Gujarat High Court
Rasiklal V Ambani vs State Of Maharashtra & on 7 February, 2013
Author: C.L.Soni
Bench: C.L. Soni
RASIKLAL V AMBANI....Appellant(s)V/SSTATE OF MAHARASHTRA C/SA/137/1994 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SECOND APPEAL NO. 137 of 1994 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE C.L. SONI ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================================ RASIKLAL V AMBANI....Appellant(s) Versus STATE OF MAHARASHTRA & 1....Respondent(s) ================================================================ Appearance: MS KHYATI P HATHI, ADVOCATE for the Appellant(s) No. 1 APPEARANCE WITHDRAWN for the Respondent(s) No. 1 Mr. Bhavesh Hazare, AGP for the Respondent(s) No. 2 ================================================================ CORAM: HONOURABLE MR.JUSTICE C.L. SONI Date : 07/02/2013 ORAL JUDGMENT
1. This appeal under section 100 of the Code of Civil Procedure 1908 is at the instance of the original plaintiff who filed Regular Civil Suit No. 37 of 1985 seeking declaration that the action and orders of the Government of Gujarat in not giving deem date in Class-II and Class-I service is illegal, arbitrary, mala fide, without jurisdiction and contrary to the provisions of the State Reorganization Act, 1956, Bombay Reorganization Act, 1960, Allocated Government Servants Rules 1957 and contrary to Article 14 and 16 of the Constitution of India.
It is the case of the plaintiff that the plaintiff was appointed as Senior Clerk in the Finance Department of the Government of Kachchh in February, 1949 and was then transferred and promoted as Audit Superintendent in the office of the Accounts Officer, Government of Kachchh in October, 1949. In 1954, Government of India reorganized the Accounts Office into Treasury Office and the plaintiff was re-designated as Head Accountant. On 1.11.1956, Kachchh State became part of bilingual State of Bombay and his post was equated with the post of Head Accountant in Treasury Office of the Bombay State with pay scale of Rs.180-250 as per the resolution of the Bombay State dated 28th February, 1958. The plaintiff was then absorbed as permanent head accountant under the State of Bombay as per the provisions of the allocated Government Servants (Absorption, Seniority, Pay and Allowances) Rules, 1957. The gradation list of the Head Accountants of erstwhile Bombay State and Kachchh State was prepared and published in which the plaintiff was shown at Sr. NO.2 as permanent Head Accountant from 3.10.1949 In September, 1958, Bombay Public Service Commission invited applications for the post of Treasury Officers. The plaintiff had applied in response to the said advertisement. He was interviewed and selected by the Bombay Public Service Commission for the post of Treasury Officer and as such, he was promoted and posted as Treasury Officer at Palanpur in November, 1959. On 1.5.1960, the State of Bombay was bifurcated into the State of Maharashtra and the State of Gujarat. The plaintiff became servant of the State of Gujarat as a Treasury Officer at Palanpur. In the State of Gujarat, separate department of Director of Accounts and Treasuries was created and three branches i.e. Treasury Office, Local Fund Audit Office and Pay and Accounts Office were made and head accountant of treasury, senior auditor of local fund audit office and superintendent of Pay and Accounts Office were included in Group I Cadre. The plaintiff was head accountant in the Treasury Cadre and included in Group-I Cadre. In 1969, the plaintiff was transferred as Senior Auditor (Group-I) in the Local Fund Audit Office at Jamnagar. In 1970, he was transferred at Bhuj (Kachchh) as Senior Auditor in the office of the Assistant Examiner, Local Fund Accounts at Bhuj and in May,1979, he was transferred and posted as Sub Treasury Officer at Gandhidham which was also Group-I post. In March, 1980, he was transferred as Office Superintendent in the office of the Assistant Examiner (Local Fund) Accounts. He continued in the said post till his retirement on 31st March, 1984.
It is the further case of the plaintiff that he was humiliated by reverting him in February, 1963 from Class II post of Treasury Officer to the post of Head Accountant. For such reversion, it was stated that the plaintiff was Ex Kachchh State Treasury Person and had become head accountant without passing Head Accountant s examination and, therefore, his name was not included in any seniority list till June, 1975. It is the further case of the plaintiff that he was directly recruited with no condition attached to the appointment order and was confirmed as Head Accountant from 3rd October, 1949. This post of head accountant was given to the plaintiff because he was Bachelor of Commerce from Bombay University in 1947 with special subject of Advanced Accountancy and Audit . It is also the case of the plaintiff that after formation of the combined accounts cadre of Group I personnel i.e. Head Accountant, Senior Auditors and Superintendent, the Director of Accounts and Treasuries Ahmedabad issued a scale of above named Group I Personnel as on 31.3.1964 and 1st April, 1964 in respect of the persons working on the supervisory posts of Head Accountant, Senior Auditors and Superintendent under the circular dated 13.6.1975. It is the case of the plaintiff that for the first time, in the said seniority list, the name of the plaintiff was wrongly shown at Sr. NO.7 and his date of continuous service was also wrongly shown from 26.2.1954 although there was clear order dated 2.3.1960 of the Finance Department of Bombay State whereby date of 25.2.1954 was revised to 3.10.1949 as the date of continuous service in the post of Head Accountant. Plaintiff, therefore, submitted representation dated 24.7.1975 to correctly show the position in the seniority list. The representation was not decided and the Director of Accounts and Treasuries then issued combined seniority list on 15.12.1975 wherein the name of the plaintiff was shown at Sr. No. 7 by treating the date of continuous service of the plaintiff from 26.2.1954. The plaintiff represented against such placement in the seniority list. However, no reply was given to the representation and after about 6 years, the Director of Accounts and Treasuries, Ahmedabad issued order dated 171.12.1981 amending the date of continuous service of the plaintiff to 3.10.1949. On the basis of such order, the plaintiff submitted representation dated 21.5.1982 demanding deem date in Class II post from 2.11.1956 with his immediate junior as Head Accountant in Treasury Cadre who was promoted as Treasury Officer. The plaintiff was given evasive reply by the Director of Accounts and Treasuries Ahmedabad. The plaintiff therefore again made representation dated 15.11.1983 for posting him in Class I post in consonance with his seniority which was replied after the retirement of the plaintiff and his claim for promotion was denied on the ground that he had not passed Gujarat Accounts Service Examination. According to the plaintiff, the Director had no power to refuse the claim of the plaintiff as he was not competent to override the orders of the Government of Bombay nor even the Government of Gujarat was competent to override the orders of the government of Bombay dated 2.3.1960. Government of Bombay was duly competent authority to decide the question of absorption, seniority, Pay and allowances under the Allocated Government Servants (Allocation, Seniority,Pay & Allowances ) Rules,1957. The plaintiff has thus become entitled to be given deemed date in Class II Service from 1/2 November, 1956 and his future promotion in Class I (Junior Duty) and Class I (Senior Duty) with the date his immediate juniors were promoted. It is further case of the plaintiff that the Government of Gujarat, Finance Department issued seniority list of Class I and Class II Officers of common Accounts Cadre under resolution dated 12.11.1983 and from the list of class II Officers, it is seen that there is name of one Mr. B.N. Desai who was junior to Mr. H.S. Parikh above whom name of the plaintiff should appear. According to the plaintiff, Shri Desai being immediate junior to the plaintiff in Class II Service, the plaintiff is entitled to the deemed date of 8.5.1964 in class I (Junior Duty) Post and his name should appear just above the name of Shri Desai in the said seniority list.
On the above averments, the plaintiff has prayed to declare that the action and orders of the defendant no.2 in not giving deemed date of Class II Service Grade from 1st/2nd November, 1956 and Class I (Junior Duty) Grade from 8.5.1964 and in Class I (Junior Duty) Grade from 5.3.73, from 7.6.76 and 1.8.1977 as illegal wrong, arbitrary, mala fide, prejudicial, without jurisdiction, contrary to the provisions of the State Reorganization Act, 1956, Bombay Reorganization Act, 1960 and Allocated Government Servants (Absorption, Seniority, Pay & Allowances) Rules, 1957 and in violation of Article 14 and 16 of the Constitution of India and the plaintiff be declared in Class II Service in the pay scale and grade of Rs.220-650 and revised pay scale and grade of Rs.280-735 from ¿.11.56, in class I (Junior Duty Grade) in the pay scale and grade of Rs.420-950 and revised pay scale of Rs.500-100 from 8.5.1964 in Class I (Senior Duty Grade) in the pay scale and grade of Rs.1100-1600 from 5.3.73, in class I (Senior Duty Grade) in the pay scale of Rs.1300-1700 from 7.6.76 and in Class I (Senior Duty Grade) in the pay scale and grade of Rs.1600-2000 from 1.8.1977 with all consequential benefits, pay, allowances and interest at the rate of 18% per annum.
The suit of the plaintiff was resisted by the defendant No.2 State of Gujarat by filing written statement at Exh. 23. The defendants while denying the allegations in the plaint, stated that the appointment of the plaintiff on the post of head accountant was subject to passing of departmental examination and since the plaintiff did not pass such examination, he was reverted to the lower post which was challenged by the plaintiff by filing Special Civil Application No. 154 of 1963 before this Court which was rejected by this court on 24.9.1963 and thereafter, the plaintiff filed Regular Civil Suit No. 163 of 1969 which was allowed against which the first appeal no.585 of 1972 was filed by the defendants before this court which was allowed and the judgment and decree passed by the trial court came to be set aside and the order of reversion thus came to be maintained. It is further stated that the plaintiff held Class-II post from November, 1959 to March, 1963 and thereafter, he was reverted in Group-I (Non-Gazetted Class-III) post and, therefore, even if the seniority of the plaintiff was to be considered from 26.2.1954 or3.10.1949 in Group-I, the plaintiff was not prejudiced in any manner. Seniority of the plaintiff was fixed from 3.10.49 by order dated 17.12.1981 and the plaintiff was holding Group-I post but since the plaintiff did not pass the departmental examination, he was not eligible for promotion to Class-II post, therefore, there is no question of considering the case of the plaintiff for deemed date for Class-II post. It is further stated that the cause of action for the plaintiff for denial of promotion had arisen when the plaintiff was denied the promotion on account of non-passing of the departmental examination and, therefore, present suit for the same relief is barred by delay and latches. It is further stated that the Government of Gujarat by resolution dated 30.12.1964 resolved that for claiming promotion to Class-II post, passing of GAS Examination was compulsory and only thereafter, the plaintiff was entitled to promotion. It is stated that though it was not necessary to pass such examination for the State of Kachchh, but on bifurcation of the State of Bombay into the State of Maharashtra and the State of Gujarat, in Gujarat, passing of such examination was compulsory and the plaintiff having not passed such examination, he was not eligible for promotion. The plaintiff thus was not fit for promotion and, therefore, not entitled to any relief in the suit which was time barred.
Learned trial Judge on the basis of the above pleadings, framed following issues at Exh. 24:
Whether the plaintiff proves that the action of defendants of not giving promotion of Class II and Class I service to the plaintiff on deemed dates is illegal, wrong, arbitrary, malafide, prejudiced without jurisdiction, contrary to the provisions of the natural justice and also against the provisions of State Reorganization Act, 1956 and Bombay Reorganization Act, 1960 as alleged in plaint Ex-1?
Whether the plaintiff proves that he is entitled to claim declaration as prayed for in para 36 of the plaint Exh-1? and is entitled to claim arrears as prayed for?
What reliefs plaintiff is entitled to?
On appreciation of the evidence, the learned trial Judge came to the conclusion that the plaintiff had immediately challenged the seniority list as on 15.12.1975 wherein his immediate junior Shri B.N. Desai was placed above him and the seniority of the plaintiff was granted from 1949 as per office order at Exh. 38 and, thus, service of the plaintiff on the post of Head Accountant is treated as continuous service from 3.10.1949 and since the plaintiff was senior to Shri B.N. Desai, the plaintiff would be entitled to benefits of promotion from the date when Shri B.N. Desai was promoted. It is further recorded by the learned trial Judge that before the rules of 1962 of the State of Gujarat, there were no rules in the erstwhile State of Kachchh for passing of the departmental examination for promotion, therefore, the plaintiff is entitled to promotion by considering his seniority from 1949. The plaintiff was also held entitled for deemed date of promotion in Class-II post with effect from 1-2/11/1956 and as Class-I Junior Grade with effect from 8.5.1964 and as Deputy Director with effect from 5.3.1973 and Class I Senior Duty with effect from 7.6.76 and as Director with effect from 1.8.1977 and for such relief of deemed date of promotion, the suit was allowed and since the plaintiff retired in the year 1984, the defendants were directed to give effect of deemed date of promotions and to pay arrears accordingly.
Defendants filed Regular Civil Appeal No. 31 of 1989.The learned appellate Judge came to the conclusion that the suit of the plaintiff was barred by the principles of res-judicata. Learned appellate Judge recorded that the plaintiff had already agitated the issue about passing of the departmental examination for the purpose of promotion. The suit was decided on this issue in favour of the plaintiff. However, in the first appeal filed by the State Government, the plaintiff lost and the suit of the plaintiff was dismissed. Therefore, it is not open to the plaintiff in the present suit to agitate the same issue. Learned appellate Judge also observed that the earlier suit of the plaintiff was also dismissed on the point of limitation. Learned appellate Judge, thus, allowed the appeal and set aside the judgment of the trial court and dismissed the suit of the plaintiff. Hence this appeal by the plaintiff.
This appeal was admitted on the following substantial questions of law:
(1) In the facts of the case, whether the suit of the plaintiff -appellant is barred on the principles of res-judicata?
(2) In the facts of the case, whether the suit is based on the rights under the provisions of secs. 115 and 116 of the State Reorganization Act, 1956 and of sec. 81 of the Bombay Reorganization Act, 1960 and of the Rules framed thereunder, whether the plaintiff-appellant can be said to be discriminated and was required to pass examination for Head Accountant?
(3) In the facts of the case, whether the plaintiff is required to pay additional court fees of Rs.3800.00 on interpretation of the relevant provisions of the Bombay Court Fees Act?
I have heard the learned advocates for the parties. Learned Advocate Mr. Biren A.Vaishnav appearing for the appellant submitted that the first appellate court has committed serious error in dismissing the suit of the plaintiff on the principles of res-judicata. He submitted that the issue involved and adjudicated in the earlier suit is not the same in the present suit. He submitted that in the present suit, the plaintiff has prayed to give him deemed date of promotion and consequential benefits by considering his seniority from the year 1949 on the post of Head Accountant as per its final confirmation by the State Government that the plaintiff was entitled to seniority for the post of head accountant from 1949. He submitted that after the disposal of the earlier suit, if the State Government has confirmed entitlement of the plaintiff for seniority to the post of Head Accountant from the year 1949, issue of passing the departmental examination for getting promotion to the post of Treasury Officer would not arise as the plaintiff would then never be required to pass such examination as he would be treated to be in confirmed service on the post of head accountant. Mr. Vaishnav therefore submitted that even if the first appeal against the judgment in the earlier suit was allowed, same was for purely on the issue whether the reversion of the plaintiff to the post of head accountant on plaintiff s not passing departmental examination was legal or not. He submitted that now when the State Government has finally approved the seniority of the plaintiff from 1949 when the plaintiff was governed by the rules of erstwhile State of Kachchh, the plaintiff could not be non-suited on the ground that the issue about non-passing of the examination was decided in the earlier suit. He, therefore, submitted that the principles of res-judicata would not apply to the suit of the plaintiff. Mr. Vaishnav further submitted that such being the only issue on which the decree passed in the suit is set aside and since the suit does not suffer by the principles of res-judicata, judgment and decree of the appellate court is required to be quashed and set aside and the judgment and decree of the trial court is required to be restored.
As against the above arguments, learned A.G.P. Mr. Bhavesh Hajare appearing for the State submitted that the First Appellate Court has not committed any error in dismissing the suit of the plaintiff on the principles of res-judicata. He submitted that the plaintiff having challenged his reversion on the ground of non-passing of the departmental examination, even if the seniority of the plaintiff is to be counted from the year 1949 for head accountant s post, still the plaintiff would be required to pass the departmental examination for the purpose of claiming promotion to the higher post. He submitted that the suit filed by the plaintiff is for deemed date of promotion right from 1956 on different posts. Mr. Hajare submitted that if the plaintiff is to be granted the deemed date from the year 1956, decision rendered by this Court in First Appeal No. 585 of 1972 on the issue of passing the departmental examination would certainly come in the way of the plaintiff as the decision is rendered by this court in the First Appeal in the year 1974 and it is held that the plaintiff was not entitled to promotion without passing of departmental examination. Learned A.G.P. Mr. Hajare submitted that even if the seniority of the plaintiff is to be counted from the year 1949, that could never be considered for the purpose of promotion because on merger of the erstwhile State of Kachchh and then on bifurcation of the bilingual State of Bombay, the plaintiff was governed by the Rules of the State of Gujarat and for the purpose of promotion to the higher post, the plaintiff was required to pass the departmental examination. Such issue is already decided by this court in the first appeal filed by the State against the plaintiff, therefore, the plaintiff could not be held entitled to deemed date of promotion simply on the ground that the seniority of the plaintiff was tobe counted from the year 1949. He submitted that once it is held by this court in the above said first appeal that the promotion was subject to passing of the departmental examination, the plaintiff could not be held entitled to promotion to the higher post unless the plaintiff passed out such departmental examination. He submitted that the learned appellate Judge, therefore, has not committed any error in holding that the suit of the plaintiff was barred by the principles of res-judicata. Learned A.G.P. Mr.Hajare further submitted that the suit of the plaintiff was also barred by the principles of delay and latches. He submitted that the plaintiff having once challenged his reversion by filing the suit in the year 1969 and lost in the first appeal filed by the State on the ground that the plaintiff was not entitled to promotion unless he passed out departmental examination and also lost on the ground of limitation, present suit filed by the plaintiff after his retirement suffers from delay and latches and the plaintiff is not entitled to any relief of deemed date of promotion with effect from 1956 onwards in such belatedly filed suit. He, thus, urged to dismiss the appeal.
Having heard the learned advocates for the parties and having perused the judgment and decree passed by the courts below with the Record and Proceedings of the case, it appears that the plaintiff has filed the suit after his retirement claiming deemed date of promotion and other consequential benefits with effect from 1956 on the post of head accountant and for next higher posts on the ground that the seniority of the plaintiff was confirmed by the State Government from the year 1949 on the post of head accountant. It appears that there is no dispute about the fact that the plaintiff was employee of the erstwhile State of Kachchh and thereafter, became employee of the bilingual State of Bombay and on bifurcation thereof, became employee of the State of Gujarat. In the year 1956, the plaintiff was promoted. However, the plaintiff was reverted in the year 1963 from the post of Treasury Officer to the post of head accountant on the ground that the plaintiff had not passed out requisite departmental examination. Such reversion was challenged by the plaintiff by filing Civil Suit No. 163 of 1969 which was allowed and reversion was declared illegal but in the first appeal no. 585 of 1972 filed by the State, this Court vide judgment and decree dated 18.7.1974, held that the plaintiff was appointed to officiate as treasury officer on probation in November, 1959 and the State of Gujarat was formed under the Bombay Reorganization Act, 1960 and thereafter, the plaintiff became civil servant of the State of Gujarat and on finding that the plaintiff has not passed the requisite departmental examination, State had reverted the plaintiff. It was further held that the plaintiff was required to pass such departmental examination and in absence of passing such departmental examination, the plaintiff was not entitled to such promotion. In the said decision, the Court recorded that the High Court in the earlier proceedings of Special Civil Application, negatived contention of the plaintiff that the plaintiff was not required to pass the departmental examination and, therefore, it was not open to the plaintiff to again raise the same issue by way of the suit. Thus, the earlier suit was held to be barred by the principles of res-judicata. High Court in the first appeal also held that the suit of the plaintiff was barred by law of limitation. From the judgment passed in the above first appeal, it clearly appears that the claim of the plaintiff for promotion was denied on account of non-passing of departmental examination. In fact, by present suit, the plaintiff again attempted to claim the same kind of benefit which was claimed in the earlier suit and in special civil application by putting forth prayers in a different way and on different kind of cause of action for laying foundation of the suit. In the present suit, the plaintiff has claimed deemed date of promotion on the ground that his seniority is now recognized for the post of head accountant from the year 1949 when he was employee of the erstwhile State of Kachchh and was not required to pass any departmental examination and since his junior was promoted in the year 1956, he is entitled to deemed date of promotion with his junior on all the posts mentioned in the prayers.
In my view, such claim of the plaintiff in this suit is rightly held to be barred by the principles of res judicata by the first appellate court. The plaintiff having failed to prove that he was not required to pass any departmental examination in his earlier suit, it is not open for the plaintiff to again indirectly got the same point agitated in the present suit. Learned appellate Judge has therefore not committed any error in dismissing the suit of the plaintiff on the principles of res-judicata.
Even apart from the principles of res-judicata, the suit of the plaintiff suffered from the principles of delay and latches. There is no dispute about the fact that the plaintiff had lost in special civil application no. 154 of 1963 and in the first appeal no. 585 of 1972 on the issue of passing of departmental examination for the purpose of promotion to the next higher post of treasury officer. The plaintiff has filed the suit after his retirement on the ground that in the year 1981 the State has confirmed that the seniority of the plaintiff is to be counted with effect from 1949. In fact, now, if the plaintiff is to be considered entitled for promotion for next higher post from 1956 as claimed by the plaintiff, not only the seniority of many other persons will be upset but the plaintiff would be required to be given benefits for which the claim of the plaintiff has already become time barred. The plaintiff was held not entitled to promotion on account of non-passing of departmental examination. Therefore, claim of the plaintiff now cannot be revived after these many years on the ground that his seniority is confirmed from the year 1949 and he would not be required to pass the departmental examination. Such was very belated claim of the plaintiff and cannot be accepted after so many years especially when the plaintiff has already retired and, therefore, suit of the plaintiff was also not required to be entertained on the principles of delay and latches. The plaintiff having approached the court at very belated stage for claiming deemed date of promotion with effect from 1956 when his immediate junior was promoted to the higher post, the plaintiff cannot be held entitled to any relief in such a suit. Therefore, on the ground of res-judicata as well as on the ground of delay and latches, suit of the plaintiff was not required to be entertained. Learned appellate Judge has thus not committing any error in dismissing the suit of the plaintiff. Since the suit of the plaintiff was liable to be dismissed on above said two grounds, the second and third substantial question are not required to be addressed. Therefore, appeal is required to be dismissed.
In the result, the appeal is dismissed. Judgment and decree passed by the first appellate Court is confirmed. R&P to be sent back forthwith.
(C.L.SONI, J.) anvyas Page 19 of 19