IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.2782 of 2005 Date of Decision: 21.5.2009 State of Haryana and others. ....... Appellants through Shri O.P.Sharma, Addl.Advocate General, Haryana. Versus Krishna Devi. ....... Respondent through Nemo. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 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 the Digest? .... Mahesh Grover,J. This Regular Second Appeal is directed against judgments and decrees dated 4.9.2003 and 4.4.2005 passed respectively by the Additional Civil Judge (Senior Division), Bhiwani (hereinafter described as `the trial Court') and the Additional District Judge, Bhiwani (referred to hereinafter as `the First Appellate Court') whereby the suit of the plaintiff-respondent was decreed and the appeal of the defendants-appellants was dismissed. The respondent had filed a suit for declaration to the effect that she is entitled to pay protection and re-fixation of substantive pay for the services rendered by her as Craft Teacher in Panchayat Samiti. She has also challenged order No. 1388-1-ECD II-95/1621 dated 24.4.1995 being illegal, R.S.A.No.2782 of 2005 -2- .... null & void and against the principles of natural justice. The respondent had further sought a direction to the appellants to release her the arrears of pay along with interest at the rate of 18% per annum. She had claimed that the service rendered by her in Panchayat Samiti deserved to be counted for allied service benefits. It was pleaded that she joined as Craft Teacher on six months basis with effect from 16.2.1976 in the pay scale of Rs.100-4- 160-5-175/200 in Panchayat Samiti, Badhra, District Bhiwani. She was given the revised pay scale of Rs.400-10-490/540-15-600/20-660 with substantive pay fixed at Rs.430/- with effect from 1.9.1982 with next date of increment on 1.9.1983. Her pay scale was further revised to Rs.950-20- 1150/EB-25-1500 with basic pay of Rs.1050/- with effect from 1.9.1986 with next date of increment on 1.9.1987. Thereafter, her services were regularised vide order No.8565-74/Panchayats dated 25.8.1982 by Deputy Commissioner, Bhiwani. She was then appointed as Gram Sevika vide letter no. 5381-1-ECD-11-94/1419 dated 3.4.1995 issued by Joint Secretary to Government, Haryana, Development and Panchayat and she joined as such on 17.4.1995 with basic pay of Rs.950/- and presently, she was working in the office of appellant no.4.. She was given the revised pay scale of Rs.3050-75-3950-EB-80/4590 with effect from 1.1.1996 and her basic pay was fixed at Rs.3050/- on that date, whereas it was to be fixed at Rs.4350/- as substantive pay. It was pleaded by the respondent that she was entitled to get Assured Career Promotion Grade, protection of pay and pay fixation at basic pay of Rs.4350/- as on 1.1.1996. Since the appellants failed to release her the arrears after re-fixation of pay as well as protection of pay despite R.S.A.No.2782 of 2005 -3- .... repeated requests, she served notice upon them, but to no effect and hence, she was constrained to file the suit. Upon notice, the appellants appeared and filed their written statement contesting the claim of the respondent. A number of preliminary objections were taken. On merits, it was pleaded that the respondent was given the revised pay scale of Rs.3050-75-3950-EB-80-4590 and her basic pay was fixed at Rs.3050/- w.e.f. 1.1.1996 and as per her appointment letter, it was made clear that she would not claim any benefit of her previous service as Craft teacher in the Panchayat Samiti towards pay etc. It was further pleaded that some of the Gram Sevikas so appointed had approached this Court by filing C.W.P.No.16141 of 1995 claiming similar benefit, i.e., protection of their pay,but that petition was disposed of on 9.11.1995 with a direction that their representation be disposed of by a speaking and well reasoned order. Thereafter, the matter was examined by the Commissioner and Secretary to the Government of Haryana, Development and Panchayat Department and it was found that there was a clear condition in the appointment letters issued to the petitioners in that petition that they will not be entitled to claim any benefit of their previous service as Craft Teachers in Panchayat Samitis towards pay etc. and, therefore, the representation was rejected. It was averred that the instructions dated 22.11.1991 referred to in the representation related to the pensionary benefits and did not cover the pay protection of the employees of Panchayat Samitis. It was further averred that the respondent was not entitled to the benefit of Assured Career Promotion grade because she had R.S.A.No.2782 of 2005 -4- .... not completed ten years of regular satisfactory service. The parties went to trial on the following issues:- 1. Whether the plaintiff is entitled to relief of declaration as prayed for?OPP 2. If issue no.1 is proved, whether the plaintiff is entitled to mandatory injunction as prayed for?OPP 3. Whether the suit is not maintainable in the present form?OPD 4. Whether the plaintiff is estopped by his (sic.her) own act and conduct from filing the suit?OPD 5. Whether the plaintiff has no cause of actio to file the suit?OPD 6. Relief. After appraisal of the entire evidence on record, the trial Court concluded that the respondent was entitled to protection of her pay on appointment as Gram Sevika and was also entitled to have her service as Craft Teacher counted for fixation of pay etc. Therefore, it decreed the suit of the respondent with costs. On appeal, the findings of the trial Court were affirmed by the First Appellate Court. Hence, this Regular Second Appeal. Learned counsel for the appellants has contended that initially, the respondent was appointed as Craft teacher with Panchayat Samiti which post was, however, abolished and thereafter, she was appointed as Gram R.S.A.No.2782 of 2005 -5- .... Sevika vide letter dated 3.4.1995 which clearly contained a condition that she would not claim any benefit of previous service as craft teacher towards pay etc. He referred to Clause 6 of the appointment letter dated 3.4.1995 given to the respondent and contended that in view of this clause, she was not entitled to the benefit of any previous pay which she was drawing as Craft teacher with Panchayat Samiti. It was further contended by him that once the respondent had accepted the terms of appointment, there was no question of making a claim as has been made by her in the suit. He, accordingly, prayed that the findings recorded by the Courts below are erroneous and, therefore, deserve to be set aside . No one has appeared on behalf of the respondent despite the fact that the case was shown in the regular cause list and was being taken up for disposal. I have thoughtfully considered the contentions of the learned counsel for the appellant and have perused the record. There is no denial to the fact that the respondent herself had pleaded that she was working as Craft Teacher in the Panchayat Samiti, Badhra and vide appointment letter dated 3.4.1995, she along with others, was appointed as Gram Sevika. That letter is on record as Exhibit D2. Clause-6 of that letter on which reliance has been placed by the learned counsel for the appellants, is reproduced below:- “6. They will not claim any benefits of previous service of Craft teacher in Panchayat Samiti towards pay etc.” A reading of the above extracted clause makes it clear that a R.S.A.No.2782 of 2005 -6- .... fresh appointment was given to the respondent and others in the government department. Earlier the employment was in the Panchayat Samiti which is a local body. In any eventuality, the question still remains that the respondent was given a fresh appointment as Gram Sevika and while accepting the same, she had also accepted clause 6 contained therein. Once, the incumbent accepts an offer of appointment with open eyes with all attending circumstances, then it does not lie in his or her mouth that the conditions are prejudicial to him or her and that his or her claim has been affected adversely. A Division Bench of this Court in S.S.Saini Versus State of Haryana and another, 2002(1) S.L.R. 368 had observed in paragraphs 5 and 6 of the judgment, as under:- “5. We have given serious thought to the respective arguments. An analysis of the impugned order shows that the learned Single Judge rejected the appellant's claim for fixation of pay in the scale of Rs.525-1050/- by assigning the following reasons: (a) The petition was highly belated. (b) The requisition sent to the employment exchange and Rajya Sainik Board was for the post of Store Keeper in the scale of Rs.400-660 and, therefore, the petitioner cannot claim higher pay scale. ( c ) The petitioner is estopped from seeking a direction for fixation of pay in the scale higher than the one specified in the order of appointment. R.S.A.No.2782 of 2005 -7- .... In our opinion, even though the petitioner cannot be held guilty of laches because had been constantly representing for fixation of pay in the scale of Rs.525-1050, the rejection of his prayer by the learned Single Judge cannot be held as vitiated by an error of law warranting interference in the appeal. Admittedly, the government had given permission to respondent No.2 to fill up the post of Store Keeper (Aviation) in the pay scale of Rs.400-660/-. Therefore, respondent No.2 did not have any option but to send requisition to the employment exchange and Rajya Sainik Board for sponsoring the names of eligible candidates for appointment as Store Keeper in the scale of Rs.400-660/-. This is precisely what respondent No.2 had done. On his part, the appellant appeared in the selection and accepted the offer of appointment without any protest. Therefore, he has no right to seek partial invalidation of letter dated 17.8.1982 or claim fixation of pay in the scale of Rs.925- 1050/-. 6. There is another reason for our disinclination to accept the appellant's plea. If the government had taken a decision to fill up the post of Store Keeper (Aviation), V.I.P. Aircraft Establishment in the pay scale of Rs.525-1050, a requisition would have been accordingly sent by respondent No.2 to the employment exchange and Rajya Sainik Board and it was quite possible that a candidate other than the appellant may have R.S.A.No.2782 of 2005 -8- .... been selected and appointed. Therefore, after having accepted the appointment as Store Keeper in the pay scale of Rs.400- 660/-, the appellant is estopped from challenging the terms and conditions contained in the requisition and the order of appointment.” On 18.11.2005, while admitting this appeal, this Court had observed that the questions of law as formulated in paragraph 12 of the grounds of appeal arise for determination in the appeal. The same are extracted below:- 1. Whether the service rendered by the plaintiff respondent in the Panchayat Samiti with effect from 16.12.1976 to 25.8.1982 is liable to be counted for the purpose of seniority or pensionary benefits before being appointed as Gram Sevika on ad hoc basis in the initial scale of Rs.950-1500? 2. Whether the appointment letter Ex.D2, which was issued to the plaintiff/respondent on 3.4.1995 subject to the condition that “appointee (i.e. plaintiff) will not claim any benefit of previous Craft teacher in Panchayat Samiti towards pay, seniority and pensionary benefits”, operates as estoppel to file the present suit as envisaged under section 115 of the Indian Evidence Act? 3. Whether ad hoc sevrice rendered on private establishment is liable to be counted for seniority, fixation of pay and pensionary benefits in absence of any specific rules? R.S.A.No.2782 of 2005 -9- .... For the reasons stated above, I am of the considered opinion that the above questions of law deserve to be answered in favour of the appellants and against the respondent because once a person accepts employment with open eyes and accepts all the attending conditions which are contemplated in the appointment letter, then he or she is estopped by his or her own act and conduct from pleading that the same are prejudicial to him or her and they have affected him or her adversely. Accordingly, this appeal is accepted, the impugned judgments & decrees are set aside and the suit of the respondent is dismissed with costs. May 21,2009 ( Mahesh Grover ) “SCM” Judge