IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 2328 of 2008 Date of Decision: July 31, 2009 Shiv Ram ...........Appellant Versus State of Haryana and others ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mr.U.K.Agnihotri,Advocate for the appellant. Mr.Sukhant Gupta, Additional Advocate General, Haryana Sabina, J. Shiv Ram, plaintiff has filed a suit for declaration . The suit of the plaintiff was dismissed by the Additional Civil Judge (Senior Division) Jind vide judgment and decree dated 28.2.2005. Plaintiff preferred an appeal and the same was dismissed by the District Judge, Jind vide judgment and decree dated 25.10.2007. Hence, the present appeal. The brief facts of the case, as noticed by the learned Additional District Judge in paras 2 and 3 of its judgment, reads as under:- “The plaintiff had joined as Patwari in the Forest Department, Government of Haryana, on 14.8.1989. The plaintiff had earlier served the Indian Army. When he was student of 10th class, there was period of National Emergency due to China war. An Ordinance had been issued to the then President of India. He joined the Indian Army on 12.4.1963 and remained in the service upto 30.4.1978. Vide another Ordinance by the then President of India, period of emergency w.e.f. 26.10.1962 to 10.1.1968 was to R.S.A. No. 2328 of 2008 -2- be counted for service benefits. It is further the case of the plaintiff that after his retirement from the Army, he had joined as a clerk in the Election Office of Deputy Commissioner, Jind. He worked there w.e.f. 18.6.1983 to 31.1.1984. Thereafter, he joined as Revenue Patwari in District Jind, where he remained posted from 14.8.1986 to 4.9.1989. It is further the case of the plaintiff that as his age was less than 18 years when he joined the India Army, benefit of emergency period vide order dated 6.6.1986 of the then Deputy Commissioner, Jind was given only for the period of 4 years 8 months and 29 days i.e. counting it from the period when he became 18 years of age. It is claimed that after service in the Revenue Department, the plaintiff was taken by the Forest Department and it was "simply transfer of the plaintiff". It is further the case of the plaintiff that he had made representation to the Forest Department, but the same was declined by the Principal Chief Conservator of Forests, Haryana, vide letter dated 23.12.1992 mentioning therein that benefit of emergency period had already been given to the plaintiff by the Deputy Commissioner, Jind, his representation was declined. It is claimed that by giving benefit of service rendered during the Emergency period, his seniority was fixed w.e.f. 22.2.1982. It is still further the case of the plaintiff that after having been given benefit of his past service, he was not given the R.S.A. No. 2328 of 2008 -3- benefit of his promotion though he was entitled to the same. Averring that many juniors of the plaintiff have been promoted by ignoring the plaintiff, the plaintiff has sought promotion on parity with his juniors who were allegedly made forest Kanungos on 25.8.1992. When the defendants refused to admit the claim of the plaintiff, litigation ensued. 3. In joint written statement furnished by defendants no. 1 to 4, various preliminary objections, as reflected in the array of issues, were taken. On merits, it was accepted that the plaintiff was as Ex-Army Personal, but it was admitted that benefit of his military service had already been given to him by the Deputy Commissioner, District Jind, for which reference was made to order dated 12.7.1988. It was claimed that the plaintiff had joined the Forest Department as Patwari w.e.f. 5.9.1989 and not w.e.f. 14.8.1989. It was clarified that the plaintiff joined Forest Department as Patwari on 5.9.1989 by way of mutual transfer with one Mohinder Singh Patwari of the Forest Department. Referring to letter dated 11.1.1979 of Government of Haryana, it was elaborated that mutual transfer from one Department to another cannot be treated in public interest and seniority of such employee has to be fixed at the tail of the employees already working in that department. In short, it was clarified that the plaintiff had lost his seniority in the Revenue Department and while joining the Forest Department he came on the tail of the employees already working. It was further clarified that no person junior to the plaintiff has been R.S.A. No. 2328 of 2008 -4- promoted. Asserting that benefits permissible to the plaintiff have already been given except seniority in the Forest Department. Claiming that no person junior to the plaintiff has been promoted to the post of Kanungo, prayer for dismissal of the suit was made. On the pleadings of the parties, the following issues were framed by the trial Court:- “i) Whether the plaintiff is entitled to promotion of Kanungo as alleged in the plaint and is also entitled for the consequential benefits as alleged in the plaint ?OPP ii) Whether the suit is not maintainable in the present form?OPD iii) Whether the plaintiff has no cause of action ?OPD iv) Whether the suit filed by the plaintiff is not within limitation?OPD v) Relief.” After hearing the learned counsel for the appellant, I am of the opinion that this appeal is devoid of any merit. Admittedly, the appellant was born on 19.7.1945. He served with the Indian Army with effect from 12.4.1963 to 30.4.1978. Thereafter, plaintiff joined the Revenue Department as Patwari in District Jind on 14.8.1986 and continued in the said department up to 4.9.1989. Thereafter, the appellant joined the Forest Department on 5.9.1989. Both the Courts below after appreciating the evidence on record have held that the appellant had joined the Forest Department on the basis of mutual transfer with Mahinder Singh who was serving in the Forest Department. Appellant came from the Revenue Department to Forest Department, whereas, Mahinder Singh went to the Forest Department from the Revenue R.S.A. No. 2328 of 2008 -5- Department. In this regard, reliance was placed on communication (Exhibit P5) dated 18.9.1992 made by the appellant to the Principal, Conservator of Forests. In the circular letter dated 11.1.1979 (Exhibit D1), it was not specifically mentioned that the appointment of the appellant in the Forest Department was on the basis of mutual transfer yet the fact that the plaintiff came in the Forest Department on the basis of the mutual transfer was established from Exhibit P5. Learned District Judge in its judgment has further observed that the plaintiff himself, while appearing in the witness box as PW4, has conceded that he had joined the Forest Department on mutual transfer basis. In these circumstances, the appellant could not be given the benefit of military service again as the same had already been granted to him in the Revenue Department vide letter dated 6.6.1988 issued by the Deputy Commissioner Jind. No substantial question of law arises in this regular second appeal which would warrant interference by this Court. Accordingly, this appeal is dismissed. ( Sabina ) Judge July 31, 2009 arya