R.S.A.No. 690 of 2009(O&M) {1} In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 690 of 2009(O&M) Date of Decision:August 13, 2009 Shyam Lal ---Appellant versus State of Haryana and others ---Respondents Coram: HON'BLE MRS. JUSTICE SABINA *** Present: Mr.Mani Ram Verma,Advocate, for the appellant *** SABINA J. Plaintiff – Shyam Lal had filed a suit for declaration. Additional Civil Judge (Senior Division), Bhiwani vide judgment and decree dated 8.1.2007 dismissed the suit of the plaintiff. Aggrieved by the same, plaintiff preferred an appeal and the same was dismissed by District Judge, Bhiwani vide judgment and decree dated 8.11.2008. Hence, the present appeal. The facts of the case as noticed by the learned District Judge, in paras 2 and 3 of its judgment read as under:- “It is alleged that employees of Haryana Roadways went on strike with effect from (w.e.f.) 7.12.1993. As public at large R.S.A.No. 690 of 2009(O&M) {2} was adversely effected, so Government of Haryana decided to appoint fresh hands from general public. Under that scheme all the General Managers(GM) if Haryana Roadways were allowed to appoint such persons. He was appointed as Mechanic/Mechanic Helper w.e.f. 9.12.2003 as per verbal orders of the then G.M. Haryana Roadways, Ch. Dadri Depot. He worked up to 24.12.1993, but defendants did not pay wages of that period. Strike was called off by Haryana Roadways staff w.e.f. 25.12.1993 and that is why his services were dispensed with. It was assured that as and when regular post of Mechanic Helper would be available, he would be absorbed. Government of Haryana also framed a policy to this effect and conveyed to all the G.Ms. Vide memo No. 3110-29/A-3-E-4 dated 7.6.2004. As per that letter, GM, Bhiwani Depot published an advertisement in 'Dainik Jagran' dated 29.6.2004 in connection with seniority/waiting list inviting applications of all candidates to appear before him, along with their original documents, in support of their claim. He also appeared before defendant No. 03 on 30.06.2004 and moved his application about appointment. Vide impugned order dated 3.6.2004 his application was dismissed by defendant No. 03. Said order is liable to be set aside on the grounds as mentioned in para No. 08 which are as under:- (i)That various other persons who were appointed during the strike period like the plaintiff have been absorbed against regular post by the defendants. Hence, all the persons who R.S.A.No. 690 of 2009(O&M) {3} were appointed/engaged during the strike period are from a category/class and the action of the defendants in absorbing some persons on pick and choose basis against regular post and not absorbing the plaintiff is discriminatory and volatile of the article 14 and 16 of the Constitution of India. (ii)That the action of the defendants No. 093 is also against the policy/instructions of the Government of Haryana which were framed for the specific purpose to absorb all those persons who have offered themselves to work during the strike period of employees of Haryana Roadways in the year 1993. (iii)That by the bare perusal of the duty-slip dated 10.12.1993, it is very much clear that the plaintiff has worked during the period of strike i.e. 12/1993 and the defendant No. 03 had deputed the plaintiff from Charkhi Dadri to Delhi at 12.00 noon to replace the Clutch Plate of vehicle No. 1948. The above said duty slip pertains to the office of the general Manager, Haryana Roadways, Charkhi Dadri Depot, Charkhi Dadri. Hence, it cannot be said that the plaintiff had not worked during the period of strike and no such order was passed by the defendants. (iv)That the decision of the Scrutiny committee/defendant No. 03 is wrong, illegal, arbitrary, unjustified, without any basis and against the records. Hence, the same cannot be sustained in the eyes of law and is liable to be set aside. As Dadri depot merged with Bhiwani Depot, so that was impleaded as a party. He filed Civil Writ Petition No. 15444 of R.S.A.No. 690 of 2009(O&M) {4} 2004 before Hon’ble High Court which was disposed of, vide order dated 03.09.2004 which was as under:- “In view of the aforesaid fact, we deem fit proper to relegate the petitioner to his ordinary remedies before the Civil Court.” Thereafter, he filed this suit. 3. Defendants filed written statement controverting his averments and alleged that he never worked with their Depot in any capacity during the strike period as alleged by him and that is why his application was rightly rejected. He concealed true facts from this court. He was stopped from filing this suit by his act and conduct. Neither any cause of action accrued to him not he was having any locus standi to file this suit. It was admitted that some persons ere employed during strike period but plaintiff was never employed. He failed to show any document vide which he was offered appointment. He did not produce any proof in support of his averments. Order dated 30.07.2004 was not liable to be set aside as per grounds raised in para No. 08 of the plaint because they are altogether wrong. In rebuttal thereof, defendants raised pleas in para No. 08 in written statement which are as under:- “(i) That sub-para (i) of para No. 08 of the plaint is wrong, not admitted and hence denied. Admittedly, the candidates who worked during the strike in Dec. 1993 have been taken in service, but no such person who had not worked during the R.S.A.No. 690 of 2009(O&M) {5} strike in Dec: 1993 has not at all taken in service and this is the case of the plaintiff. He has not at all worked during the strike in Dec. 1993 and so there is no violation of the mentioned articles of the Constitution of India. In this way the order No. 4829/RK dated 30.07.2004 passed by the defendant No. 03 is just, legal, fair and proper and in accordance with the principles of natural justice. (ii) That sub-para (ii) of para No. 08 of the plaint is wrong, not admitted and hence denied. As already submitted that the plaintiff had not at all worked during the strike period of the employees of Haryana Roadways in Dec: 1993, so the action taken by the defendant no. 03 is not against the Policy Instructions of the Govt. of Haryana. (iii) That sub-para (iii) of para No. 8 of the plaint is wrong, not admitted and hence denied. The slips mentioned in para under reply was not at all issued to the plaintiff. iv) That sub-para (iv) of para No. 8 of the plaint is wrong, not admitted and hence denied. The decision taken by the defendants No. 03 is just, legal, fair and proper and is in accordance with law.” Other averments were also denied. It was alleged that suit was false, frivolous and be dismissed with special costs as provided under Section 35A of the Code of Civil Procedure, 1908 (In short “CPC”).” On the pleadings of the parties, trial court framed the following issues:- R.S.A.No. 690 of 2009(O&M) {6} “(1)Whether the order dated 30.7.2004 issued by defendant No. 03 is illegal, unjustified, , capricious, against the principles of natural justice and is liable to be set aside? OPP (2)If issued No. 1 is proved, whether the plaintiff is entitled to get his name incorporated in the seniority/waiting list for appointment as Mechanic/Mechanic helper or any other equivalent post, as alleged? OPP (3)If issue No. 1 and 2 are proved, whether the plaintiff is entitled for a decree for mandatory injunction, as alleged? OPP (4)Whether the suit in not maintainable in the present form?OPD (5)Whether the suit is bad for want of compliance of Section 26 Order 4 Rule 1 of CPC, as alleged? OPD (6)Whether the plaintiff has no locus standi nor has any cause of action to file the present suit? OPD (7)Whether the plaintiff is estopped by his own act and conduct to file the present suit? OPD (8)Whether the suit is not properly valued for the purposes of court fee and jurisdiction? OPD (9)Whether the defendants are entitled for special costs under Section 35-A CPC? OPD (10)Relief After hearing learned counsel for the appellant, I am of the opinion that the present appeal is devoid of any merit and deserves to be dismissed. R.S.A.No. 690 of 2009(O&M) {7} The case of the plaintiff is that during the period from 9.12.1993 to 24.12.1993, the employees of Haryana Roadways went on a strike . Consequently, an advertisement was issued asking the general public to come and perform duty with Haryana Roadways. The case of the plaintiff further is that he had worked with Haryana Roadways during the said period. In this regard plaintiff led his oral evidence and also placed reliance on Exs. P-4 and P-5, Duty Slips issued by Haryana Roadways. As per the oral evidence on record, the duty slips Ex. P-4 and P-5 were issued by the department. A perusal of the copies of the slips(shown during the course of arguments by learned counsel for the appellant) shows that the same do not bear the signatures of the work Manager. Both the courts below after appreciating the oral as well as the documentary evidence on record have given a finding of fact that the plaintiff had failed to establish that he had worked with Haryana Roadways during the strike period. Duty slips Exs. P-4 and P-5 could not be relied upon as they were not signed by the work Manager and Ex. D-1, is the list of employees who were employed during strike period in which the name of the plaintiff did not find mention. The finding of fact arrived at by the courts below cannot be interfered by this Court. No substantial question of law arises in this appeal. Accordingly, this appeal is dismissed. (SABINA) JUDGE August 13, 2009 PARAMJIT