RSA No.3528 of 2010 (O&M) -: 1 :- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3528 of 2010 (O&M) Date of decision: August 26, 2011. Sulakhan Singh ... Appellant(s) v. State of Punjab & Anr. ... Respondent(s) CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Shri Raj Kumar Arya, Advocate, for the appellant(s). Kanwaljit Singh Ahluwalia , J. (Oral): CM No.10360-C of 2010 For the reasons stated in the application, delay in re-filing of the appeal is condoned. Application stands disposed of. RSA No.3528 of 2010 Plaintiff having failed in two rounds of litigation has approached this Court by instituting the present regular second appeal. The suit for declaration was instituted by the plaintiff-appellant praying that he is entitled to grant of senior scale with effect from the day when he completed 5 years as Clerk. To appreciate the relief sought, it will be necessary to notice the brief facts of the case. Plaintiff was appointed as a Class IV employee with the defendant-respondent in the year 1974. He was promoted as Clerk in 1980. RSA No.3528 of 2010 (O&M) -: 2 :- As per the rules prevalent, any Clerk who had rendered service of 5 years, is to be granted senior scale. It was pleaded in the suit that plaintiff became entitled to grant of senior scale in the year 1986 but the same was denied to him. It was stated that plaintiff had earlier filed a suit claiming senior scale which was decreed and the execution was filed but liberty was granted to the plaintiff to file a separate suit regarding the relief sought in the instant suit. Notice was issued and the defendants caused appearance and filed reply. They raised a preliminary objection that the suit for mandatory injunction is not maintainable. It was admitted that the plaintiff was appointed as Peon in the year 1974 and was promoted in the year 1980 but this promotion was purely on temporary basis subject to the condition that the plaintiff was to pass the Punjabi typing test within six months. It was stated that the plaintiff had failed to pass the typing test, he was reverted as Peon in 1983, aggrieved against which he filed a civil suit in which interim injunction was granted and the plaintiff was allowed to continue as Clerk. Ultimately, the appeal was dismissed and the plaintiff was reverted to the post of Peon on 21.12.1988. Plaintiff qualified the Punjabi type test and was thus regularly promoted as Clerk on 2.5.1989 and was assigned seniority as Clerk with effect from May 1989. He became eligible for grant of senior scale on 6.5.1994. The trial court took into consideration the admission made by the plaintiff in cross examination, whereby he admitted factum of his non- passing of Punjab type test, and reversion, subsequent promotion to the post of Clerk. The trial court taking into consideration the pleadings and evidence led by the parties held as under:- RSA No.3528 of 2010 (O&M) -: 3 :- “8. All admissions of plaintiff are corroborated by the record of the defendants that in 1980 plaintiff was appointed temporarily vide Ex.D1 and in 1983 he was reverted to Peon vide Ex.D-II and against reversion his claim was dismissed by Ex.D-III and D-IV and he was reverted vide Ex.D-IV and ultimately passed test vide Ex.D-VI and was put in seniority list in 1992 vide Ex.D-VII which was not objected. Plaintiff did not object against the seniority of 1992. Hence, is now estopped to deny the same. Otherwise by virtue of admissions of plaintiff himself, plaintiff became regular Clerk only in 1989 and could get senior scale after 5 years from becoming regular Clerk. In this manner, in 1980 he was temporary and not regular Clerk and did not qualify the test. Hence, was reverted to Peon in 1983. In the light of all these factors claim of plaintiff fails and the issue stands decided against the plaintiff.” The lower appellate court had affirmed the finding returned by the trial court. The appellant-plaintiff has not challenged the date when he was assigned seniority as a Clerk. In the seniority list, it is reflected that appellant was enrolled as Clerk from December 1989. Thus, senior scale will accrue to him only in the year 1994 which has since been granted by the respondent-defendant. It is also admitted fact that in the earlier suit, plaintiff-appellant failed and was thereafter reverted back to the cadre of Peon. It is only due to the subsequent promotion when he attained eligibility by passing Punjabi typing test that he was promoted as Clerk in May, 1989. Thus, grant of senior scale in May 1989 cannot be held to relate RSA No.3528 of 2010 (O&M) -: 4 :- back to the period when he was reverted, thus the courts below have rightly denied the relief by returning a concurrent finding of fact. Counsel for the appellant has failed to raise any question of law, much less a substantial question of law, for the consideration of this Court during course of arguments. Hence no interference is warranted and the present appeal is dismissed. [Kanwaljit Singh Ahluwalia] August 26, 2011. Judge kadyan