AT CHANDIGARH v. Kartar Singh & Anr.

HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. Ajay Nara, Advocate for the appellants. *** GURDEV SINGH, J.(ORAL) Kartar Singh, respondent-plaintiff, filed suit for declaration to the effect that the order dated 23.6.2003 despatched on

7.7.2003 by the appellant/defendant No. 1 on the recommendations of defendant No. 2 is illegal, arbitrary and liable to be set aside and that he is entitled to an order in his favour. The suit was dismissed by the Additional Civil Judge (Sr.Divn.), Rewari, vide judgment dated 13.3.2008. He preferred first appeal against that judgement and decree, which was allowed by Additional District Judge, Rewari, vide judgement and order dated

20.10.2009 and the suit was decreed for declaration to the effect that the order dated 23.6.2003 despatched on 7.7.2003 passed by defendant No. 1 on the recommendations of defendant No. 2 is illegal, arbitrary, null and void. This second appeal has been preferred by defendant Nos. 1 and 2 challenging that judgement and decree. The case of the plaintiff, as pleaded in the plaint, is that he was working in HUDA Department since 7.7.1978 and was posted at Sub Division No. 1, Rewari. As per the tentative seniority list his name appears RSA No. 2680 of 2010 -2- at serial No. 88 whereas the name of P.C. Mehta respondent No. 2/defendant No. 3 was mentioned at serial No. 108. Defendant No. 2 wrongly recommended the name of the defendant No. 3 to be considered as senior most JE in the Division and on the basis of that recommendation of defendant No. 2, defendant No. 1 passed the impugned order stating that defendant No. 3 was the senior most JE at the station; which is against the seniority list. This order, vide which his seniority has been changed arbitrarily, directly affects his right for future promotion and is violative of the service rules and regulations and principles of natural justice. On the basis of the order dated 23.10.2007 defendant No. 3 was given additional charge to look after the work of HUDA Division, Rewari, which included the work of passing of bills and spending of money. Defendant No. 3 could not have been empowered to work in the finance matters. The suit was contested by the defendants. Defendants No. 1 and 2 filed a joint written statement, in which they admitted that the name of the plaintiff appears at serial No. 88 in the tentative seniority list and that the impugned order was so passed. They denied the other contention of the plaintiff and pleaded that since the plaintiff was facing the departmental proceedings, no additional charge could not have given to him. It was defendant No. 3, who was senior most, was given the charge of SDE to fill up the gap. No financial benefit or seniority was given to defendant No. 3. They also pleaded that the plaintiff has no cause of action to file the suit and the same is not maintainable. Defendant No. 3 filed his independant written statement but has taken up the same pleas as have been taken by the other defendants. In addition to that he also pleaded that plaintiff was involved in the RSA No. 2680 of 2010 -3- misappropriation of cement from the store and the departmental enquiry under Rule 7 of the Haryna Civil Servies (P& A) Rules 1987 is pending against him. The seniority list so published was tentative which has not been finalilsed as he has already filed a writ petition No. 16225 of 2003 titled as "Puran Chand Mehta Vs. State of Haryana and others", claiming the seniority from the date of his appointment. The impugned order is purely an administrative order without any financial benefits. On the pleading of the parties, the following issued were framed by learned trial Court:- (1)Whether the order dated 23.6.2003 passed by the defendant No. 1 is illegal, arbitrary null and void and is liable to be set aside?OPP (2)Whether the suit is barred by limitation?OPD (3)Whether the plaintiff has no cause of action and locus standi to file the present suit?OPD (4)Whether the plaintiff is estopped by his own act and conduct from filing the present suit?OPD The parties adduced their evidence in support of their respective pleas. After going through that evidence and hearing counsel on their behalf the learned trial court decided issues No. 1, 3 and 4 against the plaintiff and issue No. 2 in his favour and resultantly dismissed his suit. I have heard learned counsel for defendant Nos. 1 and 2. It has been submitted by the counsel for the defendants the impugned order was passed in order to give the additional charge of SDE to defendant No. 3. The plaintiff has no cause of action to file the suit as he could not have been given the additional charge on account of the fact that RSA No. 2680 of 2010 -4- he is facing departmental enquiry . The seniority of the plaintiff was never changed by this order. According to him substantial question of law arises in the present appeal, as to whether the plaintiff has the cause of action to file the suit. It has not been denied by the defendants that in the tentative seniority list the name of plaintiff appears at serial No. 88 whereas the name of defendant No. 3 is at serial No. 108. In fact the plaintiff has challenged the impugned order in which defendant No. 3 has been described to the senior most thereby projecting the case that the plaintiff is junior to him. The plaintiff neither claimed that additional charge be given to him nor his suit was decreed to that effect. Defendant No. 3 could not have been described as senior most at the particular station where the plaintiff is also posted and when he is senior to that defendant. Concurrent findings of fact were recorded by the Lower Courts. The same are not the misreading of evidence nor the same are perverse. No substantial question of law is involved in the present appeal. The same, is therefore, dismissed.

7.12.2010 Poonam (II) (GURDEV SINGH) JUDGE