State of U.P., through Secretary, Medical, Health and Family Planning, Janpath, Lucknow and another vs K.M.Bahal

K.L. Sharma J.

This is a Civil Revision under Section 115 of the Code of Civil Procedure against the judgment and order dated 2141993 passed by the XIIth Additional District Judge, Lucknow in Misc. Case No. 3c/92, State of U.P. Versus Dr. K.M. Bahal, whereby the application under Section 47 of the Code of Civil Procedure made by the State was rejected.

At the time of admission of this revision, Mr. P.N. Mathur, Senior Advocate alongwith Mr. M.C. Chaturvedi, learned Counsel appeared for and on behalf of the opposite party. I have, therefore, heard not only the learned Standing Counsel Mr. V. P. Srivastava for the revisionists but also learned Advocates for the opposite parties.

This revision has been filed after a delay of about 4 months 10 days. The revisionists have filed an application under Section 5 of the Limitation Act for condonation of delay in the filing of this Civil Revision. The explanation given for delay in the affidavit of Dr. Prabhakar Seth, Addl. Director of the Medical Education and Training, Department of U.P. Government is that the matter was sent by the State Government to Law Department sometime in July 1993 for necessary permission to file the Civil Revision, but the permission was granted on 26111993. This explanation is not obviously convincing for the simple reason that the Law Department of the Government is a part and parcel of the State Secretariat. It is the duty of the Administrative Department of the Government to seek the advice of the Law Department with expedition. It is not probable at all that the Law Department has taken about four months'' time to give advice whether a Civil Revision against the impugned judgment should be filed or not. The law of condonation of delay is that every day''s delay must be satisfactorily explained. No attempt has been made in this affidavit to explain the delay of each day by giving reference to the specific dates and the duty performed by each and every official involved in the process of dealing with the file. It is also not explained as to why the certified copy of the impugned judgment passed by the learned Addl. District Judge could not be obtained within the shortest possible time and why it was awaited for more than three months and the copy was obtained only on July 17, 1993. Therefore, the preliminary objection raised by the learned Advocate for the opposite party is upheld. The revision is time barred and there is no sufficient and satisfactory ground of explanation for the delay of 4 months 10 days in the filing of this revision. The application under Section 5 of the Limitation Act is, therefore, rejected, and the Civil Revision being time barred cannot be maintained.

Though this revision can be finally disposed of and dismissed on the ground of limitation alone, yet I would like to deal with the contentions raised by the learned Standing Counsel Mr. Srivastava. The claim of the opposite party for the retiral benefits could not be refused on the ground that the law of taking over the K.G.M.C. by the State Government was declared ultra vires by this Court on 8491, whereas the opposite party had retired during the subsistence of the law of acquisition. The learned Standing Counsel contended that the decree under execution was passed without jurisdiction by the Public Services Tribunal for the reason that the law of taking over of the K.G.M.C. has been declared ultra vires on 8491 in Writ Petition No. 4919 of 1981 (K.C. Garg vs. State of U.P. and others). It is true that the Government of Uttar Pradesh had taken over the K.G.M.C. alongwith Associated Hospitals by an Ordinance No. 10 of 1981 with effect from 18781. The Doctors, Officers and employees of the K.G.M.C. became Government servants and were treated as such on the basis of the options given by the employees. This position continued to subsist for as many as ten years. The Government paid salaries and other benefits admissible to Government servants to all the employees of the College. However, in Writ Petition No. 4919 of 1981 and in other writ petitions the High Court declared the taking over as ultra vires and quashed the Act on 8491. Though the status of the College changed with effect from 8491 because of the declaration of the Act as ultra vires, the things done, actions taken, proceedings initiated, right or privilege acquired, obligation, liability or punishment accrued or incurred and remedy provided under the former Act and Rules during its operation and obedience would not be affected by the disappearance of law from a later date. This premise is based on the de facto doctrine as well as on the similarity of provisions contained in Section 6 of the U.P. General Clauses Act in regard to the effect of the repeal of an Act.

The learned Counsel for the opposite party referred to the judgment of the Hon''ble Supreme Court in the case of Dr. A.R. Sircar vs. State of U.P. and others (1992)2 UPLBEC 1393). This Civil Appeal related to the K.G M.C. in which the appellant Dr. A. R. Sircar was a Professor of Medicine. He was regularised under Rule 20(1) of U.P. State Colleges of Medical Teachers Service Rules. In this appeal the decision of the High Court in Writ Petition No. 4919 of 1981 quashing the Ordinance of 1981 and Act of 1983 was referred in support of the plea that the question of seniority of the appellant waste be determined as if the provisions of the Act and the Rules made thereunder had no effect. After considering the entire factual and legal position about the status of the K.G.M.C. and its employees, the Hon''ble Supreme Court held :

"Generally decisions taken bona fide under any law or rule in force which is later declared unconstitutional are saved on the de facto doctrine."

The learned Standing Counsel referred to the decision of the Hon''ble Supreme Court in the case of Sunder Dass vs. Ram Prakash (AIR 1977 Supreme Court 1201) in order to show that the executing court could refuse to execute the decree which is a nullity for lack of inherent jurisdiction in the Tribural which passed it. There is no denying the principle of law as such, but here the decree under execution had been validly passed by the Public Services Tribunal having jurisdiction in respect of service grievances of the employee who had been the public servant within the meaning of Section 2 (b) of U.P. Public Services (Tribunals) Act, 1976.

The State Government cannot save itself from discharging its liability created by its own actions for the payment of the retiral benefits to the opposite party. The opposite party became a public servant, gave his option for becoming a public servant and surrendered the amount of contribution made to his fund by the University. He retired as a public servant from the service of the College on 30683, and as such became entitled to all the retiral benefits admissible to a public servant of his category and status but they were unlawfully refused. He filed his Claim Petition before the Public Services Tribunal, and the Public Services Tribunal after hearing allowed his claim and passed the impugned judgment and decree. After waiting for sufficient period for compliance by the Government, the opposite party put the decree for execution before the competent court. The Government then filed an application under Section 47 of the Code of Civil Procedure that the decree passed without jurisdiction by the Public Services Tribunal was not executable. The learned Judge considered all these objections and came to the conclusion that the opposite party was a public servant and was entitled to get the retiral benefits as a Government servant. He consequently rejected the objection raised by the State against the execution proceedings.

Thus, after consideration of all the points raised by the learned Standing Counsel for the revisionists, I come to the conclusion that this revision has no merit also besides being barred by limitation. The execution proceedings of the judgment and order passed by the Public Services Tribunal in favour of the opposite party are perfectly valid and the decree is executable. I do not find any illegality, infirmity or impropriety in the finding recorded by the learned Judge.

The Civil Revision is, therefore, dismissed.