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2006 DIGILAW 321 (HP)

DEV RAJ BHARDWAJ v. STATE OF H. P.

2006-10-19

M.R.VERMA, VIJAY PAL SINGH

body2006
JUDGEMENT Vijay Pal Singh, Member (Adm.).: In this Execution Petition, it is stated by the petitioner that he was employed as Trained Graduate Teacher against the reserved vacancy reserved for Ex-Servicemen in the respondents Department after his retirement from Military Service. The benefits of his past Military Service were not granted to him as such he filed Original Application (D) No. 818/95 before this Tribunal which was allowed vide order/judgment dated September 26, 1997 ^ (Annexure P-1) whereby the respondents were directed to re-draw the seniority list ! and to give benefit of the Military Service to the petitioner. It is further stated that case of the Applicant/petitioner for the grant of benefit in accordance with the judgment (Annexure-P-1) was forwarded by the Headmaster, Govt High School, Behin vide his letter dated March 31, 1998 (Annexure P-2) to the Director of Education, HP (respondent No.2). The petitioner vide his representation dated July 3, 1998 (Annexure P-3) again represented to respondent No.2, but nothing has been heard from the respondents, hence, this Execution Petition. 2.ln the reply filed by respondents, it is stated that in OA(D)818/95, the Tribunal vide judgment dated September 26, 1997 has held that. "The Full Bench of this Tribunal vide its order dated March 18, 1997 in O.A. No. 1045/91 re Hari Chand Rana Vs. State of Himachal Pradesh and Ors. Has categorically held that the benefits of the rules in question deserved to be extended to all Ex-Serviceman appointed against the reserved vacancies before or subsequent to the cut off date namely November 1, 1962. In that view of the matter and in the light of observations made by the Full Bench in this case, the application is allowed and the impugned order Annexure dated are quashed. The respondents are further directed to re-draw the seniority list and to give benefits of the Military Service". It is further stated that judgment passed the Full Bench of this Tribunal in the said O.A. No. 1045/91 has been assailed by the State of Himachal Pradesh in Honble Supreme Court by filing Special Leave Petition and the Honble Supreme Court has stayed the operation of said judgment dated March 18, 1997. 3. Be it stated that the further proceedings in this Execution Petition were suspended by this Tribunal vide order dated September 1, 1999 till the final disposal of S.L.P. filed in the Honble Apex Court. 4. 3. Be it stated that the further proceedings in this Execution Petition were suspended by this Tribunal vide order dated September 1, 1999 till the final disposal of S.L.P. filed in the Honble Apex Court. 4. Now the petitioner has filed M.A. No. 836/ 2006 suggesting therein the mode of execution of the order and prayed for the attachment of office Room No. 523 in H.P. Secretariat (including the furniture) and Vehicle No. HP -7B-0007 allotted to the Secretary, Education (respondent No. 1) till the implementation of the order dated September 26, 1997. 5. The respondents have contested this Misc. Application. In their reply, the respondents by way of preliminary submissions have stated that Special Leave Petition had been filed by the State Government because there were about 1500 similar cases in the State and the benefit to certain Ex. -Servicemen had wrongly been given on the directions of the Tribunal. The fact that the Tribunal itself had suspended the operation of the Execution Petition till disposal of S.L.P. by the Honble Apex Court indicates that the matter of the Execution Petition is/was covered by the matter before the Apex Court. The decision of the Apex Court is applicable to the instant Execution Petition even though the present applicant was not arrayed as respondent in S.L.P. before the Apex Court. 6.0n merit, it is stated that since the Honble Supreme Court vide its order dated September 17, 2002 passed in Civil Appeal No. 1164 of 2000 in case of State of HP. and another Vs. Piar Singh with Civil appeal Nos. 1165-1176 of 2000 had decided the cases filed before it, in favour of the State of H.P. by setting aside the judgments of this Tribunal, therefore, the order dated September 26, 1997 passed by the Tribunal in matter O.A. (D) 818/95 had automatically become infructuous as this case was fully covered in the judgment delivered by the Honble Supreme Court because the applicant in the instant matter is one of those 1500 employees which Government had pleaded in the Honble Supreme Court and which also find mention in the judgment (Annexure R-1) of the Honble Supreme Court. 7. We have heard the learned counsel for the petitioner and the learned Additional Advocate General and perused the material on record. 8. 7. We have heard the learned counsel for the petitioner and the learned Additional Advocate General and perused the material on record. 8. It is admitted case of the parties that order dated September 26, 1997 sought to be executed through the present Execution Petition was passed on the ratio of the judgment dated March 18, 1997 passed by the Full Bench of this Tribunal in the Hari Chand Rana Vs. State of Himachal Pradesh and Ors. The aforesaid judgment dated March 18, 1997 has been set aside by the Honble Supreme Court vide its order dated September 17, 2002 passed in Civil Appeal No. 1164/2002 with Civil Appeal Nos. 1165-1176 of 2002. It is also admitted position that order dated September 26, 1997 being executed has not been assailed by the respondent State either in the Appellate Court or by way of Review Petition before this Tribunal. In the reply to the Misc. Application No. 836/2006 the respondents have stated that "the present applicant was not arrayed as respondent in S.L.P. before the Apex Court." 9.The only question which requires consideration in this Execution Petition is whether the order sought to the executed which is entirely based on a judgment which has been set aside by the Apex Court still remains executable or not. 1O.ln Virendra Kumar Singh Vs. UP Singh and others (2001) 10 S.C.C. 430, Civil Judge had held that appellant was entitled to promotion from 1975. Appellant carried the matter in appeal and got further relief from Additional District Judge that he was entitled to promotion from 1972. Appellate order was assailed by respondent State before High Court which set aside the entire order on the ground of lack of jurisdiction. The Honble Apex Court has held that the High Court though justified in interfering with the appellant order, yet the relief granted by the Civil Judge could not be disturbed because the order of Civil Judge was not assailed by respondents State and therefore it had become final in due course. Impugned order of High Court was accordingly modified and the Appellant was held entitled to promotion from 1975 as ordered by Civil Judge. 11. In Food Corporation of India Vs. S.N. Nagarkar AIR 2002 (Vol-89/808) it is held that Execution Court cannot go beyond decree. Impugned order of High Court was accordingly modified and the Appellant was held entitled to promotion from 1975 as ordered by Civil Judge. 11. In Food Corporation of India Vs. S.N. Nagarkar AIR 2002 (Vol-89/808) it is held that Execution Court cannot go beyond decree. In execution proceeding, it was open to the appellant either to contend that the judgment and order was erroneous or that it required modification. The judgment and order having attained finality has to be implemented without questioning its correctness. 12. In Prithawi Nath Ram Vs. State of Jharkhand and others (2004) 7 S.C.C. 261 it is held that, "While dealing with an application for Contempt, the Court is really concerned with the question weather the earlier decision which has received its finality had been complied with or not. It would not be permissible for a Court to examine the correctness of the earlier decision which had not been assailed and to take a view differed than what was taken in the earlier decision. If any party is aggrieved by the order which in its opinion is wrong or against rules or its implementation is neither practicable nor feasible, it should always either approach the Court that passed the order or invoke jurisdiction of the appellate Court. Rightness or wrongness of the order cannot be urged in contempt proceedings. Right or wrong, the order has to be obeyed. Flouting an order of the Court would render the party liable for contempt. While dealing with an application for contempt the court cannot traverse beyond the order, non compliance whereof is alleged. It cannot test correctness or otherwise of the order or give additional direction or delete any direction. That would be exercising review jurisdiction while dealing with an application for intimation of contempt proceedings. The same would be impermissible and indefensible." 13.In view of the above well settled position of law by the Honble Apex Court, in the case in hand, the order dated September 26, 1997 having not been assailed has attained the finality inter-se parties and in the execution proceedings,; its validity/correctness cannot be assailed/looked into and it has to be implemented as it is. Therefore the respondents are duty bound to satisfy the said judgment/order in its entirety like a decree of the Civil Court as per provisions of the Code of Civil Procedure. Therefore the respondents are duty bound to satisfy the said judgment/order in its entirety like a decree of the Civil Court as per provisions of the Code of Civil Procedure. In these circumstances warrant of attachment of the Vehicle No. HP-7B-0007 as proposed vide Misc. Application No. 836/2006 be issued and made returnable within four weeks.