Oriental Insurance Company Ltd. vs Subash Chander Gupta

1 This petition of revision is directed against the order dated 19091998. The execution proceedings arise out of decree passed by the court of

SubJudge (Chief Judicial Magistrate), Jammu on 04041988. which reads as under :

The plaintiff's suit is hereby decreed to the effect that plaintiff's termination from service by defendant is illegal, null and void and order of

termination bearing No. 2184/73 dated 07111973 is hereby set aside being bad in law. Defendant is directed to reinstate plaintiff on the post of

Assistant Branch Secretary or its equivalent post which was held by plaintiff at the time of his illegal termination of service and pay to the plaintiff

the salary and other ancillary, benefits under rules from the date of termination of service till to date, as if his service had not been terminated.

Plaintiff shall also be entitled to the costs of suit.

The decree holder applied for exercution and prayed that the judgment debtor be directed to promote him on the basis of seniority, which

occurring to him, was only an ancillary benefit granted to him by the decree. The scope of the decree it appears has been a contentious issue

between the parties, which reached this court in the form of Civil Revision No. 21/92 filed by the decree holder, which was decided on 04091992

holding that:

A short controversy has arisen in the present case regarding interpretation of the judgment and decree passed by the court in favour of the

petitioner."" After reproducing decree, the petition was disposed of with the following observations:""As observed above, benefits of pay have

already been allowed to the petitioner. So far grant of bonus and leave encashment benefits are concerned, it is directed that the executing court

shall determine the same in accordance with rules as the petitioner is entitled to the same in terms of the decree. As regards the question of

promotion of the petitioner, order of his termination has been held to be illegal and he has been reinstated from the date he was ousted from service

ad considering to this fact petitioner is required to be considered by the respondents for promotion in accordance with rules and regulations on the

subject, which shall be done by the respondents within a period of three months, on time bound promotion basis. This revision petition is disposed

of with these observations and executing court shall proceed further in the light of these directions.."" So the decree was interpreted to mean (i) that

entitlement of bonus and leave encashment benefit will depend upon the rules regulating the conditions of service applicable to the decree holder;

and (ii) that the decree holder will be considered for promotion in accordance with the rules and regulations as applicable in his case. The question

whether the judgment debtor has been paid bonus and leave encashment benefits, is not subject matter of controversy in this petition.

The decree holder, it is admitted was considered for promotion by the Lower Management Service Committee in its meeting held on

06011997. But the Committee was of the opinion that he does not qualify for promotion to the cadre of Administrative Office under 1971

Promotional Exercise i.e. the Promotion Policy in force at the relevant time. This conclusion of the committee is based on the seniority position

assigned to him on the basis of guidelines for drawing seniority list of officers appearing in the note attached to letter dated 18081977, addressed

to the Managing Director. General Insurance Company of India, Mumbai. Since his date of appointment as Assistant Branch Secretary in the

erstwhile unit of Jupiter Insurance Company was 21 01 1971, he was assigned serial No. 414 in the/seniority list dated 20091977 of Assistant

(Administrative Officers.

The case of the petitioner was then considered on the basis of 1979 Promotional Exercise i.e. the promotion policy and guidelines. He did not

qualify for promotion under this policy also. The committee then considered his case under 1980 ""Promotional Exercise"" and found that he did not

qualify for promotion under that policy also. Finally, the committee concluded that his case for promotion to the cadre of Assistant Manager will

have to be considered alongwith others who were promoted to the cadre of Administrative Officers in the year 1990. This report of the Lower

Management Service Committee was presented before the executing court for recording satisfaction of the decree. However, the learned

SubJudge (Chief Judicial Magistrate), Jammu declined to accept and directed as under:

... The promotion case of the decree holder had to he considered as if decree holder's service had not been terminated and once judgment debtor

had found that the decree holder was eligible for consideration for promotion as A.O. in 1979 promotional exercise, he could not be denied such

promotion on the basis of average work conduct rating which never existed. Likewise it was not permissible to take into account the work conduct

reports of the decree holder for subsequent years while considering for promotion in 1979. Such course adopted by the judgment debtor and their

promotion committee militates against the spirit of decree and directions of the Hon'ble High Court. It is unfortunate that the mandate and the spirit

of decree sought to be executed has not been followed and every attempt has been made to frustrate the decree by adopting norms not

permissible in law. In my opinion, the decree under execution cannot be permitted to be defeated on adopting such criteria by the judgment debtor.

Obviously work record of the decree holder for future years could not have been taken into consideration for promotion in 1979. I am fortified in

my approach by ratio of ruling given in Civil Revision No. 92/96 decided on 07041988 by the Hon'ble High Court in case captioned J&K Bank

Vs. Jagdish Chander Gupta.

In view of the findings recorded hereinabove it is held that the decree holder was entitled to promotion as A.O. (Administrative Officer) in 1979

and he has been left out arbitrarily and on the basis of consideration of future work conduct record which was not permissible. The findings given

by the lower management service committee in its meeting held on 06011997 are nonest in law and whole exercise is futile. The same shall not be

taken into consideration and the decree holder shall be adjusted as Administrative Officer from the date his immediate senior colleague has been

promoted as A.O. in 1979. He shall be considered for further promotion to the cadre of A.M. and other higher cadres thereafter in accordance

with the terms of decree and directions of the Hon'ble High Court. One month's time is given to the judgment debtor to complete the exercise

failing which proceedings in terms of Order 21 Rule 32 CPC for enforcement of decree may be initiated.

This order of the executing court is called in question on the ground that neither the decree nor the High Court has directed the promotion of the

decree holder without following the procedure prescribed by the rules. The direction therefore, is against the mandate of the decree and contrary

to the order passed by this court in 04091992 in Civil Revision No. 21/92.

Mr. Bhan learned counsel appearing for the petitioner has vehemently argued that such a direction is beyond the scope of the decree and thus

hot sustainable. The contention of Mr. Raina, however, is that the decree holder is entitled to be considered for promotion on time bound basis as

per observation made in the order of this court dated 04091992 (supra).

The entire controversy, it appears has arisen by a misreading of this court order dated 04091992 by the executing court. The decree as it

stands, allowed, only salary and other ancillary benefits due under rules from the date of termination of his service. The use of expression Ancillary

Benefits does not entitle him to promotion without following the rules under which he had to be considered for promotion. The order of this court

dated 04091992 only directed his consideration ""in accordance with rules and regulations"" and no more.

Since promotion can never be an ancillary benefit flowing from his reinstatement, but it restores seniority to avoid further litigation, this court on

04091992 directed the judgment debtor to consider the decree holder for promotion ""in accordance with rules and regulations"" applicable to the

service of which, he is a member. By this observation, the court has neither amended nor modified the decree. The observations made are in the

nature of clarification and not a direction because one of the consequence of reinstatement is restoration of seniority of the decree holder. So on

the basis of seniority, he had even otherwise in the absence of such observation to be considered alongwith others similarly placed with him for

promotion. But consideration does not mean that he is to be promoted even when he does not qualify under the rules as applicable to him. Since

he was even otherwise entitled to be considered, if he came under the zone of consideration, this court only informed the judgment debtor to

discharge their obligation under the Promotion Policy. This obligation has been discharged by considering the decree holder for promotion in

accordance with rules and regulations. Whether he has been considered under a promotion policy which is absurd or unreasonable, is not the

concern of the Executing Court. It is for the decree holder to challenge the policy and the decision which furnishes him a fresh cause of action. The

Executing Court has acted illegally in settingaside the order passed under the rules by competent authority doing so. It has exercised jurisdiction not

vested in the executing court.

Moreover, it is a settled principle of service jurisprudance that no employee has a vested right to promotion though he has a right to be

considered. This has been held by the Apex Court in Sved Khalid Rizvi and Ors. Vs. Union of India and Ors. 1993 Supp (3) Supreme Court

Cases 575 which reads as under:

No employee has a right to promotion but he has only the right to be considered for promotion according to rules. Chances of promotion are not

conditions of service and are defeasible..

Again in Indian Administrative Service (SCS) Assn. Vs. Union of India. 1993 Supp (1) SCC 730, their Lordships held:

No one has to vested right to promotion or seniority but an officers interest in seniority can be acquired by working out the rules.

So, if the order of the executing court is allowed to stand, it would amount to rewriting service jurisprudence. The reliance placed by the learned

SubJudge on the observation of this court is also misplaced because the direction, if any was only to consider the decree holder for promotion in

accordance with the rules and not to promote him. But the executing court has construed these observations as if there was a direction to provide

him which is not the case and if could not be without amending the decree.

Thus, the order impugned is patently illegal being against the mandate of the decree and observation of this court (supra). The order impugned

in fact amounts to a direction to promote him, which tentamounts to amending the decree and granting the relief which was never claimed in the suit

in which the decree was passed.

In view, of the above, the order of the Executing Court being illegal and without jurisdiction is set aside. As the judgment debtor have

considered the decree holder for promotion under the rules and regulations of this court dated 0409.1992 passed in Civil Revision No. 21/92 has

been fully satisfied. Nothing more is required to be done to satisfy the decree which has been fully satisfied. The petition is dismissed accordingly.