R.S.A.No. 978 of 2010 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 978 of 2010 (O&M) Date of decision: 19.1.2011 Amrit Lal ......Appellant Versus State of Punjab and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Ashok Bhardwaj, Advocate, for the appellant. Mr.Satish Bhanot, Addl.A.G. Punjab. **** SABINA, J. Plaintiff Amrit Lal filed a suit for declaration that he was entitled to seniority/promotion to the post of Senior Assistant w.e.f. 14.1.1991 in view of the directions issued by the Apex Court vide order dated 24.8.1999. The case of the plaintiff, in brief, was that he was working as a junior scale stenographer along with defendant No.5. Defendant No.5 was junior in service to the plaintiff. The plaintiff and defendant No.5 had qualified the examination held by the R.S.A.No. 978 of 2010 (O&M) 2 department for promotion to the post of Senior Assistant on 14.1.1991. Hence, in view of the judgment passed by the Apex Court dated 24.8.1999, the plaintiff and defendant No.5 were liable to be promoted w.e.f. 14.1.1991, whereas, plaintiff and defendant No.5 had been promoted w.e.f. 21.1.1991. Plaintiff and defendant No.5 had preferred a representation before Director, Agriculture, Punjab, Chandigarh. However, the representation of defendant No.5 was accepted and representation qua plaintiff was declined on 6.10.2000. Plaintiff filed another representation on 6.3.2002 and on the basis of the same, plaintiff was promoted to the post of Senior Assistant vide order dated 17.9.2004 with immediate effect. The seniority of the plaintiff was fixed w.e.f. 21.3.1993 by defendant No.2 vide order dated 9.2.2005 instead of 14.1.1991. Defendants No.1 to 4 and 6, in their statement, averred that the plaintiff could not claim promotion w.e.f. 14.1.1991 as he had himself failed to join the promotional post. Plaintiff was considered and promoted to the post of Senior Assistant vide order dated 30.4.1993 but he did not join at his promotional post and his promotion order was cancelled by defendant No.2 vide order dated 1.9.1993. Plaintiff was promoted vide order dated 30.4.1998 but he failed to join the promotional post despite being allowed more time and the promotion order was cancelled vide order dated 20.7.1998 Plaintiff was again promoted w.e.f. 21.1.1991 along with defendant No.5 vide order dated 31.12.1999 but he failed to join the post of Senior Assistant and gave in writing on 1.3.2000 that his family circumstances did not R.S.A.No. 978 of 2010 (O&M) 3 allow him to accept promotion and consequently, order dated 16.5.2000 was passed, whereby promotion order of the plaintiff was cancelled. In these circumstances, the suit of the plaintiff was liable to be dismissed. On the pleadings of the parties, following issues were framed by the trial Court:- 1. Whether the plaintiff is entitled to the relief of declaration as prayed for? OPP. 2. Whether the plaintiff is entitled to the relief of mandatory injunction as prayed for OPP 3. Whether the plaintiff is entitled to the relief of permanent injunction as prayed for ? OPP 4.Whether the suit is bad for non service of notice under Section 80 CPC ? OPD 5. Whether the suit is bad for concealment of facts, if so, its effect ? OPD 6. Relief. The suit of the plaintiff was partly decreed by the trial Court vide judgment and decree dated 25.11.2008 and it was held that the plaintiff was entitled to seniority/ promotion to the post of Senior Assistant w.e.f. 14.1.1991. Aggrieved by the said judgment and decree, both plaintiff and defendants No.1 to 4 and 6 preferred separate appeals. Vide judgment and decree dated 12.1.2010, Additional District Judge, Fast Track Court, Bathinda dismissed the appeal filed by the plaintiff and allowed the appeal filed by R.S.A.No. 978 of 2010 (O&M) 4 defendants No.1 to 4 and 6 and the suit filed by the plaintiff was ordered to be dismissed. Hence, the present appeal by the plaintiff. Learned counsel for the appellant has submitted that the appellant was entitled to be promoted to the post of Senior Assistant w.e.f. 14.1.1991 in view of the order passed by the Apex Court. In support of his arguments, learned counsel has placed reliance on Shashi Kiran and others vs. State of Punjab and others 2003 (1) SCT 340, wherein, in para 4 it was held as under:- “The basic contention raised before us is that the respondents had foregone their promotions as lecturers with effect from 1.1.1986 and consequently they would be debarred from claiming the proficiency step up. The respondents claim to have taken this action in furtherance to paragraph No.9 of the Punjab Government instructions dated 1.9.1989. It is difficult for this Court to hold that the petitioners would be debarred from claiming the proficiency step up in the circumstances of the case. The petitioners were offered the promotions in September, 1998 and thereafter. By that time the petitioners had completed more than eight years of service as they were appointed on ad hoc basis in the year 1975 and regularly appointed to the same posts in the year 1977 onwards. Thus, in any circumstances and whatever be the interpretation given to the instructions of the Government, R.S.A.No. 978 of 2010 (O&M) 5 the petitioners cannot be denied the eight years proficiency step up increment.” Learned counsel has further placed reliance on Sushila Devi vs. State of Haryana and others 2007(1) SCT 2004, wherein in para 6 it was held as under:- “From the narration of the aforesaid facts, it is apparent that the petitioner had been granted the benefit of 1st ACP grade vide order dated February 20, 2002. Accordingly, her pay was fixed in the scale of Rs. 5450- 8000. Subsequently, she was promoted. Initially the petitioner, on account of her family circumstances was not able to join her promoted post. She requested for extension of time to join her duties on the promoted post. Her request was kept pending and ultimately was rejected vide order dated May 31,2 004. She was directed to resume duties on promotional post. On the aforesaid directions, the petitioner joined her duties on August 10, 2004 on the promotional post. The joining report Annexure P-6 specifically shows that an order was passed by the Block Education Officer on August 10, 2004 whereby the petitioner was allowed to join her duties with effect from August 10, 2004. It is not in dispute that the petitioner had since joined on the promoted post. The delay, if any, in joining on the promoted post stands R.S.A.No. 978 of 2010 (O&M) 6 condoned when she was allowed to join on the promoted post with effect from August 10, 2004. In these circumstances, the respondents cannot be heard to claim that she had forgone her promotion and on that account the ACP grade granted to her was liable to be withdrawn. The action of the respondents in this regard was wholly uncalled for and unjustified.” After hearing learned counsel for the parties, I am of the opinion that the present appeal is devoid of any merit and deserves dismissal. Admittedly, the plaintiff was working as Junior Scale Stenographer with the defendants. Plaintiff qualified the departmental examination on 14.1.1991. Plaintiff was promoted to the post of Senior Assistant vide orders dated 30.4.1993 and 30.4.1998. However, on both the occasions, plaintiff failed to join on the post of Senior Assistant. Plaintiff was given promotion w.e.f. 21.1.1991 vide order dated 31.12.1999 but he did not join on the post of Senior Assistant and gave in writing that due to some family circumstances, he did not want to avail the promotion and had forgone the same. Defendant No.1, on the other hand, joined as Senior Assistant on 3.5.1993 in terms of order dated 30.4.1993. DW-1 Paramjit Singh Sandhu had duly proved the record in this regard. Since the plaintiff had failed to join on the promotional post and had forgone his promotion, learned Additional District Judge has R.S.A.No. 978 of 2010 (O&M) 7 rightly dismissed the suit of the plaintiff. The judgments relied upon by learned counsel for the appellant fail to advance the case of the appellant as these are based on different facts. No substantial question of law arises in this regular second appeal, which would warrant interference by this Court. Accordingly, the same is dismissed. (SABINA) JUDGE January 19, 2011 anita