Regular Second Appeal No.562 of 1988 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision:-28.7.2010 State of Punjab and others ...Appellants Versus Nirmal Singh and another ...Respondents CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.Ajaib Singh, Addl. AG Punjab for the appellants. Nemo for the respondents. M ehinder S ingh S ullar , J . The matrix of the facts, culminating in the commencement, relevant for disposal of the present appeal and emanating from the record, is that Nirmal Singh and Diwan Singh, Horticulture Inspectors respondent-plaintiffs (hereinafter to be referred as “the plaintiffs”) filed the suit for a decree of declaration to the effect that they are entitled to be finally allocated to Horticulture Department and the contrary Notification dated 7.9.1982 is illegal, null, void, inoperative and unconstitutional, with a consequential relief of permanent injunction restraining the State of Punjab and its officers appellant-defendants (hereinafter to be referred as “the defendants”) from transferring them to Agriculture Department by virtue of allocation. 2. Concisely, the case set up by the plaintiffs was that they joined as Inspectors in the Agriculture Department on 1.11.1971. They were working in the Vegetable Section. The State of Punjab proposed to separate the Horticulture Department from Agriculture Department. Certain officers of Agriculture Department were provisionally transferred to the Horticulture Department. The plaintiffs opted for their absorption in the Horticulture Department. In the wake of notification dated 7.9.1982, 21 inspectors were finally allocated to the Horticulture Regular Second Appeal No.562 of 1988 2 Department, ignoring their claim and experience and without following the due procedure. The plaintiffs claimed that although they were eligible and entitled to the allocation in the Horticulture Department, but they were wrongly transferred to Agriculture Department in order to adjust their own people. On the basis of aforesaid allegations, the plaintiffs challenged the action of the defendant in not absorbing them in Horticulture Department, being illegal, null and void and filed the suit for a decree of declaration and permanent injunction against the defendants in the manner described here-in-above. 3. The defendants contested the suit and filed the written statement, inter-alia, pleading certain preliminary objections of, maintainability of suit, locus standi, cause of action of the plaintiffs and notice under section 80 CPC. It was also admitted that the Committee headed by Hardial Singh, IAS, the then Secretary to Govt. of Punjab was constituted and on the basis of its recommendations, the provisional allocation of the officers/staff was ordered by the Government. The manner of transfer of staff as depicted in para 4 of the plaint was admitted. Succinctly, according to the defendants, it is within the domain of the State to transfer the employees and the plaintiffs have no right to claim absorption in a particular department. It will not be out of place to mention here that the defendants have stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit. 4. In the wake of pleadings of the parties, the trial court framed the following issues for proper adjudication of the case:- i) Whether the plaintiffs are entitled to the declaration prayed for?OPP ii) Whether the civil suit is not justiceable by the civil Court?OPD iii)Whether the plaintiffs have no cause of action to file the present suit?OPD iv)Whether the suit in the present form is not maintainable?OPD Regular Second Appeal No.562 of 1988 3 v) Whether notice u/s 80 CPC has been duly served?OPP vi)Relief. 5. The parties brought on record the oral as well as documentary evidence, in order to substantiate their respective pleas. 6. Having completed all the codal formalities, the trial Court decided issue Nos.1 & 5 in favour of plaintiffs while the remaining issues were answered against the defendants. On ultimate analysis of evidence on record and in view of the findings on the aforesaid issues, the trial Court decreed the suit of the plaintiffs, vide impugned judgment dated 31.10.1984. 7. Aggrieved by the judgment and decree of the trial Court, the appellant-defendants filed the appeal, which was dismissed as well, by the Ist Appellate Court, vide impugned judgment and decree dated 8.5.1987. 8. Still aggrieved by the impugned judgments and decree of the Courts below, the appellant-defendants filed the present appeal. That is how, I am seized of the matter. 9. Having heard the learned State counsel, having gone through the evidence on record with his valuable help and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the appeal. 10. However, the main routine argument of the learned State counsel that since the State of Punjab was competent to allocate and absorb the staff, so, the plaintiffs did not have any legitimate claim of their absorption in Horticulture Department, is not only devoid of merit but misplaced as well. 11. As is evident from the record that having obtained the degree of B.Sc. Agriculture, the plaintiffs joined as Inspectors on 1.11.1971 in the Agriculture Department. They worked there in the Vegetable Wing. The Punjab State proposed to separate the Horticulture Department from Agriculture Department, vide notification dated 16.4.1979. Some officers and Inspectors were transferred to Horticulture department provisionally. The case of the plaintiffs was that although they were qualified/eligible for absorption in the Horticulture Regular Second Appeal No.562 of 1988 4 Department, as they have worked in vegetable wing, but their claim was wrongly ignored by the authorities in order to accommodate their own Inspectors, without following any rules, regulations and recommendations of the Committee. No doubt, the transfer of an employee is in the domain of the State but it has to act according to relevant rules and regulations. The discriminatory action of the State cannot possibly be appreciated. Since the factual matrix of the procedure has been admitted, which is contrary to the recommendations of the Committee, Rules and Regulations, so, to my mind, the Courts below have rightly accepted the claim of the plaintiffs in this relevant connection. 12. No meaningful argument has been raised by the learned State counsel to assail the findings of the Courts below in this context. All remaining arguments, relatable to the appreciation of evidence, now sought to be urged on behalf of the State, in this relevant behalf, have already been duly considered and dealt with by the Courts below. 13. There is another aspect of the matter, which can be viewed from a different angle, the trial Court as well as the first Appellate Court has taken into consideration and appreciated the entire relevant evidence brought on record by the parties in the right perspective. Having scanned the admissible evidence in relation to the pleadings of the parties, the Courts below have recorded the concurrent findings of fact that (i) it is admitted case of the parties that the plaintiffs were provisionally allocated to the Horticulture Department; (ii) certain plausible and reasonable grounds should exist for changing their allocation finally; (iii) it is also admitted case of the parties that both the plaintiffs were working since 1971 and 1976 respectively in vegetable section and (iv) thus it does not lie in the mouth of the defendants to say that they had no sufficient experience in this regard. Such pure concurrent findings of fact based on the evidence, cannot possibly be interfered with by this Court, while exercising the powers conferred under section 100 CPC, unless and until, the same are illegal and perverse. No Regular Second Appeal No.562 of 1988 5 such patent illegality or legal infirmity has been pointed out by the learned counsel for the appellant-defendants, so as to take a contrary view, than that of well reasoned decision already arrived at by the Courts below, in this regard. 14. Meaning thereby, the entire matter revolves around the re- appreciation and re-appraisal of the evidence on record, which is not legally permissible and is beyond the scope of second appeal. Since no question of law, muchless substantial, is involved in the second appeal, in view of law laid down by Hon'ble Supreme Court in case Kashmir Singh v. Harnam Singh & Anr. 2008 (2) R.C.R. (Civil) 688 : 2008 AIR (SC) 1749, so, no interference is warranted, in the impugned judgments/decrees of the Courts below as contemplated under section 100 CPC, in the obtaining circumstances of the present case. 15. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the appellant-defendants. 16. In the light of the aforementioned reasons, as there is no merit, therefore, the instant appeal is hereby dismissed. (Mehinder Singh Sullar) 28.7.2010 Judge AS