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2013 DIGILAW 293 (JK)

Jalil Ahmad Bhat v. M. D. JKPCC Ltd.

2013-05-10

JANAK RAJ KOTWAL

body2013
1. This revision is directed against order dated1.10.2012 passed by Ld. 3rd Additional Munsiff, Srinagar, whereby petitioner's application for execution of decree has been dismissed. 2. Heard. I have perused the record. 3. Briefly, facts relevant for decision in this revision petition are that Order No. 11940-42 dated 22.11.2003 was issued by the Managing Director JK Project Construction Corporation, Jammu/Srinagar (for short JKPCC), respondent no. 1. This reads: "In the interest of Administration Shri Jalil Ahmad S/o Sh. Gh. Nabi R/o Tral who was appointed as Computer Operator and posted at Delhi vide MD JKPCC's Order No. Est/200 dated 7.5.2002 is hereby brought in the Civil Engineering Stream as he has completed three years Diploma Course in Civil Engineering as per certificate produced from Kite Polytechnic, District Budgam (Kashmir) final year result awaited. He is directed to report to General Manager, JKPCC, Kashmir for further placement and he shall continue to draw the same emoluments viz Rs. 5500/- per month till declaration of final year's result." 4. Next, respondent no. 1 issued another order, No. 1442-46 dated 17. 5. 2004. This order at its S. No. 2 reads: "2. Sh. Jalil Ahmad Bhat engaged previously on temporary basis is also confirmed as Assistant Manager ( Civil) in the regular graded scale of 6400-225-10000 and will report to General Manager, Kashmir for further duties in Unit 2nd, Srinagar." This order further provided: "The effect of graded scale and this order together with drawal of salary is subject to production of following documents which shall be verified by the concerned Deputy General Manager. 1. Date of Birth Certificate. 2. Qualification Certificate (Professional required minimum for the post) 3. Medical Fitness Certificate. 4. State Subject Certificate. This issues with approval of Chairman JKPCC Ltd. Hon'ble Minister for R&B, J&K Govt." 5. It appears, which is not disputed, that ShriJalil Ahmed Bhat, (petitioner herein) did not produce the qualification certificate as required under Order No. 1442-46 ( supra). The Dy. General Manager JKPCC, therefore, wrote him a letter vide NO. 9316-18 dated 10.02.2007. The substance of this letter reads:- "The requisite qualification certificate is as yet awaited from you for the reasons well known to you, you are finally advised to produce the qualification certificate in original within a week's time positively failing which appropriate action in the matter will be initiated at your risk and responsibility." 6. 9316-18 dated 10.02.2007. The substance of this letter reads:- "The requisite qualification certificate is as yet awaited from you for the reasons well known to you, you are finally advised to produce the qualification certificate in original within a week's time positively failing which appropriate action in the matter will be initiated at your risk and responsibility." 6. On receiving the letter dated 10.2.2007 (supra), the petitioner filed suit before Ld. 3rd Additional Munsiff, Srinagar seeking decree for perpetual injunction restraining the defendants (respondents herein) from taking any adverse action against plaintiff ( petitioner herein) by disturbing his present placement and status. In his plaint in the suit, which was filed on 19.4.2007 petitioner had pleaded in para 8: `the plaintiff submits that the final result is still awaited and same will be produced as soon as certificate is made available to the plaintiff.' 7. In this suit respondents in the written statement had contended interalia that the petitioner had been directed to produce the requisite certificate that would enable him to fully qualify for his post and pave way for his appointment with the defendants. Letter dated 10.2.2007 has been issued because the petitioner had not furnished the qualification certificate. 8. Ld. trial Court decreed petitioner's suit vide judgment dated 27.6.2009. The perpetual injunction as sought was granted. Relevant portion of the decree reads:- "A decree of Perpetual injunction is passed in favour of plaintiff and against the defendants directing defendants not to disturb the present status and placement of plaintiff and shall release the salary which is due to him." 9. On 1.5.2012 petitioner (plaintiff/decree-holder) moved application for execution of the decree seeking a direction to the respondents (judgment debtors) to execute the decree in letter and spirit. Judgment debtors resisted the execution application by filing broad and detailed objections. They contended inter alia that there was no record available in JKPCC about appointment of petitioner on honorary basis, his appointment as Computer Operator and his having been brought in the Civil Engineering stream. They further contended that the JKPCC got knowledge through a writ petition about the order dated 17.5.2004, whereby the Managing Director had confirmed appointment of petitioner as Assistant Manager ( Civil) in the graded scale subject to providing of qualification certificate required for the said post. They further contended that the JKPCC got knowledge through a writ petition about the order dated 17.5.2004, whereby the Managing Director had confirmed appointment of petitioner as Assistant Manager ( Civil) in the graded scale subject to providing of qualification certificate required for the said post. They also contended that the said appointment having been found as a back door appointment, vide order No. 60 of 2006 dated 14.10.2-006 case has been kept in abeyance and matter referred to Vigilance Commissioner. They also contended that after issuing order dated 17.5.2004, petitioner's salary in the graded scale was drawn for the month of June, 2005 but the same was stopped thereafter because of his failure to produce certificates as provided under order dated 17.5.2004 and consolidated wages of Rs. 5500/- continued to be paid to him. Respondents also pointed out in the objections that the certificate of three years diploma in the (Civil) Engineering, which the petitioners was supposed to produce in May 2004 as per conditions laid down in order dated 17.5.2004, came to be issued in his favour on 5.5.2009 by the State Board of Technical Education. This shows that order dated 17.5.2004 was issued in clandestine manner without any scrutiny whether he had qualified the said diploma on the date of issuance of the said order so the order was void-abintio. 10. Ld. trial/Executing Court after according consideration to the matter and hearing both sides, by the impugned order dated 1.10.2012 dismissed the execution application observing that the decree was unexecutable. Learned court has observed: "From the perusal of the contents of the plaint, it is nowhere stated by the plaintiff that he at any point of time had joined as Assistant Manager, however, he has prayed to the court that he be allowed to continue at his present place of posting and salary be released in his favour. The place of posting which he has mentioned in the plaint, is regarding working as Computer Operator on consolidated basis, drawing a salary of an amount of Rs. 5500/- per month. The confirmation as an Assistant Manager was subject to the production of requisite qualification certificates, which the plaintiff had not filed before the Department, unless an order was passed by the department concerned against the plaintiff directing the plaintiff to provide the requisite qualification certificates. 5500/- per month. The confirmation as an Assistant Manager was subject to the production of requisite qualification certificates, which the plaintiff had not filed before the Department, unless an order was passed by the department concerned against the plaintiff directing the plaintiff to provide the requisite qualification certificates. Meanwhile, the counsel for the defendants during the trial of suit has admitted that the requisite qualification certificates have been submitted by the plaintiff as is reflected in the judgment. The decree has been granted by the court for the relief which has been asked for by the plaintiff i.e. he has asked a relief that plaintiff be allowed to continue at his present place of posting and salary be released in his favour. It is nowhere written in the judgment that the plaintiff be allowed to continue as Assistant Manager, neither the plaintiff has stated anywhere in the plaint that he has at any point of time joined as Assistant Manager or worked there as Assistant Manager." 11. Decree holder has impugned the decree in this revision petition. 12. Ld. Counsel for petitioner, Mr. Faisal Qadiri, sought to project that the petitioner at the time of filing of the suit was working against the post of Assistant Manager (Civil) in regular graded scale of Rs. 6400-225-10,000. However, in spite of the decree of the Court respondents did not give him benefits incidental to the said post. Petitioner, was therefore, compelled to make application for execution of the decree but the ld. trial Court fell into error by holding that the decree was not executable. This ground stands reflected in para 10 of the revision petition. Ld. counsel would further say that by virtue of the decree, respondents were directed not to disturb petitioner's position, meaning his position as Assistant Manager (Civil) and release of his salary in this grade and that what the decree simply was. 13. In reply Mr. S. A. Naik, Ld. AAG, would say that petitioner never had joined as Assistant Manager ( Civil) or was placed in graded scale of Rs. 6400-225-10000. This could not have been so. As per order dated 22.11.2003 it was directed that he shall continue to draw the same emoluments viz Rs. 13. In reply Mr. S. A. Naik, Ld. AAG, would say that petitioner never had joined as Assistant Manager ( Civil) or was placed in graded scale of Rs. 6400-225-10000. This could not have been so. As per order dated 22.11.2003 it was directed that he shall continue to draw the same emoluments viz Rs. 5500 per month till declaration of result of final year, whereas operation of order dated 17.5.2004 was subject to production of certificate(s) inter alia qualification certificate (Professional required minimum for the post) and admittedly said qualification was not acquired by him even up to the date of filing of the suit. Ld. counsel submitted further that it was a pure case of back door entry inasmuch as placing in Civil Engineering service of the JKPCC was made in wild anticipation of acquiring requisite qualification of three years' diploma in Civil Engineering. 14. On perusal of the pleadings on the petitioner's suit and judgment and the decree, copies whereof are available on record, it indisputably follows that the petitioner did not possess the requisite qualification, that is, diploma in Civil Engineering either on 22.11.2003, when the Managing Director JKPCC had brought him in Civil Engineering stream or on 17.5.2004, when the Managing Director confirmed him as Assistant Manager (Civil ) in regular graded scale of Rs. 6400-225-10,000. Petitioner did not possess this qualification even at the time of filing of the suit on 19.4.2007 which is clear from assertion in para 8 of the suit that the certificate shall be produced by him as soon as the same is made available to him. It however, is not understandable as to why and under what circumstances the order shifting the petitioner to Civil Engineering Stream and the order appointing him as Assistant Manager ( Civil) in regular graded scale came to be made if the petitioner did not possess the requisite qualification. 15. The fact of the matter, however, remains that the petitioner could not have joined as Assistant Manager (Civil) in regular graded scale right upto the time of filing of the suit as the order dated 17.5.2004 was subject to production of certain documents inter alia qualification certificate, that is, professional qualification of diploma in Civil Engineering. 16. The fact also remains that at the time of filing of the suit petitioner was working as computer operator on consolidated basis drawing monthly emoluments of Rs. 16. The fact also remains that at the time of filing of the suit petitioner was working as computer operator on consolidated basis drawing monthly emoluments of Rs. 5500/-. To reiterate at the cost of repeation, he can be said neither to have entered the Civil Engineering Stream nor to have joined as Assistant Manager (Civil) for reasons stated above. The decree passed by the court, therefore, can protect his position as computer operator only and nothing else. The conclusion arrived at and recorded by the ld. trial (Executing) Court, therefore, is correct and does not suffer from any error. The decree undoubtly could not have been executed if the relief sought in execution was to protect the petitioner's so called position in the Civil Engineering Stream as Assistant Manager (Civil) . 17. As a sequel of the above, the impugned order in my considered view does not suffer from any error or illegality calling for correction by this court. 18. Revision petition is, therefore, dismissed alongwith connected CMP No. 585/2012 as without any merit.