Jodh Singh vs State of Punjab and Another

V.S. Aggarwal, J.—By this common judgment, both the revision petitions bearing No. 2674 and 3009 of 1979 can conveniently be disposed of together.

The relevant facts are that the petitioners had filed a civil suit for declaration that they were entitled to be promoted above their juniors and the action of the State of Punjab for not considering them for promotion as Junior Engineers was illegal, null and void. They claimed that they were working as Work Mistri continuously for a period of more than 12 years each. According to the notification of the State of Punjab dated 30.10.1979 posts of Sectional Officers which had been redesignated as Junior Engineers were to be filled up by promotion from Road Inspectors and Work Mistries in the ratio of 50 : 50. The respondent State of Punjab passed an order in the year 1964 by which Work Mistries having 10 years experience were declared eligible for promotion as Sectional Officers. Another order was passed on 16.3.1983 by the State of Punjab that Road Inspectors with 12 years experience were eligible for the post of Sectional Officer. It was claimed that the Chief Engineer had issued an order dated 15.1.1985 vide which he promoted 12 Road Inspectors as Junior Engineers. In all, 40 Road Inspectors have been promoted whereas from the cadre of Work Mistries only eight have been promoted. The grievance was that the quota of Work Mistries for promotion to the rank of Junior Engineers has not been exhausted and the respondents are not considering the case of the petitioners for promotion as Junior Engineers. The said suit was contested. The respondent-State took up the plea that although the Government has decided to promote Road Inspectors and Work Mistries in the ratio of 50 : 50 but the petitioners did not fulfil the requisite qualifications for promotion to that post as such they were not considered for promotion. It was asserted that the departmental professional examination has to be passed before a person can claim promotion as Junior Engineer. Harcharan Singh was stated to have been promoted as Junior Engineer but subsequently reverted. His writ petition had been dismissed. It was admitted that eight Work Mistries have been promoted as Junior Engineers and that the posts shall be filled from the Work Mistries who fulfill the conditions of promotion.

The learned Trial Court had framed the issues and decreed the suit of the petitioners as prayed for. This State filed appeal and on 4.4.1989 the said appeal was dismissed by the learned District Judge, Patiala.

Subsequently an application was filed for execution by the petitioners complaining that the decree that has been passed has not been complied with. The respondent State of Punjab filed objections. It was contended that Jodh Singh and Swaran Singh, Work Mistries, were promoted to the post of Junior Engineers according to the directions of the Court. It was subject to the condition that they shall have to pass the qualifying examination within three years of their promotion as provided in Rule 8 of Punjab PWD B&R Sectional Officer (Engineering) Service Class III Rules, 1964, otherwise they would be reverted as Work Mistries. The name of Jaswant Singh was also considered but his name did not find mention in the consolidated seniority list of Work Mistries and thus he was not promoted. The name of Krishan Gopal was very much below in the seniority list and, therefore, he was not promoted.

The petitioners filed their reply to the objections. It was pleaded that Jodh Singh and Swaran Singh have been promoted but they have not been promoted from retrospective effect. Their claim was that they should have been promoted from retrospective date when the posts fell vacant in their quota. Plea was raised that 48 Road Inspectors were promoted. Gurbax Singh stands at Serial No. 12 and was promoted on 1.7.1982. Jaswant Singh stands at serial No. 11-A. Ram Lal, Babu Ram and Arjan Dev were also promoted though Jaswant Singh was declared senior to them. Even the Superintending Engineer, Patiala, on 30.11.1983 had sent the judgment of Subordinate Judge, Patiala. Jaswant Singh was declared senior as per judgment of Sh. Daljit Singh Chatha, Sub Judge 1st Class, Patiala, dated 30.9.1975. Plaintiff Krishan Gopal''s junior Ram Lal has since been promoted and thus it was claimed that they were entitled to be promoted retrospectively.

In execution, the Court framed issues and held that no date, month and year of the promotion of Road Inspectors beyond their quota had been given. The declaration has been granted that the petitioners were entitled to be considered for promotion in the order of their seniority against the quota reserved for them. No declaration was granted that it was to be retrospective. Accordingly, the objections were allowed and the execution application was dismissed. Aggrieved by the same, the present revision petitions have been filed.

On behalf of the respondents, it was urged that the executing Court could not go behind the decree that had been passed. It was bound by the decree and once the decree of the Civil Court did not award any relief retrospectively, the Trial Court was right in disallowing the same.

In principle, there is no controversy. The executing Court cannot go behind the decree. It has to obey the same. But in an appropriate case it can take into consideration the relevant factors to come to a rightful conclusion. It can look into the pleadings and the nature of the relief granted and thereupon pass the appropriate order. In the case of Bhavan Vaja and Others Vs. Solanki Hanuji Khodaji Mansang and Another, , a similar question came up for consideration. It was held that in order to find out the meaning, the Court can look into the pleadings and proceedings. Of course, it is subject to the well settled principle that the executing Court cannot go behind the decree. In paragraph 19 of the judgment, the Supreme Court held as under :-

"It is true that an executing Court cannot go behind the decree under execution. But that does not mean that it has no duty to find out the true effect of that decree. For construing a decree it can and in appropriate cases, it ought to take into consideration the pleadings as well as the proceedings leading upto the decree. In order to find out the meaning of the words employed in a decree the Court, often has to ascertain the circumstances under which those words came to be used. That is the plain duty of the executing Court and if that Court fails to discharge that duty it has plainly failed to exercise the jurisdiction vested in it. Evidently the execution Court in this case thought that its jurisdiction began and ended with merely looking at the decree as it was finally drafted. Despite the fact that the pleadings as well as the earlier judgments rendered by the Board as well as by the appellate Court had been placed before it, the execution Court does not appear to have considered those documents ...."

It is in this backdrop that facts of the present Else have to be appreciated and looked into. it is not in dispute that the State had appealed against the judgment and the decree of the Trial Court. The learned District Judge while disposing of the appeal and dismissing the same had further held as under :-

".... These promotion orders provide that in their case, their promotion was provisional subject to the condition that they would have to pass departmental examination within three years of their promotion. There is no reason as to why the case of the present plaintiffs-respondents cannot be considered for promotion on similar term on the basis of their seniority as Work Mistries and their promotion can also be done on similar grounds. It is evident that the defendants-appellants have not considered the case of the present plaintiffs-respondents for promotion as done in the case of the others, which action is nothing, but discriminatory in nature and violative of principles of natural justice. Accordingly there is no flaw in the finding of the Trial Court on issue No. 1 ....."

The judgment of the Trial Court had merged into that of the Appellate Court. It was specifically held that the case of the petitioners has to be considered on similar terms on the basis of their seniority as Work Mistries and their promotion can be done as has been done in others case. Therefore, it will be wholly incorrect and improper to restrict the promotion of the petitioners to the date of the judgment. It has necessarily to be from the date when their juniors were promoted subject to petitioners having the necessary qualification on that date.

While construing the judgment and decree, necessarily one cannot restrict to ambiguous words. Common sense cannot be left in the cold storage. Once the relief has been so couched, the executing Court can certainly see as to what exactly has been granted. Of course, in doing so it should not defeat or go behind the decree that has been passed. As already pointed out above, the petitioners had approached the Court and claimed that they were entitled to be promoted above their juniors and action of the State Government in not considering them for promotion as Junior Engineers was null and void. The learned District Judge while disposing of the appeal had also made a similar reference. The decree had been passed in this regard. Obviously, it meant that subject to their qualifications having been fulfilled, the petitioners were to be promoted from the date their junior has been so done. The Trial Court was, therefore, not right in this regard in dismissing the execution application.

For these reasons, the revision petitions are allowed and the impugned orders are set aside. It is directed that the respondents will reconsider the whole matter pertaining to the petitioners. It shall consider the case of the petitioners from the date their juniors were promoted. They shall make sure that while doing so the petitioners must fulfil the requisite qualifications for promotion to the post in accordance with the rules. If they fulfil the said qualifications on the subsequent date, they shall only be promoted from the said date. Subject to the aforesaid, both the revision petitions are disposed of.

Petitions disposed of.