R.S.A.NO. 2143 OF 2006 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.NO. 2143 OF 2006 Date of decision:30.07.2009 Rattan Singh ....Appellant Versus The Ropar Central Cooperative Bank Limited, Ropar and another .....Respondents Before: HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr. Vikas Mohan Gupta, Advocate for the appellant. Mr. Ajay Mahajan, Advocate for the respondents. Rajive Bhalla, J. The appellant challenges the judgment and decree dated 13.01.2006, passed by the Additional District Judge, Rupnagar, accepting the appeal filed by the respondent, setting aside the judgment and decree dated 12.02.2002, passed by Civil Judge (Junior Division), Rupnagar and as a result, dismissing the suit. The plaintiff-appellant filed a suit alleging that his proposed reversion to the post of peon-chowkidar is illegal as he was promoted as a daftri, vide order dated 8.04.1987, in accordance with rules and regulations. In response to the averments in the plaint, the respondents, admitted that the appellant was promoted to the post of daftri on 8.04.1987 but asserted that his promotion was illegal as there was only one 1 R.S.A.NO. 2143 OF 2006 post of daftri which was already occupied by Uttam Singh, the appellant's senior. On the basis of the pleadings, the trial court framed the following substantial questions of law:- “1. Whether the plaintiff is entitled to the declaration, as prayed for?OPP 2. Whether the plaintiff is entitled to the permanent injunction, as prayed for?OPP 3. Whether the suit of the plaintiff is not maintainable since no notice under Section 79 of the Punjab Cooperative Societies Act, has been served upon the defendants, before filing the present suit?OPD 4. Whether the suit is time barred?OPD 5. Relief.” After considering the pleadings, the evidence adduced and the arguments addressed, the trial court decreed the suit by holding that the appellant's proposed reversion after 14 years is not tenable. Aggrieved by the aforementioned judgment and decree, the respondents filed an appeal. Vide judgment and decree dated 13.01.2006, the Additional District Judge, Rupnagar, accepted the appeal, set aside the judgment and decree passed by the trial court and dismissed the suit by holding 2 R.S.A.NO. 2143 OF 2006 that the appellant's promotion was nonest as against the one sanctioned post of Daftri, one Uttam Singh already stood promoted. Counsel for the appellant submits that the appellant was promoted by the then manager of respondent no. 1 bank. The appellant had been working on this post for the period of more than 14 years, when the respondents, decided to revert him on the basis of an audit objection. It is submitted that the appellant was fully qualified for the post of daftri and was therefore, rightly promoted. In case there is only one post of daftri, the error if any, committed by the respondent bank cannot be pressed into service, to revert the appellant to the post of peon-chowkidar. It is further argued that the documents Ex.PX and PY, that were led into additional evidence before the first appellate court, clearly establish that two posts of daftri are available with the bank. The stand taken by the respondents to the contrary and the finding recorded by the first appellate court against the appellant is therefore, not tenable. In support of the above argument counsel for the appellant has framed the following substantial questions of law: “1. Whether the respondents are estopped from pleading the non- availability of a sanctioned post when the appellant was allowed to work against the said post and had been drawing salary against that post for 3 R.S.A.NO. 2143 OF 2006 about 13 years? 2. Whether simply on the basis of an Audit Report made after 13 years for the first time, the appellant could be reverted to a post on the ground that there was no sanctioned post? 3. Whether the documents Exhibit PX and PY which came into existence after the decision of the suit and were allowed to be placed on the record in the appeal could be ignored simply on the ground that these documents were not placed on record in the trial court and nothing was said about those documents in evidence?” Counsel for the respondents submits that on account of the absence of a sanctioned post, the appellant's promotion was void ab initio. It is further submitted that despite the order of reversion, the respondents do not propose to effect any recovery from the appellant. It is prayed that as the impugned judgment does not suffer from any error, the appeal be dismissed. I have heard counsel for the parties, perused the judgments and decrees passed by the courts below and find no reason, whether in law or in fact to interfere with the findings recorded by the first appellate court. The appellant was 4 R.S.A.NO. 2143 OF 2006 promoted to the post of daftri on 8.04.1987. It however, appears that there is only one post of daftri in the respondent bank and this post was and is occupied by one Uttam Singh, the appellant's senior. The appellant's promotion, in the absence of a sanctioned post was therefore, a nullity. The finding recorded by the first appellate court to that effect, does not suffer from any error or raise a substantial question of law. It would be necessary to mention here that the documents Ex. PX and PY, that were led into evidence, before the first appellate court, were considered and it was held that these documents do not establish the existence of two posts of daftri. As regards the substantial questions of law, the first and the second questions can be answered together by holding that the absence of a sanctioned post would not confer any right upon the appellant to plead that with lapse of time, the illegality in his promotion stands condoned. As regards the third question of law, the documents Ex. PX and PY were considered and rejected by the first appellate court and therefore, the question of law framed in respect thereof, is of no avail to the appellant. Consequently, as no substantial question of law arises for consideration, the appeal is dismissed with no order as to costs. [RAJIVE BHALLA] JUDGE 30th July, 2009 SKaushik 5