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Revision Petition No. 17 of 1972, decided on 18th June 1973.

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-----O. XXXIX, rr. 1 & 2 and S. 115‑Temporary injunction, Court below refusing to grant Held: Court could not, in circumstances, be said to have failed to exercise jurisdiction vested in it‑‑Interference in revision not called for.

Where there is nothing on the record to show that the Courts below had acted Illegally or with material irregularity, the mere fact that they had refused to pass an order of temporary injunc tion in the exercise of a jurisdiction undoubtedly vested in them is not to say that they had failed to exercise the jurisdiction. All that could be said was that upon the merits of the case they did not think it right to pass an order in the exercise of that jurisdiction and this is entirely a different thing. No revision under section 115, C. P. C. against an order refusing temporary Injunction In such a case is competent.

. XXXIX, rr. 1 & 2-- Temporary mandatory injunction‑Civil services‑Suit by Govern ment employee challenging legality of his reversion‑Pending suit temporary injunction sought ordering Government "not to restrain plaintiff from joining his duties as Office Superintendent" Such prayer, held, one for a mandatory injunction although couched inform of an injunction restraining defendant from acting in a particular manner‑Mandatory injunction pending suit could be granted in very rarest of cases and then also in order to maintain only states quo‑Government, moreover, should not be compelled at least by way of an interlocutory order to employ any of its servants fn particular capacity‑Courts below, held, right in refusing temporary injunction.

Niaz Ahmed for Appellant.

Shah Jamil Alam for Respondents.

Date of hearings 30th May 1973.

The petitioner in this case is a confirmed Head Assistant In the Office of the General Manager, Southern Telecommunica tion Region. Karachi, who is respondent No. 3. In this petition. On the 2nd October 1959, however he was promoted to officiate as a Superintendent w.e.f. 30th of September 1969, F. N. He was working In that capacity until the 16th of February 1971, and upon the neat day that is the 17th the respondent No. 3, ordered the posting of the petitioner with Immediate effect as Head Assistant and in his place promoted one J. A. B. Chugtai, who he respondent No. 4 to officiate as Office Superintendent. The vacancy on the 30th of September to which the petitioner had been appointed was, it is claimed due to the retirement of the then Superintendent, one Mr. Sham suddin, and the petitioner claims that he was then the confirmed and senior‑most Head Assistant In the Regional Office. He also claims that respondent No. 4 was a Head Assistant bat only in an officiating capacity and was in any case junior to himself. He relies upon the fact that while he was officiating as an Office Superintendent, respondent No. 4 had made a representation against the petitioner's promotion and that an order has been passed upon the 10th December 1970, by the Director‑General, Telegraphs and Telephones, Government of Pakistan, who is respondent No. 2, in this petition to the effect that the appointment of the petitioner was in order.

2. The petitioner then filed a suit in the Court of the VII Civil Judge, 1st Class, Karachi, challenging the legality of his reversion and In the course of that suit applied to tae Court for an injunction under Order XXXIX, rules 1 and 2 "not to restrain the plaintiff from joining his duties as Office Superintendent". In effect it seems to me that this was a prayer for a mandatory Injunction although couched in the form of an injunction to restrain the defendants from acting in a particular fashion. Since the Advocate for defendant No. 3 who is now respondent No. 3, against whom the order was sought asked for an adjournment the learned trial Judge grated it but made it subject to an ad interim injunction. On the final hearing of the application among other matters it was alleged by defendant No. 3 that the petitioner has already made over formal charge of the post on the 24th of February 1971, and had even drawn his salary from the 17th February 1971 to the 31st of March 1971 as a Head Assistant but these allegation were denied by the petitioner. In fact it seems as held by the learned trial Judge who saw the documents in question the petitioner applied for short leave on the 16th February 1971 at 1‑10 p.m. on the ground that he had a headache. The order of reversion, it in to be remembered, was passed upon the same day and the learned trial Judge came to the conclusion that it was really in order to hold service of this order that leave was asked for upon the same date. A document was also filed era behalf of the defendant showing a written statement in regard to the handing over of documents and articles by the petitioner to respondent No. 4 upon the 24th of February, in order to establish that charge having already been handed over injunction could or at least ought to be granted. The short leave applied for upon the 16th would seem, however, to have been followed up by a further application for leave because it is admitted that from the 16th of February 1971, up to the 2nd of April 1971 the petitioner remained on leave. It would thus seem that the petitioner had made over charge of the post to respondent No. 4 and this is one of the reasons which weighed with the trial Judge in finally refusing a temporary injunction. The trial Judge also held that the balance of convenience was against the petitioner inasmuch as if he succeeded in the suit he would be duly compensated in the sense that he would get his arrears of pay etc.

3. Against this order the petitioner filed an appeal which was heard and dismissed by the learned District Judge of Karachi who held much to the same effect as the trial Court.

4. Against these two orders the petitioner has now come to this Court by way of an application for revision under section 115 of the Code of Civil Procedure. Taking the best view in favour of the petitioner of the case the most that could be stated is that he might succeed eventually in showing that he was senior to the person who was appointed after he was reverted. Whether, upon that basis he would be entitled to a declaration that he was wrongly reverted is a question which I am not attempting to determine as I see no necessity for doing so in the present case. But even assuming that he would be so entitled I am still unable to see how it can be said that the present case comes within section 115 of Civil Procedure Code. It is no body's case that the Courts below have exercised a jurisdiction not vested in them by law or have failed to exercise a jurisdiction so vested. The fact that they have refused to pass an order in the exercise of a jurisdiction undoubtedly vested in them is not to say that they have failed to exercise the jurisdiction but that, upon the merits of the case, they did not think it right to pass an order in the exercise of that jurisdiction, which is an entirely different thing. Nor has anything been pointed out to me by reason of which it could properly be hold that in exercise of their jurisdiction the Courts below have acted illegally or with material irregularity.

5. Assuming even that section 115 can be Invoked, I have come to the conclusion that the present is not a case in which interference by this Court is called for. In effect what was sought for in the trial Court was a mandatory injunction, for the effect of granting the injunction would have been to order the Government to remove respondent No. 4 from the position which he was admittedly occupying and to install the petitioner in his place. Even in the few cases in which it has been held that a mandatory injunction can be granted pending a suit it bas been said that it can be done, or at least that it should be done, in the very rarest of cases and then also in order to maintain only the status quo, that is to say the position obtaining before the institution of the suit and not for the purpose of rectifying a situation which is in existence at the time of the institution of the suit. Indeed in this Court a mandatory injunction in so many words was asked for as an interlocutory order. Civil Miscellaneous Application 84 of 72 prayed that this Court be "pleased to grant mandatory injunction, restraining the respondents from interfering and obstructing the petitioner in holding the officiating post of Office Superintendent pending the disposal of this petition". Upon the date that the main petition was admitted to regular hearing, however, the order sheet (dated 24‑1‑1972) shows that learned counsel for the applicant agreed that this application had become infructuous "because the applicant has been transferred to Hyderabad and is working there" g the application was, therefore, dismissed as being infructuous. In effect, therefore, the petitioner himself has already admitted that relief of the kind that he is claiming can no longer be given.

6. But, apart from any implied admissions of petitioner, I would not even otherwise thinly that this is a fit case for granting a temporary injunction. The balance of convenience is clearly against the petitioner; if he succeeds he will no doubt be fully compensated and, on the other hand, if he fails there would have been in the meantime an undue interference with the working of a Government Department. In any case, I think it is wrong to compel Government, at least by way of an interlocutory order, to employ any of its servants in a particular capacity. No doubt Government servants are entitled to their constitutional guarantees and also to be treated in accordance with the rules of their service. If, therefore, the petitioner finally succeeds, he will of course be entitled to all the benefits that he would have received if the present order bad not been passed. But while the petitioner would be entitled to all the benefits which accrue from a particular position that he is entitled to bold he cannot claim as a matter of right, particularly by way of an interlocutory order, to be allowed to perform functions which the Government does not wish him to perform.

7. I see no reason, therefore, for interfering with the orders of the Courts below in this case and dismiss this application for revision with costs.

K. B. A. Petition dismissed.

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