Regular Second Appeal No. 377 of 2008 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 377 of 2008 Date of decision : September 30, 2010 The State of Haryana and others ....Appellants versus Dr. H.R.Singhal ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Narender Singh, DAG, Haryana for the appellants Mr. S.S.Godara, Advocate for Mr. Bijender Dhankhar, Advocate, for the respondent L.N. Mittal, J. (Oral) Defendants-State of Haryana and its functionaries having failed in both the courts below have filed the instant second appeal. The plaintiff was appointed as Medical Officer on 24.7.1979 in service of the defendants. On revision of pay scales, State of Haryana vide notification dated 2.6.1989 granted selection grade of Rs 4100-5300 on completion of 12 years regular service. Plaintiff accordingly claimed the selection grade with effect from 24.7.1991. However, the defendants granted selection grade to the plaintiff with effect from 1.7.1996. The Regular Second Appeal No. 377 of 2008 -2- plaintiff by filing civil suit No. 480 of 2000/1998 challenged the same and claimed payment of arrears on account of selection grade with effect from 24.7.1991. Trial court vide judgment and decree dated 12.12.2000 Ex. P1 decreed the said suit holding plaintiff entitled to the said selection grade and fixation of his pay in the said scale with effect from 24.7.1991. Defendants were also directed to pay him consequential arrears from 24.7.1991 till 30.6.1996 and also other consequential benefits as well as interest on the arrears. It is undisputed that the said judgment Ex. P1 of the trial court was upheld upto Hon'ble the Apex Court except that rate of interest was reduced. Defendants vide letters dated 1.2.2001 and 23.2.2001 directed refixation of pay of the Medical Officers as the State Government vide notification dated 16.5.1990 had restricted the grant of selection grade to 20% of the cadre strength. Accordingly, selection grade to the plaintiff was sought to be given with effect from 1.9.95 instead of 24.7.1991. In fact notification dated 16.5.1990 had been challenged by filing various writ petitions in this Court. This Court vide judgment and order dated 23.9.1999 in CWP No. 18043 of 1998 quashed the notification dated 16.5.1990 but Hon'ble Supreme Court vide judgment dated 20.11.2000 upheld the said notification. In view of said notification not only the condition of 12 years service was to be fulfilled for grant of selection grade but also selection grade had to be granted to only 20% Medical Officers of the cadre strength. In view thereof, letters dated 1.2.2001 and 23.2.2001 were issued for refixation of selection grade of all the Medical Officers, Regular Second Appeal No. 377 of 2008 -3- pursuant to judgment dated 20.11.2000 of the Hon'ble Supreme Court. Plaintiff filed the instant suit challenging letters dated 1.2.2001 and 23.2.2001 and sought injunction restraining the defendants from refixing the plaintiff's pay and from recovering any amount from him. The defendants controverted the plaint allegations and pleaded that plaintiff was granted selection grade with effect from 24.7.1991 on the basis of notification dated 2.6.1989. However, in view of subsequent notification dated 16.5.1990 restricting the selection grade to 20% posts of the cadre strength, letters dated 1.2.2001 and 23.2.2001 have been rightly issued and plaintiff became entitled to selection grade with effect from 1.9.1995 instead of 24.7.1991 and therefore, pay of the plaintiff has been refixed accordingly. Learned Additional Civil Judge (Senior Division), Sonepat vide judgment and decree dated 23.12.2006 decreed the plaintiff's suit. First appeal preferred by the defendants has been dismissed by learned Additional District Judge, Sonepat vide judgment and decree dated 31.10.2007. Feeling aggrieved, defendants have preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellants vehemently contended that notification dated 16.5.1990 restricting the selection grade to 20% posts of the cadre strength has been upheld by Hon'ble the Supreme Court vide judgment dated 20.11.2000 and consequently, the plaintiff becomes entitled Regular Second Appeal No. 377 of 2008 -4- to selection grade with effect from1.9.1995 only. It was also contended that before grant of selection grade, plaintiff had furnished affidavit dated 19.7.1996 mark-A affirming to refund all the arrears if judgment of High Court in the pending writ petitions went against him. Learned counsel for the appellants accordingly contended that in view of said affidavit, the plaintiff is entitled to refund the benefit of selection grade received by him with effect from 24.7.1991. On the other hand, learned counsel for the plaintiff-respondent contended that vide judgment dated 12.12.2000 Ex. P1 the plaintiff was held entitled to selection grade with effect from 24.7.1991 and said judgment in this regard was upheld upto Hon'ble the Supreme Court and consequently the said question is resjudicata in the instant second round of litigation. I have carefully considered the rival contentions. It is correct that vide notification dated 16.5.1990 selection grade was restricted to 20% of the cadre strength although in earlier notification dated 2.6.1989 no such condition had been stipulated. It is also undisputed that notification dated 16.5.1990 restricting selection grade to 20% posts of the cadre strength was stayed by interim orders of this Court in various writ petitions and ultimately the said notification was quashed by this Court vide judgment dated 23.9.1999 in CWP No. 18043 of 1998. However, it is also equally undisputed that Hon'ble the Supreme Court vide judgment dated 20.11.2000 upheld the notification dated 16.5.1990 restricting the selection grade to 20% posts of the cadre strength. In view of said notification, the plaintiff Regular Second Appeal No. 377 of 2008 -5- became entitled to selection grade with effect from 1.9.1995 instead of 24.7.1991 granted to him under notification dated 2.6.1989. However, the matter does not rest here. There is judgment dated 12.12.2000 Ex. P1 inter-parties. By said judgment, plaintiff was held entitled to selection grade with effect from 24.7.1991. The said relief granted to the plaintiff has attained finality upto Hon'ble the Supreme Court in the first round of litigation. Consequently, the question of grant of selection grade to the plaintiff with effect from 24.7.1991 is now barred by resjudicata in the instant second round of litigation and the defendants cannot be allowed to take plea that plaintiff is entitled to selection grade with effect from 1.9.1995 only and not with effect from 24.7.1991. It is correct that on 12.12.2000 when judgment Ex. P1 was passed by the trial court in the previous suit, judgment dated 20.11.2000 of the Supreme Court upholding notification dated 16.5.1990 might not have been in the knowledge of the Law Officer defending the defendants in the said suit. However, when the said judgment was challenged by way of first appeal, second appeal and special leave petition which was decided on 22.01.2002 as submitted by learned counsel for the appellants, by then judgment dated 20.11.2000 was well within the knowledge of the defendants and their Law Officers' and even impugned letters dated 1.2.2001 and 23.2.2001 on the basis of judgment dated 20.11.2000 of the Supreme Court had already been issued by the defendants. However, in spite thereof, judgment dated 12.12.2000 Ex. P1 regarding grant of selection grade to the plaintiff with effect from 24.7.1991 was upheld. Consequently, the said benefit cannot Regular Second Appeal No. 377 of 2008 -6- now be withdrawn from the plaintiff by the defendants. This has to be treated as an exception in view of judgment of the court dated 12.12.2000 as upheld upto Supreme Court. This cannot be treated as precedent for other Medical Officers. However, the benefit given to the plaintiff pursuant to judgment dated 12.12.2000 in the first round of litigation cannot be withdrawn on the basis of impugned letters dated 1.2.2001 and 23.2.2001. As regards affidavit dated 19.7.1996 of the plaintiff, the said affidavit has not been proved as only photostat copy of the affidavit has been placed on record. However, even taking into consideration the said affidavit, it has to be observed that selection grade to the plaintiff with effect from 24.7.1991 was granted on the basis of judgment dated 12.12.2000 Ex. P1 and not on the basis of the aforesaid affidavit. Consequently by taking shelter under the said affidavit defendants cannot withdraw the benefit of selection grade given to the plaintiff with effect from 24.7.1991 pursuant to judgment and decree dated 12.12.2000 Ex. P1 passed in the first first round of litigation. For the reasons aforesaid, I find no infirmity much less illegality in the judgments of both the courts below. Suit of the plaintiff has been rightly decreed. The instant second appeal is completely meritless. No question of law much less substantial question of law arises for determination in the instant second appeal. Accordingly, the appeal is dismissed. ( L.N. Mittal ) September 30, 2010 Judge 'dalbir' Regular Second Appeal No. 377 of 2008 -7-