IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH
R.S.A. No. 2328 of 2008
Date of Decision: July 31, 2009
Shiv Ram ...........Appellant
Versus
State of Haryana and others ..........Respondents
Coram: Hon'ble Mrs. Justice Sabina
Present: Mr.U.K.Agnihotri,Advocate for the appellant.
Mr.Sukhant Gupta, Additional Advocate General, Haryana
Sabina, J.
Shiv Ram, plaintiff has filed a suit for declaration . The suit
of the plaintiff was dismissed by the Additional Civil Judge (Senior
Division) Jind vide judgment and decree dated 28.2.2005. Plaintiff
preferred an appeal and the same was dismissed by the District Judge,
Jind vide judgment and decree dated 25.10.2007. Hence, the present
appeal.
The brief facts of the case, as noticed by the learned
Additional District Judge in paras 2 and 3 of its judgment, reads as under:-
“The plaintiff had joined as Patwari in the Forest Department,
Government of Haryana, on 14.8.1989. The plaintiff had earlier
served the Indian Army. When he was student of 10th class, there
was period of National Emergency due to China war. An
Ordinance had been issued to the then President of India. He
joined the Indian Army on 12.4.1963 and remained in the service
upto 30.4.1978. Vide another Ordinance by the then President of
India, period of emergency w.e.f. 26.10.1962 to 10.1.1968 was to
R.S.A. No. 2328 of 2008 -2-be counted for service benefits.
It is further the case of the plaintiff that after his
retirement from the Army, he had joined as a clerk in the Election
Office of Deputy Commissioner, Jind. He worked there w.e.f.
18.6.1983 to 31.1.1984. Thereafter, he joined as Revenue Patwari
in District Jind, where he remained posted from 14.8.1986 to
4.9.1989.
It is further the case of the plaintiff that as his age
was less than 18 years when he joined the India Army, benefit of
emergency period vide order dated 6.6.1986 of the then Deputy
Commissioner, Jind was given only for the period of 4 years 8
months and 29 days i.e. counting it from the period when he
became 18 years of age.
It is claimed that after service in the Revenue
Department, the plaintiff was taken by the Forest Department and
it was “simply transfer of the plaintiff”. It is further the case of
the plaintiff that he had made representation to the Forest
Department, but the same was declined by the Principal Chief
Conservator of Forests, Haryana, vide letter dated 23.12.1992
mentioning therein that benefit of emergency period had already
been given to the plaintiff by the Deputy Commissioner, Jind, his
representation was declined. It is claimed that by giving benefit
of service rendered during the Emergency period, his seniority
was fixed w.e.f. 22.2.1982.
It is still further the case of the plaintiff that after
having been given benefit of his past service, he was not given the
R.S.A. No. 2328 of 2008 -3-
benefit of his promotion though he was entitled to the same.
Averring that many juniors of the plaintiff have been promoted by
ignoring the plaintiff, the plaintiff has sought promotion on parity
with his juniors who were allegedly made forest Kanungos on
25.8.1992. When the defendants refused to admit the claim of the
plaintiff, litigation ensued.
3. In joint written statement furnished by defendants no. 1 to 4,
various preliminary objections, as reflected in the array of issues,
were taken. On merits, it was accepted that the plaintiff was as
Ex-Army Personal, but it was admitted that benefit of his military
service had already been given to him by the Deputy
Commissioner, District Jind, for which reference was made to
order dated 12.7.1988. It was claimed that the plaintiff had joined
the Forest Department as Patwari w.e.f. 5.9.1989 and not w.e.f.
14.8.1989.
It was clarified that the plaintiff joined Forest Department as
Patwari on 5.9.1989 by way of mutual transfer with one Mohinder
Singh Patwari of the Forest Department. Referring to letter dated
11.1.1979 of Government of Haryana, it was elaborated that
mutual transfer from one Department to another cannot be treated
in public interest and seniority of such employee has to be fixed
at the tail of the employees already working in that department.
In short, it was clarified that the plaintiff had lost his seniority in
the Revenue Department and while joining the Forest Department
he came on the tail of the employees already working. It was
further clarified that no person junior to the plaintiff has been
R.S.A. No. 2328 of 2008 -4-
promoted. Asserting that benefits permissible to the plaintiff have
already been given except seniority in the Forest Department.
Claiming that no person junior to the plaintiff has been promoted
to the post of Kanungo, prayer for dismissal of the suit was made.
On the pleadings of the parties, the following issues were
framed by the trial Court:-
“i) Whether the plaintiff is entitled to promotion of Kanungo as
alleged in the plaint and is also entitled for the consequential
benefits as alleged in the plaint ?OPP
ii) Whether the suit is not maintainable in the present form?OPD
iii) Whether the plaintiff has no cause of action ?OPD
iv) Whether the suit filed by the plaintiff is not within
limitation?OPD
v) Relief.”
After hearing the learned counsel for the appellant, I am of
the opinion that this appeal is devoid of any merit.
Admittedly, the appellant was born on 19.7.1945. He served
with the Indian Army with effect from 12.4.1963 to 30.4.1978. Thereafter,
plaintiff joined the Revenue Department as Patwari in District Jind on
14.8.1986 and continued in the said department up to 4.9.1989. Thereafter,
the appellant joined the Forest Department on 5.9.1989. Both the Courts
below after appreciating the evidence on record have held that the appellant
had joined the Forest Department on the basis of mutual transfer with
Mahinder Singh who was serving in the Forest Department. Appellant
came from the Revenue Department to Forest Department, whereas,
Mahinder Singh went to the Forest Department from the Revenue
R.S.A. No. 2328 of 2008 -5-
Department. In this regard, reliance was placed on communication (Exhibit
P5) dated 18.9.1992 made by the appellant to the Principal, Conservator of
Forests. In the circular letter dated 11.1.1979 (Exhibit D1), it was not
specifically mentioned that the appointment of the appellant in the Forest
Department was on the basis of mutual transfer yet the fact that the plaintiff
came in the Forest Department on the basis of the mutual transfer was
established from Exhibit P5. Learned District Judge in its judgment has
further observed that the plaintiff himself, while appearing in the witness
box as PW4, has conceded that he had joined the Forest Department on
mutual transfer basis. In these circumstances, the appellant could not be
given the benefit of military service again as the same had already been
granted to him in the Revenue Department vide letter dated 6.6.1988 issued
by the Deputy Commissioner Jind.
No substantial question of law arises in this regular second
appeal which would warrant interference by this Court. Accordingly, this
appeal is dismissed.
( Sabina )
Judge
July 31, 2009
arya