Research › Search › Judgment

Punjab High Court · body

2001 DIGILAW 1252 (PNJ)

State of Punjab v. Om Parkash

2001-11-07

R.L.ANAND

body2001
JUDGMENT R.L. Anand, J. - The State of Punjab has filed the present revision which has been directed against the order dated 4th June, 2001 passed by the learned Civil Judge (Junior Division), Ferozepur, who dismissed the objections of the State by making the following observation as contained in para No. 11 of the impugned order: 11. "In the light of above discussion, it is clear that the petitioner/decree holder in the light of order of the lower Court, learned District Judge and the Honble High Court is entitled to all other service benefits, therefore, the deptt. is bound to give the promotion due to the petitioner from the date he is entitled to promotion along with all other benefits due to him. His seniority should be fixed above that of the persons junior to him who had already been promoted namely Surinder Pal, Harbhajan Singh and Nirmal Singh. Accordingly, objection petition filed by the J.Ds is dismissed." 2. The brief facts of the case are that Shri Om Parkash filed a Civil suit for declaration that he was entitled for consideration for appointment to the post of Senior Assistant and to be promoted as alleged on the basis of his being qualified the Assistant Grade Examination held on 2nd September, 1986 of which the result was declared and intimation sent to the plaintiff vide order dated 12th December, 1986. His suit was decreed by the learned Civil Judge (Junior Division), Ferozepore and the following relief contained in para No. 16 of the judgment is reproduced as follows : 16. In view of my findings on all the issues above, the suit of the plaintiff is decreed with costs as prayed by him and further the defendants are directed to promote the plaintiff to the post of Senior Assistant as per my findings on issue No. 1, 2 and 3, along with all the benefits of service i.e. seniority, pay and other allowances prior to the date his juniors have been promoted, preferably within two months from today. Decree sheet be prepared. File be consigned to the record room." 3. In pursuance of this judgment dated 12th November, 1997 the decree-sheet was drawn by the trial Court. The State was not satisfied with the judgment and decree passed by the learned trial Court. Decree sheet be prepared. File be consigned to the record room." 3. In pursuance of this judgment dated 12th November, 1997 the decree-sheet was drawn by the trial Court. The State was not satisfied with the judgment and decree passed by the learned trial Court. Resultantly, it filed first appeal before the learned District Judge, Ferozepore, who, in my opinion, allowed the appeal though in the fag end of the judgment he wrote that the appeal filed by the State stands dismissed. 4. In order to appreciate the respective contentions of the parties, it has become necessary for me to reproduce relevant portion of the judgment of the Court of Shri M.M. Bhalla, learned District Judge, Ferozepore, who observed in para No. 13 of the judgment dated 1st April, 1999 as follows : "Therefore, the trial court has rightly decreed the suit of the plaintiff. However, necessary amendment is made in the order directing the defendants/appellants to promote the plaintiff on the first available post which is available for his promotion after 6.9.1990 as the department has prepared the list Ex.P-15 to Ex.P-20 of the persons who had qualified the test in the first attempt and the name of the plaintiff was figuring at Serial No. 59 in that list and it is also clear from the statement of D.W. 1 Ganga Bishan that name of the plaintiff was wrongly withheld for promotion even on 10.10.1994. With these observations the appeal of the defendants/appellants is dismissed with no order as to costs." 5. Pursuant to the order passed by the learned District Judge, Ferozepore dated 1st April, 1999, the plaintiff-decree holder given the promotion to the post of Senior Assistant w.e.f. 6th September, 1990 and other benefits such as, back wages, seniority, w.e.f. 6th September, 1990 has also been given to the plaintiff. 6. However, the decree-holder/plaintiff was not satisfied with the compliance order passed by the Government. He filed an execution application before the executing Court and the case set up by the decree-holder is that he is entitled to the post prior to 6th September, 1990 i.e. from the date when his juniors were promoted in the cadre and, therefore, there is no compliance. Notice of the execution application was given to the State which filed the objections and these objections have been dismissed by the learned executing Court vide the impugned order dated 4th June, 2001. Notice of the execution application was given to the State which filed the objections and these objections have been dismissed by the learned executing Court vide the impugned order dated 4th June, 2001. Hence the present revision. 7. Before, I deal with the submissions raised by the learned counsel for the parties, it is again appropriate for me to reproduce para Nos. 9 and 10 of the order passed by the executing Court : 9. I have gone through the relevant part of the judgment of the learned District Judge, Ferozepore. The learned District Judge, Ferozepore had directed that the decree holder should be promoted on the first available post after 6.9.1990. Taking the judgment of the learned District Judge, Ferozepore as such, the J.D. is merely directed to promote the decree-holder on the first available post after 6.9.1990, but it is not stated therein that his seniority is to be fixed from a date after 6.9.1990. To interpret the judgment of the learned District Judge, Ferozepur who upheld the judgment of the Lower Court to the contrary would be tantamount to doing great injustice to the present petitioner/decree-holder as persons junior to him would be entitled to get seniority from the year 1987 while he would because of the order of the learned District Judge, Ferozepur be entitled to promotion only after 6.9.1990. The interpretation of the order by the departmental authorities to the disadvantage of the decree holder is not only unfair but also unreasonable. Since the department has fixed the seniority of employees junior to the decree holder at dates prior to 6.9.1990 there is no reason to withhold the same benefit to the decree holder. The action of the department in mis- interpreting the judgment of the learned District Judge, Ferozepur amounts to doing dual injustice to the petitioner decree holder in so far as first his claim for promotion was not accepted and later when his claim was accepted he was denied the seniority which is due to him. The department for the reasons best known to it has submitted photocopies of writ petitions filed by the above said Surinder Pal, Harbhajan Singh, Nirmal Singh in which in the latest order passed by the Honble High Court in February, 2000 the promotions granted to these three persons from the dates below mentioned :- Sh. Surinder Pal - 15.2.1998 Sh. Harbhajan Singh - 24.2.1987 Sh. Surinder Pal - 15.2.1998 Sh. Harbhajan Singh - 24.2.1987 Sh. Nirmal Singh - 24.2.1987 were upheld by the Honble High Court and the department was restrained from reverting them. 10. In the light of the order passed by the Honble High Court in these three writ petitions it is clear that the present decree holder like the writ petitioners is entitled to the same claim in terms of seniority. In fact, he being senior is entitled that his seniority be fixed to a date prior to the seniority of the said Surinder Pal, who is seniormost amongst the three persons promoted in February, 1987. To deny the benefit of seniority due to the petitioner on the specious plea that the learned District Judge, Ferozepur had fixed a date and his seniority could only be fixed after that date amounts to arbitrariness and unfairness on the part of the department. It is settled principle of law that when an order is passed for the benefit of individual to interpret it to his disadvantage amounts to doing injustice. In the instant case the order has been passed by the learned District Judge in favour of the present petitioner/decree holder so that order should not be interpreted to the disadvantage of the petitioner/decree holder." 8. Shri Sharma, learned Senior Deputy Advocate General appearing on behalf of the State, submits that the government has complied with the orders passed by the Courts below. He submitted that in the orders of the learned Civil Judge (Junior Division) Ferozepore as also the order of the learned District Judge who had clearly given a finding that the plaintiff would be promoted on the first available post which was available for his promotion after 6th September, 1990 and, therefore, the learned executing Court has wrongly dismissed the objections of the State. 9. On the contrary, the learned senior counsel Shri R.L. Batta, appearing on behalf of the decree-holder, has submitted that juniors to the plaintiff had been promoted prior to 6th September, 1990 and it is the basic law of the land that the senior is entitled promotion from the same date when his juniors were promoted and, therefore, the objections of the judgment debtor have been rightly dismissed by the Executing Court. In support of his contention, the learned counsel appearing on behalf of the respondent has invited my attention to a Division Bench decision of this Court reported in Union of India and another v. Ramesh Ahluwalia and another, 2001(2) S.L.R. 275 wherein it was observed that senior employee has a right to be considered for promotion prior to his junior and this right of consideration cannot be defeated on account of subsequent events. My attention has also been invited to a judgment of the Honble Supreme Court reported as State of Madhya Pradesh v. Srikant Chaphekar, AIR 1993 S.C. 1221 wherein it was observed that in a case where the Court/Tribunal comes to the conclusion that a person was not considered for promotion or the consideration was illegal then the only direction which can be given is to reconsider his case in accordance with law. Where the Tribunal after examining the service record of the employee concluded that the averse remarks were vague and were not sufficient to deny employee his promotion and further directed the authorities to promote the employee, as such order was wholly unjustified. 10. After considering the rival contentions of the parties, I am of the opinion that the impugned order cannot be sustained in the eyes of law. We all know that executing Court has to execute the decree as it is and it cannot go beyond the decree. I may also make a mention that against the judgment and decree passed by the first appellate Court, the State came in regular second appeal No. 3796 of 1999 which was disposed of instantly by me on 25th January, 2000 with the observations that the defendant-State shall consider the claim of the plaintiff for promotion and the judgment and decree of the Courts below was modified to the extent stated above and rest of the suit of the plaintiff stands decreed. Now I have to interpret all the three orders. I may also make a mention that the plaintiff/decree holder never filed an appeal against the judgment and decree passed by the first appellate Court. Therefore, the judgment of the trial Court has merged in the judgment of the first appellate Court and the judgment of the first appellate Court has merged in the judgment and decree of the High Court dated 25th January, 2000. All the three orders have to be interpreted simultaneously. Therefore, the judgment of the trial Court has merged in the judgment of the first appellate Court and the judgment of the first appellate Court has merged in the judgment and decree of the High Court dated 25th January, 2000. All the three orders have to be interpreted simultaneously. There is no dispute with the proposition of law that ordinarily an employee is entitled to promotion from the date when his juniors were promoted but this general observation/law cannot be applied in the present case for the benefit of the plaintiff in view of the observation made by the first appellate Court in which there is a clear finding that the plaintiff has to be considered for promotion on the first available vacancy after 6th September, 1990. This observation was endorsed by the High Court. The High Court simply disposed of the appeal of the State by making an observation that the case of the plaintiff be considered for promotion. Admittedly, the plaintiff has got promotion from 6th September, 1990 with all consequential benefits. In this view of the matter, he is not entitled to any promotion from any date earlier to 6th September, 1990. This aspect of the case has not been duly considered by the executing Court. Therefore, I allow this revision, set aside the impugned order and dismiss the execution application of the decree holder. Revision allowed.