R.S.A.No. 2913 of 2006 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 2913 of 2006 (O&M) Date of decision: 23.12.2009 M.L.Ahuja ......Appellant Versus State of Punjab and another .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.B.K.Sharma, Advocate, for the appellant. Mr.J.S.Sandhu, AAG, Punjab. **** SABINA, J. Plaintiff-appellant filed a suit for declaration and mandatory injunction, which was dismissed by the Civil Judge (Jr.Divn.), Chandigarh vide judgment and decree dated 9.6.2004. In appeal, the said judgment and decree were upheld by the District Judge, Chandigarh vide judgment and decree dated 8.2.2006. Hence, the present appeal. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 and 3 of its judgment, are as under:- “2. Briefly stated the case of the appellant plaintiff R.S.A.No. 2913 of 2006 (O&M) 2 M.L.Ahuja as pleaded in the plaint is that the plaintiff belongs to pre-organisation period as he joined the office of defendant No.2 as Clerk on 20.8.1996. He got many promotions during his service career. He was promoted as Assistant Registrar w.e.f 6.1.1995 from the post of Personal Assistant (Legal) vide order dated 4.1.1995. He has rendered more than 35 years service in the office of defendant No.2. He has been suffering great injustice since he was promoted as P.A. (Legal) w.e.f. 16.3.1990. His pay parity case with the post of Private Secretary/Superintendent (Legal) was rejected though the Government upgraded the post of P.A.(Legal) before his appointment. He was promoted as Assistant Registrar after rendering 4 years and 9 months service whereas, his predecessor was promoted with 3 years service as Superintendent. He suffered big jolt of discrimination when his case for the post of Assistant Advocate General (AAG) was rejected on 19.10.1998 despite the fact that earlier ARs had got promotions as AAG as well as DAG. The post of A.R. Came into existence in the office of defendant No.2 in July, 1969 and the officers namely Sh.Dalip Singh, Harbhajan Singh, Gurdev Singh Dhaliwal, Sh.M.L.Ahuja, plaintiff have been appointed/promoted as A.R. till date. Sh.Dalip Singh Brar and Harbhajan Singh R.S.A.No. 2913 of 2006 (O&M) 3 were promoted as AAG on 14.7.1976 and 21.1.1998 respectively. Dalip Singh was further promoted as Deputy Advocate General, Punjab. Sh.Gurdev Singh Dhaliwal, A.R. being only graduate was not eligible for the post of Assistant Advocate General and his name was never considered during his service. He retired as A.R. on 31.1.1993. There are no service rules framed by the Government for the recruitment on the post of Law Officers i.e. AAG, DAG, Senior DAG when the earlier ARs were promoted as AAG as well as at the time of rejection of claim of plaintiff for the said post. The name of plaintiff was forwarded with the strong recommendations to the defendant No.1 by the defendant No.2 vide letter dated 31.8.1998 on the basis of earlier precedents especially when the vacant post of AAG was available but the defendant No.1 vide letter dated 9.10.1998 rejected the same on erroneous grounds i.e. there were already excess number of law officers in the office; there were no service rules for promotion of the plaintiff within the office and that the plaintiff did not possess the Bar Council Licence. After rejection of plaintiff's claim the defendant No.1 made appointments to the post of AAG/DAG on 15.10.1999. The process of appointment is still continuing whereas the claim of the plaintiff is being ignored. No R.S.A.No. 2913 of 2006 (O&M) 4 Government Employee is entitled to be enrolled as Advocate without the prior sanction of the Government but one must have the requisite qualification for being enrolled as advocate which the plaintiff is possessing. The plaintiff made several representations to the defendants requesting promotion on the basis of precedents, equity and justice but to no avail the plaintiff was conveyed the decision of the Government dated 9.10.1998 and 13.11.1998, which is illegal, arbitrary and discriminatory in nature. Plaintiff be deemed to have been promoted/appointed as Assistant Advocate General w.e.f. 15.10.1999 when the defendant No.1 made appointments of AAG/DAG. The plaintiff served the defendants with legal notice under section 80 CPC but no reply was received. Hence, this suit. 3. The suit was contested by the defendants by taking preliminary objections that the suit is not maintainable; the suit is beyond limitation as the plaintiff was promoted by giving relaxation of experience on 6.1.1995 and the present suit has been filed after the expiry of three years; this Court has no jurisdiction to try the present suit. The plaintiff does not fulfil the basic requirement to the post of Assistant Advocate General as he was not having a Bar Council Licence. There is no R.S.A.No. 2913 of 2006 (O&M) 5 promotion channel in the service rules of the plaintiff to the post of Assistant Advocate General. On merits it is pleaded that the defendants are not bound to follow wrong precedents of earlier appointment of Dalip Singh Brar and Harbhajan Singh Sital to the post of AAG as the same were against the law. So the plaintiff has no right to be promoted to the post of AAG. It is submitted that few appointments to the post of AAG/DAG were made of some eligible candidates. The post of Assistant Registrar is not the feeding cadre for the post of AAG and there are no rules under which Assistant Registrar can be promoted to the post of AAG. Gurdev Singh Dhaliwal was not appointed to the post of AAG. The appointments of Law Officers i.e. AAG/DAG and senior DAG are made on contractual basis and their services are governed by terms and conditions prescribed by the Government from time to time. The post of AAG is not a promotion post from the Assistant Registrar. For the post of AAG, the licence of Advocate from the Bar Council is a pre- requisite qualification and the plaintiff did not possess the Bar Council Licence. The plaintiff has submitted only one representation which was rightly rejected by the defendants. The claim of the plaintiff is baseless. Other averments made in the plaint were denied and R.S.A.No. 2913 of 2006 (O&M) 6 controverted by the defendants and it was prayed that the suit be dismissed.” On the pleadings of the parties, following issues were framed by the trial Court:- 1. Whether the plaintiff is entitled for declaration as prayed for ? OPP 2. Whether the plaintiff is entitled for mandatory injunction as prayed for ? OPP 3. Whether the suit of the plaintiff is not maintainable ? OPD 4. Whether the suit of the plaintiff is beyond limitation ? OPD 5. Whether the suit of plaintiff is bad for his own act and conduct ? OPD 6. Whether the civil Court has no jurisdiction to entertain the suit of the plaintiff? OPD 7. Relief After hearing learned counsel for the parties, I am of the opinion that the present appeal deserves to be dismissed. The plaintiff had filed a suit for declaration challenging the order vide which his claim for promotion to the post of Assistant Advocate General, Punjab was rejected. The plaintiff claimed that he was deemed to have been promoted/appointed as Assistant Advocate General, Punjab w.e.f.15.10.1999. The case of the plaintiff R.S.A.No. 2913 of 2006 (O&M) 7 further was that his case for promotion to the post of Assistant Advocate General, Punjab had been recommended by the Advocate General, Punjab. Despite the said fact, promotion to the post of Assistant Advocate General, Punjab had been declined to the plaintiff. It is a settled proposition of law that mere recommendation does not give any right for appointment to the said post. Learned counsel for the appellant has failed to point out any rules regarding the appointment of Assistant Advocate General, Punjab from the post of Assistant Registrar on the basis of promotion. The plaintiff had also placed reliance on the promotion of Dalip Singh Brar and Harbhajan Singh Sital to the post of Assistant Advocate General, Punjab. According to the plaintiff, he was similarly situated as Dalip Singh Brar and Harbhajan Singh Sital. However, learned State counsel has submitted that the said persons were not appointed on the basis of promotion but had been directly appointed to the post of Assistant Advocate General, Punjab. Learned counsel for the appellant has failed to convince me that Dalip Singh Brar and Harbhajan Singh Sital had been promoted to the post of Assistant Advocate General, Punjab by way of promotion. Assuming that the said persons were promoted without there being any rules in this regard, the illegality committed by the defendants does not give a right to the plaintiff to claim promotion on the basis of precedent. In the absence of any rules for promotion of an Assistant Registrar to the post of Assistant Advocate General, Punjab, the R.S.A.No. 2913 of 2006 (O&M) 8 plaintiff cannot be considered for promotion to the post of Assistant Advocate General, Punjab. In these circumstances, the Courts below had rightly dismissed the suit of the plaintiff. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE December 23, 2009 anita