Allahabad High Court
State Of U.P. And Another vs Chandra Shekhar Singh on 25 February, 2022
Author: Ajit Kumar
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 35 Case :- MATTERS UNDER ARTICLE 227 No. - 2020 of 2018 Petitioner :- State Of U.P. And Another Respondent :- Chandra Shekhar Singh Counsel for Petitioner :- S.C.,H.M.B. Sinha Counsel for Respondent :- S.K. Shukla,Amul Kumar Tyagi,P.S. Baghel,SC Hon'ble Ajit Kumar,J.
1. Heard Sri Amit Manohar Sahai, learned Additional Chief Standing Counsel, assisted by Sri P.C.Tiwari, learned Standing Counsel and Sri S.K.Shukla, as well as Sri Amul Kumar Tyagi, learned Advocates appearing for the contesting respondents.
2. By means of present petition filed under Article 227 of the Constitution of India, the District Inspector of Schools and State of Uttar Pradesh have assailed the order passed by the Additional District and Sessions, Judge, FTC No. 3, Basti in Civil Revision No. 160 of 2007 whereby the order passed by the executing court dated 6.8.2007 has been set aside and thus objection raised vide section 47 of Code of Civil Procedure, 1908 (for short CPC) by the petitioners, judgment debtors has been rejected.
3. Briefly stated facts of the case are that sole respondent, (hereinafter referred to as "decree holder") instituted a suit claiming relief in the nature of a direction to defendants in the suit, namely, the Committee of Management, National Inter College, Haraiya Basti, Narendra Bahadur Singh, Manager of National Inter College, Basti, Principal, National Inter College (defendants first set), the District Inspector of Schools, Basti and State of U.P. through District Magistrate (defendant second set) for payment of salary from 08.07.1991 till disposal of the suit and also direction in the nature of permanent injunction against defendant from interfering with the working of decree holder as a teacher in the institution.
4. The decree holder claimed to have been appointed vide selection initiated under the resolution of the Committee of Management dated 21st April, 1991 and selection made on 7.7.1991. He claimed to have been appointed on 8th July, 1991 and District Inspector of Schools was intimated same day, however, there is no mention in the plaint case that District Inspector of Schools ever accorded financial approval to the Ad hoc appointment of the decree holder pursuant to the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Second order 1981 (for short Removal of Difficulties Order) as the law stood on that date. However, decree holder claimed to have continued with appointment as never disapproval order was passed, his work and and conduct was found always to be satisfactory.
5. In the aforesaid suit, notices were issued to the defendant respondents, judgment debtors but none of them have appeared and so consequently, suit proceeded ex parte. The suit was decreed vide judgment and order dated 24th January, 2005 in following terms:
Þoknh dk okn lO;; fMdzh fd;k tkrk g A izfroknhx.k dks LFkkbZ :i ls funsZf'kr fd;k tkrk gS fd og oknh ds lsok dky ds nkSjku oknh ds v/;kiu dk;Z esa fdlh izdkj dh ck/kk u igqWapkos rFkk oknh dks fu;qfDr dh frfFk fnukad 7&7&1991 ls fu.kZ; dh frfFk rd dk cdk;k leLr osru ,oa HkRrk fu.kZ; dh frfFk ds nks ekg ds vUnj Hkqxrku dj nsos A rFkk Hkfo"; esa Hkh fu;ekuqlkj oknh dks osru ,oa HkRrk vkfn vnk djsa A Suit is decreed with cost. Defendants are permanently injuncted from interfering with with teaching work of the plaintiff during his service period and are directed to pay the entire remaining dues of salary and other allowances from the date of his appointment i.e. 07.07.1991 within two months and further continue to pay salary and the allowance in future as well.
(english translation by this Court)"
6. Thus, defendants were permanently injuncted from interfering with the working of the plaintiff as teacher in the institution during his service period and entire dues towards salary and other allowances w.e.f. 08.07.1991 till date of judgment were directed to be paid within two months and so also direction was for continued for payment of salary and other allowances in future as well.
7. In respect of the aforesaid judgment and decree dated 21st January, 2005, a restoration application bearing no. 14 of 2006 was filed under Order IX Rule 13 of the CPC for recalling of the ex parte decree but the said restoration application was dismissed for want of prosecution on 10.11.2006 and, therefore, another restoration application was filed on 6th January, 2007, which remained pending consideration before the court concerned. What happened to the restoration application is not known to the learned Additional Chief Standing Counsel.
8. The decree holder filed an application for execution of the judgment and decree, which came to be registered as execution case no. 11 of 2005 in which judgment debtors, namely, District Inspector of Schools as well as State of Uttar Pradesh filed objection under Section 47 of the CPC taking the plea that judgment and decree passed by trial court was a nullity for non compliance of the provisions of Order VII Rule 1 and Order VII Rule 2 of the CPC as there was no disclosure of the amount for which virtually money decree has come to be passed. Non compliance of Order VII Rule 7 has also been taken in the objection filed under Section 47 of the CPC.
9. Yet another plea was also taken that decree holder committed fraud upon the court by concealing material fact and obtained decree which would be quite unenforceable in law. Objection filed by the judgment debtor / State authorities came to be allowed by the executing court by a detailed order passed on 6.8.2007. The Executing Court held the judgment and decree passed in OS No. 260 of 1998 to be void and ineffective as court passing decree suffered from inherent lack of jurisdiction and, therefore, such decree would amount to a nullity and unenforceable in law .
10. The point of jurisdiction has been addressed from two angles: the relief was barred under Order XXXIX Rule 2(2) of the CPC and under the Intermediate Education Act, 1921; and The U.P. Public Service Tribunals Act, 1976 would apply and suit of the decree holder shall be hit by Section 6 of the said Act.
11. The suit has been held to be barred for a relief of permanent injunction in view of Order XXXIX Rule 2(2) of the Code of Civil Procedure Code by the Executing Court.
12. The executing court has relied upon certain authorities of this Court as well as of the Supreme court mentioned in the analysis part of the order to arrive at the finding that decree obtained by practice of fraud/concealment of facts would be a nullity and this question can be gone into under Section 47 of the Code of Civil Procedure. The Court held that decree has been passed for payment of certain amount of salary as an arrears whereas there was no such assessment qua qunatum of salary in the plaint case as well as final relief clause and had that amount which has been disclosed in the execution application, being disclosed in the plaint and relief had been sought qua the claim of salary, the court passing decree would not have the jurisdiction to try such a suit and pass decree. Thus, executing court allowed the objection, which came to be assailed in revision by the decree holder and the court sitting in revision has distinguished the judgment of this Court in the case Jodha Singh and Another v. 1st Additional District Judge, Deoria, 199 AWC 335 relied upon by the executing court. The Court revising the order of executing court held that the aforesaid judgment related to Principal of Schools which could not have been placed in the category of public servant, but here no such fact was involved as suit did not relate to any status of appointment but the salary. So neither question of appointment nor, cancellation thereof was in issue and hence executing court, according to the court revising the order, had manifestly erred in relying upon the said judgment and giving finding adverse to the decree holder. The court also observed and finally held reversing finding of the executing court that no actionable claim in respect of any order questioning appointment of the decree holder had been brought so as to hold it bad under Section 16 G(4) of the Intermediate Education Act, 1921 (for short Act, 1921) and, therefore, relief as claimed for was absolutely maintainable.
13. The Court sitting in revision also held that no such objection was taken under Section 47 qua jurisdiction of the civil court granting decree, therefore such objection could not have been entertained and could not have been adjudicated upon by the executing court. The Court thus revising the order reversed the findings of the executing court in the judgment dated 06.08.2007 and the order of attachment was passed by the District Judge in revision on 21st August, 2007.
14. This Court while entertaining this petition stayed the effect and operation of the order passed in revision and also further proceedings of the execution case no. 11 of 2005.
15. Assailing the order of the court below allowing the revision petition of the decree holder, learned Additional Chief Standing Counsel has argued basically three points:
a). In view of Section 6 of U.P. Public Service (Tribunals) Act, 1976 the suit for payment of arrears of salary and seeking direction for continuance as a teacher in a recognized institution would be barred by virtue of under clause (b) of Section 2. An officer, according to him, on the pay of State Government would be a public servant and since decree holder claims to be a teacher appointed in institution receiving aid from the State Government, he would be taken to be a public servant within the meaning of Section 2 (b) of the Act, 1976 (supra).
b. The suit equally was barred by virtue of Section 21 and 22 of the Act, 1921 as no action on the part of Educational Authorities in non-payment of salary would amount to an action itself withholding salary and will stand covered under Section 21 of the Intermediate Education Act, 1921.
16. The third argument (c) advanced by learned Additional Chief Standing Counsel is that the Court sitting in revision was clearly not justified in holding that objection to the jurisdiction could not have been raised under Section 47 of the Code of Civil Procedure and for this purpose, learned counsel for the petitioner has relied upon the judgment of the Supreme Court in the case of Sarwan Kumar and Another v. Madan Lal Aggarwal (2003) 4 SCC 147.
17. Countering the submissions advanced by learned counsel for the petitioner Sri Shukla, learned counsel appearing for the respondent/ decree holder has submitted that teachers of the institution covered under the Intermediate Education Act, even if belong to institution receiving aid from the State Government, would not fall within the definition of public servant under Section 2 of the Public Servant Tribunals Act, 1976 and, therefore, it could not be said that the suit was barred. He has placed reliance doctrine of the judgment.
18. On the second argument regarding bar under section 21 and 22 of the Act, 1921, learned counsel has relied upon the judgment of division bench of this Court in the case of State of U.P. and others v. Satya Deo Pandey and Others, 2016 4 ADJ 675.
19. Learned counsel for the respondent has relied upon the paragraph 18 and 19 of the said judgment.
20. Meeting the third argument, learned counsel for the respondent Sri Shukla has argued that in the objections that have been discussed by the executing court in detail were not at all part of the pleadings raised under Section 47 of the Code of Civil Procedure. He submits that unless and until it is defective for want of jurisdiction, it would not come in the way of the executing court in executing such a decree.
21. He has drawn attention of the Court towards objection filed by the State authorities in which basically plea was taken that there was non compliance of the order VII Rule 2 or Order VII Rule 7 of the Code of civil Procedure and that there was material concealment of fact in the pleadings raised before the civil court who had no jurisdiction to trial.
22. Learned counsel for the respondent has relied upon the judgment of division bench of this Court Ravindra Singh v. State of U.P. And Others, 2010 Law Suit (All) 2099.
23. Having heard learned counsel for the parties and their arguments raised across the bar, I find that the basic issue involved in the present case is as to whether the suit was barred under the Act, 1921 and, therefore, the decree was a nullity for want of jurisdiction.
24. Before I proceed to deal with the above question, I consider it appropriate to deal with the first argument of the learned counsel for the petitioner that in view of Section 6 of Act, 1976, the suit was barred as teacher would be a public servant within the meaning of Section 2 of the said Act. Section 2(b) of the Act, 1976 defines public servant as under:
"(b) "public servant' means every person in service of pay of--
(i) the State Government ; or
(ii) a local authority not being a Cantonment Board ;or
(iii) any other corporation owned or controlled by the State Government (including any company as defined in section 3 of the Companies Act, 1956 in which not less than fifty per cent of paid up share capital is held by the State Government) but does not include--
(1) a person in the pay or service of any other company; or (2) a member of the All India Services or other Central Services.
25. From a bare reading of the aforesaid provisions it is clear that what is required for a person to be called as a ''public servant' is that a person should be in service of pay of State Government or a local body not being a Cantonment Board or any other Corporation owned or controlled by the State Government. A teacher of recognized aided educational institution is definitely neither State Government employee nor, employee of Local Authority. An Educational Institution recognized under the Intermediate Education Act is neither a corporation nor, a company as defined in sub clause (iii) of Claus (b) of Section 2. An educational institution is run by a society registered under the Societies Registration Act, 1860 and recognition is accorded to the courses and certificate issued by such educational institutions to appear in examination to be conducted by U.P. Board of High School and Intermediate. It is when the State grants-in-aid to the educational institution that for the purposes of Uttar Pradesh High Schools and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act , 1971 (for short Act, 1971 and The U.P. Junior High School (Payment of Salaries of Teachers and Other Employees) Act, 1978 (for short Act, 1978) respectively are made applicable to such institutions.
26. A teacher of educational institution is on the pay-role of committee of management and not of the State Government. The grant that is received by the management includes grant for salary and that is why salary bill is cleared under the signature of the Manager on a privately registered society who has been recognized as such under the Intermediate Education Act, 1971 or under the Basic Education Act, 1972 as the case may be. Thus, a teacher of an educational institution cannot be considered to be a public servant within the meaning of Section 2 of the Act 1976 and so the first argument raised by learned counsel for the petitioner is rejected.
27. So far as argument no. (b) is concerned, it relates to the jurisdictional aspect of the Civil Court in passing the decree, execution of which is prayed for. The relief claimed in the suit was for payment of salary and there was no order that can be termed as final order passed by an authority of education department, under challenge before Civil Court in the suit. In identical set up of facts, a division bench of this Court has come to consider the jurisdictional aspect of the matter for the maintainability and entertainability of the suit. This is a case of State of U.P. and Others v. Satya Deo Pal and Others 2016 (4) ADJ 675, in which order cancelling the approval to the appointment of the plaintiff was challenged in a suit seeking declaration of the order dated 26th March, 1982 as null and void. The relief in the nature of permanent prohibitory injunction for restringing the State respondents therein from interfering in their services, was prayed for. The District Inspector of Schools and State of Uttar Pradesh were arrayed as defendant nos. 2 and 3 in the said suit whereas Committee was first defendant and suit was decreed partly declaring the order of District Inspector of Schools to be null and void although relief for permanent injunction was refused. In civil appeal filed by the Committee of Management against the said decree, cross objection was filed by the plaintiffs in appeal in so far as relief for permanent prohibitory injunction was refused by the trial court. The appellate court while dismissing the appeal of the Committee of Management allowed the cross objection of the plaintiffs and thus suit stood decreed in its entirety. On the basis of the judgment passed by the trial court affirmed in appeal, plaintiffs in that case continued to work as Assistant Teachers and they were also granted selection grade. However, later on, on some administrative enquiry being conducted, salary of these teachers were stopped. This is how the matter travelled to the original side of the High Court under Article 227 of the Constitution.
28. The argument in the said case, therefore, was advanced by the State that judgment and decree passed in favour of the original petitioners- plaintiffs in suit would be of no avail and would be liable to be ignored in view of the provision contained under sections 12 and 14 of the Act , 1971. The argument was that Section 14 of the Act, 1971 clearly barred and ousted the jurisdiction of the Civil Court, inasmuch as, one of the arguments was that appointment was de hors the regulations contained under of Chapter II of the Act, 1921.
29. Dealing with the objection raised regarding maintainability of the suit and so ignoring the decree passed as nullity viz-a-viz scope of Section 9 of the Code of Civil Procedure, 1908. In case of Satya Deo Pandey and Others (supra) Vide paragraphs 18 to 21, the Court has held thus:
"18. The jurisdiction of the civil Court conferred by Section 9 of the Code of Civil Procedure is, as has been consistently held, liable to be construed based upon the maxim ubi jus ibi remedium. Every grievance of a civil nature is liable to be placed by a litigant for redressal before a civil Court unless its cognizance is either expressly or impliedly barred. The language of Section 9 confers upon the civil Court an expansive jurisdiction over all causes of a civil nature unless the cognizance thereof is barred by statute either expressly or by necessary implication. The second principle which must be borne in mind while dealing with the submission is that an exclusion of the jurisdiction of the Civil Court is not to be readily inferred. In Dhulabhai Vs. State of M.P.5 a Constitution Bench of the Supreme Court considering the impact of a finality clause held that where a statute confers finality to orders, the jurisdiction of the civil courts must be held to be excluded. This statement of the law, however, was made subject to the rider that the statute creating the authority or the tribunal whose orders had been conferred finality providing sufficient and adequate remedies of redressal. The more significant principle which was laid down was the test of whether the claim was based upon a right or obligation created and conferred by the statute itself or whether it was based upon a common law right. Such a provision, the Constitution Bench held, would not oust the jurisdiction of the civil Court in cases where the provisions of the particular Act have not been complied with or where the order which is ordained to have attained finality has come to be made in violation of "fundamental principles of judicial procedure". It would be relevant to recall that the civil Court in the present case proceeded to declare the order dated 26 March 1982 a nullity on the ground that the order of approval had been revoked by the DIOS in violation of the principles of natural justice and without affording an opportunity of hearing to the original petitioners. The learned Single Judge while holding against the appellants has held that no case of fraud or misrepresentation stood established against the original petitioners. These findings have not been questioned before us in this appeal. The question which therefore, arises is whether in this background whether the jurisdiction of the civil Court was barred when it proceeded to consider a challenge to the order dated 26 March 1982.
19. It is by now well settled that the principles of natural justice are an integral part of the constitutional scheme of a just and fair procedure as envisaged under Article 14. This was so held by a Constitution Bench of the Supreme Court in Sarojini Ramaswami Vs. Union of India & others6. Considering this very aspect namely a challenge to an order made in violation of constitutional or statutory provisions and the jurisdiction of the civil court in respect thereof fell for consideration before the Supreme Court in Rajasthan State Road Transport Corporation and another Vs. Bal Mukund Bairwa7. Three learned Judges of the Supreme Court while reiterating the principles laid down in Dhulabhai as well as Premier Automobile Ltd. held that violation of the principles of natural justice and actions which are unreasonable and arbitrary would fall within the ambit of Article 14. Their Lordships proceeded to hold that where the action instituted before the civil Court relates to the enforcement of constitutional rights or a right flowing from the common law, the civil Court would necessarily have jurisdiction regardless of the finality clause that may stand engrafted in the statute. We may usefully refer to what the Supreme Court held in this respect in Rajasthan State Road Transport Corporation.
"36. If an employee intends to enforce his constitutional rights or a right under a statutory Regulation, the civil court will have the necessary jurisdiction to try a suit. If, however, he claims his right and corresponding obligations only in terms of the provisions of the Industrial Disputes Act or the sister laws so called, the civil court will have none. In this view of the matter, in our considered opinion, it would not be correct to contend that only because the employee concerned is also a workman within the meaning of the provisions of the 1947 Act or the conditions of his service are otherwise governed by the Standing Order certified under the 1946 Act ipso facto the Civil Court will have no jurisdiction. This aspect of the matter has recently been considered by this Court in Rajasthan State Road Transport Corporation & ors. vs. Mohar Singh [(2008) 5 SCC 542]. The question as to whether the civil court's jurisdiction is barred or not must be determined having regard to the facts of each case.
37. If the infringement of Standing Order or other provisions of the Industrial Disputes Act are alleged, the civil court's jurisdiction may be held to be barred but if the suit is based on the violation of principles of common law or constitutional provisions or on other grounds, the civil court's jurisdiction may not be held to be barred. If no right is claimed under a special statute in terms whereof the jurisdiction of the civil court is barred, the civil court will have jurisdiction.
48. In a case where no enquiry has been conducted, there would be violation of the statutory Regulation as also the right of equality as contained in Article 14 of the Constitution of India. In such situation, a civil suit will be maintainable for the purpose of declaration that the termination of service was illegal and the consequences flowing therefrom. However, we may hasten to add if a suit is filed alleging violation of a right by a workman and a corresponding obligation on the part of the employer under the Industrial Disputes Act or the Certified Standing Orders, a civil suit may not lie. However, if no procedure has been followed as laid down by the statutory Regulation or is otherwise imperative even under the common law or the principles of natural justice which right having arisen under the existing law, sub-para (2) of paragraph 23 of the law laid down in Premier Automobiles Ltd. shall prevail."
21. The assertion of the original petitioners before the civil Court that the order of approval could not have been recalled by the District Inspector of Schools without complying with the principles of natural justice was not an assertion based, dependent upon or flowing from any right, obligation or liability placed by the 1971 Act. The right of hearing and a prior opportunity was an assertion of a constitutional right and based upon their right to a fair and just procedure being followed before the appointment was cancelled. It was not a right which flowed to them by virtue of the provisions of the 1971 Act. In this view of the matter, it cannot be said that the jurisdiction of the civil Court stood ousted in the facts of the present case. In light of the above, we find ourselves unable to accept the submissions of the appellants advanced on this score. The submission urged by the learned counsel for the appellants that the decree of the civil Court was without jurisdiction and therefore, a nullity cannot, therefore, be accepted."
30. In the present case also applying legal principle as discussed above by the division bench of this Court relying upon a judgment of the Supreme Court, I find that in the present case the plea was that petitioner was validly appointed and that there was no order cancelling the appointment and yet respondents were not making payment of salary inasmuch as, no appointment was made by the Board against vacancy against which petitioner was working.
31. In view of above the suit could not have been held to be barred either under Section 21 and 22 of the Act, 1921 as there was no order passed by the authority cancelling the appointment of the petitioner or questioning his appointment or under Section 14 of Act, 1971. Thus, second argument raised by learned counsel for the petitioners is also rejected.
32. Now coming to the argument raised by respondent that scope of executing court to entertain objection under Section 47 of the CPC is limited one and this Court cannot go behind the decree, I have carefully examined the records and I find that respondents- judgment debtors who are petitioners before this Court virtually failed to appeal against the ex parte decree and even failed to get the judgment passed ex parte recalled. As I have held above that the suit was not barred by law in the given facts and circumstances of the case, the decree cannot be held to be nullity and only course open for the petitioner was to get either ex parte judgment and decree recalled or to get the same set aside in appeal.
33. In the case of Brakewel Automative Components (India) Pvt. Ltd. v. P.R.Selvam Alagappan (2017) 5SCC 371 dealing with the objection under Section 47 of the Code of Civil Procedure, the Court has held that unless and until a decree is in-executable or nullity for want of jurisdiction, the executing court neither travelled behind the decree nor, sit in appeal over the same so as to jeopardise the rights of the litigating parties. Paragraphs 21,22 and 23 that would be relevant here of, the said judgment are reproduced hereunder:
"20. It is no longer res integra that an Executing Court can neither travel behind the decree nor sit in appeal over the same or pass any order jeopardizing the rights of the parties thereunder. It is only in the limited cases where the decree is by a court lacking inherent jurisdiction or is a nullity that the same is rendered non est and is thus inexecutable. An erroneous decree cannot be equaled with one which is a nullity. There are no intervening developments as well as to render the decree inexecutable.
21. As it is, Section 47 of the Code mandates determination by an executing court, questions arising between the parties or their representatives relating to the execution, discharge or satisfaction of the decree and does not contemplate any adjudication beyond the same. A decree of court of law being sacrosanct in nature, the execution thereof ought not to be thwarted on mere asking and on untenable and purported grounds having no bearing on the validity or the executability thereof.
22. Judicial precedents to the effect that the purview of scrutiny under Section 47 of the Code qua a decree is limited to objections to its executability on the ground of jurisdictional infirmity or voidness are plethoric . This Court, amongst others in Vasudev Dhanjibhai Modi vs. Rajabhai Abdul Rehman and others 1971 (1) SCR 66 in essence enunciated that only a decree which is a nullity can be the subject matter of objection under Section 47 of the Code and not one which is erroneous either in law or on facts. The following extract from this decision seems apt:
"A Court executing a decree cannot go behind the decree between the parties or their representatives; it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties.
When a decree which is a nullity, for instance, where it is passed without bringing the legal representatives on the record of a person who was dead at the date of the decree, or against a ruling prince without a certificate, is sought to be executed an objection in that behalf may be raised in a proceeding for execution. Again, when the decree is made by a Court which has no inherent jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record: where the objection as to the jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing Court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction."
34. Thus applying the above principle of law to the present case and as I have held that the decree was not a nullity nor, trial court suffered from any inherent lack of jurisdiction in entertaining the suit or passing the decree, I am of the considered view that decree passed by the trial court which has attained finality was clearly executable.
35. I do not, therefore, find any good ground to interfere with the order passed by the court in revision and so consequently no merit in the present petition. Petition fails and is accordingly rejected. Interim order, if any stands discharged.
Order Date :- 25.02.2022 Sanjeev