VASAVAN N. v. KERALA STATE ELECTRICITY BOARD

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU** **THURSDAY, THE 6TH DAY OF OCTOBER 2016/14TH ASWINA, 1938** ## **WP(C).No. 6767 of 2007 (E)** **---------------------------** **PETITIONER : ----------------------** **VASAVAN N., ASSISTANT AUDIT OFFICER, REGIONAL AUDIT OFFICE, KERALA STATE ELECTRICITY BOARD, ERNAKULAM,KOCHI-18** **BY ADVS.SRI.S.P.ARAVINDAKSHAN PILLAY SRI.S.A.ANAND SRI.K.A.BALAN SRI.PETER JOSE CHRISTO SMT.N.SANTHA** **RESPONDENT(S): ---------------------------** **1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDHYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM-4.** **2. CHAIRMAN, KERALA STATE ELECTRICITY BOARD, VYDHYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM-4.** **3. CHIEF ENGINEER (HRM), KERALA STATE ELECTRICITY BOARD,** **VYDHYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM-4.** **R1 TO R3 BY ADV. SRI.C.K.KARUNAKARAN, SC FOR KSEB SRI.K.S.ANIL, SC, KSEB** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C).NO.6767/2007** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1 COPY OF THE ENDT. ON EB3(A) 2221/2005 DATED 5/2/2005 OF THE DEPUTY CHIEF ENGINEER (HRM) 1 IN-CHARGE.** - **P2 COPY OF THE ENDT. ON EB3(A)/2221/05 DATED 20/5/2005 OF THE CHIEF ENGINEER (HRM).** - **P3 COPY OF THE B.O.(FM) NO.2494/2006(ESTT.III/4917/2006) DATED 30/9/2006 OF THE 1ST RESPONDENT** - **P4 COPY OF THE BO(FM) NO.102/2007(ESTT.III/4917/2006) DATED 11/1/2007 OF THE 1ST RESPONDENT** - **P5 COPY OF THE JUDGMENT IN WP(C).NO.35424/2005-P OF THIS HON'BLE COURT** - **P6 COPY OF THE ORDER NO.EBVS 4/22/2003-917 DATED 8/12/2006 OF THE CHIEF ENGINEER (HRM)** - **P7 COPY OF THE ORDER NO.EBVS. 4/8/2004/960 DATED 19/12/2006 OF THE CHIEF ENGINEER (HRM)** - **P8 COPY OF THE REPRESENTATION DATED 5/10/2006 SUBMITTED BY THE PETITIONER BEFORE THE CHAIRMAN, KERALA STATE ELECTRICITY BOARD.** - **P9 COPY OF THE MEMO NO.GBI/MEMO/2001-02/2026 DATED 17/11/2001 OF THE EXECUTIVE ENGINEER, ELECTRICAL DIVISION, CHERTHALA.** - **P10 COPY OF THE REPLY DATED 13/12/2001 SUBMITTED BY THE PETITIONER TO EXT.P9** - **P11 COPY OF THE REPRESENTATION DATED 1/3/2007 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT** - **P12 COPY OF THE B.O.(FM) NO.765/2007(ESTT-III/4917/2006) DATED 28/3/2007 OF THE SECRETARY, K.S.E.BOARD.** - **P13 COPY OF THE ORDER NO.LA(S)IV/3346/2007 DATED 2/4/2007 OF THE 2ND RESPONDENT** **/TRUE COPY/** **RESPONDENT'S EXHIBITS: NIL** **P.A.TO JUDGE** **sts** **C.R** ## **DAMA SESHADRI NAIDU, J.** --------------------------------------- ## **W.P.(c) No. 6767 of 2007** ---------------------------------------- Dated this the 06[th] day of October, 2016 ## JUDGMENT While the petitioner, now retired, was an Assistant Audit Officer, he had a grievance that he had been denied promotion — to the next category Accounts Officer/Regional Audit Officer. His juniors were promoted. This Court, on 12.04.2007, issued an interim direction to the respondent Board to provisionally promote the petitioner under Rule 31(a)(i) of Part II of K.S. & S.S.R., if any of his admitted juniors had already been promoted. 2. Accordingly, the petitioner was promoted; later he retired from service while the writ petition had been pending. 3. The learned counsel for the petitioner submits that since the interim order has already been acted upon, and the petitioner has even retired, nothing further survives in the matter to be adjudicated upon. According to him, the interim order may be made absolute, and the writ petition closed. 4. It is, indeed, a very convenient, painless method to dispose of a writ petition—grant an interim order; direct the W.P.(c) No. 6767 of 2007 2 authorities to act on it; later, with the efflux of time, declare that the _lis_ does not survive; and finally close it—minus adjudication. 5. Nevertheless, the Apex Court has repeatedly cautioned against the court’s permitting the suitors to withdraw their proceedings or dismissing the writ petitions as having become infructuous—primarily, on the premise that the interim order had been complied with. It is deprecated. The judicial dictum is loud and clear as has been laid in _Union of India v. Narender Singh[1] , State of Gujarat v. Dilipbhai Shaligram Patil[2] and Abhimanuyoo Ram v. State of U.P.[3]_ . 6. In _Narender Singh_ , questioning an Administrative Tribunal’s order, the aggrieved State filed a writ petition. While it was pending, the authorities implemented the Tribunal’s order. The High Court closed the writ petition holding that it had become infructuous. In that context, the Supreme Court has held that merely because an order of reinstatement had been implemented by the authorities, that did not render the writ petition infructuous. The Court has cited with approval its earlier decision in _Union of India_ v. _G.R. Prabhavalkar.[4]_ > 1 2005 (6) SCC 106 2 2006 (8) SCC 72 3 2008 (17) SCC 73 4 (1973) 4 SCC 183 W.P.(c) No. 6767 of 2007 3 7. In _Shree Chamundi Mopeds Ltd. v. Church of South India Trust Assn[5] .,_ the Supreme Court has distinguished between an order getting stayed and its getting quashed: Quashing of an order results in the restoration of the position as it stood on the date of the order which has been quashed. The stay of operation of an order does not, however, lead to such a result. It only means that the order which has been stayed would not be operative from the date of the stay order. And it does not mean that the said order has been wiped out from existence. 8. In _Abhimanyoo Ram_ , the Supreme Court has noted with concern the raising trend among the litigants to secure the relief as an interim measure, and then avoid adjudication on merits. The modus operandi, the Court observes, adopted in such matters is as follows: The litigant approaches the court in the last minute for relief with an interim prayer. He persuades the court to grant the interim relief by highlighting the urgency, irreparable loss, and balance of convenience. He obtains the interim relief and secures the desired benefit with the help of such interim order. Once the purpose of securing the interim order is achieved (particularly where the interim 5 (1992) 3 SCC 1 W.P.(c) No. 6767 of 2007 4 order granted is the same as the final relief prayed), he makes an innocuous submission to the court that he does not want to press the petition and gets the matter disposed of, thereby achieving the goal of securing relief without adjudication. He takes advantage of the fact that invariably courts do not spell out the consequences when dismissing the petitions as not pressed. The result is that in many cases, a litigant who would not get the relief on detailed scrutiny of his claim during a contested final hearing gets away with undeserved relief secured by way of an interim order. 9. _Abhimanyoo Ram_ further emphatically holds that any attempt by a litigant to retain the benefit of the interim order by avoiding final adjudication requires to be deprecated. In fact, it requires to be dealt with sternly. Courts should bestow caution while dismissing cases where interim relief had been granted as not pressed or as withdrawn. The courts cannot proceed on the assumption that all concerned would know about the legal consequences of dismissal and, therefore, it is not necessary to make any order concerning the interim relief already granted. Even though the legal effect of dismissal on withdrawal is vacation of the interim order, the respondents W.P.(c) No. 6767 of 2007 5 concerned not being aware of the legal consequences, will not take consequential action but continue the benefit extended to the petitioner by the interim order, unless there is a specific direction spelling out the consequences. Sometimes, the departmental officials concerned, because of collusion with the petitioners who had obtained the interim relief, will not withdraw or reverse the benefit granted to the petitioner in pursuance of the interim order, when the petition is withdrawn or dismissed as not pressed. Therefore, appropriate consequential directions cancelling or vacating the interim order should be passed so as to restore status quo ante, cautions the Apex Court. 10. Finally, _Abhimanyoo Ram_ observes that in cases where the prayer for dismissal (as not pressed or withdrawn) is made even before the respondent is served, then the order vacating the interim order should be communicated to the authority against whom the interim order was issued, so that any benefit extended because of the interim order can be withdrawn or reversed. The only exception is where the respondents agree for the continuance of the interim order as a final relief, or agree that the benefit of the interim order W.P.(c) No. 6767 of 2007 6 already granted need not be disturbed, in which event, the court should record such submission and pass appropriate consequential orders. 11. Telling as the above proposition of law is, to avoid any hasty closure of the matter without adjudication on merits, this Court decided to hear the respondent employer as well. Yesterday, when the matter was listed, none represented the respondent. Therefore, I directed it to be listed today under the caption 'for disposal' with a view to letting the respondent know that the matter would be taken up and disposed of on merits. 12. Today, too, the respondent remains unrepresented. In the absence of any countervailing evidence to contradict the petitioner's claim for promotion, I deem that the petitioner's pleas in the writ petition remain uncontroverted and, accordingly, admitted. I, therefore, make the interim order, dated 12.04.2007, absolute and close the writ petition. ## **DAMA SESHADRI NAIDU JUDGE** DMR/-