Hon'ble Ritu Raj Awasthi, J.
Though there is some delay in filing the special appeal, but since there is no objection, the delay is condoned.
Heard learned counsel for the appellant Sri O.P. Srivastava and Sri Sanjay Misra for respondent no.1.
This special appeal challenges the interim order dated 16.9.2010 passed by the learned Single Judge, by means of which, the appellant, who was promoted on the post of Clerk and had joined on the said post on 16.8.2010, virtually stands reverted to his substantive post of Daftari. That being so, the special appeal is maintainable.
The respondent no.1 filed the writ petition challenging the promotion of the appellant on the post of Clerk.
The prayer made in the writ petition is only for quashing the order of promotion of the appellant and for considering the case of the respondent for promotion on the post of Assistant Clerk, on the basis of the seniority-cum-merit under 50% promotion quota.
Learned counsel for the appellant assailing the aforesaid interim order, submitted that no challenge to his appointment on post of Daftari has been made in the writ petition and that the only prayer, which has been made in the writ petition, is for quashing the order of promotion on the post of Assistant Clerk, but the learned Single Judge has entered into the validity of appointment of the appellant on the post of Daftari and after recording a finding that the appellant could not have been appointed as Daftari, either by direct recruitment or by promotion, has passed the impugned order.
Sri Sanjay Misra, defending the order passed by the learned Single Judge, reiterates with vehemence that since the basic appointment of the appellant on the post of Peon and thereafter on the post of Daftari being wholly illegal, the promotion given is also without any authority and not supported by any law and, therefore, the interim has been passed by the learned Single Judge.
We have gone through the writ petition, copy of which, has been brought on record, and we find that there is not even a whisper of challenge to the appointment on the post of Peon or Daftari of the appellant. This fact has been very candidly admitted by the counsel for respondent no.1 Sri Sanjay Misra also, namely, that the appointment on the post of Daftari has not been challenged in the writ petition.
At this juncture, learned counsel for the respondent no.1, says that the appointment of the appellant on the post of Daftari was not in the knowledge of the respondent, therefore, such a challenge could not be made.
Be that as it may, but the fact remains that there is no challenge to the appointment/promotion on the post of Daftari of the appellant.
We, with great respect to the learned Single Judge, would like to observe, that in an interim order, if a finding of this nature is recorded, that would not only be prejudicial to the interest of the appellant, against whom such a finding has been recorded in the writ petition, but would also make the appointment on the post of Daftari as illegal, though it is not in dispute.
The relief in the writ petition can be granted, which is asked for, and not beyond that, and it is no gain saying that the interim relief has to be granted within the four corners of the final relief and, of course, not beyond that. This apart, the basic considerations which are required to be taken in passing the interim order are; (1) there should be a, prima facie, case in favour of the petitioner; (2) the balance of convenience must lie in favour of the petitioner; (3) he would suffer irreparable loss and injury, in case no interim order is passed, and lastly, the benefit of the interim order must be available to the petitioner. In case, any of the aforesaid conditions does not stand fulfilled, the Court would be reluctant to pass a interim order.
Even assuming that the respondent has a, prima facie, case for challenging the promotion of the appellant, he having not been promoted yet, he cannot occupy the promotional post, unless the promotion order passed in favour of the appellant is set aside and fresh selection is made. This can only be done, in case the writ petition is finally decided in favour of the respondent.
The interim order does not decide any such controversy nor could have decided.
The respondent cannot be promoted under the interim order, the balance of convenience, thus, lies in favour of the appellant, who has already joined on the promoted post and, of course, the respondent would not suffer any irreparable loss and injury, in case the interim order is not passed, but the appellant, who was already promoted and joined on the post of Clerk on 16.8.2010, will suffer irreparable loss and injury, as he stands reverted to his substantive post.
Lastly, needless to say that the benefit of the interim order cannot be diverted to the respondent. That being so, the order passed by the learned Single Judge dated 16.9.2010 cannot be sustained, which is hereby set aside.
Since the affidavits have been exchanged between the parties, on the request of the parties' counsel, let the writ petition be decided at an early date.
List the writ petition in the next month for hearing before the learned Single Judge, having jurisdiction.
The special appeal is allowed. No orders as to costs.
We may clarify that we have not addressed ourselves on the merits of the claim of either party and any observation made in this order, if at all touches the merits of the case, would not be binding upon the learned Single Judge while deciding the writ petition.
Dated: 28.10.2010 Sachin