Punjab-Haryana High Court
State Of Haryana And Others vs Tejbir Singh on 2 November, 2012
Author: A.N. Jindal
Bench: A.N. Jindal
RSA No. 5136 of 2011 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No. 5136 of 2011 (O&M)
Date of decision: 02.11.2012
State of Haryana and others
....Appellants
Versus
Tejbir Singh
....Respondent
CORAM: HON'BLE MR. JUSTICE A.N. JINDAL
*****
Present: Mr. Anupam Sharma, AAG, Haryana,
for the appellants.
Mr. Bahadur Singh, Advocate,
for the respondent.
A.N. JINDAL, J (ORAL)
This appeal has arisen out of the judgment dated 26.09.2009 passed by the Additional District Judge-III, Bhiwani, dismissing the appeal filed by the defendants-appellants (hereinafter referred as 'the defendants') against the judgment and decree dated 14.06.2008 passed by the trial Court, decreeing the suit of the plaintiff-respondent (hereinafter referred as 'the plaintiff').
The plaintiff had filed a suit for declaration alleging therein that while working as Math Master, he was suspended on 19.02.1995 and was reinstated with effect from 01.09.1996. However, he was promoted vide order dated 10.03.1995 passed by the Director, Secondary Education, Haryana and he joined on the promoted post with effect from 15.02.1996. As per the directions of the Court, his RSA No. 5136 of 2011 (O&M) 2 suspension period was treated as duty period for all other intents and purposes. It was further averred that defendant No.2 had illegally ordered to fix his pay on the promoted post with effect from 15.02.1996, the date on which he actually joined duties on the promoted post, but he was entitled to get his notional pay fixed with effect from 23.05.1995.
Upon notice, the defendants filed written statement, wherein it was pleaded that the suit of the plaintiff was not maintainable. It was further pleaded that the plaintiff was inadvertently promoted during the suspension period and therefore, he has no right to get his pay re-fixed with retrospective effect and his pay has been rightly fixed on the promoted post with effect from the date on which he actually joined his duty.
From the pleadings of the parties, following issues were framed by the trial Court:-
1. Whether plaintiff is entitled to get notional pay fixation with effect from 23.05.1995 and memo No.4/269-2002-E-IV-(3) dated 20.01.2004 is wrong, illegal and against the service Rules and not binding on the rights of the plaintiff and liable to be set aside? OPP
2. Whether plaintiff is entitled to a decree for mandatory injunction regarding re-fixation of substantive pay w.e.f. 15.02.1996 and he is also entitled for arrears of salary along with 18% p.m. Interest? OPD
3. Whether present suit is not maintainable in the present form?
OPD RSA No. 5136 of 2011 (O&M) 3
4. Whether the suit is time barred? OPD
5. Relief.
Both the parties led evidence. Ultimately, the trial Court decreed the suit vide judgment and decree dated 14.06.2008, against which, an appeal was preferred by the defendants, which was dismissed by the first Appellate Court on 26.09.2009.
Arguments heard at length.
It is well settled by now that the pay of the senior cannot be less than that of a junior, if both the employees are coming from the same source. There is no dispute with regard to the fact that the plaintiff as well as Ram Chander had come from the same source. It is not in dispute that on account of some departmental enquiry, the plaintiff remained under suspension from 19.02.1995 to 01.09.1996, but he was promoted during his suspension period vide order dated 10.03.1995 passed by the Director, Secondary Education, Haryana. It is also not in dispute that the plaintiff was punished with stoppage of one increment only and that too without any cumulative effect and his suspension period was treated as duty period for all intents and purposes. Even arrears of pay and allowances have been paid to him, therefore, there was no embargo to consider the respondent for promotion with effect from 23.05.1995. As such, the trial Court has rightly decreed the suit of the plaintiff to the effect that he is entitled to get his pay fixed on the promoted post with effect from 23.05.1995 and he is also entitled to all other consequential benefits of such pay fixation.
Both the Courts below appear to have taken right view of RSA No. 5136 of 2011 (O&M) 4 the matter.
Even otherwise, this appeal has been preferred after a delay of 728 days, which stands unexplained. No grounds are made out to condone the delay in filing the appeal. As such, the application for condonation of delay stands dismissed.
Consequently, the main appeal also fails and the same is hereby dismissed.
(A.N. Jindal) 02.11.2012 Judge ajp