Swatanter Kumar, J. - (1.) THIS revision is directed against the order dated 7.1.1999 passed by the learned Civil Judge (Junior Division), Patiala.
(2.) THE facts giving rise to the revision are that respondent herein Shri T.N. Sharma had filed a suit against the State of Punjab for declaration that he was selected as Assistant Engineer and joined on the forenoon of 13.2.1976 in the Office of chief Electrical Inspector, Punjab, and worked as such till his promotion as Executive engineer. Earlier he was serving in the Beas Construction Broad. The department did not compute the length of the service rendered by the plaintiff in the Beas Construction Board and thus, declined to give him the benefit arising therefrom towards total length of service for all consequential purposes and intents. The plaintiff had prayed that the order issued on 21.2.1983 was unjust and was illegal and the plaintiff was entitled to all the benefits including special pay etc. with effect from 13.2.1976 with added service rendered in the Board. The suit was contested by the State on all fronts. However, the suit was decreed by the learned trial Court vide its judgment and decree dated 30.1.1987. The State preferred an appeal against the judgment and decree of the learned trial Court which was dismissed by the learned Ist Appellate Court vide its judgment and decree dated 18.9.1987 affirming the finding recorded by the Court below. Consequently, an appeal was preferred before the High Court which also met the same fate. Vide order dated 6.5.1988 the appeal was dismissed in limine. The State Government did not permit the things to rest at that level and preferred a Special Leave Petition before the Hon'ble Supreme Court which again was dismissed by the Hon'ble Supreme Court of India. Thus, that judgment, inter se the parties, attained finality. The plaintiff, decree holder, then filed an execution petition in which again objections were raised by the State which were dismissed by the learned trial Court and vide order dated 7.1.1999 the learned executing Court passed the following directions: "From the perusal of oral as well as the documentary evidence produced on the file and after hearing the Ld. counsel for the parties. Judgment Debtors are directed to implement and comply with the directions and decree of the court completely and pay the arrears of pay and allowances amounting to Rs. 10468/ - alongwith interest @ 18% P.A. amounting to Rs. 19467/ -. Therefore, Judgment Debtors are directed to implement and comply with the directions and decree of the court is ordered to be implemented. Decree Holder is also entitled to claim the arrears of pay and allowances amounting to Rs. 10468/ - alongwith interest @ 18% amounting to Rs. 19476/ -. Judgment Debtors are directed to implement and comply the directions of the court within 2 months from the date of passing of the order. In case judgment Debtors, have failed to implement and comply the directions then warrant of attachment against the property of the JDs shall be issued after the expiry of the period of two months." It is this order which has been impugned before this Court. The objections raised on behalf of the State have been correctly dismissed by the learned executing Court in view of the law enunciated by the Hon'ble supreme Court of India in the case of Dwijen Chandra Sarkar v. Union of India, 1991 (1) SCT 363. The Hon'ble Apex Court held as under: - "12. If the appellants are entitled to the time -bound promotion by counting service prior to joining "the P & T Department, the next question is whether treating them as eligible for time -bound promotion will conflict with the condition imposed in their transfer order, namely that these will not count their service for seniority purposes in the P & T Department. 13. The words "except seniority" in the 1983 circular, in our view means that such a benefit of a higher grade given to the transferees will in no way affect the seniority of employees in the P & T Department when the turn of the P & T employees comes up for promotion to a higher category or post, the said words; except 'seniority' are intended to see that the said persons who have come from another department on transfer do not upset the seniority in the transferee department. Granting them higher grade under the scheme for time -bound promotion does not therefore offend the . condition imposed in the transfer order. We are, therefore, of the view that the appellants are entitled to the higher grade from the date on which they have completed 16 years and the said period is to be computed on the basis of their total service both in the Rehabilitation Department and the P & T Department. 14. There are at least three precedents of this Court to support the principle enunciated above. The first one is Renu Mallick v. Union of India, 1994(1) SCC 3731,, 1994(1) SCT 638. In that case the appellant a Lower Division Clerk, was transferred from the Central Services and Customs Department, on her own request, to the Central Excise Collectorate. She gave an undertaking in terms of Central departmental instruction which said: "the transferee will not be entitled to count the service rendered by her in the former collectorate for the purpose of seniority in the new charge." Now for purposes of promotion as Inspector, she had to put in a service of 5 years as UDC or a total service of 13 years both as UDC and LDC, subject to a minimum of 2 years as UDC. When the appellant's turn for promotion as Inspector came up she was denied promotion on the ground she was ineligible she did not have the required number of years of service in the transferee department. This view was not accepted. It was held that seniority and eligibility are different concepts. It was directed that the appellant be given promotion as Inspector only when she would fall within the zone of consideration as per her seniority reckoned in the transferee department. When her turn based on the service seniority in the transferee department arrived, if any question as to her eligibility for promotion should arise i.e. whether she had 5 years as UDC or a total of 13 years as UDC and LDC, for computing the said period of qualifying service, the past service in the Central services and Customs Department should also be counted. Kuldip Singh, J. observed: "We are of the view that the Tribunal fell into patent error in dismissing the application of the appellant. A bare reading of para 2(ii) of the executive instructions dated May 20, 1980 shows that the transferee is not entitled to count service rendered by him/her in the former collectorate for the purpose of seniority in the new charge......But when she is so considered, her past service in the previous Collectorate cannot be ignored for the purposes of determining her eligibility as per Rule aforesaid. Her seniority in the previous Collectorate is taken away for the purpose of counting her seniority in the new charge but that has no reliance for judging her eligibility......" "The rule nowhere says that the period of 5 years and 13 years is not applicable for an officer who has been transferred from one Collectorate to another on his own request." In Scientific Advisor for Raksha Manthri v. V.M. Joseph, 1998(5) 305 to which one of us (Saghir Ahmed, J.) was a party, it was held that service rendered in another department helps for determining eligibility for promotion though it may not count for seniority. In that case, the employee was transferred from the Ministry of Defence to the Central Ordinance Depot. Then he made a request for transfer to the Naval Physical Oceanographic Laboratory, Cochin. He was transferred to be placed at the bottom of seniority list. It was held that he could still count his past service for purpose of eligibility for promotion. It was observed: "Even if an employee is transferred at his own request, from one place to another on the same post, the period of services rendered by him at the earlier place where he held a permanent post and had acquired permanent status, cannot be excluded from consideration for determining his eligibility for promotion, though he may have been placed at the bottom of the seniority list at the transferred place." Again in A.P. State Electricity board v. R. Parthasarathi, 3 : 1998(9) SCC 425, a government servant was transferred and absorbed in the Electricity Board and it was held that the past service in government would count towards the requisite experience of 10 years for eligibility for promotion." 3. The only tenable grievance of the State can be that the learned executing Court has granted interest at the rate of 18% on the amounts payable in furtherance to the decree. I am of the considered view that learned executing Court has fallen in error of jurisdiction in granting 18% interest. As per the judgment and decree of the learned trial Court, the relief granted to the applicant was as under: - "In the result for the reasons stated above the suit of the plaintiff is decreed with costs declaring that the order No. 1/101/81/1W(1) 2403 dated 21.2.1983 passed by the secretary to Govt. Punjab irrigation and Power is illegal, null and void and the defendants are directed to fix the basic pay of above Rs. 520/ - in the scale of Rs. 400 -1100/ - w.e.f. Feb., 1976, when the plaintiff joined the department of the Chief Electrical Inspector Punjab. Decree -Sheet be prepared and the file be consigned in the record -room."
(3.) ONCE no interest was granted by the judgment and decree of the learned trial Court, there was no occasion for the executing Court to go behind the decree and grant such a high rate of interest. As such the impugned order to that extent is modified. However, the record of this case amply demonstrates that the State has denied even the reasonable relief awarded to the decree holder by the Court after having lost the litigation upto the highest Court of the land. Even the amount due, as per the judgment and decree, has not been paid upon counting the service rendered in the board. There being a specific finding recorded by the Courts of competent jurisdiction, the denying of relief to the applicant without any justifiable reason is unjust and unreasonable. As such the respondent herein should be entitled to costs all through i.e. in the execution proceedings as well as before this Court. The costs are assessed at Rs. 2,500/ -.;