PUNJAB STATE ELECTRICITY BOARD LTD.versusJAGDEV SINGH AND ORS.

                          [2008] 9 S.C.R. 1147


           PUNJAB STATE ELECTRICITY BOARD LTD.                          A
                                   V.
                     JAGDEV SINGH AND ORS.
                   (Civil Appeal No. 3977 of 2006)
                            JUNE 12, 2008
                                                                        B
y
        [DR. ARIJIT PASAYAT AND P.P. NAOLEKAR, JJ.]

          Service Law - Promotion - Suit seeking inuunction from
    promoting their juniors dismissed - First Appellate Court hold-
    ing the plaintiffs entitled to promotion from the date their jun-   c
    iors were promoted - Dismissal of Second Appeal - On ap-
    peal, held: Order of High Court set aside as Office Orders!
    Circulars relied on by both the parties were not taken into con-
    sideration by High Court - Matter remitted to High Court.
          Respondents-plaintiffs filed a suit claiming their pro- D
    motion. They stated that their juniors had already been
    promoted on 23.5.1991 while they had qualified for the
    promotion on 19.11.1990. Trial Court dismissed the suit.
    First Appellate Court held that the plaintiffs were entitled
    to promotion from the date their juniors were promoted. E
    Second Appeal was dismissed upholding the Order of
    First Appellate Court.
         In appeal to this Court appellant-Board contended
    that the High Court while passing the judgment had not
    taken into consideration Circular No.4/18/81-IPPl5594               F
    dated 27.4.1982 wherein instructions regarding determi-
    nation of eligibility for promotion to higher posts were
    given.
         Respondents contended that the Regulations were
                                                               G
    amended vide Office Order No. 6151Reg. 293 (Circular No.
    46/87) dated 15.10.87 and Office Order No. 67 4/Reg.-25/A/
'   Vol.IV dated 5.10.89 (Circular No. 35/89) were not taken
    into consideration by the High Court.
                                  1147                                  H
    1148       SUPREME COURT REPORTS                     [2008] 9 S.C.R.


A          Disposing of the appeal, the Court

         HELD: Keeping in view the fact that certain office
    Orders/Circulars, relied on by both the parties were not
    considered by High Court, the impugned order of the High
    Court is set aside and the matter remitted to it for consid-
B   eration on merits. The relevant Circulars and regulations
                                                                            )'
    including the amendments applicable to the facts of the
    case have to be duly considered. [Para 7] [1150-B & C]

           CIVIL APPELLATE JURISDICTION : Civil Appeal NO.
c   3977 of 2006
         From the final Judgment and Order dated 22.7.2003 of
    the High Court of Punjab and Haryana at Chandigarh in regular
    Second Appeal No. 1176 of 2001
          Vivek Kishor, Ruchi Guar Nanda, Sangeeta Bharti and               .;
D
    Raj iv Nanda for the Appellant.
           R.K. Kapoor, Mansi Dhiman and Anis Ahmed Khan for
    the Respondents.
           The Judgment of the Court was delivered by
E
          Dr. ARIJIT PASAYAT, J. 1. The appellant-Punjab State
    Electricity Board Ltd. (in short the 'Board') has questioned cor-
    rectness of the judgment rendered by a learned Single Judge
    of the Punjab and Haryana High Court dismissing the Second
F   Appeal filed under Section 100 of the Code of Civil Procedure,
    1908 (in short the 'CPC').
           2. A suit was filed by the respondents-plaintiffs in the Court
  of Senior Sub-Judge, Patiala for declaration with consequen-
  tial relief of permanent injunction. They claimed to be entitled to
G be considered for promotion as Assistant Engineer (Electrical)
  in terms of the order dated 5.10.1989 passed by the Board
  being Technical Subordinates grade-I. Relief of permanent in-             "
  junction was claimed for restraining the Board and its function-
  aries from promoting any Technical Subordinate Grade-I on the
H basis of the departmental examination, as the plaintiffs were
           PUNJAB STATE ELC. BOARD LTD. v. JAG DEV              1149
             SINGH & ORS. [DR. ARIJIT PASAYAT, J.]

    senior to private defendants, and had qualified in the depart- A
    mental examination held on 15.5.1991. The examination was
    conducted on 26.3.1991. Certain employees who were juniors
    to the plaintiffs were promoted on 23.5.1991. These persons
    had passed the departmental examination on 19.11.1990.
          3. The suit was dismissed by the trial Court. In appeal, the B
    First Appellate Court observed that the plaintiffs were entitled
    for promotion from the date their juniors were promoted as As-
    sistant Engineer (Electrical) vide order dated 23.5.1991 with
    all consequential benefits. The Board questioned correctness
    of the decision by filing the Second Appeal which has been c
    dismissed by the impugned order holding that when the pro-
    motion order was passed with regard to the private defendants,
    the plaintiffs were eligible for promotion and since the private
    defendants were juniors, the plaintiffs had acquired a right for
~
    consideration for promotion from the date their juniors were D
    promoted.
         4. In support of the appeal, learned counsel for the appel-
    !ant-Board submitted that the effect of the Circular No.4/18/81-
    IPP/5594 dated 27.4.1982 issued by the Chief Secretary to
    the Government of Punjab to all Heads of Departments etc. was       E
    not considered. The Circular contained instructions regarding
    determination of eligibility for promotion to higher posts from
    the date of occurrence of the vacancy.
          5. Learned counsel for the appellant further pointed out F
    that the date of occurrence of vacancy has to be taken as the
    relevant date for determining eligibility of promotion to higher
    posts. Admittedly, the vacancy arose in November, 1989. When
    the private defendants fulfilled the eligibility criteria the vacan-
    cies still existed and their eligibility was to be reckoned from
                                                                         G
    November 1989, i.e. occurrence of vacancies or in any event
~
    from November 1990 when they fulfilled the eligibility criteria.
          6. Learned counsel for the respondents submitted that the
    Circular will have no relevance because the defendants quali-
    fied on 19.11.1990 and though their eligibility was to be reek-     H
    1150       SUPREME COURT REPORTS                 [2008] 9 S.C.R.


A   oned from that date in view of the vacancy of the posts, yet the
    respondents were not required to take any examination. Strong
    reliance was placed on certain amendments to the Regulations
    vide Office Order No.615/Reg.293 (Circular No.46/87) dated
    15.10.87 and Office Order No.674/Reg.-25/A/Vol.IV dated
B   5.10.89 (Circular No.35/89). It is conceded by learned counsel
    for the parties that the effect of Circulars and the amendments
    to the Regulations have not been considered by the High Court.

        7.Keeping in view the aforesaid aspects, we set aside
  the impugned order of the High Court and remit the matter to it
C for consideration on merits. Needless to say the relevant
  Circulars and regulations including the amendments applicable
  to the facts of the case have to be duly considered. Since the
  matter is pending since long, we request the High Court to dis-
  pose of the appeal in accordance with law as early as practi-
D cable preferably within six months from the date of receipt of
  this order.
           8. The appeal is disposed of with no order as to costs.
    K.K.T.                                     Appeal disposed of