A suit for declaration challenging a promotion is time-barred if filed beyond the statutory limitation period of three years, and promotions must adhere to qualifications and conduct.

JUDGMENT

Mr. Namit Kumar, J.

This Regular Second Appeal is directed against the judgment and decree dated 06.10.1997, passed by the Court of learned Additional District Judge, Rohtak, whereby appeal filed by the respondents-State has been accepted and judgment and decree dated 03.02.1996, passed by the Court of learned Additional Civil Judge (Senior Division), Rohtak, whereby suit of the appellant-plaintiff for declaration was decreed, has been reversed.

2. Parties to the lis are being referred as per their status before the trial Court. Brief facts of the case are that plaintiff filed a suit for declaration with consequential relief of mandatory injunction pleading therein that he was appointed as T-mate by defendants no.1 on 02.01.1978and since then he has been performing his duty honestly, efficiently and to the satisfaction of his higher authorities. The service record of the plaintiff is good and there is no complaint against him during the service period. He is senior to defendant no.3, according to the seniority list circulated by the department. In violation to the seniority list, defendant no.2 has promoted defendant no.3 - Paras Ram, T-mate, to the post of Operator illegally on 31.07.1981 (wrongly mentioned as 01.01.1981 in the judgments of the Courts below). At the time of the promotion, defendant no.2 had not considered the name of the plaintiff and the promotion order dated 31.07.1981 is illegal, unwarranted and unconstitutional. The promotion order is not speaking and has no weight in the eyes of law. No notice was ever given to the plaintiff regarding the change in the seniority list. The plaintiff is entitled for his promotion from the post of T-mate to the post of Operator. According to the instructions of the Government the promotions should be made in accordance with the seniority list. A departmental representation was moved by the plaintiff on 09.11.1989, but the authorities have not given any reply of the same. Thereafter, a legal notice under Section 80 C.P.C. was served upon defendants no.1 and 2, but the same has not been replied to. Despite repeated requests and demands, the defendants have refused to promote the plaintiff to the post of operator. Hence, the suit.

3. Defendants no. 1 and 2 filed a joint written statement controverting the allegations of the plaintiff and inter alia pleaded that the plaintiff has been working as T-mate since 02.01.1978 but no seniority list of such staff has been maintained in the department. No ACR is written by the officers as there is no rule or instructions from the Government. The promotion of such staff is made in accordance with the work and conduct and recommendation of the concerned officer under whom they are working. In fact, defendant no.3, Paras Ram was doing the work on Diesel Pumping Set, Electric Pumping Set from the very beginning of his service and he knew how to operate, repair and maintain them fully. The plaintiff was working on Drag-line and, therefore, defendant no.3 was promoted to the post of Pump Operator. No seniority list is maintained of the persons working as T-mate and the promotions are made purely on the basis of the recommendations of the concerned officer. The plaintiff does not fulfil the requisite qualifications and experience for the post of Operator. Objections were also raised that the plaintiff has no cause of action and locus-standi to file the present suit, the suit is barred by limitation and the civil Court has no jurisdiction to entertain the present suit.

4. Replication was also filed by the plaintiff denying the pleas raised by the defendants and reiterating his allegations.

5. From the pleadings of the parties, following issues were framed by the trial Court:-

1. Whether plaintiff is senior to defendant no.3 and has wrongly been ignored for promotion by defendant no.2 by means of order dated 1.1.81 as alleged in the plaint, If so its effect? OPP

2. Whether plaintiff has no cause of action or locusstandi to file the suit? OP