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1986 DIGILAW 64 (ALL)

Parmanand Lal v. Union of India

1986-01-21

S.C.MATHUR, U.C.SRIVASTAVA

body1986
JUDGMENT S.C. Mathur, J. - The applicant Parmanand Lal was posted as Junior Engineer in the Post and Telegraph Department. The next higher post to which he could look forward for promotion was post of Assistant Engineer. The applicant ss selected by a Departmental Committee for promotion to the said post and he was brought on the approved list. Certain selections took place sequent to the selection at which the applicant was brought on the proved list. Candidates selected subsequent to the applicant were junior to him but were promoted to the post of Assistant Engineer while the applicant was not so promoted. Aggrieved by this action of the Department, the applicant approached this Court through Writ Petition No. 2739 of 1981. Amongst other reliefs, the applicant prayed that he be declared promoted to the post of Assistant Engineer from a date prior to the date on which the first candidate selected at a subsequent selection was promoted. The writ petition was allowed by judgment and order dated February 20, 1985 and relief was granted in the following terms : - "The writ petition are allowed with costs and mandamus is issued directing the opposite parties that both the petitioners may be promoted with effect from the date prior to a date of promotion of any person who passed the departmental examination subsequent to them and adjust their seniority accordingly and pay them salary and allowance accordingly with effect from the said date." 2. Despite the above specific mandamus issued by this Court, till this date no order has been passed by the opposite parties for promotion of the applicants to the post of Assistant Engineer from the date indicated in the judgment of this Court. Applicant's seniority too has not been adjusted and balance amount of salary also has not been paid. After waiting for more than five months for the opposite parties to comply with the mandamus issued by this Court, the applicant has moved the instant application for execution or enforcement of the Court's judgment and order. The application has been opposed on behalf of the opposite parties by their learned counsel Sri D.S. Randhawa. We have heard the learned counsel for the parties. 3. The application has been opposed on behalf of the opposite parties by their learned counsel Sri D.S. Randhawa. We have heard the learned counsel for the parties. 3. The first objection raised by the learned counsel for the opposite parties is that in view of the Constitution of the Administrative Tribunal under the provisions of the Administrative Tribunal Act, 1985 (No. 13 of 1985), this Court has no jurisdiction to deal with the application. According to the learned counsel such an application, if at all maintainable, can be filed only before the Administrative Tribunal so constituted. In support: of the submission he has relied upon Sections 14 and 28 of the Act and the order passed by their Lordships of the Supreme Court on October 31, 1985 in Writ Petition No. 12437 of 1985. 4. Section 14(1) of the Administrative Tribunal Act provides as follows : - "14(1) Save as otherwise expressly provided in this Act, the Central : Administrative Tribunal shall exercise, on and from the appointed day, all the jurisdiction, powers and authority exercisable immediately before that day by all courts (except the Supreme Court under Article 136 of the Constitution) in relation to - (a) recruitment, and matters concerning recruitment, to any All India Service or to any civil service of the Union or a civil post under the Union or to a post connected with defence or in the defence services, being, in either case, a post filled by a civilian; (b) all service matters concerning - (i) a member of any All India Service ; or (ii) a person (not being a member of an All India Service or a person referred to in clause (c) appointed to any civil service of the Union or any civil post under the Union ; or (iii) a civilian (not being a member of an All India Service or a person referred to in clause (c) appointed to any defence services or a post connected with defence, and pertaining to the service of such member, person or civilian, in connection with the affairs of the Union or any State or of any local or other authority within the territory of India or under the Control of the Government of India or of any corporation owned or controlled by the Government. (c) all service matters pertaining to service in connection with the affairs of the Union concerning a person appointed to any service or post referred to in sub-clause (ii) or sub-clause (iii) of clause (b), being a person whose services have been placed by a State Government or any local or other authority or any corporation or other body, at the disposal of Central Government for such appointment. (2) .................................. (3) .................................." Section 28 excludes the jurisdiction of other courts in respect of matters cognisable by the Central Administrative Tribunal. From these provisions it is clear that in respect of matters cognisable by the Tribunal the jurisdiction of other courts is excluded except of the Supreme Court. The question, however, is whether the present application is one falling within the ambit of Section 14(1) of the Act. In our opinion Section 14 refers to matters in respect of which no adjudication has been made between the parties by a competent court of law. Where an adjudication has already been made, Section 14 will not be attracted. In the present case the dispute between the applicant and the Postal Department has already been adjudicated upon by this Court through judgment and order of which execution is sought. So far as the order dated October 81, 1985 passed by their Lordships of the Supreme Court is concerned, it is only an interim order with regard to the petitions pending in various High Courts and the manner in which fresh petitions may be filed. We are, therefore, of the opinion that the present is not a matter which could be taken to the Tribunal by the applicant. 5. The next submission of the learned counsel for the opposite parties is that the Rules of this Court do not provide for execution in the manner prayed for by the applicant. The submission is sought to be supported by reference to Chapter XXII Rule 11 of the Rules of the Court, 1952 Rule 11 reads as follows : - "11. Where costs have been awarded by the Court in a Writ Petition or in a special appeal from an order passed on a Writ Petition, but have not paid, the person entitled to them may apply the Court for execution of the order. The application shall be accompanied by an affidavit stating the among of costs awarded and the amount remaining unpaid. The application shall be accompanied by an affidavit stating the among of costs awarded and the amount remaining unpaid. The Court may direct the order to be sent to the District Court of the district in which the order is to be executed. The order may be executed by such court (as if it is a decree for costs passed by itself) or be transferred for execution to any subordinate court)". Rule 11 deals with execution of a specific nature of order passed by this Court in a petition under Article 226 of the Constitution. If costs haw been awarded in a Writ Petition by this Court, the said costs will be recovered in the manner indicated in this Rule. This Rule provides that where an order of costs has been passed the applicant shall make an application for execution of the order in this Court and the said application shall be supported by an affidavit, stating therein the amount of cost awarded and the amount remaining unpaid for which execution is sought Thereafter it provides that the Court "may direct" the order to be sent to the District Court. The power of the Court, to send the order to the District Court is discretionary. In other words the order may be executed either by this Court or it may be transmitted to the District Court for execution. Rule 11 does not take away the power of this Court to execute its order of costs. We are further of the opinion that Rule 11 is not exhaustive of the power of the Court to execute its orders. Where the order to be executed is not one for costs, it may be executed under extraordinary powers of the Court conferred under Article 226 of the Constitution. 6. The learned counsel for the applicant submitted that this Court has ample jurisdiction to execute its order under the provisions of the Code of Civil Procedure. Sri Randhawa, by reference to Section 141 of the Code of Civil Procedure, submitted that the Code is not applicable to Writ Petitions. In the present proceedings it is not necessary to consider whether the Code of Civil Procedure would be applicable to proceedings under Article 226 of the Constitution is an extraordinary power to do justice between a citizen and the State. The power dose not end after passing an order in favour of the citizen. In the present proceedings it is not necessary to consider whether the Code of Civil Procedure would be applicable to proceedings under Article 226 of the Constitution is an extraordinary power to do justice between a citizen and the State. The power dose not end after passing an order in favour of the citizen. It extends further to see that the fruits of the order become available to the citizen. In exercise of this power the jurisdiction of this Court is not hedged in by the restrictions that may be contained in the Code of Civil Procedure. We are, therefore, unable to agree with the submission of the learned counsel for the opposite parties that on account of the non-applicability of the Code of Civil Procedure to the present proceedings, the order of this Court cannot be executed. 7. On merits it is submitted that no "decree" has been passed by this Court in favour of the applicant and, therefore, there is no question of execution. The term "decree" has been defined in Section 2(2) of the Code of Civil Procedure, 1908 as follows : - "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint, and the determination of any question within Section 144, but shall not include - (a) any adjudication from which an appeal lise as an appeal from an order, or (b) any order of dismissal for default. Explanation........................." Front the above definition it would be seen that decree is passed in a suit. Since proceedings under Article 226 are not "suit", the learned counsel is correct in submitting that the final order passed by this Court cannot be termed "a decree". That, however, does riot mean that the final order of this Court cannot be executed of en-formed. If the Learned counsel is of the opinion that it is only a decree within the meaning of the term as defined in Section 2(2) of the Code that can be executed, he is entirely misconceived. 8. That, however, does riot mean that the final order of this Court cannot be executed of en-formed. If the Learned counsel is of the opinion that it is only a decree within the meaning of the term as defined in Section 2(2) of the Code that can be executed, he is entirely misconceived. 8. It was also submitted that the petitioner had been transferred to Bombay and his name had been struck off from the U.P. Circle and, therefore, be direction can be issued by this Court for enforcement of the order. The applicant may have been transferred from U.P. Circle to Bombay Circle but that does not deprive this Court of the power to enforce its order. One of the parties to the writ petition was Director General, Post and Telegraphs Services, Government of India New Delhi. He cannot disclaim his liability to obey the orders of this Court. 9. It was also submitted that the judgment of this Court is declaratory and, therefore, it cannot be enforced or executed. The judgment of this Court is not at all declaratory. A specific mandamus was issued indicating the manner in which relief was to be granted to the applicant by the opposite parties. The said manner being to promote his with effect from the date prior to a date of promotion of any person who passed the Departmental Examination subsequent to him. The fact required for enforcement of this direction are already available to the opposite parties and there is no difficulty in complying with the terms of this Court's order. In paragraph 3 of the application the applicant has mentioned the name of Sri Vishwa Nath Pradhan who was promoted on May 12, 1977 when, at that time, it was actually the applicant who was entitled to be promoted. This fact has not been denied on behalf of the opposite parties. In Paragraph 4 of the application the applicant has indicated the additional amount which he would have received in case he had been promoted from May 12, 1977. The said amount being Rs. 79,100.50 p. This figure too has not been specifically denied by the opposite parties. There being no factual dispute between the parties, we see no difficulty in enforcing the mandamus issued by us on February 20, 1985. 10. The said amount being Rs. 79,100.50 p. This figure too has not been specifically denied by the opposite parties. There being no factual dispute between the parties, we see no difficulty in enforcing the mandamus issued by us on February 20, 1985. 10. On behalf of the opposite parties an application has been made under Article 133 of the Constitution for the grant of certificate of fitness for preferring appeal before their Lordships of the Supreme Court. This application has been registered as petition for leave appeal to the Supreme Court No. 26 of 1985. It was submitted by Sri Randhawa that in view of the filing of this application the order of this Court may not be enforced. By a separate order we are rejecting the said application. In the circumstances the filing of the application is not a bar to the enforcement of the order. 11. The opposite parties have further relied upon an order dated August 29, 1983 whereby the applicant was promoted to the post of Assistant Engineer and posted at Bombay. A copy of the order has been filed as Annexure 2 to the objection filed on behalf of the opposite parties. Another order relied upon for the same purpose is dated September 19, 1983, Annexure 1. These orders are irrelevant inasmuch as in terms of the mandamus issued by this Court the applicant is to be promoted from May 12, 1977 and not from September 19, 1983 or August 29, 1983. 12. The last submission of the learned counsel is that three months further time may be allowed to the opposite parties to comply with the directions of this Court. In our opinion the time prayed for is not justified but we are inclined to allow only one month's time for compliance of our order. 13. In view of the above the application for execution is allowed and it is provided that if no order is passed by the opposite parties within one month from today, the applicant will be deemed to have been promoted to the post of Assistant Engineer with effect from May 12, 1977 and the opposite parties shall pay to him the sum of Rs. 79,100.50 p. within six weeks from today. Within one month from today the opposite parties shall also adjust the seniority of the applicant. 79,100.50 p. within six weeks from today. Within one month from today the opposite parties shall also adjust the seniority of the applicant. The orders passed by opposite parties shall be produced before this Court on March 14, 1986 on which date the application shall be listed for further orders.