Punjab-Haryana High Court
Punjab Public Service Commission vs Ajay Kumar Son Of Sudarshan Kumar And ... on 24 January, 2013
Author: K. Kannan
Bench: K. Kannan
C.R. No.3859 of 1999 -1-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT
CHANDIGARH
C.R. No.3859 of 1999
Date of Decision.24.01.2013
Punjab Public Service Commission, Patiala through its Chairman and
another
.....Petitioners
Versus
Ajay Kumar son of Sudarshan Kumar and others .......Respondents
Present: Mr. Vishal Garg, AAG, Punjab
for the petitioners.
Mr. Y.P. Khullar, Advocate
for respondent No.1.
CORAM:HON'BLE MR. JUSTICE K. KANNAN
1. Whether Reporters of local papers may be allowed to see the
judgment ? Yes
2. To be referred to the Reporters or not ? Yes
3. Whether the judgment should be reported in the Digest? Yes
-.-
K. KANNAN J.(ORAL)
1. When a decree for declaration and for injunction was put to execution, it was resisted by the State that the decree was inexecutable in the manner in which the reliefs were granted. The objection by the State-judgment debtor was rejected by the Executing Court and it is this decision which is in challenge before this Court.
2. The plaintiff had filed a suit when his candidature for consideration for appointment to the post of Sub Divisional Engineer (Civil) Punjab, PWD (B&R) Branch was rejected by treating him as a candidate belonging to General Category. The plaintiff's case was that he was fully eligible for the post and that he being a person belonging to Backward Class, he should have been considered as a person belonging to such category and an appointment order issued to him. The principal C.R. No.3859 of 1999 -2- contest was entered by the Punjab Public Service Commission stating in defence that the plaintiff did not belong to Backward Class and that he belonged only to General Category and the rejection of the plaintiff's candidature was, therefore, justified. The trial Court decreed the suit as prayed for. The suit contained three reliefs. Since the decree contains no more reference than the fact that the suit was decreed as prayed for, it becomes relevant to reproduce the prayers contained in the suit, which were extracted in the decree-sheet. Decree-sheet reads as follows:-
"Suit for declaration to the effect that the plaintiff is a candidate of Backward Class and that action of defendant Nos.2 and 4 treating him as a candidate of General Category while interviewing him on 2nd Feb 1993 with respect to the post of Sub Divisional Engineer (Civil) Punjab, PWD (B&R) Branch is illegal, null and void.
AND Suit for mandatory injunction directing the defendants to appoint the plaintiff as Sub Divisional Engineer (Civil), B&R Branch treating him as a candidate for Backward Class for the said post.
AND Suit for permanent injunction restraining the defendants from filling up the vacant post of Sub Divisional Engineer of PWD (B&R) Branch lying vacant against the Backward Class category on the basis of oral and documentary evidence."
3. The decretal portion reads as follows:-
"It is ordered that the suit of the plaintiff is decreed as prayed for but with no order as to costs due to peculiar circumstances of this case."
4. The reliefs extracted in the decree-sheet, therefore, would make it evident that the plaintiff was asking for three distinct reliefs (i) he should be treated as a candidate belonging to Backward Class; (ii) There shall be mandatory injunction to direct appointment of the plaintiff treating him as a candidate belonging to Backward Class and
(iii) permanent injunction to restrain the defendant from filling up the C.R. No.3859 of 1999 -3- vacant posts. It appears that the State went on appeal but the appeal was dismissed. The Regular Second Appeal filed by all the defendants was also dismissed on 09.05.1998. When the decree was put in the execution complaining that the order had not been issued, the Public Service Commission came with a defence that the decree could have only provided for consideration of appointment and not directed the appointment itself. It was also the contention that the decree-holder himself was not eligible to be appointed since he did not fulfill the benchmark of 40 marks in the screening test and other tests that were applied before appointment orders were issued. The contention was that there were only two seats reserved for Backward Class candidates and such two posts had been filled up already by persons, who had belonged to the said category and who had secured higher marks than the plaintiff himself had. The judgment debtor would also contend that the selected candidates within that category had not been impleaded in suit and the decree was also bad for non-joinder of necessary parties. All these contentions were rejected as falling outside the realm of enquiry at the execution stage by the Executing Court and it was ordered to be executed by attachment and sale of the property for realization of the decretal amount and for other reliefs. There was a direction to the Treasury Officer for attachment of the properties of the respondents No.3 and 4 namely the Punjab Public Service Commission through its Chairman and Secretary. The above narration of facts detail the course for history of this revision.
5. Learned counsel appearing on behalf of the petitioners states that in service law, there could be only a case of consideration for appointment and not mandatory relief for appointment itself. C.R. No.3859 of 1999 -4- Learned counsel refers me to a judgment of the Supreme Court in State Bank of India Vs. Anju Jain 2008(8) SCC 475 where the Supreme Court was considering the issue of a direction for compassionate appointment of a person, who claimed to be dependent on the deceased employee, who died in harness. On a challenge against the direction of the High Court in a writ petition, the Supreme Court held that only a relief of consideration for appointment could have been made and not directed the appointment itself to be made. I cannot understand as to how this judgment is applicable in a case where the order passed by the Court in the writ petition was itself assailed and the Court held that such a relief could not have been granted. We have come past the stage where the judgment debtor could contend that a decree could not have been passed. It should have been a subject of challenge in a higher forum. Indeed the defendants had challenged the decree and it was dismissed. I find that there is not even a general defence taken at any time before the trial Court that even if the plaintiff were to be considered as belonging to Backward Class Category, he would still not be eligible for appointment since he did not fulfill the benchmark. Such a defence was not taken and the case took, therefore, a predictable turn in favour of the plaintiff in granting the relief for injunction in the manner sought for. It should have been possible to contend at that stage that even if the plaintiff were to belong to Backward Class category, the prayer for consideration for appointment was not possible. Even such a contention was not taken. The matter did not reside merely with the 1st Appellate Court but it had come to this Court as well in challenge in RSA No.2658 of 1998 when the High Court dismissed the appeal. It was literally confirming the decree, which was already passed among all the three C.R. No.3859 of 1999 -5- reliefs as sought for by the plaintiff.
6. Learned counsel also relies on a judgment of the Supreme Court in Sarup Singh and another Vs. Union of India and another AIR 2011 SC 514. The issue involved in the case was the executability of a decree where a decree had been passed by a Court without jurisdiction when there was an exclusive jurisdiction vested with a Reference Court under the Land Acquisition Act. The Court said that the decree was non est and void ab initio. The defect of jurisdiction would strike at the very root of the authority of the Court to pass a decree. Jurisdictional issues relating to a complete lack of competence for a Court to entertain a suit would stand in a different footing than a Court which had admittedly the competence to entertain a suit but in the manner of grant of a decree, it had allowed for relief, which according to the defendant was not tenable. Such a relief is not tantamount to a decree without jurisdiction and could not be staved off as inexecutable or illegal at the stage of execution. The precept in law that an Execution Court will not traverse beyond terms of the decree is rooted on a public policy that the party is not vexed with new defences again at the stage of execution and that matters relating to the validity of a decree should determine even at the time when the suit is before the Court and the parties take up all defences which are tenable to see that a decree is either passed or not passed. After a decree is passed, the only area that the Executing Court can traverse to fetter its own power to execute it, would be when it lacked a complete jurisdiction to entertain the suit or there had been an inherent lack of jurisdiction to entertain a particular nature of suit. A suit for declaration that he was entitled to a particular legal status is a suit contemplated under Section 34 of the Specific C.R. No.3859 of 1999 -6- Relief Act. A mandatory injunction that the plaintiff seeks for that he must be directed to be appointed is also another specie of specific relief, which is the contemplation of Section 39 of the Specific Relief Act. Both the reliefs were perfectly tenable but if in a given situation the plaintiff did not have the necessary benchmark for obtaining the relief, it ought to have been brought at the time of trial itself and cannot be set up at the stage when it is sought to be executed. Even a plea by the judgment debtor that the suit ought to have failed for want of necessary parties is not an objection, which can be brought at the stage of execution. A necessary party whose absence will result in dismissal of the suit itself to obtain the main reliefs is verily an objection that must come at the fore-front. Even the Civil Procedure Code mandates that objection regarding non-joinder or misjoinder must be brought at the earliest stage in terms of Order 1 Rule 9. The non- joinder of a necessary party, which is excepted under the said rule must still be taken before a final adjudication itself is made. A decree does not become illegal or untenable by the fact that a person, who was a necessary party had not been impleaded. The defence taken to the execution application for enforcement of the decree was, therefore, absolutely untenable and the revision is equally without any merit. It is a vexatious attempt on the part of the State to get over the effect of the decree and taunted a plaintiff, who is a decree holder from realizing the fruits of the decree for more than a decade.
7. Even while dismissing the revision, I must find that the plaintiff would encounter with some difficulty in executing the decree in the manner sought for. The relief sought is for attachment of the properties of respondent Nos.3 and 4 but in the manner of description of C.R. No.3859 of 1999 -7- the properties of respondent Nos.3 and 4, the following is mentioned:-
"Section A General Services Sub-sector (D) Administrative Services Major Head 2051-102 State Public Service Commission (charged) 01 Public Service Commission Non-plan scheme 1999-2000 salaries."
8. The decree holder shall be at liberty to give proper details of properties, which are sought to be attached. The decree holder shall also be at liberty to seek for attachment or arrest of the judgment debtor, who holds the present office as being guilty of contumacious conduct for not enforcing the decree for injunction in the manner provided under Order 31 Rule 32. The schedule of property as given in the attachment is not appropriate and the decree holder shall have a right to modify the schedule appropriately and if such a prayer is sought, the respondent shall be barred from taking up any objection regarding the executability of the decree or the substitution of property capable of attachment. Only objection that can be taken is what is permissible under Section 60 if there are any properties which are not capable of being attached.
9. The revision petition is dismissed with costs which I assess at ` 3,000/- and exemplary costs at ` 3500/- as provided under Section 35- A of the Civil Procedure Code.
(K. KANNAN) JUDGE January 24, 2013 Pankaj*