Himachal Pradesh High Court
Shri Purander Sharma vs Ganpat Duggar And Others on 12 November, 2021
Bench: Mohammad Rafiq, Sabina
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 12th DAY OF NOVEMBER, 2021
.
BEFORE
HON'BLE MR. JUSTICE MOHAMMAD RAFIQ,
CHIEF JUSTICE
&
HON'BLE MS. JUSTICE SABINA
EXECUTION PETITION No. 22 of 2018
Between:
SHRI PURANDER SHARMA,
S/O LATE SH. GUN PARKASH,
R/O SHANTIKUTI, CHAKKAR,
SHIMLA - 171 005, H.P.
...PETITIONER
(BY MR. AJAY KOCHHAR &
MR. VIVEK SHARMA, ADVOCATES)
AND
1. STATE OF HIMACHAL PRADESH
THROUGH THE SECRETARY
(HOME) TO THE GOVERNMENT
OF HIMACHAL PRADESH,
SHIMLA - 171 002.
2. THE SECRETARY (PERSONNEL)
TO THE GOVERNMENT
OF HIMACHAL PRADESH,
SHIMLA - 171 002.
...RESPONDENTS
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2
(BY MR. ASHOK SHARMA,
ADVOCATE GENERAL, WITH
MS. RITTA GOSWAMI,
ADDITIONAL ADVOCATE GENERAL)
.
This Execution Petition coming on for orders this day,
Hon'ble Mr. Justice Mohammad Rafiq, passed the following:
ORDER
This Execution Petition has been filed by Shri Purander
Sharma seeking execution of the judgment passed by this Court
in CWP No. 488 of 2001.
2. Mr. Ajay Kochhar, learned counsel for the petitioner,
submits that the petitioner had to file Execution Petition because
the judgment passed by this Court on 29 th December, 2008 in
CWP No. 488 of 2001 has not been implemented by the
respondents in letter and spirit.
3. The said writ petition was filed against the judgment of
the Himachal Pradesh State Administrative Tribunal, dated 12 th
January, 2001 passed in O.A. No. 191 of 1999 whereby the
Original Application filed by the petitioners and respondents No.
6 and 7 in the writ petition was dismissed. The writ petition was
allowed by a Division Bench of this Court with the following
direction:
.
"In view of the above discussion, the writ petition is
allowed. The Provision of Rule 5(1) of the Rules are
read down and they are held to be unconstitutional
in so far as they give benefit of counting the past
army service towards seniority in civil employment
in case of exservicemen who have not joined the
Armed forces during the period of emergency. It is
also held that the benefit of such service can not be
given from a date prior to the date when the ex
serviceman attains the minimum educational
criteria prescribed in the rules. Consequently, the
seniority list Annexure P3 is held to be illegal and
is accordingly quashed and the respondents are
directed to reframe the same in accordance with the
directions issued hereinabove. There shall be no
order as to costs."
4. The writ petition has been allowed by reading down the
provisions of Rule 5(1) of the Demobilized Armed Forces
Personnel (Reservation of Vacancies in the Himachal Pradesh
State NonTechnical Services) Rules, 1972. Firstly, the provisions
of the said Rule were held to be unconstitutional insofar they give
benefit of counting the past army service towards seniority in civil
employment in case of exservicemen who had not joined the
Armed Forces during the period of emergency and secondly, it was
.
directed that the benefit of such service cannot be given from a
date prior to the date when the exserviceman attains the
minimum educational eligibility criteria prescribed in the Rules.
Consequently, the seniority List, dated 17th July, 1997 (Annexure
P3 in the writ petition) was held to be illegal and quashed with a
direction to the respondents to reframe the same in accordance
with the directions issued therein.
5. The aforesaid judgment was subjected to challenge
before the Supreme Court in Civil Appeal No. 011060 of 2017 and
two other Appeals. The Supreme Court while dismissing
all the three appeals upheld the judgment of this Court in toto.
6. Mr. Ajay Kochhar, learned counsel appearing for the
petitioner, has submitted that the seniority list has not been
correctly drawn in conformity with the directions of this Court.
7. The respondentsState in their replyaffidavit have
submitted as follows:
"2. That at the outset it is submitted that the
respondents keep the dignity of this Hon'ble Court
at the highest esteem and have respect for the
directions of the Hon'ble Court(s) and makes every
endeavor to comply with the same and in
compliance to the direction of this Hon'ble Court as
.
well as of Hon'ble Apex Court passed in SLP No.
8710 of 2009, the review DPC, from Deputy District
Attorney upto the Joint Director level was required
to be conducted. In this regard, it is submitted that
now the above review DPCs stood conducted and
the seniority list has been reframed. It is further
submitted that as a consequence of the review DPC
and in compliance to the judgment of this Hon'ble
Court in CWP No.488 of 2001 as affirmed by the
Hon'ble Supreme Court of India in Civil Appeal No.
011060 of 2017 (Arising out of SLP No. 8710 of
2009), Dy. District Attorneys/District Attorneys/
Joint Directors vizaviz exservicemen have been
placed according to the revised/review DPC. It is
pertinent to mention that the seniority list of
Assistant District Attorney as stood on 01.07.1997
has been reframed. Further, all DPCs in the cadre
of Deputy District Attorney since 1997 have also
been reviewed by considering the exservicemen
from the actual date of their appointment in the
department (The notifications are annexed as
Annexures 1 to 3, for kind perusal).
3. That it is submitted that the Department of
Personnel i.e. respondent No.2 has also amended
the rule 5(1) of Demobilized Armed Forces
.
Personnel (Reservation of Vacancies in Himachal
State NonTechnical Services) Rules, 1972
providing that only the period of approved military
services rendered after attaining the minimum age
and qualification prescribed for appointment to the
service shall count towards fixation of pay in that
service."
8. In response to a pointed query by this Court, learned
counsel appearing for the petitioner did not dispute that in the
revised seniority list, benefit of counting the past services
rendered by Exservicemen in the Army has not been given
towards seniority in civil employment inasmuch as the benefit of
seniority has also not been given prior to the date when the Ex
serviceman had not acquired the minimum educational criteria
prescribed in the Rules. He has submitted that the mode of
recruitment in the cadre of Assistant District Attorneys in the
Prosecution Department of the State of Himachal Pradesh is
100% through direct recruitment by way of open competition. On
completion of seven years' service, Assistant District Attorneys
are eligible to be promoted as Deputy District Attorneycum
Public Prosecutors and further to be promoted as District
.
Attorneys on completion of five years' service as Deputy District
AttorneycumPublic Prosecutors. They are further entitled to be
promoted as District Attorneys. On completion of two years'
service as District Attorneys, they are further entitled to be
promoted as Joint Director (Prosecution) and thereafter, as
Director Prosecution.
9. The petitioner in the additional affidavit filed on 15 th
May, 2019 has given the details of various DPCs held by
respondents and according to his perception, the DPC has applied
wrong criteria and that the ACR of the petitioner was
downgraded from 'Outstanding' to 'Very Good' in respect of the
years 20002001, whereupon the overall assessment with only two
'Outstanding' for the years 20012002 and 20022003 was
consequently downgraded to 'Very Good' and this has had an
adverse effect on the promotional prospects of the petitioner.
10. We are afraid this cannot be made subject matter of
execution in either Contempt Petition or in Execution Petition, as
this was not an issue which was either directly or indirectly
considered and decided by this Court but this certainly give rise to
a fresh cause of action to the petitioner.
.
11. Ms. Ritta Goswami, learned Additional Advocate
General, has cited the judgment of the Supreme Court in J.S.
Parihar versus Ganpat Duggar and others, reported in
(1996) 6 Supreme Court Cases 291, making such argument
that an order has been passed by the Government on the basis of
directions issued by the Court and once there is an order passed
by the Government on the basis of the directions issued by the
Court, there arises a fresh cause of action to seek redressal in an
appropriate forum. The Supreme Court in the aforesaid judgment
has held that preparation of the seniority list may be wrong or
may be right or may or may not be in conformity with the
directions but once the fresh seniority list has been prepared, that
would provide a fresh cause of action to avail of the opportunity of
judicial review.
12. In the present case, when it is not in dispute that the
two parameters on which the seniority list was directed to be
revisited by this Court and the Supreme Court, have been
followed, there is no case of noncompliance, much less willful, of
the directions of the Court.
.
13. In view of the above, we do not find any merit in the
Execution Petition and the same is accordingly dismissed.
However, it would be open to the petitioner to assail the
correctness of the seniority list now issued by the respondents and
recommendations of the DPC, in a fresh petition, in accordance
with law. r
( Mohammad Rafiq )
Chief Justice
( Sabina )
Judge
November 12, 2021
( rajni )
