CHAUHAN, J. - (1.) AN application under clause (3) of Art. 226 of the Constitution has been filed to vacate the stay order dated 30. 05. 2000, by which operation of giving compulsory retirement had been stayed.
(2.) GRANTING interim relief against the order of compulsory retirement at this stage would amount to grant of final relief, which is not permissible to be passed in ordinary course. Hon'ble Apex Court has consistently and persistently observed that the court of law should not pass an interim order which amounts to a final relief. (Vide State of Jammu & Kashmir vs. Mohammed Yakoob Khan and ors. (1), U. P. Junior Doctors Action Committee and ors. vs. Dr. B. Shital Nandwani (2), Gurunanak Deo University vs. Parminder Kumar Bansal and another (3), Saint John's Teachers Training Institute (for Women and ors. vs. State of Tamil Nadu and ors. (4), Dr. B. S. Kshirsagar vs. Abdul Malik Mohamma Musa (5), The Bank of Maharastra vs. Ray's Shopping and Transport Company Pvt. Ltd. (6), Commissioner/secretary, Government Health & Medical Education Department vs. Dr. Ashok Kumar Kohli (7), Union of India vs. Shri Ganesh Steel Rolling Mills (8), and, State of Madhya Pradesh vs. M. V. Vyavsaya & Co. The logic behind this remains that the ill-conceived sympathy masculates as inter-locutory judgment exposing judicial discretion to criticism to de-generating private benevolence and the Court should not be guided by misplaced sympathy, rather it should pass interim orders making accurate assessment of even the prima facie legal position. The court should not embrace the Authorities under the statute by taking over the functions to be performed by the statutory authorities. In Union of India vs. Era Educational Trust (10), Hon'ble Supreme Court after considering its large number of judgments held that while passing interim order in exercise of writ jurisdiction under Article 226 of the Constitution, principles laid down for granting interim relief under Order XXXIX of Code of Civil Procedure, 1908 should be kept in mind. It can neither be issued as a matter of right nor it should be in the form which can be granted only as final relief. In Morgan Stanly Mutual Fund vs. Kartic Das (11), Hon'ble Apex Court held that ex-parte injunction could be granted only under exceptional circumstances. The factors which should weigh for grant of injunction are (a) whether irreparable or serious mischief will ensue 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.
(3.) IN Burn Standard Co. Ltd. and others vs. Dinabandhu Majumdar and another (12), Hon'ble Supreme Court deprecated the practice of grant of interim relief which amounts to final relief, observing that High Court should exercise its discretion, while granting interim relief, reasonably and judiciously and, if loss can be repairable or the loss can be satisfied by giving backwages etc. in the end if petition ultimately succeeds, it is not desirable that the relief should be granted by interim order. Hon'ble Apex Court further observed that it should be granted only in exceptional circumstances where the damage can not be repaired, for the reason that -"if no relief for continuance in service is granted and ultimately his claim. . . . . is found to be acceptable, the damage can be repaired by granting him all those monetary benefits which he would have received had he continued in service. We are, therefore, of the opinion that in such cases it would be imprudent to grant interim relief". Similar view has been reiterated in Council for Indian School Certificate Examination vs. Isha Mittal and another In view of the above, it is desirable that the interim order staying operation of the order giving petitioner compulsory retirement deserves to be vacated, for the reason that if petitioner succeeds and satisfies the Court that he had wrongly been compulsorily retired, he can be compensated with the benefits as if he continued in service but in case he looses, the Department can not be compensated, for the simple reason that it would be difficult for the Court to pass an order to recover salary etc. which has been paid to him for the work done by him during operation of the interim stay order. ;