Himachal Pradesh High Court
Ramjee Dass Sharma And Ors vs Union Of India And Ors on 6 October, 2023
Bench: Sandeep Sharma
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against the aforesaid judgment, but same was withdrawn.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
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
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,
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
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
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
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
application was barred by the limitation, another application bearing
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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
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
