JUDGMENT :

Namit Kumar J.

CM-4085-C-1999 IN RSA-2309-1999

This is an application filed under Section 5 of the Indian Limitation Act for condonation of delay of 88 days in filing the appeal.

Notice in the application was issued on 11.08.1999 and reply thereto has been filed by respondent No.1.

In view of the averments set out in the application, which is supported by an affidavit, the same is allowed and delay of 88 days in filing the appeal is condoned.

RSA No.2309 and 3905 of 1999 (O&M)

1. This judgment shall dispose of two cross-appeals i.e. RSA Nos.2309 and 3905 of 1999, as common questions of law and facts are involved for adjudication.

2. The appeal i.e. RSA No.2309 of 1999, titled as "State of Haryana and others vs Gurbachan Singh and another", has been preferred by the State of Haryana, against the judgment and decree dated 16.08.1997, passed by the learned Civil Judge (Jr. Division), Sirsa, whereby the suit was decreed and the judgment and decree dated 09.01.1999, passed by the learned District Judge, Sirsa, whereby the judgment and decree passed by the learned trial Court was modified and the appeal of the defendant/appellant was allowed to the extent that the plaintiff/respondent shall not be entitled to receive arrears of pay, etc. on account of his notional promotion to the post of Workshop Instructor w.e.f. 01.07.1991. The second appeal i.e. RSA No.3905 of 1999, titled as "Gurbachan Singh vs State of Haryana and others", has been preferred by the plaintiff/appellant impugning the judgment and decree dated 09.01.1999, passed by the learned District Judge, Sirsa, whereby he has been deprived of the arrears of pay etc. on account of his promotion to the post of Workshop Instructor w.e.f. 01.07.1991. For brevity, facts are being culled out from RSA No.3905 of 1999.

3. The brief facts of the case are that the plaintiff/appellant was appointed as Laboratory Attendant in December, 1981. He was matriculate and has passed 02 years diploma course in Fitter Trade. The plaintiff claimed to be eligible for promotion as Workshop Instructor on the basis of his qualification and experience whereas defendant No.4 -Jai Parkash, who came to be recruited as Electrician in the year 1983, was promoted as Workshop Instructor vide order dated 07.01.1991, ignoring the claim of the plaintiff. The plaintiff challenged his promotion with further declaration that he is entitled to be promoted w.e.f. 07.01.1991 i.e. the date when defendant No.4 - Jai Parkash, was promoted. It was also alleged in the suit that Sh. R.S. Mehta, the then, Principal, was inimical towards the plaintiff/appellant, therefore, he was ignored.

4. The learned trial Court vide judgment and decree dated 16.08.1997, decreed the suit of the plaintiff - Gurbachan Singh, by recording the following findings:-

"8. Having been given anxious consideration to the arguments of learned counsel for both the parties and after meticulous examination of evidence available on this point on file I have come to the conclusion that it is undisputed fact that plaintiff is senior in length of service to defendant No.4. It has been proved vide Ex.P1 that for the post of Workshop Instructor the requisite qualifications were matric plus two years experience in respective trade of I.T.I. which the plaintiff was fulfilled at the time of impugned order and this fact has been proved vide Exs. P7 and P5. The alleged five years experience has not been proved by the defendants on file. The draft rules have not been implemented so far according to which that experience of five years is required for the post of Workshop Instructor. The whole action taken against the plaintiff seems to be arbitrary as no opportunity of being heard were provided to him nor any option was obtained from the plaintiff by the defendant. In this direction we may also rely upon SLJ 1988 (3) Page 101 titled as Desolea Rama Rao & another Vs. State of Andhra Pradesh & others in which Hon'ble Apex Court of India (S.C.) laid down as under:-

As I