Ratan Kishor Gupta vs State of U.P.and Others

Heard counsel for the appellant Sri Prashant Chandra, Senior Advocate, assisted by Sri Siddharth Dhaon, Sri D.K. Upadhyay, learned Chief Standing Counsel for the respondents No.1 and 2, Sri I.P. Singh, for U.P. Public Service Commission opposite party No.3 and Sri Vinod Kumar Singh, Senior Advocate, assisted by Sri Vinay Tripathi, for the respondent No.4.

The appellant who was found impleaded in the writ petition on his own application on day one when the interim order was passed, challenges the aforesaid interim order saying that the interim order gives final relief which has been claimed by the respondents No.4 to include his name in the eligibility list and for considering his case for promotion on the post of Assistant Engineer.

Sri D.K. Upadhyaya also says that the relief claimed finally could not have been granted in the interim relief, particularly, when there is already Division Bench judgment in re: Anjani Kumar Mishra v. State of U.P., reported in 2007 UPLBEC (Vol. 1) 260, wherein the cut of date has been shown as 30.6.2004 and in the interim order relying upon the submission made by the counsel for the respondent that the cut of date will be taken as 27th October 2007, the directions have been issued for including the name of the respondent No.4 in the eligibility list and considering his name for promotion.

As we are informed the Special Leave petition preferred against the aforesaid judgment has been dismissed by the Supreme Court, no fresh cut of date could have been applied for the purpose of granting interim order.

Sri Prashant Chandra appearing for the appellant though submitted that there are certain facts which should have been disclosed by the respondents, but we do not intend to inter into the merits of the pleas at this stage as the matter will be considered by the learned Single Judge where pleas can be raised by either parties which they intend to make in respect of their claims and also about maintainability of the writ petition.

The respondent is claiming promotion after getting his name included in the eligibility list consisting of about 38 persons as informed by Sri Prashant Chandra but none of them have been impleaded in the writ petition as respondents though one of them has moved application for impleadment which has allowed by learned Single Judge and he is the present respondent. Argument is that in absence of all those who are likely to be affected by the order the writ petition is not maintainable, is a question again which has to be considered by the learned Single Judge and we refrain ourselves from entering into the merits of the disputed claim of the parties but Sri Vinod Kumar Singh appearing for respondent says that they are not the necessary parties and the petition is maintainable otherwise.

It is the cardinal principle of law that the interim relief is granted for protecting the subject matter of litigation or to maintain the status quo as existing on the date of passing of the interim order. A positive interim direction is also issued in cases where it does not affect the rights of any other party or when it becomes imperative for the Court to issue any such direction but where a claim of promotion that too after including the name of the respondent in the eligibility list is made such a interim ruling ordinarily can not be granted at initial stage or on day one when the writ petition is filed.

It is not a case where the right of the respondent to be included in the eligibility list is not in dispute and consequently to consider his promotion for the vacancies which has arisen prior to 30th June 2004 but he has to establish the said claim before the learned Single Judge. This being the position, we are satisfied that the direction to consider the case of the respondent for promotion after inclusion of his name in the eligibility list amounts to grant of final relief at the initial stage.

We, therefore, set aside the order dated 19.3.2009 and remit the matter to the learned Single Judge for considering the application for stay after affording opportunity to the parties concerned and to pass appropriate order as it deems fit and proper.

We may clarify that any observation made by us shall not be taken into account while considering interim relief application afresh as observations have been made only for the purpose of deciding the special appeal which has been filed against the present interim order.

We also give liberty to the parties counsel to make a request to learned Single Judge to decide the interim relief application afresh and also decide the petition expeditiously, if affidavits are exchanged.

Appeal allowed accordingly.