RAM NANDAN PRASAD, J.

(1.) This application is directed against the order dated 8-8-1986 by the Munsif, Patna, in Misc. Case No 30 of 1985 thereby rejecting the objection petition tiled by these petitioners under Section 47 of the Civil Procedure Code in Execution Case No. 37/85. The execution relates to Title Suit No. 18 of 1971, filed by O. P. No. 1, Harendra Pd. Sinha, against the petitioners and O.P. Nos. 2 to 16.

(2.) Opposite party No. 1 was working as a clerk-cum-typist in the office of the petitioner No. 1, i. e., the Bihar Nurses Registration Council sines 8-2-1960. Petitioner No. 2 is the President and petitioner No. 3 is the Registrar of the Council (Petitioner No. 1). It appears that his services wer terminated in December, 1967 but he was re-appointed on 28-8-1970 and again his services were terminated by petitioner No. 1 on 16-1-1971 on the basis of a resolution passed by the Bihar Nurses Registration Council. Opposite party No. 1, thereupon filed title suit No. 18/71 which was decree ex-pane on 5-10-1978 and the petitioners application under Order IX Rule 13 C.P.C. was dismissed and thus the ex-pane decree became final. The relief claimed by O. P. No. 1 in the suit was for a declaration that the order and resolution dated 16-1-1971 relating to the termination of his service is illegal, inoperative, null and void and mala-fide and that the plaintiff (O. P. No. 1) be deemed to continue in service in the office of the petitioner No. 1. The plaintiff had also prayed that the defendants should be restrained by permanent injunction from implementing impugned order of termination. The suit was decreed with cost in terms of the relief claimed by the plaintiff O. P. No. 1. The date of the decree is 5th October, 1978. However, after dismissal of the application under Order IX Rule 13 the petitioner issued a letter dated 6-12-1982, calling upon O.P. No. 1 to join his duty. As stated in paragraph 6 of the instant revision application, this letter could not be served on O. P. No. 1 in due time and it was served on 20-12-1982 and O. P. No. 1 joined his duty on 17-12- 1982 As stated in paragraph 7 of this application, O. P. No. 1 filed the execution petition on 19-4-1985, which was registered as execution case No. 37 of 1985 in which he made a claim for Rs. 85,267.50 paise on account of salary from January, 1971 to January, 1985. He divided his claim in two parts, the first being arrears of salary from January, 1971 to 26-12-1982 which he mentioned in Schedule 1 of the execution petition and the second part of his claim relating to pay and allowances from 27-12-1982 to 31-1-1986 less the amount already drawn by him has been mentioned in Schedule 2 of the execution petition. The petitioner No. 1 appeared in execution case and filed a petition under Section 47 of the C.P.C. which was registered as Misc. Case No. 30/85 and as already indicated above the learned execution court dismissed this petition and ordered that O. P. No. 1 was entitled to receive the amounts as claimed in Schedules 1 and 2 of the execution petition.

(3.) It has been submitted on behalf of the petitioners that the suit filed by O. P. No. 1 was merely for a declaration that the order terminating his service was illegal and inoperative and that he be deemed to be continuing in service all along but there was no claim in the suit for any amount relating to salary and allowances. It has also been contended that on the basis of the declaratory relief which O. P. No. 1 was able to get from the court, he cannot claim any specific amount towards his salary and allowances by executing that decree. It has also been submitted that since he has been reinstated and allowed to join on the post the decree stands satisfied & execution case is not maintainable. On the other hand, it has been contended on behalf of O. P. No 1 that once it is declared that his termination was illegal and inoperative and that he shall be deemed to have been continuously in service, it follows by way of consequential relief that he is entitled to receive the pay and allowances which may be legally due to him.

(4.) Now it has to be seen to what extent the executing court can legally give relief to the decree holder on basis of the decree granted in his favour. The contention of the petitioners is the that the effect of the declaratory decree is only that the order of termination dated 16-1-1971 becomes invalid and inoperative and the opposite party shall be deemed to be continuing in service, but since, no claim for arrears of any and allowances was made in the suit and there is no order in the judgment and decree in respect of the same, O. P. No. 1, is not entitled to claim any pay and allowances on the basis of the decree. This contention, in my opinion, has no substance. When an employee gets a declaration to the effect that the termination of his service was illegally done and that he should be deemed to be continuously in employment, he cannot be denied the payment of his emoluments as admissible under the rules. It is the fundamental principle of service jurisprudence that an employee is legally entitled to get all the pay and allowances admissible under the rules in the same manner and to the same extent as admissible to others in the category in which he is placed and that the employer is under a legal obligation to pay the emoluments. Thus an employees right on reinstatement to receive emoluments admissible under the rules in consequence of the order of termination of his service being declared inoperative and illegal is a natural corrolary to such declaratory relief granted to him. To hold otherwise and to say that the declara ory relief would only give the right of being reinstated and for arrears of salary and allowance etc. he has to take recourse to a fresh suit would be against the principles of natural justice and service jurisprudence and would amount to an abuse of the process of the Court. The only way proper relief can be awarded to an employee whose termination has been declared to be illegal and invalid is not only to reinstate him but also to give him the arrears of his pay and allowances which would be admissible on the basis that he has been continuously in service without any break. This is a well settled principle and this connection reference may be made to the case reported in Smt. Sajamo Devi and others v. Haryana Stale, 1980 (3) SLR 707, In that case also the heirs of the employee (the employee had died during the pendency) claimed arrears of pay and allowances on the basis of a declaratory decree and the Honble Judge of the Punjab and the Haryana High Court, placing reliance on a judgment of the Supreme Court accepted this plea and allowed the employees claim. The relevant passage from the aforesaid judgment is quoted below :

"A suit for declaration was filed by the employee to have the order of dismissal of set aside and to obtain a declaration that he continued to be in service. The Supreme Court declared the dismissal of the employee to illegal and granted a decree that he continues to be in service. Thereafter, he claimed all the arrears of salary right from 1st June, 1962 till 9th February, 1974. On those facts the Supreme Court was of the view that the only way in which the judgment of the Court could be implemented was by payment of the aforesaid amount of salary to the employee and a direction was issued for payment of the dues within two months. Following the aforesaid view in a case of declaratory decree, I ordered that execution application is maintainable and the executing Court would be entitled to execute the decree against State of Punjab, directing it to pay all arrears of salary etc. to the decree holder from the date of submission of resignation by the decree holder till he was allowed to resume his duties. The present case is also a case of declaratory decree and, therefore, two decisions relied upon by the counsel for the State are not applicable to this case".

(5.) The decree passed in favour of O. P. No. 1 is Anneure-1 and the execution petition filed by the decree holder is Annexure-2 to this application. Annexure-2 shows that O. P. No. 1 has claimed arrears of pay and allowances as described in Schedule 1 from January, 1971 to 26-12-1982, i.e. for the period he was prevented from working, and in Schedule 2 he has claimed the arrears of pay and allowances from 27-12-1982 till January, 1985 when he filed the execution case. The learned counsel for the petitioners has submitted that on the basis of the decree O. P. No. 1 could at the most claim arrears upto the date of the decree and not beyond it. The petitioners, however, forget that after the decree was passed they filed an application under Order IX Rule 13 C.P.C. for setting aside the same and this application was ultimately dismissed on 18-4-1980. Thus the decree obtained finality only after the dismissal of this application and, therefore, the period would extend up-to-the date when the suit finally terminated i.e. upto 18-4-1980. Paragraph 21 of the revision application shows that O. P. No. 1 had himself come to join duty on 9-1-1978 but the petitioners do not say that they allowed him to join duty. On the contrary, the filing of the Misc. Case under Order IX Rule 13 C.P.C. Annexure-3 implies that the petitioners were not prepared to accept the decree and give relief to O. P. No. 1 pursuant to it. Section 47 C.P.C. casts a duty on the executing court to determine all questions arising between the parties to the suit relating to the execution, discharge or satisfaction of the decree. As indicated above, the suit proceedings finally terminated on 18-4-1980, and, therefore, it is incumbent upon the executing Court to determine the amount of arrears of pay and allowances etc. admissible to O. P. No. 1 upto 18-4-1980. Further, agreeing the decision in 1980 (3) S. L. R page 707 (supra) I hold that the executing Court is competent to determine and direct payment of all arrears upto the date he was unable to resume duty i.e. upto 26-12-1982. The determination of the arrears of pay and allowances will be on the basis of what was admissible to O. P. No. 1 on the relevant date i.e. 16-1-1971 when his service had been terminated and what is legally admissible to him subsequent to that date on the basis of the rules and rele ant circulars and notifications as applicable to others placed in the same category as O. P. No. 1. Of course the executing court will not be competent to consider giving pay and allowances to O. P. No. 1 on the basis of any claim tor promotion because obviously promotion is not a matter of right and no employee can claim salary etc. on the basis of promotion unless the employer has passed an order for promotion. If any question of promotion under the intervening period is involved, that will be a matter for due considetation tor the employer and it is expected that the petitioners will give just consideration to the case and pass orders within a reasonable time so as not to cause any harrassment to O. P. No. 1. As regards the period subsequent to 26-12-1982, the employees entitlement to the arrears of pay and allowances etc. is founded not on the basis of any order that is required to be passed in the execution case but on the principle of natural justice and legal obligation of the employer to make payment of all emoluments to the employee in accordance with principles ol service jurisprudence. Moreover, even in accordance with Section 7 ot the Contract Act, the employer is obliged to make payment to the employee for the services rendered by him to the employer. Hence though executing court may not and need not pass any order with regard to the an cars of pay and allowances etc. lor the period subsequent to 26-12-1982, it is made clear chat the petitioners are under a legal obligation to make payment tor all the arrears of pay and allowances up-to-date, less amount already drawn, and any omission on their part to do so will prima facie be mala fide. It is expected that the petitioners will calculate the amount of arrears ot pay and allowances etc. for the period subsequent to 26-12-1982 admissible to O. P. No. 1 in accordance with rules and circulars and notifications etc. governing the same and serve a copy of the calculation chart latest within six month from today to O. P. No. 1 and if he is dissatisfied in any way he may make a representation to the petitioners which shall be disposed of within three months from the date of such representation.

(6.) In view of what has been discussed above, it is obvious that there is no substance in the petitioners contention that the execution case is not maintainable. Moreover, the decree also includes costs and the petitioners do not say that the costs have been paid. So in any view of the matter the decree has not been satisfied. The learned Munsif is directed to dispose of the execution case at the earliest in accordance with the observations made above.

(7.) This application is disposed of accordingly. Application decided accordingly.