R.S.A. No. 2556 of 2008 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 2556 of 2008 (O&M) Date of decision: 04.02.2009 Food Corporation of India and others ....Appellants Versus Subhash Chander ....Respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: Mr. K.K. Gupta, Advocate, for the appellants. ***** VINOD K. SHARMA, J (ORAL) This regular second appeal is directed against the judgment and decree dated 12.12.2007 passed by the learned lower appellate Court vide which the suit filed by the plaintiff/respondent for declaration that he was entitled to selection grade, has been decreed. The respondent/plaintiff filed a suit for declaration that he was serving the appellant/defendants since March 2, 1972. Initially the plaintiff/respondent was appointed as Assistant Grade III and was promoted as Assistant Grade-II w.e.f. 27.7.1980. The plaintiff claimed that vide circular No. 22 of 1992 issued by the Head Quarters of the appellants, plaintiff had been given selection grade after completion of R.S.A. No. 2556 of 2008 (O&M) -2- 12 years of service in the same scale. The plaintiff was placed in the selection grade w.e.f. 1.12.1992 in view of the instructions issued by the Zonal Office, New Delhi vide order No. 42/93 dated 21.12.1993. The pay of the plaintiff/respondent was also fixed accordingly w.e.f. 1.12.1992. The benefit granted to the plaintiff/respondent was withdrawn by the defendant/appellants vide order dated 5.8.1995. The plaintiff challenged the order dated 5.8.1995 as illegal, null and void and against the principles of natural justice on the ground that no opportunity of hearing was given to the plaintiff before withdrawing his selection grade, and that the order dated 5.8.1995 was arbitrary and not binding on his rights. It was also pleaded that the impugned order was non-speaking, therefore, declaration was sought that he was rightly placed in selection grade on completion of 12 years of service w.e.f. 1.12.1992, consequential relief was claimed directing the defendants to give all monetary and other benefits along with continuity of service w.e.f. 1.12.1992 in the selection grade. Appellant/defendants on notice, contested the suit by raising plea that the plainitiff/respondent had no cause of action or locus standi to maintain the suit. It was also pleaded that the suit was bad for misjoinder of necessary parties. Bar of estoppel was also pleaded. On merit the appellant/defendants admitted that the plaintiff was appointed as A.G. III and promoted as Assistant Grade-II w.e.f. 27.7.1980. The defendant/appellants also took a stand that the plaintiff/respondent gave option for change of cadre in terms of circular No. 3 of 1984. The plaintiff/respondent was required to be placed as junior-most in the accounts cadre. It was also the case set up that as per R.S.A. No. 2556 of 2008 (O&M) -3- circular 22 of 1992, the officials who had put, not less than 12 years of service on or after 1.12.1987 in the same grade/cadre, were to be eligible for consideration for selection grade and placement in the selection grade on the basis of seniorty, subject to rejection of unfit employees. It was pleaded that as per circular, 30% of the sanctioned posts in each grade/cadre/category as on 1.12.1987 would be determined for selection grade for respective grade/cadre/category. The case, therefore, set up was that number of posts declared for selection grade in each grade/cadre on the basis of sanctioned strength as on 1.12.1987 were to remain effective in all the succeeding years. It was admitted that the plaintiff joined the accounts cadre from depot cadre and had completed 12 years of service in the grade. It was pleaded that plaintiff has not completed 12 years of service in accounts cadre, as his seniority was fixed in the accounts cadre by placing him at the bottom. It was claimed that in view of the clarification given by the department on 23.11.1994 the plaintiff/respondent was not entitled to selection grade. The order withdrawing the grade was claimed to be justified and legal. It was prayed that the suit filed by the plaintiff/respondent be dismissed. On the pleadings of the parties, the learned trial Court was pleased to frame the following issues: - “1. Whether the plaintiff is entitled for the selection grade as alleged? OPP 2. Whether the order dated 5.8.1995 is illegal, null and void? OPP 3. Whether the plaintiff has got no cause of action to file the present suit? OPD R.S.A. No. 2556 of 2008 (O&M) -4- 4. Whether the suit is bad on account of mis-joinder of necessary parties? OPD 5. Whether the suit of the plaintiff is not maintainable in the present form? OPD 6. Relief.” The suit was decreed by the learned trial Court vide judgment and decree dated 6.3.2000 by the learned Civil Judge (Junior Division), Rohtak. The appellant/defendants preferred an appeal against the judgment and decree, which was accepted by the learned lower appellate Court and the case was remanded back to the learned trial Court to reconsider the appeal, as the application moved by the appellant/defendants for amendment of the written statement was allowed by the learned lower appellate Court subject to payment of Rs.1,500/- (Rupees one thousand five hundred only) as costs. After the remand, in view of the amended written statement and replication thereto, the following additional issues were framed: - “1. Whether the plaintiff is estopped by his act and conduct to file the present suit? OPD. 2. Whether the suit is bad for misjoinder and neessary parties as the persons who are much senior to the plaintiff in seniority list have not been impleaded as party? OPD." The parties again adduced oral as well as documentary evidence in support of their respective assertions. No evidence in rebuttal was adduced. Issue Nos. 1 and 2 were decided against the plaintiff and in favour of the defendants, primarily by relying on the explanation given R.S.A. No. 2556 of 2008 (O&M) -5- by the department with regard to the employees who were transferred from one cadre to another. The said explanation reads as under: Question Reply 4. The official who had completed 12 years service in a grade but transferred from one unit to other unit or one cadre to other cadre who was assigned seniority at the bottom, if such employee can be considered for the placement in the selection grade ignoring his seniors who have not completed 12 years service in a grade. The official who had completed 12 yrs service in a grade but transferred from one cadre to another at the instance of the Corporation, in such cases, the service rendered in the grade but not in the cadre be taken into account for considering them for placement in respective selection grade. But the official who had completed 12 years service in a grade had been transferred from one cadre to another cadre, in their own interest foregoing the past seniority in the parent cadre, such official shall only be eligible for placement in the selection grade, if covered as per the revised seniority assigned to them in the cadre to which they opted for. In no circumstances, the junior employee can be considered for placement in the selection grade ignoring the seniors in the seniority list. The presumption made by your office is not in order. Additional issue No. 1 was also decided against the plaintiff and it was held that the plaintiff was estopped by his act and conduct to file the suit, as he had admitted while opting to go to accounts cadre to lose his seniority. On issue No. 3, it was held that the plaintiff had no cause of action to maintain the suit. Issue No. 4 with regard to mis- joinder and non-joinder of necessary parties was also decided against the plaintiff by holding that the persons senior to the plaintiff/respondent were not impleaded as party. Resultantly, in view of the findings R.S.A. No. 2556 of 2008 (O&M) -6- recorded, the suit was dismissed. The plaintiff preferred an appeal against the judgment and decree and learned lower appellate Court reversed the findings recorded by the learned trial Court. The learned lower appellate Court has been pleased to hold that the plaintiff/respondent was entitled to selection grade on completion of 12 years of service in grade. The eligibility condition, as given in the circular dated 30.12.1992 Clause 2(II) of the circular dealing with placement in the selection grade, reads as under: - “Clause 2(II) Eligibility for placement in selection grade posts - All the Category III and Category IV employees who have put in not less than 12 years service on or after 1.12.1987 in the same grade/cadre shall be eligible for consideration for selection grade.” The learned lower appellate Court was pleased to hold that the clarification sought was in the nature of question and answer. The interpretation by the departmental official could not overrule the circular. The findings of the learned trial Court on issue No. 1 were ordered to be reversed, in view of Clause 2(II) reproduced above. The learned lower appellate Court also held that the order dated 5.8.1995 was illegal, null and void, as before withdrawal of the benefit granted, admittedly, no notice was issued to the plaintiff/respondent. The findings are based on settled principle of law that any order affecting civil rights of a person cannot be passed without following principles of natural justice. The learned lower appellate Court also reversed the finding of the learned trial Court on issue No. 4 by holding that as the plaintiff was seeking selection grade on the basis of service rendered. The plaintiff/respondent challenged the order of withdrawal of the selection R.S.A. No. 2556 of 2008 (O&M) -7- grade being in violation of natural justice. The persons senior to him were, therefore, not necessary or proper party. The suit, therefore, could not be said to be bad for misjoinder of necessary parties. By reversing the judgment and decree of the learned trial Court, the suit filed by the plaintiff/respondent was ordered to be decreed. Mr. K.K. Gupta, learned counsel, appearing on behalf of the appellants, raised the following substantial questions of law for consideration: - “1. Whether the learned lower appellate Court was justified in reversing the judgment and decree passed by the learned trial Court by counting the seniority in a different cadre when the seniority in the cadre is maintained separately? 2. Whether the clarificatory letter issued by the authority issuing instructions cannot be said to be order modifying the said instructions? 3. Whether on a legal issue an opportunity of hearing was required to be given?” Learned counsel for the appellants in support of the substantial questions of law, as framed, vehemently contends that the learned lower appellate Court was wrong in ignoring the clarification given by the competent authority to Clause 2(II) of the circular under which the employees were entitled to selection grade. The contention of the learned counsel for the appellants is that once an option was exercised by the plaintiff/respondent to go to different cadre by agreeing to lose his seniority, then in absence of seniors being granted the selection grade, he was not entitled to selection grade. The finding recorded by the learned lower appellate Court was R.S.A. No. 2556 of 2008 (O&M) -8- claimed to be perverse on the face of record and contrary to the circular. It is also the contention of the learned counsel for the appellants that seniority in the cadre of store could not be counted for grant of selection grade in the accounts department, as is done by the learned lower appellate Court, therefore, this contention deserves to be accepted by answering the substantial questions of law in favour of the appellants. However, on consideration of matter, I find no force in the contentions raised by the learned counsel for the appellants. The reading of Clause 2(II) clearly shows that the person is entitled to selection grade as the Clause provides that all Category III and Category IV employees who have not less than 12 years of service on or after 1.12.1987 in the same grade/cadre shall be eligible for consideration of selection grade. There is stroke between grade and cadre, which would mean that for eligibility to selection grade the employee is to have 12 years service either in cadre or grade. Merely because a person had been placed junior-most in the transferred cadre, cannot be a ground to deny the selection grade once he has put in 12 years of service in same grade. The learned lower appellate Court was also justified in holding that reply submitted by an official with regard to interpretation of circular was not binding on the Court. The Court was to apply its independent mind and come to the conclusion whether the person under circular was entitled to selection grade or not. The contention of the learned counsel for the appellants that the issue involved being legal issue, no notice was required to be issued before withdrawing the selection grade to the plaintiff/respondent, can R.S.A. No. 2556 of 2008 (O&M) -9- also not be accepted. It is settled law that any order which affects the civil rights cannot be passed without following principles of natural justice. By way of impugned order, the defendants had sought to downgrade the plaintiff/respondent by withdrawing selection grade and, therefore, order passed in violation of natural justice cannot be sustained. The learned lower appellate Court was correct in holding that the order of withdrawal of selection grade was not passed in consonance with law, therefore, was rightly declared to be null and void and not binding on the rights of the plaintiff/respondent. The substantial questions of law, as framed, are answered against the appellant/defendants. No merit. Dismissed. (Vinod K. Sharma) Judge February 04, 2009 R.S.