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Himachal Pradesh High Court · body

2005 DIGILAW 391 (HP)

SURESH KUMAR VERMA v. STATE OF H. P.

2005-10-25

M.R.VERMA

body2005
ORDER M.R. Verma, J. (Retd.) Chairman - By this petition under Section 27 of the Administrative Tribunals Act, 1985 (hereinafter referred to as the Act), the petitioner prays for execution of the order dated July 11, 1996 passed by this Tribunal in O.A. No. 709/1996 to the following effect :- "In view of the above we direct the respondents to fill up the vacant posts as and when necessity arises strictly in accordance with the Recruitment and Promotion Rules and the instructions referred to above by giving due representation to the batch wide recruitment." 2. We have heard the learned Counsel for the parties and have also perused the record. 3. A preliminary objection has been taker: by the learned Additional Advocate General that this execution petition is barred by time having been filed after one year of the passing of the aforesaid order by the Tribunal and even from the date/time when according to the petitioner the order could be and ought to have been implemented. 4. On the other hand, it was contended for the petitioner that he has a continuing cause of action and the execution petition is not barred by time. 5. There is no dispute that the aforesaid order was passed on July 11, 1996. The execution petition has been filed on November 4, 1998 that is after more than two years of the passing of the order. Therefore, the question which arises for determination is as to what is the period of limitation for filing the execution petition under Section 27 of the Act. 6. In Hukam Raj Khinvsara v. Union of India and others, 1997(4) S.C.C. 284, the Apex Court while dealing with a similar question held as under:- "5. The only question is whether the application seeking implementation of the earlier order of the Tribunal was barred by limitation. Section 27 of the Administrative Tribunals Act, " 1985 (for short "the Act") envisages thus :- "27. Execution of orders of a Tribunal. The only question is whether the application seeking implementation of the earlier order of the Tribunal was barred by limitation. Section 27 of the Administrative Tribunals Act, " 1985 (for short "the Act") envisages thus :- "27. Execution of orders of a Tribunal. - Subject to the other provisions of this Act and Rules, the order of a Tribunal finally disposing of an application or an appeal shall be final and shall not be called in question in any Court (including a High Court) and such order shall be executed in the same manner in which any final order of the nature referred to in clause (a) of subsection (2) of Section 20 (whether or not such final order had actually been made) in respect of the grievance to which the application relates would have been executed." 6. Relevant part to sub-section (2) of Section 20 of the Act postulates that: "20.(2) For the purposes of sub-section (1) a person shall be deemed to have availed of all the remedies available to him under the relevant services rules as to redressal of grievance of grievances :- (a) if a final order has been made by Government or other authority or officer or other person competent to pass such order under such rules, rejecting any appeal preferred or representation made by such person in connection with the grievance." 7. Section 21 prescribes limitation in that behalf. Sub-section (1)(a) of Section 21 postulates that: "21 .(I) A Tribunal shall not admit an application -(a) in a case where a final order such as is mentioned in clause (a) of sub-section (2) of Section 20 has been made in connection with the grievance unless the application is made, within one year from the date on which such final order has been made." 8. Thus, it could be seen that the final order passed by the Tribunal is executable under Section 27 of the Act within one year from the date of its becoming final. Admittedly, the final order was passed on 13.3.1995. Consequently, the appellant was required to file the execution application within one year from the said date unless the order of the Tribunal was suspended by this Court in a special, leave petition/appeal which is not the case herein. Admittedly, the application came to be filed by the appellant on 13.12.1994 which is well beyond one year. Consequently, the appellant was required to file the execution application within one year from the said date unless the order of the Tribunal was suspended by this Court in a special, leave petition/appeal which is not the case herein. Admittedly, the application came to be filed by the appellant on 13.12.1994 which is well beyond one year. Under these circumstances, the Tribunal was right in its conclusion that the application was barred by limitation." 7. In view of the aforesaid decision of the Honble Supreme Court it is thus settled that final order passed by the Tribunal is executable under Section 27 of the Act within one year of its becoming final. In the case in hand the execution petition as stated hereinabove has been filed after more than two years of the passing of the order, hence was not filed within the aforesaid period of one year. 8. Be it stated that as is evident from the order sought to be executed, it was to be complied with and could be enforced "at the time as and when the necessity" to fill up the posts would have arisen. In the ordinary course where a sanctioned post is lying vacant, it can be presumed that there is necessity to fill up the same. In any case the necessity to fill up the post will be writ large in the action of the employer where the employer initiates the process to fill the vacancy. It is not in dispute but is pleaded even by the petitioner that 56 posts were lying vacant on 3.12.1995 and some of such posts were vacant since 1989 and nine of such posts were filled in on 4.1.1997, that is after the passing of the aforesaid order. 9. In the aforesaid circumstances this execution petition has not been filed within the said period of limitation and is thus, barred by time. 10. Be it stated that the petitioner has not filed application for condonation of delay. He has not even averred anything in the application for not filing the execution petition within time nor any reason(s) for condonation has been set out therein. In view of the above, this execution petition being barred by time merits dismissal and is accordingly dismissed. -