R.S.A. No. 1261 of 2003 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 1261 of 2003(O&M) Date of decision: 3rd August, 2009 Punjab State Electricity Board, Patiala and another ......Appellants Versus Jagjit Singh ......Respondent Before: HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr. M.S.Khaira, Sr. Advocate with Mr. Dharminder Singla, Advocate for the appellants. Mr. A.K.Walia, Advocate for the respondent. RAJIVE BHALLA, J. The appellants Electricity Board challenges the judgment and decree dated 11.12.2002, passed by the District Judge, Bathinda, allowing the appeal filed by the respondent and as a result setting aside the judgment and decree dated 19.09.2000, passed by the Additional Civil Judge(Senior Division) Bathinda. The plaintiff-respondent filed a suit for declaration on 1.06.1996, praying that he is entitled to a deemed date of R.S.A. No. 1261 of 2003 2 promotion as Circle Assistant w.e.f. 13.10.1989, and is also entitled to further promotion as head office assistant/head clerk from the date his juniors were promoted. It was also prayed that monetary benefits be allowed with 18% interest. The respondent pleaded that he joined the Electricity Board on 4.10.1974 as a upper division clerk and was placed at seniority no. 1836. He was dismissed from service on 8.05.1984 but was given a fresh appointment as an upper division clerk on 11.07.1986. He challenged the orders of his dismissal and fresh appointment by way of a civil suit which was decreed in his favour on 23.12.1989 by declaring him to be in continuous service as an upper divison clerk. The appeal filed by the Board was dismissed by the District Judge, Bathinda on 8.01.1992. Vide office order dated 17.12.1992, he was granted all service benefits except promotion. It was further pleaded that the respondent was entitled to promotion from the date when his juniors were promoted. In response to the averments in the plaint, the appellants alleged that the respondent was offered promotion to the posts of ARA and Circle Assistant vide office orders dated 3.09.1996 and 27.09.1996. However, as the respondent declined this offer, his case for promotion can only be considered after three years but not from the dates his juniors were promoted. On the basis of the pleadings, the learned trial court framed the following issues: “1. Whether the plaintiff is entitled to R.S.A. No. 1261 of 2003 3 promotion w.e.f. 13.10.1989 on the grounds mentioned in the plaint?OPP 2. Whether this Court does not have the territorial jurisdiction to entertain and try the suit?OPD 3. Relief.” After considering the pleadings, the evidence on record and the arguments addressed, the learned trial court held that the civil suit is not maintainable as the relief for consequential benefits, granted in the earlier suit, includes the relief of promotion from the date his juniors were promoted. It was, however, held that the fact that the respondent had forgone his promotion offered on 3.09.1996 and 27.09.1996 vide letters Ex.D5 and D-6 respectively, had no bearing on his right to be considered for promotion from the date his juniors were promoted. Aggrieved by the aforementioned judgment and decree, the respondent filed an appeal. Vide judgment and decree dated 11.12.2002, the District Judge, Bathinda, accepted the appeal, set aside the judgment and decree passed by the trial court and decreed the suit. The first appellate court held that pursuant to the judgment and decree dated 23.12.1989, the respondent was entitled to all service benefits including the grant of promotion w.e.f. 13.10.1989, the date when his juniors were promoted. It was also held that in this view of the matter, the R.S.A. No. 1261 of 2003 4 respondent could not be offered promotion from 30.09.1996 and 11.10.1996. It was also held that therefore, the appellant could not have been denied relief as he had forgone the promotion offered vide office orders dated 3.09.1996 and 27.09.1996. It was also held that the suit could not be dismissed for failure of the respondent to implead his juniors as the matter of seniority was not in dispute. Counsel for the appellants, submits that as the respondent declined the offer for promotion, he is not entitled to seek a deemed date of promotion i.e., promotion from the date his juniors were promoted. It is further argued that in view of the decision of the Board dated 25.05.1986, if an employee forgoes his promotion to the next higher rank, he is debarred from being considered for promotion, for a period of two years. It is argued that in view of these instructions, the first appellate court committed an error in decreeing the suit and directing the appellants to consider the respondent's case for promotion w.e.f. 13.10.1989. Counsel for the respondent submits that the impugned judgment does not suffer from any error, as would raise a substantial question of law. It is argued that the responent is entitled to a deemed date of promotion, in view of the earlier judgment and decree. The appellants, however offered promotion to the respondent from 30.09.1996 and 11.10.1996, after the filing of the suit and the respondent was justified in refusing to accept these illegal offers of promotions. R.S.A. No. 1261 of 2003 5 I have heard counsel for the parties, perused the impugned judgment and the question of law framed by counsel for the appellants which reads as follow:- “Whether an employee who foregoes his promotion would also forego his right to a deemed date of promotion namely right to be promoted from the date his juniors were promoted?” A due consideration of the controversy leads me to a singular conclusion that in the facts and circumstances of the present case, the appellants are not entitled to assert that as the respondent has foregone his right to promotion, he would not be entitled to claim promotion from the date his juniors were promoted. A decree dated 8.01.1992, was passed, holding that the respondent's dismissal from service and his fresh appointment are null and void. The appellants were directed to grant all consequential benefits. Inherent in this decree was a direction to consider the respondent's case for promotion. During the pendency of the earlier suit and appeal, the respondent's juniors were promoted. However, while granting him all other benefits , the appellants did not consider, the respondent's claim for promotion much less from the date his juniors were promoted, compelling the respondent to file the present suit on 1.06.1996. After the filing of the suit the appellants' passed R.S.A. No. 1261 of 2003 6 orders dated 3.09.1996 and 27.09.1996 promoting the respondent as an A.R.A and a Circle Assistant, respectively from these dates. It appears that this order was passed, with intent to defeat the respondent's claim. The respondent, declined this offer on account of the pendency of the suit and the earlier inter- parties decree, that had attained finality. The departmental instructions, in my opinion do not apply to the instant case and cannot be pressed into service to assert that the respondent, is disqualified from being considered for promotion from the date his juniors were promoted. At no stage of the proceeding, have the appellants' alleged that the respondent is not entitled to be considered for promotion. Their only assertion is that as the respondent gave up his right to promotion, he cannot be considered for promotion for a period of two years and as a consequence from the date his juniors were promoted. The two situations are entirely different. The right to be considered for promotion from the date his juniors were promoted, has no nexus with the consequence of refusal to accept the offer of promotion which was contrary to the earlier judgment and decree. It would be necessary to mention here that the orders promoting the respondent as an A.R.A and a circle assistant were passed during the pendency of this suit by disregarding the inter parties judgment and decree dated 23.12.1989, which required the appellants' to grant all consequential benefits. Consequently, I have no hesitation in holding that the question of law as framed by counsel for the R.S.A. No. 1261 of 2003 7 appellants does not apply to the present case and the refusal of the respondent's to accept the offer of promotion, would not disentitle him to be considered for promotion from the date his juniors were promoted. In view of what has been stated hereinabove, the appeal is dismissed with no order as to costs. [RAJIVE BHALLA] JUDGE 3rd August, 2009 SKaushik