Patna High Court
The University Of Bihar And Anr. vs Rajendra Singh on 14 October, 1977
Equivalent citations: AIR1978PAT144, AIR 1978 PATNA 144
ORDER B.D. Singh, J.
1. This application by the University of Bihar through its Registrar, and the Principal, Munshi Singh College, Motihari, under Section 115 of the Civil P. C. is directed against the order dated the 10th Jan., 1977, passed in Misc. Appeal No. 5 of 1976 by the Additional District Judge, confirming the order dated the 16th Jan., 1976 passed by the Additional Subordinate Judge, Motihari in Title Suit No 17 of 1974, directing the petitioners to pay a sum of Rs. 8, 250/- to Shri Rajendra Singh, plaintiff-opposite party, who is a Demonstrator in the said college towards his salary. Being aggrieved by the order of the learned Subordinate Judge, the petitioner preferred an appeal. The Appellate Court also by its order, as mentioned earlier, has affirmed the order passed by the trial Court. Hence, this Civil Revision.
2. Learned Counsel appearing on behalf of the petitioners has assailed the impugned orders of the courts below and has urged that the said orders are bad as the Courts below failed to consider that the opposite party had not established a prima facie case nor there was balance of convenience in favour of the opposite party nor he had suffered irreparable injuries which could not have been measured in terms of money. He drew my attention to the provisions under order 39, Rules 1 and 2 of the Civil P. C. (hereinafter referred to as "the Code"). In order to substantiate his contention, he has referred to para 7 of the order of the trial court which reads thus:
"It is mentioned in the petition for injunction filed by the plaintiff that he has been paid only Rs. 1450/- as ad hoc payment since 1-4-1971 uptill now. This fact has not been challenged by the defendants. No doubt, the plaintiff made an endorsement on the letter sent by the Principal to him to the effect that he agreed to the terms and conditions mentioned in the letter that "no payment will be made unless University approved his continuance and sanctioned payment." No doubt terms and conditions were accepted by the plaintiff but the Principal has given a certificate to him that he has been working as demonstrator in the department of Chemistry of the said college very sincerely and honestly and in this period he was paid Rs. 1450/- on ad hoc basis. I find that there is prima facie case in favour of the plaintiff and he has got balance of convenience in his favour. The Public Service Commission has made much delay. The University has already recommended the case of plaintiff to the Public Service Commission for concurrence. The Principal of the college being an authority of the college has certified that the plaintiff is working very sincerely and honestly till now. When his services have not been terminated finally and he is working in hope that he will get concurrence from the Bihar Public Service Commission for absorption in permanent cadre, he cannot be debarred from payment of his dues at least on ad hoc basis. Considering the facts and circumstances, I come to a conclusion that this is a fit case in which mandatory temporary injunction should be granted to the plaintiff."
Learned counsel for the petitioners also referred to the decision in Nandan Pictures Ltd. v. Art Pictures Ltd. (AIR 1956 Cal 428) wherein it was held that it was in very rare cases that a mandatory injunction was granted on an interlocutory application and instances where such an injunction was granted by means of an 'ad interim' order pending the decision of the application itself was almost unknown. It was further held if a mandatory injunction was granted at all on an interlocutory application, it was granted only to restore the 'status quo' and not granted to establish a new state of things, differing from the state which existed at the date when the suit was instituted. In my view the submission of the learned counsel for the petitioners in this regard is well founded. In the instant case, no order could have been passed in the terms of Order 39, Rules 1 and 2 of the Code. It appears that the trial court on the ground of hardship it had granted relief to the plaintiff opposite party under the provisions under Section 151 of the Code. Learned Counsel for the petitioners has submitted that by reference to para. 7 of the order of the trial Court, it is apparent that the delay in payment of the salary to the opposite party was due to the fact that the case of the petitioner, for concurrence was pending before the Public Service Commission and it was necessary for the University to obtain concurrence from the Public Service Commission in view of the provisions contained under Section 15 (1) of the Bihar State Universities (University of Bihar, Bhagalpur and Ranchi) Act of 1960 read with Article 320 (3) (b) of the Constitution of India and unless concurrence was received by the University, the University could not have sanctioned payment of regular salary to the plaintiff-opposite party, utmost it could have been an ad hoc (payment?) on the ground of hardship and delay. The learned counsel pointed out that in the instant case the trial court has erred in directing in para. 8 of its judgment that the petitioner be directed to pay the plaintiff-opposite party, Rs. 8, 250/-(the salary of the plaintiff) during the pendency of the suit i.e. from Feb., 1974 till Nov., 1975 and to issue mandatory injunction to the defendant petitioners to make the said payment within a month from the receipt of the injunction order. This order was, however, stayed by this court when the application of the petitioners was admitted. In my opinion, this submission of the learned counsel is also sound. In the instant case no direction could have been made in the circumstances by the trial court to pay the said amount of salary to the opposite party. Directions should have been made only for payment of certain amount as an ad hoc payment.
3. Reference in this connection may be made to the undertaking given by the plaintiff-opposite party itself to the effect that "no payment will be made unless University approved his continuance and sanctioned payment." It is expected that the Public Service Commission would expedite the case of the petitioner regarding concurrence. In the circumstance, therefore, I modify the directions given by the court below and instead of directing the petitioners to pay Rs. 8,250/- to the opposite party by way of salary, I direct the petitioners to deposit Rupees 8,000/- as an ad hoc payment in the trial court by the 30th Nov., 1977. It shall be open to the opposite party to withdraw the said amount from the court after furnishing securities to the satisfaction of the trial court. Before I part with the case, I wish to make a further direction that the suit may be expedited and the petitioners should also be directed to send a reminder soon to the Public Service Commission for expediting the case of the plaintiff opposite party. In the result, the application is dismissed with the above modification. In the circumstance, however, there will be no order of the cost.