R.S.A. No. 1565 of 1992 (O&M)
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
R.S.A. No. 1565 of 1992 (O&M)
Date of decision: 16.03.2009
State of Haryana
....Appellant
Versus
Kewal Dass and others
....Respondents
CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA
Present: Mr. Madan Gupta, Sr. D.A.G., Haryana.
Ms. Abha Rathore, Advocate,
for respondent No. 1.
*****
VINOD K. SHARMA, J (ORAL)
This regular second appeal is directed against the judgment
and decree dated 29.1.1992 passed by the learned lower appellate Court
vide which the suit filed by the respondent/plaintiff for declaration to the
effect that the orders dated 16.10.1974 and 5.2.1976 by virtue of which
defendants No. 2 to 5 and defendants No. 6 to 8 were promoted as Chief
Inspectors, respectively by the Transport Commissioner, Haryana,
Chandigarh, were illegal, ultra vires and against the provisions of the
Punjab Civil Services Rules, 1952 and not binding on the rights of the
plaintiff with consequential relief that the plaintiff/respondent was
entitled to all the benefits i.e. arrear of pay and allowances from the date
of his promotion till 9.11.1979, when he was promoted as Chief Welfare
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Inspector, stands decreed.
The plaintiff was appointed as Conductor in the Punjab
Roadways on 1.6.1955, and thereafter was absorbed in the Haryana
State. Prior to his allocation to Haryana, he was promoted as Inspector
on 1.6.1962 on the basis of seniority-cum-merit. The plaintiff claimed
that he discharged his duties diligently and to the satisfaction of his
officers. He even earned appreciation letter and good reports from his
officers. He was never conveyed any adverse report.
In the year 1974, the appellant/defendants made promotions to
the post of Chief Welfare Inspector. However, plaintiff/respondent was
not considered for promotion. He claimed that he was wrongly ignored
for promotion vide order dated 16.10.1974. The plaintiff/respondent
made representation against the impugned order, but received no
response. The defendant/appellant thereafter made another set of
promotions on 5.2.1976 wherein the plaintiff was again ignored without
assigining any reason. The plaintiff/respondent claimed that he made
representation against the order of 1976 that was also not replied to. It
was only on the reminder issued by the plaintiff that he received letter
dated 8.2.1985 informing him that his representation stood rejected on
16.5.1979. Plainitff asserted that the impugned order was neither sent to
him nor it was in his knowledge. The plaintiff/respondent, thereafter
filed the suit for declaration to challenge the orders ignoring him for
promotion with consequential relief referred to above.
Notice of the suit was issued, which was contested on legal
grounds. Defendants No. 2 to 8 did not appear despite service, and were
proceeded against ex parte.
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Appellant/defendant took preliminary objection that the suit
was time barred, and also that the civil Court had no territorial
jurisdiction to entertain the suit. It was also the case set up by the
defendant/appellant that the suit in present form was not maintainable.
On merits, it was pleaded that defendant No. 5 was promoted
as Inspector prior to the plaintiff. Similarly, defendant No. 2 was senior
to the plaintiff, although he was promoted as Inspector after the plaintiff.
It was also the case of the defendant/appellant that the service record and
performance of duty by plaintiff/respondent was not satisfactory. It was
pleaded that there was adverse entry in his ACR, which was conveyed to
him. The positive case set up was that the case of the plaintiff was
considered for promotion on the basis of his seniority, but he was not
found fit for promotion as Chief Inspector and, therefore, was ignored
and his juniors were promoted on the basis of seniority-cum-merit. It
was admitted by the defendant/appellant that the representations were
made by the plaintiff/respondent against the orders impugned and the
same were rejected after due consideration vide letter dated 29.5.1979.
It was pleaded that the plaintiff was duly informed about the said orders
by General Manager, Haryana Roadways, Chandigarh, under whom he
was working.
In replication, the plaintiff/respondent reiterated the assertions
made in the plaint and controverted those taken in the written statement.
On the pleadings of the parties, the learned trial Court was
pleased to frame the following issues: –
“1. Whether plaintiff was liable for promotion as
alleged by him? OPP.
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2. Whether the order dated 16.10.74 and 5.2.76
are illegal unconstitutional and not binding
upon the plaintiff? OPP.
3. Whether the suit is time barred? OPD.
4. Whether the civil Court has no jurisdiction to
hear the present suit ? OPD.
5. Whether the suit is not maintainable in the
present form? OPD.
6. Whether the defendants No. 2 to 8 were rightly
promoted, if so to what effect? OPD.
7. Whether the service record of the plaintiff was
not satisfactory if so to what effect? OPD.
8. Relief.”
Issues No. 2, 6 and 7 were taken up together, and on the basis
of evidence on record, the learned trial Court was pleased to hold that the
plaintiff was not entitled to promotion as alleged by him. The orders
impugned were held to be legal and not unconstitutional and, therefore,
binding on the plaintiff/respondent. The learned Court also held that
keeping in view that the plaintiff was also considered along with others,
the promotion of defendants No. 2 to 8 was held to be rightly made.
Whereas on issue No. 7, the learned trial Court held that the service
record was not satisfactory, thus issues referred to above, were decided
against the plaintiff/respondent. The learned trial Court on issue No. 3
held that the suit was barred by limitation.
In view of the findings recorded above, the suit was ordered to
be dismissed.
Plaintiff/respondent prefered an appeal against the judgment
and decree passed by the learned trial Court.
The learned lower appellate Court was pleased to reverse the
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findings of the learned trial Court on issues No. 1, 2, 6 and 7 primarily on
the ground that the positive evidence brought on record shows that
adverse entry in ACR was not conveyed to the plaintiff/respondent. The
learned Court further held that the service record of the
plaintiff/respondent was satisfactory, therefore, the orders ignoring him
from promotion, when the basis for promotion was seniority-cum-merit,
could not be sustained.
In view of the findings recorded above, the learned lower
appellate Court was pleased to reverse the findings of the learned trial
Court, and held that the plaintiff was entitled to be promoted from the
date his juniors were so promoted.
It may be noticed here that the plaintiff/respondent was, in fact,
promoted on 9.11.1979, the dispute, therefore, is with regard to the claim
of promotion from 1974 to 1979.
The learned lower appellate Court also reversed the finding of
the learned trial Court on issue No. 3 in view of the fact that the evidence
brought on record did not prove service of order Ex. DW-1/B on the
plaintiff/respondent. The learned lower appellate Court held that it was
only in the year 1985 that the plaintiff was informed about rejection of
his representation, therefore, the knowledge of the impugned order
rejecting his representation could be attributed to the plaintiff only in
1985. The suit was, thus, within limitation having been filed within three
years of knowledge. The finding on issue No. 3 was also reversed and
the suit filed by the plaintiff/respondent was decreed.
The learned Senior Deputy Advocate General, Haryana,
contends that this appeal raises the following substantial questions of
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law: –
“1. Whether the suit filed by the plaintiff was prima facie
barred by limitation and, therefore, finding of the
learned lower appellate Court on issue No. 3 is
perverse and liable to be set aside?
2. Whether the finding recorded by the learned lower
appellate Court on issue No. 3 is outcome of
misreading of documentary and oral evidence on
record and, therefore, liable to be set aside?”
Mr. Madan Gupta, the learned Senior Deputy Advocate
General in support of the substantial questions of law vehemently
contends that the orders dated 16.10.1974 as well as 5.2.1976 were
within the knowledge of the respondent, as he made representations
against the said orders. The representations made by the
plaintiff/respondent were not statutory representations and, therefore, the
learned lower appellate court erred in law in holding the suit to be within
limitation, though filed after more than 12 years of the orders.
The learned lower appellate Court committed an error in law to
reverse the finding on issue No. 3 by treating starting point for limitation
to be in the year 1985 when intimation was sent to the
plaintiff/respondent informing him that representation against the
impugned orders had been rejected in the year 1979.
The learned Senior Deputy Advocate General also contends
that the order rejecting his representation was placed on record as DW-
1/B, which proved the fact that the representation was considered and
rejected by the department and, therefore, the learned trial Court was
right in holding that the plaintiff/respondent being an employee in the
same department could be attributed knowledge of the order, the finding
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thus is based on misreading of documentary as well as oral evidence on
record.
Ms. Abha Rathore, learned counsel appearing on behalf of
respondent No. 1 contends that once the plaintiff had chosen to file the
representation, he was required to wait for the result of the said
representation. Learned counsel for respondent No. 1 contends that the
representations were duly forwarded, rather representations were sent
through proper channel, and admittedly the order conveying rejection of
his representations was also received through General Manager in the
year 1985, therefore, the finding of the learned lower appellate Court is
based on appreciation of evidence on record, and cannot be said to be
perverse. It is also the case of the learned counsel for the
plaintiff/respondent No. 1, that in the oral evidence of DW-1, there was
clear admission that he was unable to tell whether the orders passed in
1979 were served on the plaintiff or not.
The contention of the learned counsel for the respondent No. 1,
therefore, is that the learned lower appellate Court was right in reversing
the finding on issue No. 3, as no presumption of service could be drawn
especially in view of the positive evidence on record to the contrary.
Thus, it is the case of the plaintiff/respondent No. 1 that the suit was
rightly held to be within limitation.
Ms. Abha Rathore, learned counsel for respondent No. 1
further contended that according to the Punjab Civil Services
(Punishment and Appeal Rules) 1952, withholding of increment or
promotion, including stoppage of efficiency bar, if any, is one of the
major penalties and, therefore, the representations were, in fact, a
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statutory appeal, as appellant/defendants treated the representation to be
appeal, in the letter dated 26.5.1979, it was mentioned that the appeal
filed by the plaintiff/respondent stood rejected.
The said decision was conveyed to the plaintiff/respondent
only on 30.5.1985. Thus, starting point for limitation was 30.5.1985,
therefore, the contention of the learned Senior Deputy Advocate General,
Haryana, cannot be accepted.
However, on consideration of matter, I find no force in the
contention raised by the learned counsel for the plaintiff/respondent. The
case of plaintiff/respondent was considered along with other employees
for promotion and he was not found fit for promotion. The order not
promoting him could not be said to be penalty under the Punjab Civil
Services (Punishment and Appeal) Rules 1952, as contended. It was
purely an administrative decision. The representation filed by the
plaintiff/respondent against the said decision could not be said to be a
statutory representation, which could extend limitation for filing of suit.
The cause of action to the plaintiff for promotion arose on the date on
which the order of promotion of juniors was passed which was well
within the knowledge of the plaintiff/respondent.
The Hon’ble Supreme Court in S.S. Rathore Vs. State of
Madhya Pradesh, (1989)4 S.C.C. 582 was pleased to lay down as under:
“In respect of many disputes the jurisdiction of the
court is now barred and there is a vesting of
jurisdiction in tribunals and authorities. In several
States the Conduct Rules for government servants
require the administrative remedies to be exhausted
before the disciplinary orders can be challenged in
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Tribunals Act is to give effect to the Disciplinary Rules
and the exhaustion of the remedies available
thereunder is a condition precedent to maintaining of
claims under the said Act. The law should adopt the
line laid down under Section 20. So if the original
order of punishment is taken as the date when cause of
action first accrues for purposes of Article 58 of the
Limitation Act, great hardship is bound to result.
Therefore, the cause of action shall be taken to arise
not from the date of the original adverse order but on
the date when the order of the higher authority where a
statutory remedy is provided for entertaining the appeal
or representation is made and where no such order is
made, though the remedy has been availed of a six
months’ period from the date of preferring of the appeal
or making of the representation shall be taken to be the
date when cause of action shall be taken to have first
arisen. This principle may not be applicable when the
remedy availed of has not been provided by the law.
Repeated unsuccessful representations not provided by
law are not governed by this principle. Submission of
just a memorial or representation to the head of the
establishment shall not be taken into consideration in
the matter of fixing limitation.”
In the case, the representation was not provided for by law and,
therefore, the limitation could not be extended to challenge the impugned
order.
Consequently, the substantial questions of law framed are
answered in favour of the appellant/defendant. The finding of learned
lower appellate Court on issue No. 3 is reversed and it is held that the
suit filed by the respondent/plaintiff was barred by limitation.
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In view of reversal of finding on issue No. 3, this regular
second appeal is allowed, the judgment and decree passed by the learned
lower appellate Court is set aside and that of learned trial Court is
restored, but with no order as to costs.
(Vinod K. Sharma)
Judge
March 16, 2009
R.S.