# Kanpur Jal Sansthan through its G.M v. Dilawar Ali & others

- **Citation:** (2001) 1 ILRA 96
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 1999-12-02
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kanpur-jal-sansthan-through-its-g-m-v-dilawar-ali-others-39635
- **Pages:** 4

## Text

96 INDIAN LAW REPORTS ALLAHABAD SERIES [2001
huge amount against the appellant. The
suspension order has been passed by the
Governor and as such, it cannot be urged
that the authority, passing the order, had
no jurisdiction to do so. The allegation is
that fictitious records were prepared and a
big amount was misappropriated. The
Officer to hold enquiry has already been
appointed. The learned Single Judge has
also
directed
that
the
enquiry
be
completed within six months. In these
circumstances, we do not at all consider it
a fit case in which discretion may be
exercised in favour of the appellant under
Article 226 of the Constitution of India.

6. The appeal lacks merit and is
dismissed at the admission stage.

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By the Court

1. This special appeal has been
preferred
against
the
order
dated
2.12.1999 of a learned Single Judge
passed in writ petition no. 5497 of 1997
(Dilawar Ali and 23 others versus State of
UP and others).

2. Sri Arun Tandon learned counsel
for the appellant has contended that
though the impugned order is an interim
order but it has not only granted a relief
which could be given only at the stage of
final hearing but has also granted such
relief which was not even claimed in the
writ petition. Sri Fauzdar Rai learned
counsel for the contending respondents
has supported the order and has submitted
1All] Kanpur Jal Sansthan through its G.M. V. Dilawar Ali & others
97
that on the facts and circumstances of the
case the order is fully justified.

3. In order to appreciate the
contentions raised at the bar, it is
necessary to reproduce the impugned
order which reads as under:

"Heard learned counsel for the
petitioner.
None
appears
for
the
respondents.

Since the petitioners are working
since 1983 to 1985, therefore, the
respondents are directed to consider the
case of the petitioners for regularisation.
During the pendency of regularisation, the
petitioners shall be paid minimum of the
pay scale against the post they are
working."

In the writ petition, the following
relief's haved been claimed by the
petitioners:

(i) to issue a writ of mandamus, order or
direction in the nature of mandamus
commanding the respondents to pay
the petitioners salary which is being
paid to the regular employee in the
similar situation since the same
became due and continue to pay with
admissible benefits till the petitioners
are in service.

(ii) to issue any such other writ, order or
direction as this Hon'ble Court may
deem fit and proper under the
circumstances of the case.

(iii) to award the costs of the petition to
the petitioners.

The petitioners have not claimed any
relief for their regularisation in service in
the writs petition filed by them. However
by the impugned order dated 2.12.1999 a
direction has been issued at an interim
stage commanding the respondents to
consider the case of the petitioners for
regularisation. In our opinion, no such
direction could have been issued in view
of the nature and scope of the writ petition
and that too by an interim order.

4. Sri Arun Tandon learned counsel
for the appellant has next submitted that a
post can be created in Jal Sansthan with
the
prior
approval
of
the
State
Government under section 27 of the U.P.
Water Supply and Sewerage Act, 1975
and the Jal Sansthan cannot by itself
create any post. He has further submitted
that the petitioners have not disclosed in
the writ petition whether they were
continuously working ever since their
initial appointment and whether the
petitioners have the prescribed minimum
qualification for the post of which they
were claiming salary. We find substance
in the submission made by the learned
counsel for the appellant. In view of the
provision of the Act, the Jal Sansthan
cannot create any post save with the
approval of the State Government. In the
writ petition, the petitioners have not
averred that they were continuously
working ever since the date of their first
appointment nor they have averred that
there has been no break in their service.
Similarly no averment has been made
with regard to their qualification. These
are the necessary factors which have to be
taken into consideration while taking a
decision for payment of same salary to the
petitioners which is being paid to a
regular employee.

5. There is another aspect of the
matter which deserves consideration. The
98 INDIAN LAW REPORTS ALLAHABAD SERIES [2001
impugned order virtually grants a relief
which may be granted to the writ
petitioners at the disposal of the writ
petition if their claim is found to be
sustainable. In State of U.P. Versus
Kumari Renu Tiwari 1993 UPLBEC 1325
a division bench of our court, after
considering several decisions of Apex
Court, held as follows:

" An interim order is generally passed to
preserve the state of affairs obtaining on
the date of institution of the proceedings.
It is seldom passed to alter that position.
Thus an interim order may be passed to
restrain the respondent from interfering in
the possession of the petitioner over an
immovable property, or to stay the
operation of an order of termination of
service which has not taken effect or to
stay the alteration in the scale of pay.
Moreover, the learned Single Judge has
granted to the respondent the relief which
may be granted to him at the disposal of
the writ petition if his claim is found to be
sustainable. There is no indication in the
judgement as to how the appellants will
be restored to the original position, if the
writ petition ultimately fails. Accordingly,
for all practical purposes, the relief
granted to the respondent through the
judgement under appeal is final. Such an
order/judgement given at the interim stage
can not be sustained."

6. Similar view was taken in U.P.
Junior Doctors Action Committee Vs. B.
Sheetal Nandwani JT 1992(1)SC 571 and
Committee of Management Vs. Sushil
Kumar Sharma 1993 (2) UPLBEC 1263.
Recently in Special Appeal no. 1230 of
1999 (Indian Telephone Industries Ltd.
Vs. The Director (DOT) decided on
3.3.2000 a similar order passed by a
learned
Single
Judge
directing
the
employer to continue the writ petitioner in
service and pay him salary was set aside
on this ground.

7. About eight hundred employees
of the forest department had filed large
number of writ petitions in this court
claiming regularisation in service. A
division bench while allowing the writ
petitions, issued direction to constitute a
committee to consider the case of
regularisation and further directed that the
employees shall be paid regular wages till
their matter is finally disposed of .
Against the said order, the State of U.P.
preferred civil special appeal no. 3634 of
1998 (State of U.P. Vs. Putti Lal and
others) in the Supreme Court which by its
order dated 27.9.99 set aside the direction
for payment of regular salary with the
following order:
"As a result of the orders of this
Court, the question of paying the regular
wages to the daily rated workers cannot
be allowed. The persons working will be
paid only the amount payable to daily
wagers."

8. In our opinion, the view taken by
the Apex Court in the aforesaid case is
also applicable here.

For the reasons mentioned, we are of
the opinion that the impugned order of the
learned Single Judge can not be sustained
and has to be set aside.

9. The special appeal is, accordingly,
allowed and the impugned order dated
2.12.99 of the learned Single Judge is set
aside. The record shows that the writ
petition has not been heard for admission
though it was filed in February, 1997. We
accordingly direct that the writ petition
shall be listed for admission before the
1All] Smt. Tejendra Kaur V. Jogendra Singh
99
 appropriate bench on 18.10.,2000. It
is made clear that any observation made
in this order is only for the purpose of
deciding the special appeal and shall not
be construed as an expression of opinion
regarding the merits of the claim made by
the parties.

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By the Court

1. This appeal is directed against the
judgement
of
the
Family
Court,
Moradabad
whereby
the
suit
under
section 13 of the Hindu Marriage Act
filed by the plaintiff-respondent for
divorce has been decreed.

2. The allegation of the husband
plaintiff was that he married the appellant
on 8.12.1994. She lived with him for
about two months, and thereafter she left
the matrimonial house and went to live
with her parents. He doubted that his wife
had relationship with some other persons.
She did not permit him to have the sexual
relationship. She gave birth to a son in
July 1996 who was not born out of their
wedlock. The relations became strained
but the relative of both the parties got
compromise written on 2.12.1995 wherein
it was agreed that the appellant will come
and reside with him. The wife after the
compromise came to reside with him but
after some time she left and started living
with her parents.