R.S.A.No.4055 of 2009 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No.4055 of 2009 (O&M) Date of decision: 2.12.2009 Guru Jambheshwar University, Hisar ......Appellant Versus Teja Ram Bishnoi and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.G.S.Sidhu, Advocate, for the appellant. **** SABINA, J. Plaintiff Teja Ram Bishnoi filed a suit for declaration with consequential relief of mandatory injunction which was decreed by the Civil Judge (Jr.Divn.), Kurukshetra vide judgment and decree dated 25.9.2007 . In appeal, filed by defendant No.2, the said judgment and decree were upheld by the District Judge, Kurukshetra vide judgment and decree dated 3.6.2009. Hence, the present appeal by defendant No.2. Brief facts of the case, as noticed by the trial Court in para Nos. 2 to 5 of its judgment, are as under:- R.S.A.No.4055 of 2009 (O&M) 2 “2. The brief facts of the case of plaintiff are that he was appointed as lecturer in Economic by the Govt. of Haryana and he joined as such at Govt. College Bhiwani on 23.12.1986 on regular basis. He was transferred to Dronacharya Postgraduate Govt. College, Gurgaon, where he remained upto 26.8.1994. The work and conduct of the plaintiff remained good and satisfactory, vide letter No. 3/94/9393 dated 26.7.1994, the defendant no. 1 requested Govt. of Haryna to send the plaintiff on deputation under defendant no. 1 as an Advisor against the Post of Professor on guru Jambheshwar Ji Maharaj Chair vide letter dated 21.4.1993. the plaintiff was sent on deputation for a period of two years with immediate effect vide order dated 24.8.1994 and the plaintiff joined his duties with defendant no. 1 as ordered. Defendant no. 1 established post Graduate Regional Centre, Hissar and it was, later on converted into full fledged University named as Guru Jambheshwar University, Hissar (Defendant No. 2 herein), defendant no. 1 transferred certain employees from defendant no. 1 to defendant no. 2 vide order dated 31.8.1995. Their record was also transferred vide order dated 12.11.1995, but the plaintiff was never transferred to defendant no. 2 by defendant no. 1 neither his name and other record was sent to the R.S.A.No.4055 of 2009 (O&M) 3 Post Graduate Centre, Hissar. Defendant no. 1 paid salary of plaintiff upto 30.11.1995. Thereafter, defendant no. 1 asked the plaintiff orally that the plaintiff would be transferred to defendant no. 2 and to refund salary for the month of November, 1995, with mala fide intention and to harass him unnecessarily. The plaintiff being innocent deposited the salary of Rs. 6788/- for the month of November, 1995 vide receipt dated 21.12.1995 with defendant no. 1, but the plaintiff was never transferred to defendant no. 2 nor he was relieved by defendant no. 1. Defendant no. 1 never received plaintiff's consent for transfer to defendant no. 2, thus, he remained employee of defendant no. 1 throughout. The plaintiff made requests to defendant no. 1 to pay him the salary for November and December 1995 vide letter dated 30.12.1995 and 8.1.1996, but defendant no. 1 orally asked the plaintiff to receive salary from defendant no. 2, who in turn replied that plaintiff's name has not been sent to defendant no. 2 nor he has been transferred there. So, he was not considered as employee of defendant no. 2. Accordingly, his request was declined. The plaintiff made requests to the Govt. of Haryana defendants no. 3 & 4 to send plaintiff back in the parent department i.e. Dronacharya Govt. College, Gurgaon and requested R.S.A.No.4055 of 2009 (O&M) 4 defendant no. 1 to relieve him after completing necessary formalities to enable the plaintiff to join at Govt. College, Gurgaon, but his requests went unheard. Defendants no. 3 & 4 sent the plaintiff back in parent department where plaintiff joined on 24.10.1997 and the plaintiff is still working there. Defendant no. 1 has not paid salary of the plaintiff from 1.1.1995 to 24.10.1997 for which he is legally entitled to along with interest at the rate of 18% per annum. Plaintiff's service has also not been regularized by defendant no. 1 for the aforesaid period nor his LPC, service book, personal file have been sent to Dronacharya Govt. College, Gurgaon. For want of above documents, the plaintiff has not been given any increment nor his pay has been properly fixed and he has not been given revised pay scale. The plaintiff is legally entitled to all the claims. The plaintiff is legally entitled to all the claims. The plaintiff filed C.W.P. No. 2410/1997 before the Hon'ble High Court of Punjab and Haryana, at Chandigarh which was disposed of as withdrawn as there was dispute on facts which could not be resolved in writ petition. Legal notice dated 30.10.1998 also born no fruit. Hence, this suit. 3. Notice of the suit was given to the defendants. Defendants appeared and contested the suit by filing their R.S.A.No.4055 of 2009 (O&M) 5 separate written statements. In the written statement filed by the defendant no. 1 some preliminary objections have been raised inter-alia on the grounds that suit of the plaintiff is not maintainable in the present form; that the suit is barred by limitation; that no notice under 80 CPC has been served. It is further alleged that the case of defendant no. 1 is that some courses along with concerned Teachers and non-teaching employees were transferred to the then Post Graduate Regional Centre, Hissar. After the conversion of the said Centre into Guru Jambheshwar University, the L.P.C. along with service record of these employees were transferred to defendant no. 2 vide notification dated 4.9.1995 issued by defendant No. 1 Guru Jambheshwar Ji Maharaj Study Chair and Guru Jambheshwar Ji Maharaj Institute of Religious Studies were shifted to the then Kurukshetra University, Post Graduate Regional Centre, Hissar, which was later on converted into full fledged Guru Jambheshwar University, Hissar w.e.f. 1.11.1995. The plaintiff vide his letter admitted to have been transferred to Guru Jambheshwar University, Hissar w.e.f. 1.11.1995 and requested the defendant to supply him L.P.C. which was required by the defendant no. 2 for the purpose of release of his pay there. Aforesaid personal file and R.S.A.No.4055 of 2009 (O&M) 6 service book of the plaintiff were returned to defendant no. 2 vide letter dated 3.4.1996. the plaintiff in C.W.P. No. 2410 of 1997 also admitted shifting of his services to Hissar along with Chair as Advisor to the Chair. Salary of November, 1995 was paid to the plaintiff inadvertently and it was refunded on 21/12/1995 on the ground that the plaintiff wanted to get his last pay certificate from this University. In reply to the request of plaintiff for pay of November and December, 1995 it was informed that Guru Jambheshwar Ji Maharaj Study Chair and Guru Jambheshwar Ji Maharaj Institute of Religious Studies were shifted to the then Kurukshetra University, Post Graduate Regional Centre, Hissar vide notification dated 4.9.1995 and the said Centre was converted into Guru Jambheshwar University, Hissar w.e.f. 1.11.1995. In his reply dated 18.12.1995 the plaintiff has admitted his transfer to Jambheshar University, Hissar and requested for issue of his L.P.C. The plaintiff was informed that he was employee of defendant no. 2 and he can claim his salary from that University. The plaintiff never requested to University, Kurukshetra. It is also not in the knowledge of defendant no. 2 as whether the plaintiff performed his duty with hard labour and responsibility. The plaintiff has never been transferred from Kurukshetra University to R.S.A.No.4055 of 2009 (O&M) 7 Guru Jambheshwar University, Hissar. The defendant no. 1 transferred its certain employees to Guru Jambheshwar University. The name of plaintiff was not mentioned in the list of employees transferred to Guru Jambheshwar University. The Guru Jambheshwar University also does not know as whether the defendant no. 1 has ever directed orally to the plaintiff to received the salary from Guru Jambheshwar University. The defendant No. 1 is a corporate body and there is no question of requesting the plaintiff orally to receive the salary from the defendant no. 2. Rest of the averments have been denied. 5. In the written statement filed by the defendants no. 3 & 4, the preliminary objections qua maintainability' suit is bad for non-joinder and mis-joinder of necessary party; estoppel; suit is bad for want of notice under section 80 CPC and that the plaintiff has not come with clean hands before this court. It is further stated that the plaintiff was appointed Lecturer in Economics and he joined as such on 23.12.1986 in Govt. College, Bhiwani. Vide order dated 24.,8.1994 the services of the plaintiff were placed at the disposal of Kurukshetra University, Kurukshetra for a period of two years on deputation to work for Guru Jambheshwar Ji Maharaj Chair on the R.S.A.No.4055 of 2009 (O&M) 8 request of Kurukshetra University, Kurukshetra. The plaintiff was relieved on 26.8.1994 from Dronacharya Govt. College, Gurgaon and thereafter, the plaintiff remained with defendants No. and 2. On receiving the information from Guru Jambheshwar University, Hissar that the services of the plaintiff were no more required by defendant no. 2, his case to call him back was referred to State Govt. and vide letter dated 24.2.1997 the plaintiff was ordered to be recalled and posted at Dronacharya Govt. College, Gurgaon. Despite order dated 24.2.1997 the plaintiff never reported to Dronacharya Govt. College, Gurgaon or to defendants no. 3 & 4 till 23.10.1997. On 24.10.1997 the plaintiff reported to the Principal, Dronacharya Govt. College, Gurgaon and he was allowed to join on the same day. The plaintiff is being paid salary and usual allowances as per rules. The payment of pay and other allowances for the period he remained posted on deputation with Kurushetra University/Guru Jambheshwar University, Hissar, is to be made by them, if any. Regarding treating of his period on deputation as duty period, his services are to be got verified from defendants no. 1 & 2 for the period he remained with defendants no. 1 and 2 and only after completion of R.S.A.No.4055 of 2009 (O&M) 9 entries in service book, the remaining benefits claimed by him would be considered and allowed as per rules. Relief claimed by the plaintiff is against defendants no. 1 & 2. the plaintiff made representation dated 15.5.1996 mentioning therein that he had not been given salary for seven months by defendants no. 1 & 2. He had asked to be called back to his parent department. Defendants no. 1 & 2 were asked to do the needful for payment of arrears and salary due to the plaintiff. The matter was taken up with Guru Jambheshwar University, Hissar, vide letter dated 22.8.1996, which was received in the office of defendant no. 4 on 17.9.1996. the plaintiff joined Dronacharya Govt. College, Gurgaon on 24.10.1997 after eight months for the reasons best known to him. All other allegations of the plaintiff have been denied. On the pleadings of the parties, following issues were framed by the trial Court:- 1. Whether the plaintiff is entitled to a decree for declaration to the effect that the period from 1.11.1995 to 24.10.1997 is the duty period of the plaintiff for all intents and purposes, if so to what effect ? OPP 2. Whether the plaintiff has no cause of action against the answering defendants? OPD 3. Whether the plaintiff has not come before this R.S.A.No.4055 of 2009 (O&M) 10 learned court with clean hands?OPD 4. Whether the suit of the plaintiff be dismissed for not serving notice under section 80 CPC?OPD 5. Whether the suit is bad for non-joinder and mis- joinder of necessary party?OPD 6. Whether the suit is not maintainable?OPD 7. Whether the plaintiff is estopped from filing the present suit by his own act and conduct?OPD 8. Whether the Hon'ble court has got no jurisdiction to try and entertain the present suit?OPD 9. Whether the present suit has not been properly valued for the purposes of court fee and jurisdiction?OPD 10. Whether the suit of the plaintiff is pre-mature?OPD 11. Whether the suit is time barred?OPD 12. Relief After hearing learned counsel for the appellant, I am of the opinion that the present appeal deserves to be dismissed. The plaintiff had filed a suit for declaration that the period from 1.11.1995 to 24.10.1997 be treated as a duty period for all intents and purposes. The plaintiff was appointed as a lecturer in Economics by Government of Haryana and he joined as such at Government College, Bhiwani on 23.12.1986. At the request of defendant No.1, the plaintiff was sent on deputation to Kurukshetra R.S.A.No.4055 of 2009 (O&M) 11 University, Kurukshetra. Learned Additional District Judge in the impugned judgment has observed as under:- “21. It was not disputed that the plaintiff, a Government employee, was posted as advisor to Guru Jambheshwar Ji Maharaj Chair, Kurukshetra on deputation for a period of two years. It is also not disputed that the abovesaid Chair was shifted to Hisar. Order dated 4.9.1995 also clearly reveals that Guru Jambheshwar Ji Maharaj Study Chair and Guru Jambheshwar Ji Maharaj Institute of Campus were shifted to the Kurukshetra University Postgraduate Centre, Hisar with immediate effect. So the Chair with which the plaintiff Teja Ram Bishnoi was working was also shifted to regional Centre, Hisar along with Jambheshwar Ji Maharaj Institute of Religious Studies. Admittedly, Regional Study Centre, Hisar was converted into a full fledged University named Guru Jambheshwar University, Hisar w.e.f 1.11.1995. Section 35 of the Guru Jambheshwar University, Hisar Act, 1995 is very relevant and is reproduced below for ready reference:- “35. Repeal and Savings (1)- All properties, movable and immovable and all the interests of whatsoever nature and kind R.S.A.No.4055 of 2009 (O&M) 12 therein, vested in the Kurukshetra University Post Graduate Regional Centre, Hisar and the courses run thereunder and posts created, filled before the commencement of this Act shall vest in the University. (2) All debts, obligations and liabilities incurred all contracts entered into and all matters and things engaged to be done in respect of Post Graduate Regional Centre, Hisar shall be deemed to have been incurred, enter into or engaged to be done by, with or for the University.” Perusal of above said Section reveals that all properties and interests vested in Regional Centre, Hisar run under Kurukshetra University, Post Graduate Centre, Hisar and the posts created, filed before the commencement of the Act vested in the University and that all the debts, obligations and liabilities incorrect, contracts entered into or engaged to be done by, with or for the University.” Learned Additional District Judge has further observed that the State of Haryana had asked defendant No.2 to release the salary of the plaintiff w.e.f. 1.11.1995 but the same was not released and consequently, the plaintiff had to file the present civil suit. R.S.A.No.4055 of 2009 (O&M) 13 The plaintiff was sent on deputation under the orders of the State and was then recalled from deputation and on recalling, the plaintiff joined his parent department on 24.10.1997. The salary for the period from 1.11.1995 to 24.10.1997 was, however, not disbursed to the plaintiff. In the facts and circumstances of the present case, the Courts below rightly held that the salary of the plaintiff could not be withheld without any sufficient cause. The plaintiff was neither allowed to join his duty with defendant No.1 or with defendant No.2 during the period in question. Both the Universities are governed by the rules and regulations formulated by the State of Haryana and the Government itself had directed defendant No.2 to release the salary to the plaintiff but the needful was not done. In these circumstances, the Courts below rightly came to the conclusion that it was defendant No.2-appellant, who was to pay the salary to the plaintiff for the period in question. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE December 02, 2009 anita