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Himachal Pradesh High Court · body

2013 DIGILAW 234 (HP)

KANTA DEVI v. STATE OF H. P.

2013-04-04

KULDIP SINGH

body2013
JUDGMENT KULDIP SINGH, J. - 1. THE petitioner has filed the execution petition for executing judgment dated 23.5.2011 in CWP(T) No.13769 of 2008, her grievance is that judgment dated 23.5.2011 has not been implemented, a direction has been sought to the respondents to implement the judgment dated 23.5.2011 in letter and spirit. 2. THE respondent No.3 has filed an affidavit and has stated that the petitioner continued to work as Whole Time Contingent Paid employee in compliance to the order of the High Court. She was further promoted to the post of regular Class-IV Peon according to her seniority vide letter dated 21.3.2011. In CWP(T) No.13613 of 2008 and CWP(T) No. 13850 of 2008 decided on 13.11.2009 and 18.11.2009 respectively by the Division Bench, liberty was given to the respondents therein to do the needful in accordance with law. The petitioner was given opportunity of hearing vide notice dated 15.11.2011, she was heard. The petitioner accepted that she would not claim seniority over such Part Time Water Carriers, who joined the Department prior to her but left unpromoted The petitioner was apprised the decision vide order dated 16.12.2011. The petitioner has been rightly promoted as per seniority of Whole Time Contingent Paid and made regular Peon vide office order dated 21.3.2011. The petitioner is presently working in Govt. Senior Secondary School, Tanehar, District Mandi. It has been stated that the petitioner has been given due benefits and judgment dated 23.5.2011 has been complied after taking into consideration the judgment passed by the Division Bench in similar matters. Heard. On 23.5.2011 in CWP(T) No. 13769 of 2008 this Court has passed the following order:- "The respondents on 22.03.2011 were given three weeks to file their reply and it was observed that in case reply was not filed then it would be presumed that the respondents-State does not controvert the factual allegations made in the petition. No reply has been filed. It is clear that the petitioner was demoted without following the process of law and violating the principle of natural justice vide order dated 13.04.2006. Accordingly, Office Order No. EDN-MND(Estt-I) 2003 1856- 2023 dated 13.04.2006 mentioned in Annexure A-2 along with Annexure A-2 to the extent it relates to the petitioner is not sustainable and the same is accordingly quashed with all consequential benefits. The petition stands disposed of." 3. Accordingly, Office Order No. EDN-MND(Estt-I) 2003 1856- 2023 dated 13.04.2006 mentioned in Annexure A-2 along with Annexure A-2 to the extent it relates to the petitioner is not sustainable and the same is accordingly quashed with all consequential benefits. The petition stands disposed of." 3. IT is thus clear that the order dated 13.4.2006 of demotion of the petitioner was quashed with all consequential benefits. No liberty was given to the respondents to proceed further in the matter. It is not the case of the respondents that judgment dated 23.5.2011 in CWP (T) NO. 13769 of 2008 was assailed by them in appeal. In other words, the judgment dated 23.5.2011 has attained finality. CWP (T) No. 13613 of 2008 and CWP (T) No. 13850 of 2008 decided by the Division Bench on 13.11.2009 and 18.11.2009 respectively were separate petitions. In those petitions also the order dated 13.4.2006 was quashed and set-aside but in those cases liberty was given to the respondents therein to proceed with the matter in accordance with law. 4. THE respondent No.3 in the affidavit has stated that on 15.11.2011 the petitioner appeared before him and accepted that she will not claim her seniority over the Part Time Water Carriers, who joined before her in the Department but left unpromoted. No contemporaneous record in support of this assertion of respondent No.3 has been placed on record. Moreover, respondent No.3 has further stated in the affidavit that the petitioner has been promoted as per seniority of Whole Time Contingent Paid Employees and made regular Peon vide office order dated 21.3.2011 and she is presently working in Govt. Senior Secondary School, Tanehar. Once the petitioner was promoted and made regular Peon on 21.3.2011 there was question of petitioner accepting on 15.11.2011 that she would not claim seniority as projected by respondent No.3. The petitioner was appointed as Part Time Water Carrier. On 7.3.2005 she was promoted as Whole Time Contingent Employee. On 13.4.2006 she was demoted. The order dated 13.4.2006 was assailed by the petitioner and set- aside on 23.5.2011 in CWP (T) No. 13769 of 2008 with all consequential benefits. The decision dated 23.5.2011 attained finality. It means the petitioner was restored on the promoted post of Whole Time Contingent Employee as on 13.4.2006 with all consequential benefits. On 13.4.2006 she was demoted. The order dated 13.4.2006 was assailed by the petitioner and set- aside on 23.5.2011 in CWP (T) No. 13769 of 2008 with all consequential benefits. The decision dated 23.5.2011 attained finality. It means the petitioner was restored on the promoted post of Whole Time Contingent Employee as on 13.4.2006 with all consequential benefits. There was no specific mandate in the judgment dated 23.5.2011 to the respondents what was further to be done by them except a direction of all consequential benefits. The executing court cannot enlarge the scope of order under execution. It is open to the petitioner to raise her grievance by filing separate petition. The petition is accordingly disposed of on above terms. Petition disposed.