STATE OF PUNJAB Vs. SHAM LAL CHAWLA

JUDGEMENT

(1.) Civil Miscellaneous Application No. 1588-C of 1995 filed under Order 41 Rule 5 of the Code of Civil Procedure for staying the execution proceedings came up for hearing on 22.5.1995 and on the request of counsel for the parties, arguments were heard in the main appeal and orders reserved.

(2.) Plaintiff-respondent joined as a Clerk in the Irrigation Department of the State of Punjab on 16.12.1961. The Department retrenched the surplus staff including the plaintiff and he was served with a notice for termination of his services on 30.1.1966. He was relieved on 6.4.1966. In the meantime, the Subordinate Service Selection Board recommended the name of the plaintiff for appointment as a Clerk in the Forest Department and in pursuance of this recommendation he was given a fresh appointment in this Department where he joined on 7.4.1966. It will be seen that there was no break in service of the plaintiff. A seniority list of Clerks was circulated by the Department on 1.4.1981 in which the plaintiff was shown at serial number 33. He was shown below Vidya Rattan, Devi Parshad and Hem Raj who were placed at serial numbers 30, 31 and 32 on the seniority list respectively. Thereafter, the plaintiff after passing the Assistant Grade Examination in June, 1985 was promoted as an Assistant on 26.11.1985. The aforesaid three persons who were senior to the plaintiff as Clerks were promoted as Assistants on 3.6.1987, 2.12.1987 and 8.7.1987 respectively. Though they had been promoted long after the plaintiff, their seniority in the cadre of Clerks was maintained because all these officials had passed the Assistant Grade Examination within the first five chances available to them. It may be mentioned that according to Rule 10(2) of the Punjab State Assistant Grade Examination Rules, 1984 if a person holding the post of a Clerk qualifies the test for promotion to the post of an Assistant within the first five chances available to him after his appointment, he shall on his promotion to the post of Assistant be assigned seniority in the cadre of Assistants in accordance with his seniority in the appointment from which he had been promoted to the post of Assistant. The Department then circulated on 28.2.1988 the seniority list of Assistants as on 30.11.1987. In this seniority list, the plaintiff was shown junior to the aforesaid 3 officials but his primary grievance was that in terms of the Government instructions issued on 5.9.1955, he had not been given the benefit of his past service in the Irrigation Department. He filed a representation on 15.6.1988 which was rejected by the competent authority on 28.9.1989. It was then that the plaintiff filed a suit out of which the present appeal has arisen seeking a declaration that he was entitled to the benefit of his service which he had rendered in the Irrigation Department. The suit was contested by the State of Punjab and it was pleaded that the order rejecting the representation was legal and valid and the plaintiff was not entitled to get the benefit of his service in the Irrigation Department. It was further pleaded that the suit was barred by time since the first seniority list of Clerks was circulated on 1.4.1981 and the plaintiff filed the present suit in April, 1991. Pleadings of the parties gave rise to the following issues:-

(3.) On a consideration of the oral and documentary evidence led by the parties, the Courts below decided all the issues in favour of the plaintiff and against the State and consequently the suit was decreed. The State of Punjab has come up in second appeal.