Civil Revision No. 6809 of 2005 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 6809 of 2005 Date of decision : 01.09.2009 Executive Engineer, PSEB and others ....Petitioners V/s Kuljit Singh ....Respondent Present: Mr. S.C. Pathela, Advocate for the petitioners. Mr. C.L. Verma, Advocate for the respondent. S.S. SARON J. The respondent/decree-holder Kuljit Singh filed a suit on 28.09.1990 seeking declaration to the effect that he is liable to be posted as Assistant as per his service record and the bye laws of Punjab State Electricity Board ('Board' - for short) with all emoluments and benefits available to the said post; besides, relief of mandatory injunction was claimed directing the Board to promote him to the post of Assistant. The respondent/decree-holder was working in the Board since 27.04.1965. At the time of joining service, he was a matriculate and his seniority was fixed at serial No. 1559. Later, he was promoted as Upper Division Clerk ('UDC'-for short) with effect from 25.09.1981. In fact he had been working as UDC on provisional basis since 21.04.1973 and his regular seniority as UDC was fixed at serial No. 4152. He had improved his educational qualification with the permission of the Board. On account of Civil Revision No. 6809 of 2005 2 the improvement in the educational qualification, it was claimed by the respondent that he was entitled to refixation of his seniority and promotion as Assistant. The respondent had also passed two departmental examination papers in the year 1972; besides he had cleared his second paper of the departmental examination in the year 1984. He asked the Board to admit his claim and to promote him as Assistant, which was declined. Accordingly, the suit was filed. The defendants (now petitioners) in the suit inter alia pleaded that the promotion of the respondent as UDC was on provisional basis subject to certain conditions, which he failed to fulfill. It was submitted that the respondent was appointed as UDC on provisional basis, by way of promotion against 20 % quota of un-qualified lower division clerks (LDCs) and certain restrictions were imposed on him. He was, therefore, required to pass the departmental examination. Since the respondent had not passed the departmental examination within the stipulated time, it was stated that he was not entitled to the reliefs as claimed. The learned Sub Judge IInd Class, Nawanshahar vide judgment and decree dated 12.05.1993 (Annexure P-1) decreed the suit of the plantiff (now respondent) to the extent that his service and seniority to the post of UDC shall be considered from 19.04.1973 when he was provisionally promoted to the said post and the petitioners were directed to consider him for promotion to the post of Assistant, keeping in view the fact of his having cleared the departmental examination; besides, merit and seniority to the post of UDC from 19.04.1973. The Board aggrieved against the judgment and decree dated 12.05.1993, (Annexure P-1) filed an appeal. The learned Additional District Judge, Jalandhar vide judgment dated 05.12.1996 Civil Revision No. 6809 of 2005 3 (Annexure P-2) dismissed the appeal with the modification that the date 19.04.1973 whereever wrongly typed in the judgment and decree sheet (Annexure P1) of the trial court shall be read as 21.04.1973. The Board filed RSA No. 1756 of 1998 in this Court which was dismissed on 19.11.1998 (Annexure P-3). The Board, thereafter, filed SLP (Civil) No. 3656 of 1999 and the same was dismissed by the Hon'ble Supreme Court on 22.03.1999. The respondent in the meanwhile on 4.6.1997 had filed an application seeking execution of the decree dated 12.05.1993 (Annexure P- 1) as modified vide judgment and decree dated 05.12.1996 (Annexure P-2). The Board, thereafter, passed an order dated 04.08.1999 (Annexure P-4), whereby, respondent was promoted as Area Assistant with effect from 06.08.1987 in compliance with the Supreme Court order dated 22.03.1999 because officials junior to him who had passed the departmental accounts examination alongwith him in the Session 6 of 87 had been promoted vide office order No. 256 dated 06.08.1987. The respondent claimed that the petitioners/judgment debtors had not given him his arrears and thereby violated the decrees. The learned Executing Court in pursuance of its impugned order dated 14.9.2005 held that the respondent/decree holder is entitled to all emoluments attached to the post, for which he was granted promotion from 1973 and then as Mandal Superintendent. It was held that wages are for full promotion since the person is entitled to all the emoluments and benefits available to the said post and there was no need to file a separate suit for emoluments and arrears. It was held that once the promotion is given the arrears are to be given to the decree-holder. Accordingly, directions were given to the judgment debtor to pay all the emoluments and arrears of pay and other benefits available to the post from Civil Revision No. 6809 of 2005 4 which he was promoted, as per the decree passed by the Court. The Board aggrieved against the order dated 14.09.2005 passed by the learned Civil Judge (Sr. Division), Nawanshahr has filed the present petition. Mr. S.C. Pathela, Advocate appearing for the Board had submitted that the Executing Court has given a direction to the petitioners to pay all emoluments and has granted the arrears and emoluments for the promoted higher post, even though the respondent had not been granted the said relief in terms of the decree of which execution is sought. It is submitted that the Executing Court has given a direction for granting the relief which was not payable and has gone behind the decree. In response, Mr. C.L. Verma, Advocate appearing for the respondent/decree-holder has contended that the respondent/decree-holder had specifically prayed for being posted as Assistant as per service record and bye laws of the Board with all emoluments and benefits available to the said post. Therefore, it is submitted that the respondent/decree-holder is entitled to all benefits, which have rightly been given. He has also submitted that a similarly situated co-employee namely Inderjit Singh in the same post who was given the same promotion was granted all emoluments. Therefore, the respondent is also entitled to the emoluments in support of his contention learned counsel cites :- (1) Ronda Narapa Reddy Vs. Ronda Suryanarayana Reddy 2005(1) RCR(Civil) 204 (A.P.) (2) R.N. Aggarwal Vs. Punjab State Electricity Board 2004(3) RSJ 593 (P&H). (3) Sudesh Kumari Vs. State of Punjab and another 2004(3) RSJ 597 (P&H) (4) State of Haryana Vs. Bani Singh Yadav 2005(1) RSJ 607 (D.B.) (P&H) (5) Vijay Kumar Verma Vs. State of Haryana 2002(3) RSJ 694 (D.B.) (P&H) (6) Balbir Singh Dalal Vs. State of Haryana and another 2002(3) RSJ 530(D.B.) (P&H). Civil Revision No. 6809 of 2005 5 I have given my thoughtful consideration to the contentions of the learned counsel appearing for the respective parties and gone through the record. In order to appreciate the contentions of the learned counsel appearing for the parties, the decree the execution of which has been sought may be noticed. The same reads as follows:- “ This suit coming on this 12th day of May, 1993, before me (Sh. B.S. Sandhu, PCS, Sub Judge IInd Class, Nawan Shahr) for final disposal in the presence of Shri P.S. Kahlon, counsel for plantiff & Sh. A.S. Syan, counsel for defendants. It is ordered that the suit of the plaintiff is decreed with cost, to the extent that his service and seniority to the post of UDC shall be considered from 19.4.1973, when he was provisionally promoted to this post and the defendants are directed to consider him for promotion to the post of Assistant keeping in view his having cleared the departmental examination, merit and seniority to the post of UDC from 19.4.1973.” (emphasis added). The said decree has been modified by the learned Additional District Judge, Jalandhar on 05.12.1996 (Annexure P-2) and it was ordered that the date 19.04.1973, wherever, wrongly typed in the judgment and decree sheet (Annexure P1) of the trial Court it shall be read as 21.04.1973. Civil Revision No. 6809 of 2005 6 Therefore, in terms of the said decrees, the suit of the plaintiff has been decreed with costs to the extent that his service and seniority to the post of UDC shall be considered from 21.04.1973 when he was provisionally promoted to the said post. Besides the defendants (now petitioners) were directed to consider him for promotion to the post of Assistant keeping in view his having cleared the departmental examination, merit and seniority to the post of UDC from 21.04.1973. After the passing of the judgment and decree dated 05.12.1996 by the learned Additional District Jalandhar, RSA No. 1756 of 1998 was filed in this Court which was dismissed on 19.11.1998. Thereafter SLP (Civil) No. 3656 of 1999 was dismissed by the Hon'ble Supreme Court on 22.03.1999. In consequence of the dismissal of the SLP, the Board vide order dated 04.08.1999 (Annexure P-4) promoted the petitioner as Area Assistant with effect from 06.08.1987 in compliance with the Supreme Court order dated 22.03.1999 because officials junior to him who had passed the departmental accounts examination alongwith him in the Session 6 of 87 had been promoted vide office order No. 256 dated 06.08.1987. It may be noticed that the decree that has been passed in favour of the respondent did not provide for payment of arrears or consequential benefits. The contention of the learned counsel for the respondent that the suit had been filed with the prayer which is to the effect that plantiff (now respondent-decree-holder) is legally entitled to all emoluments, arrears of pay and other benefits to the said post is not tenable as the decree that has been passed has limited the claim of the plantiff to the extent that his service and seniority to the post of UDC is to be considered from 21.04.1973, when he was provisionally promoted to the said post; besides the defendants were directed to consider him for promotion to the post of Assistant, keeping in Civil Revision No. 6809 of 2005 7 view his having cleared the departmental examination, besides, merit and seniority to the post of UDC from 21.04.1973. Therefore, the relief of payment of emoluments and benefits is not to be given and cannot be extended to the respondent in proceedings for execution of the decree. In Gurdev Singh Vs. Narain Singh, 2008(1) RCR (Civil) 125 (SC) the suit of the plantiff in the said case was decreed for permanent injunction whereby defendants were restrained from planting trees on the land which was subject matter of the suit. In execution, the Executing Court passed an order to the effect that the court has to see the spirit of the decree which was under execution and that the plain meaning of the decree was that there should be no tree within two karams on either side of the common boundary of the parties and if it is there, the Executing Court can very well order its removal in order to give effect to the spirit of the decree. It was held by the Supreme Court that the Executing Court cannot go behind the decree and as the decree did not clothe the decree holder to pray for execution of the decree by way of removal of the tress, the same could not have been directed by the learned Executing Court in the name of construing the spirit of the decree under execution. In the present case the decree that has been passed has limited the relief to the extent that the service and seniority of the respondent to the post of UDC is to be considered from 21.04.1973 when he was provisionally promoted to the post; besides, the defendants were directed to consider him for promotion to the post of Assistant, keeping in view his having cleared the departmental examination, as also, merit and seniority to the post of UDC from 21.04.1973. Therefore, the decree cannot be construed to mean that the respondent is entitled to other claims like Civil Revision No. 6809 of 2005 8 emoluments as well. Insofar as the judgments referred to by the learned counsel for the respondent are concerned, it may be noticed that the same are in respect of the claim and grant of reliefs which were claimed in exercise of the original or appellate jurisdiction of the Court and not in execution proceedings. In Ronda Narapa Reddy vs. Ronda Suryanarayana Reddy (Supra) the Hon'ble Andhra Pradesh High Court held that the Court may grant relief which was not prayed for in the plaint on ground of equity and while granting equitable relief, technicalities should not defeat the substantial justice to be done in between the parties. There is no dispute to the said proposition. However, the said case related to a second appeal which was pending before the High Court. An appeal as is well-known is a continuation of the original suit. Therefore, in the exercise of original or appellate jurisdiction of the Court the relief of consquential benefits can be granted. In R.N. Aggarwal vs. Punjab State Electricity Board (Supra) the petitioner therein was not promoted at his rightful place when he was entitled to and became eligible in accordance with the Rules. It was held that he could not be allowed to suffer on account of any arbitrary action, whims and fancies of the executive authorities and that he could not be deprived of the monetary benefits when his claim for retrospective promotion was found to be justified in law. It may be noticed that the said case was an order passed in exercise of the original writ jurisdiction of this Court and not in an execution proceedings. In Sudesh Kumari vs. State of Punjab and another (Supra) is a case which relates to appointment of the petitioner therein on compassionate grounds to the post of a Clerk even though she was eligible for appointment to the post of Assistant. The said post of a Clerk was accepted by the petitioner therein due to her family Civil Revision No. 6809 of 2005 9 circumstances as her father who was the sole bread earner had died. The claim of the petitioner for reconsideration to the post of Assistant being at a belated stage was declined. The said judgment is inapplicable to the facts of the present case. In State of Haryana vs. Bani Singh Yadav (Supra) it was held by a Division Bench of this Court that the rule of no work no pay is ordinarily applicable to a case in which the employee voluntarily abstains from work and not to a case where he was prevented from doing work by a positive act or omission of the employer. There is no dispute to the said proposition. However, the said observations were made by this Court in a Letters Patent Appeal and this Court while ordering promotion retrospectively ordered the payment of arrears holding that the Government cannot take advantage of its own wrong by first not giving promotion to the petitioner therein by taking into consideration the service rendered by him in the Army and then denying him pay and allowance from the deemed date of promotion. The case did not relate to execution of the decree but in the exercise of Letters Patent jurisdiction of this Court. In Vijay Kumar Verms vs. State of Haryana (Supra) this Court granted arrears where the petitioner therein had been allowed the benefit of notional pay fixation and seniority from the date when his junior was promoted. It was held that it was not the fault of the petitioner but the fault squarely fell on the respondent- deparment for not promoting the petitioner and not taking work from him on the senior post to which he was promoted. The said case also relates to the grant of relief in exercise of the original writ jurisdiction of this Court. In Balbir Singh Dalal vs. State of Haryana and another (Supra) a Division Bench of this Court held that once a person is appointed to hold full charge of the duties of a higher post, even in addition to duties of his own post, he Civil Revision No. 6809 of 2005 10 has to be allowed full pay admissible to him as if he was appointed to officiate in the higher post. The said order was passed in a civil writ petition in exercise of original jurisdiction of this Court and not in a case of execution. None of the judgments relate to execution of a decree. In the present case, it is the execution of the decree which is sought. The ratio of the judgments referred to by the learned counsel for the respondent would be applicable where in the original proceedings, relief has been granted or to put in other words the consequential benefits have been ordered to be paid notwithstanding that there was no prayer in the plaint to that effect. Once a decree has been passed which has been upheld, the Court is not to go behind the decree and grant a relief, which is not provided for in the decree. The respondent having not been held entitled to claim any consequential relief of emoluments with retrospective effect cannot seek these in the execution of the decree in his case. The contention of the learned counsel for the respondent that Injerjit Singh , a co-employee of the respondent has been granted arrears of pay with effect from the date he was promoted as Assistant is not to be gone into the execution proceedings. Merely because a co-employee has been granted relief, the petitioner cannot claim the same and that too in execution of a decree, where such a relief has not been granted in the decree of which execution is sought. In view of the above, the Civil Revision petition is allowed and the impugned order of the Executing Court dated 14.09.2005 is set-aside. There shall, however, be no order to costs. 01.09.2009 (S.S. Saron) Ajay/amit Judge