Ramjee Dass Sharma And Ors vs Union Of India And Ors

        IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA




                                                                    .
                                        Execution Petition No.125 of 2019 with





                                       CMP No. 9375 of 2021 in CMP(M) No. 96
                                     of 2017 in Review Petition No. 71 of 2017





                                                 Date of Decision: 6.10.2023
    _____________________________________________________________________
                      1. Execution Petition No.125 of 2019

    Ramjee Dass Sharma and Ors.





                                                                      .........Petitioners
                                        Versus
    Union of India and Ors.
                                                                     .......Respondents


                           2.  CMP No. 9375 of 2021 in
                              CMP(M) No. 96 of 2017 in
                            Review Petition No. 71 of 2017

    Union of India and Ors.                                          .........Petitioners


                                        Versus
    Ramjee Dass & Ors.                                              ........Respondents




    Coram
    Hon'ble Mr. Justice Sandeep Sharma, Judge.
    Whether approved for reporting?





    For the petitioners:        Mr. Surinder     Saklani,       Advocate,        for     the
                                petitioners





    For the Respondents: Mr. Balram Sharma, Deputy Solicitor General of
                         India.
    ___________________________________________________________________________
    Sandeep Sharma, J. (Oral)

By way of instant execution petition, prayer has been made by .

the petitioners for execution of judgment dated 5.5.2016, passed by the coordinate Bench of this Court in CWP No. 8799 of 2011, titled Ramjee Dass Sharma and Ors v. Union of India and Ors., whereby though respondents were directed to re-draw the seniority list keeping in view the seniority of the petitioners, i.e. the date on which, they would have otherwise been promoted had the meeting of DPC been conducted in the year, 2004, but interestingly, on the one pretext or the other, aforesaid direction issued by this Court never came to be complied with.

Respondents neither implemented the mandate contained in the judgment sought to be executed nor laid challenge to the same in the superior court, as a result thereof, same has attained finality.

2. Record reveals that though LPA was filed by the respondents against the aforesaid judgment, but same was withdrawn. This Court finds from the record that as many as four contempt petitions bearing COPC Nos.

25 of 2017, 31 of 2018, 194 of 2018 and 77 of 2019 came to be filed, but in all the contempt petitions, assurance came to be given to the court that mandate contained in the judgment shall be complied with. In COPC No. 31 of 2018, Mr. Shekhar Chander Sharma, Area Organizer, MTC, SSB Shimla, made a statement before the court that direction contained in ::: Downloaded on - 12/10/2023 20:35:15 :::CIS 3 judgment dated 5.5.2016, passed in CWP No. 8799 of 2011, titled Ramjee .

Dass Sharma and Ors. v. Union of India and others, shall positively be implemented within six weeks, subject to the outcome of the order passed in Review Petition No. 71 of 2017, which came to be filed after an inordinate delay of one year. It may be noticed that review petition as detailed herein was barred by limitation, but before application under Section 5 of the Limitation Act could be decided, same was dismissed in default for want of prosecution. After four years of passing of the order, thereby dismissing the petition for want of prosecution, respondent filed an application under Order 9 Rule 4 CPC, which is still pending adjudication. Since no plausible explanation ever came to be rendered on record qua the inordinate delay in filing the application under Order 9 Rule 4 CPC, praying therein to set-

aside order of non-prosecution, passed in Review Petition No. 71 of 2017, this court dismissed the afore application. In view of afore subsequent developments, judgment sought to be executed has attained finality. Vide order dated 28.6.2019 passed in COPC No. 77 of 2019, again this court directed the respondents to comply with the mandate contained in the judgment dated 5.5.2016, passed in the writ petition. Most importantly, in the aforesaid judgment, this Court clarified that review petition having been filed by the respondent herein already stands dismissed on account of non-

prosecution and as such, there was no occasion for the learned Additional .

Registrar Judicial to grant further time to take steps for the service of unserved respondents, but yet respondents continued to pursue those proceedings by way of filing one application or the other by taking steps for the unserved respondents.

3. Pursuant to aforesaid order dated 28.7.2019, passed in COPC No. 77 of 2019, respondent filed compliance report Annexure E-12, stating therein that vide order dated 23.7.2019, mandate contained in the judgment sought to be executed stands duly complied with.

4. Mr. Surinder Saklani, Advocate, appearing for the petitioners while making this court peruse order dated 23.7.2019, passed in purported compliance of the mandate contained in the judgment sought to be executed vis-à-vis direction contained in the judgment sought to be executed vehemently argued that petitioners instead of complying with the mandate contained in the judgment sought to be executed has again attempted to hoodwink the court by twisting the facts. He further submitted that bare perusal of order dated 23.7.2019, clearly reveals that an attempt has been made by the department to reopen the entire case which otherwise stands finally decided.

5. Per contra, Mr. Balram Sharma, learned Deputy Solicitor .

General of India, appearing for Union of India, while referring to order dated 23.7.2019, vehemently argued that mandate contained in the judgment sought to be executed stands duly complied with and as such, nothing remains to be adjudicated in the instant proceedings. Mr. Balram Sharma, states that since in terms of mandate contained in the judgment alleged to have been violated, detailed order dated 23.7.2019, has been passed, thereby giving reasons for not considering the case of the petitioner, present petition deserves outright rejection. While placing reliance upon the judgment passed by the Hon'ble Apex Court in J.S. Parihar v. Ganpat Duggar and Ors, AIR 1997 SC 113 and 1996 6 SCC 291 and Shri Purander Sharma v. State of Himachal Pradesh and another, passed by the Division Bench of this Court in Execution Petition No. 22 of 2018 on 12.11.2021, Mr. Balram, made serious attempt to persuade this Court to agree with his contention that appropriate remedy, if any, left for the petitioners at this stage is to lay the challenge to order dated 23.7.2019, by way of substantive writ or other appropriate remedies. He stated that with the passing of order dated 23.7.2019, fresh cause of action, if any, has accrued to the petitioners and as such, they are entitled to file appropriate ::: Downloaded on - 12/10/2023 20:35:15 :::CIS 6 proceedings before the appropriate court of law for redressal of their .

grievance, if any.

6. Having heard learned counsel for the parties and perused the material available on record, especially order dated 23.7.2019, passed in purported compliance of the mandate contained in the judgment alleged to have been violated, this Court is persuaded to agree with Mr. Surinder Saklani, learned counsel for the petitioners that mandate contained in the judgment sought to be executed has not been complied with, rather authority concerned while passing order dated 23.7.2019, has attempted to prove that judgment sought to be executed is bad in law and as such, cannot be given effect to. Though learned Deputy Solicitor General of India, vehemently argued that mandate contained in the judgment sought to be executed stands duly complied with on account of passing of order dated 23.7.2019, but such submission of him deserves outright rejection for the reason that this court while passing judgment sought to be executed gave positive direction to the respondents to re-draw the seniority list keeping in view the seniority of the petitioners taking into consideration the date on which they would have been otherwise promoted, had the meeting of DPC been conducted in the year, 2004.

7. Precisely, the grouse of the petitioners as was raised in the .

CWP No. 8799 of 2011 was that though they had become entitled for promotion to the post of Assistant Commandant w.e.f. 2004, but department failed to convene DPC in that relevant year for promotion, as a result thereof, great prejudice has been caused to the petitioners.

8. Having taken note of the pleadings adduced on record by the respective parties in the aforesaid writ petition, coordinate Bench of this Court arrived at a definite conclusion that respondents fell in grave error by not conducting DPC for the promotion of the petitioners in the year, 2004, when actually they had become eligible to be promoted to the post of Assistant Commandant. In the aforesaid background, this Court directed the respondents to re-draw the seniority list keeping in view the seniority of the petitioners taking into consideration the date on which petitioners would have been otherwise promoted had the department convened meeting of DPC in the year, 2004. Interestingly, now Union of India/respondent by way of passing of order dated 23.7.2019, though has nowhere made an attempt to redraw the seniority list, but has categorically observed that since petitioners were not eligible to be promoted in the year, 2004, there is no question of re-drawing the seniority on the basis of DPC, if convened in the year, 2004. As has been observed herein above, ::: Downloaded on - 12/10/2023 20:35:15 :::CIS 8 department has virtually attempted to prove by passing order dated .

23.7.2019, that judgment sought to be executed is not based upon the proper facts and law, but respondents definitely cannot be permitted to claim the same in these proceedings. If respondents were not satisfied with the judgment sought to be executed, proper remedy for them was to file LPA before the Division Bench of this Court. Though in the instant case, LPA was filed, but same was withdrawn. After one year of passing of the judgment sought to be executed, review petition was filed, but interestingly, that was not pursued properly, as a result thereof, same was dismissed for non prosecution. It took almost four years for the respondents to file an application under Order 9 Rule 4 CPC for setting aside order, whereby their review petition was dismissed for non-prosecution. Though this Court while passing order dated 28.6.2019, whereby contempt petition No. 77 of 2019, having been filed by the petitioners came to be allowed, observed that review petition having been filed by the respondents stands dismissed for non-prosecution, but yet, execution of the judgment sought to be executed was delayed on the pretext that review petition having been filed by the respondents is still pending adjudication.

9. This Court is compelled to observe that respondents successfully hoodwinked this court for more than seven years on one ::: Downloaded on - 12/10/2023 20:35:15 :::CIS 9 pretext or the other, repeated assurances/undertakings were given to .

implement the mandate contained in the judgment sought to be executed but till date, nothing has been done. Now in the purported compliance of judgment sought to be executed, one order dated 23.7.2019, has been passed, wherein there is nothing to suggest that in terms of mandate contained in the judgment alleged to have been violated, seniority list, if any, ever, came to be re-drawn, rather entire thrust is to prove that direction contained in the judgment sought to be executed could not have been issued/passed by the court because at that time, there was no vacancy. This court is not required to go into the question whether in year 2004, there was any vacancy or not, especially when the court after having perused record has already held the petitioners entitled to be considered for promotion to the higher post of Assistant Commandant in the year 2004.

Even otherwise, in light of positive direction issued by the court, calling upon the respondents to re-draw the seniority list, respondents had no option, but to re-draw the seniority list taking note of the observation/findings given in the judgment sought to be executed. Apart from above, at no point of time, direction, if any, ever came to be issued by the court to the respondents while passing judgment sought to be executed that case of the petitioner be considered and as such, there is no force in ::: Downloaded on - 12/10/2023 20:35:15 :::CIS 10 the submissions of learned Deputy Solicitor General of India, that case of .

the petitioners has been considered and rejected by the department.

10. Reliance placed by learned Deputy Solicitor General of India, on the judgments in J.S. Parihar v. Ganpat Duggar and Ors and Shri Purander Sharma v. State of Himachal Pradesh and Anr., is wholly mis-

placed because in both the cases facts were altogether different. In the cases before the Hon'ble Apex Court as well as this court, vide judgment sought to be executed or alleged to have been violated, direction was issued to the concerned department/authority to consider the case of the petitioners. Hon'ble Apex Court as well as Division Bench of this Court having taken note of the consideration order passed in purported compliance of the directions contained in the aforesaid judgment rightly ordered that passing of the consideration order has given fresh cause of action to the petitioners and being aggrieved, they can always file appropriate proceedings before the appropriate court of law, however in the instant case, no direction ever came to be issued to the respondents to pass consideration order, rather positive direction to redraw the seniority list, came to be issued and as such, respondents had no option, but to do the needful in terms of the positive mandate contained in the judgment sought to be executed.

11. Needless to say, after passing of order/judgment, party .

aggrieved thereof, has two options; 1.) to implement the mandate contained in the judgment sought to be executed and; 2.) lay challenge to the same in the superior court of law. In the case at hand, though LPA was filed laying therein challenge to mandate contained in the judgment sought to be executed, but same was withdrawn. Similarly, review petition, which was filed beyond the prescribed period of limitation, also stands dismissed for non prosecution. Since mandate contained in the judgment sought to be executed has attained finality, respondent department is under obligation to implement the same, but definitely they cannot be permitted to sit over the matter for years together. It is glaring case where repeatedly, efforts came to be made by the respondents to defeat the mandate contained in the judgment alleged to have been violated on one pretext or the other.

12. Consequently, in view of the above, this court finds merit in the present petition and accordantly same is allowed and respondents are directed to implement the judgment forthwith expeditiously, preferably, within two weeks, failing which petitioners shall file an application, stating therein details of property of the department as well as salary being drawn by the erring officials, enabling this Court to pass appropriate order for attachment of the property of the department as well as salary of the erring ::: Downloaded on - 12/10/2023 20:35:15 :::CIS 12 officials. Present petition is disposed of in the aforesaid terms, alongwith .

pending applications, if any.

2. CMP No. 9375 of 2021 in CMP(M) No. 96 of 2017 in Review Petition No. 71 of 2017

13. By way of instant application filed under Order 9 Rule 4 read with Section 151 CPC, prayer has been made by the applicants/petitioners/Union of India, for recalling of order dated 14.7.2017, whereby review petition having been filed by the applicants/petitioners came to be dismissed for want of prosecution.

14. Reply to the application stands filed by the non-

applicants/respondents, wherein prayer made in the application has been opposed on the ground that there is an inordinate delay in filing the application and there is no plausible explanation qua the same.

15. Having heard learned counsel for the parties and perused material available on record this Court finds that non-applicant/petitioners filed CWP No. 8799 of 2011, seeking therein direction to the applicants/petitioners to consider them for the promotion to the post of Assistant Commandant in the year, 2004, when respondents No.1 and 2 failed to hold the DPC for promotion of the petitioners to the post of Assistant Commandant despite availability of vacancy and their eligibility.

16. Coordinate Bench of this Court vide judgment dated 5.5.2016, .

directed the respondents to quash the seniority list and directed the respondents to redraw the seniority list. Since aforesaid direction was never complied with, non-applicants herein were compelled to file as many as five contempt petitions and in all the contempt petitions, repeated assurances came to be given to this Court that judgment is being complied with. Applicants/petitioners filed review petition No. 71 of 2017, but since same was barred by limitation, CMP(M) No. 96 of 2017, came to be filed, however, in the aforesaid application, despite repeated opportunities granted to the applicants, no steps were taken for the service of the respondents and as such, this Court vide order dated 14.7.2017, while granting one week time to the applicant/petitioner to take steps for the service of the respondents, ordered that in case steps are not taken within the stipulated time, application shall stand dismissed automatically for non-prosecution without further reference to the Court. Even after one year of passing of the aforesaid order dated 14.7.2017, no steps were taken and on 9.5.2018, learned Deputy Solicitor General of India, apprised this Court that steps are being taken for recalling order dated 14.7.2017, however, fact remains that present application under Order 9 Rule 4 CPC came to be filed after four years of passing of order dated 14.7.2017. Since aforesaid ::: Downloaded on - 12/10/2023 20:35:15 :::CIS 14 application was barred by the limitation, another application bearing .

CMP(M) No. 593 of 2021, came to be filed alongwith CMP(M) No. 96 of 2017.

17. If the averments contained in the applications are perused in its entirety, no plausible explanation can be said to have been rendered on record qua the inordinate delay in filing of the application under Order 9 Rule 4 for recalling of order dated 14.7.2017, whereby review petition having been filed by the petitioners was ordered to be dismissed in default for not taking the steps for the service of the respondents. Though it has been stated in the application that applicant/petitioner was not in the know of the order dated 14.7.2017, whereby an application under Section 5 of the Limitation Act filed alongwith review petition, was dismissed for want of prosecution, but such plea taken is totally contrary to the record because after passing of order dated 14.7.2017, repeatedly, matter came to be listed before this court, may be in different proceedings. It is not in dispute that repeatedly, contempt petitions were filed by the non-applicants/petitioners for implementation of judgment dated 5.5.2016, wherein specific reference was made to the dismissal of the review petition on account of non-

prosecution in terms of order dated 14.7.2017. Moreover, record clearly reveals that on 9.5.2018, the then, learned Assistant Solicitor General of ::: Downloaded on - 12/10/2023 20:35:15 :::CIS 15 India, stated before the court that he shall take steps for recalling of order .

dated 14.7.2017, meaning thereby, factum with regard to passing of order dated 14.7.2017, was very much in the knowledge of the department on 9.5.2018. If it is so, even then, present application under Order 9 Rule 4 CPC was not filed, rather same was filed in the year, 2021.

18. Having perused averments contained in the applications as well as other material available on record, this Court is convinced and satisfied that no plausible explanation has been rendered on record, enabling this Court to condone the inordinate delay in filing the application filed under Order 9 Rule 4 CPC, for setting aside ex-parte order, whereby application under Section 5 of the Limitation Act for condoning the delay in maintaining the review petition was dismissed for non-prosecution.

19. Consequently, in view of the above, present application fails and dismissed accordingly.

    October 6, 2023                                             (Sandeep Sharma),
          (manjit)                                                   Judge





                                                   ::: Downloaded on - 12/10/2023 20:35:15 :::CIS