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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 O R D E R

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

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.