Jharkhand High Court
Anand Dayal vs Union Of India Through The Secretary on 19 December, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Navneet Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No.6710 of 2024
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Anand Dayal, aged about 53 years, son of Late Akhoury
Lakshmeshwar Dayal, resident of A/305, Lilac, Ashiana
Residency Greens, Pardih, Mango, PO & PS-Mango Town -
Jamshedpur, District - East Singhbhum, PIN 831012
(Jharkhand). ... ... Petitioner
Versus
1. Union of India through the Secretary, Ministry of Micro,
Small & Medium Enterprises, Government of India,
having office at Udyog Bhawan, PO-Udyog Bhawan, PS-
Sansad Marg, Rafi Marg, Dist.-New Delhi-110011.
2. Additional Secretary and Development Commissioner,
Ministry of Micro, Small & Medium Enterprises,
Government of India, having office at A-Wing, 7th Floor,
PO-Nirman Bhawan, PS-Tilak Bhawan, Maulana Azad
Road, Dist-New Delhi-110108.
3. Indo Danish Tool Room, through its General Manager,
having registered office at M-4 (Part), Phase VI(, Tata
Kandra Road, PO + PS + Town - Jamshedpur, District -
East Singhbhum, PIN 832108 (Jharkhand).
... ... Respondents
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CORAM:HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE NAVNEET KUMAR
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For the Petitioner : Mr. Amit Kumar Das, Advocate
For the Respondents : Mr. Anil Kumar, Addl. S.G.I.
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th
Order No. 02/Dated 19 December, 2024
1. This writ petition is under Article 226 of the
Constitution of India wherein the order dated 15.10.2024
passed by Central Administrative Tribunal, Patna in
O.A./803/2024 (Ranchi) is under challenge by which the
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prayer for ad interim relief to allow the petitioner to
continue with his service on the post during the pendency
of the lis, has been rejected.
2. The matter was heard by the learned Tribunal. The
respondents have appeared and have taken time to file
counter affidavit the time so sought was allowed.
3. The prayer for ad interim relief before the learned
Tribunal has also been made by making a specific prayer
as per the procedure as contained in the Administrative
Tribunals Act, 1985 on the ground that if the ad interim
relief will not be granted, the petitioner will be prejudiced
and it will cause irreparable loss in view of the fact that the
contract of the petitioner is to expire on 31.12.2024.
4. The advertisement since has already been issued,
the process of fresh selection on contract basis is on,
hence, the new incumbent will be engaged which ultimately
will cause separation of the writ petitioner from his service.
5. The learned Tribunal has negated the said prayer
on the ground that no prima facie case is made out to grant
ad interim relief which is the subject matter of the present
writ petition.
6. Mr. Anil Kumar, learned A.S.G.I. appearing for the
respondents, has sought for two weeks' time to seek
instruction and file counter affidavit.
7. The time as sought for is allowed.
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Ad-interim Stay
8. Mr. Amit Kumar Das, learned counsel appearing for
the petitioner, has insisted to protect the interest of the writ
petitioner which has not been taken into consideration by
the learned Tribunal in right perspective.
9. The submission has been made by referring to the
condition stipulated in the appointment letter as appended
and available in page 72 of the paper book wherein the
appointment has been made on contract basis for a period
of five years extendable by renewal of the contract on the
basis of review of the performance by the Governing
Council of IDTR, Jamshedpur for another five years or less
each time, till he attains the age of superannuation.
10. The further condition is that if during this period
the performance of General Manager is not found
satisfactory, then his services will be terminated without
assigning any reason, after giving three months' notice from
either side.
11. The argument has been advanced that the
petitioner was appointed on 14.12.2016 initially for a
period of five years. Subsequent to the completion of five
years' tenure, the services of the petitioner was extended
from time to time and lastly on 02.07.2024, as would
appear from the order as available at page 108 of the paper
book. However, in the meanwhile, the post of General
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Manager has been re-designated so far as the nomenclature
of the post which the writ petitioner was holding to be
known as Managing Director.
12. The petitioner was continuing in pursuance to the
further extension granted vide order dated 02.07.2024
which is to expire on 31.12.2024 but the respondents have
come out with an advertisement to fill up the said post
again on contract basis.
13. The question was raised before the learned Tribunal
that one ad-hoc arrangement cannot be
substituted/replaced by another ad-hoc arrangement.
14. It has been argued that the learned Tribunal ought
to have taken into consideration that the post of General
Manager is the solitary post under the establishment so far
as the State of Jharkhand is concerned and, as such, the
said post ought to have been filled up substantively if the
authority intends to fill up the post so that the writ
petitioner would have also an opportunity to participate in
the process of selection for his substantive appointment.
15. The further contention which was raised before the
learned Tribunal was, as has been submitted by Mr. Das
and having been taken note in the impugned order passed
by the learned Tribunal, that the reference of Clause (m)
and (n) particularly Clause (n) has wrongly been interpreted
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by making reference that the appointing authority has got
power to terminate the contract without assigning reason.
16. The foremost point which has been taken that one
ad hoc arrangement cannot be replaced by another ad hoc
arrangement and to strengthen his argument, he has relied
upon the judgment rendered by Hon'ble Apex Court in the
case of Manish Gupta and Another v. President, Jan
Bhagidari Samiti and Others reported in (2022) 15 SCC
540.
17. Learned A.S.G.I., however, has submitted that in
absence of any instruction, he is not in a position to say as
to why the appointing authority has proceeded again for
contractual appointment to the post of General Manager
and for taking instruction only he has taken time.
18. Therefore, the question which requires
consideration regarding the propriety of the order passed by
the learned Tribunal refusing to pass ad interim stay by
coming to the conclusion that no prima facie case is being
made out for grant of interim relief.
19. This Court, before passing the order on appreciation
of rival submission, needs to refer herein that the
jurisdiction conferred which is to be exercised by this Court
under Article 226 of the Constitution of India while
exercising the power of judicial review of an order passed by
the Central Administrative Tribunal under the power
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conferred under Section 14 of the Administrative Tribunals
Act, 1985, the consideration is to be given regarding the
pronouncements of Hon'ble Apex Court by making
reference of the judgment rendered in the case of L.
Chandra Kumar Vs. Union of India & Ors. , (1997) 3
SCC 261 wherein the law has been laid down by conferring
power upon the High Court under Article 226 of the
Constitution of India by exercising the power of judicial
review against the order passed by a "Court of first
instance", i.e., Central Administrative Tribunal after the
insertion of the Tribunal by virtue of amendment in Article
323A of the Constitution of India. The relevant paragraph is
paragraph - 99 which is being referred herein:
"99. In view of the reasoning adopted by us, we hold that
clause 2(d) of Article 323-A and clause 3(d) of Article 323-
B, to the extent they exclude the jurisdiction of the High
Courts and the Supreme Court under Articles 226/227
and 32 of the Constitution, are unconstitutional. Section
28 of the Act and the "exclusion of jurisdiction" clauses
in all other legislations enacted under the aegis of Articles
323-A and 323-B would, to the same extent, be
unconstitutional. The jurisdiction conferred upon the
High Courts under Articles 226/227 and upon the
Supreme Court under Article 32 of the Constitution is a
part of the inviolable basic structure of our Constitution.
While this jurisdiction cannot be ousted, other courts
and Tribunals may perform a supplemental role in
discharging the powers conferred by Articles 226/227
and 32 of the Constitution. The Tribunals created under
Article 323-A and Article 323- B of the Constitution are
possessed of the competence to test the constitutional
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validity of statutory provisions and rules. All decisions of
these Tribunals will, however, be subject to scrutiny
before a Division Bench of the High Court within whose
jurisdiction the Tribunal concerned falls. The Tribunals
will, nevertheless, continue to act like courts of first
instance in respect of the areas of law for which they
have been constituted. It will not, therefore, be open for
litigants to directly approach the High Courts even in
cases where they question the vires of statutory
legislations (except where the legislation which creates
the particular Tribunal is challenged) by overlooking the
jurisdiction of the Tribunal concerned. Section 5(6) of the
Act is valid and constitutional and is to be interpreted in
the manner we have indicated."
20. The ad interim stay which has subsequently been
prayed since has been refused to be granted on the ground
that no prima facie case has been made out, the order being
effective and adjudicating the right of the petitioner, who
has tried to make out a case that if ad interim stay will not
be granted and in the meanwhile if the advertisement will
be allowed to go on, then the fate of the petitioner will be
seized after 31.12.2024.
21. The consideration, therefore, ought to have been
given by the learned Tribunal regarding the issue of third
party right in order to come to the conclusion regarding a
case being made out prima facie or not.
22. In the service jurisprudence, particularly, in the
process of recruitment, if the advertisement has already
been floated and the post is to be filled up either on
contract or the substantive basis, then the candidates who
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have participated in the process of selection will have the
accrued right, the moment when appointment letter will be
issued.
23. Herein, in the instant case, in order to adjudge as to
whether the writ petitioner has been able to make out a
prima facie case or not or the case of the writ petitioner is
coming under irreparable loss or on the issue of balance of
convenience, the said aspect of the matter is to be taken
into consideration.
24. The fact which is not in dispute as would appear
from the pleading and the insertion which has been made
in the order passed by the learned Tribunal (impugned)
that the writ petitioner is holding the post of General
Manager since its inception although for a period of five
years per the condition of contract as under Clause (l) of
Office Memorandum dated 14.12.2016, subject to extension
for a further period of five years or less depending upon the
performance of the said incumbent, as would appear from
Clause (m).
25. The power has also been conferred under Clause (n)
that during subsistence period of contract the services can
be terminated by giving three months' notice if the
performance of such incumbent has been found to be poor.
26. The service of the writ petitioner has been extended
but not for a period of five years, rather on the intervals of
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six months and lastly it has been extended for a period of
six months which is to expire on 31.12.2024. But, in the
meanwhile, the advertisement has been issued inviting
application to fill up the post of General Manager but again
on contract basis.
27. We are not dealing at this stage regarding the issue
of ad hoc appointment since we are dealing with the issue
of ad interim relief and, as such, this Court before
considering the ad interim relief deems it fit and proper to
refer the principle governing the field in passing the ad
interim stay. The Hon'ble Apex Court in the case of Deoraj
v. State of Maharashtra & Ors, [(2004) 4 SCC 697] at
paragraph 10 held as under:
"10. Ordinarily, this Court in its exercise of jurisdiction
under Article 136 of the Constitution does not interfere
with the orders of interim nature passed by the High
Court or tribunals. This is a rule of discretion developed
by experience, inasmuch as indulgence being shown by
this Court at an interim stage of the proceedings pending
before a competent court or tribunal results in
duplication of proceedings; while the main matter is yet
to be heard by the court or tribunal seized of the hearing
and competent to do so, valuable time and energy of this
Court are consumed in adjudicating upon a controversy
the life of which will be coterminous with the life of the
main matter itself which is not before it and there is
duplication of pleadings and documents which of
necessity shall have to be placed on the record of this
Court as well. However, this rule of discretion followed in
practice is by way of just self-imposed discipline."
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28. Likewise, the Hon'ble Apex Court in the case of
Bombay Dyeing & Mfg. Co. Ltd. v. Bombay
Environmental Action Group [(2005) 5 SCC 61], at
paragraph 24 has been held as under:
"24. The courts, however, have to strike a balance
between two extreme positions viz. whether the writ
petition would itself become infructuous if interim order is
refused, on the one hand, and the enormity of losses and
hardships which may be suffered by others if an interim
order is granted, particularly having regard to the fact that
in such an event, the losses sustained by the affected
parties thereby may not be possible to be redeemed."
29. Further the Hon'ble Apex Court in the case of M.
Gurudas & Ors Vs. Rasaranjan & Ors [(2006) 8 SCC 367],
at paragraphs 19 and 20 held as under:
"19. A finding on "prima facie case" would be a finding of
fact. However, while arriving at such a finding of fact, the
court not only must arrive at a conclusion that a case for
trial has been made out but also other factors requisite
for grant of injunction exist. There may be a debate as
has been sought to be raised by Dr. Rajeev Dhavan that
the decision of the House of Lords in American Cyanamid
Co. v. Ethicon Ltd. [(1975) 1 All ER 504 : 1975 AC 396 :
(1975) 2 WLR 316 (HL)] would have no application in a
case of this nature as was opined by this Court in Colgate
Palmolive (India) Ltd. v. Hindustan Lever Ltd. [(1999) 7
SCC 1] and S.M. Dyechem Ltd. v. Cadbury (India) Ltd.
[(2000) 5 SCC 573] but we are not persuaded to delve
thereinto. 20. We may only notice that the decisions of
this Court in Colgate Palmolive [(1999) 7 SCC 1] and S.M.
Dyechem Ltd. [(2000) 5 SCC 573] relate to intellectual
property rights. The question, however, has been taken
into consideration by a Bench of this Court in
Transmission Corpn. of A.P. Ltd. v. Lanco Kondapalli
10
Power (P) Ltd. [(2006) 1 SCC 540] stating: (SCC pp. 552-
53, paras 36-40)
"36. The respondent, therefore, has raised triable
issues. What would constitute triable issues has
succinctly been dealt with by the House of Lords in its
well-known decision in American Cyanamid Co. v.
Ethicon Ltd. [(1975) 1 All ER 504 : 1975 AC 396 : (1975)
2 WLR 316 (HL)] holding: (All ER p. 510c-d)
Your Lordships should in my view take this
opportunity of declaring that there is no such rule. The
use of such expressions as "a probability", "a prima facie
case", or "a strong prima facie case" in the context of the
exercise of a discretionary power to grant an interlocutory
injunction leads to confusion as to the object sought to
be achieved by this form of temporary relief. The court no
doubt must be satisfied that the claim is not frivolous or
vexatious; in other words, that there is a serious question
to be tried."
It was further observed: (All ER pp. 511b-c & 511j)
„Where other factors appear to be evenly balanced it is
a counsel of prudence to take such measures as are
calculated to preserve the status quo. If the defendant is
enjoined temporarily from doing something that he has
not done before, the only effect of the interlocutory
injunction in the event of his succeeding at the trial is to
postpone the date at which he is able to embark on a
course of action which he has not previously found it
necessary to undertake; whereas to interrupt him in the
conduct of an established enterprise would cause much
greater inconvenience to him since he would have to start
again to establish it in the event of his succeeding at the
trial.
The factors which he took into consideration, and in my
view properly, were that Ethicon's sutures XLG were not
yet on the market; so that had no business which would
be brought to a stop by the injunction; no factories would
be closed and no workpeople would be thrown out of
work. They held a dominant position in the United
11
Kingdom market for absorbable surgical sutures and
adopted an aggressive sales policy.‟
37. We are, however, not oblivious of the subsequent
development of law both in England as well as in this
jurisdiction. The Chancery Division in Series 5 Software
v. Clarke [(1996) 1 All ER 853 (Ch D)] opined: (All ER p.
864c-e)
„In many cases before American Cyanamid [(1975) 1
All ER 504 : 1975 AC 396 : (1975) 2 WLR 316 (HL)] the
prospect of success was one of the important factors
taken into account in assessing the balance of
convenience. The courts would be less willing to subject
the plaintiff to the risk of irrecoverable loss which would
befall him if an interlocutory injunction was refused in
those cases where it thought he was likely to win at the
trial than in those cases where it thought he was likely to
lose. The assessment of the prospects of success
therefore was an important factor in deciding whether the
court should exercise its discretion to grant interlocutory
relief. It is this consideration which American Cyanamid
[(1975) 1 All ER 504 : 1975 AC 396 : (1975) 2 WLR 316
(HL)] is said to have prohibited in all but the most
exceptional case. So it is necessary to consider with some
care what was said in the House of Lords on this issue.‟
38. In Colgate Palmolive (India) Ltd. v. Hindustan Lever
Ltd. [(1999) 7 SCC 1] this Court observed that Laddie, J.
in Series 5 Software [(1996) 1 All ER 853 (Ch D)] had been able to resolve the issue without any departure from the true perspective of the judgment in American Cyanamid [(1975) 1 All ER 504 : 1975 AC 396 : (1975) 2 WLR 316 (HL)] . In that case, however, this Court was considering a matter under the Monopolies and Restrictive Trade Practices Act, 1969.
39. In S.M. Dyechem Ltd. v. Cadbury (India) Ltd. [(2000) 5 SCC 573] Jagannadha Rao, J. in a case arising under Trade and Merchandise Marks Act, 1958 reiterated the same principle stating that even the comparative strength and weaknesses of the parties may be a subject-matter of 12 consideration for the purpose of grant of injunction in trade mark matters stating: (SCC p. 591, para 21) "21. ... Therefore, in trade mark matters, it is now necessary to go into the question of "comparable strength" of the cases of either party, apart from balance of convenience. Point 4 is decided accordingly."
40. The said decisions were noticed yet again in a case involving infringement of trade mark in Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd. [(2001) 5 SCC 73] "
30. In Dalpat Kumar and Another vs. Prahlad Singh and Others, reported in AIR 1993 SC 276, the Hon'ble Apex Court has specifically explained the scope of interim order and has observed that the phrases "prima facie case"; "balance of convenience" and "irreparable loss" are not rhetoric phrases for incantation but words of width and elasticity to meet myriad situations presented by man's ingenuity in given facts and circumstances, but always is hedged with sound exercise of judicial discretion to meet the ends of Justice. The facts are eloquent and speak for themselves. It is well-nigh impossible to find from facts prima facie case and balance of convenience.
31. Thus, it is evident from aforesaid proposition of law that while considering the ad-interim relief the question of prima facie case, irreparable loss and balance of convenience are to be taken into consideration since these principles are the tests for passing ad interim order. 13
32. Now adverting to the factual aspect of the present case the tenure of the petitioner is to expire on or after 31.12.2024 and advertisement has already been floated, meaning thereby, the recruitment process to fill up the post of General Manager has already been commenced and at any time the selection can be made.
33. The conclusion of recruitment process will be the date when the offer of appointment will be issued in favour of the selected candidate then the question would be that if any other person has been appointed then what will happen to the interest of the petitioner. Can it not be said to be irreparable loss or can it not be said to have the prima facie case in favour of the petitioner or can it not be said to be imbalance so far as the case of the petitioner is concerned.
34. The moment the new incumbent will be appointed, he will resume his duty immediately after expiry of the period of the writ petitioner and thereafter if the learned Tribunal will decide the issue in presence of the third party right, the litigation will multiply.
35. This Court, after having referred the aforesaid fact hereinabove and coming to the order passed by the learned Tribunal, has found that the learned Tribunal has given three reasons for coming to the conclusion of no prima facie case having been made out by the petitioner, i.e., (i) Clause 14
(l) speaks that appointment will be on contract basis for a period of five years (ii) extension of contract under Clause
(m) and (iii) the power conferred under Clause (n).
36. The consideration which is to be given as per the discussion made hereinabove of the prima facie case, balance of convenience and irreparable loss and if the ad interim relief will not be granted in favour of the petitioner, then the loss which he will sustain after 31.12.2024 will be irreparable/irreversible and, as such, this Court is of the view that the interest of writ petitioner is to be protected.
37. Accordingly, let the status quo be maintained as exists today, till the next date of hearing.
38. List this case, as prayed for by the learned A.S.G.I. on 08.01.2025 under the same heading so that the matter be finally decided on merit.
(Sujit Narayan Prasad, J.) (Navneet Kumar, J.) Birendra/ 15