RSA No.2408 of 1986 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2408 of 1986 Date of decision 09.09. 2010. Sardar Kaur Singh ...... Appellant. versus State of Punjab and others ...... Respondents. CORAM :- HON'BLE MR.JUSTICE K.C.PURI. Present : Mr. H.N.S.Gill, Advocate for the appellant. Mr. Sudhir Nehra, Addl.AG, Punjab for the respondents. K.C.PURI, J. This is an appeal directed by plaintiff-appellant against the judgment and decree dated 7.5.1986 passed by Shri M.K.Bansal, learned Additional District Judge, Chandigarh vide which the appeal preferred by the plaintiff-appellant against the judgment and decree dated 30.8.1983 passed by Shri V.P.Aggarwal, Additional Senior Sub Judge, Chandigarh, was dismissed. RSA No.2408 of 1986 2 The case of the plaintiff in brief is that he was working as Block Development Officer in the joint Punjab since March, 1956 and he was senior to defendant Nos.2 to 9 but due to hostile attitude of the Punjab Government, he was ignored for promotion. Dayal Singh Saroya is the son of Asa Singh, the then Principal Secretary to Sardar Partap Singh Kairon, and to give benefit to Dayal Singh, he was given promotion as Assistant Director, Panchayats, in the year 1972 but the plaintiff was ignored on the basis of confidential reports. It has been further averred that the said reports could not be taken into consideration as these were not conveyed to him and his representations against the same were not decided. So, one of the reliefs claimed by the plaintiff is that he being senior is entitled to promotion from the date when his junior was promoted. He further averred that he was suspended w.e.f. 17.11.1975 and after inquiry he was reinstated on 20.12.1976 and that he was paid only subsistence allowance for the period of his suspension. Plaintiff also challenged the order of his compulsory retirement and on his representation the said order was set aside and he was retired on superannuation. By way of the present suit, he claimed that he is senior to respondent Nos.2 to 9 and that he is entitled to promotion from August, 1972, when Dayal Singh Saroya defendant No.2 junior to him was promoted and for declaration of his suspension is illegal and he is entitled to full pay for the suspension period and that the order of compulsory retirement be declared as void. On notice, defendant Nos.2 to 9 did not appear after service and were proceeded against ex-parte. It has been alleged by defendant No.1 in its written statement RSA No.2408 of 1986 3 admitted the factual position but alleged that the plaintiff was considered every time for promotion but ignored on the basis of his service record. The representation of the plaintiff against adverse reports were considered and were rejected and he was informed also of the said fact. It has further been alleged that the plaintiff remained absent from duty without any sufficient cause. The impugned order is a valid order. It has further been alleged that the suit is barred by time. Denying other averments, defendant No.1 prayed for dismissal of the suit. On the pleadings of the parties, following issues were framed :- 1.Whether the plaintiff is senior to defendant Nos.2 to 9 ?OPP 2.Whether the plaintiff stands promoted to the senior posts with retrospective effect from the dates his immediate junior Mr.Dayal Singh Saroya was promoted to the higher posts ? OPP. 3. Whether the plaintiff is entitled to his full pay and allowances from 17.1.1975 to 20.12.1976 ? OPP 4. Whether the suspension of the plaintiff w.e.f. 17.1.1975 was illegal ? OPP 5. Whether the compulsory retirement of the plaintiff was not illegal ?OPD 6. Whether the plaintiff is entitled to all consequential benefits. If so, what ?OPP 7. Whether the suit is within limitation ?OPP 8. Relief. The parties have led their respective evidence. The learned trial Court after appraisal of the evidence, partly decreed the suit of the plaintiff vide judgment and decree dated 30.8.1983 to the effect that the order dated 22.8.1978 is illegal, null and void and the RSA No.2408 of 1986 4 remaining suit of the plaintiff stood dismissed. Feeling dis-satisfied with the aforesaid judgment and decree dated 30.8.1983, plaintiff filed appeal before the First Appellate Court. The said appeal was heard and dismissed vide judgment and decree dated 7.5.1986 passed by Sh M.K.Bansal, Additional District Judge, Chandigarh. Still feeling dissatisfied with the judgments and decrees passed by both the Courts below, the plaintiff/appellant has preferred the present regular second appeal. I have heard counsel for the parties and have gone through the records of the case. Learned counsel for the appellant has submitted that Dayal Singh Saroya and other private defendants/respondents were admittedly junior to the plaintiff. The case of the plaintiff is that he is entitled to promotion from the date of his junior Dayal Singh Saroya and others were promoted. The criteria for seniority as per Rule is seniority-cum-merit. Both the Courts below have held that promotion of the plaintiff was withheld on the ground that some of the Annual Confidential Reports of the plaintiff were not up to the mark and that there were adverse remarks in the Annual Confidential Reports. However, it is submitted that for the last three years when Dayal Singh Saroya was promoted, the Annual Confidential Reports of plaintiff were good and in those circumstances the plaintiff would be deemed to have been promoted from the date Dayal Singh Saroya has been promoted. Learned counsel for the appellant has further submitted that both the Courts below have misread and misinterpreted the evidence on the RSA No.2408 of 1986 5 file. The plaintiff was allowed to cross his efficiency bar keeping his service record into view, then it does not lie in the mouth of the defendants/respondents to withhold the promotion of the plaintiff. In fact Dayal Singh Saroya has been promoted on political considerations and in these circumstances, both the Courts below should have decreed the suit of the plaintiff. Learned counsel for the appellant has submitted that the following substantial questions of law has arisen in this case for determination :- (a) Whether the judgments and decrees of both the Courts below are perverse on account of misreading and misinterpreting the evidence on the file ? Learned counsel for the State has supported the judgments of both the Courts below and has submitted that the service record of the plaintiff was not good and on that account he was not promoted. I have given my thoughtful consideration to the rival submissions made by both the sides and have gone through the records of the case. The criteria for promotion to the next post as per service Rules has been laid down in Rule 9 of Punjab Development and Panchayats Class II Service Rules, 1974 (hereinafter mentioned as - Rules), which reads as under :- “All appointments to the posts in the service by promotion shall be made on the basis of seniority-cum-merits and no member of the Service shall have any right for promotion merely on the basis of seniority ; RSA No.2408 of 1986 6 Provided that promotion to the posts of Administrative Intelligence Officer, Deputy Director, Panchayats, Assistant Director, shall be made in accordance with the provisions of Punjab Service (Appointment by promotion) Rules, 1962.” So, from the bare reading of the said Rules, it is crystal clear that seniority-cum-merit is the criteria for promotion. It is not disputed that case of the plaintiff, now deceased, represented by the legal representatives, was considered when promotion was given to D.S. Saroya Learned counsel for the appellant could not point out as to how D.S.Saroya is promoted on political consideration. Both the Courts below have given a concurrent finding of fact that service record of the plaintiff was not good and on that account he could not be held entitled for promotion. So, that being a finding of fact cannot be interferred in the regular second appeal. In a criteria of seniority-cum-merit, the merit altogether cannot be ignored. No doubt, the seniority is the dominant factor in granting of such promotion but where the service record of the plaintiff was found to be not good, in those circumstances, the defendants had rightly ignored the plaintiff while considering his case for promotion along with D.S.Saroya & others. While making the consideration for promotion, whole of the service record has to be perused and even if last 1 and 2 Annual Confidential Reports of employee are good, it does not make the employee entitled for promotion. The overall service record of plaintiff was found not good and in those circumstances the suit of the plaintiff was rightly dismissed by both the Courts below. There is nothing on the file to establish that judgments of both the Courts below are the result of RSA No.2408 of 1986 7 misreading and misinterpreting the evidence on the file. So, the question of law raised above, stands answered against the plaintiff/appellant. Consequently, the appeal is without any merit and the same stands dismissed. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE September 09, 2010 sv