Tarlok Singh Chauhan, ACJ
1. By way of this execution petition, the petitioners/decree holders have sought execution of order of the erstwhile Tribunal dated 25.05.2017 passed in OA No.3337 of 2016, titled as Lekh Ram and others vs. State of H.P. & others as upheld by this Court vide judgment dated 03.08.2023 in CWP No.2004 of 2017 in case titled as Taj Mohammed & others vs. State of H.P. & others and further affirmed by the Hon’ble Supreme Court vide its order dated 04.12.2023 in SLP(C) No.25641-25642 of 2023.
2. While allowing the petition filed by the petitioners, the Tribunal granted them the following reliefs:-
“17. In the result, the original application succeeds and is accordingly allowed with a direction to respondents No.1 and 2-State/competent authority(s) to consider the respective cases of the applicants for grant of seniority as Inspector Grade-l over and above private respondents No.3 to 23 in the light of the law laid down by the Hon'ble High Court in CWP(T) No.6785/2008, Narender Singh Naik Versus State of Himahal Pradesh and others, and LPA No.271 of 2011, State of Himachal Pradesh and others Versus Narender Singh Naik, followed in CWP No.497 of 2013-J, Shri Chhavinder Kumar Shandil Versus State of H.P. and others, and upheld by the Hon'ble Supreme Court in Petition(s) for Special Leave to Appeal (C) No(s). 34038/2012, Sunder Singh Versus State of H.P. & ors. and the connected matters, supra, and count their entire service, initially on contract and subsequently regularization, towards seniority alongwith consequential benefits, such as further promotion to the post of Food & Supplies Officer etc., within three months from the date of production of certified copy(s) of this order by the applicants before the said authority(s).”
3. The aforesaid judgment was affirmed by this Court vide its order dated 03.08.2023 wherein in para-25 (page No.50), it was observed as under:-
“25. Therefore, as the foundation of the order passed by the learned Tribunal, subject matter of these writ petitions, was the judgment of this Court in Narender Singh Naik’s case (supra), which judgment itself was based on the Five Judge Bench judgment of the Hon’ble Supreme Court in Direct Recruit’s case (supra), and as the learned Tribunal rightly held that the services rendered by the original applicants on contract basis were liable to be counted for the purpose of seniority and consequential benefits after their regularization, as the initial appointment of the original applicants on contract basis was after following the procedure prescribed in the Recruitment & Promotion Rules, we do not find any infirmity in the said findings and further as we do not find any merit in the writ petitions, the same are dismissed by upholding the order passed by the learned Tribunal. No order as to costs. Pending miscellaneous applications, if any, stand disposed of.”
4. Being aggrieved by the aforesaid judgment, the respondents had filed SLP before the Hon’ble Supreme Court, which came to be dismissed on 04.12.2023.
5. This execution petition was filed in March 2024 and the respondents have now filed the compliance affidavit dated 26th October, 2024, claiming that the judgment in question, has been complied with by placing on record a copy of the Notification dated 26.10.2024, which reads as under:
“Government of Himachal Pradesh
Department of Food, Civil Supplies & Consumer Affairs.
No. FDS-B(2)-5/2024-1 Dated:- Shimla-171002, the 26th October, 2024.
NOTIFICATION
In compliance to the orders passed by the Hon'ble High Court of Himachal Pradesh on 03-08-2023 in CWP No. 2004 of 2017 titled -Taj Mohammad & others versus State of Himachal Pradesh & others a/w CWP No. 629/2018-titled State of Himachal Pradesh & others versus Lekh Ram & others and orders passed in Execution Petition (T) No. 79/2024-titled as Lekh Ram versus State of Himachal Pradesh & another on 24-06-2024, 30-07-2024, 27-08-2024, 03-10-2024 and 15-10-2024, the Governor of Himachal Pradesh, on the recommendations of the Departmental Promotion Committee held on 23-10-2024 in the Himachal Pradesh Public Service Commission, is pleased to order the promotion of the following Inspector Grade-I, working in the Department of Food Civil Supplies & Consumer Affairs to the post of Food and Supplies Officer (Class-II, Non Gazetted) in the pay scale of 10300-34800+5000 GP (PRE-REVISED), on regular basis, with immediate effect:-
Sr.No Name of the official
1. Sh. Lek Ram
2. Ms. Anita Thakur
3. Sh. Sandeep Saklani
4. Sh. Suresh Kumar
5. Sh. Girish Chand
6. Ms. Lily Thakur
7. Sh. Anish Thakur
8. Sh. Arun Kumar
9. Sh. Surinder Singh
10. Sh. Rajeet Singh
11. Sh. Sunil Kumar
12. Sh. Naveen Kumar
13. Sh. Pankaj Sharma
14 Sh. Dhanveer Singh
2. The above promoted Food and Supplies Officer will remain on probation for a period of two years from the date of joining the promotional post.
3. The above Officers shall be entitled to exercise his/her option for fixation of pay under the provision of FR. 22(I)a(1) within one month.
4. The posting order of the above promoted Food and Supplies Officer will be issued separately.”
6. The respondent-department was asked to justify as to how the decree-holders/petitioners were being promoted prospectively with effect from 26.10.2024 when the erstwhile Tribunal while allowing the Original Application filed by the petitioners had directed the respondents to consider the cases of the respective petitioners for grant of seniority as Inspector Grade-I over and above private respondents No. 3 to 23 and had further directed them to count their entire service, irrespective whether it was rendered on contract basis and subsequently on regular basis, towards seniority alongwith all consequential benefits, which included promotions. However, the respondents were not in a position to justify their action and accordingly this Court proceeded to order to issue a notice of contempt against the Principal Secretary (Food, Civil Supply & Consumer Affairs) to the Government of Himachal Pradesh to show as to why he should not be punished and prosecuted for deliberately and willfully misleading this Court and thereby committing contempt of Court, in the earlier part of the day, on 27.11.2024.
7. Later, the learned Advocate General appeared and prayed for an adjournment on the ground that he wanted to cite certain judgments to justify the action of the State. This Court acceded to the request of the learned Advocate General only on the condition that in case the contentions of the State are not accepted, then the concerned Principal Secretary would be liable to pay the costs quantified at Rs.1,00,000/- which would be paid by him from his own pocket.
8. When the matter was taken up on 28.11.2024, the learned Advocate General, at the outset, stated that he was ready to abide by the terms of the order passed on 27.11.2024 and he would argue the case and accordingly we proceeded to hear the arguments.
9. It is vehemently argued by the learned Advocate General that the action of the respondents is in accordance with law, rules and instructions applicable which clearly provide that there is nothing known as retrospective promotion and the promotions, if any, can only be made after holding the DPC, which essentially means, that the promotions have to be made from the prospective effect.
10. In support of his contention, the learned Advocate General has placed reliance upon Union of India and others vs. N.C. Murali and others (2017) 13 SCC 575 wherein the Hon’ble Supreme Court held that unless there is specific rule entitling the applicants to receive promotions from the date of occurrence of vacancy, right of promotion does not crystallise on the date of occurrence of vacancy and promotion is to be extended on date it is actually effected.
11. However, we find that the ratio of the aforesaid judgment is not at all applicable to the facts of the instant case. In N.C. Murali’s case (supra), the facts before the Hon’ble Supreme Court were that the respondents were employed as Geophysicists in Geological Survey of India. The post of Assistant Geophysicists was a Group B post and next grade in the said cadre was the post of Geophysicists (Jr.) Group A. The promotion of Assistant Geophysicists was by two modes i.e by direct recruitment and by promotion through UPSC with ratio of 1:1. There were large number of posts of Geophysicists (Jr.) lying vacant from 1984 till 1998 totalling 31 in number. Due to various reasons, no DPC could take place for effecting the promotions in the Group A post. Subsequently, the DPC met and promotions were effected with effect from 2001. The respondents and various intervenors were considered and promotion orders were issued.
12. However, before the aforesaid promotion could take place, the respondents filed O.A. No. 119 of 2000 in the Central Administrative Tribunal in January 2001 praying for direction to the Ministry of Finance to revalidate and fill up the vacancies of the post of Geophysicists and further to convert the direct recruits quota into the DPC quota as one-time measure and fill the existing posts. During the pendency of the O.A., DPC was convened on 30-10-2001. The Tribunal decided the matter ultimately vide its order dated 13-11-2003. The Tribunal noticed the fact that DPC had been held. The Tribunal, however, did not accept the prayer of the applicants with regard to conversion of direct recruitment quota. However, the Tribunal to meet the ends of justice directed that the applicants be adjusted against the unfilled vacancies of respective years when DPC was not held. The Tribunal directed pro forma promotion to the Geophysicists according to the seniority and eligibility with retrospective effect against the vacancies of the respective years when they qualified for those posts.
13. It shall be apt to reproduce para-5 of the directions issued by the Tribunal which reads as under:
“Therefore, with a view to protect their seniority, we direct that pro forma promotion should be given to the Geophysicists on their promotion, according to their seniority and eligibility with retrospective effect, adjusting them against the vacancies of the respective years when they qualified for these posts. In order to protect their consequential benefits in future promotions as per seniority and eligibility, accruing to them on giving them such retrospective seniority, we also direct the respondents to reallocate them with notional promotions for respective years when they would have got these promotions but for DPC not being held, which was denied to them due to no fault of theirs by not holding the DPCs for the respective years. As regards one-time adjustment against the direct recruitment quota, it would be unfair, since as per the contentions of the applicants themselves, direct recruitment as per the vacancies in the quota had also not taken place. Therefore, such a step need not be taken. However, it would be fair and just that against the DPC quota, the officers, who had missed their promotions during the respective years when it was due and when they were qualified and eligible for it, it is directed to be given to them on notional basis. They, on promotion, may be allocated to the respective years of seniority through pro forma promotion of respective years, which would have been due to them had the DPC been held regularly for those respective years and in case they were eligible and qualified and found fit for the same.”
14. Aggrieved by the judgment passed by the Tribunal, the Union of India filed a writ petition before the High Court which was, however, dismissed constraining the Union of India to file an appeal before the Hon’ble Supreme Court.
15. The ratio of the aforesaid judgment is not applicable to the facts of the instant case as this Court being an executing Court is legally bound to implement the order sought to be executed, more particularly, when it has attained finality upto the Hon’ble Supreme Court. Here, the petitioners-decree holders are only seeking the execution of the judgment and not claiming any so-called retrospective promotions but promotions strictly in accordance with the order passed by the Tribunal as affirmed upto the Hon’ble Supreme Court.
16. The learned Advocate General has then relied upon the judgment of the Hon’ble Supreme Court in Union of India and others vs. Chaman Rana (2018) 5 SCC 798 to argue that there can be no retrospective promotions after such a belated passage of time as this would virtually bring a tsunami in the service resulting in administrative chaos quite apart from financial implications to the government. In particular, he has relied upon para-16 of the judgment which reads as under:
“16. In the facts and circumstances of the present case, any direction to consider retrospective promotion of the respondents at such a belated passage of time of over 17 to 20 years, would virtually bring a tsunami in the service resulting in administrative chaos quite apart from the financial implications for the Government. The order of the High Court is therefore held to be unsustainable and is set aside.”
17. In order to appreciate this judgment, we would have to look into the facts of the case. The Hon’ble Supreme Court in Chaman Rana’s case (supra) was dealing with a common order dated 05.05.2017 whereby the Union of India had been directed to consider the case of the respondents for promotion with retrospective effect from the date their juniors had been promoted along with all consequential benefits. The respondents in the two writ petitions were superseded in the years 1996 and 2000, respectively. Both of them were subsequently promoted on 28.11.1997 and 16.06.2003 as Second-in-Command and Commandant, respectively. Subsequently, both of them submitted several representations for promotion from the date of supersession. Orders rejecting the representations, along with reasons, were duly communicated to them more than once. After the pronouncement in Sukhdev Singh v. Union of India (2013) 9 SCC 566, affirming Dev Dutt v. Union of India (2008) 8 SCC 725, separate writ petitions were filed by them on 25.09.2016. The common plea taken was that the entry “good” in their Annual Confidential Reports (ACRs) for the relevant years was an adverse remark in view of the benchmark of “very good”. Since the adverse entry had not been communicated to them, it could not be taken into consideration requiring reconsideration for promotion from the date of their supersession. It was in this background that the Hon’ble Supreme Court made the aforesaid observations.
18. How the ratio of this judgment would apply to the facts of the instant case is beyond our comprehension as the learned Advocate General has failed to take into consideration that this Court is not dealing with the Original Application filed by the petitioners, but is enforcing the decree, as has been passed by the Tribunal, which as observed above, has been affirmed upto the Hon’ble Supreme Court.
19. All the arguments addressed by the learned Advocate General are in total ignorance of the well known principles of restitution, which amongst others, clearly provides that the act of the Court shall prejudice no-one. The principle of restitution is founded on the ideal of doing complete justice at the end of litigation and parties have to be placed in the same position but for the litigation and interim order, if any, passed in the matter, no party can take advantage of litigation. It has to disgorge the advantage gained due to delay in case lis is lost. The interim order passed by the Court merges into a final decision. The validity of an interim order passed in favour of a party stands reversed in the event of a final order going against the party successful at the interim stage.
20. As observed above, the rule is based upon the principles of justice, equity and fair play. The Court has inherent jurisdiction to order restitution so as to do complete justice, especially, when it is executing the order as it stands. This is also on the principle that a wrong order should not be perpetuated by keeping it alive and respecting it. What attracts applicability of restitution is not the act of the Court being wrongful or mistake or an error committed by the Court; the test is whether, on account of an act of the party persuading the Court to pass an order held at the end as not sustainable, resulting in one party gaining an advantage which it would not have otherwise earned, or the other party having suffered an impoverishment, restitution has to be made.
21. Litigation cannot be permitted to be a productive industry nor can litigation be reduced to gaming where there is an element of chance in every case. If the concept of restitution is excluded from application to interim orders, then the litigant would stand to gain by swallowing the benefits yielding out of the interim order. The word “restitution” in its etymological sense means restoring to a party on the modification, variation or reversal of a decree or order, what has been lost to him in execution of decree or order of the Court or in direct consequence of a decree or order. In law, the term “restitution” is used in three senses :
(i) return or restoration of some specific thing to its rightful owner or status;
(ii) compensation for benefits derived from a wrong done to another; and
(iii) compensation or reparation for the loss caused to another.
22. The principle that an undeserved or unfair benefits drawn by a party under the interim order of the Court cannot be retained and must be restituted is well acknowledged by law. Reference in this regard can be made to a judgment of the Hon’ble Supreme Court in Amarjeet Singh and others vs. Devi Ratan and others 2010 (1) SCC 417. The facts before the Hon’ble Supreme Court as reproduced in paras 2 to 7 of the judgment are as under:
“2. The facts and circumstances giving rise to these appeals are that the appellants and respondents in these cases were appointed as Excise Inspectors under the provisions of U.P. Excise Service (Class-II) Rules, 1970 (hereinafter called as "the Rules 1970"). The parties became eligible for consideration for promotion to the post of Superintendent of Excise under the said Rules, 1970. The criteria of promotion for the post of Superintendent of Excise and for higher post of Assistant Excise Commissioner (hereinafter called "AEC") had been "merit" under the provisions of U.P. Assistant Excise Commissioners Service Rules, 1992 (hereinafter called as `the Rules 1992'). The said rules stood amended w.e.f. 10.10.1994 and the criteria for promotion was changed from `merit' to `seniority subject to rejection of unfit."
3.The Appellant Amarjeet Singh alongwith some other Excise Inspectors filed writ petition No. 1113(SB) of 1994 before the Allahabad High Court challenging the selection process for promotion under Rules 1992. The High Court vide judgment and order dated 1.2.1995 held that the vacancies which had come into existence prior to 10.10.1994 i.e. the date of amendment, be filled up as per the unamended Rules i.e. on the basis of "merit" and not on the basis of "seniority subject to rejection of unfit."
4. Being aggrieved, the State of U.P. preferred the Special Leave Petition before this Court and this Court vide Order dated 30.10.1995 passed an interim Order permitting the State Authorities to make promotions as per 1994 amendment Rules but it was subject to the result of the petition as this Court made it clear that if petition was dismissed, the respondents would be reverted to the lower post from which they would be promoted. In view of the said interim order of this Court, 61 Excise Inspectors stood promoted, subject to the final outcome of the Special Leave Petition. This Court dismissed the said Special Leave Petition vide Order dated 19.8.1999 in limine. However, the State Authorities for the reasons best known to them, did not revert the promoted officers and they continued to hold the higher posts.
5. The Departmental Promotional Committee (hereinafter called the DPC) meant for filling up the 42 vacancies, which came into existance prior to 10.10.1994, met on 19.12.1998. After scanning the service records and determining the inter se merit of the candidates, the Committee came to the conclusion that only 30 candidates were suitable for promotion to the posts of AEC and they were to be promoted as per the availability of yearwise vacancies. The respondents, herein, were found unsuitable for promotion in the said selection process. After completing the aforesaid exercise, 12 vacancies for the post of AEC remained unfilled. Therefore, the 12 vacancies were carried forward to enable the State Authorities to fill up the same under the amended Rules on a different criteria i.e. "Seniority subject to rejection of unfit". Thus twelve officers/respondents were promoted under the amended rules by the another DPC held on 22.1.1999.
6. The State Government issued the Order dated 15.5.1999 reverting all Excise Inspectors promoted on 6.12.1995 under the interim order of this Court and gave notional promotions with retrospective effect to appellants as well as all the reverted officers/respondents. As a consequence, a seniority list dated 12.7.2000, was issued, wherein the appellants were placed over and above the respondents.
7. Being aggrieved, the respondents approached the High Court challenging the said seniority list dated 12.7.2000. The High Court vide impugned judgment and order dated 11.4.2002 held that as the postings to both set of officers i.e. those who had been promoted by the DPC dated 19.12.1998 and another DPC dated 22.1.1999 had been made on the same day and had been given notional promotion from one and the same date, their inter se seniority was to be fixed as it existed in the feeding cadre of Excise Inspectors and thus quashed the seniority list dated 12.7.2000 and further directed the State to prepare a fresh seniority list placing the appellants below the respondents. Hence these appeals.”
23. In the context of these facts, the Hon’ble Supreme Court observed as under:-
“16. In view of the fact that the respondents continued on a higher post under the orders of this Court for years together and even after dismissal of the petition filed by the State, and the exercise for making promotions was not undertaken by the State Authorities, the appellants should not suffer for no fault of theirs. It has fairly been conceded by learned counsel appearing for the respondents that had the exercise of making promotions been undertaken immediately after the order of this Court dated 19.8.1998, the appellants could have been promoted much earlier and they could have been senior to the respondents. Thus the question does arise as to whether appellants should be asked to suffer for the interim order passed by this Court in a case having no merits at all.
17. No litigant can derive any benefit from mere pendency of case in a Court of Law, as the interim order always merges in the final order to be passed in the case and if the writ petition is ultimately dismissed, the interim order stands nullified automatically. A party cannot be allowed to take any benefit of his own wrongs by getting interim order and thereafter blame the Court. The fact that the writ is found, ultimately, devoid of any merit, shows that a frivolous writ petition had been filed. The maxim "Actus Curiae neminem gravabit", which means that the act of the Court shall prejudice no-one, becomes applicable in such a case. In such a fact situation the Court is under an obligation to undo the wrong done to a party by the act of the Court. Thus, any undeserved or unfair advantage gained by a party invoking the jurisdiction of the Court must be neutralised, as institution of litigation cannot be permitted to confer any advantage on a suitor from delayed action by the act of the Court. (Vide Shiv Shankar & Ors. Vs. Board of Directors, Uttar Pradesh State Road Transport Corporation & Anr., 1995 Suppl. (2) SCC 726; M/s. GTC Industries Ltd. Vs. Union of India & Ors., AIR 1998 SC 1566; and Jaipur Municipal Corporation Vs. C.L. Mishra, (2005) 8 SCC 423).
18. In Ram Krishna Verma & Ors. Vs. State of U.P. & Ors., AIR 1992 SC 1888 this Court examined the similar issue while placing reliance upon its earlier judgment in Grindlays Bank Limited Vs. Income Tax Officer, Calcutta & Ors., AIR 1980 SC 656 and held that no person can suffer from the act of the Court and in case an interim order has been passed and petitioner takes advantage thereof and ultimately the petition is found to be without any merit and is dismissed, the interest of justice requires that any undeserved or unfair advantage gained by a party invoking the jurisdiction of the Court must be neutralized.
19. In Mahadeo Savlaram Sheke & Ors. Vs. Pune Municipal Corporation & Anr., (1995) 3 SCC 33, this Court observed that while granting the interim relief, the Court in exercise of its discretionary power should also adopt the procedure of calling upon the plaintiff to file a bond to the satisfaction of the Court that in the event of his failing in the suit to obtain the relief asked for in the plaint, he would adequately compensate the defendant for the loss ensued due to the order of injunction granted in favour of the plaintiff. Even otherwise the Court while exercising its equity jurisdiction in granting injunction is also competent to grant adequate compensation to mitigate the damages caused to the defendant by grant of injunction. The pecuniary award of damages is consequential to the adjudication of the dispute and the result therein is incidental to the determination of the case by the Court. The Court can do so in exercise of its inherent jurisdiction in doing ex debito justitiae mitigating the damage suffered by the defendant by the act of the Court in granting injunction restraining the defendant from proceeding with the action complained of in the suit. Such a procedure is necessary as a check on abuse of the process of the Court and adequately compensate the damages or injury suffered by the defendant by act of the Court at the behest of the plaintiff.
20. In South Eastern Coalfields Ltd. Vs. State of M.P. & Ors., AIR 2003 SC 4482, this Court examined this issue in detail and held that no one shall suffer by an act of the Court. The factor attracting applicability of restitution is not the act of the court being wrongful or a mistake or error committed by the court; the test is whether on account of an act of the party persuading the court to pass an order held at the end as not sustainable, has resulted in one party gaining an advantage it would not have otherwise earned, or the other party has suffered an impoverishment which it would not have suffered but for the order of the court and the act of such party. There is nothing wrong in the parties demanding being placed in the same position in which they would have been had the court not intervened by its interim order when at the end of the proceedings the court pronounces its judicial verdict which does not match with and countenance its own interim verdict. The injury, if any, caused by the act of the court shall be undone and the gain which the party would have earned unless it was interdicted by the order of the court would be restored to or conferred on the party by suitably commanding the party liable to do so. Any opinion to the contrary would lead to unjust if not disastrous consequences.
21………
22.Similarly in Karnataka Rare Earth & Anr. Vs. Senior Geologist, Department of Mines & Geology & Anr., (2004) 2 SCC 783, a similar view has been reiterated by this Court observing that the party who succeeds ultimately is to be placed in the same position in which they would have been if the Court would not have passed an interim order.”
24. It is precisely what is spoken in Amarjeet Singh’s case (supra) that is attracted to the facts of the present case. Here, the Court is not deciding the lis but only executing the order of the Tribunal and the said order has to be executed as it is.
25. It again needs to be reiterated that it is the petitioners, who had approached the Tribunal by filing Original Application which was duly allowed by the Tribunal. It is thereafter that the State first approached this Court and obtained interim orders and after having lost before this Court, approached the Hon’ble Supreme Court. Even after, losing before the Hon’ble Supreme Court, the State again approached this Court with a review petition, but took no steps to hold DPC, ostensibly, because the State held the key and was the sole master to decide about the convening of the DPC. But, in this process, the State forgot the mandatory directions passed by the Tribunal.
26. As held by the Hon’ble Supreme Court in Amarjeet Singh’s case (supra), the law permits promotion with retrospective effect only in exceptional circumstances when there has been some legal impediment in making the promotions, like an intervention by the Court, as is the fact situation obtaining in the present case.
27. Therefore, the State is legally bound to execute the order passed by the Tribunal as it is by granting promotions in terms thereof, be it, even from the retrospective effect.
28. Accordingly, the execution petition is allowed and the respondents/judgment-debtors are directed to promote the petitioners from due date retrospectively strictly in terms of the order dated 25.05.2017 passed in O.A. No. 3337 of 2016.
29. Since, the learned Advocate General has fairly stated that the respondents herein have contested this execution petition solely on the basis of the advice rendered by him, we deem it appropriate not to impose costs.
30. Pending application(s), if any, also stands disposed of.
