Regular Second Appeal No. 3758 of 2007 {1} In the High Court of Punjab and Haryana at Chandigarh Regular Second Appeal No. 3758 of 2007(O&M) Date of Decision:September 23, 2010 Shashi Bala ---Appellant versus State of Punjab and others ---Respondents Coram: HONBLE MR. JUSTICE GURDEV SINGH *** Present: Mr.Baljit Puri, Advocate, for the appellant Mr. Surinder Kumar, Addl. A.G.Punjab Mr. Rajesh Punj and Ms. Ritu Punj, Advocates for respondents No. 6 to 68 *** GURDEV SINGH, J. The plaintiff-appellant, Shashi Bala, having lost in the First Appeal after having obtained the judgment and decree of the trial court in her favour, has come up with this second appeal. She filed suit for declaration to the effect that the seniority list of the Clerks/Junior Assistants issued by defendant No. 3 -respondent No. 3 with effect from 1.8.2003, is wrong, illegal, null and void and is liable to be corrected/amended so as to show her at Sr. No. 6 in stead of at Sr. No. 51(in Regular Second Appeal No. 3758 of 2007 {2} the provisional list) and 52 ( in the final list) and that she is entitled to promotion and other benefits, along with arrears of monetary benefits along with interest at the rate of 18% per annum, from the date her juniors were promoted and that the order dated 27.6.2004 passed by defendant No. 3, rejecting his representation against the seniority list is also illegal, null and void and is laibe to be set aside. She also prayed for relief of mandatory injunction, which was to flow from the granting of said declaration. She pleaded in her plaint that she was selected as Typist/Clerk by the Services Selection Board, Punjab(hereinafter referred to as “the SSB”) and was placed at Sr. No. 17 with Merit No. 794, in the selection list issued by the SSB, vide Memo dated 15.6.1983. One Harbans Lal, who was also selected as such, was placed at Sr. No. 19 with Merit No. 805. On the basis of that selection, the staff was appointed as Clerk in the office of Divisional Forest Officer, Sangrur, vide order dated 2.1.1984 passed by the Chief Conservator of Forests, Punjab, Chandigarh. It was specifically mentioned in that appointment order that the seniority list will remain as per the merit list prepared by the SSB and that there will not be any change in that seniority on the ground of date of joining. She joined the service immediately and submitted her joining report on 6.1.1984, after the required formalities were fulfilled. As per the seniority list issued by the Forest Department w.e.f. 1.8.2003, she has been shown at Sr. No. 51, whereas the name of Harbans Singh has been shown at Sr. No. 6 , though he was shown junior to her in the list prepared by the SSB. On coming to know about that fact, she made a representation to defendant No. 3 on 30.12.2003, which was rejected on the basis of the wrong facts. She was never got diverted from the Office of Director Public Instructions Regular Second Appeal No. 3758 of 2007 {3} (hereinafter referred to as “the DPI”) and she never made any representation for sending her to the Forest Department. The Defendants have wrongly promoted some of the defendants as Senior Assistants and Superintendents ignoring her seniority. She made a request to the defendants to correct/amend the senioritylist but all in vain. Therefore, she filed suit for the aforesaid relief of declaration and mandatory injunction. The suit of the plaintiff was contested by defendants No. 1 to 3 and 5. In the written statement, it was admitted that the plaintiff and Harbans Singh were selected by the SSB as Typists and were placed at Sr.Nos. 17 and 19, respectively. They pleaded that on the receipt of recommendation of the SSB, the plaintiff was directed by defendant No. 3, vide endorsement dated 26.7.1983, to appear before the CMO, Bathinda, for medical examination within 10 days and to present herself in the office, along with medical certificate and other educational certificates on 12.8.1983, but she failed to do so. In the meanwhile, she got her name allocated to the Education Department. Subsequently, she approached the Chairman, SSB, vide representation dated 10.11.1983, to recommend her name again to the Forest Department. Her request was accepted and she was re-allocated to that department vide Memo No. 5393-4 83/6441 dated 10.11.1983 (Ex. DW-3/A). It was specifically mentioned in that memo that as she was being diverted from the other department, so her seniority is to be determined below the candidates, who had already been recommended. The seniority on the basis of the selection made by the SSB can be maintained only in case the candidates join service within four months of their selection. After the diversification of the plaintiff to the Forest Department, the copy of the said memo was endorsed to the plaintiff. On Regular Second Appeal No. 3758 of 2007 {4} 24.11.1983, the plaintiff made a request to defendant No. 3 to issue her appointment letter and post her at Bathinda. She was again directed to get herself medically examined from the CMO, vide letter dated 26.12.1983 and after her medical examination, she submitted the Medical Fitness Certificate to defendant No. 3, vide her application dated 29.12.1983. Thereafter, she was offered the appointment letter by defendant No. 3 vide office order No. 281 dated 2.1.1984 (Ex. P-1) and she joined her duties on 6.1.1984. The seniority list was prepared keeping in view the diversification of the plaintiff from the other department in view of the instructions issued in that regard. The representation made by the plaintiff was correctly rejected after due consideration and thorough examination of the records available in the office. The other defendants have been rightly promoted on the basis of their seniority in their cadre after they passed the Assistant Grade examination 1984. That examination has not been qualified by the plaintiff so far. They also pleaded that the suit is bad for non-joinder of the SSB and DPI, Punjab, who are necessary parties and the plaintiff is estopped from filing the suit due to her own act, conduct, admission and acquiescence. In the replication to the written statement, the plaintiff denied the contentions therein and reiterated her averments made in the plaint. On the pleadings of the parties following issues were framed by the trial court:- 1. Whether the seniority list of Clerks/Junior Assistants issued by defendant No. 3 w.e.f. 1.8.2003 is wrong, illegal, null and void and is liable to be corrected/amended showing the plaintiff at Sr. No. 6 in the said seniority list instead of Sr. Regular Second Appeal No. 3758 of 2007 {5} No. 51(in the provisional list) and at Sr. No. 52(in the final list)?OPP 2. Whether the plaintiff is entitled to promotion and other benefits and also for arrears from the date of amount become due till final realisation of the amount from the date her juniors were promoted along with interest. If so, at what rate?OPP 3. Whether the order dated 27.6.2004 passed by defendant No. 3 vide which representation/objection filed by the plaintiff dated 30.12.2003 against the provisional seniority list has been rejected vide letter No. 7727 dated 28.6.2004 is illegal, null and void and liable to be set aside and is not binding on the rights of the plaintiff?OPP 4. Whether the plaintiff is entitled to declaration as prayed for?OPP 5. Whether plaintiff is entitled to mandatory injunction prayed for?OPP 6. Whether the suit is bad for non-joinder of necessary parties?OPD 7. Whether plaintiff is estopped from filing the present suit by her own act and conduct? 8. Relief. To succeed in the suit, the plaintiff examined herself as PW-1. On the other hand, defendants examined Satish Kumar, Administrative Officer of Chief Conservator of Forest, DW-1, Parkash Chand, Superintendent DW-2 and Sudershan Kumari, Senior Assistant DW-3. Regular Second Appeal No. 3758 of 2007 {6} After going through the evidence so produced on the record and hearing learned counsel for the plaintiff and G.P. for defendants No. 1 to 5, the trial court decided all the issues in favour of the plaintiff and resultantly decreed her suit. An appeal was preferred against that judgment and decree by defendants No. 1 to 5. The First Appellate Court did not agree with the findings recorded by the trial court on all the issues and reversed the same resultantly, after accepting the appeal, set aside the judgment and decree of the trial court and dismissed the suit of the plaintiff. I have heard learned counsel for the parties. It has been submitted by counsel for the plaintiff that in pursuance of the advertisement issued by the SSB, interview was held and on the basis of that interview, the plaintiff was selected and in the merit list, prepared by the SSB, she was placed at Serial No. 17 with Merit No. 794. Harbans Singh was also selected along with the plaintiff, who was placed at Serial No. 19 with Merit No. 805. In pursuance of that selection, appointment letter (Ex. P-1) was issued to the plaintiff for the post of Typist/Clerk in the Forest Department. In view of that appointment letter, the plaintiff got herself medically examined and joined that department on 6.1.1984. As per the instructions, issued by the State Government from time to time, the seniority, as per the merit list prepared by the SSB, was to be maintained and the date of joining was meaningless. Even if the plaintiff had joined the service after Harbans Singh and others, even then, she was required to be placed above them in the seniority list. A correct finding was returned by the trial court which was wrongly upset by the First Appellate Court. He also submitted that the plaintiff never made any application/representation for allocating her to the office of DPI nor she Regular Second Appeal No. 3758 of 2007 {7} ever made any application/representation for her re-allocation in the Forest Department. Therefore, her seniority could not have been disturbed on the ground that her posting in the Forest Department was by way of advertisement and that she was required to be placed below the candidates, who joined the Forest Department before her. On the other hand, it has been submitted by counsel for the defendants that the plaintiff never joined the service after the first appointment letter was issued to her, having been selected to the post of typist/Clerk in the Forest Department and she made a representation that she be appointed as such in the office of DPI, Punjab. Subsequently, she made another representation for posting her in the Forest Department and joined that department on that diversification. In these circumstances, she is not entitled to the benefit of instructions, referred to by the counsel for the plaintiff, and she was required to be placed below the candidates, who joined the Forest Department before her on account of the fact that they had joined that department before her. A correct finding was returned by the first Appellate Court and there is no ground for upsetting that well reasoned finding. In view of the submission made by counsel for the parties, following substantial question of law arise in the present appeal:- “Whether the plaintiff made representation to be posted in the office of the DPI and thereafter made second representation for her posting in the Forest Department and as such lost the benefit of the seniority as per the merit list prepared by the SSB?” This question can be decided on the basis of the documents Regular Second Appeal No. 3758 of 2007 {8} proved on the record. As to when the process of selection was put in motion, can well be inferred from Memo No. 573 dated 15.6.1983(Ex. P-5). The posts of Punjabi Typists were advertised by the SSB, vide public notice No. 8/78 and open test was taken for the selection of the candidates to those posts from June to December, 1982. On the basis of that test, 60 candidates were selected for being appointed as Typists/Clerks in the Forest Department. In that list, which was prepared on the basis of the merit, the name of the plaintiff appeared at Sr. No. 17, whereas the name of Harbans Singh, appeared at Sr. No. 19. This list was sent to the Chief Conservator of Forests vide Memo dated 15.6.1983. Therefore, the process for the posting of those candidates must have been set in motion immediately thereafter. The plaintiff has mainly relied upon the Memo dated 2.1.1984 (Ex. P-1), which has been referred to by her counsel as the appointment letter. Vide this memo, she was posted as Clerk in the office of the Chief Conservator of Forests. In pursuance of that memo, the plaintiff submitted her joining report on 6.1.1984(Ex. P-2). The applications/representations alleged to have been made by the plaintiff and on the basis of which, first she was allocated to the office of DPI and again she was diverted to the office of Chief Conservator of Forests, have not been proved on the record. However, from the other documents, so proved on the record by the defendants, it can easily be inferred that such applications/representations were made by the plaintiff. The first such document in point of time is Memo No. 2068 dated 10.8.1983 (Ex. DW2/1), which was written by the SSB to the DPI. It is mentioned therein that the name of the plaintiff was forwarded to that office for her appointment as Clerk immediately, though at the time of the selection she Regular Second Appeal No. 3758 of 2007 {9} was recommended for being appointed in the office of Chief Conservator of Forest. It was also mentioned in that memo that the recommendation for her appointment in the office of the DPI, was being made in view of the requests made by her. The second relevant document in point of time is Memo No. 1039 dated 17.8.1983(Ex. DW2/2), which was written by the Chief Conservative Officer to the SSB. It is mentioned in that memorandum that the original application, so received from the side of the plaintiff, was being sent in original for necessary action. A request was made in that letter that for that candidate; namely the plaintiff, the recommendation of the other candidate be made for appointment in that office. The position becomes further clear from Memo No. 6441 dated 10.11.1983(Ex. DW 3/A), which was written by the SSB to the Chief Conservative Officer. It is mentioned in that memo that the name of the plaintiff was recommended for appointment in the office of the DPI and that she was being diverted to the said office and that she was to be placed below the candidates, who had already joined, as she was being recommended for appointment by way of diversification from the office of the DPI. The position becomes crystal clear from the document, Ex. P- 1, which is anchor stone of the plaintiff and which according to her was the appointment letter issued to her. This memo was written in pursuance of Memo dated 10.11.1983 (Ex. DW3/A). It was only after the diversification from the office of the DPI that the plaintiff was recommended to be appointed in the office of the Chief Conservative Officer. As per condition No. 10 of that Memo, it was only the seniority of the plaintiff vis-a vis Varinder Kumar, which was to be maintained, as only names of those Regular Second Appeal No. 3758 of 2007 {10} candidates are mentioned in that memo. Having obtained the appointment by way of diversification, the plaintiff cannot claim the benefit of the instructions, which have been referred to by her counsel, for claiming the seniority on the basis of the selection list prepared by the SSB. In the result, the above said question is answered against the plaintiff and the appeal is dismissed accordingly. Decree sheet be prepared. (GURDEV SINGH) JUDGE September 23, 2010 PARAMJIT