IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. ORDER S.B. CIVIL SECOND APPEAL NO.873/2007 16.01.2008. HON'BLE MR. JUSTICE DALIP SINGH Shri J.K. Singhi , for the appellant. Heard learned counsel for the appellant. In this second appeal learned counsel for the appellant has raised the plea with regard to the jurisdiction of the civil court to entertain the suit on the basis of the judgment of the Hon'ble Supreme Court in the case of RSRTC Vs. Zakir Hussain reported in 2005 Vol.7 SCC 447. The suit was filed by the plaintiff stating therein that his appointment in the service was made w.e.f. the year 1979 and as such he had completed 18 years of service on 12.11.1997 and as such he was entitled to the benefit of the selection scale of pay as provided under the circular dated 25.1.1992 on completion of 9, 18 and 27 years of service. The defendant appellant's case was that the disciplinary action was taken againt the plaintiff in the year 1982 and again in 1999. The finding given by the learned two courts below is that so far as the disciplinary action in the year 1982 is concerned the defendant appellant failed to prove that any such proceedings were initiated against the plaintiff. No documentary evidence was produced in respect of any enquiry etc. against the plaintiff in the year 1982. The only defence which was alleged and was proved was in respect of the disciplinary action initiated against the plaintiff in the year 1999 by filing the order dated 20.11.1999. In view of the above, the courts below gave a finding that on 12.11.1997 i.e. On date of completion of 18 years of service the plaintiff was entitled to selection scale in terms of the circular dated 25.1.1992 on completion of 9 and 18 years of service as the disciplinary action was initiated againstt the plaintiff after the said date in 1999. The objection which has been raised in this second appeal is that the suit filed in the civil court was not maintainable. It is frankly conceded by the learned counsel for the appellant that this objection was not taken in the written statement filed by the defendant appellant nor argued before the learned trial court or before the learned lower appellate court and has been raised before this court in second appeal for the first time. This court has in several cases where the objection was raised,in accordance with the decision of the Hon'ble Supreme Court, set aside the decree passed by the learned civil court and referred the matter for being adjudicated as an Industrial Dispute in accordance with the provisions of I.D. Act 1947. On 6.12.2007 this court in view of the clear findings given by both the courts below had asked the learned counsel for the appellant to take instructions as to whether the appellant RSRTC would be willing to consider the case of the plaintiff and award the benefits of the circular dated 25.1.1992 of granting selection scale on completion of 9 and 18 years of service to the plaintiff who had completed the said period prior to initiation of the alleged disciplinary action. Learned counsel for the appellant submits that the appellants are not willing to consider the case of the plaintiffs as this case would amount taking a stand contrary to the policy decision of the RSRTC. Having heard learned counsel for the appellant and having gone through the findings of the courts below that the defendant appellant failed to prove before the courts below that there was any disciplinary action initiated against the plaintiff prior to 20.11.1999 I do not find any justifiable reason to deny the benefit of circular dated 25.1.1992 to the plaintiff respondent who had admittedly completed 9/18 years of service on 12.11.1997 itself. In the facts and circumstances therefore I am not inclined to interfere with the decree passed by the learned trial court as well as the learned lower appellate court as the defendant appellants have not raised any objection pertaining to the jurisdiction before the learned lower appellate court. Also it may be stated that the lower appellate court decided the appeal on 24.9.2007 i.e. After the decision of Hon'ble Supreme Court in the case of RSRTC Vs. Zakir Hussain reported in 2005 Vol.7 SCC 447 (supra) and still no objection was raised. Now in view of the factual position I am of the view that no useful purpose would be served in view of the facts on record to set aside the decree and remit the matter for its adjudication as an industrial dispute. This second appeal as well as the stay application are consequently dismissed. The aforesaid decision however shall not be construed as a precedent. (DALIP SINGH),J. Ramchandrkhatri,PS