High Court Punjab-Haryana High Court

Food Corporation Of India And … vs Subhash Chander on 4 February, 2009

Punjab-Haryana High Court
Food Corporation Of India And … vs Subhash Chander on 4 February, 2009
R.S.A. No. 2556 of 2008 (O&M)
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    IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                   CHANDIGARH



                              R.S.A. No. 2556 of 2008 (O&M)
                              Date of decision: 04.02.2009



Food Corporation of India and others
                                                             ....Appellants



                    Versus



Subhash Chander
                                                            ....Respondent

CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA

Present: Mr. K.K. Gupta, Advocate,
         for the appellants.

                    *****

VINOD K. SHARMA, J (ORAL)

This regular second appeal is directed against the judgment

and decree dated 12.12.2007 passed by the learned lower appellate Court

vide which the suit filed by the plaintiff/respondent for declaration that

he was entitled to selection grade, has been decreed.

The respondent/plaintiff filed a suit for declaration that he was

serving the appellant/defendants since March 2, 1972. Initially the

plaintiff/respondent was appointed as Assistant Grade III and was

promoted as Assistant Grade-II w.e.f. 27.7.1980. The plaintiff claimed

that vide circular No. 22 of 1992 issued by the Head Quarters of the

appellants, plaintiff had been given selection grade after completion of
R.S.A. No. 2556 of 2008 (O&M)
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12 years of service in the same scale. The plaintiff was placed in the

selection grade w.e.f. 1.12.1992 in view of the instructions issued by the

Zonal Office, New Delhi vide order No. 42/93 dated 21.12.1993. The

pay of the plaintiff/respondent was also fixed accordingly w.e.f.

1.12.1992. The benefit granted to the plaintiff/respondent was

withdrawn by the defendant/appellants vide order dated 5.8.1995.

The plaintiff challenged the order dated 5.8.1995 as illegal,

null and void and against the principles of natural justice on the ground

that no opportunity of hearing was given to the plaintiff before

withdrawing his selection grade, and that the order dated 5.8.1995 was

arbitrary and not binding on his rights. It was also pleaded that the

impugned order was non-speaking, therefore, declaration was sought

that he was rightly placed in selection grade on completion of 12 years

of service w.e.f. 1.12.1992, consequential relief was claimed directing

the defendants to give all monetary and other benefits along with

continuity of service w.e.f. 1.12.1992 in the selection grade.

Appellant/defendants on notice, contested the suit by raising

plea that the plainitiff/respondent had no cause of action or locus standi

to maintain the suit. It was also pleaded that the suit was bad for

misjoinder of necessary parties. Bar of estoppel was also pleaded.

On merit the appellant/defendants admitted that the plaintiff

was appointed as A.G. III and promoted as Assistant Grade-II w.e.f.

27.7.1980. The defendant/appellants also took a stand that the

plaintiff/respondent gave option for change of cadre in terms of circular

No. 3 of 1984. The plaintiff/respondent was required to be placed as

junior-most in the accounts cadre. It was also the case set up that as per
R.S.A. No. 2556 of 2008 (O&M)
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circular 22 of 1992, the officials who had put, not less than 12 years of

service on or after 1.12.1987 in the same grade/cadre, were to be eligible

for consideration for selection grade and placement in the selection

grade on the basis of seniorty, subject to rejection of unfit employees.

It was pleaded that as per circular, 30% of the sanctioned posts

in each grade/cadre/category as on 1.12.1987 would be determined for

selection grade for respective grade/cadre/category.

The case, therefore, set up was that number of posts declared

for selection grade in each grade/cadre on the basis of sanctioned

strength as on 1.12.1987 were to remain effective in all the succeeding

years. It was admitted that the plaintiff joined the accounts cadre from

depot cadre and had completed 12 years of service in the grade. It was

pleaded that plaintiff has not completed 12 years of service in accounts

cadre, as his seniority was fixed in the accounts cadre by placing him at

the bottom. It was claimed that in view of the clarification given by the

department on 23.11.1994 the plaintiff/respondent was not entitled to

selection grade. The order withdrawing the grade was claimed to be

justified and legal. It was prayed that the suit filed by the

plaintiff/respondent be dismissed.

On the pleadings of the parties, the learned trial Court was

pleased to frame the following issues: –

“1. Whether the plaintiff is entitled for the selection
grade as alleged? OPP

2. Whether the order dated 5.8.1995 is illegal, null and
void? OPP

3. Whether the plaintiff has got no cause of action to
file the present suit? OPD
R.S.A. No. 2556 of 2008 (O&M)
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4. Whether the suit is bad on account of mis-joinder of
necessary parties? OPD

5. Whether the suit of the plaintiff is not maintainable
in the present form? OPD

6. Relief.”

The suit was decreed by the learned trial Court vide judgment

and decree dated 6.3.2000 by the learned Civil Judge (Junior Division),

Rohtak.

The appellant/defendants preferred an appeal against the

judgment and decree, which was accepted by the learned lower appellate

Court and the case was remanded back to the learned trial Court to

reconsider the appeal, as the application moved by the

appellant/defendants for amendment of the written statement was

allowed by the learned lower appellate Court subject to payment of

Rs.1,500/- (Rupees one thousand five hundred only) as costs.

After the remand, in view of the amended written statement

and replication thereto, the following additional issues were framed: –

“1. Whether the plaintiff is estopped by his act and
conduct to file the present suit? OPD.

2. Whether the suit is bad for misjoinder and neessary
parties as the persons who are much senior to the
plaintiff in seniority list have not been impleaded as
party? OPD.”

The parties again adduced oral as well as documentary

evidence in support of their respective assertions.

No evidence in rebuttal was adduced.

Issue Nos. 1 and 2 were decided against the plaintiff and in

favour of the defendants, primarily by relying on the explanation given
R.S.A. No. 2556 of 2008 (O&M)
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by the department with regard to the employees who were transferred

from one cadre to another. The said explanation reads as under:

Question                               Reply
4. The official who had completed      The official who had completed 12
12 years service in a grade but        yrs service in a grade but
transferred from one unit to other     transferred from one cadre to
unit or one cadre to other cadre       another at the instance of the
who was assigned seniority at the      Corporation, in such cases, the
bottom, if such employee can be        service rendered in the grade but
considered for the placement in the    not in the cadre be taken into

selection grade ignoring his seniors account for considering them for
who have not completed 12 years placement in respective selection
service in a grade. grade. But the official who had
completed 12 years service in a
grade had been transferred from
one cadre to another cadre, in their
own interest foregoing the past
seniority in the parent cadre, such
official shall only be eligible for
placement in the selection grade, if
covered as per the revised seniority
assigned to them in the cadre to
which they opted for. In no
circumstances, the junior employee
can be considered for placement in
the selection grade ignoring the
seniors in the seniority list. The
presumption made by your office is
not in order.

Additional issue No. 1 was also decided against the plaintiff

and it was held that the plaintiff was estopped by his act and conduct to

file the suit, as he had admitted while opting to go to accounts cadre to

lose his seniority. On issue No. 3, it was held that the plaintiff had no

cause of action to maintain the suit. Issue No. 4 with regard to mis-

joinder and non-joinder of necessary parties was also decided against the

plaintiff by holding that the persons senior to the plaintiff/respondent

were not impleaded as party. Resultantly, in view of the findings
R.S.A. No. 2556 of 2008 (O&M)
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recorded, the suit was dismissed.

The plaintiff preferred an appeal against the judgment and

decree and learned lower appellate Court reversed the findings recorded

by the learned trial Court. The learned lower appellate Court has been

pleased to hold that the plaintiff/respondent was entitled to selection

grade on completion of 12 years of service in grade. The eligibility

condition, as given in the circular dated 30.12.1992 Clause 2(II) of the

circular dealing with placement in the selection grade, reads as under: –

“Clause 2(II) Eligibility for placement in selection
grade posts – All the Category III and Category IV
employees who have put in not less than 12 years
service on or after 1.12.1987 in the same grade/cadre
shall be eligible for consideration for selection grade.”

The learned lower appellate Court was pleased to hold that the

clarification sought was in the nature of question and answer. The

interpretation by the departmental official could not overrule the circular.

The findings of the learned trial Court on issue No. 1 were ordered to be

reversed, in view of Clause 2(II) reproduced above.

The learned lower appellate Court also held that the order

dated 5.8.1995 was illegal, null and void, as before withdrawal of the

benefit granted, admittedly, no notice was issued to the

plaintiff/respondent. The findings are based on settled principle of law

that any order affecting civil rights of a person cannot be passed without

following principles of natural justice.

The learned lower appellate Court also reversed the finding of

the learned trial Court on issue No. 4 by holding that as the plaintiff was

seeking selection grade on the basis of service rendered. The

plaintiff/respondent challenged the order of withdrawal of the selection
R.S.A. No. 2556 of 2008 (O&M)
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grade being in violation of natural justice. The persons senior to him

were, therefore, not necessary or proper party. The suit, therefore, could

not be said to be bad for misjoinder of necessary parties.

By reversing the judgment and decree of the learned trial

Court, the suit filed by the plaintiff/respondent was ordered to be

decreed.

Mr. K.K. Gupta, learned counsel, appearing on behalf of the

appellants, raised the following substantial questions of law for

consideration: –

“1. Whether the learned lower appellate Court was
justified in reversing the judgment and decree
passed by the learned trial Court by counting the
seniority in a different cadre when the seniority in
the cadre is maintained separately?

2. Whether the clarificatory letter issued by the
authority issuing instructions cannot be said to be
order modifying the said instructions?

3. Whether on a legal issue an opportunity of hearing
was required to be given?”

Learned counsel for the appellants in support of the substantial

questions of law, as framed, vehemently contends that the learned lower

appellate Court was wrong in ignoring the clarification given by the

competent authority to Clause 2(II) of the circular under which the

employees were entitled to selection grade.

The contention of the learned counsel for the appellants is that

once an option was exercised by the plaintiff/respondent to go to

different cadre by agreeing to lose his seniority, then in absence of

seniors being granted the selection grade, he was not entitled to selection

grade. The finding recorded by the learned lower appellate Court was
R.S.A. No. 2556 of 2008 (O&M)
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claimed to be perverse on the face of record and contrary to the circular.

It is also the contention of the learned counsel for the

appellants that seniority in the cadre of store could not be counted for

grant of selection grade in the accounts department, as is done by the

learned lower appellate Court, therefore, this contention deserves to be

accepted by answering the substantial questions of law in favour of the

appellants.

However, on consideration of matter, I find no force in the

contentions raised by the learned counsel for the appellants. The reading

of Clause 2(II) clearly shows that the person is entitled to selection grade

as the Clause provides that all Category III and Category IV employees

who have not less than 12 years of service on or after 1.12.1987 in the

same grade/cadre shall be eligible for consideration of selection grade.

There is stroke between grade and cadre, which would mean that for

eligibility to selection grade the employee is to have 12 years service

either in cadre or grade. Merely because a person had been placed

junior-most in the transferred cadre, cannot be a ground to deny the

selection grade once he has put in 12 years of service in same grade. The

learned lower appellate Court was also justified in holding that reply

submitted by an official with regard to interpretation of circular was not

binding on the Court. The Court was to apply its independent mind and

come to the conclusion whether the person under circular was entitled to

selection grade or not.

The contention of the learned counsel for the appellants that

the issue involved being legal issue, no notice was required to be issued

before withdrawing the selection grade to the plaintiff/respondent, can
R.S.A. No. 2556 of 2008 (O&M)
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also not be accepted.

It is settled law that any order which affects the civil rights

cannot be passed without following principles of natural justice. By way

of impugned order, the defendants had sought to downgrade the

plaintiff/respondent by withdrawing selection grade and, therefore, order

passed in violation of natural justice cannot be sustained.

The learned lower appellate Court was correct in holding that

the order of withdrawal of selection grade was not passed in consonance

with law, therefore, was rightly declared to be null and void and not

binding on the rights of the plaintiff/respondent.

The substantial questions of law, as framed, are answered

against the appellant/defendants.

No merit.

Dismissed.

(Vinod K. Sharma)
Judge
February 04, 2009
R.S.