Himachal Pradesh High Court
Himachal Pradesh State Co-Operative ... vs Sh. Bhupinder Desta And Others on 13 August, 2019
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 4304 of 2013 along with CMP(M) No. 11124 of .
2013 and RSA No. 375 of 2019.
Reserved on : 7th August, 2019.
Decided on : 13th August, 2019.
1. RSA No.4304 of 2013.
Himachal Pradesh State Co-operative Marketing and Consumer's Federation Ltd., Shimla.
r ...Appellant-defendant.
Versus
Sh. Bhupinder Desta and others
....Respondents.
2. CMP(M) No. 11125 of 2013 and RSA No.375 of 2019.
Pratap Chauhan .....Appellant/Defendant No.3.
Versus Bhupinder Desta and others ....Respondents.
Coram:
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?1 Yes.1
Whether reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 29/09/2019 02:03:29 :::HCHP
...2...
For the Appellant(s): Mr. P.P. Chauhan, Advocate, in .
RSA No. 4304 of 2013 and also for proforma respondents No. 2 and 4, and, also for appellant in CMP(M) No. 11125 of 2013/RSA No. ..........of 2019.
For Respondent No.1: Mr. H.K. Paul, Advocate, in both appeals.
For other respondents: Nemo.
Sureshwar Thakur, Judge.
The plaintiff, one Bhupinder Deshta's suit, for, rendition of a declaratory decree, for, setting aside the promotion meted, by co-defendant No.1, vis-a-vis, the arrayed junior, to, the plaintiff, stood dismissed, by the learned trial Court. However, in an appeal carried therefrom, by the aggrieved plaintiff, one Bhupender Deshta before the learned first appellate Court, the latter Court, though, set aside the promotion, bestowed, upon, the arrayed defendant(s), in, the apposite civil suit.
However, it did not ipso facto, hence, accord, the, benefit of promotion, vis-a-vis, the plaintiff, rather rendered, a, finding qua it being more appropriate, for, the DPC, to, consider the case of the plaintiff, for, promotion, to, the ::: Downloaded on - 29/09/2019 02:03:29 :::HCHP ...3...
.
aspired post. The defendant No.1 being aggrieved, by the afore verdict pronounced by the learned first appellate court, upon, Civil Appeal No. 18-S/13 of 2011, and, also co-defendant No.4 being aggrieved therefrom, both hence instituted, the, instant RSAs before this Court, 375 of 2019.
r to respectively bearing RSA No.4304 of 2013, and, RSA No
2. Even though, RSA No. 375 of 2019, stands directed, by the aggrieved defendant No.4, one Pratap Chauhan, against the verdict recorded by the learned first appellate Court, and, though, it, stands belatedly instituted, hence, with, a, minimal delay of 42 days, yet with, a, good, and, tangible explication being purveyed by defendant Pratap Chauhan, vis-a-vis, the good cause besetting him, to, rather preclude him, to, institute within time, an appeal against the afore verdict, thereupon, the afore delay, as has occurred, in the institution of the ::: Downloaded on - 29/09/2019 02:03:29 :::HCHP ...4...
.
appeal, stands condoned. Consequently, CMP(M) No. 11125 of 2013, stands disposed of.
3. After hearing the learned counsel appearing, for the parties, the afore RSA No.375 of 2019, stands admitted, on, the following substantial question of law:
"1. Whether the findings of the learned Appellate Court below are based on misreading and mis- appreciation of the evidence on record and settled legal position?
4. Since, both the afore appeals are directed against the verdict recorded, by, the learned first appellate court, upon, Civil Appeal No. 18-S/13 of 2011, thereupon, both the afore appeals, are, amenable for a common decision being recorded, upon, each.
5. Briefly, stated the facts of the case are that plaintiff Bhupinder Deshta initially joined with H.P. State Cooperative Marketing and Consumer Federation Limited, Shimla, the defendant No.1, as Salesman/Storekeeper in November, 1981, and, with the passage of time, he was promoted as Junior Marketing Assistant, on and w.e.f.
::: Downloaded on - 29/09/2019 02:03:29 :::HCHP...5...
.
11.11.1991. The plaintiff, as per the seniority list dated 31.3.2003, was senior to Sh. Harish Gupta, defendant No.1, in the cadre of Junior Marketing Assistants. The next promotional post is that of the Marketing Assistant.
Defendant No.1 has framed recruitment and promotion rules and as per them, the 50% posts of Marketing Assistants are required to be filled on the basis of seniority-cum-merit from amongst the Storekeepers/ Junior marketing Assistants, having five years service, and, the remaining 50% by way of direct recruitment.
This was the practice in the past also. Defendant No.1 vide office order dated 16.8.2006 promoted eight junior marketing assistants to the posts of marketing assistants including Sh. Pratap Chauhan, son of Sh. Hira Singh and Sh. Harish Gupta. As per the plaintiff, Sh. Harish "Gupta was junior to him in the feeder cadre and could not have been promoted by superseding him, since the selections were required to be made on the basis of seniority cum ::: Downloaded on - 29/09/2019 02:03:29 :::HCHP ...6...
.
merit. Otherwise also, he had not done any outstanding work and could not have been promoted by ignoring the plaintiff. Further defendant No.4 was a defaulter of the federation of more than Rs.5 lacs and could not have been considered for promotion at all. It has further been averred that the service record of the plaintiff was commendable and unblemished. He was not having any adverse entry in the annual confidential record and thus there was no occasion of promoting junior officer i.e. defendant No.5 by ignoring him. The plaintiff filed original application before the State Administrative Tribunal but the same was disposed of on 21.5.2008. As per the plaintiff, the order dated 16.8.2006 promoting the defendants No.4 and 5 to the posts of Marketing Assistants by ignoring him, is wrong, null and void and it be set aside. Further be declared to have been promoted to the aforesaid post of Marketing Assistant.
::: Downloaded on - 29/09/2019 02:03:29 :::HCHP...7...
.
6. Defendants No.1 to 3 have contested the suit of the plaintiff, and, filed a joint written statement, wherein, they have taken preliminary objections, inter alia, limitation, joinder of necessary parties, estoppel etc. On merits, through it has been admitted that the plaintiff joined as salesman/storekeeper with defendant No.1, but it is denied that the post of Junior Marketing Assistant is a promotional post. As per them, there is provision of placement from the post of storekeeper to the post of Junior Marketing Assistant and thereafter the promotional post is that of Marketing Assistant. It has been pleaded that as per Himfed Service Rules, all promotions to different posts are made on the basis of merit-cum-
seniority. The plaintiff was duly considered for promotion by the departmental promotional committee held on 4.4.2006 but he could not make it to the merit list. Since, nothing adverse was found against defendant No.4 by the DPC held on 4.4.2006, and, he was not facing any ::: Downloaded on - 29/09/2019 02:03:29 :::HCHP ...8...
.
departmental inquiry or undergoing penalty at the time, when the DPC considered his case. The defendants No. 4 and 5 were found meritorious, vis-a-vis, the plaintiff and on the basis of merit-cum-seniority, they were rightly promoted by ignoring the plaintiff. By denying all other of the suit.
r to allegations, the defendants have prayed for the dismissal
7. The plaintiff filed replication to the written statement of the defendants, wherein, he denied the contents of the written statement and re-affirmed and re-
asserted the averments, made in the plaint.
8. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:-
1. Whether the promotion order dated 16.8.2006 whereby juniors of plaintiff have been promoted, is liable to be declared illegal, null and void, as alleged?OPP.::: Downloaded on - 29/09/2019 02:03:29 :::HCHP
...9...
2. Whether the suit is hopelessly time .
barred, as alleged?OPDs.
3. Whether the suit is not maintainable in the present form as alleged?OPDs.
4. Whether the suit is bad for non joinder of parties, as alleged?OPDs.
5. Whether the plaintiff is estopped from filing the present suit by his own acts and conducts, as alleged?
OPD.
6. Whether the plaintiff has not come to this Court with clean hands, as alleged?OLPD.
7. Relief.
9. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court dismissed, the, plaintiff/respondent No.1's herein, hence, suit. In an appeal, preferred therefrom, by, the plaintiff/respondent No.1 herein, before the learned First Appellate Court, the latter Court allowed, the, appeal, and, reversed the findings recorded by the learned trial Court.
10. Now the defendant(s)/appellant(s) herein, have instituted the instant Regular Second Appeals, before, this Court, wherein they assail the findings, recorded in ::: Downloaded on - 29/09/2019 02:03:29 :::HCHP ...10...
.
its impugned judgment and decree, by the learned first Appellate Court. Both the afore Regular Second Appeals stand respectively admitted, on, the hereinafter extracted substantial questions of law:-
RSA No. 4304 of 2013.
1. Whether the ld. Additional District Judge, Shimla, could have supplied casus omissus to the Service Rules governing the subject matter?
2. Whether the judgment and decree is bad in law on account of ignoring important and relevant evidence adduced by the parties.
3. Whether the findings of the Ld. Appellate Court below are based on misreading and mis-
appreciation of the evidence on record and settled legal position?
RSA No. 375 of 2019.
1. Whether the findings of the learned Appellate Court below are based on misreading and mis-
appreciation of the evidence on record and settled legal position?
::: Downloaded on - 29/09/2019 02:03:29 :::HCHP...11...
.
11. Since, all the afore substantial questions of law in both the appeals, are inter-linked with each other, hence, they are being disposed off through a common discussion.
12. The learned tocounsel appearing aggrieved appellants, has, contended, with much vigour r for the before this Court, that, (i) despite no apposite rule being borne, in the relevant service rules, hence, governing the service(s) of the employees, (ii) and, it hence, casting, an, explicit bar against consideration, for, promotion, of, a delinquent, who, at the relevant stage of his being, considered, for, promotion, to, the promotional post, whereto, both, seniority-cum-merit, is to be adjudged, and, is the apt adjudgeable criterion, is, hence, undergoing, the, penalty imposed upon him, in sequel, to a conclusive inquiry qua mis-conduct, of, embezzlements, and, mis-appropriation of funds. Consequently, he ::: Downloaded on - 29/09/2019 02:03:29 :::HCHP ...12...
.
submits, that, hence, it was inappropriate, for, the learned first appellate Court, to, draw any sustenance from, any, general rule(s) of service jurisprudence, dehors, vis-a-vis, the afore post, no specific rule being borne in the relevant rules, qua, upon, the delinquent, after, affirmative conclusion, of, a valid inquiry, his, at the relevant stage, undergoing, the, penalty imposed, upon him, qua, merely thereupon, the requisite embargo besetting, the, aggrieved, (iii) imperatively with no explicit therein elucidations, qua the aggrieved defendant in both RSAs, being respectively barred to consider, and, thereafter promote one Pratap Singh Chauhan to the relevant post, and, also concomitantly qua hence the latter being not amenable, for, either being considered or being promoted, to, the relevant promotional post. Even though, the afore submission addressed before this Court, by the learned counsel, appearing for the apposite contesting litigant(s), is, to a limited extent hence ::: Downloaded on - 29/09/2019 02:03:29 :::HCHP ...13...
.
acceptable to this Court, inasmuch, as, visibly no explicit rule, is, embodied in the relevant service rules, hence, interdicting or prohibiting the employer, to, upon the delinquent, undergoing, the, apposite penalty, either consider him for promotion to the aspired post or promote him thereto. However, dehors, the non existence of the afore specific rule, in, the relevant service rules, does, to the considered mind of this Court, (iv) given, the seriousness, and, the gravity, of, proven mis-conduct, of, embezzlements, and, mis-appropriation of funds, hence, against one Pratap Chauhan, (v) whereupon,hence a critical aura of doubt engulfes, his rectitude, and, probity, either for his being considered for, the, promotional post or his being appointed thereto, rather obviously, also rendering him, unsuitable, for all the afore purposes.
Paramountly, also with the criteria for promotion, to, the promotional post, being merit-cum-seniority, and, when the concept or notion, of merit, besides efficiency in ::: Downloaded on - 29/09/2019 02:03:29 :::HCHP ...14...
.
service also encompasses, the, highest virtues, of, rectitude, and, honesty, (vi) and, when the latter virtues are evidently wanting, in, one Pratap Chuahan, emphatically, at the stage contemporaneous, to his being considered, to the requisite promotional post, (iv) promotional post, r to thereupon, his being considered, and, appointed to the is, grossly lacking in legality, reiteratedly, dehors, any apposite explicit rule being borne in the service rules. In drawing the afore conclusion, this Court, draw succors, from a verdict of the Hon'ble Apex Court ,rendered in a case titled as State of Tamilnadu vs. Thiru K.S. Murugesan and others, reported in(1995)3 SCC 273, the relevant paragraph no.7 whereof, stands extracted hereinafter:--
7. It would thus be clear that when promotion is under consideration, the previous record forms basis and when the promotion is on merit and ability, the currency of punishment based on previous record stands an impediment. Unless the period of punishment gets expired ::: Downloaded on - 29/09/2019 02:03:29 :::HCHP ...15...
by afflux of time, the claim for consideration during the .
said period cannot be taken up. Othererwise, it would amount to retrospective promotion which is impressible under the Rules and it would be a premium on misconduct.
Under these circumstances, we are of the opinion that the doctrine of double jeopardy has no application and non-
consideration is neither viola-tive of Article 21 nor Article 14 read with 16 of the Constitution.
(a) wherein it stands expostulated that, unless, the period of punishment, stands expired, with efflux of time, rather thereupto, the claim for consideration being not amenable to be taken up, as, thereupon, it would beget, the, ill sequel, of, impermissible retrospective promotion, being accorded, (b) and, also tantamounting, to, assigning premium, to, misconduct. In aftermath, in consonance therewith, the afore findings recorded by this Court, hence, being facilitative, for, validating the findings rendered by the learned first Appellate Court, thereupon, the impugned verdict, obviously does not suffer, from, any aura of invalidation. Consequently, all ::: Downloaded on - 29/09/2019 02:03:29 :::HCHP ...16...
.
the substantial questions of law are answered in favour of the respondent/plaintiff, and, against the defendant(s)/appellant(s).
13. In view of the above discussion, there is no merit, in the instant appeals, and, they are dismissed. In sequel, the judgment, and, decree, rendered by the learned Additional District Judge, Shimla, upon, Civil Appeal No. 18-S/13 of 2011, is affirmed, and, maintained.
Decree sheet be prepared accordingly. All pending applications also stand disposed of. No order as to costs.
Records be sent back forthwith.
(Sureshwar Thakur) 13 th August, 2019. Judge.
(jai) ::: Downloaded on - 29/09/2019 02:03:29 :::HCHP