- (1.) The present appeal by the defendant is directed against the judgments of the Additional Senior Sub Judge, Pehowa, dated 4.3.1992 and that of the Addl. District Judge, Kurukshetra, dated 10.10.1994.
(2.) The facts leading to the present controversy are that the plaintiff- respondent No. 1 filed a suit for declaration and mandatory injunction with a consequential relief of permanent injunction inter alia pleading that he was appointed as a Sub-Divisional Clerk (for the sake of brevity known as 'SDC') w.e.f. 16.12.1981 whereas Roop Lal respondent No. 3 was appointed directly as SDC w.e.f. 6.9.1983 in the cadre which is common to SDC's/Auditors/Account clerks. In the seniority list prepared by the Appellant Board, the respondent No. 1 was at Sr. No. 48 while respondent No. 3 was placed at Sr. No. 67 in the cadre of SDC's. Respondent No. 3 was working as a clerk in the lower scale but he was promoted in the cadre of SDC in the year 1983 in which the respondent No. 1 had come in 1981. Despite the fact that respondent No. 3 was junior to the respondent No. 1, yet the former was promoted as Assistant vide order dated 31.5.1989 in complete violation of the rules. Respondent No. 1, being senior, better in merit, was entitled to be promoted as Assistant before respondent No. 3. With the aforesaid back draw (backdrop ?) of the facts, the respondent No. 1 made the following prayers : (a) Declaration to the effect that the plaintiff is entitled to be considered and promoted to the post of Assistant in the pay scale of Rs. 1400-2600 w.e.f. 31.5.1989, the date from which his junior i.e. defendant No. 3 has been promoted, along with all consequential benefits attached to the post, including the arrears of difference of salary along with interest at the rate of 18 per centum per annum from 31.5.1989 till realization. (b) Declaration to the effect that the order dated 31.5.1989, whereby defendant No. 3 has been promoted, are illegal, null and void, unjust, arbitrary and in violation of the principles of natural justice. (c) Declaration to the effect that the plaintiff is still senior to defendant No. 3. (d) Mandatory injunction directing the defendant Nos. 1 and 2 to promote the plaintiff on the basis of his seniority qua defendant No. 3 and others, from 31.5.1989, along with all the ancillary benefits attached to the post of Assistant. (e) Mandatory injunction directing defendant Nos. 1 and 2 to restore the seniority of the plaintiff in the cadre of Assistant. (f) Permanent injunction directing the defendant Nos. 1 and 2 from promoting other juniors without promoting the plaintiff first and also restraining these defendants from getting any deputationist from any departments to the posts of the Assistant.
(3.) The suit was contested by the appellant and the respondent No. 3 and it was contended that the plaintiff-respondent No. 1 was appointed as SDC on 16.12.1981 directly whereas respondent No. 3 was promoted from post of Clerk to that of SDC on 6.9.1983. The seniority as pleaded by respondent No. 1 was not specifically denied and it was pleaded that respondent No. 3 was promoted from the post of Peon to that of Clerk on 9.3.1978 and he was further promoted as Assistant vide impugned order dated 31.5.1989, because for the promotion to the post of Assistant seniority of Clerk is to be considered and not that of SDC's. Since the respondent No. 1 did not fulfill the said criteria laid down in the Haryana State Agriculture Market Board Service Rules, 1974 (hereinafter referred to as 'the Rules'), hence, he was not entitled to be considered for promotion and on the basis of these pleadings sought the dismissal of the suit. The trial Court framed the following issues : 1. Whether the plaintiff is senior to defendant No. 3 and is entitled for promotion of Assistant w.e.f. 31.5.1989 ? OPP 2. Whether order dated 31.5.1989 is null and void and binding upon the rights of the plaintiff ? OPP 3. Whether the plaintiff is also entitled to all the ancillary benefits attached to the post of Assistant w.e.f. 31.5.1989 ? OPP 4. Whether the suit of the plaintiff is not maintainable in the present form ? OPD 5. Whether the suit is bad for non-joinder and misjoinder of necessary parties ? OPD 6. Whether the plaintiff has concealed the material facts from the court, if so, its effect ? OPD 7. Relief.;