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CASE NO.: Appeal (civil)  6510 of 2004

PETITIONER: State of U.P. and Ors.

RESPONDENT: Ram Sukhi Devi

DATE OF JUDGMENT: 05/10/2004

BENCH: ARIJIT PASAYAT & C.K. THAKKER

JUDGMENT: J U D G M E N T

(Arising out of SLP (C) No. 1343 of 2004)

ARIJIT PASAYAT, J.

       Leave granted.

       The State of U.P. calls in question legality of the judgment  passed by a Division Bench of the Allahabad High Court dismissing the  Special Appeal filed by the present appellants. The Division Bench  upheld the interim order passed by learned Single Judge dated 24.6.2002  in Writ Petition No.3334/2002 (SS).

       Background facts as projected by the appellants in a nutshell are  as follows:

       Respondent’s husband was appointed as a part-time tubewell  operator on 14.6.1989. While Uttar Pradesh Recruitment of Dependents of  Government Servant Dying-in-Harness Rules, 1974 (in short the ’1974  Rules’) were in operation, in compliance with the judgment passed by  this Court in some cases on 16.12.1996 Uttar Pradesh Sinchai Vibhag  Mein Nalkoop Chalakon Ke Pado Par Anshalik Nalkoop Chalakon Ke  Viniyamitikaran Niyamawali, 1996 (hereinafter referred to as the ’1996  Rules’) was notified and same was made applicable with effect from the  date of notification. Under Sub-rule (1) of Rule 4 of the said Rules,  the cut off date was fixed to be 1.10.1986. On 26.10.1998 a Government  order was issued by the State Government clarifying that under the 1974  Rules benefit could not be given to the dependents of the part-time  employees.  

       On 15.11.2001 husband of the respondent died leaving behind the  respondent and four children. On 3.4.2002 respondent submitted an  application before the Executive Engineer, Tubewell Division-I, Sitapur  (appellant No.4 herein) seeking appointment under the 1974 Rules. Her  request was turned out on the ground that she was not eligible for such  appointment under the 1974 Rules. Writ Petition No.3334/2002 (SS) was  filed by the respondent, inter alia, seeking for a direction to the  present appellants to appoint the writ petitioner in any suitable Class  IV post under the Dying-in-Harness Rules.  Learned Single Judge while  issuing notice directed that the competent authorities shall consider  the writ petitioner’s claim of giving compassionate appointment under  the Dying-in-Harness Rules ignoring the Government Order dated  26.10.1998 within the stipulated period. Legality of the order was

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challenged before the Division Bench by filing a Special Leave. The  same has been dismissed by the impugned judgment.  

       The High Court disposed of the appeal directing that the present  respondent should be given a Class IV appointment within the stipulated  time. It was observed that on the facts of the case without going into  the legal merits on a humanitarian consideration, compassionate  appointment should be made.  

       In support of the appeal, learned counsel for the appellants  submitted that the direction given by the learned Single Judge that the  appointment should be made during the pendency of the writ application  ignoring the Government Order dated 26.10.1998 is clearly  unsustainable. Division Bench of the High Court did not consider  legality of the order and without going into the merits straightaway  disposed of the appeal on purportedly humanitarian ground. It was  submitted that the direction as given by the learned Single Judge and  affirmed by the Division Bench run counter to the specific provision in  the operative Government Order.  

       Per contra, learned counsel for the respondent submitted that  both the learned Single Judge and the Division Bench have acted on  humanitarian grounds and this Court should not interfere with any  interim order passed by learned Single Judge which has been upheld by  the Division Bench.  

To say the least, approach of the learned Single Judge and the  Division Bench is judicially unsustainable and indefensible. The final  relief sought for in the writ petition has been granted as an interim  measure. There was no reason indicated by learned Single Judge as to  why the Government Order dated 26.10.1998 was to be ignored. Whether  the writ petitioner was entitled to any relief in the writ petition has  to be adjudicated at the time of final disposal of the writ petition.  This Court has on numerous occasions observed that the final relief  sought for should not be granted at an interim stage.  The position is  worsened if the interim direction has been passed with stipulation that  the applicable Government Order has to be ignored.  Time and again this  Court has deprecated the practice of granting interim orders which  practically give the principal relief sought in the petition for no  better reason than that of a prima facie case has been made out,  without being concerned about the balance of convenience, the public  interest and a host of other considerations. [See Assistant Collector  of Central Excise, West Bengal v. Dunlop India Ltd. (1985 (1) SCC 260  at p. 265), State of Rajasthan v. M/s Swaika Properties (1985 (3) SCC  217 at p.224), State of U.P. and Ors. v. Visheshwar (1995 Supp (3) SCC  590), Bharatbhushan Sonaji Kshirsagar (Dr.) v. Abdul Khalik Mohd. Musa  and Ors. (1995 Supp (2) SCC 593), Shiv Shankar and Ors. v. Board of  Directors, U.P.S.R.T.C. and Anr. (1995 Supp (2) SCC 726) and  Commissioner/Secretary to Govt. Health and Medical Education Department  Civil Sectt., Jammu v. Dr. Ashok Kumar Kohli (1995 Supp (4) SCC 214).]  No basis has been indicated as to why learned Single Judge thought the  course as directed was necessary to be adopted. Even it was not  indicated that a prima facie case was made out though as noted above  that itself is not sufficient. We, therefore, set aside the order  passed by learned Single Judge as affirmed by the Division Bench  without expressing any opinion on the merits of the case we have  interfered primarily on the ground that the final relief has been  granted at an interim stage without justifiable reasons. Since the  controversy lies within a very narrow compass, we request the High  Court to dispose of the matter as early as practicable preferably  within six months from the date of receipt of this judgment.   

       The appeal is allowed with no order as to costs.