Raj Mohan Singh, J

Plaintiff is in second appeal against judgment and decree dated 24.5.1991 passed by the lower Appellate Court, whereby judgment and decree dated 8.9.1988 passed by the Sub Judge, Ist Class, Hoshiarpur has been set aside.

2. Plaintiff filed a suit for declaration alleging therein that he joined services of defendant No. 1 as lineman on 8.6.1978. Plaintiff was having three years' diploma in Electrical Engineering and had been working to the entire satisfaction of his superiors. Plaintiff had already earned his annual increments from due dates and his name figured at Sr.No. 4411 in the seniority list. According to rules, diploma holders were to be promoted as Junior Engineer Grade-II on the basis of seniority-cum-merit, but the case of the plaintiff for promotion to the post of Junior Engineer Grade-II has been ignored, rather juniors to the plaintiff were promoted by defendant No. 2 in the year 1985 onwards. The action of the department is claimed to be illegal and malafide. Defendant No. 2 informed the plaintiff that he has been ignored on account of adverse remarks for the year 1981-82, 1.4.1982 to 12.10.1982 and 15.5.1984 to 31.3.1985.

3. It is further pleaded that the plaintiff had already filed representations against adverse remarks on 10.11.1982, 15.7.1983 and 15.7.1985 but no action was taken. Plaintiff again filed representation on 25.2.1986 that his pending representations be decided and he be given promotion. Plaintiff further alleged that Superintending Engineer had also written that there was no record of alleged negligence on the part of the plaintiff during the tenure of Sub Divisional Officer, V.K. Mehta. The Superintending Engineer had also passed remarks for the period from 15.5.1984 to 31.5.1985 showing them to be advisory in nature and the Superintending Engineer had issued a letter to the effect that the plaintiff be considered for promotion.

4. Defendants contested the suit on all customary pleas. The stand of the defendants was that the representation of the plaintiff against adverse remarks was duly considered and he was ignored for promotion due to unsatisfactory report in the year 1981-82, 1.4.1982 to 12.10.1982 and 15.5.1984 to 31.3.1985. Thereafter, amended written statement was also filed highlighting that in view of judgment of the Hon'ble Supreme Court, there should be joint seniority list of diploma holders and non diploma holders for promotion and therefore, even if ACRs of the plaintiff are to be ignored, plaintiff would get no chance of promotion.

5. Defendants took an objection that the representations filed by the plaintiff were disposed of on 16.6.1986. It has been found that the defendants had only alleged that representation regarding ACR for the period from 15.5.1984 to 31.5.1985 has been considered and rejected but there is no evidence on record to show that the other representations had also been considered and rejected.

6. After necessary pleadings and framing of issues, trial Court on the basis of material on record held that the plaintiff was senior to defendants No. 4 to 50 and plaintiff was held entitled to promotion on the basis of his right for consideration. Trial Court decreed the suit by holding that representations qua adverse remarks for the period from 1.4.1981 to 31.3.1982, and 1.4.1982 to 12.10.1982 were not decided by the department so far and the report for the period from 15.5.1985 to 31.3.1985 was only advisory in nature and as such withholding of promotion of the plaintiff was not justified. Suit was decreed for declaration and specific direction to promote the plaintiff from 31.3.1985 was issued.

7. Lower Appellate Court set aside the judgment and decree of the trial Court on the ground that the case of the petitioner for promotion was considered when names of other linemen junior to him were considered and was deferred due to his adverse service record. Lower Appellate Court, while relying upon the judgment of the Hon'ble Supreme Court in case