ivil Appeal No 4055 of 1987
From the Judgment and Order dated 1181987 of the Punjab and Haryana High Court in RSA No 2092 of 1987
CM Nayar for the Appellants
RP Agarwal and US Prasad for the Respondent
The Judgment of the Court was delivered by SHARMA J
This appeal of the State of Punjab by special leave arises out of a suit filed by the respondent Nachhat tar Singh
The plaintiff respondent was serving the State Police as a constable when an incident took place on 1721971 which led to the prosecution of the plaintiff along with the Head Constable Kahan Singh and the Sub Inspector Baldev Singh
The charge made against the plaintiff was that he physically assaulted and detained one Gurdial Singh
The accused were tried and Baldev Singh was acquitted
So far the plaintiff and Kahan Singh were concerned they were found guilty under section 325 read with section 34 of the Indian Penal Code and several other sections and were sentenced to rigorous imprisonment for six months each
The conviction was maintained up to the Supreme Court stage
The Senior Superintendent of Police Patiala thereafter dismissed the plaintiff on 2041976
This order of dismiss al was challenged as illegal in the present suit which was instituted on 6111982
Besides taking several technical objections the suit was defended on merits as well as on the ground of limita tion
From the judgment of the trial court it appears that only two questions were pressed by the parties namely whether the suit was barred by limitation and whether the order of dismissal was illegal on the ground that the plain tiff was not served with a show cause notice before the impugned order was passed
Both the issues were decided by the learned 824 Subordinate Judge against the plaintiff and the suit was accordingly dismissed
The plaintiff appealed against the decision
It appears that before the Additional District Judge who heard the appeal it was contended on behalf of the plaintiff that the other accused constable Kahan Singh who was also con victed with the plaintiff had also filed a separate suit against his dismissal from service which was decreed with an observation that it was open to the competent authorities to pass fresh order of punishment in accordance with law but while no further punishment was awarded to Kahan Singh the respondent s service stands terminated
A plea of dis crimination was taken on this basis which was accepted by the first appellate court and the suit was decreed
On the question of limitation the court after a very brief discus sion in the judgment held that the impugned order of dis missal was void on the ground of arbitrariness and there fore the bar of limitation would not apply
It was further observed that this decision would not preclude the authority to award a minor punishment provided such a punishment has been awarded to the other police officials tried and con victed along with him
The authority was also permitted to take a decision in regard to the pay and allowance for the period the plaintiff remained out of service because of his being in jail
The defendant appellants filed a regular second appeal before the High Court against the decree of the first appellate court which was dismissed at the admission stage by merely saving HEARD
DISMISSED It has been contended on behalf of the appellants and in our view correctly that serious questions of law are in volved in this case and the High Court erred in dismissing the second appeal in limine
It has been argued that Rule 1622 of the Punjab Police Rules 1934 mandatorily directs that a police officer judicially sentenced to rigorous imprisonment exceeding one month shall be dismissed and this mandate of law cannot be ignored on the ground that in the case of another member of the police force a mistake was committed
Besides it has been asserted on oath before this Court and not denied by the respondent that the aforesaid Kahan Singh had to be re instated in service for a short time in pursuance of the decision in the suit as the order of his dismissal had been passed by an authority not compe tent in this regard and that later he was again dismissed
It has also been pointed out that another convicted consta ble Surinder Singh was given the 825 benefit of probation by the criminal court and his case therefore is distinguishable
Even in the concluding por tion of the last paragraph of the judgment of the Additional District Judge the possibility that the other police officials convicted with him that is the plaintiff might have been later punished is recognised
It has been further urged on behalf of the appellants that the finding of the Additional District Judge on the question of limitation is patently illegal inasmuch as the judgment assumes that no law of limitation is applicable to suits where an order is impugned as being void
The High Court should have examined the plaint for finding out the cause of action for the suit and then in that light deter mined the correct article of the Limitation Act applicable to the case
Serious objection has been taken against the observations of the first appellate court permitting the competent authority to inflict only minor punishment on the plaintiff in certain conditions and the direction about the payment of the salary and the other emoluments
After heat ing the learned counsel for the parties we agree with the appellants that the question involved in this suit should not have been lightly brushed aside by the High Court in the manner it has been done
We therefore set aside the judg ment of the High Court and remit the case to it for fresh disposal in accordance with law
It will be open to the appellants to file an application for admitting additional evidence in regard to the further orders passed against Kahan Singh subsequent to the civil court s decree in his favour and to argue before the High Court that the case of the present plaintiff is distinguishable
The High Court should call for the records and decide the case finally at the motion stage itself as the case is an old one
In the event of admission of fresh evidence the High Court shall permit the plaintiff to file relevant rebutting evidence
The operation of the decree of the first appellate court shall remain stayed till the final disposal of the second appeal by the High Court
The appeal is accordingly allowed
There will be no order as to costs
TNA Appeal allowed


Summary:
The respondent employees are Traffic Apprentices be longing to Class III Railway service which has four grades carrying different payscales
Above Class III posts are Class II and Class I posts
The entire Class II service was filled by promotion by selection from Class III service
The Class III service in the Traffic and Transportation Depart ment consisted not only of Traffic Apprentices but also of other categories
However the promotion to Class II post was not made exclusively from Class III service of the said Department but the incumbents of Class III service in the Commercial Department were also entitled to be considered for promotion
Consequently a combined seniority list of Class III service both of the Traffic and Transportation Department as well as the Commercial Department was main tained
The promotions to further posts viz to Class I posts were thereafter made from the incumbents of Class II posts
In Class I service 60 per cent posts were filled by direct recruitment and 40 per cent by promotion from Class II service
The appointment to the posts of Traffic Apprentices was by direct 770 recruitment to the extent of 25 and this quota was to be carried forward in the case of shortfall in any particular year
The remaining 75 of the vacancies were earmarked to other departmental officials for promotion who were called rankers
Subsequently both the sources of recruitment were merged and a new single unified cadre of Relieving Trans portation Assistants was constituted
The respondents filed a writ petition in the High Court challenging the seniority list in the aforesaid newly con stituted cadre on the ground that their seniority in the newly constituted cadre was not correctly fixed according to quota rota rule of 2575 either because the quota rule was not observed properly or the unfilled vacancies in the 25 quota reserved for them were not carried forward since 1954 onwards
A single judge of the High Court rejected the petition on the ground of laches
On appeal the Division Bench set aside the decision of the single judge on the question of laches and directed the Railway Administration to draw a revised seniority list
Against the decision of the Division Bench the Railways preferred a Special Leave Petition in this Court which was dismissed
Accordingly the Railways prepared a fresh sen iority list in 1976
Since the said seniority list took care of the grievances only of the employees who were parties to the petition some of the Traffic Apprentices fried an application before the Central Administrative Tribunal for a direction to quash the seniority list of 1976 and to prepare a fresh seniority list
In the meanwhile pursuant to the directions of the High Court the Railways prepared a fresh seniority list in 1983 superseding the seniority list of 1976
The Tribunal disposed of the application by its order dated June 25 1986 by directing that the seniority list of 1983 shall be acted upon and that the confirmations and promotions be made on the basis of that list
Consequently the Railways worked out the promotions upto and inclusive of Class II posts
Subsequently the respondent fried a contempt petition before the Tribunal contending that full effect had not been given to its judgment dated June 25 1986
The Tribunal by its order dated 14th September 1986 held that the respond ents are entitled to further promotions to Class II and Class I and are entitled to emoluments on such higher posts with retrospective effect
Hence this appeal by the Railways 771 against the Tribunal s order dated 14th September 1986
Allowing the appeal this Court HELD 1
The Tribunal has gone beyond the scope of the original petition while dealing with the contempt petition
The promotions to Class II and above were not the subject matter of the writ petition before the High Court and in its direction the High Court said nothing about the promo tions to Class II service
However the appellant Railways worked out the promotions to Class ii service on the basis of the new seniority list of class Iii service of the year 1983 under which the respondents have gained substantially
Therefore the respondents are not entitled to claim as a matter of right promotions to any higher posts
This Court however does not desire to make any observations which will come in their way if the Union Public Service Commission is inclined to look into the matter
780D G 2
The entitlement of the respondents to the higher grades in Class111 posts as per the directions of the High Court was on the basis of quota and rota rule which in itself is both inequitable and irrational
Time and again the rule has been criticised on account of the absurd result to which it leads viz the deemed appointments have to be given to the concerned employees even from the dates when they were not in service and probably when they were still in their schools and colleges
780H 781A B In the instant case this is the situation with respect to some of the respondents
The quota and rota rule had to be worked out from the year 1954 as per the directions of the High Court and the Tribunal
There is therefore nei ther equity nor justice in favour of the respondents to award them emoluments of the higher posts with retrospective effect
781B C PS Mahal  Ors
vs Union of India  Ors
   held inapplicable
21 On the principle of no work no pay the respond ents will not also be entitled to the higher salary as they have not actually worked in the said posts
781F