RSA No.4858 of 2004 and C.M. No.8349-C of 2009 (O&M) -: 1 :- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4858 of 2004 and C.M. No.8349-C of 2009 (O&M) Date of decision: August 23, 2011. Haryana State Electronics Development Corporation Limited & Ors. ... Appellant(s) v. Seema Sharma & Ors. ... Respondent(s) CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Shri Pankaj Gupta, Advocate, for the appellant(s). Shri Vijay Kumar Jindal, Advocate, for respondent No.1. Kanwaljit Singh Ahluwalia , J. (Oral): Present regular second appeal has been filed by defendants No.1 to 3 to the suit. This case has a chequered history. The suit filed by plaintiff-respondent No.1 was decreed by the trial court on 5.2.2002 and it was held that she is entitled to declaration that she is senior to defendants No.4 and 5 (respondents No.2 and 3 herein) and, thus entitled to promotion from the post of Receptionist-cum-PBX Operator to Senior Receptionist- cum-PBX Operator from the date her juniors, namely, defendants No.4 and 5 were so promoted along with all consequential benefits. Aggrieved RSA No.4858 of 2004 and C.M. No.8349-C of 2009 (O&M) -: 2 :- against the same, present defendants have filed the appeal. The same was also dismissed by the lower appellate court on 12.4.2004. The regular second appeal filed by the present defendants was also dismissed by a Coordinate Bench of this Court on 15.2.2005. Aggrieved against the same, defendants had approached the Hon'ble Apex Court. The Hon'ble Apex Court vide its judgment dated 5.5.2009 passed in Civil Appeal No.1304 of 2009 remitted the matter back and requested the High Court to rehear the appeal and dispose of the same as early as possible, preferably within a period of four months from the date of production of the order before the High Court. This appeal was listed before this Bench for the first time on 10.8.2011 when on the joint request, the case was adjourned for today. With the consent of the parties, I have proceeded to decide the present appeal at the motion hearing. I have also perused the record requisitioned from the courts below. There is no dispute that in the office of the appellant- defendants, for promotion of an employee, rule of merit-cum-seniority is to be followed. Case of the appellant-defendants is that the service record of the plaintiff-respondent No.1 was not good, therefore, she was ignored and admittedly her juniors, namely, respondents No.2 and 3 were promoted. Vide orders dated 10.9.1991. Respondents No.2 and 3 have been proceeded against ex-parte in the present appeal as no body has caused appearance for them in spite of service. Shri Vijay Kumar Jindal, Counsel appearing for the respondent- RSA No.4858 of 2004 and C.M. No.8349-C of 2009 (O&M) -: 3 :- plaintiff has submitted that even if principle of merit-cum-seniority is to be followed on the date of promotion, it was incumbent upon the appellant- defendants to compare the record of the plaintiff-respondent with her juniors who were promoted and were allowed to steal march over the plaintiff-respondent. Shri Pankaj Gupta, Counsel appearing for the appellant- defendants, has also very fairly stated that on the record, there is no document from which it can be inferred or it is discernible that the record of the plaintiff-respondent and respondents No.2 and 3 were ever compared. However, he has stated that the service record of the plaintiff-respondent was such that she was not entitled to promotion. To answer this part of the controversy, it will be necessary to give a brief gist of the facts which have been gathered from the amended plaint and amended written statement filed thereto. Plaintiff-respondent was appointed as a Receptionist-cum-PBX Operator in the pay scale of Rs.400-600 plus Rs.50/- as a special pay on 8.5.1986 by appellant-defendant No.1 – Haryana State Electronics Development Corporation Ltd. She joined her services on the said post on 9.5.1986 in the head office of the Corporation at Chandigarh wherefrom she was transferred to Ambala Cantonment in the office of the defendant No.2 in August 1987. She had been discharging the duties on the said post and according to the plaintiff, her service record was satisfactory and, therefore, she was confirmed to the post of Receptionist-cum-PBX Operator w.e.f. 9.5.1987. It was further pleaded by the plaintiff that defendants No.1 to 3 had allowed annual grade increment to her on 25.5.1987. She was also RSA No.4858 of 2004 and C.M. No.8349-C of 2009 (O&M) -: 4 :- granted revised pay scale along with special pay. A grievance was made in the suit that defendants No.4 and 5, who are respondents No.2 and 3 in the present appeal, were promoted on 10.9.1991 to the higher post of Senior Receptionist-cum-PBX Operator in the higher pay scale of Rs.1200-2040 despite being junior to the plaintiff-respondent. It was pleaded in the suit that defendant No.4 – respondent No.2 herein, Smt. Santosh Yadav, was appointed on 26.5.1986 as Receptionist-cum-PBX Operator whereas defendant No.5 – respondent No.3 herein, Smt. Deveshwari Negi was promoted as such on 29.8.1986. A written statement was filed to the suit wherein it was admitted that respondents No.2 and 3 were junior to the plaintiff-respondent No.1. However, it was stated that as per the rules for promotion, the criteria is merit-cum-seniority and since the work and conduct of the plaintiff was not satisfactory, her service record was not upto the mark, therefore, plaintiff was ignored and defendants No.4 and 5 were promoted. In para 5 of the written statement, on merits, it was averred in categoric terms that plaintiff-respondent had got no right for promotion whatsoever as, according to the rules, merit-cum-seniority is the criteria for promotion. However, it was denied that act of the appellant-defendants in promoting the juniors was discriminatory in nature. It was stated that work and conduct of the plaintiff was never satisfactory; a complaint was received that she was found hearing conversation between the Managing Director of the Corporation and the Commissioner and Secretary, Government of Haryana, Electronics; she was transferred to IDDC office at Ambala Cantonment. She had breached the trust, in violation of the conduct rules of RSA No.4858 of 2004 and C.M. No.8349-C of 2009 (O&M) -: 5 :- the employees on account of which a show cause notice was issued to her. Furthermore, a complaint was received from a local industrialist that she was not attending to telephone calls and another incident was cited that during duty hours, she was found sleeping and was not attending to the telephone calls. It was further stated that a show cause notice was issued to the plaintiff for having misutilized the advance given to her for the purchase of a two wheeler and a minor punishment of stoppage of one increment with non-cumulative effect was inflicted upon her. A replication was filed by the plaintiff-respondent in which she reiterated the contents of the plaint and denied as to what was stated in the written statement. Plaintiff herself appeared as PW1. She admitted in cross examination that a show cause notice was issued to her to the effect that she had heard the conversation between the Managing Director and the Administrative Secretary, Government of Haryana, Electronics Department. However, she stated that punishment in the shape of warning “to be careful in future” was awarded. She further admitted that show cause notice was issued and after reply was filed thereto, she was transferred to the office of IDDC, Ambala Cantt. She also admitted that a show cause notice was issued to her, whereby she was called upon to give explanation as to why she was sleeping on various occasions at the time of duty. She further admitted that a show cause notice was issued under Rule 8 of Haryana Civil Services (Punishment and Appeal) Rules, 1987 on the charge of misutilization of advance taken by her from the Department and punishment of stoppage of one annual increment with non-cumulative effect was RSA No.4858 of 2004 and C.M. No.8349-C of 2009 (O&M) -: 6 :- imposed. Plaintiff had examined no other witness. Appellant-defendants examined Shri Naresh Sharma, Manager as DW1. He placed on record various documents regarding appointment, show cause notice issued and reply filed thereto. All these documents were exhibited. However, he stated that the plaintiff had taken an advance for purchase of a two-wheeler which was required to be purchased within two months from the date of withdrawal but the same was not purchased for which a show cause notice Ex.D1 was issued. Plaintiff submitted her reply as Ex.D2 and after consideration, punishment vide Ex.D3 was imposed. In cross examination, it was admitted that no complaint prior to 24.7.1987 was outstanding against the plaintiff. He further admitted that Dr. K.S. Balain was the Managing Director of the Corporation in July 1987 and Shri V.K. Nasa was the Deputy General Manager. This witness further stated that it is correct to say that the work and conduct of the employee is to be considered on the date of promotion and subsequent work and conduct is immaterial. He further admitted that the complaints received against the plaintiff were not diarized. This witness further admitted that defendants No.4 and 5, i.e., respondents No.2 and 3 were junior to the plaintiff. Shri Jindal, appearing for the plaintiff- respondent No.1, has stated the entire trouble started when Dr. K.S. Balain had taken over as the Managing Director. Shri Jindal stated that the plaintiff-respondent resisted sexual advances made by the Managing Director and, therefore, various show cause notices were issued to the plaintiff-respondent. Shri Jindal has referred to a part of the replication where a specific allegation has been levelled that the plaintiff-respondent beceme a victim of immoral and evil RSA No.4858 of 2004 and C.M. No.8349-C of 2009 (O&M) -: 7 :- wishes of Dr. K.S. Balain, Managing Director of the Corporation. Shri Jindal further states that the order of promotion was passed on 10.9.1991 and on that day, record of the plaintiff-respondent suffered from no blemish even though notices were issued and her explanations were called. Therefore, according to Shri Jindal, a grave error has been committed by the authorities to rely upon the record after the date of promotion in the written statement and in the evidence adduced before the courts below. Shri Jindal submits that for these very reasons, courts below have ignored the alleged adverse record which is after the date of promotion. According to Shri Jindal, the question which this Court has to consider is as to whether the service record of the plaintiff-respondent and defendants No.4 and 5, i.e., respondents No.2 and 3 on the date of promotion was ever compared or not. As stated earlier, Counsel for the appellant-defendants has very fairly stated that no such exercise was undertaken to compare the record of the plaintiff-respondent and the defendants, juniors, who were promoted while ignoring the plaintiff- respondent. According to Shri Pankaj Gupta, the substantial question of law which arises for consideration of this Court is as to whether the two courts below committed a grave error by not taking into consideration that the promotion is to be granted by following criteria of merit-cum-seniority. This Court has no hesitation to hold that as per the rules, the principle of merit-cum-seniority was to be adhered to. Shri Jindal, appearing for the plaintiff-respondent, has also very fairly yielded to state that indeed this criteria was to be followed. Thus, this Court has to undertake further enquiry whether criteria of merit-cum-seniority was followed or not and RSA No.4858 of 2004 and C.M. No.8349-C of 2009 (O&M) -: 8 :- whether the work and conduct of the plaintiff-respondent and that of the defendants who were promoted, was compared or not. To this, the answer has to go against the appellant-defendant as no such exercise was undertaken. In these circumstances, order of promotion of defendants No.4 and 5 is set aside. The appellants are directed to pass an order afresh after comparing the service record of plaintiff-respondent No.1 and defendants No.4 and 5 to the suit. Needless to say that the appellant-defendants shall take into consideration the record of the plaintiff-respondent No.1 and defendants No.4 and 5 till the date of promotion, i.e., 10.9.1991. Shri Gupta has stated that plaintiff-respondent was also promoted as Senior Receptionist-cum-PBX Operator on 27.7.1999. This fact is also admitted by Shri Jindal. Therefore, after comparing the record which was available till 10.9.1991, the appellant-defendants shall decide as to whether the plaintiff- respondent's promotion as Senior Receptionist-cum-PBX Operator can relate back to 10.9.1991 or not. In case the appellant-defendants come to the conclusion that the plaintiff is entitled to promotion as Senior Receptionist-cum-PBX Operator with effect from 10.9.1991, she shall also be entitled to consequential benefits including payment of arrears. However, the arrears shall be restricted to a maximum period of 38 months prior to the filing of the suit. At this stage, Shri Jindal has stated that this Court should stipulate a necessary time-frame. Shri Gupta, in response to this argument, has stated that the needful shall be done by the appellant-defendants within three months from the date of receipt of a certified copy of this order. Let RSA No.4858 of 2004 and C.M. No.8349-C of 2009 (O&M) -: 9 :- the same be done as stated by Counsel for the appellant. In view of the above, the present appeal is disposed of. [Kanwaljit Singh Ahluwalia] August 23, 2011. Judge kadyan