Jammu & Kashmir High Court - Srinagar Bench
Alongwith Connected Matters vs Union Territory Of Jk & Ors on 12 April, 2021
Serial No. 219
AFTER NOTICE CAUSELIST
(by virtual mode)
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
WP(C) No. 2178/2020
Alongwith connected matters
Shabir Ahmad Mir & Ors.
..... Petitioner(s)
Through: -
Mr A.M Dar, Senior Advocate with Ms Minsha Lateef, Advocate.
Mr Lone Altaf, Advocate.
Mr Sheikh Hilal Ahmad, Advocate.
V/s
Union Territory of JK & Ors.
..... Respondent(s)
Through: - Mr B.A. Dar, Sr AAG.
CORAM:
Hon'ble Mr Justice Ali Mohammad Magrey, Judge.
Hon'ble Mr Justice Vinod Chatterji Koul, Judge.
ORDER
12.04.2021
01. This batch of writ petitions involves common question of law
and facts, therefore, we propose to dispose of these writ petitions by a
common order.
02. In these petitions, the petitioners have assailed the order(s)
passed by the Central Administrative Tribunal, Jammu Bench (hereinafter
referred to as CAT Bench), in terms whereof, the CAT Bench has declined
the interim relief of staying the selection/appointment of the private
respondents made as Fireman/Fireman Driver made by the official
respondents.
03. Mr A.M. Dar, learned senior counsel representing the petitioners
submits that the aforesaid selection of the private respondents, as was assailed
before the CAT Bench, is an outcome of scandalizing the entire process on
the ground the ineligible candidates have been made eligible and selected. In
WP(C) No. 2178/2020
Alongwith connected matters
order to bring home this argument, learned senior counsel invited attention of
the Court to the grounds of challenge urged by the petitioners in their petition,
pointing out the details of the ineligible candidates who have been made
eligible by the official respondents with their serial numbers in the selection
list.
04. On notice, the respondents have filed their reply, resisting the
relief claimed in the writ petition(s) on the ground that pending decision in
OA(s), interim relief sought by the petitioners amounts to grant of principle
relief, which is against the law laid down by the Hon'ble Supreme Court. Mr
B.A. Dar, learned Sr AAG, has also while reiterating the stand taken in the
objections for dismissal of the writ petition(s) seeking relief of grant of stay
of appointment/selection of selectee respondents, with further direction to
consider the petitioners for selection/appointment as Fireman/Fireman Driver,
submits that golden principles for grant of interim relief viz. (i) Prima facie
case, (ii) Balance of convenience, and (iii) Irreparable loss, are all in favour
of the respondents officials as well as selectee respondents and not in favour
of the petitioners, therefore, the question of grant of such relief does not arise.
05. Mr. Lone Altaf, learned appearing counsel for the petitioners (in
WP(C) No. 691/2021) and Mr Sheikh Hilal, learned appearing counsel for the
petitioners (in WP(C) No. 2177/2020) have adopted the arguments of Mr
A.M. Dar, learned senior counsel, with addition that impugned order passed
by the CAT Bench has not only caused miscarriage of justice but also amounts
to prejudging the whole controversy on the merits of the case.
06. We have heard learned counsel for the parties, considered the
matter and perused the records.
WP(C) No. 2178/2020
Alongwith connected matters
07. The subject of the OA(s) pending decision before the CAT
Bench, has reference to challenge to the selection/appointment of the private
respondents as Fireman/Fireman Driver, on the grounds taken in the OA(s).
The subject matter is still pending decision before the CAT Bench, therefore,
we are not inclined to touch the merits of the case lest that may prejudice the
rights of the parties. We refrain ourselves to any discussion on merits of the
case and only address the grievance of the petitioners qua grant of interim
relief, declined by the CAT Bench. We after careful examination of the
impugned order as also the records available on file and the arguments
advanced by the parties, come to the conclusion that principles of grant of
interim relief viz: (i) Prima facie case, (ii) Balance of convenience, and (iii)
Irreparable loss, weighs in favour of the selectee respondents and not the
petitioners, therefore, the question of interim relief as prayed for to the extent
of staying the selection/ appointment of private respondents with further
direction to consider the petitioners for appointment/selection, does not arise
at this stage. The view so taken is supported by the judgment in case titled
Vishnu Baba Tambe versus Apurva Vishnu Tambe reported in (2017) 2
Supreme Court Cases as also the judgment rendered in case titled Makers
Development Services Private Limited versus M. Visvesvaraya Industrial
Research and Development Centre, reported in (2012) 1 Supreme Court
Cases 735. Paragraph 11 of the judgment being relevant is taken note of:
"It is settled law that while passing an interim order of
injunction under Order 39 Rules 1 and 2 of the Code of Civil
Procedure, 1908, the court is required to consider three basic
principles, namely, (a) prima facie case, (b) balance of
convenience and inconvenience, and (c) irreparable loss and
injury. In addition to the abovementioned three basic principles,
a court, while granting injunction must also take into
consideration the conduct of the parties."
WP(C) No. 2178/2020
Alongwith connected matters
Law on the subject of power of tribunals/ courts qua selection is no
more res integra and the tribunals/courts have power to interfere with the
selection, if an aggrieved person satisfies the test of judicial principles laid
down in catena of judgment by this Court and the Hon'ble Supreme Court.
We need not to go into details of the case because we are only testing the
legality of the interim order passed by the CAT Bench, declining interim
relief. The view so taken in supported by the judgment of the Hon'ble
Supreme Court reported in case titled State of U.P & Ors vs Ram Sukhi Devi
reported in (2005) 2 Supreme Court Cases 733. Paragraph 8 of the judgment
being relevant is taken note of:
"8. 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. 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."
08. Admittedly the petitioners are non-selectees in the process of
selection/appointment against the posts of Fireman/Fireman Driver, therefore,
they while challenging the selection/appointment of the selectee respondents,
WP(C) No. 2178/2020
Alongwith connected matters
have to weight till final decision is rendered by the CAT Bench on merits of
the case and in the meanwhile, petitioners cannot claim relief of seeking stay
of appointment/selection of selectee respondents or for that matter seeking
their selection and appointment which if granted will amount to grant of final
relief.
09. The petitioners claim during pendency of the case seeking stay
of selection/appointment of selectee respondents or for that matter direction
for their selection/appointment cannot be considered, unless the OA(s) are
decided on merits by the CAT Bench.
10. In view of the above, we find that there is no merits in these writ
petitions, therefore, same are dismissed alongwith connected CM(s).
11. While partying with the order, we feel it necessary to say that we
have not made any observation or recorded any finding on the merits of the
case and the CAT Bench shall not get influenced by the order passed today in
these writ petitions while deciding the matter regarding the legality/validity
of selection of private respondents in the OA(s). CAT Bench is also directed
to expedite the hearing of the OA(s) pending on the subject and decide the
same, expeditiously and not later than three months, from the date of receipt
of order.
11. Registry to place copy of this order on each file.
(Vinod Chatterji Koul) (Ali Mohammad Magrey)
Judge Judge
SRINAGAR:
12.04.2021
"Hamid"
i. Whether order is speaking? Yes/No.
ii. Whether order is reportable? Yes/No.
ABDUL HAMID BHAT
2021.04.12 16:20
I attest to the accuracy and
integrity of this document
