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Interim relief in nature of final order cannot be granted

THE HIGH COURT OF MADHYA PRADESH
W.P.No.23348/2018

Smt. Rekha Jatav

Vs.

The State of M.P. and others

Gwalior Bench Dated; 06.10.2018
Shri MPS Raghuvanshi, learned counsel for the petitioner.
Shri Raghvendra Dixit, learned Govt. Advocate for respondents No.1to3/State.
Shri S.L. Dhakad, learned counsel for respondent No.4. Heard on the question of admission.

The present petition is preferred by the petitioner against the order dated 19-09-2018 whereby the appellate authority (Additional Commissioner, Gwalior Division) has granted stay in the appeal preferred by respondent No.4 against the order dated 05-09-2018 passed by the Collector, District Gwalior.

It is grievance of the petitioner that she along with respondent No.4 appeared in response to the advertisement for the post of Anganwadi Worker at Gram Panchayat Bagedhari Abbal, Tahsil Karera District Shivpuri in which petitioner was not recommended for appointment to the said post. Being aggrieved, she preferred an appeal before the Collector District Gwalior who in turn passed the order dated 05-09-2018 and directed the Project Officer to issue appointment order. Resultantly, vide order dated 11-09-2018, Project Officer given appointment to the petitioner and on 12-09-2018 petitioner joined. Being aggrieved by the said development, respondent No.4 preferred an appeal before the Commissioner/Additional Commissioner in which Additional Commissioner granted stay over the order passed by the Collector by which petitioner was directed to be appointed.

It is grievance of the petitioner that clause C(6) of the guidelines dated 10-07-2007 (Annexure P/8) does not contemplate powers to be vested in appellate authority to issue an interim order. He relied upon the judgment of Hon’ble Apex Court in the matter of Morgan Stanley Mutual Fund vs. Kartick Das (1994) 4 SCC 225 and submitted that once powers are not given then it cannot be borrowed. It is further submitted that nature of relief granted amounts to final relief which cannot be awarded. Same is not permissible.

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Learned counsel for the respondents/State opposed the submission made by the petitioner and prayed for dismissal of petition.

Learned counsel for respondent No.4 submitted that in the given fact situation appellate authority has rightly passed the impugned order and when the appellate authority can hear the appeal then power to grant stay is inherently available to the appellate authority.

Heard learned counsel for the parties and perused the documents appended thereto.

From perusal of impugned order dated 19-09-2018 passed by the appellate authority i.e. Additional Commissioner, it appears that interim order has been passed by the appellate authority without taking into consideration the fact situation of the case as well as the fact that vide order dated 11-09-2018, petitioner joined over the place on 12-09-2018. Therefore, without verifying the fact, order has been passed which amounts to grant of final relief because by the said order appointment of petitioner has been withheld. Relief which is final in nature cannot be granted.

Resultantly, the impugned order dated 19-09-2018 is hereby set aside. Additional Commissioner, Gwalior Division/appellate authority is directed to conclude the appellate proceeding within fifteen days from the date of receipt of certified copy of this order. Time line be adhered to strictly so that respective rights of parties can be crystallized.

Petition stands disposed of.

(Anand Pathak)
Judge

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