R.S.A. No. 1565 of 1992 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 1565 of 1992 (O&M) Date of decision: 16.03.2009 State of Haryana ....Appellant Versus Kewal Dass and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: Mr. Madan Gupta, Sr. D.A.G., Haryana. Ms. Abha Rathore, Advocate, for respondent No. 1. ***** VINOD K. SHARMA, J (ORAL) This regular second appeal is directed against the judgment and decree dated 29.1.1992 passed by the learned lower appellate Court vide which the suit filed by the respondent/plaintiff for declaration to the effect that the orders dated 16.10.1974 and 5.2.1976 by virtue of which defendants No. 2 to 5 and defendants No. 6 to 8 were promoted as Chief Inspectors, respectively by the Transport Commissioner, Haryana, Chandigarh, were illegal, ultra vires and against the provisions of the Punjab Civil Services Rules, 1952 and not binding on the rights of the plaintiff with consequential relief that the plaintiff/respondent was entitled to all the benefits i.e. arrear of pay and allowances from the date of his promotion till 9.11.1979, when he was promoted as Chief Welfare R.S.A. No. 1565 of 1992 (O&M) -2- Inspector, stands decreed. The plaintiff was appointed as Conductor in the Punjab Roadways on 1.6.1955, and thereafter was absorbed in the Haryana State. Prior to his allocation to Haryana, he was promoted as Inspector on 1.6.1962 on the basis of seniority-cum-merit. The plaintiff claimed that he discharged his duties diligently and to the satisfaction of his officers. He even earned appreciation letter and good reports from his officers. He was never conveyed any adverse report. In the year 1974, the appellant/defendants made promotions to the post of Chief Welfare Inspector. However, plaintiff/respondent was not considered for promotion. He claimed that he was wrongly ignored for promotion vide order dated 16.10.1974. The plaintiff/respondent made representation against the impugned order, but received no response. The defendant/appellant thereafter made another set of promotions on 5.2.1976 wherein the plaintiff was again ignored without assigining any reason. The plaintiff/respondent claimed that he made representation against the order of 1976 that was also not replied to. It was only on the reminder issued by the plaintiff that he received letter dated 8.2.1985 informing him that his representation stood rejected on 16.5.1979. Plainitff asserted that the impugned order was neither sent to him nor it was in his knowledge. The plaintiff/respondent, thereafter filed the suit for declaration to challenge the orders ignoring him for promotion with consequential relief referred to above. Notice of the suit was issued, which was contested on legal grounds. Defendants No. 2 to 8 did not appear despite service, and were proceeded against ex parte. R.S.A. No. 1565 of 1992 (O&M) -3- Appellant/defendant took preliminary objection that the suit was time barred, and also that the civil Court had no territorial jurisdiction to entertain the suit. It was also the case set up by the defendant/appellant that the suit in present form was not maintainable. On merits, it was pleaded that defendant No. 5 was promoted as Inspector prior to the plaintiff. Similarly, defendant No. 2 was senior to the plaintiff, although he was promoted as Inspector after the plaintiff. It was also the case of the defendant/appellant that the service record and performance of duty by plaintiff/respondent was not satisfactory. It was pleaded that there was adverse entry in his ACR, which was conveyed to him. The positive case set up was that the case of the plaintiff was considered for promotion on the basis of his seniority, but he was not found fit for promotion as Chief Inspector and, therefore, was ignored and his juniors were promoted on the basis of seniority-cum-merit. It was admitted by the defendant/appellant that the representations were made by the plaintiff/respondent against the orders impugned and the same were rejected after due consideration vide letter dated 29.5.1979. It was pleaded that the plaintiff was duly informed about the said orders by General Manager, Haryana Roadways, Chandigarh, under whom he was working. In replication, the plaintiff/respondent reiterated the assertions made in the plaint and controverted those taken in the written statement. On the pleadings of the parties, the learned trial Court was pleased to frame the following issues: - "1. Whether plaintiff was liable for promotion as alleged by him? OPP. R.S.A. No. 1565 of 1992 (O&M) -4- 2. Whether the order dated 16.10.74 and 5.2.76 are illegal unconstitutional and not binding upon the plaintiff? OPP. 3. Whether the suit is time barred? OPD. 4. Whether the civil Court has no jurisdiction to hear the present suit ? OPD. 5. Whether the suit is not maintainable in the present form? OPD. 6. Whether the defendants No. 2 to 8 were rightly promoted, if so to what effect? OPD. 7. Whether the service record of the plaintiff was not satisfactory if so to what effect? OPD. 8. Relief." Issues No. 2, 6 and 7 were taken up together, and on the basis of evidence on record, the learned trial Court was pleased to hold that the plaintiff was not entitled to promotion as alleged by him. The orders impugned were held to be legal and not unconstitutional and, therefore, binding on the plaintiff/respondent. The learned Court also held that keeping in view that the plaintiff was also considered along with others, the promotion of defendants No. 2 to 8 was held to be rightly made. Whereas on issue No. 7, the learned trial Court held that the service record was not satisfactory, thus issues referred to above, were decided against the plaintiff/respondent. The learned trial Court on issue No. 3 held that the suit was barred by limitation. In view of the findings recorded above, the suit was ordered to be dismissed. Plaintiff/respondent prefered an appeal against the judgment and decree passed by the learned trial Court. The learned lower appellate Court was pleased to reverse the R.S.A. No. 1565 of 1992 (O&M) -5- findings of the learned trial Court on issues No. 1, 2, 6 and 7 primarily on the ground that the positive evidence brought on record shows that adverse entry in ACR was not conveyed to the plaintiff/respondent. The learned Court further held that the service record of the plaintiff/respondent was satisfactory, therefore, the orders ignoring him from promotion, when the basis for promotion was seniority-cum-merit, could not be sustained. In view of the findings recorded above, the learned lower appellate Court was pleased to reverse the findings of the learned trial Court, and held that the plaintiff was entitled to be promoted from the date his juniors were so promoted. It may be noticed here that the plaintiff/respondent was, in fact, promoted on 9.11.1979, the dispute, therefore, is with regard to the claim of promotion from 1974 to 1979. The learned lower appellate Court also reversed the finding of the learned trial Court on issue No. 3 in view of the fact that the evidence brought on record did not prove service of order Ex. DW-1/B on the plaintiff/respondent. The learned lower appellate Court held that it was only in the year 1985 that the plaintiff was informed about rejection of his representation, therefore, the knowledge of the impugned order rejecting his representation could be attributed to the plaintiff only in 1985. The suit was, thus, within limitation having been filed within three years of knowledge. The finding on issue No. 3 was also reversed and the suit filed by the plaintiff/respondent was decreed. The learned Senior Deputy Advocate General, Haryana, contends that this appeal raises the following substantial questions of R.S.A. No. 1565 of 1992 (O&M) -6- law: - "1. Whether the suit filed by the plaintiff was prima facie barred by limitation and, therefore, finding of the learned lower appellate Court on issue No. 3 is perverse and liable to be set aside? 2. Whether the finding recorded by the learned lower appellate Court on issue No. 3 is outcome of misreading of documentary and oral evidence on record and, therefore, liable to be set aside?" Mr. Madan Gupta, the learned Senior Deputy Advocate General in support of the substantial questions of law vehemently contends that the orders dated 16.10.1974 as well as 5.2.1976 were within the knowledge of the respondent, as he made representations against the said orders. The representations made by the plaintiff/respondent were not statutory representations and, therefore, the learned lower appellate court erred in law in holding the suit to be within limitation, though filed after more than 12 years of the orders. The learned lower appellate Court committed an error in law to reverse the finding on issue No. 3 by treating starting point for limitation to be in the year 1985 when intimation was sent to the plaintiff/respondent informing him that representation against the impugned orders had been rejected in the year 1979. The learned Senior Deputy Advocate General also contends that the order rejecting his representation was placed on record as DW- 1/B, which proved the fact that the representation was considered and rejected by the department and, therefore, the learned trial Court was right in holding that the plaintiff/respondent being an employee in the same department could be attributed knowledge of the order, the finding R.S.A. No. 1565 of 1992 (O&M) -7- thus is based on misreading of documentary as well as oral evidence on record. Ms. Abha Rathore, learned counsel appearing on behalf of respondent No. 1 contends that once the plaintiff had chosen to file the representation, he was required to wait for the result of the said representation. Learned counsel for respondent No. 1 contends that the representations were duly forwarded, rather representations were sent through proper channel, and admittedly the order conveying rejection of his representations was also received through General Manager in the year 1985, therefore, the finding of the learned lower appellate Court is based on appreciation of evidence on record, and cannot be said to be perverse. It is also the case of the learned counsel for the plaintiff/respondent No. 1, that in the oral evidence of DW-1, there was clear admission that he was unable to tell whether the orders passed in 1979 were served on the plaintiff or not. The contention of the learned counsel for the respondent No. 1, therefore, is that the learned lower appellate Court was right in reversing the finding on issue No. 3, as no presumption of service could be drawn especially in view of the positive evidence on record to the contrary. Thus, it is the case of the plaintiff/respondent No. 1 that the suit was rightly held to be within limitation. Ms. Abha Rathore, learned counsel for respondent No. 1 further contended that according to the Punjab Civil Services (Punishment and Appeal Rules) 1952, withholding of increment or promotion, including stoppage of efficiency bar, if any, is one of the major penalties and, therefore, the representations were, in fact, a R.S.A. No. 1565 of 1992 (O&M) -8- statutory appeal, as appellant/defendants treated the representation to be appeal, in the letter dated 26.5.1979, it was mentioned that the appeal filed by the plaintiff/respondent stood rejected. The said decision was conveyed to the plaintiff/respondent only on 30.5.1985. Thus, starting point for limitation was 30.5.1985, therefore, the contention of the learned Senior Deputy Advocate General, Haryana, cannot be accepted. However, on consideration of matter, I find no force in the contention raised by the learned counsel for the plaintiff/respondent. The case of plaintiff/respondent was considered along with other employees for promotion and he was not found fit for promotion. The order not promoting him could not be said to be penalty under the Punjab Civil Services (Punishment and Appeal) Rules 1952, as contended. It was purely an administrative decision. The representation filed by the plaintiff/respondent against the said decision could not be said to be a statutory representation, which could extend limitation for filing of suit. The cause of action to the plaintiff for promotion arose on the date on which the order of promotion of juniors was passed which was well within the knowledge of the plaintiff/respondent. The Hon'ble Supreme Court in S.S. Rathore Vs. State of Madhya Pradesh, (1989)4 S.C.C. 582 was pleased to lay down as under: "In respect of many disputes the jurisdiction of the court is now barred and there is a vesting of jurisdiction in tribunals and authorities. In several States the Conduct Rules for government servants require the administrative remedies to be exhausted before the disciplinary orders can be challenged in R.S.A. No. 1565 of 1992 (O&M) -9- court. The purport of Section 20 of the Administrative Tribunals Act is to give effect to the Disciplinary Rules and the exhaustion of the remedies available thereunder is a condition precedent to maintaining of claims under the said Act. The law should adopt the line laid down under Section 20. So if the original order of punishment is taken as the date when cause of action first accrues for purposes of Article 58 of the Limitation Act, great hardship is bound to result. Therefore, the cause of action shall be taken to arise not from the date of the original adverse order but on the date when the order of the higher authority where a statutory remedy is provided for entertaining the appeal or representation is made and where no such order is made, though the remedy has been availed of a six months' period from the date of preferring of the appeal or making of the representation shall be taken to be the date when cause of action shall be taken to have first arisen. This principle may not be applicable when the remedy availed of has not been provided by the law. Repeated unsuccessful representations not provided by law are not governed by this principle. Submission of just a memorial or representation to the head of the establishment shall not be taken into consideration in the matter of fixing limitation." In the case, the representation was not provided for by law and, therefore, the limitation could not be extended to challenge the impugned order. Consequently, the substantial questions of law framed are answered in favour of the appellant/defendant. The finding of learned lower appellate Court on issue No. 3 is reversed and it is held that the suit filed by the respondent/plaintiff was barred by limitation. R.S.A. No. 1565 of 1992 (O&M) -10- In view of reversal of finding on issue No. 3, this regular second appeal is allowed, the judgment and decree passed by the learned lower appellate Court is set aside and that of learned trial Court is restored, but with no order as to costs. (Vinod K. Sharma) Judge March 16, 2009 R.S.