S.P. Srivastava, J.
1. This special appeal is directed against a pre hearing judgment of a learned Single Judge, where under while keeping the writ petition pending, the Petitioner has been granted the main relief sought for by him.
2. It may be noticed that in the writ petition giving rise to this appeal the Petitioner had prayed for a direction to the committee of management for issuing an appointment letter, appointing the Petitioner on the post of Lecturer from 20-12-1991 and for a further direction for the payment of salary to him from the said date and continue the payment till the Petitioner continued to hold the post.
3. A learned single Judge, while disposing of the stay application passed the impugned order directing the Appellant to appoint the Petitioner as Lecturer in Commerce Department of the College run and managed by it, within one month and pay him his salary regularly.
4. Being aggrieved, the Committee of Management, the Appellant has now come up in Appeal seeking reversal of the impugned order.
5. We have heard the learned Counsel for the parties and have perused the record.
6. As observed by the Apex Court in its decision in the case of U.P. Junior Doctors Action Committee v. Dr. B. Sheetal Nandwani. JT 1992 (I) SC 571 its a well known rule of practice and procedure that at interlocutory stage a relief which is asked for and is available at the disposal of the matter is not granted unless there is any special reason to be indicated in clear terms.
7. It can not be lost sight of that a writ of mandamus which is issued to command and execute, only where the legal public duty is clear, unqualified and specific can be truly claimed by a party to enforce a demand met by refusal, on the establishment of such a case and though discretionary should not be issued as a matter of course as it can not be claimed as a right.
8. Further just like a concession cannot be enforced by issuing a writ of Mandamus the mere absence of a counter affidavit cannot furnish a justifiable ground for the issuance of such a writ order or direction.
9. We have searched in vain for any special reason given in the impugned order disclosing any justifiable ground for departing with the known rule of practice and procedure as observed by the Apex Court. We have no hesitation in concluding that it is impossible to approve the impugned judgment.
10. In the result, this special appeal succeeds and allowing the same, we set aside the impugned judgment. It is made clear that the Respondent No. 1, the Petitioner, will be at liberty to move again for consideration of the interim matter.
11. There shall, however, be no order as to cost.
Committee Of Management Of S.s.v. (post Graduate) College v. Sushil Kumar Sharma And Others
Committee Of Management Of S.s.v. (post Graduate) College v. Sushil Kumar Sharma And Others
(High Court Of Judicature At Allahabad)
Special Appeal No. 378 Of 1992 | 16-11-1992
Advocate List
- For Petitioner : Pramod Kumar Jain, Adv.
- For Respondent : S.A. Gilani
- A.K. Yog, Advs.
Bench
- HON'BLE JUSTICE M.K. MUKHERJEE, C.J.
- HON'BLE JUSTICE S.P. SRIVASTAVA, J.
Eq Citations
- (1993) 2 UPLBEC 1263
- 1992 RDSupp 276
- 1993 AWC 583 ALL
- 1993 (22) ALR 150
- LQ/AllHC/1992/1002
Head Note
Interpleader Relief — Mandamus — Prayer for appointment as lecturer — Grant of relief sought for by him — Held, at interlocutory stage a relief which is asked for and is available at the disposal of the matter is not granted unless there is any special reason to be indicated in clear terms — It can not be lost sight of that a writ of mandamus which is issued to command and execute, only where the legal public duty is clear, unqualified and specific can be truly claimed by a party to enforce a demand met by refusal, on the establishment of such a case and though discretionary should not be issued as a matter of course as it can not be claimed as a right — Further just like a concession cannot be enforced by issuing a writ of Mandamus the mere absence of a counter affidavit cannot furnish a justifiable ground for the issuance of such a writ order or direction — Mandamus — Mandamus — Prayer for appointment as lecturer — Grant of relief sought for by him — Grant of interpleader relief — Held, at interlocutory stage a relief which is asked for and is available at the disposal of the matter is not granted unless there is any special reason to be indicated in clear terms — It can not be lost sight of that a writ of mandamus which is issued to command and execute, only where the legal public duty is clear, unqualified and specific can be truly claimed by a party to enforce a demand met by refusal, on the establishment of such a case and though discretionary should not be issued as a matter of course as it can not be claimed as a right — Further just like a concession cannot be enforced by issuing a writ of Mandamus the mere absence of a counter affidavit cannot furnish a justifiable ground for the issuance of such a writ order or direction — Mandamus — Prayer for appointment as lecturer — Grant of relief sought for by him — Grant of interpleader relief — Held, at interlocutory stage a relief which is asked for and is available at the disposal of the matter is not granted unless there is any special reason to be indicated in clear terms — It can not be lost sight of that a writ of mandamus which is issued to command and execute, only where the legal public duty is clear, unqualified and specific can be truly claimed by a party to enforce a demand met by refusal, on the establishment of such a case and though discretionary should not be issued as a matter of course as it can not be claimed as a right — Mandamus — Prayer for appointment as lecturer — Grant of relief sought for by him — Grant of interpleader relief — Held, at interlocutory stage a relief which is asked for and is available at the disposal of the matter is not granted unless there is any special reason to be indicated in clear terms — It can not be lost sight of that a writ of mandamus which is issued to command and execute, only where the legal public duty is clear, unqualified and specific can be truly claimed by a party to enforce a demand met by refusal, on the establishment of such a case and though discretionary should not be issued as a matter of course as it can not be claimed as a right — Mandamus — Prayer for appointment as lecturer — Grant of relief sought for by him — Grant of interpleader relief — Held, at interlocutory stage a relief which is asked for and is available at the disposal of the matter is not granted unless there is any special reason to be indicated in clear terms — It can not be lost sight of that a writ of mandamus which is issued to command and execute, only where the legal public duty is clear, unqualified and specific can be truly claimed by a party to enforce a demand met by refusal, on the establishment of such a case and though discretionary should not be issued as a matter of course as it can not be claimed as a right — Mandamus — Prayer for appointment as lecturer — Grant of relief sought for by him — Grant of interpleader relief — Held, at interlocutory stage a relief which is asked for and is available at the disposal of the matter is not granted unless there is any special reason to be indicated in clear terms — Held, it can not be lost sight of that a writ of mandamus which is issued to command and execute, only where the legal public duty is clear, unqualified and specific can be truly claimed by a party to enforce a demand met by refusal, on the establishment of such a case and though discretionary should not be issued as a matter of course as it can not be claimed as a right — Mandamus — Prayer for appointment as lecturer — Grant of relief sought for by him — Grant of interpleader relief — Held, at interlocutory stage a relief which is asked for and is available at the disposal of the matter is not granted unless there is any special reason to be indicated in clear terms — Held, it can not be lost sight of that a writ of mandamus which is issued to command and execute, only where the legal public duty is clear, unqualified and specific can be truly claimed by a party to enforce a demand met by refusal, on the establishment of such a case
