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Himachal Pradesh High Court

Narender Naik vs State Of Hp And Others on 15 October, 2020

Bench: L. Narayana Swamy, Anoop Chitkara

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .

Ex. Pet. No. 14 of 2019 alongwith connected matters.

Judgment reserved on 06.10.2020.

Decided on: 15.10.2020 Ex. Pet. No. 14/2019.

    Narender Naik                                       .....Petitioner.
                                Versus




    State of HP and others                            .....Respondents.

    Ex. Pet. No. 121/2019.
    Vinod Kumar Negi and another                        ......Petitioners.

                              Versus

    State of HP and others                              .....respondents.
    Ex. Pet. No. 84/2019.
    Parveen Gupta                                       ......Petitioner.
                              Versus



    State of HP and another                             .....respondents.
    Ex. Pet. No. 132/2019.
    Chhavinder Kumar Shandil                            ......Petitioner.




                              Versus
    State of HP and another                             .....respondents.





    Coram

The Hon'ble Mr. Justice L. Narayana Swamy, Chief Justice. The Hon'ble Mr. Justice Anoop Chitkara, Judge. Whether approved for reporting?

For the petitioners: Ms. Ranjana Parmar, Senior Advocate with Mr. Karan Singh Parmar, Advocate, for petitioners in Ex. Pet.

Nos. 14 and 121 of 2019.

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Mr. C.N. Singh, Advocate, for petitioner in Ex. Pet. No. 84/2019.

Mr. Tara Singh Chauhan, Advocate, .

for the petitioner in Ex. Pet. No. 132 of 2019.

For the respondents: Mr. K.D. Shreedhar, Senior Advocate with Ms. Shreya Chauhan, Advocate, for the respondents.

L. Narayana Swamy, Chief Justice.

Execution Petition No. 14 of 2019, titled Narender Naik versus State of HP and others has been filed for execution of the judgment passed by this Court in CWP(T) No. 6785/2008 dated 14.9.2010 and affirmed up to Hon'ble Supreme Court. The rest three Execution Petitions have arisen from different judgments passed by this Court, which were disposed of in terms of judgment passed by this Court in CWP(T) No. 6785/2008. Hence, all the Execution Petitions are taken up together for disposal involving similar questions of law and facts.

2. The Execution Petitioners had approached this Court in CWP (T) No. 6785/2008 with direction to consider the case of the Execution Petitioners for counting the period ::: Downloaded on - 15/10/2020 20:19:00 :::HCHP 3 worked on contract basis w.e.f. 1995 till their regularization with all consequential benefits. The said writ petition came .

to be disposed of on 14.9.2010, in terms of the judgment rendered by the Hon'ble Supreme Court in Direct Recruit Class II Engineering Officer's Association versus State of Maharashtra and others (1990) 2 SCC 715.

r to directing the respondents to consider the case of the Execution Petitioners for counting the period they have worked on contract basis w.e.f. 1995 till their regularization with all consequential benefits, in view of the law laid down in the judgment referred to supra.

3. The respondents/State have assailed this order by way of LPA No. 271 of 2011 which came to be dismissed on 9.4.2013 against which SLP filed before the Hon'ble Supreme Court was also dismissed.

4. At this juncture, some of the Junior Engineer's who have anticipated that their seniority would be disturbed in case, the direction issued in the writ petition is complied with, hence they have filed intervention petition ::: Downloaded on - 15/10/2020 20:19:00 :::HCHP 4 being CWP No. 1205/2017 as intervener which was dismissed on 2.6.2017. While disposing of the matter, it was .

held that in case the petitioners are disturbed in their seniority, they have to be heard by publishing provisional seniority list. Some of the interveners filed Review Petition bearing Review Petition No. 64/2017 which also came to be dismissed on 11.8.2017. Special Leave Petition against which was also dismissed. Petitioners then filed Review Petition which was also dismissed by the Hon'ble Supreme Court on 24.1.2018.

5. The Execution Petitioners filed Contempt petition bearing COPC No. 88/2018 which was dismissed and consequently contempt proceeding were dropped on 30.5.2019. Hence the Execution Petitioners are before this Court by way these Execution Petitions.

6. The case of the petitioners is that the directions issued in the Writ Petition at the earliest were to be complied with in which it was directed to count the initial appointment on contract basis of the petitioners till their ::: Downloaded on - 15/10/2020 20:19:00 :::HCHP 5 regularization for the purpose of seniority. In the instant case, the Execution Petitioners' case is that they have .

worked on contract basis since 1995 and regularized in the year 2004 and the period between 1995 to 2004 is to be taken for the purpose of regularization and they have to be given monetary benefits as well as seniority. The Hon'ble Supreme Court in similar case referred to supra is stated to have also granted the same relief.

7. The State/respondents against the aforesaid judgment of the learned Single Judge filed LPA No. 271 of 2011 which was dismissed. All the consequential Review Petition, SLPs and Contempt Petitions were also dismissed.

8. It is stated that the order directing the respondents to grant the benefit at par with the judgment of the Hon'ble Supreme Court should have been obeyed by the respondents. It is submitted that the act of the respondents is contumacious and amounts to contempt hence they are liable to be punished. Though the Contempt Petition was dismissed and dropped on the ground that there was no ::: Downloaded on - 15/10/2020 20:19:00 :::HCHP 6 willful disobedience, however, the fact remains that the order and directions issued by this Court, at the first .

instance, are liable to be executed and complied with. By not complying with the order of this Court, the appropriate seniority has not been assigned to the Execution Petitioners and the services rendered on contract basis till regularization have not been counted, which is arbitrary and discriminatory on the part of the respondents.

9. Per contra, respondents/State have filed reply and denied all the allegations made against the State and it is submitted that since the order passed by this Court has been complied with by the respondents, nothing remains for execution. It is stated that the direction to the respondents/State was to consider the case of the Execution Petitioner for counting the period they have worked on contract basis w.e.f. 1995 till regularization. Thereafter interveners who had approached this Court filed SLP in the Hon'ble Supreme Court and the Hon'ble Supreme Court reserved liberty to the interveners to approach this Court.

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They accordingly approached this Court by way of CWP No. 1205/2017 which was dismissed on 2.6.2017. However, an .

observation was made that provisional seniority list be prepared but before finalizing the same objections from the applicants/interveners be taken. The directions issued in CWP (T) No. 6785/2008 are stated to have been complied with and the case of the Execution Petitioners has been rejected hence there is compliance of the order. In order to fortify his submission, the learned senior counsel submitted that the Contempt Petition filed by the Execution Petitioners also came to be dismissed on the ground that there was no willful disobedience.

10. It is pertinent to mention here that similar orders have also been passed in respect of the other petitioners, (subject matter in three Execution Petitions) for considering their respective cases in the light of the judgment of the Hon'ble Supreme Court. It is submitted that once the case of the petitioners have been considered and rejected nothing remains until and unless rejection ::: Downloaded on - 15/10/2020 20:19:00 :::HCHP 8 order passed in compliance of the order is challenged and necessary directions are issued. On this ground, learned .

Senior Counsel submits to dismiss the Execution Petitions as not maintainable. In support of his submission, the learned Senior Counsel placed reliance on A.P. SRTC and others vs. G. Srinivas Reddy and others (2006) 3 SCC

674.

11.

r to We have heard learned counsel for the respective parties.

12. The prayer in the writ petition was for counting the initial appointment on contract basis as Junior Engineers till their regularization in the year 2004. Whether their contract appointment was regular, irregular, arbitrary is not the subject matter in these Execution Petitions. The question is only whether the directions issued in the Writ Petition have been complied with by the respondents or not.

It is the case of the Execution Petitioners that the respondents have willfully disobeyed the order for the purpose of Section 2 (b) of the Contempt of Courts Act and ::: Downloaded on - 15/10/2020 20:19:00 :::HCHP 9 deprived the petitioners to reap the fruit of the judgment. It is stated that the respondents have committed the contempt .

and Execution Petitioners have filed Contempt Petition with a prayer to punish the respondents for willful disobedience of the directions issued by this Court.

13. The case of the respondents is that the Contempt Petition filed by the Execution Petitioners has been dismissed and proceedings were dropped. This shows that the petitioners have failed to convince the Court that the respondents have committed an act of contempt. The Contempt Court has also gone into details and after having considered the respective cases of the parties, dropped the proceedings. Once that is done, it is not open for this Court to reopen the issue again.

14. The Execution Petition has been filed under Rule 16 (7) (C ) of the Writ Jurisdiction (High Court of H.P) Rules 1997. When an order is in the form of a declaration declaring the rights of the parties the Execution has to be filed under Order 21 Rule 32 of the Code of Civil Procedure.

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15. We have gone through the order passed by this Court in CWP (T) No. 6785/2008. Here the learned Single .

Judge had directed the petitioners to consider the case of the respondents in the light of the judgment of the Hon'ble Supreme Court. The direction issued is only to consider the case of the Execution Petitioners. When the direction is issued only for consideration, then it is for the respondents to examine the case of the parties who approached this Court in the light of the judgment. It is the case of the respondents that in compliance of the order, the case of the Execution Petitioners has been considered in the light of the judgment and according to the decision of the respondents, the petitioners had not come within the purview of the said judgment for the purpose of granting benefits. Accordingly, their case was rejected by the respondents. When a direction is issued for consideration, it is to be understood that the Court has not declared or decided the lis between the parties on merits. It is only direction to the respondents to take note ::: Downloaded on - 15/10/2020 20:19:00 :::HCHP 11 of the case of the petitioners and consider whether they are entitled for any benefit or not.

.

16. For better understanding, it is worth to refer to the judgment of the Hon'ble Supreme Court in A.P. SRTC and others vs. G. Srinivas Reddy and others (2006) 3 SCC 674, wherein it has been held as under:

"14. We may, in this context, examine the significance and meaning of a direction given by the court to "consider" a case. When a court directs an authority to 'consider', it requires the authority to apply its mind to the facts and circumstances of the case and then take a decision thereon in accordance with law. There is a reason for a large number of writ petitions filed in High Courts being disposed of with a direction to "consider" the claim/case/representation of the petitioner/s in the writ petitions.

15. Where an order or action of the State or an authority is found to be illegal, or in contravention of prescribed procedure, or in breach of the rules of natural justice, or arbitrary/unreasonable/ irrational, or prompted by mala fides or extraneous consideration, or the result of abuse of power, such action is open to judicial review. When the High Court finds that the order or action requires interference and exercises the power of judicial review, thereby resulting in the ::: Downloaded on - 15/10/2020 20:19:00 :::HCHP 12 action/order of the State or authority being quashed, the High Court will not proceed to substitute its own decision in the matter, as that will amount to exercising .

appellate power, but require the authority to 'consider' and decide the matter again. The power of judicial review under Article 226 concentrates and lays emphasis on the decision making process, rather than the decision itself.

16..........

17.......... But where the High Court without recording any findings, or without expressing any view, merely directs the authority to 'consider' the matter, the authority will have to consider the matter in accordance with law, with reference to the facts and circumstances of the case, its power not being circumscribed by any observations or findings of the court."

17. As we have stated earlier that while issuing directions clearly indicating that the petitioners have got an order or direction and that is to be complied with by the respondents in these circumstances, the consideration has to be understood that respondents have no other way except to consider the case as it is directed in the order. In this regard ::: Downloaded on - 15/10/2020 20:19:00 :::HCHP 13 in the similar judgment (2006) 3 SCC 674 (supra) the Hon'ble Supreme Court held :

.

"20.Therefore, while disposing of writ petitions with a direction to 'consider', there is a need for the High Court to make the direction clear and specific. The order should clearly indicate whether the High Court is recording any finding, about the entitlement of the petitioner to the relief or whether the petition is being disposed of without examining the claim on merits. The court should also normally fix a time­frame for consideration and decision..........."

18. When a direction is issued, it has to be understood that the power of judicial review under Article 226 of the Constitution lays emphasis on the decision making process rather than decision itself. While rejecting the case of the Execution Petitioners, the respondents have assigned reasons. The Court cannot direct the respondents to pass compliance order in a particular manner.

19. The submission of the Execution Petitioners is that though the contempt petition has been dismissed or dropped still it is open for the Execution Petitioners to file ::: Downloaded on - 15/10/2020 20:19:00 :::HCHP 14 Execution Petition to see whether the respondents have complied with the order or not. In this regard, burden is on .

the petitioners to show that the act and conduct of the respondents is contumacious. After decision in the Writ Petition, the Review Petitions and Contempt Petitions have been dismissed. Until and unless a specific order is not passed by this Court, the Execution Petitioners cannot insist to execute such orders. In case, such order is passed, the Execution Petitioners, if aggrieved, are at liberty to assail the order. Though the Execution Petitioners have made specific prayer for counting initial appointment on contract basis till regularization for the purpose of seniority and other benefits but the order passed is to consider the case of the Execution Petitioners for similar benefits.

20. We may observe herein that while disposing of the writ petitions with a direction to consider the case there is a need for the Court to make the direction clear and specific. The order should clearly indicate whether the Court is recording any finding about the entitlement of the ::: Downloaded on - 15/10/2020 20:19:00 :::HCHP 15 petitioners to the relief or whether the petitions are being disposed of without examining the claim on merits. As the .

Hon'ble supreme Court held in the judgment referred to supra the "consider" means it has kept avenues open for the respondents to consider and take decision. The decision may be in favour of the petitioners or against the petitioners. But at no point of time, Execution Petitioners cannot claim that consideration is only for extending the same benefits as they have prayed in the writ petition. When a specific relief is granted as sought in the writ petition, then the party is entitled to file contempt petition or execution petition and when the contempt petition is filed the burden is on the petitioner to prove the fact that the respondents have committed willful disobedience of the Court order. When execution is filed, the burden is on the petitioners as the maxim: Executio est executio juris secundum judicium means: Execution is the fulfillment of the law in accordance with the judgment.

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21. In the present case, the judgment is for consideration of the case of the Execution Petitioners in the .

light of the judgment of the Hon'ble Supreme Court. There is no binding direction to the respondents to grant a specific relief in a particular manner. The direction was to extend the benefits in case, the petitioners are entitled to and further to take decision in support of their entitlement. The respondents have considered their case by passing a detailed order and rejected the case of the Execution Petitioners.

22. Under these circumstances, we are not inclined to grant any relief to the petitioners in these Execution Petitions, at this stage. Hence the Execution petitions are dismissed alongwith all pending applications, if any. However, it goes without saying that it is for the Execution Petitioners to challenge the consideration order, in case, they are still aggrieved, in accordance with law.

(L. Narayana Swamy) Chief Justice (Anoop Chitkara) October 15, 2020. Judge (cm Thakur ) ::: Downloaded on - 15/10/2020 20:19:00 :::HCHP