C.M. NO.12498-C OF 2009 REGULAR SECOND APPEAL NO.4501 OF 2009 (O&M) :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: FEBRUARY 19, 2010 State of Haryana and another .....Appellants VERSUS Satish Kumar ....Respondent CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Deepak Jindal, AAG, Haryana, for the appellants. **** RANJIT SINGH, J. Through this common order, six Regular Second Appeal Nos.4501 of 2009 (State of Haryana and another Vs. Satish Kumar) , 4502 of 2009 (State of Haryana and another Vs. Gulshan Kumar, Patwari) , 4503 of 2009 (State of Haryana and another Vs. Govind Dass, Patwari) , 4504 of 2009 (State of Haryana and another Vs. Ishwar Singh, Patwari) , 4505 of 2009 (State of Haryana and another Vs. Mahaveer Singh, Patwari) , and 4506 of 2009 (State of Haryana and another Vs. Balwant Singh, Patwari) are being disposed of together as common question of fact and law arises for adjudication in these cases. C.M. NO.12498-C OF 2009 REGULAR SECOND APPEAL NO.4501 OF 2009 (O&M) :{ 2 }: Before the State could seek adjudication of the lis in these cases on merit, it had to cross a hurdle of explaining delay of 1317 days in filing these appeal. The applications seeking condonation of this delay have been filed. The reasons advanced to seek condonation of delay are totally flimsy and can not be considered sufficient under any stretch. As averred in the applications, the Trial Judge passed a decree on 27.7.2005. The appeal against this order was dismissed on 23.12.2005 by the District Judge. No action was taken to file Regular Second Appeal which has now been filed on 22.9.2009. It is stated that upon decision of the Hon'ble Supreme Court in some Civil Appeals decided on 27.2.2008, which was received in the office of Land Record on 31.3.2009, an approach was made to the Legal Remembrancer, who opined that the case is fit for filing Regular Second Appeal. This has been advanced as a sole reason to explain the delay in filing the appeals with a delay of 1317 days. Over four years delay to file appeal on the basis of some judgment passed by the Hon'ble Supreme Court can not be justifiably taken as a valid ground to condone the said delay. Instead of explaining the delay, it has simply been justified on the basis of judgment passed by Hon'ble Supreme Court. The case of Sham Lal and others Vs. State of Haryana and others (Civil Writ Petition No.1805 of 1999), which gave rise to appeal and which is advanced as a reason for this delayed approach was decided by the Division Bench of this Court on 23.11.2000. It is not that there is any change which has now taken place because of C.M. NO.12498-C OF 2009 REGULAR SECOND APPEAL NO.4501 OF 2009 (O&M) :{ 3 }: the decision of the Hon'ble Supreme Court. Rather, the Division Bench of this Court had dismissed the petition, which order was upheld by the Hon'ble Supreme Court in 2008. If this view is being formed basis for the delayed approach, then the action of the State can not be held justified as this view was held by this Court in the year 2000 and so was throughout available to file the appeal. It appears that this has been advanced as merely a reason to justify this inordinate delay, which otherwise can not be explained. One may have seen some justification, if any view has undergone a change. A view expressed has been upheld. Accordingly, there is no legal justification to explain this delay and the present Regular Second Appeals are liable to be dismissed only on the ground of this delay, which is not sufficiently explained. Even otherwise, there is no scope of interference on merits as well. No doubt, in the case of Sham Lal (supra), this Court, while deciding Civil Writ Petition No.16037 of 1998 has declined the prayer to grant the benefit of higher standard pay scale by including the service rendered in the Corporation and that the S.L.P filed against the same has been dismissed but it was without passing any speaking order. Similar, issue subsequently arose before the Hon'ble Supreme Court in the case of State of Haryana and another Vs. Deepak Sood and others in Civil Appeal No.4446 of 2008, which was decided on 15.7.2008 through a detailed order. This was a case of employees of Municipal Committee working in Octroi Branch, who were absorbed in Education Department and applied for grant of A.C.P grade by counting of service rendered in the Municipal C.M. NO.12498-C OF 2009 REGULAR SECOND APPEAL NO.4501 OF 2009 (O&M) :{ 4 }: Committee. Their claim was denied, when they filed a writ petition. The said writ petition was allowed by Division Bench, which was taken in Special Leave Petition by the State of Haryana before the Hon'ble Supreme Court. The view taken by the Hon'ble Supreme Court is that when the Government counts their past service for the purpose of grant of pay fixation and pension, there is no reason why their past service should not be given the benefit of A.C.P grade. As per the terms and conditions, this service was not to count for the purpose of seniority. While deciding the civil appeal in the case of Deepak Sood (supra), the Hon'ble Supreme Court has relied upon Dwijen Chandra Sarkar and another Vs. Union of India and another, AIR 1999 Supreme Court 598, where in an identical situation, a person was transferred to another Department on administrative ground and his past service was held not countable. On a challenge raised by him, the matter ultimately reached the Hon'ble Supreme Court, which granted the higher grade under the scheme for time bound promotion. Even earlier judgments in the cases of Renu Mullick Vs. Union of India,, 1994 (1) SCC 373, Raksha Mantri Vs. V.M.Joseph, 1998 (5)SCC 305 and A.P.State Electricity Board Vs. R.Parthasarathi, 1998 (9) SCC 425 were also referred to and relied upon by the Hon'ble Supreme Court. As noticed by the Hon'ble Supreme Court, the same principle was re- affirmed in State of Maharashtra and others Vs. Uttam Vishnu Pawar, (2008) 2 SCC 646, wherein it was observed as under:- “Therefore, in view of the consistent approach of this Court, it is no more res integra that the incumbent on C.M. NO.12498-C OF 2009 REGULAR SECOND APPEAL NO.4501 OF 2009 (O&M) :{ 5 }: transfer to the new department may not get the seniority but his experience of the past service rendered will be counted for the purpose of other benefits like promotion or for the higher pay scale as per the Scheme of the Government.” Accordingly, this appeal filed by the State of Haryana was dismissed. Some of the employees of the HSMITC (like the respondents in these cases) were absorbed in the Excise and Taxation Department, who were denied the benefit of past service for the grant of ACP. They filed a Civil Writ Petition No.12521 of 1999 and the Division Bench of this Court passed the following order:- “Controversy in hand is covered by the judgment of the Full Bench in the case of Gurmail Singh and others Vs. State of Punjab and others, 1992 (7) SLR 744 and the recent judgment of the Full Bench in the case of Suresh Kumar Vs. State of Haryana and others, C.W.P. No.2916 of 2000 decided on 20.12.2001. However, without prejudice to the rights of the State in those cases, in view of the above position in law, we allow this petition. The petitioners would be entitled to the same relief as has been granted in the cases referred to above. In the facts and circumstances of the case, there would be no order as to costs. The State of Haryana filed an S.L.P No.6154 of 2004 before the Hon'ble Supreme Court, which was dismissed by making C.M. NO.12498-C OF 2009 REGULAR SECOND APPEAL NO.4501 OF 2009 (O&M) :{ 6 }: following observations:- “The issue similar to those held in this appeal were considered by this Court in Civili Appeal 4446-4448 of 2008 (State of Haryana and Anr. Vs. Deepak Sood & Ors.) as court held that the view taken by the Division Bench of the High Court was correct and there was no scope for interference in the appeal. Accordingly, the appeals were dismissed. Following the view expressed in the aforesaid appeals, this appeal also stand dismissed.” Thus, it would be seen that the case of employees of HSMITC absorbed in different departments have been held entitled to count their earlier service for the purpose of A.C.P grade and this decision has been upheld on the basis of ratio of law laid down in Deepak Sood's case (supra). In this view of the matter, the dismissal of S.L.P in Sham Lal's case (supra), without any specific order may not be relevant and the ratio of law laid down in Deepak Sood's case (supra) would have to prevail. Accordingly, no case on merits is also made out. The Regular Second Appeals are, therefore, dismissed on the ground of delay as well as on merits. February 19,2010 ( RANJIT SINGH ) khurmi JUDGE