Regular Second Appeal No.1126 of 2008(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.1126 of 2008(O&M) Date of Order: 17.09.2008 State of Haryana and others ...Appellants Versus Joginder Singh ..Respondent CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr. Ajay Chaudhary, DAG, Haryana for the appellants. Mr. Arun Bakshi, Advocate for the respondent. RAJIVE BHALLA, J (Oral). The appellants challenge a judgment and decree dated 17.12.2007, passed by the Additional District Judge, Sirsa, whereby the appeal filed by the respondent was allowed and the judgment and decree dated 10.02.2005, passed by the Civil Judge (Senior Division), Sirsa , dismissing the suit was reversed. The plaintiff-respondent, a Conductor with the Haryana Roadways filed a suit for declaration praying that he is entitled to benefit under the Assured Career Progression Scheme (hereinafter referred to as ‘the ACP scheme’), 1998 as he has completed 10 years of service. The appellants opposed this prayer by asserting that as an adverse remark was recorded in the Annual Confidential Report for the year 1990-91, it could not be said that the respondent had completed 10 years of “satisfactory service”, making him eligible for the benefit of the ACP Scheme. The plaintiff-respondent, however, asserted that as the adverse remark was never communicated to him it had to be ruled out of consideration. Regular Second Appeal No.1126 of 2008(O&M) -2- On the basis of the pleadings, the learned trial court framed the following issues:- 1. Whether the plaintiff is entitled to get his pay fixed in the ACP scale of Rs.4000-6000 w.e.f. 1.1.1996 in view of pre-revised scale of Rs.1200-2400 as alleged? OPP 2. Whether the action of defendants in placing the plaintiff in ACP scale of Rs.3200-4900 keeping in view pre-revised scale of 950-1500, is illegal as alleged? OPP 3. Whether the suit of the plaintiff is not maintainable in the present form? OPD 4. Whether the plaintiff has no cause of action to file the present suit? OPD 5. Relief. After considering the pleadings, the evidence adduced and the arguments addressed, the learned trial Court held that though there was no evidence to establish that the adverse remark was communicated to the respondent but as a presumption arose that all official acts are deemed to have been performed in accordance with law, the adverse remark, would be deemed to have been communicated to the respondent. It was, therefore, held that in view of the adverse remark for the year 1990-91 the respondent was not entitled to any benefit under the ACP Scheme. The respondent filed an appeal impugning the aforementioned judgment. The Additional District Judge, Sirsa, vide judgment dated 17.12.2007 accepted the appeal, set aside the judgment and decree, passed by the trial Court and decreed the suit. The first appellate Court held that in the absence of any evidence, that the adverse remark, contained in the memorandum Ex.D5, was ever communicated to the respondent, the trial Court erred in raising a presumption as to its communication. It was further held that as the adverse remark was not Regular Second Appeal No.1126 of 2008(O&M) -3- communicated to the respondent, it was to be disregarded while assessing the respondent's eligibility and as the respondent had completed 10 years of “satisfactory service”, he was eligible to the benefits under the ACP scheme. Counsel for the appellants submits that adverse remark “integrity doubtful” was incorporated in the annual confidential report for the year 1990-91. The first appellate court could not have held that the adverse remark was not communicated. It is submitted that all official acts are presumed to have been performed in accordance with procedure prescribed by law. The presumption so raised and relied upon by the trial Court, was wrongly rejected by the first appellate Court. The onus to rebut this presumption lay upon the respondent and as he failed to discharge this onus, the first appellate court erred in reversing the trial court's judgment and decreeing the suit. Counsel for the respondent, on the other hand submits that in the absence of any evidence that the adverse remark was communicated to the respondent, the first appellate court rightly held that the adverse remark would have to be ruled out for consideration while considering the respondent’s eligibility under the ACP scheme. As the appellants admittedly did not produce any evidence that the adverse remark was communicated to the respondent in accordance with the procedure prescribed by Haryana Government's letter dated 30.03.1971, no presumption could be raised as to the communication of the adverse remark. I have heard counsel for the parties and perused the impugned judgment. Admittedly, but for the adverse remark of the year 1990-91, the respondent is eligible under the ACP Scheme. The question that came up for adjudication before the courts below was whether the adverse remark Regular Second Appeal No.1126 of 2008(O&M) -4- was communicated, to the respondent or not. The learned trial Court in the absence of any material to establish that the adverse remark was communicated to the respondent fell back upon a presumption that all official acts are deemed to have been performed in accordance with the procedure established by law. The first appellate Court, on the other hand, held that as the appellants failed to adduce any evidence that the adverse remark was communicated in accordance with the instructions contained in the Haryana Government's letter dated 30.03.1971, no such presumption could be drawn. The State of Haryana has issued instructions vide letter No. 722- 3S-71/6676 dated 30.03.1971, requiring that adverse remarks are to be communicated by registered post/acknowledgment due. The appellants, admittedly, did not produce any evidence, whether in the shape of the despatch register or a postal receipt to establish the fact that the adverse remark was communicated to the respondent, in accordance with the above instructions. Failure to adhere to binding instructions, could not be over-looked by resort to the presumption that all official acts are deemed to have been performed in accordance with law. The learned trial Court, therefore, committed an error in raising a presumption that the adverse remark would be deemed to have been communicated. The first appellate Court rightly held that in the facts of the present case, no such presumption could be raised as the appellants failed to produce any evidence that the adverse remark was communicated in accordance with the above instructions. As a result, as the first appellate court's judgment does not suffer from any error whether of fact or of law and as no question of law much less a substantial question of law arises for consideration, the appeal is dismissed with no order as to costs. September 17, 2008 (RAJIVE BHALLA) nt JUDGE Regular Second Appeal No.1126 of 2008(O&M) -5-