Himachal Pradesh High Court

Lekh Ram And Others vs State Of Himachal Pradesh And Another on 5 December, 2024

Author:
Tarlok Singh Chauhan

Bench:
Tarlok Singh Chauhan

Neutral Citation No. ( 2024:HHC:13402 )

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Execution Petition(T) No.79 of 2024.

Judgment reserved on: 28.11.2024.

Date of decision:05.12.2024.

Lekh Ram and others .....Petitioners.

Versus
State of Himachal Pradesh and another .....Respondents.

Coram

The Hon'ble Mr. Justice Tarlok Singh Chauhan, Acting Chief Justice.
The Hon'ble Mr. Justice Satyen Vaidya, Judge.

Whether approved for reporting?1 Yes
For the Petitioners : Mr. Dilip Sharma, Senior Advocate
with Mr. Manish Sharma,
Advocate.

For the Respondents : Mr. Anup Rattan, Advocate
General with Mr. Pranay Pratap
Singh, Additional Advocate
General.

Mr. R.D. Nazeem, Principal
Secretary (Food, Civil Supply &
Consumer Affairs) to the
Government of Himachal Pradesh
and Mr. R.K. Gautam, Director,
Industries, in person.
Whether the reporters of the local papers may be allowed to see the Judgment?Yes
Neutral Citation No. ( 2024:HHC:13402 )

Tarlok Singh Chauhan, Acting Chief Justice
By way of this execution petition, the petitioners/decree

holders have sought execution of order of the erstwhile Tribunal

dated 25.05.2017 passed in OA No.3337 of 2016, titled as
Lekh

Ram and others vs. State of H.P. & others
as upheld by this Court

vide judgment dated 03.08.2023 in CWP No.2004 of 2017 in case

titled as
Taj Mohammed & others vs. State of H.P. & others
and

further affirmed by the Hon'ble Supreme Court vide its order dated

04.12.2023 in SLP(C) No.25641-25642 of 2023.

2. While allowing the petition filed by the petitioners, the

Tribunal granted them the following reliefs:-

"17.
In the result, the original application succeeds and is
accordingly allowed with a direction to respondents No.1 and 2-
State/competent authority(s) to consider the respective cases of
the applicants for grant of seniority as Inspector Grade-l over and
above private respondents No.3 to 23 in the light of the law
laid
down by
the Hon'ble High Court in CWP(T) No.6785/2008,
Narender Singh Naik Versus State of Himahal Pradesh and
others, and LPA No.271 of 2011, State of Himachal Pradesh and
others Versus Narender Singh Naik, followed in CWP No.497 of
2013-J, Shri Chhavinder Kumar Shandil Versus State of H.P. and
others, and upheld by the Hon'ble Supreme Court in Petition(s) for
Special Leave to Appeal (C) No(s). 34038/2012, Sunder Singh
Versus State of H.P. & ors. and the connected matters, supra, and
count their entire service, initially on contract and subsequently
regularization, towards seniority alongwith consequential benefits,
such as further promotion to the post of Food & Supplies Officer
Neutral Citation No. ( 2024:HHC:13402 )

etc., within three months from the date of production of certified
copy(s) of this order by the applicants before the said authority(s)."

3. The aforesaid judgment was affirmed by this Court vide

its order dated 03.08.2023 wherein in para-25 (page No.50), it was

observed as under:-

"25. Therefore, as the foundation of the order passed by the
learned Tribunal, subject matter of these writ petitions, was the
judgment of this Court in Narender Singh Naik's case (supra),
which judgment itself was based on the Five Judge Bench
judgment of the Hon'ble Supreme Court in Direct Recruit's case
(supra), and as the learned Tribunal rightly held that the services
rendered by the original applicants on contract basis were liable to
be counted for the purpose of seniority and consequential benefits
after their regularization, as the initial appointment of the original
applicants on contract basis was after following the procedure
prescribed in the Recruitment & Promotion Rules, we do not find
any infirmity in the said findings and further as we do not find any
merit in the writ petitions, the same are dismissed by upholding
the order passed by the learned Tribunal. No order as to costs.

Pending miscellaneous applications, if any, stand disposed of."

4. Being aggrieved by the aforesaid judgment, the

respondents had filed SLP before the Hon'ble Supreme Court, which

came to be dismissed on 04.12.2023.

5. This execution petition was filed in March 2024 and the

respondents have now filed the compliance affidavit dated 26 th

October, 2024, claiming that the judgment in question, has been
Neutral Citation No. ( 2024:HHC:13402 )

complied with by placing on record a copy of the Notification dated

26.10.2024, which reads as under:

"Government of Himachal Pradesh
Department of Food, Civil Supplies & Consumer Affairs.

No. FDS-B(2)-5/2024-1 Dated:- Shimla-171002, the 26th
October, 2024.

NOTIFICATION

In compliance to the orders passed by the Hon'ble High Court
of Himachal Pradesh on 03-08-2023 in CWP No. 2004 of
2017 titled
-Taj Mohammad & others versus State of Himachal
Pradesh & others
a/w CWP No. 629/2018-titled
State of
Himachal Pradesh & others versus Lekh Ram & others
and
orders passed in Execution Petition (T) No. 79/2024-titled as

Lekh Ram versus State of Himachal Pradesh & another
on
24-06-2024, 30-07-2024, 27-08-2024, 03-10-2024 and 15-10-
2024, the Governor of Himachal Pradesh, on the
recommendations of the Departmental Promotion Committee
held on 23-10-2024 in the Himachal Pradesh Public Service
Commission, is pleased to order the promotion of the
following Inspector Grade-I, working in the Department of
Food Civil Supplies & Consumer Affairs to the post of Food
and Supplies Officer (Class-II, Non Gazetted) in the pay scale
of 10300-34800+5000 GP (PRE-REVISED), on regular basis,
with immediate effect:-

Sr.No Name of the official
1. Sh. Lek Ram
2. Ms. Anita Thakur
3. Sh. Sandeep Saklani
4. Sh. Suresh Kumar
5. Sh. Girish Chand
6. Ms. Lily Thakur
7. Sh. Anish Thakur
Neutral Citation No. ( 2024:HHC:13402 )

8. Sh. Arun Kumar
9. Sh. Surinder Singh
10. Sh. Rajeet Singh
11. Sh. Sunil Kumar
12. Sh. Naveen Kumar
13. Sh. Pankaj Sharma
14 Sh. Dhanveer Singh

2. The above promoted Food and Supplies

Officer will remain on probation for a period of two
years from the date of joining the promotional
post.

3. The above Officers shall be entitled to
exercise his/her option for fixation of pay under the
provision of FR. 22(I)a(1) within one month.

4. The posting order of the above promoted
Food and Supplies Officer will be issued
separately."

6. The respondent-department was asked to justify as to

how the decree-holders/petitioners were being promoted

prospectively with effect from 26.10.2024 when the erstwhile

Tribunal while allowing the Original Application filed by the

petitioners had directed the respondents to consider the cases of the

respective petitioners for grant of seniority as Inspector Grade-I over

and above private respondents No. 3 to 23 and had further directed

them to count their entire service, irrespective whether it was

rendered on contract basis and subsequently on regular basis,

towards seniority alongwith all consequential benefits, which
Neutral Citation No. ( 2024:HHC:13402 )

included promotions. However, the respondents were not in a

position to justify their action and accordingly this Court proceeded

to order to issue a notice of contempt against the Principal Secretary

(Food, Civil Supply & Consumer Affairs) to the Government of

Himachal Pradesh to show as to why he should not be punished and

prosecuted for deliberately and willfully misleading this Court and

thereby committing contempt of Court, in the earlier part of the day,

on 27.11.2024.

7. Later, the learned Advocate General appeared and

prayed for an adjournment on the ground that he wanted to cite

certain judgments to justify the action of the State. This Court

acceded to the request of the learned Advocate General only on the

condition that in case the contentions of the State are not accepted,

then the concerned Principal Secretary would be liable to pay the

costs quantified at Rs.1,00,000/- which would be paid by him from

his own pocket.

8. When the matter was taken up on 28.11.2024, the

learned Advocate General, at the outset, stated that he was ready

to abide by the terms of the order passed on 27.11.2024 and he

would argue the case and accordingly we proceeded to hear the

arguments.
Neutral Citation No. ( 2024:HHC:13402 )

9. It is vehemently argued by the learned Advocate

General that the action of the respondents is in accordance with law,

rules and instructions applicable which clearly provide that there is

nothing known as retrospective promotion and the promotions, if

any, can only be made after holding the DPC, which essentially

means, that the promotions have to be made from the prospective

effect.

10.
In support of his contention, the learned Advocate

General has
placed reliance upon

Union of India and others vs.

N.C. Murali and others
(2017) 13 SCC 575 wherein the Hon'ble

Supreme Court held that unless there is specific rule entitling the

applicants to receive promotions from the date of occurrence of

vacancy, right of promotion does not crystallise on the date of

occurrence of vacancy and promotion is to be extended on date it is

actually effected.

11. However, we find that the ratio of the aforesaid

judgment is not at all applicable to the facts of the instant case.
In

N.C. Murali
's case (supra), the facts before the Hon'ble Supreme

Court were that the respondents were employed as Geophysicists in

Geological Survey of India. The post of Assistant Geophysicists was

a Group B post and next grade in the said cadre was the post of

Geophysicists (Jr.) Group A. The promotion of Assistant
Neutral Citation No. ( 2024:HHC:13402 )

Geophysicists was by two modes i.e by direct recruitment and by

promotion through UPSC with ratio of 1:1. There were large number

of posts of Geophysicists (Jr.) lying vacant from 1984 till 1998

totalling 31 in number. Due to various reasons, no DPC could take

place for effecting the promotions in the Group A post. Subsequently,

the DPC met and promotions were effected with effect from 2001.

The respondents and various intervenors were considered and

promotion orders were issued.

12. However, before the aforesaid promotion could take

place, the respondents filed O.A. No. 119 of 2000 in the Central

Administrative Tribunal in January 2001 praying for direction to the

Ministry of Finance to revalidate and fill up the vacancies of the post

of Geophysicists and further to convert the direct recruits quota into

the DPC quota as one-time measure and fill the existing posts.

During the pendency of the O.A., DPC was convened on 30-10-

2001. The Tribunal decided the matter ultimately vide its order dated

13-11-2003. The Tribunal noticed the fact that DPC had been held.

The Tribunal, however, did not accept the prayer of the applicants

with regard to conversion of direct recruitment quota. However, the

Tribunal to meet the ends of justice directed that the applicants be

adjusted against the unfilled vacancies of respective years when

DPC was not held. The Tribunal directed pro forma promotion to the
Neutral Citation No. ( 2024:HHC:13402 )

Geophysicists according to the seniority and eligibility with

retrospective effect against the vacancies of the respective years

when they qualified for those posts.

13. It shall be apt to reproduce para-5 of the directions

issued by the Tribunal which reads as under:

"Therefore, with a view to protect their seniority, we direct
that pro forma promotion should be given to the
Geophysicists on their promotion, according to their
seniority and eligibility with retrospective effect, adjusting
them against the vacancies of the respective years when
they qualified for these posts. In order to protect their
consequential benefits in future promotions as per seniority
and eligibility, accruing to them on giving them such
retrospective seniority, we also direct the respondents to
reallocate them with notional promotions for respective
years when they would have got these promotions but for
DPC not being held, which was denied to them due to no
fault of theirs by not holding the DPCs for the respective
years. As regards one-time adjustment against the direct
recruitment quota, it would be unfair, since as per the
contentions of the applicants themselves, direct recruitment
as per the vacancies in the quota had also not taken place.
Therefore, such a step need not be taken. However, it would
be fair and just that against the DPC quota, the officers, who
had missed their promotions during the respective years
when it was due and when they were qualified and eligible
for it, it is directed to be given to them on notional basis.
They, on promotion, may be allocated to the respective
years of seniority through pro forma promotion of respective
Neutral Citation No. ( 2024:HHC:13402 )

years, which would have been due to them had the DPC
been held regularly for those respective years and in case
they were eligible and qualified and found fit for the same."

14. Aggrieved by the judgment passed by the Tribunal, the

Union of India filed a writ petition before the High Court which was,

however, dismissed constraining the Union of India to file an appeal

before the Hon'ble Supreme Court.

15. The ratio of the aforesaid judgment is not applicable to

the facts of the instant case as this Court being an executing Court

is legally bound to implement the order sought to be executed, more

particularly, when it has attained finality upto the Hon'ble Supreme

Court. Here, the petitioners-decree holders are only seeking the

execution of the judgment and not claiming any so-called

retrospective promotions but promotions strictly in accordance with

the order passed by the Tribunal as affirmed upto the Hon'ble

Supreme Court.

16. The learned Advocate General has then relied upon the

judgment of the Hon'ble Supreme Court in
Union of India and

others vs. Chaman Rana
(2018) 5 SCC 798 to argue that there

can be no retrospective promotions after such a belated passage of

time as this would virtually bring a tsunami in the service resulting in

administrative chaos quite apart from financial implications to the
Neutral Citation No. ( 2024:HHC:13402 )

government. In particular, he has relied upon para-16 of the

judgment which reads as under:

"16. In the facts and circumstances of the present case, any
direction to consider retrospective promotion of the
respondents at such a belated passage of time of over 17 to
20 years, would virtually bring a tsunami in the service
resulting in administrative chaos quite apart from the
financial implications for the Government. The order of the
High Court is therefore held to be unsustainable and is set
aside."

17. In order to appreciate this judgment, we would have to

look into the facts of the case. The Hon'ble Supreme Court in

Chaman Rana
's case (supra) was dealing with a common order

dated 05.05.2017 whereby the Union of India had been directed to

consider the case of the respondents for promotion with

retrospective effect from the date their juniors had been promoted

along with all consequential benefits. The respondents in the two

writ petitions were superseded in the years 1996 and 2000,

respectively. Both of them were subsequently promoted on

28.11.1997 and 16.06.2003 as Second-in-Command and

Commandant, respectively. Subsequently, both of them submitted

several representations for promotion from the date of supersession.

Orders rejecting the representations, along with reasons, were duly

communicated to them more than once.

After the pronouncement in
Neutral Citation No. ( 2024:HHC:13402 )

Sukhdev Singh v. Union of India (2013) 9 SCC 566, affirming
Dev

Dutt v. Union of India
(2008) 8 SCC 725, separate writ petitions were

filed by them on 25.09.2016. The common plea taken was that the

entry "good" in their Annual Confidential Reports (ACRs) for the

relevant years was an adverse remark in view of the benchmark of

"very good". Since the adverse entry had not been communicated to

them, it could not be taken into consideration requiring

reconsideration for promotion from the date of their supersession. It

was in this background that the Hon'ble Supreme Court made the

aforesaid observations.

18. How the ratio of this judgment would apply to the facts

of the instant case is beyond our comprehension as the learned

Advocate General has failed to take into consideration that this

Court is not dealing with the Original Application filed by the

petitioners, but is enforcing the decree, as has been passed by the

Tribunal, which as observed above, has been affirmed upto the

Hon'ble Supreme Court.

19. All the arguments addressed by the learned Advocate

General are in total ignorance of the well known principles of

restitution, which amongst others, clearly provides that the act of the

Court shall prejudice no-one. The principle of restitution is founded
Neutral Citation No. ( 2024:HHC:13402 )

on the ideal of doing complete justice at the end of litigation and

parties have to be placed in the same position but for the litigation

and interim order, if any, passed in the matter, no party can take

advantage of litigation. It has to disgorge the advantage gained due

to delay in case lis is lost. The interim order passed by the Court

merges into a final decision. The validity of an interim order passed

in favour of a party stands reversed in the event of a final order

going against the party successful at the interim stage.

20. As observed above, the rule is based upon the

principles of justice, equity and fair play. The Court has inherent

jurisdiction to order restitution so as to do complete justice,

especially, when it is executing the order as it stands. This is also on

the principle that a wrong order should not be perpetuated by

keeping it alive and respecting it. What attracts applicability of

restitution is not the act of the Court being wrongful or mistake or an

error committed by the Court; the test is whether, on account of an

act of the party persuading the Court to pass an order held at the

end as not sustainable, resulting in one party gaining an advantage

which it would not have otherwise earned, or the other party having

suffered an impoverishment, restitution has to be made.
Neutral Citation No. ( 2024:HHC:13402 )

21. Litigation cannot be permitted to be a productive

industry nor can litigation be reduced to gaming where there is an

element of chance in every case. If the concept of restitution is

excluded from application to interim orders, then the litigant would

stand to gain by swallowing the benefits yielding out of the interim

order. The word "restitution" in its etymological sense means

restoring to a party on the modification, variation or reversal of a

decree or order, what has been lost to him in execution of decree or

order of the Court or in direct consequence of a decree or order. In

law, the term "restitution" is used in three senses :

(i) return or restoration of some specific thing to its rightful
owner or status;

(ii) compensation for benefits derived from a wrong done to
another; and

(iii) compensation or reparation for the loss caused to
another.

22. The principle that an undeserved or unfair benefits

drawn by a party under the interim order of the Court cannot be

retained and must be restituted is well acknowledged by law.

Reference in this regard can be made to a judgment of the Hon'ble

Supreme Court in
Amarjeet Singh and others vs. Devi Ratan and

others
2010 (1) SCC 417. The facts before the Hon'ble Supreme

Court as reproduced in paras 2 to 7 of the judgment are as under:
Neutral Citation No. ( 2024:HHC:13402 )

"2. The facts and circumstances giving rise to these appeals
are that the appellants and respondents in these cases were
appointed as Excise Inspectors under the provisions of U.P.
Excise Service (Class-II) Rules, 1970 (hereinafter called as
"the Rules 1970"). The parties became eligible for
consideration for promotion to the post of Superintendent of
Excise under the said Rules, 1970. The criteria of promotion
for the post of Superintendent of Excise and for higher post
of Assistant Excise Commissioner (hereinafter called "AEC")
had been "merit" under the provisions of U.P. Assistant
Excise Commissioners Service Rules, 1992 (hereinafter
called as `the Rules 1992'). The said rules stood amended
w.e.f. 10.10.1994 and the criteria for promotion was changed
from `merit' to `seniority subject to rejection of unfit."

3.The Appellant Amarjeet Singh alongwith some other
Excise Inspectors filed writ petition No. 1113(SB) of 1994
before the Allahabad High Court challenging the selection
process for promotion under Rules 1992. The High Court
vide judgment and order dated 1.2.1995 held that the
vacancies which had come into existence prior to
10.10.1994 i.e. the date of amendment, be filled up as per
the unamended Rules i.e. on the basis of "merit" and not on
the basis of "seniority subject to rejection of unfit."

4. Being aggrieved, the State of U.P. preferred the Special
Leave Petition before this Court and this Court vide Order
dated 30.10.1995 passed an interim Order permitting the
State Authorities to make promotions as per 1994
amendment Rules but it was subject to the result of the
petition as this Court made it clear that if petition was
dismissed, the respondents would be reverted to the lower
post from which they would be promoted. In view of the said
Neutral Citation No. ( 2024:HHC:13402 )

interim order of this Court, 61 Excise Inspectors stood
promoted, subject to the final outcome of the Special Leave
Petition. This Court dismissed the said Special Leave
Petition vide Order dated 19.8.1999 in limine. However, the
State Authorities for the reasons best known to them, did not
revert the promoted officers and they continued to hold the
higher posts.

5. The Departmental Promotional Committee (hereinafter
called the DPC) meant for filling up the 42 vacancies, which
came into existance prior to 10.10.1994, met on 19.12.1998.

After scanning the service records and determining the inter
se merit of the candidates, the Committee came to the
conclusion that only 30 candidates were suitable for
promotion to the posts of AEC and they were to be promoted
as per the availability of yearwise vacancies. The
respondents, herein, were found unsuitable for promotion in
the said selection process. After completing the aforesaid
exercise, 12 vacancies for the post of AEC remained
unfilled. Therefore, the 12 vacancies were carried forward to
enable the State Authorities to fill up the same under the
amended Rules on a different criteria i.e. "Seniority subject
to rejection of unfit". Thus twelve officers/respondents were
promoted under the amended rules by the another DPC held
on 22.1.1999.

6. The State Government issued the Order dated 15.5.1999
reverting all Excise Inspectors promoted on 6.12.1995 under
the interim order of this Court and gave notional promotions
with retrospective effect to appellants as well as all the
reverted officers/respondents. As a consequence, a seniority
list dated 12.7.2000, was issued, wherein the appellants
were placed over and above the respondents.
Neutral Citation No. ( 2024:HHC:13402 )

7. Being aggrieved, the respondents approached the High
Court challenging the said seniority list dated 12.7.2000. The
High Court vide impugned judgment and order dated
11.4.2002 held that as the postings to both set of officers i.e.
those who had been promoted by the DPC dated
19.12.1998 and another DPC dated 22.1.1999 had been
made on the same day and had been given notional
promotion from one and the same date, their inter se
seniority was to be fixed as it existed in the feeding cadre of
Excise Inspectors and thus quashed the seniority list dated
12.7.2000 and further directed the State to prepare a fresh
seniority list placing the appellants below the respondents.
Hence these appeals."

23. In the context of these facts, the Hon'ble Supreme

Court observed as under:-

"16. In view of the fact that the respondents continued on a
higher post under the orders of this Court for years together
and even after dismissal of the petition filed by the State,
and the exercise for making promotions was not undertaken
by the State Authorities, the appellants should not suffer for
no fault of theirs. It has fairly been conceded by learned
counsel appearing for the respondents that had the exercise
of making promotions been undertaken immediately after the
order of this Court dated 19.8.1998, the appellants could
have been promoted much earlier and they could have been
senior to the respondents. Thus the question does arise as
to whether appellants should be asked to suffer for the
interim order passed by this Court in a case having no merits
at all.
Neutral Citation No. ( 2024:HHC:13402 )

17. No litigant can derive any benefit from mere pendency of
case in a Court of Law, as the interim order always merges
in the final order to be passed in the case and if the writ
petition is ultimately dismissed, the interim order stands
nullified automatically. A party cannot be allowed to take any
benefit of his own wrongs by getting interim order and
thereafter blame the Court. The fact that the writ is found,
ultimately, devoid of any merit, shows that a frivolous writ
petition had been filed. The maxim "Actus Curiae neminem
gravabit", which means that the act of the Court shall
prejudice no-one, becomes applicable in such a case. In
such a fact situation the Court is under an obligation to undo
the wrong done to a party by the act of the Court. Thus, any
undeserved or unfair advantage gained by a party invoking
the jurisdiction of the Court must be neutralised, as
institution of litigation cannot be permitted to confer any
advantage on a suitor from delayed action by the act of the
Court. (
Vide Shiv Shankar & Ors. Vs. Board of Directors,
Uttar Pradesh State Road Transport Corporation & Anr.
,
1995 Suppl.

(2) SCC 726; M/s.
GTC Industries Ltd. Vs.
Union of India & Ors.
, AIR 1998 SC 1566; and
Jaipur
Municipal Corporation Vs. C.L. Mishra
, (2005) 8 SCC 423).

18.
In
Ram Krishna Verma & Ors. Vs. State of U.P. & Ors.
,
AIR 1992 SC 1888 this Court examined the similar issue
while placing reliance upon its earlier judgment in
Grindlays
Bank Limited Vs. Income Tax Officer, Calcutta & Ors.
, AIR
1980 SC 656 and held that no person can suffer from the act
of the Court and in case an interim order has been passed
and petitioner takes advantage thereof and ultimately the
petition is found to be without any merit and is dismissed,
the interest of justice requires that any undeserved or unfair
Neutral Citation No. ( 2024:HHC:13402 )

advantage gained by a party invoking the jurisdiction of the
Court must be neutralized.

19.
In
Mahadeo Savlaram Sheke & Ors. Vs. Pune Municipal
Corporation & Anr.
, (1995) 3 SCC 33, this Court observed
that while granting the interim relief, the Court in exercise of
its discretionary power should also adopt the procedure of
calling upon the plaintiff to file a bond to the satisfaction of
the Court that in the event of his failing in the suit to obtain
the relief asked for in the plaint, he would adequately
compensate the defendant for the loss ensued due to the
order of injunction granted in favour of the plaintiff. Even
otherwise the Court while exercising its equity jurisdiction in
granting injunction is also competent to grant adequate
compensation to mitigate the damages caused to the
defendant by grant of injunction. The pecuniary award of
damages is consequential to the adjudication of the dispute
and the result therein is incidental to the determination of the
case by the Court. The Court can do so in exercise of its
inherent jurisdiction in doing ex debito justitiae mitigating the
damage suffered by the defendant by the act of the Court in
granting injunction restraining the defendant from
proceeding with the action complained of in the suit. Such a
procedure is necessary as a check on abuse of the process
of the Court and adequately compensate the damages or
injury suffered by the defendant by act of the Court at the
behest of the plaintiff.

20.
In
South Eastern Coalfields Ltd. Vs. State of M.P. & Ors.
,
AIR 2003 SC 4482, this Court examined this issue in detail
and held that no one shall suffer by an act of the Court. The
factor attracting applicability of restitution is not the act of the
court being wrongful or a mistake or error committed by the
Neutral Citation No. ( 2024:HHC:13402 )

court; the test is whether on account of an act of the party
persuading the court to pass an order held at the end as not
sustainable, has resulted in one party gaining an advantage
it would not have otherwise earned, or the other party has
suffered an impoverishment which it would not have suffered
but for the order of the court and the act of such party. There
is nothing wrong in the parties demanding being placed in
the same position in which they would have been had the
court not intervened by its interim order when at the end of
the proceedings the court pronounces its judicial verdict
which does not match with and countenance its own interim
verdict. The injury, if any, caused by the act of the court shall
be undone and the gain which the party would have earned
unless it was interdicted by the order of the court would be
restored to or conferred on the party by suitably
commanding the party liable to do so. Any opinion to the
contrary would lead to unjust if not disastrous
consequences.

21.........

22.Similarly in
Karnataka Rare Earth & Anr. Vs. Senior
Geologist, Department of Mines & Geology & Anr.
, (2004) 2
SCC 783, a similar view has been reiterated by this Court
observing that the party who succeeds ultimately is to be
placed in the same position in which they would have been if
the Court would not have passed an interim order."

24. It is precisely what is spoken in
Amarjeet Singh
's case

(supra) that is attracted to the facts of the present case. Here, the

Court is not deciding the lis but only executing the order of the

Tribunal and the said order has to be executed as it is.
Neutral Citation No. ( 2024:HHC:13402 )

25. It again needs to be reiterated that it is the petitioners,

who had approached the Tribunal by filing Original Application

which was duly allowed by the Tribunal. It is thereafter that the State

first approached this Court and obtained interim orders and after

having lost before this Court, approached the Hon'ble Supreme

Court. Even after, losing before the Hon'ble Supreme Court, the

State again approached this Court with a review petition, but took no

steps to hold DPC, ostensibly, because the State held the key and

was the sole master to decide about the convening of the DPC. But,

in this process, the State forgot the mandatory directions passed by the

Tribunal.

26. As held by the Hon'ble Supreme Court in
Amarjeet

Singh
's case (supra), the law permits promotion with retrospective

effect only in exceptional circumstances when there has been some

legal impediment in making the promotions, like an intervention by

the Court, as is the fact situation obtaining in the present case.

27. Therefore, the State is legally bound to execute the

order passed by the Tribunal as it is by granting promotions in terms

thereof, be it, even from the retrospective effect.
Neutral Citation No. ( 2024:HHC:13402 )

28. Accordingly, the execution petition is allowed and the

respondents/judgment-debtors are directed to promote the

petitioners from due date retrospectively strictly in terms of the order

dated 25.05.2017 passed in O.A. No. 3337 of 2016.

29. Since, the learned Advocate General has fairly stated

that the respondents herein have contested this execution petition

solely on the basis of the advice rendered by him, we deem it

appropriate not to impose costs.

30. Pending application(s), if any, also stands disposed of.

(Tarlok Singh Chauhan)
Acting Chief Justice

(Satyen Vaidya)
Judge
5th December, 2024.

(krt)