R.S.A.No. 1087 of 1998 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 1087 of 1998 (O&M) Date of decision:27.5.2011 Jagdev Singh ......Appellant Versus Prem Kumar Passey and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Sanjiv S.Thakur, Advocate for Mr.A.R.Takkar, Advocate, for the appellant. Mr. Tarunvir S.Lehal, Advocate for respondent No.1. **** SABINA, J. The plaintiff had filed a suit for mandatory injunction directing defendants No.1 to 3 to restore his seniority. The case of the plaintiff, in brief, was that he was serving as Senior Scale Stenographer with Punjab Public Service Commission, Patiala. Defendant No.4 was also serving as Senior Scale Stenographer in the same office and was junior to the plaintiff. Defendant No.4 had filed a suit for declaration and mandatory injunction R.S.A.No. 1087 of 1998 (O&M) 2 to the effect that he was senior to the plaintiff. The plaintiff was also impleaded as defendant No.4 in the said suit. The said suit was dismissed by the trial Court vide judgment and decree dated 27.1.1981 and appeal filed against the said judgment and decree was also dismissed by the Additional District Judge vide judgment and decree dated 4.3.1983. The regular second appeal filed by defendant No.4 was also dismissed on 22.12.1983 by this Court. Despite the said fact that the suit filed by defendant No.4 was dismissed, defendants No.1 to 3 were disturbing the seniority list of the plaintiff qua defendant No.4 and wanted to place defendant No.4 senior to the plaintiff. Hence, the suit was filed by the plaintiff challenging the order dated 4.9.1986. Defendant No.1, in its written statement, averred that defendant No.4 was senior to the plaintiff as per the existing seniority list. The tentative seniority list was circulated on 15.2.1977, wherein the plaintiff was shown senior to defendant No.4. Representation filed by Jagdev Singh was allowed on 19.8.1986 and he was granted promotion w.e.f. 13.8.1976. The tentative seniority list was amended accordingly. After considering the representation of plaintiff and Manjit Singh, new seniority list was approved by defendant No.2 vide order dated 3.9.1986. The filing of the civil suit by defendant No.4 was admitted. Since the seniority list had already been prepared and circulated, the suit filed by the plaintiff had been rendered infructuous. Defendant No.4, in his written statement, denied the contentions in the plaint that he was junior to the plaintiff. It was averred that the seniority list had been finalised and implemented on R.S.A.No. 1087 of 1998 (O&M) 3 4.9.1986 strictly in accordance with rules. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the order dated 4.9.1986 revising the seniority list and showing the plaintiff as junior to Jagdev Singh defendant is mala fide, null and void, illegal and also against the principles of natural justice as alleged in the plaint ? OPP 2. Whether the plaintiff is entitled to the mandatory injunction directing the defendantsNo.1 to 3 to restore the seniority of the plaintiff as existing on 9.3.1986 qua Shri Jagdev Singh defendant No.4 in terms of the various judgments as mentioned in the plaint and rule 7 of the Punjab Public Service Commission ( State Service Class- III Regulations 1967 ? OPP 3. Whether the plaintiff is entitled to the permanent injunction restraining the defendants No.1 to 3 from promoting Shri Jagdev Singh defendant No.4 as private secretary to the Chairman, Punjab Public Service Commission, Patiala over and above the plaintiff for the reasons given in the plaint ? OPP 4. Whether Jagdev Singh defendant No.4 was not eligible for the appointment as Junior Scale Stenographer before April, 1976 ? If so, its effect ? OPP 5. Whether defendant No.4 was not eligible for appointment to the post of senior scale stenographer before April, 1979 ? OPP R.S.A.No. 1087 of 1998 (O&M) 4 6. Whether the plaintiff has no cause of action to file the present suit ? OPD 7. Whether the amended suit is not maintainable against defendants No.2 and 3 ? OPD 8. Whether the suit is bad for mis-joinder of parties ? OPD 9. Whether the order of CWP of 1331 of 1977 has been stayed by the Supreme Court qua the defendant No.4 ? If so, its effect ? OPD 10. Whether the matter regarding seniority in civil suit between the same parties in the courts of Shri Dina Nath, Sub Judge, Ist Class, Shri R.S.Anand, Additional District Judge and Hon'ble High Court was pre-mature ? If so, its effect ? OPD 11. Whether the suit challenging the seniority list is not maintainable as alleged in para No.4 of the preliminary objections of the written statement filed by the defendant No.4 ? OPD 12. Whether the appointment of defendant No.4 as junior scale stenographer cannot be challenged in this Court after 19 years ? OPD 13. Whether the appointment of the plaintiff is illegal being against the spirit of Language Act, 1967 in the office of the Public Public Service Commission as alleged in para No.8 and 10 of the preliminary objections of the written statement filed by defendant No.4 ? OPD 14. Whether the appointment of the plaintiff as Typist Clerk is illegal as alleged in paras No.11 and 12 of the R.S.A.No. 1087 of 1998 (O&M) 5 preliminary objections of the written statement filed by defendant No.4 ? OPD 15. Whether all the appointments held by the plaintiff are illegal in his present department as alleged ? OPD 16. Whether the confirmation of the plaintiff is wrong and in violation of the Government instructions dated 13.11.1978 as alleged in para No.25 of preliminary objections of the written statement filed by defendant No.4 ? OPD 17. Whether the written statement filed by defendant No.4 is no written statement in the eye of law as alleged in para No.14 of the further objections of the replication ? OPP 18. Whether the counter claim of defendant No.4 challenging the appointment of plaintiff is liable to be ignored ? OPP 18-A Whether the defendant No.4 has been treated arbitrarily and discriminatory in respect of relaxation of qualification in regularising him on the post of Junior Scale Stenographer ? OPD-4 19. Relief.” The trial Court decreed the suit of the plaintiff vide judgment and decree dated 8.1.1996 and defendants No.1 to 3 were directed to restore the seniority list of the plaintiff existing on the date of filing of the suit i.e. 3.9.1986 qua Jagdev Singh- defendant No.4 and show the plaintiff senior to Jagdev Singh defendant and the order dated 4.9.1986 revising the seniority list and showing the plaintiff as junior to Jagdev Singh- defendant No.4 was hereby R.S.A.No. 1087 of 1998 (O&M) 6 quashed. Aggrieved by the said judgment and decree, defendant No.4 and defendant No.1 preferred two separate appeals. Vide judgment and decree dated 20.3.1998 passed by the Additional District Judge, both the appeals were dismissed. Hence, the present appeal by defendant No.4. After hearing learned counsel for the parties, I am of the opinion that the present appeal is devoid of any merit and deserves dismissal. Plaintiff-Prem Kumar Passey joined the Punjab Public Service Commission as Senior Scale Stenographer w.e.f 13.8.1976 in terms of order Ex.P-26. The plaintiff was relieved from the Department of Town and Country Planning vide order Ex.P-27 dated 12.8.1976 to enable him to join Punjab Public Service Commission. The appellant filed a civil suit challenging the tentative seniority list, whereby the plaintiff was shown senior to him. The suit filed by the appellant was dismissed vide judgment and decree dated 27.1.1981 Ex.P-5 and Ex.P-6 respectively. In the said suit, while dealing with issue No.1, as to whether the appellant had been wrongly ignored for promotion to the post of Senior Scale Stenographer, it was held that the appellant had failed to establish that his seniority had not been rightly fixed or that he had been ignored for promotion. It was held that the appellant could not claim seniority over and above the defendants in the said suit including Prem Kumar Passey. The appeal filed by the appellant against the said judgment and decree was dismissed vide judgment dated 4.3.1982 Ex.P-7 passed by Additional District Judge and the regular second appeal No.1853 of 1983 was also dismissed by this Court vide judgment dated 22.12.1983, R.S.A.No. 1087 of 1998 (O&M) 7 Ex.P-8. In these circumstances, the Courts below rightly held that the Commission could not assign seniority to the appellant over and above the plaintiff. DW-1 Dev Chand, in his cross-examination, deposed that Jagdev Singh did not fulfil the requisite qualifications for appointment of Junior Scale Stenographer at the time of his initial appointment. The Government had not agreed to relax the qualification qua Jagdev Singh. Jagdev Singh had passed his graduation in the year 1976 and, thus, became eligible for appointment of Junior Scale Stenographer from the date he cleared his Bachelor of Arts examination. The appellant was promoted as Senior Scale Stenographer on 6.10.1976 and thus, could not be granted promotion w.e.f. 13.8.1976 when the post was upgraded. No substantial question of law arises in this regular second appeal, which would warrant interference by this Court. Accordingly, the same is dismissed. (SABINA) JUDGE May 27, 2011 anita