Chakkhari Lal and ors. Vs. State of U.P. and ors. - Court Judgment

Excerpt:
- - in another application for impleadment on 5.12.1991 (annexure-8). thereafter, learned district judge, agra constituted a committee for considering if anything further is required to be done for implementing the order of the apex court dated 9.1.1990 and 9.5.1991. the said committee in its report dated 26.10.1991 clearly observed that the order of the supreme court stood complied with and no further compliance was required. dismissal of the contempt application clearly indicates that the apex court was satisfied that there was nothing to be implemented of the order dated '9.1.90. the liberty to approach on judicial side was confined to a cause of action outside the ambit of the order dated 9.1.90, which the petitioners could settle by means of fresh writ petition on the basis of the situation as it stood upon implementation of the order dated 9.1.90 by the high court while dealing with the impleadment application in the respective orders dated 9.5.91 and 5.12.1991 (annexures 9 & 8 respectively), the apex court. ' 17. the above order clearly shows that reversion of the petitioners during pendency of the reference to the high court on its administrative side, was set aside and restored. agrawal, clearly indicates that there was no deviation in the grant of future promotion to the petitioners from the general seniority list. 23. a very interesting question has been raised by mr. the failure to do so amounts to contempt making the contemner liable for punishment thereunder. 25. in article 144 it has been provided that the all authorities civil or judicial in the territory of india, shall act in aid of the supreme court, in the present case the high court having issued appropriate administrative instruction in terms of the order dated 9.1.90 and the learned district judge, agra having constituted a committee for the purpose of ascertaining as to whether the order, dated 9.1.90 has been complied with completely and the committee so constituted having submitted its report on 26.10.1991 clearly indicating that the order has been complied with fully and thereafter contempt application having been filed, it presupposes that all these matters were taken note of by the apex court while dismissing the contempt application in limine. the writ in itself a command can be enforced by the apex court in view of article 142 of the constitution as well as through article 129 of the constitution by initiating proceeding in contempt.d.k. seth, j.1. the petitioners are four in number. they were employees in the judgeship of agra. the dispute involved is confined to their right to promotion to different posts from the respective posts held by the petitioners. the petitioners have based their right on the decision in the case of chakkhan lal and ors. v. district judge, agra and ors., decided by the apex court on 9.1.1990 (annexure-5).2. as many as six prayers have been incorporated in the writ petition. second to sixth prayer really flows from the first prayer in as much as second to sixth prayer are the consequential benefits arising out of the first prayer. the first prayer has been couched in the following expression :'prsue a writ, order or direction in the nature of mandamus commanding the respondents to comply with/execute the judgment of the hon'ble supreme court dated 8.1.1990 forthwith.'3. the petitioners claim that despite the order dated 9.1.90, the petitioners have not been given the benefits arising thereout, therefore, the said order should be executed by this court so as to enable the petitioners to obtain the relief claimed in second to sixth prayers.4. mr, mandhyan, learned counsel for the petitioner, referring to various details of-the case, asserts that the order dated 9.1.90 has not been implemented, and therefore, this court should execute the same.5. mr. sudhir agrawal, learned counsel appearing on behalf of the employees, who would be effected by reason or any order passed in the present writ petition, had filed an application for addition of those persons as parties to the present writ petition together with a counter-affidavit. the said application was filed on 4.4.91.6. after having heard learned counsel for the parties, it appears that the petitioners are claiming promotion and fixation of their pay above the applicants to the impleadment application. mr. mandhyan very fairly conceded that if the relief claimed is granted, in that event, it would surely affect the proposed respondents seeking to implead themselves as parties to the writ petition.7. it is an established principle of law that nothing adverse could be passed against a person, who is not a party to the proceedings in as much as such proceedings would be hit by the principle of 'audi alteram partem'. in the facts and circumstances of the present case, the applicants to the impleadment application are necessary and proper parties, therefore, the said application is allowed. the counter-affidavit filed by those added respondents be taken on record. the petitioners have already filed their rejoinder affidavit to the same counter-affidavit which is also taken on record.8. mr. s.m.a. kazmi, learned counsel appearing on behalf of the high court, has opposed the. prayer of mr. mandhyan and contended that the order dated 9.1.90 has been implemented in letters and spirit. the writ petition is, therefore, wholly misconceived and not maintainable.9. mr. sudhir agrawal on the other hand, cantended that the claim of the petitioners even on merits is untenable. the order dated 9.1.90 has been implemented. the question of non-implementation was successively taken to the apex court through successive applications for contempt, all of which were disposed of. bur none of the said orders of the apex court had even interfered with the implementation of the order dated 9.1.90. on the other hand, it had clarified the situation and left the matter at the discretion of the high court. according to the learned counsel, the order dated 9.1.90 has been fully implemented and there is nothing left for further implementation, as such there cannot be any scope for execution of the order dated 9.1.90. in the effort, he had_ also raised an objection to the extent that prayer for execution of the order dated 9.1.90 could not be made before the high court. in as much as writ jurisdiction conferred under article 226 of the constitution does not empower the high court to execute a decree passed by another court even if it be the apex court. therefore, the said application is wholly misconceived and not maintainable.10. learned standing counsel on the other hand supported the arguments of mr. agrawal and mr. kazmi.11. in the facts and circumstances of the case after having heard learned counsel for the parties, it is necessary to refer to the background of the case giving a brief history in order to appreciate the intent and purport of the writ petition so as to dispense complete justice.12. the petitioner no. 1 was promoted by the learned district judge, agra to the post of clerk grade ii by an order dated 10.2.1977. the petitioner no. 2 was promoted to the post of munsarim-cum-reader on 20.10.75. the petitioner no. 3 was similarly promoted to the post of munsarim-cum-reader on 2.5.77 while petitioner no. 4 was promoted to the same post on 26.8.77. all these promotions were granted to the petitioners applying provisions for reservation in promotion for scheduled caste, scheduled tribe and backward class employees. the general category candidates objected to the said promotion on the ground that they were being superseded by these persons on the ground of reservation which does not apply to the services under the judgeship. the matter having been referred to the high court in administrative side, the district judge was informed by a letter dated 8.2.1980 (annexure-1) that reservation in promotion to scheduled caste candidates does not apply to the services in the judgeship. in implementation of the said order, the learned district judge issued an order dated 15.2.1980 (annexure-4) reverting the petitioners. the said order of reversion was challenged in writ petition no. 2379 of 1980, but the same was dismissed in limine. against the said order, s.l.p. no. 402/80 (civil appeal no. 1104 of 1982) was filed. by order dated 9.1.90 (annexure-5) the said s.l.p. was disposed of. it is this order which is the sheet anchor of the petitioners' case. in the meantime after rejection of the writ petition, the order of reversion had taken effect. after the order dated 9.1.1990 the high court in its administrative side, directed the learned district judge, agra to restore status quo ante to the petitioners. by an order dated 2.4.1991, the learned district judge restored the status of the petitioners as on 15.2.1980 and had granted additional benefit of accelerated seniority to the petitioners on the promoted post without giving the financial benefit. the general category employees sought to implead themselves before the apex court. the apex court expressed no opinion on the claim of the applicants but left the high court free to deal with the matter indicating that if there is no direction for reservation in accordance with law, it was open to the high court to meet the situation by making its own order and such order was passed on 9th may, 1991 (annexure-9). the said order was repeated by the apex court. in another application for impleadment on 5.12.1991 (annexure-8). thereafter, learned district judge, agra constituted a committee for considering if anything further is required to be done for implementing the order of the apex court dated 9.1.1990 and 9.5.1991. the said committee in its report dated 26.10.1991 clearly observed that the order of the supreme court stood complied with and no further compliance was required. the petitioners having been allowed to retain the benefits, objections were made by the general category employees that it would be granting undue advantage to the petitioners on the basis of reservation though in law they were not eligible for the same. ultimately the benefit of accelerated seniority was withdrawn.13. however, the petitioners filed contempt petition no. 205 of 1992 before the apex court alleging non-compliance of the order. by an order dated 18th september, 1995 (annexure-13), the said contempt petition was disposed of. thereafter the petitioners filed another application being i.a. no. 7 of 1996 wherein it claimed the relief that the respondents may be directed to place the petitioners on the posts, to which they are entitled to in terms of the order dated 9.1.90 and to give them all service benefits including promotion on the basis of accelerated seniority. by an order dated 11.10.1996 (annexure-c.a. 6), the same was dismissed with the observation that if the petitioners are aggrieved, it would be open to them to approach the high court on judicial side.14. the present writ petition is to be dealt with in the context of the facts and circumstances narrated above.15. mr. agrawal, mr. kazmi and learned standing counsel sought to contend that the petitioners having applied for implementation of the order dated 9.1.91 through the apex court itself in the contempt proceedings, the question of execution of the said order no more subsists.16. after having heard learned counsel for the parties, it is abundantly clear that by means of the contempt application (annexure-13) seeking to implement the order dated 9.1.90 having been disposed of finally, nothing remains to be executed. the said order of dismissal even if non-speaking, is binding on the petitioners so far as it relates to non-implementation of the order of the apex court. dismissal of the contempt application clearly indicates that the apex court was satisfied that there was nothing to be implemented of the order dated '9.1.90. the liberty to approach on judicial side was confined to a cause of action outside the ambit of the order dated 9.1.90, which the petitioners could settle by means of fresh writ petition on the basis of the situation as it stood upon implementation of the order dated 9.1.90 by the high court while dealing with the impleadment application in the respective orders dated 9.5.91 and 5.12.1991 (annexures 9 & 8 respectively), the apex court. ,had observed that the high court had taken certain decisions with regard to the order dated 9.1.90 and that the high court was free to deal with the matter if there is no direction for reservation and it was open to the high court to meet the situation by making its own order. thus, the question was kept open to be decided by the high court accordingly. in the order dated 9.1.90 the apex court had held as follows :'we are of the view that the action taken by the district judge in recalling the benefit of reservations was not justified, and therefore, the order of the district judge which was impugned before the high court must be set aside, the net result, therefore, is that the benefit already available to the appellants shall be restored to them with all consequential benefits and the reference made by the district judge to the high court for administrative instructions shall be deemed to be pending. the high court shall take into consideration the law laid down in a series of cases of this court relevant to point and if it considers appropriate it may advise the district judge as to what action should be taken. otherwise the appellants shall have the benefit of this judgment and shall remain covered by the reservations as directed by the state government.'17. the above order clearly shows that reversion of the petitioners during pendency of the reference to the high court on its administrative side, was set aside and restored. thus, the said restoration of status quo ante was subject to the administrative instructions of the high court. the supreme court had also admitted the freedom of the high court in considering the question of reservation in the services in the judgeship and had recorded an observation that the high court may issue appropriate advice to the learned district judge in the matter after taken into consideration the law relating to reservation. it was further observed that unless such advice is given to the district judge, agra by the high court, appellants would be entitled to the benefit of the order dated 9.1.1990 and shall remain covered by the reservation as directed by the state government. thus, it is absolutely unambiguous that setting aside of the reversion and restoration of the promotion was subject to administrative instruction or advice of the high court and that the benefit of reservation would be available only if the reservation is applicable in the judgeship in case of promotion. by reason of the specific observation made in the order dated 9.1.90 the petitioners cannot claim any absolute right to the promotion given to them by applying reservation in promotion in the judgeship. therefore, the petitioners are not entitled to consequential benefits namely accelerated seniority and further promotions irrespective of their regular seniority solely on the basis of the promotion which was directed to be retained by order dated 9.1.90. the retention of promotion being conditional and the high court having issued fresh instructions, no benefit could be claimed out of the order dated 9.1.90 in supersession of the administrative instructions or advice issued after arriving at the final conclusion on pending reference referred to in the order dated 9.1.90. the said restoration was by way of an interim measure till reference on administrative side is finally decided and subject to such decision. the benefit which was directed to be restored, could be retained only if the high court fails to take decision on the pending reference or considers the reservation applicable in promotions in the judgeship.18. above interpretation of the order dated 9.1.90 is supported by the subsequent observations made by the apex court in impleadment application filed by the general category employees, namely orders dated 9th may, 1991 and 5th december, 1991 (annexures 9 & 8 respectively) wherein the apex court had observed that the high court was free to deal with the matter indicating that if there is no direction for reservation in accordance with law it was open to the high court to meet the situation by making its own order.19. thus, though the petitioners may retain pecuniary benefits already received by them, but respective promotion given to them for the purpose of calculation of seniority and future promotion should be the respective dates as and when they would become eligible for respective promotion on the basis of general seniority without applying reservation. this is a fiction created due to the order dated 9.1.90. a true interpretation of the order dated 9.1.90 leads us to the irresistible conclusion that the reversion order was set aside subject to the orders that may be passed on reference to the high court on administrative side and subject to application of reservation. as soon the reservation is held not to be applicable and the high court issues certain direction, the petitioners could not have claimed promotional benefits from the date when they were actually given promotion by applying reservation through mistake. though the petitioners have made out a case that some of the juniors to the petitioners though promoted later on, had been getting higher pay, but no specific case has been made out with proper data so as to come to the conclusion on the basis of those material that such a situation had arisen. on the other hand, in the counter-affidavit filed by the added respondents, it has been pleaded in paragraph 3 (e) that petitioner nos. 1,2, 3 & 4 are placed at serial nos. 1, 11, 20 & 33 respectively in the seniority list. the petitioner no. 1 has already retired on 31.1.1995. so far as question of getting higher pay by juniors in relation to petitioner no. 1 is concerned, no such pleadings appear to have been made out. admittedly, the petitioner no. 1 is the senior most but in his case he claims next higher promotion on the basis of his seniority calculated from the date of the mistaken promotion which he cannot claim by reason of the order dated 9.1.90 as interpreted earlier. he was eligible and entitled to the promotion to the next higher post strictly on the basis of the seniority in the seniority list without any application of reservation. in fact, by reason of the mistaken order the petitioners have obtained some benefit which they were not otherwise entitled and eligible under law. a benefit which was given by mistake, does not create a right in favour of the petitioners to enforce repetition thereof. the court cannot direct enforcement of a right arising out of some benefit conferred through mistake which was ultimately corrected pursuant to the liberty granted in the order dated 9.1.90 or in other words, it was not a liberty granted by order dated 9.1.90 but it was recognition of the jurisdiction of the high court in its administrative side to take appropriate decision on the basis of the law applicable. if reservation is not applicable, in that event, the seniority is to be counted both of the general category employees and those of scheduled caste and scheduled tribe employees in the same order as general candidates, and therefore the promotion to the next higher post would be due only on the basis of general seniority and not otherwise. 20. no case has been made out in the present writ petition to the extent that the general seniority list has been violated or that the petitioners have been deprived of any right to promotion on the basis of the said seniority list. in the absence of any such pleading it is not possible for this court to enter into these questions. the prayers made in the writ petition itself is indicative of foundation of the petitioner's case. their claim is solely founded on the order dated 9.1.90, therefore, it also cannot be pleaded now that they are eligible to get certain other benefits on the basis of general seniority. it was open to the petitioners to plead such case even alternatively. the petitioners having not pleaded which they could have, they are now estopped to plead again in view of the principle that the points which could have been raised but not raised, shall be deemed to have been raised. the principle analogous to res judicata as mentioned above stares on the face of the petitioners and as such they cannot claim such benefits since not raised. the materials produced by mr. kazmi and referred to by mr. agrawal, clearly indicates that there was no deviation in the grant of future promotion to the petitioners from the general seniority list. the relevant orders which were passed by the high court in its administrative side in terms of the order dated 9.1.90 with regard to reservation, have also been placed before this court, through which i have been taken it is not possible to decipher that there was any infirmity in the said order. the petitioners have also not challenged those orders on the. ground of any other infirmity except that emanating from the order dated 9.1.90. such a submission appears to be wholly misconceived by reason of interpretation of the order dated 9.1.90 reflected above.21. mr. mandhyan, had tried to make out a case that the orders dated 2.4.91 (annexure-12), 29.1.90 (annexure s.a.-l), 25.10.91 (annexure c.a.-ii), 2.4.1991 (annexure s.a.-2) and 28.5.03 (annexure s.a. 3) should either be quashed or be modified, by means of a supplementary affidavit filed on 25.9.97. the petitioners had sought to get the order dated 9.1.90 implemented through successive contempt petitions, the last of which was disposed of by an order dated 11.10.1996 before the said orders which are being sought to be quashed or modified were passed. therefore, those must have been subject matter of the said petition. however, in the said order dated 11.10.1996 it was observed that if the petitioners were so advised, they may move the high court on judicial side. the very said observation appears to have again been made in the order dated 5.12.1991 wherein it was observed that 'the applicants will have to follow the beaten track in challenging the said order in regular proceeding or seek a review if so advised from the high court on administrative side'. therefore, in view of the said observation, it was open to the petitioners to challenge the respective orders dated 2.4.91 (annexure-12), 29.1.1990 (annexure-s.a.-l), 25.10.91 (annexure-c.a.2) and 2.4.1991 (annexure s.a.-2) which were very much in existence on december 5, 199.1. the petitioners had never done so. on the other hand, they continued with successive applications. now they can not challenge the same after having waited for long six years without any explanation. these orders could have been challenged immediately after 5.12.1991. the remedy which was open to the petitioners having been wasted, they cannot fall back upon the same after having dragged on the matter to such a length. then again as observed earlier, there appears no infirmity in the said order and nothing remains to be implemented as far as order dated 9.1.1990 is concerned.22. for all these reasons, there appears to be no merit in the case of the petitioners sought to be espoused through this writ petition.23. a very interesting question has been raised by mr. agrawal about the extent of jurisdiction exercised by the high court under article 226 of the constitution of india, viz. that it empowers the high court to issue appropriate writs or direction for establishing legal rights which were not subject to decision in any earlier proceedings before the same court or any other court, but does not include execution of the order or decree passed in any other proceedings by any other court or even by the high court itself. though, however, an order of the high court in a proceeding under article 226 is equally executable. but by reason of section 141 of the civil procedure code, the provisions of the code having not been applicable, in a writ proceedings, the orders passed by the high court in writ jurisdiction are not capable of execution through the procedure contained in the code. however, the high court is not powerless to see implementation of its orders. it being vested by article 215 of the constitution, may compel the person bound by the order to comply with the same or in other words to implement the same. the order passed by the high court is a writ on the party which needs no further execution. it is a direct command on the party to comply with it. no further agency comes in between for implementation or compliance of the order. the failure to do so amounts to contempt making the contemner liable for punishment thereunder. similarly, the orders passed by the supreme court may be in the from of writs are similarly subject to contempt without requiring execution thereof through a different agency. however, the orders of the supreme court are also capable of execution by reason of the rules framed by it through civil court in respect of certain matters which do not fall within the ambit of the writs being direct commands. the orders of the high court which are not writs or direct commands, are also similarly capable of execution through civil court in the manner provided under the code.24. it has been provided under article 142 of the constitution that the orders passed by the apex court are enforceable through out the territory of india in the manner prescribed by or under any law made by the parliament and until such law is not made, by the order of the president. a law has since been promulgated with the title 'supreme court (decrees and orders) enforcement of the order, 1954, it was open to the petitioners to take aid of the said 1954 order if they were so advised. but the question having been concluded by reason of the orders dated 9.5.1991, 5.12.1991 and 18.9.1991 (annexures 9,8 & 13 respectively), it is not more open to the petitioners no agitate the same any further.25. in article 144 it has been provided that the all authorities civil or judicial in the territory of india, shall act in aid of the supreme court, in the present case the high court having issued appropriate administrative instruction in terms of the order dated 9.1.90 and the learned district judge, agra having constituted a committee for the purpose of ascertaining as to whether the order, dated 9.1.90 has been complied with completely and the committee so constituted having submitted its report on 26.10.1991 clearly indicating that the order has been complied with fully and thereafter contempt application having been filed, it presupposes that all these matters were taken note of by the apex court while dismissing the contempt application in limine.26. thus, the acts on the part of the high court in its administrative side and that of the learned district judge in, his administrative side, were undertaken in aid of the order dated 9.1.90 passed by the apex court.27. but in articles 142 or 144 requires the high court to execute in its judicial side the order of the supreme court though if directed, the high court is bound to act in aid of the supreme court even in the judicial side but such action in the aid of the supreme court does not include the responsibility of execution of the order of supreme court particularly when the supreme court itself is capable of executing its own orders. there is no law permitting the high court to undertake the exercise of executing the order of the supreme court. the high court being creature of statute cannot act beyond the statute. there being no statutory obligation, the high court is not supposed to invoke its writ jurisdiction to execute order of the apex court. the writs are issued by the high court in its original jurisdiction. execution does not fall within the ambit of writs which can be issued in exercise of article 226.28. mr. mandhyan had referred to order xlv, rule 15 of c.p.c. but order xlv, rule 15 cannot apply to a proceeding under article 226 because of the provisions contained in section 141 of the code which in its explanation excludes the proceedings under article 226 of the constitution. read with explanation to section 141 of the code, order xlv, rule 15 deals with the matters arising out of proceedings other than the proceedings under article 226 of the constitution. therefore, reference to order xlv rule 15 appears to be wholly misconceived.29. the writ jurisdiction as conferred on the high court under article 226 of the constitution empowers it to issue certain writs specified therein or in the nature thereof or directions. the order dated 9.4.90 is also a writ of the apex court. the writ in itself a command can be enforced by the apex court in view of article 142 of the constitution as well as through article 129 of the constitution by initiating proceeding in contempt. in the present case mandamus is being asked for enforcing a mandamus issued by the apex court. the mandamus issued by the apex court is self-sufficient. it does not require support through a further mandamus from the high court. the supreme court itself being capable of executing its own order, it would be preposterous for the high court to issue mandamus for enforcing the mandamus issued by the apex court. the writ jurisdiction can not be utilised for execution of an order or mandamus or directions issued by any other court or even by the apex court. by virtue of article 142 of the constitution read with article 129 of the constitution, the supreme court itself is capable of enforcing its own order or execute the same. in order to enforce or get the order executed, the petitioners had made successive contempt petitions as referred to above, since been disposed of as mentioned hereinbefore. in chapter xiii of the supreme court rules, rule 6 has been incorporated for enforcement of the orders and decrees of the supreme court as may be prescribed by law, which means that the decree and orders can be executed either through the procedure laid down in the code of civil procedure namely sections 36, 37, 38, 42, 44a read with order xxi and order xlv, rule 15. since the code of civil procedure does not apply in respect of the proceedings under article 226 of the constitution, therefore, those provisions cannot be resorted to except through article 142 of the constitution. thus, it is abundantly clear that writ jurisdiction cannot be used for the purpose of execution of an order passed by the same or other court even by the apex court since article 226 of the constitution had never been prescribed to be a law for execution of decree or orders passed by the same or other court or the supreme court.30. for all these reasons, this petition fails and is accordingly dismissed. however, there will be no order as to costs.