S.Rafat Alam, Sudhir Agarwal - (1.) -Heard Sri Pankaj Rai, learned standing counsel for the appellant and Sri A. B. Singh, who has appeared on behalf of petitioner-respondent.
(2.) IT is contended that the writ petition was filed by the petitioner-respondent challenging notice dated 10.7.2007, whereby he was informed of his date of retirement on attaining the age of 58 years though he was entitled to continue till he attains the age of 60 years. The learned standing counsel contended that his final relief included a mandamus directing the appellants to allow him to continue till he attains the age of 60 and by means of the interim order, the Hon'ble single Judge has granted the final relief, which is not permissible in law in view of various judgments of this Court as well as the Apex Court. Sri A. B. Singh, learned counsel for the petitioner-respondent, however, contended that in view of the Government order dated 17.3.1994, all the Rules applicable to corresponding Government servants have been applied to the employees of District Rural Development Agency and, therefore, after the amendment of Fundamental Rule 58, when the age of retirement was extended from 58 years to 60 years, the petitioner-respondent was also entitled to continue till the age of 60 years and for this reason, the Hon'ble single Judge has granted the relief. However, he could not dispute the legal position that by means of an interim order, a relief which is sought as final relief in the writ petition, ought not to have been granted. It is settled legal proposition that no interim relief at the initial stage which amounts to final relief should be granted. The Hon'ble Apex Court has consistently and persistently held that the Court should not pass an order at the interim stage, which can be granted only at the time of disposal of the petition.
(3.) FOLLOWING catena of decisions of the Apex Court on this aspect, a Division Bench of this Court in Special Appeal No. 702 of 2005, District Judge, Baghpat v. Anuragh Kumar, decided on 31.12.2005, 2006 (5) AWC 4682 has held as under : "It is settled that a final relief cannot be granted at the interim stage. We are, therefore, of the view that the interim order under appeal is unsustainable. It is settled legal proposition that no interim relief at the initial stage which amounts to final relief should be granted. The Hon'ble Apex Court has consistently and persistently held that the Court should not pass an order at the interim stage, which can be granted only at the time of disposal of the petition." This very aspect was considered by this Bench also in Special Appeal No. 74 of 2007, U. P. Power Corporation Ltd. and others v. Suraj Bhan Sharma and others, decided on 30.1.2006 and after quoting with approval the Division Bench judgment in Anurag Kumar (supra) we further observed as under : "Now coming to the merit of the order, the part of the order under appeal whereby the direction has been issued to allow the petitioner respondent to continue till attaining the age of 60 years, i.e., 31.1.2006, after staying the operation of the order dated 12.12.2005, amounts to granting final relief to the petitioner respondent and thus cannot be sustained. Whether the petitioner respondent is entitled to continue till the age of 60 years or 58 years is a mater subjudice in the aforesaid writ petition and in case the petitioner respondent succeeds he can be compensated by directing the appellant to pay his salary and other benefits as found due in accordance with Rules. However, if the petitioner respondent under interim order is allowed to continue to discharge duties till the age of 60 years and is paid full salary, then after dismissal of the writ petition, the salary already paid cannot be recovered since he may claim that since he has worked therefore salary cannot be asked to be refunded. The appellant cannot be compensated in such case and the petitioner respondent will enjoy the interim order like final order without any risk of losing salary for the extra period even if ultimately he has lost. This Court while passing interim order has to adjust the interest and equity in favour of both the parties, since it is a settled law that the act of the Court shall prejudice none. Further before passing an interim order in favour of the petitioner, the relevant considerations like prima facie case, balance of convenience and irreparable loss have to be considered. In Morgan Stanley Mutual Fund v. Kartick Das, (1994) 4 SCC 225, the Apex Court held that ex-parte injunction could be granted only under exceptional circumstances. It has held that the factors which should weigh for grant of injunction are-(a) whether irreparable or serious mischief will enure to the plaintiff; (b) whether the refusal of ex-parte injunction would involve greater injustice than grant of it would involve ; (c) even if ex-parte injunction should be granted, it should only be for limited period of time ; and (d) general principles like prima facie case, balance of convenience and irreparable loss would also be considered by the Court. In view of the discussion made above we are of the view that such an order could not have been passed and the order under appeal to the aforesaid extent cannot be sustained." ;