Shakuntala Patani and Others vs State of Rajasthan and Others

J.K. Ranka, J.—Both these writ petitions have been preferred against the order dated 21/1/2011 passed by the Civil Judge, Jr. Division, Chirawa, Jhunjhunu and hence are being disposed of by a common order.

The brief facts which may be noticed in SB Civil Writ Petition No. 10455/2011 are that the petitioner was appointed as lecturer in Economics on 3/11/1972 in Indira Gandhi Balika Niketan Post Graduate College, Arawata, Jhunjhunu. Since she was not allowed to work from 25/09/1995, she filed an application before the Rajasthan Non Government Educational Tribunal. The Tribunal vide order Dt. 12.06.2000 allowed the application filed by the petitioner holding that the petitioner is entitled to work as a Lecturer in Economics and on joining of her duties, she would regularly mark presence in the attendance register. It is the contention of the counsel for the petitioner that the petitioner filed an execution petition before the executing court for executing the order Dt. 12.06.2000, the executing court vide order Dt. 16.01.2004 issued an attachment warrant of Rs. 25,87,909/- against the respondent institution. It has further been brought to the notice of the court that the respondent No. 3 i.e. Institution filed a writ petition before this Hon''ble Court challenging the order Dt. 12.06.2000 and this court passed an interim order in SB Civil Writ Petition No. 5661/2001 on 29/09/2005 directing the respondent institution to at least allow the petitioner to work in the institution subject to the final outcome of the writ petition and in the meanwhile, directed the petitioner not to pursue for execution of the order Dt. 12.06.2000. In compliance of the aforesaid order, the petitioner was allowed to join the post of Lecturer in Economics on 07/10/2005 subject to the decision of the writ petition and the proceedings of the execution application had been deferred due to interim order Dt. 29.09.2005 passed by this Court. Petitioner in the meantime retired on 31.08.2006 after attaining the age of superannuation. It has been further brought to the notice of this court that the writ petition filed by the respondent No. 3 y-institution was dismissed by this Court vide order Dt. 15.12.2008 and it is contended by counsel for the petitioner that in the light of writ petition having been dismissed on 15.12.2008 the earlier order of the executing court dated 16.01.2004 issuing attachment warrant of Rs. 25,87,909/- revived but in the impugned order the executing court not only failed to take notice of the earlier order of the executing court Dt. 16.01.2004 but in a casual and cursory manner gave simple direction for payment to the extent of only Rs. 2,15,127/-. The learned counsel contended that the impugned order is absolutely silent with regard to the payment for which the petitioner was entitled to receive which according to her totals to Rs. 49,62,650/- including salary and other allowances from July 1995 to November, 2003 of Rs. 25,87,909/- and an amount of Rs. 23,74,741/- calculated from December, 2003 to August, 2006 plus gratuity, leave salary and other arrears. It is further contended that during the last more than 20 years not a single pie has been paid by the institution or by the Government of Rajasthan and it is further contended that the institution is receiving grant in aid to the extent of 90% and therefore, the writ petition deserves to be allowed by directing the institution/Government of Rajasthan to pay entire amount for which the petitioner is entitled to receive. She relied on Seth G.L. Bihani S.D. Sr. Secondary School Vs. State of Rajasthan and Others, (2013) 4 CDR 2098 : (2014) 3 WLN 130 and S.R. Higher Secondary School Vs. Rajasthan Non Government Educational Institutions Tribunal and Others, (2003) 1 RLW 530 : (2002) 3 WLC 586 : (2002) 5 WLN 3 .

Per contra, counsel for the State Shri Manu Bhargava contended that the Government has no role to play in the present case and the executing court was not proper in directing the State Government to pay the amount of even Rs. 2,15,127/- as the same is required to be paid by the institution and then as per the procedure the institution only can claim for reimbursement of the same from the State Government. It is further contended by him that the decree is not executable beyond its term. He relied upon the judgments of the Hon''ble Apex Court in the case of Vedic Girls Senior Secondary School Arya Samaj Mandir, Jhajjar Vs. Smt. Rajwanti and Others, AIR 2007 SC 1779 : (2007) 4 JT 320 : (2007) 4 SCALE 233 : (2007) 5 SCC 97 : (2007) 4 SCR 808 : (2007) AIRSCW 2967 : (2007) 3 Supreme 10 , the case of Gurdev Singh Vs. Narain Singh, AIR 2008 SC 630 : (2008) 1 CTC 268 : (2008) 1 JT 69 : (2007) 13 SCALE 370 : (2007) 14 SCC 173 : (2007) 11 SCR 1093 and the judgment of this court in the case of State of Rajasthan and ors v. Jeev Raj Singh, RLW 1997 (3) Raj 1991.

No-one has put in appearance on behalf of the respondent-institution despite the name of the counsel having been shown in the cause list.

I have considered the arguments advanced by the counsel for the parties and carefully perused the material available on record, in my view, the impugned order passed by the Court below cannot be sustained, is required to be quashed and set aside for the reason that this court while dismissing the SB Civil Writ petition No. 5661/2001 filed by respondent No. 3 (institution) held as under:--

"The Tribunal was required to decide the application filed before it on merits as per the situation as on the date of his filing. Subsequent events could not be come basis for review of the judgment. In any case, the decision of the application before the Tribunal was to be made as per the events which unfolded till the filing of the application. If the respondent with a view to earning livelihood during the pendency of the application, joined services elsewhere, this could not adversely effect her right in claiming the direction to the petitioner to allow her joining and discharge duties on the post of Lecturer, grant of selection scale, arrears of salary and other benefits. The Tribunal allowed the application on 10.6.2000 and in spite of the respondent approaching the petitioner-institution on number of dates they did not allow her joining and when ultimately execution application was referred to the concerned Civil Court by the Tribunal, they approached this Court by way of second stay application. This Court passed a conditional order by staying the execution of the order of the Tribunal subject to the petitioner undertaking to allow the respondent to join the services and discharge of the duties. It is informed that the respondent has now upon attaining the age of superannuation on 8.8.2006 retired from service. So far however, grievance of the respondent is that her salary has not been paid in the correct pay scale and pay fixation has not been correctly made, all these questions would be determined by the Executing Court and not by this Court.

In the result, this writ petition is dismissed as having no merit. There shall be no order as to costs."

It is surprising to note that despite the order of this Court Dt. 15/12/2008 by which the writ petition of the institution was dismissed, the trial court in the impugned order has not considered any aspect of the matter with reference to the fixation, grade pay, payment of gratuity and pay scale which was left to be considered/decided by the executing court.

It would also be appropriate to quote the earlier order passed by the executing court on 16.01.2004 which reads as under:--

(SIC)

On perusal of the above, it transpires that on earlier occasion, the executing court issued warrant to the extent of Rs. 25,87,909/-. Though this order was initially stayed by this court in the above writ petition but when the writ petition ultimately stood dismissed the executing court was required to assess its earlier order but there is no finding of the Trial court on all these issues and for the aforesaid reason, order of trial court cannot be sustained. Accordingly, the writ petition is allowed. Impugned order of the Executing Court is quashed and set aside and the case is remanded back to the executing court to decide all the issues afresh in the light of its earlier order Dt. 16.01.2004 and the order Dt. 15.12.2008 passed by this court in SB Civil Writ Petition No. 5661/2001. The trial court/executing court shall be entitled to decide each and every aspect as raised by the parties and it would be the endeavour of the executing court to pass a comprehensive order in accordance with law. Since the petitioner has retired long back on 31.08.2006 and it is the grievance of the petitioner that nothing has been received by her during the last almost 20 years, therefore it would also be appropriate to direct the trial court to decide the matter finally within a period of three months from the date of receipt of certified copy of this order. Both the writ petitions filed by the petitioner as well as the State thus stand disposed of.