Reportable  IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.7211 OF 2008 (Arising out of SLP [C] No.11251/2008)

Abhimanyoo Ram … Appellant

Vs.

State of UP & Anr. … Respondents

O R D E R

R. V. Raveendran J.  

Leave granted. The respondents though served, remain unrepresented.

2. The  appellant  was  enrolled/registered  with  the  Board  of  Indian

Medicine, Uttar Pradesh on 23.7.2003. He got his name deleted from the

State Register of Indian Medicine so as to enroll himself in another State.

He again  sought  re-enrolment  in  Uttar  Pradesh  which  was  granted  with

prospective effect from 23.8.2007. He was denied interview for selection by

the respondents to the post of Medical Officer, as his re-enrolment did not

fulfil the eligibility requirements. He therefore wanted his registration to be

restored with retrospective effect from the date of original enrolment. He

filed a writ petition before the Allahabad High Court seeking a direction to

respondents  to  call  him  for  interview  for  the  post  of  Medical  Officer

(Ayurved/Unani).  In  the  said  petition,  an  interim  order  was  granted  on

31.10.2007, permitting him to appear in such interview. By making use of

the  said  interim  order,  he  secured  an  order  from  the  Board  of  Indian

Medicine, UP, restoring his enrolment from the date of initial registration.

Consequently,  he was called  for  the  interview.  Thereafter,  he moved the

court for dismissal of the writ petition as not pressed. The High Court, on

25.2.2008, accordingly dismissed the writ petition by the following order:   

“Learned counsel for the petitioner states that petitioner is not interested in pursuing this writ petition and the same may be dismissed as not pressed.  

In view of the statement so made by the learned counsel for the petitioner, this writ petition is dismissed as not pressed. Interim Order, granted by this Court dated 31st October, 2007 stands discharged.  

If the petitioner has participated in the process of selection because of the said interim order granted in his favour by this Court in this writ petition and  ultimately  he  has  been  selected,  it  goes  without  saying  that  such participation  in  the  process  of  selection  by  the  petitioner  would  be rendered illegal,  inasmuch as the interim order of this  Court  dated 31st October, 2007 stands merged in the final order of this Court, where under this writ petition has been dismissed. Petitioner cannot be permitted to draw the benefit from the interim order granted by this Court dated 31st October, 2007.  

State authority is  directed to take appropriate action in the matter and to ensure that in case the petitioner had been selected/appointed because of participation in the process of selection under the interim order of this Court dated 31st October, 2007, suitable orders revoking the selection/appointment of the petitioner shall be issued.  

This  order  may  be  communicated  to  respondent  no.1  i.e.  Secretary, Karmik, Government of UP, Lucknow by the learned Statnding Counsel within one week.”  

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[emphasis supplied]

3. The appellant is aggrieved by the observation in the said order that he

cannot draw benefit from the interim order and the direction for revocation

of the selection, if any, made in pursuant of the interim order. The appellant

claims that when he made a submission that he did not wish to press the writ

petition, he  bona fide thought that the court would merely pass an order

simplicitor dismissing the petition as not pressed. The appellant submits that

had he known that any conditions or directions detrimental to his interest

would be added to the order, while dismissing the petition as not pressed, he

would not have sought dismissal of the writ petition.  

4. The assumption of the appellant  that the High Court has made any

unwanted  or  unwarranted  observation  or  issued  any  direction  which  is

uncalled for, while dismissing his petition as not pressed, is not correct. The

High  Court  has  merely  spelt  out  expressly,  the  consequences  of  the

dismissal  of  the  writ  petition.  Such  explicit  directions  have  become

necessary to check a raising trend among litigants to secure the relief as an

interim  measure,  and  then  avoid  adjudication  on  merits,  particularly  in

matters  relating  to  examinations  and  recruitment.  The  modus  operandi

adopted in such matters is as follows: The litigant approaches the court in

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the last minute for relief with an interim prayer. He persuades the court to

grant  the  interim relief  by highlighting  the urgency,  irreparable  loss  and

balance of convenience. He obtains interim relief and secures the desired

benefit with the help of such interim order. Once the purpose of securing the

interim order is achieved (particularly where the interim order granted is the

same as the final relief prayed), he makes an innocuous submission to the

court that he does not want to press the petition and gets the matter disposed

of,  thereby achieving the goal of securing relief without adjudication.  He

takes  advantage  of  the  fact  that  invariably  courts  do  not  spell  out  the

consequences,  when dismissing the petitions as not pressed. The result is

that  in  many  cases,  a  litigant  who  would  not  get  the  relief  on  detailed

scrutiny  of  his  claim  during  a  contested  final  hearing,  gets  away  with

undeserved relief secured by way of an interim order.

5. Any attempt by a litigant to retain the benefit of the interim order by

avoiding final adjudication, requires to be deprecated. In fact, it requires to

be dealt with sternly. Courts should bestow caution while dismissing cases

where interim relief had been granted, as not pressed or as withdrawn. The

courts cannot  proceed on the assumption that  all  concerned would know

about the legal consequences of dismissal and therefore, it is not necessary

to  make  any order  in  regard  to  the  interim relief  already  granted.  Even

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though the legal effect of dismissal on withdrawal, is vacation of the interim

order, the concerned respondents not being aware of the legal consequences,

will not take consequential action but continue the benefit extended to the

petitioner by the interim order, unless there is a specific direction spelling

out the consequences. Sometimes, the concerned departmental officials, on

account  of  collusion  with  the  petitioners  who  had  obtained  the  interim

relief, will not withdraw or reverse the benefit granted to the petitioner in

pursuance of the interim order, when the petition is withdrawn or dismissed

as not pressed. Therefore, appropriate consequential directions cancelling or

vacating the interim order should be passed so as to restore status quo ante.

In cases where the  prayer for dismissal  (as  not  pressed or  withdrawn) is

made  even  before  the  respondent  is  served,  then  the  order  vacating  the

interim order should be communicated to the authority against  whom the

interim order was issued, so that any benefit extended as a consequence of

the  interim order,  can  be  withdrawn  or  reversed.  The  only  exception  is

where the respondents agree for the continuance of the interim order as a

final  relief,  or agree that  the benefit  of the interim order already granted

need  not  be  disturbed,  in  which  event,  the  court  should  record  such

submission and pass appropriate consequential orders.  

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6. In  this  case,  the  High  Court  has  taken  care  to  issue  appropriate

consequential  directions by vacating the interim order. The directions are

not unwarranted additions. In the usual course such an order would not have

called  for  interference.   But  there  is  need  to  interfere  with  the  order.

Fairness to the litigant requires that the court, when a request for dismissal

is made, should inform or indicate to the petitioner or his counsel that as a

consequence  of  such  dismissal,  the  benefit  of  the  interim  relief  already

granted will be revoked or withdrawn. It is possible that a litigant may make

a prayer for withdrawal without any ulterior  design  or motive, and that he

would not have sought dismissal of the petition at all, if he had known that

the benefit of the interim order will be withdrawn as a consequence of the

dismissal. The Court cannot assume, that in every case where a request for

withdrawal is made, the request is a dishonest attempt to avoid adjudication

after securing the benefit of an interim order. If the court fails to inform the

petitioner about the consequential directions proposed while dismissing the

petition as not pressed, before making the order, there is every likelihood of

the petitioner being denied the choice of proceeding with  the case. In law,

no doubt,  a party withdrawing or  not  pressing a petition,  is  presumed to

know the legal consequences thereof. His counsel is also expected to advice

him. But it  does  not  follow that  the court  need not inform the petitioner

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about  the  consequential  directions  which  it  proposes  to  issue,  when

dismissing a case on his request.  

8. In  this  case,  the  appellant  was  not  put  on  notice  about  the

consequential  direction  to  be  issued  on  acceptance  of  the  request  for

withdrawal, nor given the option of continuing with the case, if he did not

want dismissal of his petition with any added directions. To that extent it

can be said that there has been violation of a facet of principles of natural

justice.  

9. We  therefore  allow  this  appeal  and  set  aside  the  order  dated

25.2.2008 of the High Court and restore the writ petition to the file of the

High Court, with permission to the Appellant to pursue the writ petition in

accordance with law.  

………………………….J. (R. V. Raveendran)

New Delhi; ………………….………..J. November 21, 2008 (J. M. Panchal)     

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