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Judgment
A.N. Jindal, J
CM No. 7537-C of 2012
For the reasons mentioned in the application, same is allowed and delay in re-filing of the appeal is condoned.
Regular Second Appeal No.2811 of 2012 (O&M).
The trial court vide judgment dated 13th of October, 2008 dismissed the suit of the plaintiff whereas appellate court vide judgment dated 19th November, 2011 partly accepted the appeal and granted the following relief''s :
(i) The plaintiff is entitled to arrears of pay after pay fixation as on 23rd of June, 1993 alongwith interest at the rate of 12% per annum with effect from the date of amount due till the date of actual payment; and,
(ii) He is also entitled to interest at the rate of 12% per annum on the delayed disbursement of the retrial benefits with effect from the date of retirement till the date of actual payment.
The relief''s which were declined by the first appellate court are as under:
(i) He is not entitled to selection grade of Rs.1200-1840/-with effect from 10th October, 1983 and in the grade of 3700-5700/-with effect from 1st January, 1986;
(ii) He is also not entitled to three months salary during notice period before the date of his retirement; and,
(iii) He is also not entitled to leave encashment and reification of his pension.
Appellant Ved Parkash Sharma averred that he was appointed as a Lecturer in Geography in Punjab Education Services (Class-III) in the pay scale of Rs.200-500/-and posted in Govt. College, Narnaul, where he joined duty on 10th October, 1958. He was confirmed in service with effect from 1st March, 1964 and placed in the scale of Rs.300-600/-. Thereafter he was promoted as Senior Lecturer in Punjab Education Services (II) (Senior Scale) College cadre in the time scale of Rs.400-800/-with effect from 13th December, 1971 which date was later changed to 26th October, 1967 and he drew his arrears of elevation to this higher pay scale. In the year 1976, he was transferred from Government College, Roper to Government College, Ludhiana, where he served from 9th August, 1976 to 2nd March, 1978. The Principal, Government College, Roper did not forward in time his Last Pay Certificate and Service Book to the Principal, Government College, Ludhiana. Resultantly, he was denied increment and was given less pay at the rate of Rs.120/-to Rs.200/-per month throughout his stay in Government College, Ludhiana and also in other Government Colleges where he was transferred later on till December, 1989.
Further grievance of the plaintiff is that he was not considered for grant of selection grade of Rs.1200-1840/-with effect from 10th October, 1983 on the University Grants Commission pattern though his name in the seniority list was at Serial No.238. The scale of Rs.3700-5700/-was also denied to him with effect from 1st January, 1986 to 27th May, 1989 without passing any order. Frustrated plaintiff, as he then was, sought pre-mature retirement, which was granted to him vide order No.3(24)-87-2-Ed.1/ 108602-03 dated 5th September, 1989 effective from 27th May, 1989 depriving him of more than three months pay without any fault. Even after retirement, he was not paid gratuity, leave encashment and other retrial benefits in time which constrained him to file Civil Writ Petition No.7526 of 1992, which was dismissed as withdrawn with liberty to file fresh petition on the same cause of action.
It is further submitted by the plaintiff that he was wrongly deprived of the benefit of more than 11 years of qualifying service on account of incomplete entry in his service book. He then filed Civil Writ Petition No.7956 of 1996 in which he was relegated to his alternative remedy of filing the suit. Despite issuance of letter dated 18th October, 1996 and notice u/s 80 of the Code of Civil Procedure, no action was taken. Hence, the plaintiff filed the suit culminating into the present appeal.
In their joint written statement, the defendants apart from taking certain preliminary objections denied the averments of the plaintiff. It is pleaded that pay of the plaintiff was correctly fixed and all consequential benefits including pensionary benefits had been granted to him on the basis of regular service. Plaintiff was neither entitled to the selection grade nor revised scale since his conduct was not satisfactory. He was a habitual absentee. Enquiry conducted against him proved his misconduct which eventually led to his premature retirement on 27th May, 1989. It is highlighted that during entire service of 29 years 9 months and 8 days, the plaintiff remained absent for 8 years, 7 months and 6 days. Since the plaintiff did not quality the regular service of 33 years to his credit, he was not entitled to full pension. Prayer for dismissal of the suit has been prayed.
Replication was also filed. From the pleadings of the parties, the trial court framed the following issues:
Whether the plaintiff is entitled for the declaration as prayed for? OPP.
Whether the suit is within limitation? OPD.
Whether the suit is not maintainable? OPD.
Whether the suit is not properly valued for the purposes of Court fee? OPD.
Whether no notice u/s 80 CPC has been served by the plaintiff upon the defendants before filing the suit? OPD.
Relief.
The trial court dismissed the suit in toto, whereas the appellate court partly accepted the appeal and granted the following reliefs:
(i) The plaintiff is entitled to arrears of pay after pay fixation as on 23rd of June, 1993 alongwith interest at the rate of 12% per annum with effect from the date of amount due till the date of actual payment; and,
(ii) He is also entitled to interest at the rate of 12% per annum on the delayed disbursement of the retrial benefits with effect from the date of retirement till the date of actual payment.
The main reliance for declining the selection grade were the Annual Confidential Reports (ACRs) relating to the appellant pertaining the years 1980-81, 1982-83 and 1986-87 and the administrative instructions Ex. D1. The first appellate court observed that since the appellant earned adverse entries, immediately preceding the dated when the selection grade was due on 10th October, 1983, he cannot be allowed to contend that selection grade was wrongly declined. That apart, the appellant was deprived of more than 11 years of qualifying service. The plaintiff while appearing the witness box had also admitted that he had not completed 33 years of service. The service book shows that he was a habitual absentee for a long period and Ex. D5 is the report made by the Enquiry Officer regarding the period of his absence which ultimately led to his pre-mature retirement. Since the appellant did not have the qualifying service of 33 years to his credit for grant of full pension, the defendants had rightly fixed his pay. The contention raised by the counsel for the appellant that the adverse reports were not conveyed to him is of no consequence as the adverse reports are for the years 1980-81, 1982-83 and 1986-87. The appellant never challenged these adverse reports. Rather, the present suit was also filed after nine years of his retirement to claim the selection grade. The selection grade is mainly based on the good service record but the service book of the petitioner indicates that he did not conform to the standards required for the selection grade.
As regards the other issue with regard to leave encashment, the defendants have proved Ex. D7 according to which the benefit of leave encashment was to accrue to him with effect from 1st January, 1990 but as such on the date of retirement, this right had not accrued to him. Therefore, the first appellate court had rightly denied him this benefit.
In the circumstances, the first appellate court appears to have appreciated the evidence in the right perspective.
No substantial question of law, much less such question, arises for determination by this Court in this case. Dismissed.