State Of Punjab vs Raj Kumar
2024 Latest Caselaw 6832 P&H

Punjab-Haryana High Court

State Of Punjab vs Raj Kumar on 2 April, 2024

Author: Harsimran Singh Sethi

Bench: Harsimran Singh Sethi

                                  Neutral Citation No:=2024:PHHC:043744



                                                       2024:PHHC:043744

       IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                      CHANDIGARH

202                                               RSA-2343-1994 (O&M)
                                                  Decided on : 02.04.2024


State of Punjab
                                                                   . . .Appellant
                                         Versus

Raj Kumar
                                                                 . . . Respondent

CORAM: HON'BLE MR. JUSTICE HARSIMRAN SINGH SETHI

PRESENT: Mr. Rohit Ahuja, DAG, Punjab.

             Mr. Ashok Sharma (Nabhewala), Advocate for the respondent.

       ****
HARSIMRAN SINGH SETHI, J. (Oral)

1. In the present appeal, the challenge is to the judgments and

decrees of the Courts below vide which, the suit filed by the respondent-

plaintiff has been allowed.

2. It may be noticed that the respondent-plaintiff filed a civil Suit

challenging the seniority list of JBT teachers (Male and Female) of Patiala

Division issued on 31.12.1959 by the Deputy Director Schools

(Administration of Punjab) as well as the seniority list of the teachers

(Male) issued by the District Education Officer, Patiala on 07.12.1981 and

the seniority list dated 01.09.1981 qua the female teachers, being arbitrary,

illegal, discriminatory, invalid and ineffective.

Further prayer was made in the suit that the seniority list should

be framed on the basis of date of joining of an employee and not from the

date of confirmation of an employee in service. The further challenge was

to the tentative seniority list dated 19.11.1987. The suit filed by the

respondents-plaintiffs was allowed by the trial Court on 14.06.1990 qua all

the plaintiffs except plaintiff No. 8, against whom, the said suit was

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RSA-2343-1994 (O&M) 2 2024:PHHC:043744 dismissed.

3. The State of Punjab filed an appeal against the Said judgment

and decree dated 14.06.1990 passed by the trial Court and the plaintiff No.

8 against whom suit was dismissed also filed an appeal against the judgment

of the trial Court. Both the appeals came to be decided by the Lower

Appellate Court on 04.02.1994 and both the appeals were dismissed

upholding the judgments and decree of the trial Court, hence the regular

second appeal at the hands of the State of Punjab.

4. Learned counsel for the appellant argues that once there was a

challenge to the seniority list, in the absence of the aggrieved persons i.e. the

employees over and above whom the respondent-plaintiff was claiming the

seniority, being party to the suit, suit could have been entertained and the

same was liable to be dismissed on the ground of maintainability itself

whereas, the said objection has not been discussed at all by the Courts

below while granting the relief to the respondent-plaintiff.

5. Learned counsel for the respondent-plaintiff submits that

though, it would have been better to array all the employees over and above

whom the respondent-plaintiff was claiming the relief as party to the suit

but, once the findings have been recorded by the Courts below that the

seniority cannot be fixed from date of confirmation in service and the same

has to be fixed from the date of joining the service, the said findings are

perfectly in-consonance with law and hence, the appeal filed by the State is

liable to be dismissed.

6. I have heard learned counsel for the parties and have gone

through the record with their able assistance.

7. It is a conceded position before this Court that in case, the relief

claimed by the respondent-plaintiff is allowed, a large number of employees

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RSA-2343-1994 (O&M) 3 2024:PHHC:043744 whose seniority has already been determined were likely to be effected so as

to be treated junior to the respondent-plaintiff. It is also a conceded position

that none of the said affected employees were made party to the civil suit.

That being the factual position which has gone un-rebutted, the suit could

not have been entertained by the Courts below keeping in view the settled

principle of law.

8. While passing judgment in the regular second appeal No. 247 of

1991 titled as Punjab State Electricity Board v. Bimal Kumar, decided on

20.07.2000, the Co-ordinate Bench of this Court has held that without

impleading the necessary parties, when there is a challenge to the seniority,

the suit cannot be held to be maintainable.

The relevant paragraphs No. 23, 24, 25 and 27 are as under:-

"23. In the last, now I take up the third contention raised by

the appellant that the suit was bad for non-joinder of

necessary parties. The learned Counsel for the appellant

thirdly contended that the suit filed by the appellant was

bad for non-joinder of necessary parties. According to

him, the persons whose seniority was likely to be affected

by the decision of the suit ought to be heard prior to

passing such orders because if the plaintiffs succeed they

will supersede a number of persons and may even affect

their promotion. For this purpose, he relied upon a

Division Bench judgment of this court in the case of

Jaswinder Singh Passi v. The Registrar, Cooperative

Societies, Punjab and others, 1998(5) S.L.R. 244 and

Jatinder Kumar and others v. State of Haryana and

others, 1991(5) S.L.R. 748, B.P. Chudasama v. State of

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RSA-2343-1994 (O&M) 4 2024:PHHC:043744 Gujarat and others, 1998(5) (sic) 290 : 1998(3) SCT 598

(Gujarat) and Davinder Bathia and others v. Union of

India, 1998(5) Supreme Court Cases 262.

24. On the other hand, learned Counsel for the respondents

has relied upon the judgment of the Hon'ble Supreme

Court in the case of V.P. Shrivastava and others v. The

State of M.P. and others, 1996(1) S.L.R. 819 : 1996(2)

SCT 192 (SC), to contend that wherever the plaintiff is

not challenging the ad hoc promotion but the position of

the said ad hoc promotees in the seniority list, then it is

not obligatory upon him to implead the said parties as

defendant to the suit.

25. I am of the considered view that the case of Shri V.P.

Srivastava (supra) is not of any help to the respondents

as the principle of determination of seniority adopted by

the Government is neither under challenge nor

questioned. In other words, it is a letter of appointment of

an individual, the validity and effect whereof has been

challenged in the suits, but obvious result thereof would

be disturbing the seniority list prepared by the State

Government as back as in the year 1981. It was

contended by the appellant that various persons have

been given promotion not only on ad hoc basis but even

on regular basis during this intervening period of seven

years. The respondents cannot be permitted to take

advantage of their own wrong and disturb the established

seniority since 1981. Admittedly, letters of appointment

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RSA-2343-1994 (O&M) 5 2024:PHHC:043744 were issued to the respondents in the year 1978-80 while

seniority list was issued more than a year/years

thereafter, giving ample opportunity to the respondents to

challenge the said seniority list. However, the

respondents opted to keep quiet for a considerable

period. The persons whose seniority is bound to be

affected by decreeing the suit have not been impleaded as

parties to the suit.

27. Applying the above said principles to the facts of the

present case, I am of the considered view that presence of

all the persons who are likely to be adversely affected, in

the event of the plaintiff succeeding, before the court is

essential. In other words, all such persons mentioned in

the seniority list of 1981 are necessary and proper parties

to the present suit. De hors the above findings, the suit of

the plaintiffs would be liable to be dismissed for non-

joinder of necessary parties and consequently

respondents herein would not be entitled to the relief

claimed. The decree of the courts below would be liable

to be set aside."

9. Even the Hon'ble Supreme Court in Vijay Kumar Kaul & Ors.

v. Union of India & Ors. (2012) 7 SCC 610 has also emphatically reiterated

the settled position of law that the claim for re-determination of seniority

cannot be entertained in the absence of the employees when it is likely to

jeopardize the interest of those employees who have not been impleaded

parties to the proceedings."

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10. Keeping in view the settled principle of law, the suit filed by the

respondent-plaintiff especially in absence of the necessary parties, could not

have been entertained by the Courts below, hence, the judgments and

decrees of the Courts below are perverse to the provisions of the Civil

Procedure Code as well as to the settled principle of law hence, cannot

sustain.

11. It may be noticed that while issuing notice of motion in the

present regular second appeal, the judgments and decrees passed by the

Courts below were stayed, hence, keeping in view the facts and

circumstances recorded herein above as the judgments and decrees passed by

the Courts below are perverse, the same are set aside and consequently, the

suit filed by the respondent-plaintiff stands dismissed being not maintainable.

12. The present regular second appeal stands disposed of.

13. Pending civil miscellaneous application, if any, stands disposed

of.

                                              (HARSIMRAN SINGH SETHI)
                                                      JUDGE
02.04.2024
Riya


Whether speaking/reasoned:    Yes/No
Whether Reportable:          Yes/No




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