Punjab-Haryana High Court
State Of Haryana And Others vs Pawan Kumar Jain on 5 April, 2013
Author: A.N. Jindal
Bench: A.N. Jindal
RSA No.2541 of 2006 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No.2541 of 2006 (O&M)
Date of decision: 05.04.2013
State of Haryana and others
......Appellants
Versus
Pawan Kumar Jain
.......Respondent
CORAM : HON'BLE MR. JUSTICE A.N. JINDAL
Present: Mr. Ajay Gupta, Addl. A.G., Haryana,
for the appellants.
Mr. Sushil Jain, Advocate,
for the respondent.
*****
A.N. Jindal, J.
A decree for declaration was passed in favour of the plaintiff- respondent (hereinafter referred as 'the plaintiff') to the effect that he was entitled to be considered for promotion to the post of the Accounts Clerk/Deputy Superintendent and Superintendent w.e.f. 01.12.1976, i.e. the date his juniors have been promoted by the defendants along with arrears of pay and benefits etc. The said arrears were to carry interest at the rate of 8% per annum from the date of accrual till the date of actual payment. The appeal preferred by the defendants-appellants (hereinafter referred as 'the defendants') was dismissed by the first Appellate Court. Hence, this appeal. RSA No.2541 of 2006 (O&M) 2
The factual matrix of the case is that the plaintiff was appointed on 18.01.1972 and his name was figured in the seniority list at Sr. No.1374. Thereafter, he was promoted as Sub Divisional Clerk (S.D.C.) on 15.01.1975 and his seniority was fixed at Sr. No.423. It has been submitted that the officials, who were junior to the plaintiff as Clerk, have been promoted to the post of the Accounts Clerk much earlier to him. The plaintiff was promoted as Accounts Clerk on 27.11.1995. His juniors namely Smt. Madhu Bala, Mukh Ram, Sham Lal Kathuria, Smt. Suman Lata and Harish Chander, superseded him and were promoted to the post of Accounts Clerks and now they are working as Deputy Superintendents. It has been alleged that the defendants, while ignoring the seniority of the plaintiff, as fixed by the S.S. Board, had promoted his juniors. Thus, he pleaded that he was entitled to be considered for promotion to the post of Accounts Clerk and further promotion to the post of Deputy Superintendent and Superintendent respectively from the date, his juniors were promoted, as per seniority list Ex.P17 and Ex.P18.
The suit was contested by the defendants by filing the written statement, wherein it was pleaded that the plaintiff was governed by the old Rules, 1955. According to the said Rules, the Superintending Engineer was competent authority for appointment/promotion of Clerks/Sub Divisional Clerks/Accounts Clerk and the seniority of these establishments was to be maintained at circle level. It was further submitted that Smt. Madhu Bala, Mukh Ram, Sham Lal Kalthuria, Smt. Suman Lata and Harish Chander etc. were promoted by the Superintending Engineers of different circles as per availability of vacancies in those circles. But, after coming into force the new Rules, the seniority is maintained at the State level and now RSA No.2541 of 2006 (O&M) 3 promotions are being made on the basis of seniority list maintained at the State level. The plaintiff was promoted as Accounts Clerk on 27.11.1995 on the basis of new Rules, while others i.e. Smt. Madhu Bala, Mukh Ram etc. were promoted as Sub Divisional Clerks by the Superintending Engineer as per rules pertaining to the year 1955. Thus, it was pleaded that the plaintiff was rightly ignored. It was also submitted that though, he was senior to the others as per old Rules, but his claim for entitling him for promotion was not tenable.
Replication was filed. From the pleadings of the parties, following issues were framed:-
1. Whether the plaintiff is entitled for consideration for promotion to the rank of Accounts Clerk, Deputy Superintendent andSuperintendent from the date, his juniors Smt. Madhu Bala, Mukh Ram, Sham Lal and Harish Chander etc. have been promoted to the rank of Accounts Clerk etc. w.e.f. 01.12.1976 along with the consequential benefits and interest at the rate of 18% per annum on the arrears of pay? OPP
2. Whether the suit of the plaintiff is time barred? OPD
3. Whether suit of the plaintiff is not maintainable in the present form? OPD
4. Whether plaintiff has no cause of action to file the present suit? OPD
5. Relief.
The suit was decreed and the appeal preferred by the defendants was dismissed.
RSA No.2541 of 2006 (O&M) 4
Heard, there is no denying a fact that the plaintiff and others were appointed by the State Service Selection Board (for brevity 'S.S. Board') and according to the seniority list, the plaintiff was senior amongst the persons, who were promoted earlier to him. Different officials were in different circles, including Smt. Madhu Bala and Mukh Ram etc, who were promoted by the Superintending Engineers of different circles as per the vacancies available with them. All this goes to show that the method of promoting the officials, as adopted by the Superintending Engineers of different circles, was totally in disregard to the settled principles of law. The seniority list prepared by the S.S. Board, should have been followed and the plaintiff should have been considered for promotion prior to his juniors. It has not been denied by the defendants that now they are following the new rules and are promoting the officials as per their seniority, fixed by the S.S. Board. The seniority list (Ex.P17), prepared by the S.S. Board, reveals that the name of the plaintiff was at Sr. No.423, while other persons i.e. Mukh Ram, Sham Lal and Madhu Bala etc. have been shown at Sr. No.484, 643 and 696 respectively. Therefore, they could not have been promoted prior to the consideration of the case of plaintiff.
The plaintiff has also relied upon a letter No.808-842/4 NGE- 1/2005 dated 03.05.2005, issued by the Engineer-in-Chief, Irrigation Department, Haryana, Panchkula, regarding determination of seniority of clerical establishment and representation thereof. This letter indicates that the matter was referred to the L.R. and Secretary to the Government of Haryana, Legislative Department, Haryana, for legal opinion. The operative part of the opinion of L.R. of Haryana is reproduced as under:-
"In the Haryana Irrigation Department Circle Clerical (Group-C) Service Rules, 1982, the posts have not been split up circle-wise and the seniority RSA No.2541 of 2006 (O&M) 5 is to be reckoned by the length of service on any post in the service. The seniority is, thus, required to be maintained at Head Office level and not as per Circle level. Therefore, if a junior person has been promoted keeping in view the seniority circle wise, he can be reverted on the ground that he was given promotion on the wrong basis after giving show cause notice."
Thus, the action of the different Superintending Engineers in promoting the officials as per circle-wise seniority, was totally in disregard to the fundamental principles and principles of natural justice.
The judgments delivered by both the Courts below do not smack of any defect or illegality, warranting interference by this Court.
Dismissed.
(A.N.Jindal) 05.04.2013 Judge ajp