State of Jammu and Kashmir vs Kiran Koul

M. Ramakrishna, CJ.

1.We have heard Mr. S.K. Anand, learned Goverment Advocate appearing for the appellants and perused the grounds taken in the appeal as well

as the order made by the learned Single Judge on June 26, 1996 in SWP No. 704 of 1996.

Admit.

However, immediately after this order, Shri Pandita, learned counsel for the respondent, has become very wiser and submitted that instead of

admitting and putting the matter pending for long time to be heard and disposed of on merits, he is agreeable in allowing the LPA and setting aside

the order made by the learned Single Judge on June 26, 1996 in SWP No. 704 of 1996 with a direction to the writ Court to hear and dispose of

the matter on merits at an early date.

A few facts which are necessary for disposal of this appeal are as follows:

One Kiran Koul wife of Sh. Surinder Ganjoo the writ petitioner was working as a Junior Nurse in the Hospital known as Bones and Joint Hospital

Barzulla, Srinagar (Kashmir) against a clear vacancy. She moved a writ petition (SWP No. 704 of 1996) in which she has sought for a prayer to

release her leave salary payable by the respondents in the writ petition. On the same lines, she had moved CMP No. 668 of 1996 seeking for a

similar relief pending consideration in the main appeal. The learned Single Judge by an order made on June 26, 1996 has passed the following

interim order:

``......Notice as above. Reply within the same time. Respondents are directed to release the leave salary of petitioner from the date it has been

withheld and pay the arrears within a month and for future the same be paid regularly.''

It is this order that is called in question in the present appeal by the appellants.

Mr. Anand, learned Government Advocate appearing for the appellants, submits that the writ petitioner/respondent does not have any right as

such seeking for a prayer in regard to her leave salary, as alleged in the writ petition, inasmuch as, according to the learned Counsel for the

appellants, she is not a regular employee of the concerned Department and that she is not entitled to get any leave salary. Therefore, he submits

that the writ Court ought to have first issued a notice to the respondents in the writ Court and to determine as to whether the writ petitioner was

entitled to such a relief, as is given to her. But instead of that, an exparte order granting relief had been made by the learned Single Judge, which is

illegal and bad in law. Therefore, the present appeal.

It is pertinent for us to refer to the law laid down by the Hon'ble Supreme Court in regard to the grant of interim relief in writ petition under

Article 226 of the Constitution of India. In Assistant Collector of Central Excise, Chandan Nagar, West Bengal v. Dunlop India Ltd. and others,

reported in AIR 1985 SC 330, the Hon'ble Supreme Court has laid down the following law:

``A tendency to grant interim orders with a great potential for public mischief for the mere asking is deprecated by the Supreme Court. It was

further observed that such interim orders often exparte and nonspeaking are made even by the High Courts while entertaining writ petitions under

Art. 226 of the Constitution and in the Calcutta High Court on oral application too.''

Further in para 5 of the said decision, the Hon'ble Supreme Court has further observed as follows:

``The Supreme Court also deprecated the practice of granting interim order which practically give the principal relief sought in the petition for no

better reason than that a primafacie case has been made out without being concerned about the balance of convenience, the public interest and a

host of other relevant consideration.''

Laying down the guiding principles, the Hon'ble Supreme Court has further observed as follows:

``The Supreme Court observed that the collection of Public revenue has been seriously jeopardised and budgets of Governments and Local

Authorities affirmatively prejudiced to the point of precariousness consequent upon interim orders made by Courts. But that does not mean that

interim orders may never be made against public authorities. There are, of course, cases which demand that interim orders should be made in the

interests of justice. Where gross violations of the law and injustices are perpetrated or are about to be perpetrated, it is the bounden duty of the

Court to intervene and give appropriate interim relief. In cases where denial of interim relief may lead to public mischief, grave irreparable private

injury or shake a citizen's faith in the impartiality of public administration. A Court may well be justified in granting interim relief against public

authority. But since the law presumes that public authorities function properly and bona fide with due regard to the public interest, Court must be

circumspect in granting interim orders of far reaching dimensions or orders causing administrative, burdensome inconvenience or orders preventing

collection of public revenue for no better reason than that the parties have come to the Court alleging prejudice, inconvenience or harm and that a

primafacie case has been shown. There can be and there are no hard and fast rules. But prudence, discretion and circumspection are called for.

There are several other vital considerations apart from the existence of a primafacie case. There is the question of irreparable injury. There is the

question of the public interest. There are many such factors worthy of consideration.''

At the end of para 3 of the decision, the Hon'ble Supreme Court also observed, regard being had to the tendency of the writ petition under Article

226 of the Constitution, as follows:

``......We can also take judicial notice of the fact that the vast majority of the petitions under Art. 226 of the Constitution are filed solely for the

purpose of obtaining interim orders and thereafter prolong the proceedings by one device or the other. The practice certainly needs to be strongly

discouraged.''

In a late decision in State of Jammu and Kashmir v. Mohd. Yaqoob Khan and others, reported in 1992(4) SCC 167, the Hon'ble Supreme Court

had an occasion to deal with a similar question of law and laid down the following law:

``The direction of the High Court although passed as an interim order in a pending interlocutory matter was, in substance, a final order allowing the

writ petition in part without hearing the other side. The direction was not for maintenance of status quo; nor again was it a restraint order on the

State authorities forbidding them from taking any step to which the writ petitioner could have an objection. As a result of the interim direction, the

writ petitioner was to receive the results of the decree to the extent of half. The facts disclose that the stakes in the case are very high. According to

the State it had already paid a huge amount of money. Mainly it has discharged its obligation in full. Hence, it is not liable to pay anything further or

to deliver any timber as claimed by the writ petitioner. That issue remains to be decided at the time of the final hearing of the writ petition. The

dispute, therefore, will be covered by Section 47 of the Code of Civil Procedure. It will be a serious question to consider whether in these

circumstances the writ petitioner was entitled to maintain his application under Articles 226 at all. It would not be proper to decide any of these

controversies between the parties at this stage except holding that the orders passed in the contempt proceedings were not justified, being

premature and must, therefore, be entirely ignored.''

In view of the law laid down by the Hon'ble Supreme Court in the above quoted decisions, it is made clear that at the stage of issuance of notice

in the writ petition calling upon the respondents (appellants herein) to appear and contest the matter, caution must be taken that of discretion and

circumspect, while granting such relief, as has been done in the present case, which can be granted only after consideration of the main matter.

Particularly, in the face of it, Mr. Anand, learned Government Advocate, submitted that the learned Single Judge while passing such an order,

ought to have seen that was the writ petitioner entitled to the relief sought for in the writ petition in respect of her leave salary. Instead of

determining the question on the main matter, if the tendency of granting such relief at the stage of issuance of notice, was to be followed, it would

have resulted in serious deprecation on the part of respondents. Therefore, we allow this appeal, set aside the order made by the learned Single

Judge on June 26, 1996 in the SWP No. 704 of 1996 and a direction is issued to the writ Court that the writ petition shall be disposed of on

merits not later than four weeks from today. Order accordingly.