent authority had passed the Order keeping in view the service record of the writ petitioner.

During the course of hearing, we called upon the learned Deputy Advocate General to show any adversity in the service record of the writ petitioner which warranted the passing of the Order Annexure P.1 However, he could not place any material before us to justify the decision taken by the Deputy Commissioner. Therefore, we have no hesitation to hold that there did not exist any adverse material in the service record of the writ petitioner which could justify the decision of the Deputy Commissioner not to extend the term of her service after the age of 55 years. Rule 12 of the Punjab Panchayat Samiti and Zila Parishad Rules, 1965 reads as under:-

"The members of the service shall retire on their attaining the age of 55 years. Provided that the appointing authority may, with the previous approval of Commissioner of the Division extend the age of retirement from 55 years by such period and subject to such conditions as it may think proper, but no extension shall be given so as to allow a member of the service to continue in service beyond the date on which he attains the age of fifty eight years."

A bare look at the above quoted rule shows that the competent authority I as to exercise its discretion to extend or not to extend the service of an employee after the age of 55 years in an objective manner and not according to his/her whims and caprice. In the present case the Deputy Commissioner refused to extend the service of the writ petitioner without any rhyme or reason. Thus the exercise of the power by the Deputy Commissioner is liable to be invalidated.

For the reasons aforementioned, the writ petition deserves to be allowed.

In the result the LPA No. 1581 of 1989 is dismissed. However, C.W.P. No. 2254 of 1988 is allowed. The Order dated 9.12.1987 passed by the Deputy Commissioner, Narnaul is declared illegal and quashed. Since the writ petitioner has already continued in service upto the age of 58 years no other direction is required to be given except that she shall get retirement benefits on the basis of the service rendered by her upto the age of 58 years.