CR No.6275 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.6275 of 2009 (O&M) Date of Decision: 15.02.2010 State of Punjab & Ors. ....Petitioners Vs. Kirat Singh ..Respondent Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.N.S.Virk, Addl.A.G., Punjab, for the petitioners. Mr.S.K.Sharma, Advocate, for the respondent. --- Vinod K.Sharma,J. (Oral) CM Nos.3550-51-CII of 2010 Allowed. Accompanying affidavit along with Annexures are taken on record. CR No.6275 of 2009 The State of Punjab has invoked the jurisdiction of this Court CR No.6275 of 2009 2 under Article 227 of the Constitution of India to challenge the order dated 25.07.2009 passed by the learned Executing Court. The plaintiff/decree holder/respondent filed a suit for declaration that the seniority list dated 1.4.1982 of the Forest Guards prepared by the Chief Conservator of Forest Punjab, whereby the seniority of the plaintiff/decree holder as Forest Guard was fixed at Sr.No.134 below his juniors who joined the service after 1.10.1956, was wrong, illegal, arbitrary, ultra vires, unconstitutional, mala fide, null and void and against the principles of natural justice, service rules and regulations governing the service conditions of the plaintiff/decree holder. Relief claimed was that the plaintiff/decree holder was entitled to correct seniority list to be fixed from the date of his joining in Punjab Forest Department as Forest Guard i.e. 1.10.1956, with all consequential benefits, right and privileges to the post, above his juniors i.e. confirmation and promotion as well as other benefits arising from the same. The suit was contested. However, learned trial court decreed the suit and issued mandatory injunction directing the State to fix the seniority of the plaintiff/ decree holder by taking into consideration the date of his joining i.e. 1.10.1956 and for granting him all due benefits after fixing seniority by way of promotion and other benefits. Decree passed in favour of the plaintiff/decree holder reads as under:- “ It is hereby declared that the suit of the plaintiff is CR No.6275 of 2009 3 decreed for declaration that seniority list dated 1.4.1982 of the Forest Guards prepared by the Chief Conservator Officer, whereby seniority of the plaintiff as per forest guard is fixed at Sr.No.134 who joined services on 1.10.1956 is wrong and null and void and a decree for mandatory injunction directing the defendants Nos. 1 to 3, to this seniority of the plaintiff taking into consideration the date of joining on 1.10.1956 and granting him all due benefits after fixing the seniority by way of promotion and other benefits which should have accrued to him, had his seniority been fixed taking into consideration of joining as 1.10.1956 with costs within three months.” In pursuance to the decree passed the judgment debtor passed the following order:- “ As per judgment of the Hon'ble court of Sub Judge Ist Class, Nabha, Camp Patiala dated 22.1.1990, Principal Chief Conservator of Forest Punjab vide his office order No.90 dated 26.6.1993 and amended office order No.358 dated 18.12.1994 fixed the seniority of Shri Kirat Singh, Forest Guard (Now Forester) at S.No.14 above Shri Sham Singh, forest Guard in the seniority list dated 1.4.1982. Principal Chief Conservator of Forest, Punjab has ordered that the case of Shri Kirat Singh, Forest Guard (now forester) may be considered for promotion as Forester/Deputy Ranger. CR No.6275 of 2009 4 The case of Shri Kirat Singh, Forest Guard (now Forester) was considered in the meeting of all Conservators of Forest, and Director, Zoological Park, Chhat Bir, at Chandigarth on 8.4.1994 for the promotion as Forester/Dy.Ranger. In Conservator of Forest,s' meeting dated 6.10.1976, the case of Shri Sham Singh, Forest Guard (Junior to Shri Kirat Singh, Forest Guard) was considered for the post of forester and found not fit for promotion as per criteria for promotion fixed in the meeting and Shri Chet Singh, Forest Guard who was also junior to Shri Kirat Singh, Forest Guard (now forester) was promoted w.e.f. 12.10.1976. Keeping in view of the above, Shri Kirat Singh, Forest Guard is promoted as Forester in the time scale of 120-5-150/6- 180/9-200/10-250 w.e.f. 12.10.1976. The seniority of Shri Kirat Singh, Forest Guard (now forester) is fixed at S.No.47 below Shri Mohinder Singh, Forester (who was promoted as Forester on 10.5.1976) in the seniority list of foresters as on 1.4.1992. The name of Shri Mohinder Singh, Forester has not come up for the promotion as Deputy Ranger, thus the name of Shri Kirat Singh, Forester (Junior to Shri Mohinder Singh, Forester) has not been considered for the promotion of Deputy Ranger.” CR No.6275 of 2009 5 In pursuance to the order passed revised seniority list as on 9.4.1982 was also circulated, wherein the name of the plaintiff/decree holder was shown at Sr.No.14-A by taking the date of his joining as 1.10.1956 by placing him below Chaman Lal, whose date of joining was 13.10.1953 and he was placed above Swaran Singh, whose date of joining was 23.3.1956. It may also be pertinent to notice here that the plaintiff/decree holder was merely under-matric with qualification of 9th standard pass. The plaintiff/decree holder thereafter filed an execution application claiming therein that under the decree seniority list was required to be prepared w.e.f. 1.10.1956 and due arrears of decree holder calculated accordingly. Learned executing court came to the conclusion that for adjudicating the controversy it was required to be seen as to who were the immediate juniors of the decree holder and for said purpose the seniority as on 1.10.1956 was required. Directions were, therefore, issued to the judgment debtors to prepare the seniority list as on 1.10.1956 as ordered by the learned executing court earlier so as to calculate the arrears payable to the decree holder. Learned Additional Advocate General, Punjab challenged the impugned order by referring to the decree passed in the case by the civil court wherein only directions were issued to prepare the seniority list to fix seniority of the decree holder/respondent by taking his date of joining as 1.10.1956. Decree nowhere mentions that the seniority list was required to CR No.6275 of 2009 6 be prepared w.e.f. 1.10.1956. As a matter of fact, even the prayer made in the suit was only for correction of seniority list by placing the plaintiff/respondent at appropriate place by taking his date of joining as 1.10.1956. The contention of the learned counsel for the State therefore, was that the decree stood complied with and therefore, the impugned order passed by the learned executing court being without jurisdiction is liable to be set aside, specially when it is settled law that the executing court cannot go behind the decree. Mr. S.K.Sharma, learned counsel appearing on behalf of the decree holder, however, vehemently contended that the decree has not been complied with and therefore, the learned executing court was right in directing the preparation of seniority list as on 1.10.1956. The contention of the learned counsel for the respondent was that the plaintiff/decree holder was an employee of Pepsu where seniority was to be fixed from the date of joining, whereas under the State Rules, seniority was required to be given from the date of confirmation. The contention of the learned counsel for decree holder was that he was required to be placed much above Punjab Cadre employees who though had joined the service earlier to the decree holder but confirmed later. This plea deserves to be noticed to be rejected. The decree passed as also prayer made by the decree holder was, for fixing his seniority by taking his date of joining as 1.10.1956. Decree stands complied with as the decree holder was shifted from seniority number 134 to 14-A and was also given further promotion from the date his juniors in the seniority list were so given. CR No.6275 of 2009 7 Learned counsel for the decree holder also referred to the fact that the appeal as well as regular second appeal filed by the State were dismissed. However, it is not understood as to what difference it would make if the appeal against the decree is dismissed. Decree passed by the civil court was upheld which stands duly implemented by the State. Learned counsel for the respondent thereafter contended that the order passed by the learned executing court is not required to be interfered with as the gradation list in the erstwhile State of Pepsu showed that the following persons were junior to the plaintiff/decree holder:- 1. Himat Singh (P) 2. Chhotta Ram (P) 3. Kasturi Lal (P) 4. Sohan Singh Dhillon (P) 5. Deep Chand (P) 6. Niranjan Singh (P) 7. Surjit Singh (P) 8. Inder Singh (P) 9. Krishan Kumar (P) 10. Kali Ram (P) 11. Jawahar Singh (P) 12. Swaran Singh (P) 13. Rattan Lal (P) 14. Laxmi Chand (P) CR No.6275 of 2009 8 The decree holder in the application has pleaded as under:- “ That names of Sarvshri Himat Singh (P), Chhotta Ram (P), Kasturi Lal (P), Sohan Singh Dhillon (P), Deep Chand (P), Niranjan Singh (P), Surjit Singh (P), Inder Singh (P), Krishan Kumar (P), Kali Ram (P), Jawahar Singh (P), Swaran Singh (P), Rattan Lal (P), Laxmi Chand (P) though vide office order No.50 dated 9.10.1956 Sarvshri Fateh Singh Banwari Lal, Harji Ram, Bansi Dhar, Ram Sarup, Jai Dial were appointed as Officiating Forest Guards and vide order No.87 dated 23.11.1956 Sh.Chhotta Ram and Om Parkash were adjusted as officiating Home Guard w.e.f. 19.10.1956 and 15.10.1956 respectively as Sarvshri Banwari Lal and Bansi Dhar Forest Guard who were appointed vide No.50 dated 9.10.1956 did not join since the post or Chhotta Ram and Om Parkash were retrenched as a Forester and Banwari Lal and Bansi Dhar did not join Sarvshri Chhotta Ram and Om Parkash could have been terminated.” Learned counsel for the decree holder contended that the names of above said persons do not find mention in the seniority list nor their subsequent promotions in the Punjab State as Foresters, Deputy Rangers, Rangers, Division Forest Conservators and Conservator Forests are shown. Learned counsel for the decree holder contended that the seniority list dated 1.4.1982 was quashed by the court and no seniority list CR No.6275 of 2009 9 has been prepared from the date of his joining. The contentions referred to above have no relevance. As already observed above the court has quashed the seniority position of the plaintiff/decree holder and mandatory injunction was issued directing the petitioners to place the decree holder/respondent in the seniority list by taking his date of joining as 1.10.1956 and that is what has been done. Learned counsel for the decree holder also contended that false affidavit has been filed, this contention again is neither here nor there. Learned counsel for the decree holder also vehemently contended that the decree holder was entitled to promotion as Forester w.e.f. 10.9.1957 when Chhota Ram was promoted. He claimed promotion as Deputy Ranger w.e.f. 1.12.1958 above Jai Chand and as Ranger w.e.f. 1.10.1962 above Gurdev Singh Brar and Om Parkash and Forest Ranger w.e.f. . 1.9.1956 and as P.F.S. Class II above Om Parkash and as District Forest Officer w.e.f. 1.9.1989 above Tarsem Singh and PFS Class I from 1.10.1991. This claim is only imagination of the decree holder which does not flow from the decree. Decree holder is claiming promotion even without realizing that the right is only to be considered for promotion. It is not understood how the person who is under-matric could claim promotion referred to above. There is another angle to this. The suit was filed by the plaintiff/decree holder on 5.6.1987 in which he only claimed the correction of seniority list circulated in 1982, whereas in execution decree holder is CR No.6275 of 2009 10 claiming promotion w.e.f. 1.12.1958 without challenging the promotion of his juniors or claiming any right therein till the date of filing of the suit. This relief prima facie could not have been granted even by the civil court in the suit, how can this be granted in execution of a decree, wherein mandatory injunction was issued for correcting the seniority list of 1982. It was also contended that till date no seniority list has been prepared. Reference was also made to the fact that Principal Conservator of Forests had given in writing that seniority list from 1.11.1956 to 1.11.1966 of the Foresters was not available in his office, whereas seniority list of Foresters was attached as Annexure R.5. Be that as it may, it is totally irrelevant matter and does not arise for consideration. Learned counsel for the decree holder also contended that earlier directions were issued for preparation of seniority list from 1.5.1956 and revision against the said order was dismissed as withdrawn and in the review filed by the decree holder directions were issued to continue with the execution. The contention of the learned counsel was that this court, therefore, cannot interfere with the impugned order. These contentions have been noticed as the counsel for the decree holder has raised these pleas. Question otherwise in the revision is, whether the learned executing court could go behind the decree. Reading of the decree coupled with the order passed would show that the decree of the civil court stands complied with. There is no directions in the decree-sheet to prepare the seniority list w.e.f. 1.10.1956 CR No.6275 of 2009 11 neither any such relief claimed in the suit . The impugned order, therefore, being beyond jurisdiction of the Executing Court cannot be sustained. Consequently, this revision is allowed. The impugned order is set aside. No costs. 15.02.2010 (Vinod K.Sharma) rp Judge