R.S.A. No. 1029 of 1991 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 1029 of 1991 (O&M) Date of decision: 23.04.2009 Pritam Singh ....appellant versus The State of Punjab ....respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. Mukesh Pandit, Advocate, for Mr. R.K. Dadwal, Advocate, for the appellant. Mr. R.L. Gupta, Addl. A.G., Haryana. *** VINOD K. SHARMA, J. (ORAL) This regular second appeal is directed against the judgment and decree dated 3.1.1991 passed by the learned Courts below vide which the suit filed by the plaintiff/appellant for declaration that he is entitled to be promoted to the post of Sub Divisional Clerk and further as Accounts Clerk from the dates junior to him shown at serial No. 153 to 167 of Annexure IV and seniority list of Accounts Clerks circulated vide order No. 579/6 NGE-11/2/47 dated 14.1.1985 were 854/78 promoted as Sub Divisional Clerks and Accounts Clerks, respectively, R.S.A. No. 1029 of 1991 (O&M) -2- with consequential relief of mandatory injunction directing the defendant/respondent to grant scale of Accounts Clerk i.e. Rs.570-1080 to the plaintiff w.e.f. the date juniors to him shown at serial No. 153 to 176 of Annexure IV in the seniority list dated 14.1.1985 were promoted as Accounts Clerks with consequential benefit, stands dismissed. The plaintiff brought a suit on the pleadings that he was apponted as Clerk on 6.5.1965. Thereafter, he was transferred to Shah Nahar Circle Talwara and promoted as Sub Divisional Clerk w.e.f. 6.3.1978 and was transferred to Kandi Circle Hoshiarpur as Sub Divisional Clerk/Senior Clerk on 22.7.1983. It was pleaded that the Chief Engineer, Irrigation Works, Punjab, Chandigarh, circulated seniority list of Accounts Clerks of Punjab Public Works Department, Irrigation Branch, vide his office order dated 14.1.1985. From the said seniority list, the plaintiff/appellant came to know that the persons shown at serial Nos. 153 to 167, who were junior to him, had already been promoted as Accounts Clerks in the year 1983, whereas plaintiff/appellant was still working as Sub Divisional Clerk/Senior Clerk. Plaintiff/appellant made representation to the Chief Engineer, but without any tengible result. The Chief Engineer sent letter to Superintending Engineer Kandi Canal Circle, Hoshiarpur dated 29.1.1987, wherein it was mentioned that as the plaintiff was promoted after 31.12.1977 as Senior Clerk/Sub Divisional Clerk as such, his name could not be included in the the list of qualified Sub Divisional Clerks. It was also stated therein that it was not in the notice of the plaintiff that the officials shown at serial Nos. 153 to 167 in the seniority list of the Accounts Clerks had R.S.A. No. 1029 of 1991 (O&M) -3- already been promoted as Sub Divisional Clerks before 31.12.1977, though the plaintiff was promoted in March 1978. It was further averred that the date of joining of some of the officials promoted as Accounts Clerks was subsequent to the date of qualifying the test of Sub Divisional Clerks by the plaintiff. The plaintiff claimed that such promotions could not be challenged for want of knowledge earlier, thus, he claimed that he be deemed to have been promoted from the date his juniors were so promoted, with all consequential benefit. The written statement was filed, wherein preliminary objections were raised, that the suit was liable to be dismissed for want of notice under Section 80 of the Code of Civil Procedure, that the suit is not maintainable, the suit was bad for mis-joinder and non-joinder of necessary parties and no cause of action accrued to the plaintiff, thus, it was claimed, that the suit be dismissed. On merits, it was admitted that the plaintiff was selected as Clerk through Subordinate Services Selection Board. It was also admitted that he was appointed as Clerk at Beas Dam Talwara where he joined on 6.5.1965 afternoon. His passing the departmental test on 6.5.1977 and promotion as Sub Divisional Clerk on 28.2.1978 was admitted. It was further pleaded that the seniority list of Accounts Clerks was tentative on which the objections were called for. It was claimed that the said seniority list was subsequently revised into one consolidated seniority on the basis of confirmation status of the officials in their respective cadre i.e. Accounts Clerks. The plaintiff was said to have not obtained the confirmation status in any capacity before the provincialisation of services, whereas persons shown at serial Nos. 153 R.S.A. No. 1029 of 1991 (O&M) -4- to 167 were promoted as Sub Divisional Clerks earlier to plaintiff in their respective circles prior to the provincialisation of the services. The consolidated seniority of Accounts Clerks was issued by the department on 18.12.1986, and after considering the objections and the representations received, the persons shown at serial Nos. 157, 159, 160 and 161, out of the persons shown at serial Nos. 153 to 167 were eliminated while issuing revised seniority list. It was claimed that the persons shown senior to the plaintiff/appellant were promoted as Sub Divisional Clerks prior to 1.1.1978, whereas plaintiff was promoted as Sub Divisional Clerk on 6.3.1978 i.e. after 1.1.1978 and it was for that reason, that his case could not be considered. Plea was also raised that the earlier seniority list was cadre-wise prior to provincialisation of cadres and, thus, it was claimed that the suit deserved to be dismissed. The learned Courts below have been pleased to hold that the suit filed by the plaintiff was not maintainable, as it was bad for non- joinder and mis-joinder of necessary parties, as the alleged juniors to the plaintiff/appellant were not impleaded as party. It was also held that the plaintiff is not entitled to declaration prayed for, as he had failed to lodge any objection to the seniority circulated. The learned Courts below were pleased to hold that the seniority of Accounts Clerks was fixed by giving preference to permanent Accounts Clerks first, then SDC and permanent Clerks and lastly Clerks Account officiating and the plaintiff did not appear in such seniority list. The learned counsel for the appellant contends that this appeal raises the following substantial question of law: - "Whether the judgment and decree passed by the R.S.A. No. 1029 of 1991 (O&M) -5- learned Courts below is outcome of mis-reading of evidence on record, thus, perverse?" In support of the substantial question of law, the learned counsel for the appellant contends that the learned Courts below failed to notice, that there was no dispute that the persons who were retained finally in the category of Accounts Clerks from persons shown at serial Nos. 153 to 167, were, in fact, junior to the plaintiff/appellant, having been appointed after the plaintiff had passed the departmental test. The learned Courts below further failed to notice that they got benefit of promotion as SDC prior to the plaintiff/appellant, only because seniority was maintained circle-wise, therefore, the plaintiff/appellant did not have any occasion to challenge the said seniority till the time the cadres were provincialised, and a joint seniority list was prepared. The plaintiff/appellant had thereafter immediately represented and his representation was duly recommended and sent to the Superintending Engineer, but was wrongly rejected. It is also the contention of the learned counsel for the appellant that the plaintiff/appellant had not challenged the seniority list of persons named at serial Nos. 153 to 167, but merely claimed his right of consideration from the date his juniors were promoted, after correcting the seniority list, therefore, those persons could not be said to be necessary or proper party to the case. The finding of the learned Courts below holding the suit to be bad for non-joinder of necessary parties deserves to be set aside. The regular second appeal was ordered to be admitted to await R.S.A. No. 1029 of 1991 (O&M) -6- the decision of this Court in Letters Patent Appeal No. 1198 of 1981. It transpires that the point raised in the civil suit was subject matter of dispute before this Court in civil writ petition No. 1874 of 1981, which was decided in favour of the petitioners therein. The State had chosen to file Letters Patent Appeal, though the said appeal stood dismissed on August 26, 1985, it seems that the parties and this Court was not aware of the decision. It was in this situation that appeal was admitted, and was ordered to be listed after decision in LPA. The order passed in Letters Patent Appeal by this Court read as under: - "The State of Punjab and another have filed this appeal under Clause X of the Letters Patent against the judgment of a learned Single Judge of this Court dated Ist September, 1981, by which C.W.P. No. 1874 of 1981, filed by the respondents was allowed with costs and the appellants were directed to prepare seniority list pertaining to the cadre to which the respondents belong and pass the promotion orders in accordance with law keeping in view also the decision of the State Government and in accordance with the provisions of the Punjab Civil Services (Revised Scale of Pay) Rules, 1979. It is not necessary to state the facts as Mr. A.S. Sandhu, learned Additional Advocate-General Punjab, has very fairly stated at the bar that he has nothing to urge as he is unable to assail the correctness of the judgment under appeal. Consequently, the appeal is dismissed but without there being any order as to costs." Thus, it would be seen that this Court had already directed the respondent/defendant to prepare seniority list pertaining to the cadre and R.S.A. No. 1029 of 1991 (O&M) -7- pass promotion orders in accordance with law, keeping in view the provisions of the Punjab Civil Services (Revised Scale of Pay) Rules, 1979. In view of the decision by this Court in Letters Patent Appeal, referred to above, the judgment and decree of the learned Courts below cannot be sustained. Consequently, the substantial question of law raised is answered in favour of the appellant, and the suit filed by the plaintiff/appellant is decreed to the extent that the defedants should consider the claim of the appellant for promotion from the date his juniors have been promoted in accordance with law and grant him all consequential benefits, if he is entitled to promotion, keeping in view the order passed by this Court in CWP No. 1874 of 1981 titled as Gurmeet Ram and others Vs. State of Punjab and another decided on 1.9.1981. Appeal allowed. (Vinod K. Sharma) Judge April 23, 2009 R.S.