M. Swamy vs A.P.S.R.T.C, Karimnagar

Heard Sri. P.V. Narayana Rao, learned Counsel for the petitioner and Smt A. Vijayanthi, learned Standing Counsel for the Respondent Corporation.

The matter arises out of an Execution Petition No.11 of 1992 filed by the decree-holder-plaintiff The same after contest was dismissed by orders dated 5-6-1996. Aggrieved against the same, the decree-holder-plaintiff has filed the above Revision Petition.

For the sake of convenience, the parties shall be referred to in this order as arrayed in the suit.

The plaintiff - a driver in the Defendant Corporation filed a suit O. S.No.351 of 1979 for declaration that the order dated 12-4-1979 removing the plaintiff from service is null and void. The suit was decreed by judgment and decree dated 21-8-1982. The decree passed in the suit is in the following terms :

" 1. That the order dated 12-4-1979 of the District Manager of Karimnagar Depot, Defendant - Corporation in File No.02/ 104(492)778, removing the plaintiff from the service of defendant-Corporation be and is hereby declared as null and void.

That the plaintiff be and hereby is entitled to be reinstated in the service of the defendant-Corporation as conductor with salary and other allowances payable to him.

That the parties shall bear their own costs."

Aggrieved against the said judgment and decree, the defendant corporation preferred an Appeal. The learned Addl. District Judge, Karimnagar dismissed the said Appeal AS.No.35 of 1982. But modified the judgment and decree of trial court as under :

That the appeal be and hereby is dismissed and that the Judgment and decree of lower Court be and is hereby modified as follows :

(i) That the suit of the plaintiff respondent be and hereby is decreed and that the order dated 12-4-1979 of the Depot Manager of the APSRTC appellant herein, in file No.02/104/492/78, Karimnagar removing the plaintiff -respondent from service of the defendant-appellant Corporation be and hereby is declared as null and void.

(ii) That the suit of the plaintiff respondent in other respects be and hereby is dismissed.

That there be no orders as to costs in this appeal."

Thereafter the plaintiff filed a W.P. No. 13434 of 1986 praying for a direction in the nature of Mandamus directing the defendant to implement the declaratory decree in O.S.No.351 of 1979 and to pay past and future salary, allowances and other benefits lo the plaintiff, the said writ petition was disposed of by orders dated 16-2-1987. It was held therein as under :

"...In this case, I have asked the APSRTC whether any circumstances exist justifying withholding of backwages. The APSRTC has not even filed a counter. I, therefore, hold that no circumstances exist justifying withholding of backwages. This is not a case where the APSRTC had conducted an inquiry in accordance with the proper procedure after the earlier order of termination had been held to be invalid by the civil Court. In the circumstances, I direct the workman to be paid his backwages on the basis of the civil court''s declaration".

From the above narration of facts and perusal of the decree and orders of Court, it is apparent that the order removing the plaintiff from service was declared void by Civil Court in Appeal A.S.No.35 of 1982 which modified the decree passed in the suit confining it to the extent of the declaration of the order of removal as void. The High Court in W.P.NO. 13434 of 1986 by orders dated 16-2-1987, while allowing the Writ Petition, directed payment of backwages on the basis of the Civil Court''s declaration.

Thereafter, the plaintiff filed WPMP Nos.17864 to 17866 ofl988inW.P.No.l3434 of 1986. The grievance of the plaintiff was that the defendant has not issued a posting order inspite of the orders in W.P.No-13434 of 1986 having become final with the result that the plaintiff is not working, but receiving salary. His request was for a direction to the defendants to give posting orders. By orders dated 4-10-1988, the Misc. Petitions were disposed of by a common order directing the defendants - Respondent Corporation to give posting orders within four weeks from the date of the order.

It is not in dispute that the plaintiff was given posting orders and was reinstated into service. The plaintiff had filed five EPs for realisation of various amounts on account of arrears of salary, T. A., DA etc. The result of the said E.P.s are as under :

(a) First E.P.No.15 of 1985 was filed for arrears of salary for the period 13-4-1979 to 16-10-1984. The amount claimed therein was realised.

(b) Second E.P.No.9 of 1987 was filed for arrears of salary for the period 17-10-1989 to 25-3-1987. The claim made therein was realised.

(c) Third E.P.No.4 of 1988 was filed for arrears of salary for the period 26-3-1987 to 3-3-1988. The claim made therein was realised vide orders dated 3-3-1988 made in E.P.No.7 of 1988 and E.P. was terminated.

(d) Fourth E.P.No.13 of 1988 was filed for salary and other monetary benefits. The claim made therein was realised and E.P. closed on 1-12-1989.

(e) Fifth E.P.No.37 of 1989 was filed for salary from April 1988 to September 1988 TA, DA Claim made therein was realised and E.P. closed on 1-12-1989.

The plaintiff, thereafter, filed the sixth E.P. praying for a direction to promote the plaintiff-decree-holder as Traffic Inspector - Gr. III on the ground that his immediate junior in the category of Conductor was promoted by giving seniority, that the order of the defendant-Corporation in Memo dated 10-1-1989 by which the plaintiff was appointed pursuant to orders of Court as fresh appointment and which resulted in break-in service is null and void and without jurisdiction and ultra vires the powers vested under Rule 27 of the Regulation and the same should not be taken cognizance of by the Court.

In the said E.P., a claim for payment of a sum of Rs.65,413.05 ps. was made towards salary on the ground that the plaintiff should have been promoted as Traffic Inspector - Gr. III and claimed the pay scales as allowable to Traffic Inspector from the date the junior was promoted.

The said E.P.No.11 of 1992 was dismissed by orders dated 5-6-1996. Aggrieved against the said orders of dismissal of E.P. No. 11 of 1992, the above Civil Revision Petition has been filed.

Sri P.V. Narayana Rao, learned Counsel for the petitioner contended that the plaintiff is entitled to the execution of the decree and for the reliefs as claimed in E.P. No. 11 of 1992. The suit filed by plaintiff for declaring the order of removal from service as void having been decreed, the plaintiff is entitled to promotion and revised scale of pay as applicable to the post of Traffic Inspector - Gr. III to which the plaintiff should have been promoted even before his junior was promoted.

Smt. A. Vijayanthi, learned Standing Counsel for the defendant-Respondent Corporation, however, contended that the relief of promotion and revised pay scale based thereon as claimed is wholly beyond the scope of the suit decreed by the Courts below and therefore the Lower Court was justified in law in dismissing the Execution Petition on that ground.

As already noticed, the decree in O.S.No.351 of 1979 was modified in A.S.No.35 of 1982. The decree as modified by the Appellate Court is limited to the extent of declaring the plaintiff''s removal from service as null and void. There is no decree in favour of the plaintiff either for backwages or any other consequential benefits. However, by orders passed in W.P. No. 13434 of 1986, the plaintiff was allowed backwages.

The question in the instant matter is whether the plaintiff is entitled to promotion and for consequential benefits like revised pay on the basis of the said promotion from the dale from which the junior to the plaintiff was promoted as Traffic Inspector - Gr. III by way of Execution Petition. It will be noticed straightaway that the said relief was neither prayed for nor granted in the suit O.S.No.351 of 1979. There has been no adjudication as to the right or entitlement of the plaintiff to be promoted consequent on the order of removal being set aside. The entitlement to promotion is thus outside the scope of the executing Court.

An Executing Court cannot be conferred the functions of adjudication of the dispute relating to the claim of promotion or revised pay-scales based on deemed promotion. Distinction between proceedings in a suit and execution proceedings based on the judgment and decree in the suit have to be kept in mind. The power of the executing court is only to implement the adjudication already made by a decree and not to adjudicate a disputed claim which requires adjudication for its enforcement in the form of decree. The Executing Court, after the decree has been passed is, however, competent to interpret the decree for the purpose of its implementation. It is well settled that the Executing Court cannot go behind the decree nor can it add to or subtract from the provisions of the decree. A decree-holder cannot, therefore put forward a claim in Execution Petition in respect of a matter which has not been adjudicated upon and in respect of which no decree has been passed in his favour.

The claim in the instant case in E.P.No.11 of 1992 is one for direction to promote the plaintiff as Traffic Inspector from the date when the plaintiff''s junior was promoted to the said post. The said claim is not one which was either adjudicated upon or decreed. The claim is one which needs to be adjudicated upon before the relief claimed can be granted to the plaintiff.

It is not one which can be granted by an Execution Petition in execution of a decree whereby only the order of removal of plaintiff from service was declared void.

The learned Principal District Munsif, Karimnagar therefore rightly dismissed the execution petition on the ground that the same was beyond the scope of the suit as decreed.

There are no merits in the above Civil Revision Petition and the same is accordingly dismissed with costs.