Bal Kishan Chaudhary, J.E v. Haryana Vidyut Parsaran Nigam (HVPN) & Anr.

B.K.Chaudhary, Junior Engineer appellant-plaintiff (hereinafter to be referred as “the plaintiff”) filed the suit for decree of mandatory injunction, directing the Haryana Vidyut Parsaran Nigam and its Chief Engineer respondent-defendants (hereinafter to be referred as “the defendants”), to consider his name for promotion to the higher rank of JE/JE-1 alongwith his juniors and to restore all the consequential benefits.

2. As is evident from the record that the plaintiff joined the defendant- department on 15.6.1962 and had retired on 19.9.1997. His ACRs for the years 1989-90 and 1990-91 were assessed as “average” and in the ACR for the year 1992-93, his honesty was shown as “doubtful”. He was not allowed to cross the efficiency bar for 10 years. In the wake of earlier suit, the defendants were directed to decide his representation for expunging the adverse remarks entered in his ACR for the year 1992-93. The other suit filed by the plaintiff, to consider his name for promotion to the rank of JE/JE-1, from the date when his juniors, namely, Atma Regular Second Appeal No.88 of 2010 2 Ram, Rajinder Kumar etc. were promoted, was dismissed by civil Court, vide judgment and decree dated 9.4.2003. He remained under suspension from

19.8.1975 to 14.3.1977, on account of some departmental enquiry.

3. Levelling a variety of allegations, in all, according to the plaintiff, although his adverse remarks were expunged, but still, his name was not considered for promotion from the date when his juniors were promoted. On the basis of aforesaid allegations, the plaintiff filed the suit for decree of mandatory injunction against the defendants, in the manner indicated here-in-above.

4. The defendants contested the suit and filed the written statement, inter-alia, pleading certain preliminary objections of, maintainability of suit, cause of action of the plaintiff, non-joinder and mis-joinder of necessary parties, estoppal and suppression of material facts. The earlier suit filed by the plaintiff was dismissed and the second suit is not maintainable. On merits, it was submitted that there were 20 other ACRs, where the plaintiff was assessed as “average” and “below average”. Only adverse remarks for the period September 1992 to March 1993 were expunged, in view of the judgment of the civil Court, but the remaining remarks remained the same. Concisely, the defendants claimed that the plaintiff was not entitled for promotion, in view of his service record. It will not be out of place to mention here that the defendants have stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit.

5. Controverting the allegations contained in the written statement and reiterating the pleadings of the plaint, the plaintiff filed the replication. In the wake of pleadings of the parties, the trial Court framed the following issues for trial:-

1. Whether the plaintiff is entitled to a decree for mandatory injunction as prayed for?OPP

2. Whether the suit is not maintainable?OPD

3. Whether the plaintiff has not come to the Court with clean hands and suppressed the true and material facts from the court?OPD

4. Whether the plaintiff suit is bad for misjoinder and Regular Second Appeal No.88 of 2010 3 nonjoinder of necessary parties?OPD

5. Whether plaintiff is estopped from filing the present suit by his own act and conduct?OPD

6. Whether the plaintiff has no cause of action and court has no jurisdiction to try the suit?OPD

7. Whether suit is not properly valued for purposes of court fee and jurisdiction?OPD

8. Relief.

6. The parties brought on record the oral as well as documentary evidence, in order to substantiate their respective pleas.

7. The trial Court, on ultimate analysis of the evidence on record, dismissed the suit of the plaintiff, vide impugned judgment and decree dated

3.5.2008.

8. Aggrieved by the judgment and decree of the trial Court, the plaintiff filed the appeal, which was dismissed as well, by the Ist Appellate Court, vide impugned judgment and decree dated 28.7.2009.

9. The appellant (plaintiff) still did not feel satisfied with the impugned judgments and the decrees of the Courts below and filed the present appeal.

10. After hearing the learned counsel for the appellant-plaintiff, after going through the record with his valuable assistance and after considering the matter deeply, to my mind, there is no merit in this appeal.

11. The solitary argument of the learned counsel that since the plaintiff was senior, so, he deserved to be promoted from the date when his juniors were promoted and he was entitled to all consequential benefits, is not tenable. The bare perusal of the record would reveal that the entire service record of the plaintiff remained unsatisfactory and on that account, he was not promoted. The mere fact that the adverse remarks for the period with effect from 27.9.1992 to 31.3.1993 were expunged by the civil Court, ipso facto, is no ground to promote the plaintiff as claimed, because his entire service record has to be considered by the authorities at the time of promotion. Regular Second Appeal No.88 of 2010 4

12. There is another aspect of the matter, which can be viewed from a different angle. It is not a matter of dispute that the plaintiff had earlier filed civil suit No.149 of 1997 claiming his promotion to the post of JE-1 on the same grounds. The suit was dismissed vide judgment and decree dated 9.4.2003. The plaintiff had filed an appeal, which was also dismissed on merits, by the Ist Appellate Court, vide judgment and decree dated 14.9.2004. However, liberty was granted to him to move a detailed representation to the authorities. Once, the similar claim of the plaintiff was negatived by the Courts in an earlier suit, then he is naturally estopped from claiming the same relief in the present suit in this regard.

13. The trial Court recorded findings of fact that all the admissible benefits have already been paid to the plaintiff by the defendants, vide order (Ex.D1) and that since his (plaintiff) service record was not satisfactory and he had earned only “average” and “below average” remarks in the ACRs, so, he was rightly ignored for promotion. He has already retired from service. These findings of fact are validly upheld by the first Appellate Court. Such pure concurrent findings of fact based on the evidence, cannot possibly be interfered with by this Court, while exercising the powers conferred under section 100 CPC, unless and until, the same are illegal and perverse. No such patent illegality or legal infirmity has been pointed out by the learned counsel for the appellant-plaintiff, so as to take a contrary view, than that of the well reasoned decision already arrived at by the Courts below, in this regard.

14. Meaning thereby, the entire case revolves around the re-appreciation and re-appraisal of the evidence on record, which is not legally permissible and is beyond the scope of second appeal. Since no question of law, muchless substantial, is involved in the second appeal, in view of law laid down by Hon'ble Apex Court in case Kashmir Singh v. Harnam Singh & Anr. 2008 (2) R.C.R. (Civil) 688 : 2008 AIR (SC) 1749, so, no interference is warranted in the impugned Regular Second Appeal No.88 of 2010 5 judgments/decrees of the Courts below, as contemplated under section 100 CPC, in the obtaining circumstances of the instant case .

15. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the appellant-plaintiff.

16. In the light of the aforementioned reasons, as there is no merit, therefore, the instant appeal is hereby dismissed. (Mehinder Singh Sullar) Judge

9.7.2010 AS