T N RAINA Vs. HALEEMA MUFTI
LAWS(J&K)-1986-9-14
HIGH COURT OF JAMMU AND KASHMIR
Decided on September 29,1986

T N Raina Appellant
VERSUS
Haleema Mufti Respondents

JUDGEMENT

- (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 No. 1.;


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