RSA No.811 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.811 of 2011 (O&M) Date of decision 19.7.2011. Bhagirath Ram ...... Appellant. versus State of Punjab and another ...... Respondents. CORAM : HON'BLE MR. JUSTICE K.C.PURI Present : Mr. Ashish Grover, Advocate for the appellant. K.C.PURI . J. Challenge in the present regular second appeal is the judgment and decree dated 30.10.2010 passed by Ms. Manju Rana, learned Additional District Judge, Bathinda vide which the appeal preferred by plaintiff/appellant against the judgment and decree dated 25.11.2008 passed by Shri Mohit Bansal, Civil Judge (Junior Division), Bathinda was dismissed. RSA No.811 of 2011 2 2. Brief facts of the case of the plaintiff are that he was appointed as a Supervisor and retired as such on 28.2.2005 from Government Typewriter Workshop Bathinda., after rendering total service of more than 28 years. He was allowed first proficiency step up vide Controller, Printing & Stationery, Punjab, Chandigarh vide order dated 17.1.1996. The second proficiency step up was due on 2.5.1995 and the third proficiency stop up was due on 2.5.2001, which have not been allowed to the plaintiff. The plaintiff had made numerous requests vide his letters dated 10.7.2003, 17.5.2004 and 26.8.2004, but with no effect. It has been alleged that notice under Section 80 CPC was served upon the defendant on 20.2.2006, but no effect. Prayer is made that suit of the plaintiff be decreed with costs. 3. Upon notice, the defendants appeared and filed written statement taking preliminary objection regarding the suit being time barred; no cause of action having arisen to the plaintiff to file the present suit; maintainability. On merits, the date of retirement of the plaintiff has been admitted. It has been alleged that the plaintiff was promoted as Supervisor vide office order dated 15.4.1977 on adhoc basis subject to the condition that he will not claim seniority over his seniors. For the regular promotion as supervisor, the office order dated 25.11.1983 was circulated in the department to obtain consent for the regular promotion of Supervisors already filled on adhoc basis. Plaintiff Bhagirath Ram working on adhoc basis consented for regular promotion as Supervisor vide his application dated 5.12.1983. After considering the consent furnished by plaintiff, he was promoted as Supervisor on regular basis w.e.f. 1.2.1984 vide office order dated 27.1.1984. The plaintiff was promoted Supervisor on regular RSA No.811 of 2011 3 basis w.e.f. 1.2.1984, and thus, he completed his 18 years regular service on 31.1.2002. As per Punjab Govt. Instructions issued dated 25.9.1988, the Assured Career Progression Scheme came in force w.e.f. 1.1.1996. As per these instructions as Govt. Employee who completes 8/16/24/32 years of regular service, is entitled to get the benefit of higher scale/proficiency step up. In the light of these instructions, the plaintiff would have completed 16 years regular service as Supervisor on 31.2.2000 had he not been promoted, but before that, he was promoted as Superintendent Grade-I, vide office order No.10285/S-1/Admn/Pb. Dated 28.9.1998. The plaintiff refused to accept the promotion to the post of Superintendent Grade-I vide his application dated 3.10.1998. He was again promoted as Superintendent Grade-I vide office order dated 30.12.1999, but he did not join the promotional post within requisite period, as specified in order dated 31.3.2000. As per Govt. Instructions dated 1.9.1989, a Govt. Employee who refuses to accept or fails to join the promotional post, is not entitled to the benefit available under Assured Career Progression Scheme. The plaintiff retired w.e.f. 28.2.2005 before completing his 24 years regular service. 4. It is further submitted that the plaintiff was allowed first proficiency step-up as per Govt. Instructions issued vide Punjab Government Circular dated 1.12.1988. The numerous requests of the plaintiff for the grant of proficiency step on completion of 8/16 and 24 years of service as Supervisor were rejected and he was intimated vide different letters dated 6.11.2002, 21.4.2003, 1.8.2003, 21.7.2004 and 8.10.2004 about his ineligibility for said benefits under rules. Service of notice under Section RSA No.811 of 2011 4 80 CPC has also been admitted. Other material averments have been denied and prayer is made for dismissal of the suit with costs. 5. Replication was filed reiterating the claim of the plaintiff as taken in the plaint and controverting that of the defendant as taken in the written statement. 6. From the pleadings of the parties, the following issues were framed vide order dated 27.10.2006 by the hen learned .Civil Judge (Senior Division), Bathinda:- 1. Whether the plaintiff is entitled to benefits of proficiency step up of 16 and 24 years of service for the purpose of fixation of pay and pensionary benefits? OPP 2. If issue No.1 is proved, whether the plaintiff is entitled to arrears with interest, if so at what rate? OPP. 3. Whether the suit is within limitation? OPP 4. Whether the suit is not maintainable? OPD 5. Whether the plaintiff has no cause of action to file the present suit? OPD 6. Relief. 7. In support of his case plaintiff Bhagirath Ram himself appeared as PW-1 and closed his evidence after tendering certain documents. 8. In rebuttal, the defendant examined DW-1 Barjinder Dhawan Superintendent Grade II. Thereafter, the learned Government Pleader. closed the evidence on behalf of defendants. 9. The trial Court after hearing the learned counsel for the parties and appraisal of the the evidence dismissed the suit of the plaintiff vide judgment and decree dated 25.11.2008. RSA No.811 of 2011 5 10. The plaintiff preferred the appeal and the learned Additional District Judge, Bathinda vide judgment and decree dated 30.10.2010 also dismissed the appeal. 11. The appellant in paragraph No.6 of the grounds of appeal has mentioned that following substantial questions of law have arisen in the present appeal :- i) Whether the period of adhoc services is to be counted while granting proficiency step up ? ii) Whether the first appellate Court erred in directing the respondents to consider the case of the appellant for grant of proficiency step up on completion of 16 years of services, instead of granting the said benefit ? Iii) Whether when the period of adhoc service has already been considered while granting the benefit of proficiency step up on completion of 8 years of service then can it be excluded while granting benefit proficiency step up on completion of 24 years of service ? iv) Whether the judgment and decree of courts below are contrary to law and evidence brought on record ? 12. The plaintiff was appointed on adhoc basis on 15.4.1977. His services were regularized vide order dated 27.1.1984. The counsel for the appellant is fair enough to concede that adhoc service cannot be counted for the purposes of grant of ACP. The plaintiff was promoted vide order dated 28.9.1998 Ex.D-5 but he has foregone his promotion vide letter dated 7.10.1998 Ex D-6. The plaintiff was again promoted vide order dated 30.12.1999 Ex.D-7. The plaintiff failed to join the duty as per the said order Ex.D-7. It is mentioned in Ex.D-7 that person who does not join the duty within ten days, would be debarred from promotion for two years. So, the RSA No.811 of 2011 6 person who has foregone the promotion, is not entitled for ACP. There is concurrent finding of fact recorded by both the Courts below that the plaintiff is not entitled to the grant of ACP. 13. No other point has been urged before me. 14. So, in view of above discussion points for determination mentioned above stand determined against the appellant. 15. In view of the above discussion, the appeal is without any merit and the same stands dismissed. 16. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE July 19 , 2011 sv RSA No.811 of 2011 7 “M/s Kanhaya Lal Madho Mal, plaintiff, filed this suit against Brij Mohan and Co. etc. for the recovery of Rs.6931-80. The plaintiff firm alleged that their firm is registered one and Shanti Parkash is their partner and their firm deals in business of selling Karyana goods in whole sale and retail. The defendant firm is doing its business at Gagret and defendants Nos.2 and 3 are its partners. The defendants firm purchased Karyana goods on credit from the plaintiffs firm with effect from 26.10.1982 to 23.11.1982 for Rs.12161-40. The defendant firm also agreed to pay interest at the rate of Rs.1-1/2% per month which is generally charged by the traders in the locality. The defendants have paid Rs.6500/- as the price of the goods but the remaining amount of Rs.5661/- is due against the defendant. The plaintiff also claimed Rs.6-80/- on account of expenses of the registered notices. The plaintiff claimed interest at the rate of Rs.1-1/2% per month amounting to Rs.1230/- for the above said period and thus total amount comes to Rs.6931-80. 2. The plaintiff also alleged that they have to make the payment of RSA No.811 of 2011 8 Rs.851.30 on account of penalty of central sales tax for not supplying the central sales tax from and the plaintiff reserves its right to recover this amount. 3. Defendants Nos.1 and 2 submitted that the suit is not within the time, order for supply of articles was placed at Gagret and the articles were also sold and handed over at Gagret, payments were also made at Gagret and thus civil court at Hoshiarpur has no jurisdiction to try the suit. The suit is not maintainable. Shanti Parkash has no authority to file the suit. The defendant No.3 is not partner of the defendant firm and thus the suit is not maintainable against defendant No.3. The partnership deed was dissolved on 1.4.1983. They have purchased the Karyana goods on credit from the plaintiff, they have never agreed to pay interest. 4. Defendant No.3 alleged that the firm has been dissolved and this court at Hoshiarpur has no territorial jurisdiction to try this case. Firm was dissolved on 1.4.1983. She denied other allegations of the plaintiff. 5. From the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff is entitled to the suit amount? OPP. 2. Whether the plaintiff is entitled to the interest, if so, at what rate? OPP. 3. Whether the suit is bad for mis-joinder of the parties? OPP. 4. Whether the civil court at Hoshiarpur has the jurisdiction to try this case? OPP. 5. Relief. 6. Plaintiff examined Shanti Parkash PW1, Sudershan Kumar RSA No.811 of 2011 9 Chopra PW2, Kuldip Kumar PW3. 7. On the other hand defendant examined Ashok Kumar DW1, Ram Asra Clerk DW2, Surinder Mohan Bassi DW3, and Brij Mohan.” RSA No.811 of 2011 10 2. Brief facts of the case of the plaintiff are that the plaintiff was retired as a Supervisor from Government Typewriter Workshop Bathinda on 28.2.2005. He was appointed as a Supervisor vide office order No.285 dated 15.4.1977 and retired as such on 28.2.2005, after rendering total service of more than 28 years. He was allowed first proficiency step up vide Controller, Printing & Stationery, Punjab, Chandigarhvide order dated 17.1.1996. The second proficiency step up was due on 2.5.1995 and the third proficiency stop up was due on 2.5.2001, which have not been allowed to the plaintiff. The plaintiff had made numerous requests vide his letters dated 10.7.2003, 17.5.2004 and 26.8.2004, but with no effect. It has been alleged that notice under Section 80 CPC was served upon the defendant on 20.2.2006, but no effect. It is further alleged that as per the latest law of the Hon’ble Supreme Court, if no action is taken on the notice under Section 80 CPC, then the liability and costs etc. are to be borne by the person at fault. Prayer is made that suit of the plaintiff be decreed with costs. 3. Upon notice, the defendants appeared and filed written statement taking preliminary objection regarding the suit being time barred; no cause of action having arisen to the plaintiff to file the present suit; maintainability. On merits, the date of retirement of the plaintiff has been admitted. It has been alleged that the plaintiff was promoted as Supervisor vide office order dated 15.4.1977 on adhoc basis subject to the condition that he will not claim seniority over his seniors. For the regular promotion as supervisor, the office order dated 25.11.1983 was circulated in the department to obtain consent for the regular promotion of Supervisors already filled on adhoc basis. Plaintiff Bhagirath Ram working on adhoc RSA No.811 of 2011 11 basis consented for regular promotion as Supervisor vide his application dated 5.12.1983. After considering the consent furnished by plaintiff, he was promoted as Supervisor on regular basis w.e.f. 1.2.1984 vide office order dated 27.1.1984. The plaintiff was promoted Supervisor on regular basis w.e.f. 1.2.1984, and thus, he completed his 18 years regular service on 31.1.2002. As per Punjab Govt. Instructions issued dated 25.9.1988, the Assured Career Progression Scheme came in force w.e.f. 1.1.1996. As per these instructions as Govt. Employee who completes 8/16/24/32 years of regular service, is entitled to get the benefit of higher scale/proficiency step up. In the light of these instructions, the plaintiff would have completed 16 years regular service as Supervisor on 31.2.2000 had he not been promoted, but before that, he was promoted as Superintendent Grade-I, vide office order No.10285/S-1/Admn/Pb. Dated 28.9.1998. The plaintiff refused to accept the promotion to the post of Superintendent Grade-I vide his application dated 3.10.1998. He was again promoted as Superintendent Grade-I vide office order dated 30.12.1999, but he did not join the promotional post within requisite period, as specified in order dated 31.3.2000. As per Govt. Instructions dated 1.9.1989, a Govt. Employee who refuses to accept or fails to join the promotional post, is not entitled to the benefit available under Assured Career Progression Scheme. The plaintiff retired w.e.f. 28.2.2005 before completing his 24 years regular service. It is further submitted that the plaintiff was allowed first proficiency step-up as per Govt. Instructions issued vide Pb.Govt. Circular dated 1.12.1988. The numerous requests of the plaintiff for the grant of RSA No.811 of 2011 12 proficiency step on completion of 8/16 and 24 years of service as Supervisor were rejected and he was intimated vide different letters dated 6.11.2002, 21.4.2003, 1.8.2003, 21.7.2004 and 8.10.2004 about his ineligibility for said benefits under rules. Service of notice under Section 80 CPC has also been admitted. Other material averments have been denied and prayer is made for dismissal of the suit with costs. 4. Replication was filed reiterating the claim of the plaintiff as taken in the plaint and controverting that of the defendant as taken in the written statement. From the pleadings of the parties, the following issues were framed vide order dated 27.10.2006 by the hen Ld.Civil Judge (Sr.Division), Bathinda:- 1. Whether the plaintiff is entitled to benefits of proficiency step up of 16 and 24 years of service for the purpose of fixation of pay and pensionary benefits? OPP 2. If issue No.1 is proved, whether the plaintiff is entitled to arrears with interest, if so at what rate? OPP. 3. Whether the suit is within limitation? OPP 4. Whether the suit is not maintainable? OPD 5. Whether the plaintiff has no cause of action to file the present suit? OPD 6. Relief. 5. In order to prove its case, plaintiff Bhagirath Ram himself appeared as PW-1, and tendered into evidence his affidavit Ex.PW1/A, towards his examination in chief. Thereafter, the ld. Counsel for the plaintiff closed the evidence on behalf of plaintiff after tendering into documents. 6. On the other hand to rebut the case of the plaintiff, the defendant examined DW-1 Barjinder Dhawan Superintendent Grade II. Thereafter, the RSA No.811 of 2011 13 learned Government Pleader closed the evidence on behalf of defendants. The trial Court after hearing the learned counsel for the parties and appraisal of the the evidence dismissed the suit of the plaintiff vide judgment and decree dated 25.11.2008. The plaintiff preferred the appeal and the learned Additional District Judge, Bathinda vide judgment and decree dated 30.10.2010 also dismissed the appeal.