RSA No. 1280 of 2005 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1280 of 2005 Decided on : 13-02-2009 State of Haryana and another ....Appellants VERSUS Dharam Pal and another ....Respondents CORAM:- HON'BLE MR. JUSTICE MAHESH GROVER Present:- Mr. O.P.Sharma, Addl. A.G., Haryana. MAHESH GROVER, J This appeal is directed against the judgments of the learned Trial Court dated 20.8.2002 and the First Appellate Court dated 23.12.2004. The case of the plaintiff-respondent no.1 was that he was appointed as Assistant Tyreman on 27.11.1973 and his services were regularized thereafter. Hari Prem who was arrayed as defendant no.3 was also appointed on the same post on 4.12.1973 i.e. after the appointment of the plaintiff-respondent no.1. Hari Prem was promoted as Tyreman on 17th December, 1975 whereas the plaintiff-respondent no.1 was promoted w.e.f 1.10.1980. The plaintiff-respondent no.1 thereafter pleaded that he was entitled to be promoted with effect from the date when his junior was promoted. The appellants who contested the suit admitted that the plaintiff -respondent no.1 was appointed as Assistant Tyreman on 27.11.1973 while Hari Prem (defendant no.3) was appointed on 4.12.1973. It was contended that the plaintiff was placed under suspension on 10th September, 1975 and RSA No. 1280 of 2005 2 the departmental proceedings were going on when defendant no.3 Hari Prem was considered for the promotion. Consequently, the promotion and other benefits were granted to the persons who were promoted. Both the parties went to trial on the following issues:- 1. Whether the plaintiff is senior to the defendant no.3 and is entitled to pay and allowances equal to him from the date defendant no.3 has got alongwith consequential benefits with interest @ 18% per annum on the arrears as alleged?OPP. 1.A Whether the plaintiff is entitled to be promoted as Tyreman w.e.f 17.12.1975 the date on which defendant no.3 was promoted as Tyreman? OPP. 2. Whether the suit is not maintainable in the present form? OPP. 3. Whether the plaintiff has no cause of action and locus standi?OPP 4. Whether the suit is not properly valued for the purposes of court fee/and jurisdiction? OPP. 5. Whether the suit is bad for want of legal notice u/s 80 CPC? OPP. 6. Whether the suit is not within limitation? OPP. 7. Relief. After appraisal of the evidence before it, the learned Trial Court and the First Appellate Court came to the conclusion that the case of the plaintiff-respondent no.1 has been wrongly ignored for promotion while promoting his junior and accordingly, decreed the suit of the plaintiff- respondent no.1. RSA No. 1280 of 2005 3 The State has challenged the aforesaid judgments by way of regular second appeal and it has been contended by the learned counsel for the appellants that the promotion order of respondent no.2 Hari Prem was of the year 1975 and the plaintiff-respondent no.1 filed the suit in the year 1998 and the only explanation given is that he came to know about the promotion orders only six months back which cannot be believed since the respondent no.1 was also an employee of the same Department and was expected to be aware of the promotion of his junior i.e. respondent no.2. It was next contended that the challenge having been made belatedly, the findings of both the Courts are erroneous and deserve to be set aside. No one has put in appearance on behalf of the respondents. I have heard learned counsel for the appellants and have perused the impugned judgments. Concededly the plaintiff-respondent no.1 was senior to respondent no.2 and therefore he had a right to be considered at the time of promotion of the said respondent no.2. It is not the case of the appellants that the service record of the plaintiff-respondent no.1 was bad and that is why he was ignored for the promotion. All that has been suggested is that he was under suspension and disciplinary proceedings were pending against him. However, perusal of the record shows that the plaintiff-respondent no.1 had been reinstated at the time when his junior respondent no.2 was promoted. In this view of the matter, merely because the plaintiff had been suspended for some period of time makes no difference and therefore he could not have been ignored for promotion at the time when his junior was RSA No. 1280 of 2005 4 being promoted. The impugned judgments therefore do not suffer from any infirmity on this count. Learned counsel for the appellants then with some emphasis at his command contended that the order of promotion of respondent no.2 was passed in the year 1975 and the suit was preferred in the year 1998 and if it is accepted that the plaintiff-respondent no.1 was entitled to promotion then in such an eventuality he cannot be granted undue benefit for the period for which he has not worked and specially when the suit has been filed belatedly. On examining this aspect of the matter, I am of the considered opinion that the contention is not mis-placed. There is no explanation as to why the suit was filed after such an inordinately long period. The promotion order is of the year 1975 and the plaintiff being from the same establishment was expected to be aware of his rights and since the challenge has been made belatedly, the consequential benefits of the service are directed to be restricted to the period of 38 months prior to the filing of the suit. The appeal is, therefore, partly accepted. February 13, 2009 (Mahesh Grover) rekha Judge