IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No. 705 of 2005 Decided on: September 8, 2008. State of H.P. through its Secretary (Revenue) to Govt. of H.P. Petitioner Vs. Hans Raj Respondent Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Petitioner : Mr. P.M. Negi, Dy. A.G. For the Respondent : M/s. A.K. Gupta and R.D. Kaundal, Advocates. Surjit Singh, Judge (oral) By means of this writ petition, State has challenged the legality of order dated 29th December, 2004 of the Learned H.P. State Administrative Tribunal, whereby Original Application No. 568 of 1992, filed by respondent Hans Raj has been allowed and it has been directed that the decree of Civil Court passed in favour of the respondent be complied with by the writ petitioner. 2. Relevant facts may be stated thus. Respondent was appointed as Patwari sometime in the year 1945 in the erstwhile State of Punjab. Later on, he was promoted as Kanungo in the year 1954 and then as Naib Tehsildar in the year 1962. On Whether reporters of the local papers may be allowed to see the judgment? …2… the re-organization of the erstwhile State of Punjab, he was allocated to Himachal Pradesh. In the year 1994, one Punu Ram, a Naib Tehsildar, Junior to the respondent was promoted. Promotion was denied to the respondent solely on the ground that he had not cleared all the papers of departmental examination, prescribed for Naib Tehsildars. It was alleged that Punu Ram had not passed any of the eight papers of departmental examination for Naib Tehsildar, but still he had been promoted, whereas the respondent had cleared six of the eight papers at the examination held by the Himachal State and one paper when he was still in the service of Punjab Government and in the respect of the 8th paper, he had been granted exemption. 3. Respondent filed a suit in the Court of Sub Judge, Nahan in the year 1981 seeking the relief that the writ petitioner be directed to appoint him as Tehsildar w.e.f. 27.9.1974, the date from which his junior Punu Ram had been so promoted and be also given all consequential benefits. In that suit, besides the State of Himachal Pradesh, writ petitioner, said Punu Ram, who was junior to the respondent and had been promoted as Tehsildar, was also impleaded as defendant. That suit was decreed. State appealed against that decree of Sub Judge Ist Class to the Court of Learned District Judge, Sirmour at Nahan. When the appeal was still pending, Administrative Tribunal Act came into force and the State of Himachal Pradesh constituted …3… its Administrative Tribunal. Resultantly, the appeal was transferred to the H.P. State Administrative Tribunal. 4. During the pendency of the appeal before the State Administrative Tribunal, respondent filed an affidavit submitting therewith certain documents which indicated that he had cleared one paper prescribed for the departmental examination of Naib Tehsildar, when he was still in the service of Punjab Government prior to the re-organization of the erstwhile State of Punjab. Learned Tribunal directed the writ petitioner, vide its order dated 16th July, 1991, to treat the said affidavit and the documents filed therewith as representation by the respondent and reserved liberty to the respondent to approach the Tribunal in case the representation was decided against him. As regards the appeal which was filed by the State, the Learned Tribunal observed as follows; “In view of this, the appeal does not survive for the time being and is disposed of accordingly with liberty reserved to the applicant to come to this Tribunal again”. Representation came to be decided by Financial Commissioner- cum-Secretary (Revenue). The same was dismissed with the observation that the suit that was filed by the respondent was barred by time. 5. Respondent felt aggrieved by the aforesaid order of rejection of his representation and filed fresh Original Application, i.e. O.A. No. 568 of 1992. He challenged the order of the Financial Commissioner-cum-Secretary (Revenue), …4… inter-alia, on the ground that the said F.C.-cum-Secretary did not have any authority to comment upon the judgment of the Civil Court. That O.A. has been decided by the Learned Tribunal in favour of the respondent and it has been directed that the Civil Court’s decree, i.e. the decree dated 7th August, 1985, having attained finality, be complied with. It is this order of the Tribunal which has been challenged through the present writ petition under Articles 226 and 227 of the Constitution of India by the State. 6. We have heard the Learned Deputy Advocate General as also the learned counsel representing the respondent. As is clear from a bare reading of the facts of the case, decree passed by Sub Judge Ist Class, Sirmour at Nahan had been challenged in appeal before the Learned District Judge. Later on, when Himachal Pradesh State Administrative Tribunal was constituted that appeal was transferred to the said Tribunal. Tribunal did not decide that appeal, on merits, nor did it either affirm or set-aside the decree of the Civil Court. When an affidavit was filed by the respondent before the Tribunal a very novel kind of order was passed that the appeal did not survive for the time being and was disposed of accordingly with liberty reserved to the applicant to come to the Tribunal again. Now, when the Tribunal observed that the appeal did not survive for the time being that itself meant that the appeal had not been finally disposed of and the correctness of the decree of the Civil Court of the first instance was still to be adjudged. Therefore, …5… when the respondent felt aggrieved by the order of rejection of his representation, instead of filing an O.A., he should have approached the Tribunal for the revival/restoration of the appeal filed against the decree of the Sub Judge by the State of H.P., even though the said appeal had been filed not by him but by the State. Tribunal’s view that the decree of the trial Court has attained finality is not correct because that decree had been challenged in appeal by the State and that appeal, as already noticed, had not been finally disposed of as neither the decree was set aside nor affirmed and also because the order passed by the Tribunal in the appeal was that it did not survive for the time being, on account of the affidavit filed by the respondent having been directed to be treated as representation. The State did not use the right to pursue the appeal and to seek the reversal of the decree of the Civil Court, on account of the affidavit having been ordered to be treated as representation. In the facts and circumstances of the case as also the reasons stated hereinabove, we are of the considered view that the order of the Tribunal, which has been challenged through the present writ petition, is not legally sustainable. The same is, therefore, set aside. The appeal which the State had filed against the decree of Sub Judge Ist Class, Nahan is hereby restored. The State Administrative Trinubal having been abolished, the said appeal is ordered to be sent back to the Learned District Judge, Nahan for disposal, according to law. Writ petition stands disposed of. …6… 7. We direct that the record of the appeal file shall be remitted to the Court of Learned District Judge within one month from today and within next two months Learned District Judge shall dispose of the appeal. ( R.B. Misra ), J. September 8, 2008(vs) ( Surjit Singh ), J.