The main legal point established in the judgment is the importance of merit-cum-seniority in promotion decisions and the implications of misconduct on promotion.

JUDGMENT :

SURESHWAR THAKUR, J.

1. The plaintiff, one Bhupinder Deshta's suit, for, rendition of a declaratory decree, for, setting aside the promotion meted, by co-defendant No.1, vis-a-vis, the arrayed junior, to, the plaintiff, stood dismissed, by the learned trial Court. However, in an appeal carried therefrom, by the aggrieved plaintiff, one Bhupender Deshta before the learned first appellate Court, the latter Court, though, set aside the promotion, bestowed, upon, the arrayed defendant(s), in, the apposite civil suit. However, it did not ipso facto, hence, accord, the, benefit of promotion, vis-a-vis, the plaintiff, rather rendered, a, finding qua it being more appropriate, for, the DPC, to, consider the case of the plaintiff, for, promotion, to, the aspired post. The defendant No.1 being aggrieved, by the afore verdict pronounced by the learned first appellate court, upon, Civil Appeal No. 18-S/13 of 2011, and, also co-defendant No.4 being aggrieved therefrom, both hence instituted, the, instant RSAs before this Court, respectively bearing RSA No.4304 of 2013, and, RSA No 375 of 2019.

2. Even though, RSA No. 375 of 2019, stands directed, by the aggrieved defendant No.4, one Pratap Chauhan, against the verdict recorded by the learned first appellate Court, and, though, it, stands belatedly instituted, hence, with, a, minimal delay of 42 days, yet with, a, good, and, tangible explication being purveyed by defendant Pratap Chauhan, vis-a-vis, the good cause besetting him, to, rather preclude him, to, institute within time, an appeal against the afore verdict, thereupon, the afore delay, as has occurred, in the institution of the appeal, stands condoned. Consequently, CMP(M) No. 11125 of 2013, stands disposed of.

3. After hearing the learned counsel appearing, for the parties, the afore RSA No.375 of 2019, stands admitted, on, the following substantial question of law:

"1. Whether the findings of the learned Appellate Court below are based on misreading and mis-appreciation of the evidence on record and settled legal position?

4. Since, both the afore appeals are directed against the verdict recorded, by, the learned first appellate court, upon, Civil Appeal No. 18-S/13 of 2011, thereupon, both the afore appeals, are, amenable for a common decision being recorded, upon, each.

5. Briefly, stated the facts of the case are that plaintiff Bhupinder Deshta initially joined with H.P. State Cooperative Marketing and Consumer Federation Limited, Shimla, the defendant No.1, as Salesman/Storekeeper in November, 1981, and, with the passage of time, he was promoted as Junior Marketing Assistant, on and w.e.f. 11.11.1991. The plaintiff, as per the seniority list dated 31.3.2003, was senior to Sh. Harish Gupta, defendant No.1, in the cadre of Junior Marketing Assistants. The next promotional post is that of the Marketing Assistant. Defendant No.1 has framed recruitment and promotion rules and as per them, the 50% posts of Marketing Assistants are required to be filled on the basis of seniority-cum-merit from amongst the Storekeepers/ Junior marketing Assistants, having five years service, and, the remaining 50% by way of direct recruitment. This was the practice in the past also. Defendant No.1 vide office order dated 16.8.2006 promoted eight junior marketing assistants to the posts of marketing assistants including Sh. Pratap Chauhan, son of Sh. Hira Singh and Sh. Harish Gupta. As per the plaintiff, Sh. Harish "Gupta was junior to him in the feeder cadre and could not have been promoted by superseding him, since the selections were required to be made on the basis of seniority cum merit. Otherwise also, he had not done any outstanding work and could not have been promoted by ignoring the plaintiff. Further defendant No.4 was a defaulter of the federation of more than Rs.5 lacs and could not have been considered for promotion at all. It has further been averred that the service record of the plaintiff was commendable and unblemished. He was no