RSA No.3413 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3413 of 2010 Date of decision 10.8.2011. State of Haryana and others ...... Appellants. versus Balbir Singh ...... Respondent. CORAM : HON'BLE MR. JUSTICE K.C.PURI Present : Mr. Rajive Malhotra, Additional Advocate General, Haryana for the appellant. Mr. Y.P.Singh, Advocate for the respondent. K.C.PURI . J. This is an appeal directed by defendants/appellant against the judgment and decree dated 6.2.2010 passed by Shri S.S.Lambba, District Judge, Rohtak vide which the appeal preferred by the plaintiff against the judgment and decree dated 17.7.2009 passed by Shri Vivek Yadav, Civil Judge (Junior Division), Rohtak was set aside and the suit of the plaintiff stood decreed with arrears for the period of 38 months prior to the date of filing of the suit i.e. 24.7.2004 along with interest @ 6% per annum from the date of decree of the trial Court till the date of recovery. 2. Briefly stated the facts are that plaintiff was initially appointed as Clerk on regular basis in the office of Deputy Commissioner, Rohtak and RSA No.3413 of 2010 2 he joined as such on 6.8.1964. The Finance Department Haryana invited the applications of the eligible candidates, who fulfilled the terms and conditions prescribed by the Finance Department for appearing in the Haryana State Subordinate Accounts Service examination. The plaintiff fulfilled the eligibility conditions for appearing in the said examination. On the basis of work and conduct of the plaintiff, the name of the plaintiff was recommended and submitted to the Finance Department by the Deputy Commissioner, Rohtak for the said examination and the plaintiff cleared the said examination in February 1983 and October 1987 respectively. On the passing of SAS examinations, the plaintiff was offered the post of Section Officer in SAS cadre by Director, Treasuries and Accounts vide its memo dated 8.9.1988 and accordingly the plaintiff joined as such on 14.9.1988. The post of Section Officer (SAS) is transferable and the plaintiff was posted in Rohtak Circle PWD Branch, Rohtak. The hierarchy of Haryana State Subordinate Accounts Service Cadre is as under:- 1. Section Officer 2. Accounts Officer 3. Senior Accounts Officer 4. Chief Accounts Officer. The hierarchy of the initial post of the plaintiff in the office of Deputy Commissioner, Rohtak is as under:- 1, Clerk 2. Assistant 3. Deputy Superintendent 4. Superintendent 3. It is further pleaded that Govt. of Haryana in Finance Department introduced Haryana Civil Services (Assured Career RSA No.3413 of 2010 3 Progression) Rules 1998 vide its notification dated 7.1.1998. As per Rule 5 of the Haryana Civil Service (Assured Career Progression) Rules, 1998, every Govt. Servant, who has completed 10 years regular satisfactory service and not got any financial up gradation in terms of grant of pay scale higher than the functional pay scale prescribed as on 31.12.1995 on which recruited as a direct recruited fresh entrance. (a) Either as a consequence of his functional promotion in the hierarchy or; (b) As a consequence of the revision of pay scale for the same post or; (c) As a consequence of any other event through which the functional pay scale of the post has been upgraded with respect to the functional pay scale prescribed for the post as on 31.12.1995 for the purpose of drawal of pay be eligible for placement into the first ACP scale with reference to him as per detail in schedule 1 Part II of the ACP Rules. 4. The explanation below Rule 5 clearly states that the Haryana Civil Service (Assured Career Progression) Rules, 1998 scale up gradation will come into play only if due to functional promotion or up gradation of scale on the same post as specified above, the Govt. servant has not got the benefit of at least on pay scale up gradation within the prescribed period of ten years or any other prescribed period for the grant of first Haryana Civil Services (Assured Career Progression) Rules 1998 scale or two such functional up gradation within a period of 20 years or within the period, RSA No.3413 of 2010 4 otherwise specified for the grant of second Haryana Civil Services (Assured Career Progression) Rules 1998 scale. If within ten years of service or within the prescribed period of service for the grant of first Haryana Civil Services (assured Career Progression) Rules 1998, the employee has already got at least one financial up gradation or within twenty years of service as the case may be or otherwise prescribed of service for the grant of second Haryana Civil Service (Assured Career Progression) Rules, 1998, scale the Government servant has already got at last two financial up gradation. The benefit of these rules will not be extended to such employee save if otherwise provided in these rules. Plaintiff was appointed to the Haryana State Subordinate Accounts Service cadre as Section Officer on 14.9.1988 and had completed ten years regular satisfactory service on 13.9.1998, accordingly, he is entitled for the first Haryana Civil Services (Assured Career Progression) Rule 1998 scale of Rs.6500-10500 w.e.f. 1.10.1998. Plaintiff made a representation to the defendant No.2 on 15.1.2003 for the grant of first Haryana Civil Services (Assured Career Progression) Rule 1998, scale of Rs.6500-10500 w.e.f. 1.10.2003 which was sent through proper channel vide endst.No.959 dated 15.1.2003, but the defendants finally refused to accepts the request of the plaintiff vide their letter dated 17.10.2003. 5. On notice, the defendants have appeared and filed written statement. In the written statement, the defendants have taken the preliminary objections that the suit of the plaintiff is not maintainable in the present form. The suit of the plaintiff is liable to be dismissed for suppuration of material facts from the court. The services of the plaintiff are RSA No.3413 of 2010 5 governed by the Rules and Regulation of Haryana State Accounts (Group C) service. The post of Section Officer is a promotional post. The recruitment for the said post is not a direct but the candidates are recruited amongst employees of Government of Haryana who fulfills the criteria laid down in the rules. The qualification and experience has been specified in Appendix B of service Rules, which is as under” Senior Auditor (Section Officer) From amongst officials of Haryana Government, who have passed both parts of the Haryana State Accounts Service Examination (Ordinary Branch) conducted by the Government in accordance with such regulations as may be framed by the Government in this behalf from time to time. 6. The persons appointed to the post of Section Officers are not first entrants amd have been given promotional post after qualifying Haryana State Subordinate Accounts Service Examination. It is clearly mentioned in Rule 7 “Recruitment to the service shall be made by promotion from amongst the candidates who have passed both the parts of the Haryana State Subordinate Accounts Service Examination (Ordinary Branch) conducted by the Government in accordance with such regulations as may be framed by the Government in this behalf from time to time.” So, the plaintiff has no cause of action to file the present suit. The rules relating to Haryana Civil Services (Assured Career Progression) Rules, 1998 scale are not applicable in the instant case and there is no dispute regarding the hierarchy in Haryana State Subordinate Accounts Service Cadre and clerk to superintendent but it is specifically denied that the post of Section Officer is not a promotional post actually the Government employees of Group (C) who are clerks and assistants are appointed on the said post which is of higher rank and scale after passing Haryana State Subordinate Accounts RSA No.3413 of 2010 6 Service Exams. It has been specifically made promotional post vide Rule 7 and in the event the work or conduct is not found satisfactory during probation, the concerned employee may be reverted to his former post as per Rule 8(2) and defendant also admitted that the plaintiff was initially appointed as clerk as a direct recruited fresh entrance and after qualifying Haryana State Subordinate Accounts Service Examination the plaintiff was promoted to the post of Section Officer. Therefore, there is no dispute regarding the Rule 5 of the Haryana Civil Services (Assured Career Progression) Rules 1998 but these are not applicable in the case of the plaintiff because plaintiff has already been promoted to the post of Section Officers and thus, he is not entitled for ACP scale. Upon the representations of the plaintiff, clarification was sought from the Government which vide its memo dated 29.7.2003 observed that selection of Section Officer is not a first appointment, but a promotion as per the provision of Service Rules. The provision of the Haryana Civil Services (Assured Career Progression) Rules, 1998 cannot be implemented for them and the plaintiff has misinterpreted the said letter pertains to the employees who have been directly recruited by way of open competition through HPSC/HSCC or any other recruitment agency approved by the competent authority. It has no relevance with the facts of the present case. 7. In replication, plaintiffs controverted all the allegations made in the written statement and reiterated the pleas taken in the plaint. 8. From the pleadings of the parties, following issues were settled for adjudication on 21.9.2005 :- 1. Whether plaintiff is entitled to first ACP scale w.e.f. 1.10.1998 alongwith interest @ 18 percent p.a.?OPP RSA No.3413 of 2010 7 2. Whether plaintiff is entitled to a decree for mandatory injunction as prayed for? OPD 3. Whether plaintiff has not come to the court with clean hands and suppressed the material facts from the court? OPD 4. Whether civil court has no jurisdiction to entertain and try the present suit? OPD 5. Whether the suit of the plaintiff is not maintainable in the present form? OPD. 6. Relief. 9. In order to prove it case, the plaintiff examined himself as PW1 and tendered affidavit Ex.PW1/A in his evidence. The defendants examined Joginder Singh Rana, Asstt. Treasury and Accounts Department, Chandigarh as DW-1. 10. The trial Court after hearing the learned counsel for the parties and after appraisal of the evidence, dismissed the suit of the plaintiff vide judgment and decree dated 17.7.2009. 11. Feeling dissatisfied with the aforesaid judgment and decree dated 17.7.2009, the plaintiff preferred First appeal before the learned District Judge, Rohtak, who after hearing the learned counsel for the parties vide judgment and decree dated 6.2.2010 accepted the appeal of the plaintiff. 12. Feeling dissatisfied with the aforesaid judgment and decree dated 6.2.2010, the defendants-appellants have preferred the present regular second appeal. 13. The appellants in paragraph No.11 of the grounds of appeal have mentioned that following substantial questions of law have arisen in RSA No.3413 of 2010 8 the present appeal :- i) Whether the judgment/decree passed by both the learned courts below is contrary to facts and law ? ii) Whether the plaintiff can be held entitled for the grant of benefit under Assured Career Progression (ACP) Rules despite the fact that section of plaintiff as Section Officer was not a fresh appointment but a promotion as per the provision of service rules ? Iii) Whether granting of benefits of ACP scales to the plaintiff are not against government instructions and rules ? iv) Whether the evidence has rightly been appreciated by the learned Ist Appellate Court ? v) Whether the judgment/decree passed by learned Ist Appellate Court is based on perverse findings ? 14. Learned counsel for the appellants has submitted that the trial Court has rightly dismissed the suit of the plaintiff. The First Appellate Court has decreed the suit of the plaintiff on the ground that the appointment of the plaintiff as Sectional Officer for SAS cadre is not promotional post. The benefit of ACP under Haryana Civil Service (Assured Career Progression) Rules 1998 can only be given as per Rule 5 of the Haryana Civil Service (Assured Career Progression) Rules 1998 to Public Servant , who has completed ten years regularly satisfactory service and has not got any financial up gradation in terms of grant of pay scale higher than the functional pay scale. This benefit is given to a person who is directly appointed as Section Officer. The benefit of that Rule cannot be allowed to the employees who have been promoted as Section Officer. He further contended that as per Rule 7 of the Haryana State Standard Accounts Group Service Rules, 1982 which may be the post of Section Officer after passing both the parts of the Haryana State Subordinate RSA No.3413 of 2010 9 Accounts Service Examination is a specifically promotional post and as the benefit of ACP has been wrongly allowed to the plaintiff by the First Appellate Court. 15. Counsel for the plaintiff/respondent has supported the judgment of the trial Court. 16. I have given my thoughtful consideration to the rival submissions made by both the sides and have gone through the records of the case. 17. The First Appellate Court has rightly observed that plaintiff was appointed as Clerk and in the hierarchy, his promotion could be that of Assistant and thereafter Deputy Superintendent and Superintendent etc. To join the service as Section Officer on SAS cadre, one has to clear the exams. So, it is the requirement of that post that employee must be Government servant. So, for all intents and purposes, the joining of plaintiff is as on direct post and not promotional post. 18. In view of the above circumstances, the Ist Appellate Court has rightly decreed the suit of the plaintiff. There is nothing on the file that judgment of Ist Appellate Court is contrary to the facts and law. It cannot be said that grant of benefit of ACP to the plaintiff is against the Government instructions and rules. The evidence has been rightly appreciated by the Ist Appellate Court. There is nothing on the file to show that judgment of the Ist Appellate Court is based upon perverse finding. 18. So, in view of the above discussion, the substantial questions of law raised by the learned counsel for the appellant are answered against the appellant. RSA No.3413 of 2010 10 19. Consequently, the appeal is without any merit and the same stands dismissed 20. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE August 10, 2011 sv