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CASE NO.: Appeal (civil)  1604 of 2008

PETITIONER: U.P. Avas Evam Vikas Parishad & Anr

RESPONDENT: Rajendra Kumar Aggarwal & Ors

DATE OF JUDGMENT: 22/02/2008

BENCH: Tarun Chatterjee & Harjit Singh Bedi

JUDGMENT: JUDGMENT

CIVIL APPEAL NO 1604 OF 2008 (Arising our of SLP (C) No. 3097 of 2008)

                                       O R D E R 1.      Leave granted. 2.      This appeal by special leave is directed against an interim order  passed by the High Court of Judicature, Allahabad at Lucknow in a  writ petition by which the respondents have challenged the  constitutional validity of the provisions of Article 16 (4-A) of the  Constitution of India and Rule 8(A) of the UP Government Servants  Seniority \026 (Third Amendment) Rules 2007. The High Court, while  granting the interim order, quoted herein below, has observed that  since in a bunch of writ petitions, the question regarding the  constitutional validity of the provisions of Article 16 (4-A) of the  Constitution of India and Rule 8(A) of the UP Government Servants  Seniority \026 (Third Amendment) Rules 2007 is already under challenge  and the interim order, quoted herein below, has already been passed in  those bunch of writ petitions, similar interim order shall also be  passed in the present writ application.  3.      The interim order granted by the High Court runs as under: - "In the meantime, as an interim measure, we  provide that the seniority of the petitioners as  existing prior to the enforcement of the U.P.  Government Servants Seniority (Third  Amendment) Rules, 2007, shall not be disturbed  in pursuance of the Rules."

4.      Mr. Trivedi, the learned senior counsel appearing for the  appellants has drawn our attention to the fact that since the  constitutional validity of Article 16(4-A) has already been upheld in  M. Nagaraj Vs. Union of India [(2006) 8 SCC 212], the writ  application itself could not be entertained and in that view of the  matter, the question of granting the interim order shall not arise at all. 5.      Mr. P.P. Rao, the learned senior counsel appearing for the  respondents, however, has drawn our attention to an interim order  passed in a pending writ petition in which the constitutional validity  of Article 16 (4-A) of the Constitution of India and Rule 8(A) of the  UP Government Servants Seniority \026 (Third Amendment) Rules 2007  has been challenged and submitted that the decision of this court in M.  Nagaraj Vs. Union of India [supra] has already been considered by  another division bench of the High Court after explaining the said  decision and the interim order in the manner indicated above has been  continued. Therefore, Mr. Rao submitted that instead of interfering  with the interim order passed by the Division Bench of the High  Court, direction may be given to the High Court to dispose of the  pending writ application at an early date preferably within 3 months  from this date.

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6.      Having heard the learned counsel for the parties and after going  through the decision of this court in M. Nagaraj Vs. Union of India  [supra] in which the constitutional validity of the provisions of Article  16 (4-A) of the Constitution of India and Rule 8(A) of the UP  Government Servants Seniority \026 (Third Amendment) Rules 2007 has  already been upheld, we are unable to agree with Mr. P.P. Rao that at  the interim stage, there was any occasion for the High Court to grant  the interim order in this pending writ application. In any view of the  matter, in our view, it was not a fit case for grant of the interim order.  It is true that another Division Bench of the High Court, after  considering the decision of this court in M. Nagaraj Vs. Union of  India [supra], has granted the interim order but we feel that since the  grant of interim order is discretionary in nature and therefore, only  because an interim order has been passed by another coordinate bench  of the High Court, it cannot be said that the interim order should also  be passed in this pending writ application when the constitutional  validity of Article 16 (4-A) of the Constitution of India and Rule 8(A)  of the UP Government Servants Seniority \026 (Third Amendment)  Rules 2007 has already been upheld.  7.      For the reasons aforesaid, we set aside the interim order, as  quoted hereinabove, and request the High Court to dispose of the  pending writ application at an early date preferably within 2 months  from the date of communication of this order to the High Court. The  appeal is allowed to the extent indicated above. There will be no order  as to costs.