Punjab-Haryana High Court
State Of Haryana vs Chhotu Ram on 22 October, 2024
Author: Sudeepti Sharma
Bench: Sudeepti Sharma
Neutral Citation No:=2024:PHHC:138416
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RSA-1770-2001
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
717 RSA-1770-2001
Date of Decision: October 22, 2024
State of Haryana and others ......Appellant(s)
Vs.
Chhotu Ram ......Respondent(s)
CORAM: HON'BLE MRS. JUSTICE SUDEEPTI SHARMA
Present: Mr. Harish Nain, AAG, Haryana.
Mr. Kartikey Chaudhary, Advocate for
Mr. Samrat Malik, Advocate
for the respondent.
----
SUDEEPTI SHARMA J. (ORAL)
The present appeal has been filed by the State of Haryana against
the judgment and decree dated 09.1.2001 passed by the Ld. first Appellate
Court, Narnaul whereby the said Court has set aside the judgment and decree
dated 21.04.1993 passed by Sub Judge, IInd Class, Narnaul without discussing
any issue and giving any finding thereon.
BRIEF FACTS OF THE CASE
2. The brief facts of the case are that respondent/plaintiff filed suit
for declaration against the actions of the authorities concerned for not
regularising the services of respondent/plaintiff and also withholding the pay
and salary on the post of Water Pump Operator-II (in short WPO-II) w.e.f.
22.1.1986. The respondent/plaintiff was initially appointed as work-charge
Keyman on 02.09.1982 and remained posted at Rewari from 02.9.1982 to
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31.05.1983. Thereafter, he was transferred from Public Health Division, Rewari
to Public Health Sub-Division No.1, Mohindergarh against a vacant post vide
order No.9534-37 dated 25.05.1983. The respondent/plaintiff was given
additional duty of the post of WPO-II w.e.f. 22.01.1986 but he was not given
the salary of that post.
3. Further that in the month of August 1988, the services of
respondent/plaintiff were regularized on the post of Keyman. He filed the suit
on the ground that since he was working against the post of WPO-II, therefore
his services should have been regularized to the post of WPO-II and he should
have been granted the pay scale of WPO-II. Therefore, he challenged the action
of the State of Haryana (appellant-herein) withholding the promotion of the
respondent/plaintiff as WPO-II and also withholding the salary of the WPO-II
post w.e.f. 22.1.1986 onwards.
4. Upon notice, the defendants appeared and filed joint written
statement submitting that the plaintiff was appointed as Keyman work charge
with effect from 2.09.1982 under Public Health Division, Rewari and lateron,
he was transferred to Sub Divisional Engineer, Public Health Sub Division
No.1 Mahendergarh. He was entrusted to perform the additional duties of
W.P.O-II vide order dated 22.01.1986. He was never promoted on the post of
WPO-II. It is submitted that the order of the entrusting of additional duties to
the plaintiff as W.P.O-II were withdrawn by Executive Engineer, P.H.Division,
Narnaul vide order No. 6115-19 dated 13.05.1986 and the plaintiff was to work
as keyman. He only performed the additional duties of W.P.O-II and hence he
was not eligible for the pay and allowances of the post of WPO-II. According
to the instructions of the Government, the official who had completed four
years of his services on 31.12.1986 was to be regularized as per availability of
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vacancies. The plaintiff joined on 2.09.1983 and the last official who was
regularized as Keyman after completion of four years service of whom the date
of joining is 28.06.1982, and the plaintiff was junior to him. As no vacancy was
available, therefore, he was not regularized as W.P.O-II. Rest of the averments
made in the plaint were denied and prayer for dismissal of the suit was made.
5. From the pleadings of the parties, the following issues were
framed:-
1. Whether the impugned order dated 22.1.1986 is illegal,
nul and void? OPP
2. Whether the plaintiff is entitled for promotion ? OPP
3. Relief.
6. After hearing both the parties and perusing the whole record,
learned Sub Judge, IInd Class, Narnaul dismissed the civil suit vide judgment
and decree dated 21.04.1993. The appeal against the said judgment and decree
was preferred by the respondent/plaintiff, which was allowed by the learned
Additional District Judge, Narnaul. Hence, the appellant/respondent filed the
present Regular Second Appeal.
SUBMISSIONS OF COUNSEL FOR THE PARTIES
7. Ld. State counsel for the appellant contends that the Ld. first
appellate Court did not appreciate the evidence on record in correct perspective
and wrongly decided the appeal filed by the respondent/plaintiff. He further
contends that the Ld. Trial Court has not properly framed the issues and prays
for allowing the appeal.
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8. Per contra, Ld. counsel for the respondent contends that the
appeal has rightly been decreed in favour of the respondent and prays for
dismissal of the appeal.
9. I have heard learned counsel for the parties and perused the whole
record of the case.
10. The relevant portion of the judgment dated 21.4.1993 passed by
Sub-Judge, IInd Class, Narnaul is reproduced as under:-
10. From the perusal of the plaint, it is observed that the plaintiff
has claimed that he was promoted on the post of W.P.O.II with
effect from 22-1-1986 in the regular scale of the post of W.P.O.II
where as there is no such order by which it can be said that the
plaintiff was promoted on the above post on 22-1-1986. From the
perusal of the copy of order dated 22-1-1986, the copy of which is
Ex.D1, it is observed that the additional duties of W.P.O-II were
entrusted to the plaintiff. The additional duties given to the
plaintiff vide impugned order were withdrawn vide order dated 13-
5-86 and the copy of office order is Ex.D2. From the perusal of the
Ex. D4, it is observed that a note has been appended in the order
year 1983, it is clear that no Τ.Α./D.A./joining time will be
admissible to the plaintiff and as such it is proved that the plaintiff
was transferred to the Public Health Sub Division, Mahendergarh
on his own request. It is also pertinent to mention here that at the
time of institution of the suit, the service of the plaintiff were not
even regularised on the post of keyman and his services on the
post of keyman were regularised in the year 1987. It is also
pertinent to mention here that the plaintiff has not placed the
seniority list on the file, by which, it can be established that the
juniors have been promoted. The plaintiff withhold the necessary
documents which were necessary for the proper adjudication of
the case. It is also pertinent to mention here that the civil court has
very limited jurisdiction and the civil court can not direct the
defendants for promotion of the plaintiff. It is settled law that the
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promotions are made on the basis of seniority-cum-merit and this
fact is only decided by the concerned authorities/department.
Seniority is not only the basis of the promotion. The civil court has
no jurisdiction to direct the authorities to promote an employee
and in these circumstances, the direction cannot be issued to the
defendants for the promotion of the plaintiff and the court can only
issue direction to consider the employee for promotion. Reliance is
placed on Dharshan Singh applicant Vs. State of Punjab,
respondent, 1993 (1) SCT 180. In view of the above discussion, I
find no illegality in order dated 22-1-1986 and as well as there is
no material by which it can be directed that the plaintiff is entitled
for promotion. Both these issues are decided accordingly in favour
of the defendants and against the plaintiff."
11. A perusal of the above shows that the ld. Trial Court has taken into
consideration each and every aspect of the case and the evidence on record and
passed a self speaking judgment. Therefore, I do not find any infirmity in the
same.
12. The relevant portion of the judgment passed by ld. Additional
District Judge, Narnaul dated 9.1.2001 is reproduced as under:-
20. From the perusal of the case file it is clear that from the date of
passing of order EX. Dl the plaintiff is working on the post of
WPO-II and the above fact is corroborated by P-4 Hukam Chand
J. E. and recommendation letter Ex. PW5/D in this regard. The
defendants had taken a plea that vide order dated 13.5.1986
(EX.D2) work of WPO II was order to be withdrawn from the
plaintiff and the said order was never acted upon by the
defendants and the plaintiff continued to perform his duties as
WPO-II. It will not be out of place to mention that no orders of this
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sort were either conveyed to the plaintiff nor any intimation was
sent to him and admittedly no show cause notice was even served
before passing the impugned reversion order EX. D2 and EX.
PW2/B which was necessary before passing any adverse order
against the employee and on this score only the order EX.D2 is not
binding on the rights of the plaintiff. It is also clear that junior
persons and similarly placed persons like Laxman Singh, Pardeep
Kumar, Shyam Sunder Dev Karan, Om Parkash Ami Lal etc. have
been regularised on the post of WPO-II after completing four
years service but the plaintiff has been treated discriminately by
the defendants on the plea that no vacant post of WPO-II is
available although this plea of the defendants is falsified by the
evidence placed on record and discussed in the foregoing para
that plaintiff had been performing the duties of WPO-II since
22.1.1986 regularly and admittedly vide order dated 16.8.2000
during the pendency of the appeal, the plaintiff was ordered to be
promoted on the post of WPO-ΙΙ.
21. Even otherwise the plaintiff has been performing the duties of
WPO-II since 22.1.1986 after passing of the order Ex.D1 but the
salary of the said post was not allowed to him for which he is
entitled. That the defendant had taken a new plea in evidence and
not in written statement which evidence cannot be taken into
consideration and plaintiff is transferred from another division
vide order Ex.D2 on his own request. so for the purpose of
seniority of the plaintiff to be counted from the date of the order of
transfer and not from the date of appointment. Therefore, no junior
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were regularised on the post of WPO-II. They also tender in
evidence instruction EX. D3 and after perusal of the instructions it
is clear that if a person is transferred from one division to another
on his own request then authorities are bound to make note in this
regard which is reproduced:-
"That while issuing such transfer order it should be made
absolutely clear in the order of transfer that the person
transferred shall not be entitled to any benefit of past service
in the new unit for the purposes of seniority in the new unit."
But according to the instructions Ex.D3 as mentioned above, is
also not included in transfer order EX.D4. so the plaintiff cannot
be denied the benefit of his past service in previous suit. It was
further submitted that even otherwise there is no evidence on the
file which shows that plaintiff was transferred at his own request
except the note in transfer order EX.D4 "NO TA/DA/joining time
will be admissible. So only on the ground of foregoing note it
cannot be inferred that the plaintiff had been transferred vide
order Ex.D4 at his own request in absence of his written request
regarding transfer which has to be produced by the defendants in
their evidence to establish their plea. It was further submitted that
even otherwise the plaintiff also brought on file the service book of
Laxman Singh who had been transferred from Bhiwani Division to
Naranul Division in the year 1984 as work charge on his own
request and his date of appointment is 3.12.1982. He was also
ordered to be posted on WPO-II vide order dated 17.2.1986 and
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regularised vide order dated 8.2.1990 on the post of WPO-II who
is junior to the plaintiff on all account"
13. A perusal of the above shows that ld. Additional District Judge,
Narnaul totally ignored the evidence on record. The finding of the ld.
Additional District Judge, Narnaul even after noticing that no junior to the
respondent was regularsied on the post of WPO-II, and after noticing
instructions Ex. D3, whereby it is made clear that if a person is transferred from
one division to other division on his own request then he shall not be entitled to
any benefit of past service in the new unit for the purpose of seniority in the
new unit, still the appeal filed by the respondent was allowed. The finding
given by Ld. Additional District Judge, Narnaul is not acceptable to this Court.
CONCLUSION
14. The undisputed facts in the present case are that:-
i) the respondent/plaintiff was appointed as Keyman on work-charge
basis on 2.9.1982.
ii) he was regularized on the same post in August 1988.
iii) he was given additional charge to the post of WPO-II on 22.1.1986
iv) that the additional charge given of WPO-II was withdrawn vide
order No.6115-19 dated 13.05.1986 by Executive Engineer, PH Division
Narnaul.
v) Admitted fact is that there was no seniority list placed on record by
the respondent seeking promotion to the post of WPO-II and neither it is the
case of the respondent that he was ignored and his juniors were promoted to the
post of WPO-II.
vi) Admittedly, he was promoted to the post of WPO-II vide order
dated 16.08.2000 during the pendency of the appeal filed by the respondent.
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vii) It is an admitted fact on record that no junior was regularized on
the post of WPO-II as per Ex.D-3.
viii) It is an admitted fact on record that the respondent/plaintiff was
transferred on his own request and as per the instructions of State of Haryana,
the person transferred on his own request shall not be entitled to any benefit of
post in the new unit for the purpose of seniority in the same.
ix) A perusal of the record shows that even the issues framed by the
Ld. Trial Court are against the facts and were not properly framed and are
against the disputed facts.
15. In view of the above undisputed facts, the respondent was given
additional charge to the post of WPO-II for just four months. He was appointed
as Keyman on work-charge basis on 2.09.1982. An additional duty of WPO-II
was given to him on 22.01.1986 and withdrawn on 13.05.1986 vide order No.
6115-19. He was regularized on the same post in August 1988. Therefore, the
civil suit filed by the respondent/plaintiff for declaration that he should be
regularized to the post of WPO-II w.e.f 22.01.1986 was itself against the settled
preposition of law.
16. A perusal of the record further shows that as per his turn, the
respondent/plaintiff was promoted as WPO-II vide order dated 16.8.2000.
Therefore, there is nothing wrong in the action of State of Haryana.
17. In view of the above, I find merit in the present appeal and the
same is allowed. The judgment and decree dated 09.01.2001 passed by the Ld.
first Appellate Court, Narnaul is set aside.
18. However, it is made clear that whatsoever financial benefits have
been given by State of Haryana to the respondent/plaintiff, no recovery would
be effected from him qua the amount already deposited /paid to him.
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19. Decree sheet be prepared accordingly.
20. All the pending applications, if any, also stand disposed of.
(SUDEEPTI SHARMA)
JUDGE
October 22, 2024
sonia arora
Whether speaking/reasoned: Speaking
Whether reportable Yes
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