R.S.A.No.763 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Misc. No. 10568-C of 2009 and R.S.A.No.763 of 2008 Date of decision:23rd September, 2009 Balbir Singh ........Appellant Versus Haryana State Agricultural Marketing Board ........Respondent Before: HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr. R.K.Malik, Senior Advocate, with Mr. Vishal Malik, Advocate for the appellant. Rajive Bhalla, J. Civil Misc. No. 10568-C of 2009 Prayer in this application is for impleading the legal representatives of appellant Balbir Singh, who is stated to have passed away on 2.08.2009. The legal representatives referred to in paragraph 3 of the application are impleaded as appellants, subject to all just exceptions. Office is directed to carry out necessary corrections in the memo of parties. C.M. stands disposed of accordingly. R.S.A.No. 763 of 2008 R.S.A.No.763 of 2008 -2- The appellant challenges the judgment and decree dated 7.08.2007, passed by the Additional District Judge, Panchkula, accepting the appeal filed by the respondent and as a consequence, setting aside the judgment and decree dated 6.12.2006, passed by the Civil Judge (Senior Division), Panchkula. The appellant filed a suit for declaration praying that he is entitled to the same scale of salary as is being drawn by his juniors. The appellant alleged that initially his juniors were drawing lesser pay scales, but after the revision of their pay scales thay are receiving a higher pay scale. It was prayed that in view of this anomaly, the pay scale being drawn by the appellant be suitably modified. The respondent filed a written statement opposing the prayer in the plaint by alleging that the appellant is not entitled to a refixation of his salary as his juniors were granted a higher pay scale, on account of a decree passed by a civil court. On the basis of the pleadings, the trial court framed the following issues:- 1. Whether the plaintiff is to get his pay stepped up and for the refixation of his pay at par with the pay which has been allowed to his juniors w.e.f. 9.8.1979 at Rs.640/- and as on 9.8.1979 Rs.660/- and w.e.f. 1.4.1980 and alongwith yearly increment alongwith consequential relief including interest at the rate R.S.A.No.763 of 2008 -3- of 18% per annum? OPP 2. Whether the suit is within limitation of time? OPP 3. Whether the suit is not maintainable in the present form? OPD 4. Whether the suit is bad for the purpose of court fee? OPD 5. Whether the civil court has no jurisdiction to try and entertain the present suit? OPD 6. Relief. After considering the pleadings, the evidence adduced and the arguments addressed, the trial court decreed the suit and directed the respondents to pay salary to the appellant at par with the salary being drawn by Raghbir Parshad his junior. In addition, the arrears were directed to be paid with interest @10% per annum. Aggrieved by the aforementioned judgment and decree, the respondent filed an appeal. Vide judgment and decree dated 7.08.2007, the Additional District Judge, Panchkula, accepted the appeal, set aside the judgment and decree passed by the trial court and dismissed the suit. Counsel for the appellant submits that in view of judgments relating to similarly situated employees passed in R.S.A. No. 1277 of 2005 titled as “Haryana State Agricultural Marketing Board Vs. Ram Singh Jaglan”, decided on 27.01.2006, R.S.A.No.763 of 2008 -4- R.S.A.No. 3319 of 2005 titled as “Haryana State Agricultural Marketing Board and another Vs. Tajo Devi and others” decided on 28.02.2006 and R.S.A.No. 2569 of 2001 titled as “Haryana State Agricultural Marketing Board and another Vs. Surjeet Singh Nain”, decided on 15.10.2001, the appellant is entitled to refixation of his salary in accordance with the salary being paid to his junior. It is submitted that the first appellate court ignored these judgments and even otherwise, committed a fundamental error in ignoring a principle that a junior cannot be allowed to draw a higher salary than a senior. Counsel for the appellant, however, states that he has no objection if the arrears of salary, are confined to a period of 38 months. It is submitted that in view of the errors committed by the first appellate court, the following substantial question of law arises for consideration: 1. Whether the first appellate court was justified in ignoring the judgments referred to hereinabove? Counsel for the respondent does not deny that these judgments relate to the respondent board and are fully applicable to the present controversy . He however, states that the trial court had no jurisdiction to award interest @10% per annum and should have confined the arrears to a period of 38 months. I have heard counsel for the parties and am satisfied that the controversy in the present case is squarely covered by the judgments recorded in “Haryana State Agricultural Marketing Board Vs. Ram Singh Jaglan(supra)”, “Haryana State Agricultural R.S.A.No.763 of 2008 -5- Marketing Board and another Vs. Tajo Devi and others(supra) and “Haryana State Agricultural Marketing Board and another Vs. Surjeet Singh Nain(supra)”. In this view of the matter the first appellate court, committed an error in accepting the appeal filed by the respondent board and dismissing the suit . The only point that therefore remains for consideration is whether the trial court was justified in awarding interest @10% per annum. Section 34 of the Code of Civil Procedure postulates that except where there is a contract to the contrary, interest shall be awarded at 6% per annum. In the absence of any rule, regulation or contract to the contrary, the trial court had no jurisdiction to award interest @10% per annum. As the controversy in the present case is squarely covered by the judgments referred to above, the appeal is allowed and the judgment and decree passed by the appellate court is set aside and the judgment and decree passed by trial court is restored with the modification that the arrears payable to the appellant would be confined to a period of 38 months prior to the filing of the suit, with interest @ 6% per annum. No order as to costs. [RAJIVE BHALLA] JUDGE 23rd September, 2009 Shivani Kaushik