- (1.) Present appeal, at the instance of the defendant, is directed against the judgments passed by both the learned courts below, whereby suit for declaration with consequential relief of mandatory injunction filed by the plaintiff, was decreed and first appeal of defendant was only partly allowed. Brief facts of the case, as noticed by the learned Additional District Judge in para 3 to 8 of the impugned judgment, are that plaintiff was appointed as Meter Reader in the Haryana State Electricity Board (for short 'HSEB'), now the Dakshin Haryana Bijli Vitran Nigam Ltd. (for short 'DHBVNL'), vide appointment letter bearing No.7023 dated 11.09.1993. The plaintiff joined the service of HSEB on 17.09.1993. The plaintiff was appointed out of military quota posts reserved for Ex-Servicemen. The discharge book from the military and other requisite documents had been submitted alongwith the arrival report in the office. It was averred that the plaintiff had served the Indian Army from 05.04.1963 to 30.04.1991 i.e for about 18 years and during this period, two National Emergencies from 26.10.1962 to 10.01.1968 and second in the year 1971 from 08.12.1971 to 01.08.1975 fell and as per instructions of the Haryana Govemment/HSEB, the entire period of National Emergency rendered in Military Service was computable as qualifying service, on appointment in Civil employment for the purposes of increments, pension/retirement and seniority. As per earlier instructions, whole of the military service was countable for the aforesaid purposes but later on, the instructions were amended and only the emergency period military service was allowed to be counted. The plaintiff was entitled to get his military service rendered from 05.04.1963 to 10.01.1968 and also service rendered in second Emergency of 1971 from 08.12.1971 to 01.08.1975 counted towards annual increments, seniority, further promotion, grant of two additional increments on completion of 8 and 18 years service. Plaintiff was also entitled for the grant of ACP No.1 and 29 higher pay scales as notified vide HSEB order No.706/finance dated 27.02.1998 and No.70/Finance dated 23.02.2004 alongwith retiral benefits, but the same were not granted by the defendants to the plaintiff. It was further averred that the plaintiff had been requesting the defendants to grant the benefit of military service. The defendants were aware that since the date of appointment of the plaintiff in HSEB, the plaintiff was an Ex-Serviceman and the particulars of service rendered in the Military had been submitted at the time of appointment, but no action had been taken by the defendants to grant the aforesaid benefits to the plaintiff till the plaintiff retired from services of the Nigam on 28.02.2002. Since the service in the civil employment i.e. in the HSEB/Nigam was w.e.f from 17.09.1993 to 28.02.2002, therefore, no pension was granted/paid to the plaintiff whereas by counting the military service from the retiral benefits, the pension was payable. It was averred that defendant No.4 submitted the complete case of plaintiff for the grant of military service benefit to defendant No.3 vide his office letter No.CH-58/PF-1170 dated 19.12.2002 and intimated to defendant No.3 that the reckoned/deemed date of joining in the department/HSEB of the plaintiff had been worked out as 12.12.1988 by allowing benefit of service from 05.04.1963 to 10.01.1968, i.e for 4 years 9 months and 6 days, and sought necessary orders for the same, the Superintending Engineer, being the appointing authority in the case of plaintiff. Complete papers had been submitted to the office of defendant No.3 by defendant No.4. But defendant No.3. although being the appointing authority of the plaintiff and competent to grant the military service benefit, choose to delay the matter and forwarded the case to defendant No.2 in violation of instructions issued by the Secretary HSEB, ChandigarhlPanchkula bearing No.260/CSISL-ll dated 15.01.1997. The office of defendant No.3 had been granting the military service benefit to the L.D.Cs/drivers i.e in respect of which/whom it was the appointing authority, but in the case of plaintiff, discriminatory attitude was adopted by the defendants in order to cause undue harassment. Hence, the suit. , On notice, defendants filed written statement by taking preliminary objections qua locus standi; concealment of material facts; estoppel; suit being time barred and maintainability. On merits, it was submitted that the plaintiff had been retired/released from Military service on 30.04.1991 and joined the HSEB on 17.09.1993 in Ex-Serviceman quota as Meter Reader. Thus, the intervening period between the date of discharge from Military service and the date of appointment in the then HSEB now Nigam was more than one year, as such, the benefit in turn was not admissible. Other contents of plaint were denied as incorrect. Prayer for dismissal of suit with costs was made.
(2.) On completion of pleadings of the parties, learned trial court framed the following issues:- 1) Whether the plaintiff is entitled to decree for declaration as prayed for OPP. 2) Whether the plaintiff is entitled to the decree of mandatory injunction OPP 3) Whether the plaintiff has no locus standi, cause of action and the suit filed by plaintiff is not maintainable OPD. 4) Whether the plaintiff is estopped from filing the present suit by his own act and conduct, if so its effect OPD 5) Relief With a view to substantiate their respective stands taken, both the parties led their documentary as well oral evidence. After hearing learned counsel for both the parties and going through the evidence brought on record, learned trial court came to the conclusion that plaintiff has duly proved his case. Accordingly, suit was decreed vide impugned judgment and decree dated 18.8.2011. Feeling aggrieved, defendants filed their first appeal, which came to be partly allowed vide impugned judgment and decree dated 13.9.2012, whereby plaintiff was held entitled to the benefit of emergency military service only for the purpose of seniority and increments, whereas claim of the plaintiff for counting his military service for the purpose of qualifying service for pension was declined. Dissatisfied, defendants have filed the present appeal. Learned counsel for the appellant submits that plaintiff was not entitled for the relief claimed. He further submits that since the plaintiff was discharged from the military service on 30.4.1991 and he joined HSEB on 17.9.1993, i.e. after the gap of more than one year, he was not entitled for the benefits of military service, in view of the statutory provisions of law, contained in National Emergency (Concession) Rules, 1965 (Rules of 1965' for short). He concluded by submitting that since the learned courts below failed to consider and appreciate true facts of the case as well as relevant provisions of law, referred to hereinabove, impugned judgments and decrees were not sustainable in law. He prays for setting aside the impugned judgments and decrees, by allowing the present appeal. Having heard the learned counsel for the appellant at considerable length, after careful perusal of record of the case and giving thoughtful consideration to the arguments advanced, this Court is of the considered opinion that in the given fact situation of the case, present one has not been found to be a fit case warranting interference at the hands of this Court, while exercising its appellate jurisdiction under Section 100 of the Code of Civil Procedure ('CPC' for short). To say so, reasons are more than one, which are being recorded hereinafter.
(3.) It is a matter of record and not in dispute that Superintending Engineer (operation circle) wrote to the Chief Engineer (operation circle) DHBVNL, vide his letter Ex.PX, requesting the Chief Engineer to pass necessary orders allowing the benefit of military service to the plaintiff. Similar request was also made by the Executive Engineer to the Superintending Engineer vide Ex.PY. Writing of these letters was necessitated only for the reason that Executive Engineer as well as the Superintending Engineer were not competent to pass the necessary orders allowing the benefit of military service to the plaintiff.;