STATE OF M.P.versusMANGI LAL SHARMA

A                               STATE OF M.P.
                                      v.
                              MANGI LAL SHARMA

                               DECEMBER 18, 1997

B         [SUJATA V. MANOHAR AND D.P. WADHWA, JJ.]

            Specific Relief Act, 196rSection 34, Proviso-Suit for declaration by
     the respondent that he continued to be in se1vice of the appellant-Declaratory
     decree-Execution of-Prayer in the execution application for awarding all the
C    consequential benefits, a1rears of salary, Deamess allowances, promotion
    'etc.-Grant of-Held, the executing court has no jurisdiction to grant any
     consequential relief which does not flow directly and necessarily from the
     declaratory decree.

          Specific Relief Act, 1963-Declaratory decree-Nature of-Held, A dec-
D larat01y decree merely declares the light of the decree holder vis-a-vis the
    judgment debtor and does not in tenns direct the judgment debtor to do or
    refrain from doing a particular act or thing.

           Se1vice Law-Govemment Servant-Legal Position-A Govemment
E   se1vant acquires a status on his appointment and his 1ights and obligations
    are to be detennined by statute or statut01y rules which may be framed by the
    Govemment.

           Code of Civil Procedure, 1908--0rder II Rule 2-Prayer for a declara-
    tion in the initial suit under Specific Relief Act that respondent continues to
F   be in service-Subsequent suit claiming affears of salary-Bmred.

       The respondent was employed as a Clerk Grade I in the Irrigation
  Department of the appellant State Government. He was transferred from
  Gandhi Sagar to Jabalprnr. The respondent requested for his transfer to
  Mandsore, a place near his hometown to look after his ailing father which
G request was not acceded to and the respondent submitted his resignation.
  The respondent was never informed if his resignation had been accepted
  The respondent did not join his duty thereafter and remained absent for
  more than five years. The appellant assumed that the respondent had
  voluntarily resigned from his service and thus his service stood ter-
H minated.
                                          662
                            STATE v. M.L. SHARMA                           663

         The respondent tiled a suit for declaration against the appellant that   A
    he continued to be in service. The suit was decreed in his favour. The
    appellant filed an appeal before the District Judge which was dismissed.
    The appellant filed a second appeal in the High Court which was also
    dismissed. Consequently the appellant reinstated the respondent. ·

          The respondent-decree holder, then filed an execution application
                                                                                  B
    for awarding all the consequential benefit, arrears of salary, dearness
    allowances, promotion etc. in the court of Civil Judge; and the same was
    allowed. The appellant pl"eferred a revision which was also dismissed by
    the Additional District Judge. The appellant then, filed a writ petition in
    the High Court of Madhya Pradesh challenging the order of the Civil           c
    Judge executing the declaratory decree and that of the Additional District
    Judge upholding in revision the order of the Civil Judge. The petition was
    dismissed by the High Court. Aggrieved, the appellant preferred this
    appeal.
                                                                                  D
          On behalf of the respondent, it was submitted that once the court
    gave a declaration that the respondent was still in continuance of service
    of the appellant and his services were never terminated, the necessary
    consequence would be that the respondent should be granted arrears of
    salary and other consequential benefits by the appellant unlike in a case
    which was governed by the law of Contract between the parties.                E

          Allowing the appeal, this court


-         HELD : 1. The respondent could not have sought execution of the
    declaratory decree when no relief was granted to him tow~rds the arrears
    of salary and other consequential benefits. [670-D]
                                                                                  p


          2. A declaratory decree merely declares the right of the decree holder
    vis-a-vis the judgment debtor and does not in terms direct the judgment
    debtor to do or refrain from doing any particular act or thing. Since in the
    present case decree does not direct reinstatement or payment of arrears G
    of salary, the executing court could not issue any process for the purpose
    as that would be going outside or beyond the decree. The executing court
    has no jurisdiction to direct payment of salary or grant any other conse-
    quential relief which does not flow directly and necessarily from the
    declaratory decree. [667-H; 668-A]                                           H
    664                   SUPREME COURT REPORTS (1997] SUPP. 6 S.C.R.

A         3.1. Normally in a case like the present one, the plaintiff when
    seeking relief of declaration that he continues to be in service would also
    seek consequential reliefs of reinstatement and arrears of salary. This the
    respondent as plaintiff did not do, and the Government not being a private
    employer would certainly respect a mere decree of declaration. This in fact
    the appellant did and the respondent has been reinstated. Moreover, once
B   the Government Servant is appointed to his post or office, he acquires a
    status a,nd his rights and obligations are no longer determined by consent
    of both parties but by statute or statutory rules which may be framed by
    the Government. The legal position of a Government servant is more one
    of status than one of contract. (667-C]
c
          3.2. A suit for mere declaration to any legal character is main-
    tainable under Section 34 of the Specific Relief Act 1963, though the section
    is not exhaustive. There is a proviso to the section which bars any such
    declaration where the plaintiff, being able to seek further relief, omits to
D   do so. In the present suit the plaintiff while seeking relief of declaration
    would certainly have asked for other reliefs like the reinstatement, arrears
    of salary and consequential benefits. He was, however, satisfied with a
    relief of declaration knowing that the Government would honour the
    decree and would reinstate him. It is therefore assumed that the suit for
    mere declaration filed by the respondent-plaintiff was maintainable, as the
E   c1uestion of maintainability of the suit is not in issue. (666-G; 668-C]

         Roshan Lal Tandon v. Union of India, AIR (1967) SC 1889; State of
    Punjab and Others v. Klishan Dayal Shanna, AIR (1990) SC 2177; Parkash


                                                                                    -
    Chand Khurana Etc. v. Hamam Singh & Others, AIR (1973) SC 2065 and
    Prakash Chand v. S.S. Grewal and Others, (1975) Cr. W 679 P&H High
F   Court, relied on.

          CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3237 of
    1990..

G        From the Judgment and Order dated 29.4.88 of the Madhya Pradesh
    High Court in Misc. P. No. 497 of 1988.

          Rajendra Singhvi for S.K. Agnihotri for the Appellant.

         Vivek Gambhir, Diwakar Chaturvedi for S.K. Gambhir              to: the
H   Respondent.
                  STATEv. M.L.SHARMA[D.P. WADHWA,J.]                          665

          The Judgment of the Court was delivered by                                A

           D.P. WADHWA, J. State of Madhya Pradesh has come in appeal
    against the judgment dated April 29, 1988 of the Division Bench of the
    Madhya Pradesh High Court dismissing its writ petition filed under Ar-
    ticles 226 and 227 of the Constitution. The writ petition had been filed
                                                                                    B
•   challenging the order of the Civil Judge, Neemuch executing a declaratory
    decree and that of the Additional District Judge, Mandsore upholding in
    revision the order of the Civil Judge. This Court while granting special
    leave petition had stayed the operation of the impugned order of the High
    Court as well as that of the Executing Court.
                                                                                     c
          The respondent was employed as a Clerk Grade I in the Irrigation
    Department of the appellant and was posted at Gandhi Sagar. He was
    transferred to Jabalpur. He handed over his charge at Gandhi Sagar.
    Respondent represented that due to acute illness of his father he might be
    transferred to Mandsore, a place near his home town to enable him to look       D
    after his father. His request was not acceded to. This led the respondent
    to submit his resignation. He was not informed if the resignation had been
    accepted. There was some correspondence in late sixties but there was no
    clear reply from the appellant if resignation of the respondent had been
    accepted. All this period the respondent did not join his duty and remained
    present at his home town. This led the appellant to assume that the              E
    respondent had voluntarily resigned from his service as he continuously
    remained absent from his place of taking over the charge of his post for
    more than five years. Thus, according to the appellant the services of the
    respondent stood terminated. The respondent sometime in 1979 filed a suit
    for declaration against the appellant that he continued to be in service         F
    which was decreed on October 1, 1982 by the Civil Judge, Class-II,
    Neemuch. The decree passed in favour of the respondent is as under :

            "It is ordered and decreed that - (a) Plaintitl's suit is decreed with
            costs and this is declared that plaintiff is still in continuance service
            of defendant and his services are not terminated. Defendant will G
            also bear the cost of the suit of the plaintiff along with its own cost
            and that the sum of Rs. 63.50 be paid by the defendant to the
            plaintiff on account of costs of this suit with interest thereon at the
            rate of (illegible) percent per annum from this date to date of
            realization.                                                              H
    666                   SUPREME COURT REPORTS [1997] SUPP. 6 S.C.R.

A              Given under my hand and the seal of Court this 1st day of
            October 1982.

                                                                 Sd/
                                                        A.H. Sheikh Patel
                                                        Civil 1udge-Class II
B                                                        Neemuch - (M.P.)"          ...
           Against the judgment and decree of the Civil Judge the appellant
    filed an appeal before the District Judge, Mandsore which was dismissed
    and the second appeal in the High Court was also dismissed by the
C   judgment dated April 26, 1986. The respondent, decree-holder, then filed
    an execution application in the court of the Civil Judge, Neemuch. This
    was to the effect that the respondent be awarded all the consequential
    benefits, salary, dearness allowances, promotion etc. of the service and also
    cost of the application. The appellant opposed the application on the
    grounds that the court did not pass any decree of reinstatement of the
D   decree holder on the post or for payment of any salary to him and that in
    the suit the decree holder had not prayed for reinstatement and for arrears
    of his salary. It was also submitted before the executing court by the
    appellant that since the decree holder had remained absent from his duty,
                                                                                    -
    he was not entitled to any salary on the basis of the principle of "no work
E   no salary". The objections filed by the appellant, it would appear, were
    dismissed by the executing court. A revision against that order was also
    dismissed by the Additional District Judge, Neemuch by order dated
    January 11, 1988. The appellant then filed a writ petition in the High Court
    of Madhya Pradesh which, as noted above, was dismissed. This led the
    appellant to come to this Court.
F
        It appears to us that the courts below did not go by even the basic
  principles of law. A suit for mere declaration to any legal character is
  maintainable under Section 34 of the Specific Relief Act 1963, though it
  has been held that section is not exhaustive. There is a proviso to the
G section which bars any such declaration where the plaintiff, being able
  to seek further relief, omits to do so. Section 34, in relevant part, is as
  under :

             "34. Discretion of court as to declaration of status or right. - Any
             person entitled to any legal character, or to any right as to any
H            property, may institute a suit against any person denying, or inter-
              STATEv. M.L.SHARMA[D.P. WADHWA,J.]                          667

         ested to deny, his title to such character or right, and the court      A
         may in its discretion make therein a declaration that he is so
         entitled, and the plaintiff need not in such suit ask for any further
         relief :

            Provided that no court shall make any such declaration where
        the plaintiff, being able to seek further relief than a mere declara-    B
        tion of title, omits to do so."

       Normally in a case like the present one the plaintiff when seeking
relief of declaration that he continues to be in service would also seek
consequential reliefs of reinstatement and arrears of salary. This the           c
respondent as plaintiff did not do so as the Government not being a private
employer would certainly respect a mere decree of declaration. This in fact
the appellant did and the respondent has been reinstated. Moreover, once
the Government servant is appointed to his post or office, he acquires a
status and his rights and obligations are no longer determined by consent
of both parties but by statute or statutory Rules which may be framed by         D
the Government. The legal position of a Government servant is more one
of status than of contract. In Roshan Lal Tandon v. Union of India, AIR
(1967) SC 1889, this Court observed that the hall-mark of status is the
attachment to a legal relationship of rights and duties imposed by the
public law and not by mere agreement of the parties and that the emolu-
                                                                                 E
ments of the Government servant and his terms of service are governed by
statute or statutory rules which may be unilaterally altered by the Govern-
ment without the consent of the employee. It is, therefore, quite· Clear that
the appellant has rightly reinstated the respondent in service as the decree
gave a declaration to his legal status of having remained a Government
servant throughout as if the order of termination of service never existed.      F
It was not necessary for the respondent to seek relief of arrears of salary
in a suit for declaration as he may be satisfied with a mere relief for
declaration that he continues to be in service. Of course if he afterwards
claims arrears of salary in a suit for the period prior to the relief of
declaration he may face the bar of Order II Rule 2 of the Code of Civil
Procedure.                                                                       G

       A declaratory decree merely declares the right of the decree holder
vis-a-vis the judgment debtor and does not in terms direct the judgment
debtor to do or refrain from doing any particular act or thing. Since in the
present case decree does not direct reinstatement or payment of arrears          H
    668                    SUPREME COURT REPORTS (1997) SUPP. 6 S.C.R.

A of salary the executing court could not issue any process for the purpose
    as that would be going outside or beyond the decree. Respondent as a
    decree holder was free to seek his remedy for arrears of salary in the suit
    for declaration. The executing court has no jurisdiction to direct payment
    of salary or grant any other consequential relief which does not !low
B   directly and necessarily from the declaratory decree. It is not that if in a
    suit for declaration where the plaintiff is able to seek further relief he must
    seek that relief though he may not be in need of that further relief. In the
    present suit the plaintiff while seeking relief of declaration would certainly
    have asked for other reliefs like the reinstatement, arrears of salary and
    consequential benefits. He was however, satisfied with a relief of declara-
C   tion knowing that the Government would honour the decree and would
    reinstate him. We will therefore assume that the suit for mere declaration
    filed by the respondent-plaintiff was maintainable, as the question of
    maintainability of the suit is not in issue before us.

D          Mr. Gambhir, learned counsel for the respondent, has been unable
    to show as to how a decree for declaration which the respondent got could
    at all be executable. It was, therefore, submitted by him that once the court
    gave a declaration :ibout the legal status of the respondent that he was still
    in continuance of service of the appellant and his services were never
    terminated, the necessary consequence would be that the respondent
E   should be granted arrears of salary and other consequential benefits by the
    appellant unlike in a case which was governed hy law of contract between
    the parties. It is difficult to accept this proposition as the provisions of law
    contained in Section 34 of the Specific Relief Act are specific and in that
    case even declaration could not have been granted as it could be said that
F   respondent was able to seek further relief then a mere declaration of his
    legal status and which he omitted to do so. In State of Punjab and Others
    v. lVishan Dayal Shanna, AIR 1990 SC 2177 the plaintiff obtained a decree
    that he was entitled to be promoted from the post of Inspector of Police
    to that of Deputy Superintendent of Police with effect from the date when
G   his juniors were promoted and further claimed relief for all consequential
    benefits, rights and privileges. The suit was decreed and in the execution
    application filed by the plaintiff in addition to the benefits !lowing from the
    decree, he also claimed compound interest at the rate of 12% per annum
    on the amount found due to him. The claim of interest was allowed by the
    executing court. This Court noticed that the decree which was put to
H   execution did not contain any order or direction for the payment of any
              STATE v. M.L. SHARMA[D.P. WADHWA, J.]                      669

interest on the amount which was payable to the decree holder' Consequent       A
to the declaration made by the Court decreeing a suit. It was also not
disputed that no relief for interest had been claime~ by the decree holder
in his suit nor any such claim was discussed or ~warded by the Court
decreeing the suit. This Court held that the executing court was bound by
the terms of the decree and could not add or alter the decree on its notion
of fairness or justice. The Court further observed that no doubt the Courts
                                                                                B
had power to award interest on the arrears of salary or pension or other
amount to which a Government servant was found entitled to having regard
to the facts and circumstances of the case but that power could not be
exercised by the executing court in the absence of any direction in the
decree. In Pwkash Chand Khurana Etc. v. Hamam Singh and Others, AIR             c
1973 SC 2065 one of the contentions raised by the appellants before this
Court was that the award in question was merely declaratory of the rights
of the parties and was, therefore, inexecutable. The Court observed as
under:

        "This contention is based on the wording of clause 7 of the award       D
        which provides that on the happening of certain events the respon-
        dents "shall be entitled to take back the possession". We are unable
        to appreciate how this clause makes the award merely declaratory.
        It is never a pre-condition of the executability of a decree that it
        must provide expressly that the party entitled to a relief under it     E
        must file an execution application for obtaining that relief. The
        tenor of the award shows that the arbitrator did not intend merely
        to declare the rights of the parties. It is a clear intendment of the
        award that if the appellants dafaulted in discharging their obliga-
        tions under the award, the respondents would be entitled to apply
        for and obtain possession of the property."
                                                                                F

       In Prakash Chand v. S.S. Grewal & 01~-., (1975) Cr. L.J. 679, (Full
Bench) (Punjab and Haryana High Court), the petitioner had a decree in
his favour declaring his dismissal from service to be illegal, void and of no
effect. The Punjab Government did not reinstate him nor paid him the G
arrears of salary. He, therefore, filed a writ petition for taking contempt of
courts proceedings against certain officials of the State Government. The
Court held as under : ·

        "A declaratory decree, in my opinion, cannot be executed as it only H
    670                   SUPREMECOURT_REPORTS (1997) SUPP. 6 S.C.R.

A           declares the rights of the decree-holder qua the judgment-debtor
            and does not in terms, direct the judgment- debtor to do or to
            refrain from doing any particular act or thing. Since there is no
            command issued to the judgment-debtor to obey, the civil process
            cannot be issued for the compliance of that mandate or command.
            The decree-holder is free to seek his legal remedies by way of suit
B           or otherwise on the basis of the declaration given in his favour."

           In our view, it is a correct statement of law except that it may not be
    fully applicable in the case of a Government servant who acquires a status
    and his service conditions are governed by statutory rules as noticed above.
c         We are, therefore, of the opinion that the courts below did not
    exercise their jurisdiction properly and the respondent could not have
    sought execution of the declaratory decree when no relief was granted to
    him towards arrears of salary and other consequential benefits.

          The appeal is allowed with costs, impugned order of the High Court
D
    as well as orders of the courts below are set aside and the execution
    application filed by the respondent is dismissed.

    M.P.                                                         Appeal allowed.