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
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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withdrawn by the defendant/appellants vide order dated 5.8.1995.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
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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
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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
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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
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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
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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
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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
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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.