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2018 DIGILAW 1526 (HP)

Shyam Lal v. Rattan Lal through LRs

2018-08-20

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. The present regular second appeal has been maintained by the appellant, who was defendant No. 2 before the learned trial Court (hereinafter to be called as “defendant No. 2”), laying challenge to the judgment and decree, dated 21.11.2005, passed by learned District Judge, Bilaspur, H.P., in Civil Appeal No. 8 of 2003, whereby the judgment and decree, dated 31.10.2002, passed by learned Sub-Judge 1st Class, Bilaspur, H.P, in Civil Suit No. 116/1 of 1998, was affirmed, wherein suit of the plaintiff/Rattan Lal was decreed. 2. Briefly, the facts, which are necessary for determination and adjudication of the present appeal are that respondent No. 2 (herein)/plaintiff (hereinafter to be called as “the plaintiff”) filed a suit for declaration to the effect that the order of the Chairman-cum-Sub Divisional Magistrate, Temple Trust Shri Naina Devi Ji, District Bilaspur, H.P., dated 28.06.1998 is illegal and not binding upon the plaintiff, with a further prayer to restrained defendant No. 2 from functioning as Electrician. The plaintiff is his plaint has averred that on 14.04.1981, he was appointed as Electrician Helper as per seniority list, dated 31.03.1998 (Ext. P-12) and his name is shown at serial No. 6 in the list. Whereas, defendant No. 2 was appointed as Electrician on daily wages about 12 years ago, however his name has not been shown in the seniority list circulated amongst the employees. It has been further averred in the plaint that defendant No. 1 with a malafide intention to help defendent No. 2, ignored the seniority of the plaintiff and issued order of appointment on 28.06.1998 (Ext. P-13), vide which, defendant No. 2 was promoted as Electrician in the pay scale of Rs. 950-1800/-, therefore, the same is illegal and not binding upon the plantiff, hence he filed the present suit. 3. The suit of the plaintiff was contested by the defendants by filing joint written statement, wherein appointment of the plaintiff as Electrician has been denied and It has been pleaded that initially the plaintiff was appointed as Langri (Helper) in the Temple Trust and the alleged seniority list is not a seniority list of the specific trade, but it is stated to be the seniority for all the employees of the Temple. It has been further pleaded that initially the plaintif was appointed as a Langri (Helper) in the langer of the Temple, whereas defendant No. 2 was appointed as Assistant Electrician on 06.01.1993, as defendant No. 2 was matriculate and the diploma holder in the trade of electrician, on the other hand, the plaintiff was primary pass, therefore, he was not qualified for the appointment against the pst of Electrician. Certain preliminary objections qua maintainability, non-joinder of necessary parties and estoppel were also raised by the defendants. 4. By filing replication, the contents of the plaint were reiterated. The learned trial Court on 06.01.2000 framed the following issues for determination and adjudication: “1. Whether the order of Chairman-cum-S.D.M., Bilaspur, H.P. as Temple Trust, shri Naina Devi Ji, District Bilaspur, H.P., dated 28.06.1998 vide which defendant No. 2 has been promoted as Electrician is illegal, wrong and without jurisdiction? OPP 2. Whether the plaintiff is entitled for the relief of permanent prohibitory injunction? OPP 3. Whether the suit is not maintainable in the present form? OPD 4. Whether the plaintiff is not eligible for the post of Electrician, so he has no right to challenge the order dated 28.06.1998? OPD 5. Whether the suit is bad for non-joinder of necessary parties? OPD 6. Whether the plaintiff is estopped to file the present suit by his act, conduct, Commission and deeds? OPD 7. Relief.” 5. Learned trial Court after deciding issues No. 1 & 2 in affirmative, issue No. 4 partly yes and issues No. 3, 5 and 6 in negative, decreed the suit of the plaintiff. Subsequently, defendant No. 2 maintained an appeal before the learned first Appellate Court, which was dismissed and the findings recorded by the learned trial Court were upheld. Hence the present regular second appeal, which was admitted for hearing on the following substantial question of law: “Whether the plaintiff himself being not eligible and qualified for appointment to the post against which respondent Rattan Lal had been appointed, could not have lawfully challenged his appointment and hence the suit was not maintainable? 6. Mr. Hence the present regular second appeal, which was admitted for hearing on the following substantial question of law: “Whether the plaintiff himself being not eligible and qualified for appointment to the post against which respondent Rattan Lal had been appointed, could not have lawfully challenged his appointment and hence the suit was not maintainable? 6. Mr. Bimal Gupta, learned Senior Counsel appearing on behalf of the appellant has argued that the appellant was promoted as per rules, whereas the plaintiff was not at all eligible to be appointed as Electrician, as he was not qualified for the said post and the learned Courts below have failed to consider this aspect, so the appeal is required to be allowed. On the other hand, Mr. Rajiv Rai, Advocate, has argued that defendant No. 2 has accepted the judgments, passed by the learned Courts below and, therefore, the present appeal be dismissed. No one has put in appearance on behalf of the legal representatives of deceased respondent No. 1, Rattan Lal, despite service, i.e. after bringing them on record. In rebuttal, learned Senior Counsel appearing on behalf of the appellant has argued that the written statement filed before the learned Court below was joint of the appellant/defendant No. 1 and respondent No. 2/defendant No. 1, therefore, respondent No. 2 cannot go behind the written statement having filed by it. 7. In order to appreciate the rival contentions of the parties, I have gone through the record carefully. 8. Plaintiff, Rattan Lal, has appeared in the witness box as PW-1. According to him, he was working as electrician w.e.f. 14.04.1981, however, on 31.03.1998 a seniority list was circulated, in which, his name was figured at serial No. 6. As per the plaintiff, Shyam Lal, defendant No. 2, has been working as Electrician Helper on daily wages and is 12 years junior to the him. According to the plaintiff, his services were regularized in the year 1996 and as per the seniority, plaintiff was to be promoted, however, defendant No. 2 was promoted as Electrician by ignoring the bye laws. In his cross- examination, the plaintiff has admitted that he was initially appointed as Langri and is not having any diploma in electrician trade. He denied that defendant No. 2 was having electrician diploma. He has also denied that prior to 1998, defendant No. 2 was working as Electrician. 9. In his cross- examination, the plaintiff has admitted that he was initially appointed as Langri and is not having any diploma in electrician trade. He denied that defendant No. 2 was having electrician diploma. He has also denied that prior to 1998, defendant No. 2 was working as Electrician. 9. The plaintiff has also placed on record Ext. P-1 to Ext. P-30. Ext. P-1 is regularisation office order dated 05.07.1996. Ext. P-2 to Ext. P-11 are the letters written by the Temple In-charge to the plaintiff from time to time, wherein the designation of the plaintiff has been mentioned as Electrician Helper. Ext. P-12 is the seniority list of the employees of the Trust. Ext. P-15 to Ext. P-17 are the notice, receipt and acknowledgement respectively. Ext. P-25 is the photo copy of the middle standard certificate of Rattan Lal, Plaintiff. Ext. P- 13 is the office order, dated 28.06.1998 issued by the Chairman, Temple Trust, whereby on the recommendation of the DPC, defendant No. 2, Electrician Helper was promoted as Electrician in the pay scale of Rs. 950-1800/- plus allowances on the terms and conditions as contained in the office order. 10. The defendants have not appeared in the witness box. However, they filed the Bye Laws pertaining to the Temple, i.e. Shri Naina Devi Ji Employees Service Bye Laws, 1994. 11. It is evident from the records that the plaintiff, Rattan Lal was regularized in the pay scale of Rs. 750-1410/-, w.e.f. 01.01.1996, vide Ext. P-1, office order dated 05.07.1996, wherein his name was entered at serial No. 6. Ext. P-12, seniority list, pertaining to Class-IV employees of Shri Naina Devi Ji Temple Trust, wherein plaintiff has been shown as Electrician Helper at Serial No. 6 and his date of appointment is mentioned as 14.04.1981 and his educational qualification was primary class. Whereas, name of defendant No. 2 has been shown at serial No. 61, as Electrician Helper and his date of appointment has been shown as 08.01.1993 and his educational qualification is stated to be matriculate with diploma in electrician trade. 12. Whereas, name of defendant No. 2 has been shown at serial No. 61, as Electrician Helper and his date of appointment has been shown as 08.01.1993 and his educational qualification is stated to be matriculate with diploma in electrician trade. 12. Part-II of Bye-Laws deals with Number, Character, Classification of posts and Appointment and Rule 6 of these bye laws deals with Qualifications for mode of recruitment as specified in the Second Schedule which reads as under: “If qualification for recruitment to a post or class of posts, the method by which a post or class of posts may be filled the proportion of vacancies to be filled by each such method and in case of recruitment by promotion the class of employees who and the conditions subject to which they shall be eligible for such promotion shall be such as are specified in the Second Schedule.” 13. Second Schedule of Part-II of Rule 6 of Bye Laws deals with mode of recruitment. In the Second Schedule Part-II of Rule 6 the post of Electrician has been mentioned at Sr. No. 17, as Grade-III post, in the scale of Rs. 950-1800/- and is a selection post. Mode of appointment has been mentioned by direct recruitment and qualification in column No. 6 of the Schedule for such direct appointment has been mentioned and essential qualification has been fixed matriculation with certificate of successful completion of training in the trade from recognised I.T.I. 14. In view of Rule 6 of Second Schedule, the appointment to the post of Electrician in the pay scale of Rs. 950-1800/- as per Bye Laws has to be made by the direct recruitment, not by the promotion. However, in the present case, defendant No. 2 has been promoted as Electrician in the pay scale of Rs. 950-1800/- plus allowances on the recommendation of DPC, which itself appears to be against the Bye Laws. Accordingly, while passing the order, Ext. P-13, the Chairman of Temple Trust Shri Naina Devi Ji has ignored the relevant provisions of the Bye Laws and has wrongly promoted defendant No. 2 as Electrician. 15. The seniority list shows the plaintiff as Electrician Helper. Accordingly, while passing the order, Ext. P-13, the Chairman of Temple Trust Shri Naina Devi Ji has ignored the relevant provisions of the Bye Laws and has wrongly promoted defendant No. 2 as Electrician. 15. The seniority list shows the plaintiff as Electrician Helper. Meaning thereby, that the plaintiff was also having legitimate expectancy to be promoted as Electrician, if the post was to be filled up by promotional basis, as he was working as Electrician Helper (meaning thereby that he was performing the duties of the Electrician for decade) and promoting another person by ignoring the rules, when the rules provides for direct recruitment to the post of Electrician, has resulted into injustice to the plaintiff. Accordingly, substantial question of law is answered holding that though the plaintiff himself was not eligible and qualified for appointment to the post of defendant No. 2, however when defendant No. 2, being his ten years junior was promoted and when the plaintiff was also working as Electrician Helper for decade, he was also having expectancy to be promoted, in case the promotion had to be made by relaxing of rules, therefore, the plaintiff has cause to challange the appointment of defendant No. 2 and the substantial question of law is answered accordingly. 16. Before parting, this Court after giving deep thought to the present facts and circumstances of the case, finds that, as the appellant is working on the post of Electrician from many years, to remove him at this moment, will not be appropriate and at the same point of time, respondent No. 1, deceased Rattan Lal, who was having right to be promoted if the post was to be filled up on the basis of promotion in relaxion of rules (which otherwise provides for direct recruitment), has a preferential right to appellant. So, at this stage, this Court finds that as respondent No. 1/Rattan Lal has expired, it will be appropriate to allow appellant/Shyam Lal to continue with the post of Electrician with consequential benefits from the date of the death of respondent No. 1/Rattan Lal. So, at this stage, this Court finds that as respondent No. 1/Rattan Lal has expired, it will be appropriate to allow appellant/Shyam Lal to continue with the post of Electrician with consequential benefits from the date of the death of respondent No. 1/Rattan Lal. However, as the promotion of appellant/Shyam Lal was against the Rules, he will be paid the salary of Electrician Helper till the date of death of respondent No. 1/Rattan Lal and after his death all the consequential benefits of the post of Electrician and deceased Rattan Lal be paid the salary of the post of Electrician with consequential benefits from the date of Shyam Lal was promoted, till he expires. 17. With these observations, the present appeal stands disposed of. Leaving the parties to bear their own costs. Pending applications, if any, also stands disposed of.