GURCHARAN SINGH Vs. THE STATE OF PUNJAB

JUDGEMENT

(1.) THE Petitioner joined as a Clerk in the Pepsu Civil Secretariat on July 10, 1954. In that State the conditions of service governing the Petitioner were contained in the Pepsu Secretariat Services Recruitment, Promotion, Punishment and Seniority Rules, 1952 (hereinafter referred to as the Pepsu Rules). The merger of the States of Punjab and Pepsu took place with effect from November 1, 1956, and the Petitioner was integrated with the Clerks of the erstwhile State of Punjab in accordance with the Punjab Integration Rules. In the erstwhile State of Punjab the rules pertaining to the promotion of a Clerk to the post of an Assistant were provided in rules 5 and 6 of the Punjab Civil Secretariat (State Service Class III) Rules, 1952. None of these rules provided for the holding of any test before a Clerk could be promoted to the post of an Assistant. Similarly, Rule 15 of the Pepsu Rules did not provide for any such test, while selecting a Clerk for the post of an Assistant. However, after the merger of the two States, an order was issued by the Chief Secretary to Government, Punjab, on June 21, 1958, prescribing a test for promotion of a Clerk to the post of an Assistant in the Secretariat. According to the rules then prevailing, the promotion was to be made on seniority -cum -merit basis. The Petitioner was promoted as an Assistant on December 9, 1959, but was reverted to the post of a Clerk on February 3, 1960, on the ground that he had not passed the test. The Petitioner filed a suit in the Court of Subordinate Judge, First Class, Ambala, on December 21, 1965, which was decreed on October 20, 1966, and it was declared "that the orders dated the 5th of September, 1958, and the 3rd of February, 1960, are illegal, void, unconstitutional, inoperative and not binding on the Plaintiff and that the Plaintiff still continues to be in the service of the State of Punjab as an Assistant and entitled to all the emoluments, pay, allowances, increments and all other rights and privileges attached to the said post from the date of his reversion, i.e., the 3rd February, 1960." The State of Punjab filed an appeal against that decree, which was dismissed on January 31, 1968, by the District Judge, Chandigarh, following the judgment of this Court in State of Haryana v. Shamsher Jang Shukla, 1968 S.L.R. 162, in which it has been held that the Government was not competent to prescribe a test for promotion from the post of a Clerk to that of an Assistant by issuing Executive instructions. The State of Punjab filed a further appeal in this Court (R.S.A. No. 1624 of 1968), which was dismissed in limine by Mahajan, J., on February 17, 1969. The Government filed an application for permission to file a Letters Patent Appeal, which was also dismissed on April 22, 1969. In spite of the success of the Petitioner in that litigation, the State of Punjab has not implemented the decree passed in his favour by the Subordinate Judge, First Class, Ambala, which has been upheld by this Court. The Petitioner was, however, re -promoted as an Assistant in September, 1967. But for the period from February 3, 1960, to the date of his re -promotion in September, 1967, he has been treated as a Clerk, with the result that no consequential reliefs pursuant to the declaratory decree granted to him by the civil Court have been allowed to the Petitioner. These consequential reliefs pertain to his reinstatement as an Assistant with effect from February 3, 1960, the payment to him of the arrears of pay and allowances on the footing that he was an Assistant throughout from February 3, 1960, the fixation of his pay for subsequent years on that footing and the payment of the difference between the pay so re -fixed and the pay already drawn, and the fixation of his seniority amongst the Assistants on the same footing. The Petitioner has, therefore, filed the present petition praying that this Court should issue a writ of mandamus to the State of Punjab to grant the necessary reliefs to the Petitioner, which are due to him on the basis of the decree passed in his favour by the civil Court. This petition has been resisted by the State of Punjab on the ground that the matter has not yet been finally decided because the State of Punjab and Haryana have filed appeals in the Supreme Court against the judgments and decrees of this Court holding that the Government was not competent to prescribe any test for promotion of a Clerk to the post of an Assistant.

(2.) THE learned Counsel for the Petitioner submits that there is no stay order issued by any Court entitling the Respondent not to allow the consequential reliefs, which flow from the decree of the civil Court in his favour. I am of the view that in law the Petitioner cannot resort to proceedings under Article 226 of the Constitution for the implementation of a declaratory decree passed by a civil Court. He must follow the remedies open to him under the law. The reason is that their Lordships of the Supreme Court held in State of Madhya Pradesh and Anr. v. Bhailal Bhai and Ors. : A.I.R. 1964 S.C. 1006, as under:

(3.) THE reason stated by the Respondent in the return for not implementing the declaratory; decree passed in favour of the Petitioner is that the matter is still pending decision before the Supreme Court, which means that the Government will take decision in the case of the Petitioner and other officials like him after the matter is finally decided by the Supreme Court and I have no reason to doubt that the Government will itself allow the necessary reliefs to the Petitioner after the matter is finally decided by their Lordships of the Supreme Court. As I am of the opinion that the remedy provided by Article 226 of the Constitution cannot be resorted to for getting a declaratory decree passed by a civil Court implemented, I hold that this petition is not maintainable and dismiss the same as incompetent. Since the matter was res Integra I, leave the parties to bear their own costs.