T N RAINA Vs. HALEEMA MUFTI
HIGH COURT OF JAMMU AND KASHMIR
T N Raina
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(1.) THE respondent No. 1 filed a civil suit for declaration to the effect that the order passed by respondent No 1 under No 316 -GR -EDU/ 1986 dated
27 -6 -1686 was null and void, illegal and not binding upon her with a consequential relief of permanent injunction restraining the
defendant -State from relieving the plaintiff from the post of District
Education Officer, Pulwama. The order impugned which was stated as an
order of transfer was challenged mainly on the ground that the same
amounted to reduction in rank, status and protocol of the petitioner,â„¢
plaintiff and that the same was the result of malafides. The plaintiff
valued the suit for purposes of jurisdiction at Rs. 12,000/ - for the
relief of declaration and Rs. 10/ - for the relief of injunction. An
application was also filed for dispensing with the service of notice
under section 80 CPC along with an application for the grant of temporary
injunction. The learned trial court vide its order dated July 4th, 1986
dispensed with the service of notice in the petition for the grant of
temporary injunction on the same day to the respondents to appear on the
next date and on 5 -7 -1986 the impugned order was passed whereby the
operation of the Govt. order No. 316 -GR/EDU/1986 dated June, 27th, 1986
was stayed. The order was however made subject to the objections of the
other side and was to continue to remain in force till 14 -7 -1986.
Aggrieved by the order passed by the trial court the appellant has filed
this Misc. appeal along with his joining report showing that he had
joined as District Education Officer, Pulwama on June 30th, 1986, which
is a date before filing of the suit in the trial court.
(2.) MR . Bhat the learned counsel appearing for the appellant has submitted that the order passed by trial court was without jurisdiction
and non -application of mind to the facts and circumstances of the case.
The learned counsel appearing for the respondent No. 1 has however
submitted that the order challenged in the plaint was not merely an order
of transfer but was in fact an order of demotion of respondent which was
a punishment within the meaning of rule 30 of J&K Civil Services
(Classification, Control and Appeal) Rules and liable to be quashed
because the same was imposed without adopting due procedure as prescribed
by law. It is further submitted by the learned counsel for the respondent
No. 1 that the order passed which was challenged in the plaint in fact
was manipulated by the appellant in his favour who otherwise was not even
qualified to be appointed to the post of District Education Officer. It
is contended that the order of the trial court granting the interim
relief was legal, valid and according to law. The order should not be set
aside and the parties should be directed to file the written statement
and objections before the trial court so that the rival contentionsâ„¢
could be appreciated by that court.
(3.) AFTER hearing the learned counsel for the parties I am of the view that the order passed by the lower court was without jurisdiction.
Had the court below perused the provisions of section 56 clauses (d) of
the Specific Relief Act, no order could have been passed in favour of the
respondent No. 1. It is specifically provided under section 56 of the
Specific Relief Act that an injunction cannot be granted to interfere
with the public duties of any Department of the Government or the State
or with the sovereign acts of a Foreign Government. In the instant case
it is not disputed even by the learned counsel for the respondent that
the order challenged in the plaint was the outcome of the public duties
of the Education Deptt. of the State of J&K.
The civil court therefore had no right to pass any order with respect to the action taken by the Government in discharge of the public
duties. The petitioner if aggrieved of any executive action of the State
had other remedies open to her to which she could have resorted to, but
was not entitled to file a plaint in the civil court. Under these
circumstances it is not necessary for me to enter into the controversy
raised by the learned counsel for the respondent regarding the
interpretation of the order impugned as to whether the same was a
simplicitor order of transfer or an order of demotion as argued by him.
Assuming but not admitting that the order was the nature of reducing the
plaintiff in rank, or status or protocol, even then the said order was
passed by the Education Department of J&K. in the discharge of the public
duties and could not have been challenged in the civil court. Apparently
the order challenged in the plaint is simplicitor order of transfer and
not an order of demotion. The order Impugned does not amount to awarding
any punishment to the plaintiff. As the remedy of filing a suit was
barred under section 56 of the Specific Relief Act, the trial court was
not justified in passing any interim order in favour of the respondent
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