R.S.A. No. 1295 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 1295 of 2009 (O&M) Date of Decision : 24.3.2009 State of Haryana & others ....Appellants Versus Bhagwanti & others ...Respondents CORAM : HON'BLE MR.JUSTICE MAHESH GROVER .... Present : Mr.O.P.Sharma, Addl.Advocate General, Haryana for the appellants. ..... MAHESH GROVER, J. This appeal has been preferred by the State of Haryana against the judgments of the learned trial Court dated 3.5.2005 and that of the first Appellate Court dated 12.3.2008. The plaintiff who is since deceased filed a suit claiming that he was entitled to the grant of ACP scale after having completed 10 years regular satisfactory service. He claimed that his services had been regularised in the year 1980 and in accordance with the government instructions which were issued on 8.2.1994 he claimed his eligibility for being placed in first standard scale of Rs.1200-2040. The claim of the plaintiff/respondent was disputed by the appellants who pleaded that the record of the plaintiff/respondent was not satisfactory and that in the year 1991 he was awarded an adverse R.S.A. No. 1295 of 2009 (O&M) -2- entry which was communicated to him in the year 1998 and for this reason it was pleaded that he was not entitled to the grant of first ACP scale as per the instructions which contemplate the completion of 10 years of regular satisfactory service. The following issues were struck while dealing with the matter :- 1. Whether the plaintiff is entitled to first standard scale of Rs.1200-2040 w.e.f. 1.1.1994 and second ACP scale of Rs.5450-8000 ? OPP 2. If issue No.1 is decided in affirmative as to what effect?OPP 3. Whether the suit of the plaintiff is not maintainable in the present form?OPD 4. Relief. Both the Courts below concluded that even though adverse entry was made in the service record of the plaintiff/respondent in the year 1991, yet the same had not been communicated to him for an inordinately long period of seven years and, therefore, concluded that such an entry could not be held against the plaintiff/respondent to deny him the benefit of the ACP scheme. The suit was accordingly decreed. The appellants have filed the present appeal and along with the appeal an application for condonation of delay of 372 days has been filed. The reasons which have been given in the application for condoning the delay are extracted as under :- “2. That after passing of the impugned judgment and R.S.A. No. 1295 of 2009 (O&M) -3- decree dated 12.3.2008, the Legal Remembrancer & Secretary to Government, Haryana, Law and Legislative Department, Chandigarh vide its office Memo No.15766/Co.29(71)2002 dated Chandigarh the 8.4.2008 opined that it is not a fit case for filing RSA. However, the Department wanted for filing the RSA against the above impugned judgment and decree dated 12.3.2008, passed by the learned District Judge, Sirsa. A further request was made to the Legal Remembrancer & Secretary to Govt. Haryana, for according the sanction for filing the RSA against the impugned judgment and decree dated 12.3.2008 and the Legal Remembrancer and Secretary to Govt. Haryana vide his office Endst.No.71114/Co.29(81) 02 dated 21.12.2008 endorsed to the Director Health Services (Malaria), Haryana, Panchkula, was pleased to accord sanction for filing the R.S.A. Thereafter, the Director Health Services (Malaria, Haryana, Panchkula, vide his office letter No.ECCD/M-2/2009/493 dated 3.2.2009 addressed to the Deputy Civil Surgeon (Malaria), Sirsa, directed to contact the office of Advocate General, Haryana for filing the R.S.A. So, under these circumstances some delay in filing the present RSA has been occasioned, which was neither willful nor malafide, but due to above bonafide reasons.” I have heard the learned counsel for the appellants and have perused the impugned judgments as well. R.S.A. No. 1295 of 2009 (O&M) -4- There is no denial to the fact that an adverse entry was recorded in the service record of the plaintiff/respondent in the year 1991 and that the same was conveyed to him belatedly in the year 1998. There is no cogent explanation why such a remark which was entered in the service-book of the plaintiff/respondent was not communicated to him so as to enable him to avail of his remedy to file a representation etc. This has seriously prejudiced the interest of the plaintiff/respondent and the appellants obviously could not hold this entry against the plaintiff/respondent to deny him the benefit of ACP scale. There is thus no infirmity in the findings recorded by the Courts below that can neither be termed to be perverse nor erroneous so as to warrant an interference in regular second appeal. No substantial question of law arises for the consideration of the Court. The appeal, therefore, warrants dismissal not only on merits but also on the question of delay. The reason which has been given for condoning the delay of 372 days is that the procedure resorted to by the department took some time. If the averments which have been made in para 2 of the application and extracted above, are seen, it is to be noticed that the Legal Remembrancer has clearly opined that it is not a fit case where appeal should be filed, yet for the reasons best known to the concerned department, they have chosen to violate the opinion of the Legal Remembrancer and have filed this appeal belatedly. The aforesaid reason can at best be termed to be shoddy and unpalatable. The Courts are already burdened with frivolous litigations which are filed some times without any application of mind. There is nothing on record to show as to why the department R.S.A. No. 1295 of 2009 (O&M) -5- chose to differ with the opinion of the Legal Remembrancer and especially in a case which from the facts as detailed above does not reveal any potent merit. Consequently, the appeal is dismissed on the question of delay as well with costs of Rs.5,000/- which shall be recovered from the pocket of the official/officer who has chosen to opine contrary to the opinion expressed by the Legal Remembrancer and has forced the department to file the appeal. 24.3.2009 (MAHESH GROVER) JUDGE dss