Regular Second Appeal No.2693 of 1998. -1- In the High Court of Punjab and Haryana at Chandigarh. Regular Second Appeal No.2693 of 1998. Date of decision:4-4-2008 State of Haryana. ...Appellant. Versus Smt.Veena Nand Kishore. ...Respondent. ... Coram: Hon'ble Mr. Justice K. C. Puri. ... Present: Mr. M. S. Sindhu, DAG Haryana. Mr. A.S.Chadha, Advocate with Mr. S.S.Walia, Advocate for the respondent. ... K. C. Puri, J. Judgment. Veena Nand Kishore plaintiff filed a suit for a declaration to the effect that decision of defendant No.2 communicated vide letter dated 15.11.1995 was illegal, arbitrary, unjust, discriminatory and, therefore, not binding on her rights. The plaintiff filed the suit on the averments that she was married to Nand Kishore who was lastly posted as Lt. Col. in the Indian Army and lost his life on 13.6.1982 in an accident and, thus, she Regular Second Appeal No.2693 of 1998. -2- became a widow in the prime of her life and came to reside at Faridabad and took up a job of a teacher in Apeejay School, Faridabad. The Central as well State Governments took up a joint venture to provide relief and rehabilitation to the widows and dependents of the ex-servicemen who die on duty and for that purpose, the Director General, Resettlement, Ministry of Defence, Government has set up Kandriya Sainik Board which works under the direct control and supervision of the Ministry of Defence and that the State Government has constituted Boards known as Rajya Sainik Board at the State level and Zila Sainik Board at the District level. A post of Assistant Project Officer and Clerk in the Zila Sainik Board was created. She applied for the same and was appointed in the pay scale of Rs.2000-3200 vide appointment letter dated 1.12.1989. Right from the day of her appointment, she was working efficiently, diligently and has rendered more than five years of service with an unblemished record. Vide letter dated 15.11.1995, the defendant No.2 communicated to the Deputy Commissioner-cum-Collector, Faridabad the decision to abolish the post of Assistant Project Officer in Zila Sainik Board. The plaintiff challenged the said decision on various grounds. Defendant Nos.1 to 3 repudiated the averments of the plaintiff. Besides taking some preliminary objections, they pleaded that the post of Assistant Project Officer was created only when the work could not be managed with the existing staff of Zila Sainik Board and Regular Second Appeal No.2693 of 1998. -3- extension was granted to the said post from time to time on yearly basis. The suit was barred by the rule of estoppel as the Government had the right to abolish the post as per existing circumstances. It was, however, admitted that PEXSEM Scheme was still in operation and that the plaintiff had served for more than five years and there was nothing on record against her. On the pleadings of the parties, the trial Court framed the following issues:- 1.Whether the impugned order dated 15.11.1995 is illegal, arbitrary etc. as alleged?OPP. 2.Whether the suit is bad for want of notice under Section 80 CPC, as alleged?OPD. 3.Whether the suit is bad for mis joinder and non joinder of parties, as alleged?OPD. 4.Relief. The trial Court decided all the issues in favour of the plaintiff and against the defendant. As a result thereof, the suit of the plaintiff was decreed, vide judgment and decree dated 26.4.1996. The State of Haryana filed an appeal which was dismissed by the then Additional District Judge, Faridabad vide judgment and decree dated 21.4.1998. Feeling dis-satisfied with the said judgment and decree, the State of Haryana, defendant has filed the instant appeal in this Court. Regular Second Appeal No.2693 of 1998. -4- The plaintiff filed another suit for declaration to the effect that the order of termination of her services vide memo dated 15.7.1998 was illegal, arbitrary, mala fide and not binding on her and to the effect that she continues to be in service of Zila Sainik Board, Faridabad and was entitled to entire salary, emoluments, perks, increments and all other service benefits from the date of termination till the order of reinstatement and for permanent injunction. The said suit was also resisted by the defendants. The trial Court framed seven issues. After giving findings on different issues, the learned trial Court vide judgment and decree dated 6.11.2004 decreed the suit of the plaintiff. ` The defendants of that suit filed an appeal which was accepted by the then Additional District Judge, Faridabad vide judgment and decree dated 25.3.2005 and the suit of the plaintiff was dismissed. Feeling aggrieved, the plaintiff has filed Regular Second Appeal No.1423 of 2005 in this Court. The plaintiff also filed COCP No.419 of 2004 under Section 2(b) read with Section 12 of the Contempt of Courts Act, 1971 for initiating contempt proceedings against the respondents A.N.Mathur, Chief Secretary, Government of Haryana, Chandigarh, Brig. Sher Singh, Secretary, Rajya Sainik Board, Sector 12, Panchkula and Maj. R.K.Sharma, Secretary, Zila Sainik Board, Sector 16, Regular Second Appeal No.2693 of 1998. -5- Faridabad. Since common questions of fact and law are involved in all these three cases, by consent of learned counsel appearing on both sides, they are being disposed of by this common judgment. However, facts are being extracted from Regular Second Appeal No.2693 of 1998. I have heard learned counsel for the parties and have gone through the record of the case. So far as C.O.C.P.No.419 of 2004 under Section 2(b) read with Section 12 of the Contempt of Courts Act, 1971 for initiating contempt proceedings is concerned, Smt.Veena Nand Kishore has received an amount of Rs.7,60,781/- after deducting income tax of Rs.40,000/- vide cheque No.096535 dated 20.4.2004 against her monthly pay and allowances from 16.7.1998 to 31.3.2004 as ordered in Regular Second Appeal No.2693 of 1998. So, the order of the High Court stands complied with. Otherwise also, no argument has been addressed on the C.O.C.P. and as such the same stands dismissed. First of all, I shall take up Regular Second Appeal No.2693 of 1998. Mr. Sindhu, DAG has submitted that the following substantial questions of law have arisen:- 1. Whether both the Courts below could ignore the judgment of Division Bench of this Court in Civil Writ Regular Second Appeal No.2693 of 1998. -6- Petition No.17496 of 1995 Ombir Singh Versus State of Haryana and others and in Civil Writ Petition No.17437 of 1995 titled Ris.Maj. Balbir Singh Dhanda (Retd.) Versus Union of India and others in which the order of termination of Assistant Project Officers including that of plaintiff dated 15.11.1995 was not set aside? 2. Whether the plaintiff has got any right to remain in service after 15.11.1995 or at the most after 31.3.1996 when the PEXSEM Scheme lapsed? Learned counsel for the State has submitted that it is an admitted case of the parties that the plaintiff Ombir Singh and Major Balbir Singh were appointed as Assistant Project Officers under PEXSEM Scheme. The said scheme was controlled and supervised by the Director General of Re-Settlement under the Ministry of Defence, through Rajya Sainik Board. The said scheme was sponsored and implemented by the Central Government with the assistance of State Government. The said scheme was extended on year to year basis. Secretary, Rajya Sainik Board, vide letter No.35/5/PEX/94-95/113 dated 15.11.1995 abolished the post of Assistant Project Officers at Bhiwani, Jind and Faridbad. The plaintiff was working as Assistant Project Officer at Faridabad whereas two other persons were appointed as Assistant Project Officers in Bhiwani and Jind. Later two Assistant Project Officers challenged the said order by filing Civil Writ Petition Regular Second Appeal No.2693 of 1998. -7- Nos.17496 of 1995 titled Ombir Singh Versus State of Haryana and others and 17437 of 1995 titled Ris.Maj.Balbir Singh Dhanda (Retd.) Versus Union of India and others. These writ petitions were diposed off vide judgments dated 1.12.1995 and 22.1.1996 respectively directing the State Government to consider their cases for absorption within six months but not granting any relief regarding setting aside the order dated 15.11.1995. Veena Nand Kishore,plaintiff filed civil suit for declaration and injunction on 25.11.1995, challenging the order dated 15.11.1995. Both these orders dated 1.12.1995 and 22.1.1996 were placed on the file of trial Court as well as first Appellate Court. In the grounds of appeal also, it was pleaded that since Division Benches of Punjab & Haryana High Court has dismissed both Civil Writ Petition Nos.17496 of 1995 and 17437 of 1995, referred to above, as such the first Appellate Court cannot hold the order dated 15.11.1995 as illegal. Both the Courts below have declared order dated 15.11.1995 illegal on the ground that the same had been passed by Secretary, Zila Parishad, Haryana without the permission of the State Government. It is submitted that permission of the State Government was obtained prior to the passing of the order dated 15.11.1995. Moreover, since the Division Benches of our own High Court have ultimately held the order dated 15.11.1995 as legal and as such the first Appellate Court should have accepted the appeal of the appellant and set aside the judgment dated 6.11.2004 passed by Regular Second Appeal No.2693 of 1998. -8- the trial Court. It is further submitted that even according to the document Exhibit P5, produced by the plaintiff herself, PEXSEM Scheme was extended up to 31.3.1996. There is not a single document on the file to warrant conclusion that after 31.3.1996, the scheme under which the plaintiff and other two Assistant Project Officers were appointed was extended by any competent authority. The appointment letter, Exhibit P-1, clearly shows that the plaintiff had been appointed as Assistant Project Officer in Zila Sainik Board, Faridabad in PEXSEM Scheme on temporary basis. Since the scheme was not extended after 31.3.1996, the trial Court should have dismissed the suit of the plaintiff on that sole ground. The point of discrimination was raised by the plaintiff before both the Courts below, but that did not find favour with the trial Court as well as first Appellate Court. That being a finding of fact, cannot be interfered with in the Regular Second Appeal. Prayer has been made for acceptance of appeal and for setting aside the judgments of both the Courts below and for dismissing the suit of the plaintiff. The learned counsel for the appellant has further submitted that the plaintiff has drawn the salary up to August, 2004 under the orders of the Hon'ble High Court. The plaintiff is liable to refund the said amount. Otherwise also, after 2004, the plaintiff went abroad many times and in the last two years, she has not worked with the appellant. In reply to the above submissions, the learned counsel for Regular Second Appeal No.2693 of 1998. -9- the plaintiff has supported the judgments of both the Courts below. It is submitted that both the Courts below have returned concurrent finding that no permission of the State Government was obtained before abolishing the post on 15.11.1995. That being a finding of fact, cannot be interfered with. So far as the submission made by the State counsel that both the Courts below could not decree the suit of the plaintiff on account of Civil Writ Petition Nos.17496 of 1995 and 17437 of 1995 is concerned, the plaintiff was not a party in those writ petitions and as such decision in those writ petitions is not binding on the plaintiff. It is further submitted that in the said writ petitions, it was not adjudicated upon that order dated 15.11.1995 vide which the services of the plaintiff and other two Assistant Project Officers at Bhiwani and Jind were terminated was passed prior to the obtaining of permission of the State Government. Admittedly, the posts of Assistant Project Officers at Faridabad, Bhiwani and Jind were created by the State Government and only the State Government can abolish the said posts. So far as the submission made by Mr. Sindhu to the effect that since PEXSEM Scheme has lapsed on 31.3.1996 is concerned, that submission also cannot be accepted. Since the termination order dated 15.11.1995 is bad and as such the plaintiff would be deemed to be in service till her retirement which is due in the month of April, 2008. The appellant has not allowed the plaintiff to work after 2006 and she is entitled to the salary till her retirement with all consequential benefits Regular Second Appeal No.2693 of 1998. -10- till April, 2008. It is further submitted that although both the Courts below have not accepted the plea of plaintiff regarding discrimination but the fact remains that the Division Benches of the Punjab & Haryana High Court in Civil Writ Petition Nos.17496 of 1995 and 17437 of 1995 have ordered the State Government to consider the case of petitioner Ombir Singh and Ris.Maj. Balbir Singh Dhanda, respectively for their appointment/absorption with the State Government. Ombir Singh has been absorbed in the Agriculture Department. So, the plaintiff has been discriminated. Therefore, the findings of both the Courts below that there is no discrimination are liable to be set aside. It is further submitted that the State of Haryana filed S.L.P. in the Hon'ble Supreme Court of India challenging the order of the High Court for payment of dues to the plaintiff. In that petition, the State of Haryana has taken the plea that the judgments of both the Courts below are faulty on the ground that both of them have not taken into consideration the orders dated 1.12.12995 and 22.1.1996 passed in Civil Writ Petition Nos.17496 of 1995 and 17437 of 1995 but their plea did not find favour. So, the appellant cannot raise the same point again. It is further submitted that the department/State of Haryana is deadly against the appellant. Not only she had been harassed but her services were again terminated on 15.7.1998 on the ground that PEXSEM Scheme has lapsed in the year 1996. That order, according to Regular Second Appeal No.2693 of 1998. -11- the appellant, has been passed after obtaining permission of the Government. The plaintiff has challenged the said order in the second suit. That suit was decreed by the trial Court but the first Appellate Court accepted the appeal of the appellant and the plaintiff has filed Regular Second Appeal No.1423 of 2005. The learned counsel for the respondent has relied upon the following authorities:- 1. Avtar Singh and others Versus The State of Punjab and others, 1998(3) Services Law Reporter 646. 2. Dr.K.K.Chakrabarti Versus West Bengal Electronics Industry Department Corporation Limited and others, 1996(8) Services Law Reporter 122. 3. Union of India & Ors. Versus Subir Kukharji & Ors., 1998(2) Services Law Reporter 718. 4. State of Punjab & Ors. Versus Gursharan Singh & Ors., 1997(1) Services Law Reporter 138. 5. Anup Singh, Head Draftsman, Zila Parishad Versus The State of Haryana and others, 1969 S.L.R. 850. 6. Yogender Prasad Versus State of Manipur, 2000 (5) SLR 213. 7. Vishvanath Vairupathi Kittur Versus State of Gujarat and another, 1978(1) SLR 431. Regular Second Appeal No.2693 of 1998. -12- 8. Dr.Prem Behari Lal Saxena v.State of Uttar Pradesh and another, AIR1965 Allhabad 406. 9. State of Haryana v. Shri Des Raj Sangar and another, AIR 1976 Supreme Court 1199. I have carefully considered the submissions made by both sides and have gone through the record of the case. Admittedly, the plaintiff was appointed as Assistant Project Officer under the PEXSEM Scheme on temporary basis and the plaintiff has herself produced her appointment letter, as Exhibit P-1. In that letter, it has been mentioned that the plaintiff has been appointed on temporary basis for PEXSEM Scheme. It is also not disputed that the said scheme was extended from time to time and the last extension to the said scheme was for the year 1995-96 as is clear from the letter, Exhibit P-4. Exhibit P-5, letter relied upon by the plaintiff also states the fact that the President has extended PEXSEM Scheme from 1.4.1995 to 31.3.1996. The cost of the scheme was to be shared by the Central Government and the State Government in the ratio of 50:50 as per clause 4 of letter dated 5.7.1995, Annexure P-5. Exhibit P-6 is the letter from the Secretary, Rajya Sainik Board, Haryana addressed to the Deputy Commissioners Bhiwani, Jind and Faridabad, abolishing the posts of Assistant Project Officers in the Zila Sainik Boards at three stations with immediate effect in public interest. There is no other document on the file to warrant conclusion that after 31.3.1996, there Regular Second Appeal No.2693 of 1998. -13- was any extension in the PEXSEM Scheme. Both the Courts below have returned a finding that since the State Government has not abolished the post of Assistant Project Officer, as such the Secretary, Rajya Sainik Board, Haryana was not competent to abolish the post. Therefore, the order dated 15.11.1995 was illegal and void. The stand of the appellant is that said order dated 15.11.1995 has been passed with prior approval of the Government. However, leaving apart the said controversy, both the Courts below have committed an error by not taking into account the judgments in Civil Writ Petition No.17496 of 1995 Ombir Singh Versus State of Haryana and others and Civil Writ Petition No.17437 of 1995 Ris.Maj. Balbir Singh Dhanda (Retd.) Versus Union of India and others decided on 1.12.1995 and 22.1.1996 respectively. In both these Civil Writ Petitions, petitioner Ombir Singh and petitioner Ris Major Balbir Singh Dhanda have challenged order dated 15.11.1995 vide which the posts of Assistant Project Officers held by those petitioners and the plaintiff were abolished and the Division Benches dismissed the writ petitions with liberty to the petitioners of both the cases to move the Government for their absorption on the equivalent posts but it was made clear that that was not a direction to the authorities to absorb the petitioner of those cases. So, once the same order vide which the services of the plaintiff were terminated was up-held by the Division Benches of the Punjab & Haryana High Court, both the Courts below Regular Second Appeal No.2693 of 1998. -14- have committed an illegality by ignoring the same. From the perusal of the file of the trial Court, it is revealed that the photostat copy of Civil Writ Petition No.17496 of 1995 has been placed on the file. Both the Courts below should have considered those judgments. Both the Courts below have committed an illegality in not even discussing both these Civil Writ Petitions although the copies of the same were on the file of the trial Court as well as Appellate Court. The subsequent events have also to be taken into account while deciding the case. Even according to the plaintiff, there is no extension of PEXSEM Scheme after 31.3.1996. The counsel for the plaintiff/respondent could not point out to any document on the file to show that the PEXSEM Scheme was extended after 31.3.1996. In the worst circumstances, even if the order dated 15.11.1995 was not to be held valid by the trial Court (which is absolutely wrong, as discussed above), in that case also, both the Courts below could not decree the suit of the plaintiff when the scheme had lapsed after 31.3.1996. In these circumstances, the plaintiff, at the most, could remain in service upto 31.3.1996 and not thereafter. So far as submission made by the counsel for the plaintiff to the effect that the plaintiff has been discriminated,inasmuch as Ombir Singh has been absorbed in another department is concerned, there is definite finding of both the Courts below that the plaintiff has failed to prove discrimination. That being a finding of fact, cannot be Regular Second Appeal No.2693 of 1998. -15- challenged in Regular Second Appeal. Otherwise also, the plaintiff has not filed any separate appeal challenging those findings. No doubt, the plaintiff/respondent can argue that point to support the judgments of both the Courts below, but, as discussed above, since there is concurrent finding of fact, as such the same cannot be interfered with in the Regular Second Appeal as the High Court has been debarred under Section 100 CPC to decide the question of fact, unless the same is result of mis-reading the evidence or mis-interpreting the same. There is nothing on the file that the said finding is by mis-reading or mis- interpreting the evidence and the documents on the file. No order of appointment of Ombir Singh has been placed in the trial Court file of this RSA, although the same has been placed on another RSA No.1423 of 2005. From the perusal of that order, it is revealed that Ombir Singh has not been absorbed in the Sainik Board Department but has been appointed in Agriculture Department. It is not clear whether said Ombir Singh was senior or junior to the plaintiff. Otherwise also, there is no document on the file that the plaintiff approached the State for her absorption on the termination of her services on 15.11.1995 and even after 15.7.1998. The plaintiff could only raise grievance in case she had approached the authorities after accepting her termination and in case her junior had been absorbed and she had been left out, but, the counsel for the plaintiff was fair enough to concede that the plaintiff has never approached the State of Haryana for her absorption. Regular Second Appeal No.2693 of 1998. -16- The other submission made by the counsel for the appellant to the effect that the plaintiff has also pleaded before the Apex Court that Civil Writ Petition Nos.17496 of 1995 titled Ombir Singh Versus State of Haryana and others and 17437 of 1995 titled Ris. Maj. Balbir Singh Dhanda Versus Union of India and others, have not been considered by both the Courts below and on that count the stay order in favour of the plaintiff should be vacated and that on that count the plaintiff cannot raise that point in the present appeal. The said submission is without any legal force. The point before the Apex Court was whether to continue the stay in favour of the plaintiff or not. The Apex Court has not decided the other point in its order dated 6.3.1998. So, the above-said submissions are also devoid of any legal force. So far as authorities reported as Avtar Singh and others, Subir Mukharji and others,Gursharan Singh and others, (supra) are concerned, these relate to absorption but since the plaintiff has never applied for absorption as such these authorities are not helpful to the plaintiff. So far as K.K.Chakrabarti's case (supra) is concerned, that authority is hardly applicable to the facts of the present case. The plaintiff has failed to prove any mala fide on the part of the appellant. Authorities reported as Anup Singh (supra) and Yogender Prasad (supra) also relate to absorption but since the plaintiff has not Regular Second Appeal No.2693 of 1998. -17- applied for absorption, as such the plaintiff cannot have any benefit of the said authorities. Authority in Vishvanath Vairupathi Kittur's case (supra) relates to abolition of permanent posts. In the present case, the plaintiff was working on temporary post on temporary basis which was extended from time to time. In authority in Prem Behari Lal Saxena's case (supra) , it has been held that opportunity must be given to show cause against the abolition, but, in the present case, the post was for a fixed period up to 31.3.1996 and thereafter the plaintiff has got no right to remain in service. The plaintiff knew the fact that she was on temporary basis on a temporary post which was extended from time to time. Authority in Des Raj Sangar's case (supra), is distinguishable as in that case it was proved that the post was abolished mala fide. The counsel for the appellant has submitted that the salary paid to the plaintiff be ordered to be refunded by the plaintiff. I have carefully considered the said submission but that plea cannot be accepted. Once the plaintiff has worked with the defendant, the defendant/appellant is bound to comply with the order of