RSA No.3542 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3542 of 2009 Date of decision 16 .07.2010. Haryana State Agricultural Marketing Board and another ...... Appellants. versus Bhagwan Dass ...... Respondent. CORAM :- HON'BLE MR.JUSTICE K.C.PURI. Present : Mr. Ashish Phull, Advocate for the appellants. Mr. Vikash Sharma, Advocate and Mr. Vivek Singla, Advocate for the respondent K.C.PURI, J. This is an appeal directed by defendants-appellants against the judgment dated 3.2.2009 passed by Dr. Bharat Bhushan Parsoon, District Judge, Jind vide which the appeal preferred by the present defendants- appellants against the judgment dated 22.11.2007 passed by Shri Sanjay Khanduja, Civil Judge (Senior Division), Jind was dismissed. Bhagwan Dass filed a suit for declaration that he is entitled to be promoted as Arrival Recorder from 1.4.1982, the date vide which Shri Rattan Chand junior to him was promoted. The case of the plaintiff set forth in the plaint is that he is a RSA No.3542 of 2009 2 regular and permanent employee of the defendant No.1 now appellant and is working as Arrival Recorder in Market Committee, Jind. Initially, the plaintiff joined as peon in the office of Marketing Committee, Pillukhera and was promoted as Arrival Recorder vide order dated 29.6.1983. Rattan Chand junior to him was promoted on1.4.1982 although he joined the post of peon on 16.3.1981, much after the joining of the plaintiff. Similarly, Arjun Dev Grover, Clerk was allowed the Ist ACP scale of Rs.4000-6000 plus Rs.100/- as special pay w.e.f. 1.1.1996 despite the fact that he was junior to the plaintiff whereas the plaintiff has been wrongly and improperly placed in the scale of Rs.3050- 4590. The plaintiff has been ignored while promoting the junior and it has resulted in violation of fundamental right of equality. The type test was not pre-requisite requirement of the promotion as Arrival Recorder and as such the type test only a pretext to promote junior employees. The action of the defendant No.1 is discriminatory, arbitrary and against the rules of natural justice. The plaintiff made representation but without any success. Hence the suit. On put to notice, the defendants contested the suit and submitted that promotion was made on the basis of seniority-cum-merit which was adjudged on the basis of type test. The type test was made essential qualification for clerical post to measure the merit and the same was conducted on 15.2.1982 but the plaintiff did not appear in the said test and, therefore, he could not be promoted at that time. The plaintiff has no right of promotion as per his juniors because he had not appeared in the type test along with his juniors. Shri A.D.Grover is a direct appointee. So, he is entitled for first ACP whereas the plaintiff being the promotee is not RSA No.3542 of 2009 3 entitled for this benefit. Other allegations made have been controverted and prayer has been made for dismissal of the suit. Plaintiff did not file any replication. From the pleadings of the parties, following issues were framed:- 1. Whether the plaintiff is entitled to get the date of his promotion preponed from 29.06.1983 to 1.4.1982 ?OPP. 2. If issue No.1 is proved in affirmative, whether the plaintiff is entitled to first ACP scale and consequential relief as prayed for ? OPP. 3. Whether the suit is not maintainable in the present form ? OPD. 4. Whether the plaintiff is estopped by his own act and conduct from filing the present suit ?OPD. 5. Whether the suit is false, frivolous and vexatious and is liable to be dismissed with costs ?OPD. 6. Whether the suit is bad for want of legal notice under section 31 of the Punjab Agricultural Produce Markets At, 1961 ? OPD. 7. Relief. Plaintiff appeared as PW-2 and also examined PW-1 Roshan Lal Clerk and closed his evidence. In rebuttal, defendant examined Partap Singh Clerk as DW-1 and closed the evidence. The learned trial Court has taken issue Nos.1 and 2 together and returned the finding on both these issues in favour of the plaintiff. Issue Nos.3 to 6 were also decided in favour of the plaintiff and consequently the decree of declaration as prayed for was passed. Feeling dissatisfied with the above said judgment dated RSA No.3542 of 2009 4 22.11.2007 passed by Shri Sanjay Khanduja, Civil Judge (Senior Division), Jind, the present appellants/defendants filed appeal before the learned District Judge, Jind. The said appeal was heard by Dr.Bharat Bhushan Parsoon, District Judge, Jind and the appeal was dismissed with costs. Feeling dissatisfied with the above said judgment dated 3.2.2009 passed by learned District Judge, Jind and against judgment dated 22.11.2007 passed by Shri Sanjay Khanduja, Civil Judge (Senior Division), Jind, the present regular second appeal was preferred. Learned counsel for the appellants has submitted that as per Haryana State Agricultural Marketing Board Rules (hereinafter mentioned as the Rules), as per serial no.41, the promotion to Clerk/Arrival Recorder/care taker of the Market Committee can be ordered only in case the employee has passed the matriculation examination of recognized University and has the “knowledge of typing.” The type test was conducted on 15.2.1982, the plaintiff did not appear whereas Rattan Chand appeared. So, the plaintiff is not entitled for promotion as Arrival Recorder on 1.4.1982, i.e. on the date, his junior was promoted. It is contended that promotion is not automatic but on passing the type test. I have carefully considered the said submission but do not find any force in that submission. During the course of arguments, it is admitted that on 1.4.1982 although Rattan Chand appeared in the type test but he has not cleared the test and in spite of that he was promoted. Condition was laid down in his promotion order that he will pass the type test within six months. It is also RSA No.3542 of 2009 5 not disputed that Rattan Chand is junior to the plaintiff. Had Rattan Chand passed the type test, the matter would have been different. He was given time to pass the test while promoting him. The appellants cannot discriminate the similar situated employee for granting promotion as well as ACP. Both the Courts below have given a concurrent finding that plaintiff has been discriminated to his junior in respect of grant of promotion to Arrival Recorder as well as grant of ACP. That being a finding of fact cannot be interfered in the regular second appeal. Although number of questions of law have been raised in paragraph No.4 of the grounds of appeal but as a matter of fact, no question of law has arisen, much less the substantial question of law. In view of the above discussion, the appeal is without any merit and the same stands dismissed. A copy of this judgment be sent to the trial Court for strict compliance. July 16th , 2010 (K.C. PURI) sv JUDGE