R.S.A. No. 992 of 2009 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH R.S.A. No. 992 of 2009 (O&M) Date of decision : 7.7.2010 ... Haryana Tourism Corporation Limited, Chandigarh (U.T.), through its Secretary/Managing Director ................Appellant vs. Hukam Singh .................Respondent Coram: Hon'ble Mr. Justice K.C. Puri Present: Sh. R.K. Saini, Advocate for the appellant Sh. Sandeep Jasuja, Advocate for the respondent. ... K.C. Puri, J. This is a regular second appeal directed by Haryana Tourism Corporation Ltd., Chandigarh (U.T.), against the judgment dated 2.12.2008 passed by Sh. Ramendra Jain, District Judge, Gurgaon, vide which the appeal preferred by the defendant- present appellant against the judgment dated 26.3.2008 passed by Ms. Ranjana Aggarwal, Additional Civil Judge (Senior Division), Gurgaon, was dismissed. Hukam Singh – plaintiff filed a suit for declaration to the effect that he is entitled to get higher pay than his juniors in the pay scale of Rs.1200-2040/- w.e.f. The date his juniors were awarded R.S.A. No. 992 of 2009 -2- higher pay from the plaintiff. The case of the plaintiff as set forth in the plaint is that plaintiff was promoted as Assistant Cook w.e.f. 15.6.1987 while serving with Yamuna Nagar Tourist Complex. The work and conduct of the plaintiff was always good and there was no complaint against him. Later on plaintiff alongwith others was promoted to Grade II Cook in the pay scale of Rs.1200-2040/-. The plaintiff came to know that juniors to the plaintiff were being paid higher pay and allowances then him. The plaintiff requested the defendant many a times to give him his due pay and allowances, but he was transferred. Plaintiff sent a legal notice dated 7.7.1997, to the defendant, but to no effect. Hence the suit. Defendant, now appellant, filed written statement taking the preliminary objections of jurisdiction, maintainability, estoppel, cause of action etc. It is pleaded that plaintiff has concealed the real facts from the Court. While finalizing the seniority list of cadre of Assistant Cook cum Tandoori, the pay scale attached to this post was inadvertently mentioned as Rs.950-1500/- instead of Rs.775-1025/-. When this mistake came to knowledge of the competent authority, correction action was taken and letter dated 21.10.1993 was circulated to all the concerned persons. The plaintiff, as well as the other employees of the similarly placed in the said cadre were continuously being paid in the pay scale of Rs.775-1025/-. The plaintiff was never promoted with other employees in the pay scale of Rs.950-1500/-. The defendant promoted Cook Grade II in the scale of Rs.1200-2040/- as per letter dated 16.7.1997. It was R.S.A. No. 992 of 2009 -3- submitted that plaintiff was not fit for promotion to the post of Cook Grade II because of his service record. During this period certain other employees junior to him were promoted as Cook Grade II. Since plaintiff was not promoted as Cook Grade II, he could not claim the pay scale of Rs.1200-2040/-. Plaintiff filed replication denying the averments of the written statement and affirming the averments of the plaint. From the pleadings of the parties, following issues were framed:- 1. Whether plaintiff is entitled to get higher pay in the pay scale of Rs.1200-2010/- w.e.f. the date, his juniors were awarded higher pay? OPP. 2. Whether Court has got no jurisdiction to entertain the present suit? OPD 3. Whether plaintiff has no locus standi to file the present suit? OPD 4. Whether the suit of the plaintiff is barred by limitation? OPD 5. Relief. The plaintiff examined himself as PW-1 and placed his affidavit Exhibit PW-1/A alongwith documents Exhibit P-1 to P-9. Counsel for the defendant tendered certain documents and closed the evidence. Learned trial Court returned the finding on all the issues in favour of the plaintiff and consequently decreed the suit of the plaintiff. R.S.A. No. 992 of 2009 -4- Feeling dissatisfied with the above said judgment dated 26.3.2008, passed by Additional Civil Judge (Senior Division), Gurgaon, the present appellant preferred the Ist appeal, which was dismissed by the District Judge, Gurgaon, vide judgment dated 2.12.2008. Still feeling dissatisfied with the above said judgment dated 2.12.2008 passed by District Judge, Gurgaon and judgment dated 26.3.2008, passed by Additional Civil Judge (Senior Division), Gurgaon, the defendant-appellant has preferred the present regular second appeal. Learned counsel for the appellant has submitted that following substantial questions of law have arisen in the present case:- 1. Whether the respondent is entitled to get the pay scale at par w.e.f. the date his juniors were promoted, despite the fact that he is having adverse service record? 2. Whether the respondent had concealed the fact that he was employed in the pay scale of Rs.775-1025 alongwith other employees in the cadre of Assistant Cook -cum-Tandooria and was not drawing the salary accordingly and no Assistant Cook-cum-Tandooria was ever paid the salary in the pay scale of Rs.950-1500/-, as claimed by the respondent? Learned counsel for the appellant has submitted that service record of the plaintiff was not good. He was in the pay scale of Rs.775-1025/-. So, he is not entitled to the pay scale given to his R.S.A. No. 992 of 2009 -5- juniors i.e. the pay scale of Rs.1200-2040/-. The arguments advanced by counsel for the appellant look attractive, but are without any legal force. To prove the fact that plaintiff has adverse record, the defendant has not examined any witness. It has come on the record that the ACR of the plaintiff for the year 1996-97 was not good, but it has also come on the record that he made representation against the said adverse remarks and on the basis of ACR recorded by the Committee, his ACR for the year 1996- 97 was upgraded. Even at the time of giving promotion to the juniors, one post was kept reserve for the plaintiff. Admittedly, plaintiff was promoted later on and was placed in the scale of Rs.1200-2040/-. The argument advanced by counsel for the appellant to the effect that previously he was in the pay scale of Rs.775-1025/- and not in the scale of Rs.950-1500, and as such he is not entitled to be placed in the scale of Rs.1200-2040, is without any substance. The case of the plaintiff is that he is entitled to get his salary at par his juniors are drawing the salary. The plaintiff and other junior employees have been placed in the pay scale of Rs.1200-2040/-, has not been disputed by counsel for the appellant. The very fact that plaintiff has been promoted goes a long way that appellant has failed to prove that his service record was not good. Moreover, the defendant-appellant should have placed on the file the ACRs of plaintiff which according to the appellant, were not good. However, for the reasons best known to the appellant, the same have not been placed on the file. So, the concurrent finding of the fact, recorded by both the Courts below that appellant-defendant has failed to prove that the R.S.A. No. 992 of 2009 -6- service record of plaintiff is bad, does not call for any interference. The questions of law, raised by counsel for the appellant are not the questions of law, much less the substantial question of law. In view of the above discussion, the appeal is without any merit and the same stands dismissed. ( K.C. Puri ) 7.7.2010 Judge chugh