RSA No.498 of 2008(O&M) 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No.498 of 2008 (O&M) Date of Decision: October 13, 2009 State of Haryana and others ...........Appellants Versus Kharati Lal ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mr.Sukhant Gupta,Additional Advocate General, Haryana None for the respondents ** Sabina, J. Plaintiffs filed a suit for declaration to the effect that he is legally entitled to get his seniority fixed on the basis of the date of enlistment in the police department in accordance with administration instructions dated 12.6.1991 read with orders passed by the Hon'ble Supreme Court of India in Civil Appeal No.3183 of 1999. The said suit of the plaintiff was decreed by the Civil Judge (Junior Division) Sirsa vide judgment and decree dated 21.8.2006. Aggrieved by the same, defendants filed an appeal and the same was dismissed by the Additional District Judge, Fast Track Court, Sirsa vide judgment and decree dated 1.11.2007. Hence, the present appeal by the defendants. The case of the parties, as noticed by the learned District Judge, in paras 2 and 3 of its judgment reads as under:- “ 2. Briefly stated the case of the appellants is that the respondent has filed a suit against the appellants seeking a decree for RSA No.498 of 2008(O&M) 2 declaration to the effect that he is legally entitled to get his seniority fixed on the basis of date of enlistment in the police department in accordance with the administration instructions dated 12.6.1991 read with other orders passed by the Hon'ble Supreme Court in civil appeal No.3183 of 1999 titled as Naresh Kumar and others vs. State of Haryana and others and to get the promotion to the rank of SI from the date his juniors have been so promoted and further the order dated 22.5.2003 passed by the appellants is liable to be set aside. As a consequential the respondent prayed for relief of permanent injunction restraining the appellants from promoting the ASIs who are junior to the respondent to the rank of SI ignoring the seniority of the respondent. It is averred by the respondent that he was serving as ASI and was recruited in police department on 15.4.1971. After getting the training in the wireless the respondent joined the said department on 10.10.1975 as permanent, As per order dated 20.2.2002 of Hon'ble Supreme Court of India passed in civil appeal no.3183 of 1999 date of enlistment in the police department is the basis for determination of inter se seniority. The date of enlistment of ASI Surinder Kumar is October 1971 and that of ASI Rajinder is November 1971. In this way the respondent is senior to both of them. He moved representation for consideration of his case but to no purpose. Ultimately he also served the appellants with legal notice under Section 80 of CPC but despite of the receipts of the same no action was taken by the appellants and in the end he has to file the present suit. RSA No.498 of 2008(O&M) 3 3. Notice of this suit was given to the appellants. On their behalf joint written statement has been filed. They have also raised certain preliminary objections i.e. Maintainability: cause of action; locus standi. On merits they have stated that vide judgment dated 20.2.2002 the Hon'ble Apex Court has held the administrative instructions dated 12.6.1991 as legal for assigning seniority for promotion from the rank of Constable to the rank of Head Constable (Operator) amongst those constable who were initially enlisted in the telecommunication Wing and who were absorbed in the Telecommunication Wing and who were absorbed in the Telecommunication Wing from other units of state police force in the year 1988-89. Prior to the instruction the seniority of all those who used to be absorbed in Telecommunication Wing was reckoned from the dates of absorption in telecommunication wing. The respondent was initially enlisted in district police in the year 1971 and was absorbed in wireless on 8.10.1975 on his willingness along with many other constables vide order dated 30.10.1975 and their seniority was reckoned from the date of absorption. The respondent was promoted as HC on 1.2.1983 and then ASI on 23.11.1990 whereas the aforesaid Surinder Kumar and Rajinder Kumar had gained promotions in the rank of HC and ASI much earlier to the respondent. The representations of the respondent were considered and have been rightly rejected. Since no right of the respondent has been infringed,therefore, his suit should have been dismissed.” On the pleadings of the parties, the following issues were RSA No.498 of 2008(O&M) 4 framed by the trial Court:- “1.Whether the plaintiff is entitled to the decree for declaration, as prayed for? OPP 2.Whether the suit is not maintainable in the present form?OPP 3. Relief.” After hearing the learned counsel for the appellant, I am of the opinion that this appeal is devoid of any merit. Plaintiff had filed a suit for declaration that he was entitled for fixation of seniority on the basis of date of his enlistment in the Police Department. It has been held by this Court in Naresh Kumar vs. State of Haryana 1998(2) SCT 368 as under:- “Admittedly, no separate rules have been framed for the Telecommunication cadre. It is also not disputed that in the Punjab Police, the seniority is determined by the provisions of Rule 12.2 which inter alia provides that “seniority....will be reckoned in the first instance from the date of first appointment. Seniority shall, however, be finally settled by dates of confirmation....” On this basis, the seniority of the various incumbents had been initially determined. On their transfer/absorption in the Telecommunication cadre, the same seniority has been preserved. In other words, the seniority in the Telecommunication cadre has been determined on the basis of the date of initial appointment in the Police Department. The criterion adopted by the respondents is just and fair. It is equitable. It gives credit for longer service to the members of the Force. It is uniformly applicable to all. It excludes all discretion. RSA No.498 of 2008(O&M) 5 It avoids all arbitrariness. It obviates any chance of favoritism. It is not unfair. Consequently, it calls for no interference.” Learned State counsel, during the course of arguments, has submitted that the suit was filed after much delay. However, no such issue was claimed by the appellants during trial. Issue No. 2 was framed by the trial Court to the effect that as to whether the suit was not maintainable in the present form. However, the same was not pressed, during the course of arguments, before the trial Court. Admittedly, the plaintiff has since retired from service. Plaintiff was enlisted in the Police Department in the year 1971,whereas, his juniors were enlisted after his enlistment in the department, but they were promoted to the higher ranks before the plaintiff. In these circumstances, the plaintiff moved a representation to the competent authority to consider his case but no action was taken and left with no other alternative , plaintiff filed the present suit. Both the Courts below have placed reliance on the decision of this Court in Naresh Kumar's case (supra). While decreeing the suit of the plaintiff. Substantial justice has been done in this case and,hence, the argument raised by the learned counsel for the State that the suit was filed after much delay and laches is without force in the facts and circumstances of the case. No substantial question of law arises in this regular second appeal which would warrant interference by this Court Accordingly, this appeal is dismissed. ( Sabina ) Judge October 13, 2009 arya