Kishan Chand vs State

D.B. Lal, J.—This is an application u/s 151 of the CPC for vacation of the order, dated 14th December, 1972 passed by this Court wherein the interim stay granted to the Petitioner has been made absolute. The contentions are, that the stay of operation of the impugned order affects the selection grade which is being given to 77 officials who are not parties in the petition. Besides that, the conferment of selection grade upon these officials docs not affect the interest of the Petitioner who would be getting the said grade as and when his petition is decided. In other words, the plea is that absolutely no case is made out in favour of the Petitioner for granting stay of the operation of the impugned order and that neither balance of convenience is in his favour for such stay nor is he likely to suffer an irreparable injury if the stay is not maintained.

The learned Advocate-General who has moved the petition further contends that due to some misunderstanding on the part of the office of the Respondent No. 2 who is the Director of Health and Family Planning, immediate reply could not be filed to the stay petition and therefore the learned Judge who made this stay absolute on 14th December, 1972 in the absence of the Respondents passed ex-parte order against them. The learned Counsel requests for a review of that order and has been asked for its vacation.

If I carefully consider the merit of the reply now submitted by the Respondents against the interim stay, I find much substance in what the learned Counsel has stated. The case of the Petitioner is that he should have been made entitled to the selection grade, but this has not been done and that some other persons have been granted the selection grade. He has prayed for stay of the impugned order so far as those other persons are concerned. They are not parties to the petition. Besides that, the Petitioner does not stand to any gain or loss if the selection grade is released or not released in favour of those persons. The learned Counsel for the Petitioner even argued that he committed a mistake in getting the stay of the impugned order. Rather he should have asked for the stay of the operation of another order which he has marked Annexure PB in the petition. It is by virtue of that order that a distinction has been drawn between Ayurvedic Compounders trained and untrained. According to Petitioner, such a distinction could not have been drawn and in fact that distinction accounts for the difference in salary. The Petitioner being untrained Compounder has been given a lower grade and the other higher grade, which has been called the selection grade, given to the other 77 officials who have not been made parties to the petition. Therefore, according to the learned Counsel for the Petitioner, the operation of the impugned order Annexure PB was required to be stayed, meaning thereby that the stay of the operation of the impugned order Annexure PD does not give any benefit to the Petitioner. Therefore, even according to the learned Counsel for the Petitioner, the stay order does not confer any benefit to the Petitioner.

There is nothing under Article 226 of the Constitution to preclude a High Court from exercising a power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or abuse of the process of the Court. If authority for this is needed, reliance can be placed on Shivdeo Singh and Others Vs. State of Punjab and Others, Upon the facts now stated by the Respondents in their reply, I am of opinion that the order of stay made absolute on 14th December, 1972 need be reviewed and should be set aside. An interim relief granted during the hearing of a petition under Article 226 is not by its nature a permanent relief. It is liable to be reviewed according to fresh circumstances which arc brought to the notice of the Court and may either be set aside or substituted by another interim relief. It may, therefore, be stated that a vacation of the previous order dated 14th December, 1972 is not even required. The said order is reviewed because of the fresh circumstances brought to the notice of the Court at a subsequent stage.

Apart from this, the order dated 14th December, 1972 was an ex-parte order which could be set aside because sufficient cause is disclosed in the petition u/s 151 Code of Civil Procedure. The reply could not be filed by the Respondents because of a misunderstanding at the office of the Respondent No. 2. The Court which passed an ex-parte order can always set it aside for sufficient grounds.

Therefore, judging the case from every aspect, I am of opinion that the stay granted by this Court on 14th December, 1972 is withdrawn and the application for the interim stay C.M.P. 510/72 is rejected.