Regular Second Appeal No.1458 of 2009 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 1458 of 2009 Date of decision: 13.08.2009 Het Ram Clerk, District Public Relation Office, Sirsa, Tehsil and District Sirsa. ..... Appellant. Versus 1.The Director Public Relation Office, Haryana, Chandigarh. 2.The State of Haryana through Deputy Commissioner, Sirsa, District Sirsa. 3.District Public Relation Officer, Sirsa Mini Sectt. Sirsa, Tehsil and district Sirsa. ..... Respondents. CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present:- Mr. Rajeev Godara, Advocate for the appellant. Regular Second Appeal No.1458 of 2009 -2- Sham Sunder, J. This Regular Second Appeal is directed against the judgment and decree dated 29.03.2004, rendered by the Court of Civil Judge, (Senior Division), Sirsa, vide which it partly decreed the suit and the judgment and decree dated 19.12.2007, rendered by the Additional District Judge, (Fast Track Court), Sirsa, vide which he dismissed the appeal. 2. The brief facts of the case, are that Het Ram, plaintiff (now appellant) was appointed as Peon, in Public Relation Department, on 11.04.1972. He worked as Peon upto 24.02.85. He was confirmed as Peon in the pay scale of 300- 430 on 01.07.1986. Thereafter, he was promoted to the post of Clerk, on 12.02.1985 and was reverted as Peon, vide order dated 29.06.1987. He challenged the order dated 29.06.1987 as illegal, and inoperative against his rights. It was Regular Second Appeal No.1458 of 2009 -3- stated that the plaintiff could not file the suit for setting aside that order as he had filed representations but he was not granted the relief. He was again promoted as Clerk on 31.10.1990 and had completed 15 years of service as Clerk. Therefore, he was entitled to get ACP, which was not granted to him. It was further stated by him that the other persons, similarly situated, were granted the same. It was further stated by him, that, on the final refusal of the defendants, to accept his claim, left with no alternative, he filed a suit for declaration alongwith consequential relief. 3. The defendants, put in appearance, and contested the suit, by way of filing joint written statement, wherein, it was pleaded that the suit was not maintainable; that the plaintiff had neither cause of action nor locus standi to file the suit; that the suit was time Regular Second Appeal No.1458 of 2009 -4- barred; and that the suit was barred by the principles of res-judicata. It was stated that earlier, the plaintiff filed a suit, which was dismissed as withdrawn by the court of Sub Judge, Dabwali, without seeking any permission from the Court, for filing a fresh one on the same cause of action. It was further stated that, as such, the plaintiff could not file the second suit, on the same cause of action. It was further stated that when the post of Clerk became available, the plaintiff was again promoted, as such, on 31.10.1990. It was further stated that the plaintiff was not entitled to the ACP, because he had already availed of the promotion. It was further stated that the case of the remaining persons i.e. Devender Singh, Darshan Singh and Shri Tahal Dass, was not similar to the case of the plaintiff. The remaining averments, contained in the plaint, were denied, being wrong. Regular Second Appeal No.1458 of 2009 -5- 4. From the pleadings of the parties, the following issues were framed by the trial Court :- “1- Whether the order of DDR Haryana, Chandigarh No. PRDH (Estate-3) 87/19157-66 dated 29.6.1987 in the scale 750-12-870-EB-14-940 is illegal, null and void and not binding on the rights of the plaintiff ?OPP 2- If issue no.1 is proved, whether the plaintiff is entitled for the next promotion and for next grade under the Govt. approved Scheme of Assured Carrier Progression Rule, 1998, as alleged ?OPP 3- If issue nos. 1 and 2 proved, whether the plaintiff is entitled for the mandatory injunction, as prayed for, as alleged ?OPP 4- Whether the suit of the plaintiff is barred by the principles of res- judicata, as alleged ?OPD 5- Whether the suit of the plaintiff is not maintainable,as alleged ?OPD Regular Second Appeal No.1458 of 2009 -6- 6- Whether the plaintiff has no cause of action or locus standi to file the present suit ?OPD 7- Whether the plaintiff is estopped from filing the suit by his own act and conduct, as alleged ?OPD 8- Whether the suit is bad on account of delay and latches ?OPD 9- Relief.” 5. The parties led evidence in support of their case. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the trial Court partly decreed the suit, as stated above. 6. Feeling aggrieved, an appeal was preferred by the appellant/plaintiff, which was dismissed by the Court of Additional District Judge, Fast Track Court, Sirsa, vide judgment and decree dated 19.12.2007. Regular Second Appeal No.1458 of 2009 -7- 7. Still feeling dis-satisfied, the instant Regular Second Appeal, has been filed by the appellant/plaintiff. 8. I have heard the Counsel for the appellant, and have gone through the documents, on record, carefully. 9. The Counsel for the appellant submitted that the Courts below, were wrong, in coming to the conclusion, that the suit, challenging the order dated 29.06.1987, was palpably barred by time. He further submitted that the representations were submitted by the plaintiff (now appellant), but he was not granted the relief and, ultimately, he filed the suit. 10. After giving my thoughtful consideration, to the contentions, advanced by the Counsel for the appellant, in my considered opinion,the appeal deserves to be dismissed,for the reasons to be recorded hereinafter. In Madvan Nair Vs. Bhaskar Pillai (2005) 10, SCC, 533, Harjeet Singh Vs. Amrik Singh (2005) 12, SCC, 270, H.P. Regular Second Appeal No.1458 of 2009 -8- Pyarejan Vs. Dasappa, JT 2006(2), SC, 228, and Gurdev Kaur and others Vs. Kaki and others (JT 2006 (5) SC, 72, while interpreting the scope of Section 100 of the Code of Civil Procedure, the principle of law, laid down, was that the High Court, has no jurisdiction to interfere with the findings of fact, arrived at, by the trial Court, and first Appellate Court, even if, the same are grossly erroneous as the legislative intention, was very clear that the legislature never wanted second appeal to become a “third trial on facts” or “one more dice in the gamble.” It was further held that the jurisdiction of the High Court in interfering with the judgments of the Courts below, is confined only to the hearing of substantial questions of law. It is evident from para no.9 of the judgment of the First Appellate Court, that earlier a suit, filed by the plaintiff, challenging the order dated 29.06.1987, vide which he was reverted to the post of Peon, was Regular Second Appeal No.1458 of 2009 -9- dismissed as withdrawn, vide order dated 13.01.1988, with permission to file a fresh one, on the same cause of action. Ultimately, he filed the instant suit, out of the decision whereof, the instant appeal has arisen, on 20.08.2001, after a period of 13 years. The plaintiff, as was rightly held by the Courts below, could challenge the order dated 29.06.1987 by way of filing the suit, within a period of three years. The Courts below, thus, rightly held that the suit to the extent of challenging the order dated 29.06.1987 having been filed by the plaintiff, on 20.08.2001, was palpably barred by time. The Courts below rightly granted the relief partly to the plaintiff, regarding the consideration of his case, if found eligible for next promotion and next grade under the relevant Scheme. The concurrent findings of fact, recorded by the Courts below, on the aforesaid points, being based on the correct appreciation of evidence, Regular Second Appeal No.1458 of 2009 -10- and law on the point, do not suffer from any illegality or perversity, warranting the interference of this Court. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 11. No question of law, much less substantial, arises in this appeal, for the determination of this Court. 12. For the reasons recorded above, the appeal being devoid of merit, must fail and the same stands dismissed. ( Sham Sunder ) 13.08.2009, Judge dinesh