1980 PLP 1088 (CLC)

O. XXXIX, r. 1-Injunction, temporary-Balance of convenience-Court normally not inclined to pass an order disturbing status quo passing of such order, held, would amount to departure from principle that an injunction may not be granted in case balance of convenience lies in not granting such injunc tion-Temporary absence of petitioner from performing his duties on being compulsorily retired, held further, would not subject him to irreparable loss and he could claim compensation and arrears of emoluments for period being illegally prevented from performing his duties.-[Injunction]. (c) Civil Procedure Code (V of 1908)

O. XXXIX, r. 1--Injunction, interim-Order for interim injunction-Rarely issued by Court and same done only in case of grave danger to right of a person or for maintaining status quo Interim injunction, held, cannot be issued for creating a new state prevailing at time of institution of suit.--[Injunction]. Saifur Rehman Kiyani for Petitioner. The appellant Azizur Rehman Kiyani who was employed as Sanitation Officer in the Municipal Committee, Peshawar was retired from service by order dated 15th of December, 1979, made by the Administrator, Municipal Corporation, Peshawar. The retirement purports to have been made under the West Pakistan Local Councils and Municipal Committees Servants (Retirement) Rules, 1966, and the West Pakistan Municipal Committees Business Rules, 1960, on the recommendation of the Advisory Committee set up by the Government of N.-W. F. P. to consider the retirement cases of employees who had to consider the retirement cases of employees who had completed 25 years service qualifying for pension.

2. The order of retirement was challenged in the Court of Senior Civil Judge, Peshawar and the plaintiff-petitioner also made an application for a temporary injunction to restrain the Administrator, Municipal Corporation, Peshawar from taking action on the said order pending the disposal of the suit. This application was rejected by the learned Senior Civil Judge and the order has been upheld in appeal by the Additional District Judge, Peshawar. The petitioner now challenges the orders of the two Courts below by way of the present revision petition.

3. The learned counsel for the petitioner contends that the petitioner was appointed by the Provincial Government and that under the West Pakistan Local Councils and Municipal Committees Servants (Retirement) Rules, 1966, he could be retired only by the appointing authority i.e. the Provincial Government and that the order of the Administrator Municipal Committee, Peshawar is arbitrary, illegal, ultra vires and without jurisdiction, and therefore, ineffective and void having been made without lawful authority. He further contends that the impugned orders of the two Courts below refusing to grant interim injunction are not founded on judicial consideration and as such are liable to be set aside. The petitioner, it was contended, would suffer irreparable loss if the order of retirement is not suspended and that the balance of convenience was also in his favour.

4. It is settled proposition of law that the grant of temporary injunction is discretionary and the High Court ordinarily does not interfere in revision with the exercise of that jurisdiction unless it is exercised capriciously without fair, solid and substantial cause or by ignoring judicial considerations. The order of the Administrator Municipal. Corporation, Peshawar may prima facie appear to be without jurisdiction but as observed by the Additional District Judge, it cannot be denied that petitioner is already relieved of his duties and the order for injunction if passed would amount to disturbing the status quo. The Courts are normally not inclined to pass an order which has such an effect for that would amount to departure from the principle that an injunction may not be granted in case the balance of convenience is against the granting of such injunction. Moreover the temporary absence of the petitioner from performing his duties as Sanitation Officer would not subject him to irreparable loss for he can claim compensation an arrears of emolument for the period he -is illegally prevented from performing his duties without any fault on his part. An order for interim injunction is rarely issued by a Court and the same is done only when C there is grave danger to the right of a persecute or for maintaining status quo. Such an order cannot be issued for creating new state which did not prevail at the time of the institution of the suit.

5. In view of the above discussion, I uphold. the order of the two Courts below and dismiss this petition in limine. M Y, M Appeal dismissed.