RSA No.1835 of 1991 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1835 of 1991 Date of Decision: 17.2.2009 Sewak Singh Saini ..Appellant Vs. UCO Bank ..Respondent Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.Chanan Singh, Advocate, for the appellant. Mr.Rajesh Mahajan, Advocate, for the respondent. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- Vinod K.Sharma,J. (Oral) This regular second appeal is directed against the judgment RSA No.1835 of 1991 2 and decree dated 12.4.1991 passed by the learned lower appellate court dismissing the suit for declaration filed by the appellant to seek benefit of defence service rendered by him prior to joining services of the bank. The plaintiff/appellant brought a suit on the pleadings that he is an ex-serviceman and has joined the respondent/bank as Assistant Cashier-cum-Godown Keeper in the year 1978. Seniority list of the bank was prepared in March 1986 in which the plaintiff was placed at Sr. No.50. It is the case of the plaintiff that on the representation made by the ex-servicemen a policy decision was taken by the Government of India regarding giving benefit to the ex-servicemen of the services rendered by them in the Defence Forces. The policy decision was conveyed by the Head Office to the subordinate offices for giving the benefit of policy decision. The case set up by the plaintiff was that he was not given the requisite benefits. Thus, necessity arose to file the suit for declaration. On notice, suit was contested by the defendant by taking a preliminary objection that the suit was not maintainable. It was also pleaded that the suit was bad for mis-joinder and non-joinder of the necessary parties. On merit, the claim was contested by raising a plea that the guide-lines issued by the Government of India were not mandatory but suggestive. Plea that the decision was to be applied retrospectively was also asserted. It was pleaded that the suit filed by the plaintiff/appellant was pre- mature by taking a plea that the plaintiff would be placed in the seniority list after giving benefit as per policy decision of Government of India by the RSA No.1835 of 1991 3 Bank. In the replication, the pleas raised in the written statement were denied and that of the plaint were reiterated. On the pleadings of the parties, learned trial court was pleased to frame the following issues:- “1. Whether the plaintiff is entitled to the relief of declaration and mandatory injunction as prayed for on the grounds mentioned in the plaint? OPP 2. Whether suit of the plaintiff is not maintainable? OPD 3. Whether the suit of the plaintiff is premature? OPD 4. Whether this court has no jurisdiction to try the present suit? OPD 5. Whether the suit is bad for non-joinder and mis-joinder of necessary parties? OPD 6. Relief.” The learned trial court held that the plaintiff was entitled to the relief of declaration and mandatory injunction as prayed for on the grounds taken in the plaint. Issues No.2 to 5 were decided in favour of the plaintiff and against the defendant as these were not pressed. Learned trial court decreed the suit for declaration to the effect that the plaintiff is entitled to the benefit of service rendered in the Indian Navy as per the guidelines issued by the Government of India in this regard and decree for injunction was granted directing the bank to give benefit to the plaintiff at the time of preparing the seniority list. RSA No.1835 of 1991 4 The defendant/respondent preferred an appeal against the judgment and decree passed by the learned lower court. Learned lower appellate court was pleased to reverse the findings recorded by the learned trial court by observing that the seniority list Ex.P.8 was prepared on 1.3.1986 in which the name of the plaintiff/appellant appeared at Sr.No.50. The instructions on which reliance was being placed by the plaintiff were issued in September, 1986 and therefore, it was held that the effect of said instructions could not be given in the seniority list prepared on 1.3.1986. The court, however, observed that the stand of the bank was that the guide-lines issued by the Government of India would be duly taken note of and proper weightage would be given to the plaintiff according to his entitlement in the next seniority list to be issued. Learned lower appellate court was pleased to observe that the bank could not be forced to revise the seniority list as on 1.8.1986 on the guide-lines issued subsequently. Learned lower appellate court also accepted the stand of the bank that the post of Head Cashier Category-E was functional post carrying special allowance and it was not promotional post. Thus, the plea of the plaintiff that it was promotional post was rejected. Learned lower appellate court held that as per the agreement the seniority list was to be issued twice a year and not frequently. The learned lower appellate court, therefore, held that the plaintiff-appellant should have waited the next seniority list to be issued by the bank. The RSA No.1835 of 1991 5 learned lower appellate court also held that the guide-lines were not mandatory and therefore, the suit was not competent. Findings on issue No.1 were, therefore, reversed and suit was ordered to be dismissed. Mr.Chanan Singh, learned counsel appearing on behalf of the appellant contended that this appeal raises the following substantial question of law:- 1. Whether the judgment and decree of the learned lower appellate court holding that the instructions issued in September, 1986 could not be applied to seniority list issued in March, 1986 to deny the benefit claimed, is perverse and is the outcome of misreading of Memo of agreement regarding policy and procedure concerning promotion and selection to posts getting functional allowance? Learned counsel for the appellant in support of the substantial question of law vehemently contends that the learned lower appellate court has misread the pleadings and evidence brought on record to reverse the findings of the learned trial court on issue No.1. The contention of the learned counsel for the appellant is that the plaintiff at no stage claimed the revision of seniority list issued in March, 1986 but his claim was that he was entitled to the benefit under the Government guide-lines. Once the stand of the defendant-respondent was that the said benefit under the guide-lines was to be given to the plaintiff, in that eventuality the bank was merely requested to correct the seniority list by placing him at appropriate stage RSA No.1835 of 1991 6 without changing the said seniority list in any manner and therefore, the judgment passed by the learned lower appellate court is the outcome of misreading of pleadings and guide-lines issued by the Government of India. It is also the contention of the learned counsel for the appellant that the learned lower appellate court failed to notice that the promotion policy agreement, 1981 executed between the Union and the Bank provides as under:- “7.3 Provisions of this Agreement are liable to be altered, modified, amended, superseded so as to conform to any of the directives received from the Government from time to time regarding Scheduled Castes/Scheduled Tribes, Ex-servicemen etc.” In view of the agreement of 1981, the seniority position was required to be modified so as to conform to any of the directives received from the Government from time to time. In view of the clear stipulation in the promotion policy of 1981 there was no occasion for the learned lower appellate court to have reversed the findings on issue No.1. Learned trial court had merely directed the bank to implement the guide-lines of the Government of India and provide consequential benefits to the plaintiff. Mr. Rajesh Mahajan, learned counsel appearing on behalf of the respondent bank referred to the guide-lines Ex.P.3 to contend that the benefit of 2 years of military service was to be given only at the time of promotion from one cadre to another i.e. from subordinate to clerical and clerical to officers grade. RSA No.1835 of 1991 7 Learned counsel for the respondent, therefore, vehemently contends that the judgment and decree passed by the learned lower appellate court is as per the policy, especially when the bank has taken a specific stand that the benefit of the guide-lines would be given to the appellant at appropriate stage. It is also the stand of the respondent that the plaintiff was, in fact, given the benefit for the purpose of promotion to the Chief Cashier as the post of Head Cashier was not a promotional post and therefore, the plaintiff could not claim any benefit at the time of promotion from Assistant Cashier to the post of Head Cashier. However, on consideration of the matter, I find force in the contentions raised by the learned counsel for the appellant. Once it was admitted case of the parties that the plaintiff was entitled to the benefit of guide-lines, the bank was under obligation to implement the said decision by modifying the seniority list in view of the stipulation in the promotion agreement of 1981 and once this procedure was followed the plaintiff was to be upgraded from position 50 and consequently given the consequential benefits. The plaintiff/appellant, therefore, was entitled to be considered for promotion to the post of Chief Cashier from the date, his immediate junior was promoted and said benefit could not have been denied by holding that the instructions have no retrospective effect. Even otherwise, substantial question of law deserves to be answered in favour of the appellant especially in view of the positive stand taken by the defendant that the plaintiff was entitled to the benefit under the RSA No.1835 of 1991 8 guide-lines issued by the Government of India. There was no occasion for the learned lower appellate court to have reversed the findings on issue No.1 as the learned trial court had merely directed for the grant of benefit under the guide-lines to the plaintiff with consequential benefits which means that the plaintiff was entitled to be promoted to the post of Chief Cashier with retrospective effect only from the date his juniors were promoted. Consequently, this appeal is allowed. The judgment and decree of the learned lower appellate court is set aside and that of the learned trial court is restored with no order as to costs. 17.02.2009 (Vinod K.Sharma) rp Judge