Gujarat High Court
O.N.G.C vs Deepindera on 6 September, 2011
Bench: Jayant Patel, J.C.Upadhyaya
Gujarat High Court Case Information System
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SA/231/2005 41/ 41 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND
APPEAL No. 231 of 2005
With
SPECIAL
CIVIL APPLICATION No. 18937 of 2005
For
Approval and Signature:
HONOURABLE
MR.JUSTICE JAYANT PATEL
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
=========================================================
1
Whether Reporters of Local Papers may be allowed to see the judgment ?
2To be referred to the Reporter or not ?
3Whether their Lordships wish to see the fair copy of the judgment ?
4Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5Whether it is to be circulated to the civil judge ?
========================================================= O.N.G.C. LTD. THRO' CHAIRMAN / MG. DIR. & 4 - Appellant(s) Versus DEEPINDERA KUMAR GAUR - Defendant(s) ========================================================= Appearance :
MR KB NAIK for M/S TRIVEDI & GUPTA for Appellant(s) : 1 - 5.
MS RENUKA GAUR with DR NA PARMAR for Defendant(s) :
1, ========================================================= CORAM :
HONOURABLE MR.JUSTICE JAYANT PATEL and HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 06/09/2011 CAV COMMON JUDGMENT :
(Per : HONOURABLE MR.JUSTICE J.C.UPADHYAYA)
1. Both these matters arise out of the judgment and order rendered by the Ld. Presiding Officer, Fast Track Court No. 8, Vadodara, on 6/9/2005 in Regular Civil Suit No. 49 of 2005. They are, therefore, heard together and are being disposed of by this common judgment.
2. Second Appeal No. 231/2005 came to be admitted on 20/10/2005 as the following substantial questions of law arose for determination by this Court :
Whether it is legally permissible for the Civil Court to treat the aspect of 'consideration', occurring in Rule 7 (3) of Non-statutory Rule of Modified Recruitment Promotion Regulation, 1980, (MRPR) as at par with 'recommendation', requiring Departmental Promotion Committee (D.P.C.) to give reason even in case of those candidates who, though having been considered for promotion, not recommended for the same ?
When the plaintiff was called fro the purpose of consideration for promotion and was also considered, but was not recommended for the same, whether the Civil Court can sit in appeal over the decision of the D.P.C. of not recommending the opponent-plaintiff after considering his performance ?
When one of the criteria for promotion is a 'written examination' or a 'practical test' or 'interview' or 'any combination of these', whether it is legally permissible for the Civil Court to treat the conduct of 'group discussion' by the employer as not 'interview' and whether on the basis thereof, it is legally permissible for the Civil Court to conclude that an employee having been called for 'group discussion', has not been considered for promotion, requiring Departmental Committee to give reasons ?
When the matter of promotion is based on sole merit, whether the Civil Court can examine the allegation of an employee, which touches the decision and findings of DPC of non recommending the plaintiff for promotion, and whether such decision and findings of DPC can be the subject matter of examination or review by Civil Court ?
Whether it is legally permissible for the Civil Court to direct the constitution of a new Departmental Promotion Committee for considering the case of promotion of an employee of any organization operating under non-statutory rules ?
Whether a suit would be maintainable against an action of the organization without joining the organization as an opponent and whether the Civil Court is right in holding that when the officers of the Corporation are joined as opponents, the suit will be maintainable though the Corporation was not impleaded ?
When several employees are considered for promotions and some of them are recommended for promotion while others are not, whether a suit would be maintainable without impleading the other employees not recommended for promotions ?
3. Special Civil Application No. 18937/2005 came to be filed seeking the following reliefs contained in para. 18 in the petition, namely -
"[A] xxx xxx xxx xxx [B] YOUR LORDSHIP may be pleased to issue writ of mandamus or any other order [1] To quash and set aside the operative part of judgment of Lower Appellate Court [Annexure - B page 133-134] where the Lower Appellate Court has up-held the findings of Trial Court but at the same time has modified the order, and at the same time has set aside the order of Trial Court, has granted relief which was not prayed for.
[C] YOUR LORDSHIP may be pleased to direct the respondents to execute and implement the order of Trial Court which is in force till the final disposal of this petition.
[D] YOUR LORDSHIP may be pleased to further suspend the operative part of judgment of Lower Appellate Court which the Lower Appellate Court has suspended for 10 days, till the final disposal of this petition.
[E] xxx xxx xxx xxx [F] xxx xxx xxx xxx"
4. The appellants in Second Appeal No. 231/2005 were original defendants in Special Civil Suit No. 660/2003, which came to be decreed by judgment and order dated 14/6/2005 by the Ld. Civil Judge [S.D.] Vadodara and the respondent in the appeal was original plaintiff. The petitioner in Special Civil Application No. 18937/2005 was original plaintiff in the aforementioned suit and the respondents nos. 1 to 5 were original defendants in the suit. In the result, the appellants in the appeal and the respondents nos. 1 to 5 in the petition shall be hereinafter referred to as 'the defendants' and the respondent in the appeal and the petitioner in the petition shall be hereinafter referred to as 'the plaintiff' for the sake of convenience.
5. Short facts leading to filing of both these matters before this Court are that the plaintiff is an employee of Oil & Natural Gas Corporation Ltd. [for short 'ONGC'] and on and about 4/12/2003 when he filed the aforementioned suit, he was working as Superintending Engineer [P] [E-4 Level Officer] in ONGC at its Vadodara centre. He was holding said post since 1/1/1996 and according to the plaintiff, he was eligible to the promotion to the post of C.E.[P.], E-5 level with effect from 1/1/1999. Despite the fact that Departmental Promotion Committee [for short 'DPC'] convened meetings on different dates and the plaintiff appeared before the DPC, yet he was not promoted and his juniors came to be promoted. It was further the case of the plaintiff that he was holding the requisite qualifications for the promotional post. It was his allegation that malafide tactics were adopted by the DPC as well as his employer in not promoting him. The defendant ONGC did not follow consistent promotional policy. It was alleged that the defendant ONGC issued an office order dated 17/4/2000 for transfer of the plaintiff. Subsequently, said transfer order was cancelled. The defendant ONGC declared the promotion list in February 2001 with effect from 1/1/1999 and subsequently, the promotion list was declared with effect from 1/1/2000 and 1/1/2001. The plaintiff filed his representation /appeal dated 23/6/2003 and sent reminder on 22/9/2003. Ultimately, the plaintiff filed the aforementioned Special Civil Suit No. 660/2003 seeking declaration that the defendant Corporation has not followed any consistent promotion policy and, therefore, the act of the defendant Corporation for not considering the name of the plaintiff in promotion list declared in February 2001, with effect from 1/1/1999 and subsequently with effect from 1/1/2000 and 1/1/2001 is illegal, malafide, against the principle of natural justice and law of equity. He further sought declaration that the name of the plaintiff should be included in the list of promotion declared in February 2001 with effect from 1/1/1999 and other consequential benefits. The aforementioned Special Civil Suit came to be tried and decided by Ld. Civil Judge [S.D.] Vadodara and ultimately, came to be decreed in toto by judgment and order dated 14/6/2005, whereby the defendants were directed to include the name of the plaintiff in promotion list declared in February 2001 and to promote the plaintiff with effect from 1/1/1999 with all benefits and consequential reliefs.
5.1. Feeling aggrieved and dissatisfied with the impugned judgment and decree rendered by the Civil Court, the original defendants challenged the same in the District Court, Vadodara, by preferring Regular Civil Appeal No. 49/2005. The said appeal was heard and decided by the Ld. Presiding Officer, F.T.C. no. 8, Vadodara, by judgment and order dated 6/9/2005, by passing the following order :
"Present appeal filed by the appellants [original defendants] against the respondent [original plaintiff] against the order and decree passed by the Civil Court in Special Civil Suit No. 660/2003 dated 14/6/2005 is hereby partly allowed.
As far as findings of trial Court are concerned, they are upheld, but order is modified. Order directing the defendants to include the name of the plaintiff in promotion list declared in February 2000 and to promote the plaintiff w.e.f 1/1/1999 with all benefits and consequential reliefs is set aside.
However, the defendant authority of ONGC is hereby directed to constitute one committee of three members to consider the case of the plaintiff. The defendant authority shall place all relevant records and proceedings of disputed 3 promotion lists before this committee and the committee shall decide the dispute on merits without influenced by any past decisions of DPC and order of this Court. The committee shall hear the respondent / plaintiff and shall consider his grievance. The finding of committee shall be binding to both the parties. The members of the committee would be other than those who were in selection committee and while selecting member, the respondent/plaintiff will be taken in confidence. The authority shall constitute such committee within 15 days of receipt of this order. The committee shall give its decision within one month from the date of its constitution. Meantime one post in category of E-5 and upper level shall be kept vacant."
5.2. The above order passed by the First Appellate Court has given rise to these two proceedings before this Court.
6. On behalf of the appellants in the Second Appeal [original defendants], Mr. KB Naik, learned advocate for M/s. Trivedi & Gupta, assailed impugned judgment and order rendered, not only by the First Appellate Court but even by the trial Court on various grounds. It was submitted that in the first place, as per the rules framed by the defendant ONGC, there is no dispute that E-5 is a promotion post on merits. It is submitted that in the suit, the plaintiff ventilated his grievance as if the plaintiff was not called by DPC for interview. Along with other eligible candidates, the plaintiff was called by the DPC. It is submitted that since the plaintiff could not secure the requisite minimum marks, he was not promoted. Mr. Naik further submitted that both, the trial Court and the First Appellate Court committed serious error in not properly considering the meaning of "consideration" and "recommendation for promotion".
As soon as the plaintiff was called by the DPC to face the interview for the promotion to the post of E-5, which was to be filled in strictly on merits, there is no dispute that the plaintiff who possessed requisite qualification for being considered for the promotion, came to be considered fit for the interview. Thus, the apprehension ventilated by the plaintiff that he was not considered for promotion does not survive. Whoever secured minimum qualifying marks and more were "recommended" by the DPC for promotion. Mr. Naik, therefore, submitted that in the instant case, the DPC considered the plaintiff, who possessed requisite qualification to call for his interview, but the plaintiff failed in it and, therefore, his name was not recommended for promotion by the DPC.
6.1. Mr. Naik, Ld. Advocate submitted that both the lower Courts erred in not properly interpreting rule 7 regarding filling up of vacancies by promotion, by creating confusion about "consideration for such vacancy" and "recommendation for such vacancy". As per scheme of rule 7 [3], if the eligible candidates are not called for interview for being considered on such vacancy, then only the DPC was required to assign reasons in writing for not considering such employee. Mr. Naik submitted that as per the scheme of rule 7[4], where the criterian for promotion is merit, the DPC shall consider the service record and annual confidential reports of the candidates, may hold written examination or practical test or interview or any combination of these and shall follow the procedure for determining merits as laid down by the Corporation. It is, therefore, submitted that the DPC was required to assign reasons in writing if a candidate is not considered for such vacancy to be called for in the interview and not if in the interview a candidate does not secure requisite minimum marks and thereupon, his name is not recommended for promotion.
6.2. Mr. Naik assailed the judgments of the lower Courts on the ground that the Civil Court cannot sit in appeal over the decision of the DPC for not recommending the name of the plaintiff for promotion. It is further submitted that in the instant case, the interview was taken by the DPC adopting the mode of "group discussion" and the Civil Court seriously erred in coming to the conclusion that the group discussion does not amount to interview. Mr. Naik submitted that only in the plaint, the plaintiff levelled allegation of malafide, though without any basis. During the evidence before the trial Court, the plaintiff miserably failed to prove said allegation. Mr. Naik submitted that even the Civil Court did not go into the allegation of malafide as no specific issue to that effect was framed by the Civil Court and, therefore, technically speaking, the allegation regarding malafide levelled by the plaintiff against the defendant was not considered by the Civil Court as one of the grounds for allowing and decreeing the suit, still however, even on merits the plaintiff could not substantiate such ground.
6.3. Mr. Naik asserted that in the aforementioned facts and circumstances, the trial Court committed serious error of law and facts in directing the defendant Corporation to grant promotion to the plaintiff to the post of E-5 Level with back effect and other consequential benefits. It is submitted that the defendant challenged the judgment and decree passed by the trial Court before the District Court, Vadodara and the District Court, Vadodara by impugned judgment and order dated 6/9/2005 did not confirm the order of the trial Court to straightway grant promotion to the plaintiff. It is submitted that instead of allowing the appeal and setting aside erroneous judgment and decree passed by the trial Court, the First Appellate Court passed such order, which was neither asked for by any party. The First Appellate Court directed constitution of three member special committee to consider the case of the plaintiff for promotion with a special direction that such selection committee shall decide the dispute on merits after hearing the plaintiff and that the members of the committee shall be other than those who were in DPC and while selecting the members, the plaintiff shall be taken in confidence. Mr. Naik submitted that in the first appeal, without any prayer by either side to constitute a fresh promotion committee, the impugned judgment and order rendered by the First Appellate Court is outright illegal and contrary to the facts on record and besides the dispute involved in this matter. To constitute such committee by the Civil Court is not even legally permissible nor it is in accordance with the rules framed by the defendant ONGC.
6.4. Mr. Naik, however, fairly conceded that the ONGC could not produce relevant materials regarding the proceedings before the DPC, either before the trial Court or before the First Appellate Court and, therefore, this Court in the petition, vide order dated 22/12/2005 directed the defendant ONGC [respondent in the petition] to produce relevant documents for supporting the stand of the ONGC and more particularly the proceedings of DPC. It is further submitted that pursuant to the said order, the ONGC produced relevant documents before this Court and in the further order dated 8/2/2006 passed in the petition, in paras. 3 to 6, this Court observed as under :
"3.
Today, learned counsel for the ONGC has made the record available for perusal of the Court, which inter alia prima facie shows that the petitioner was considered for promotion based on the lot of 1999, 2000 and 2001 and as per the record which is made available to the Court for perusal, it prima facie appears that the petitioner scored 74 marks for the lot of 1999 officers but the cut-off marks was 76. In the year 2000, when the petitioner was considered, the petitioner scored 79.33 marks as against the cut-off marks of 87. In the year 2001, the petitioner scored 81.33 marks, whereas the cut-of marks fixed was 88 and therefore, it prima facie appears that the petitioner scored less than cut-off marks and as a result thereof, he was not considered for promotion by the Committee.
4. Ms. Gaur, learned counsel appearing for the petitioner submitted that certain officers who could not have been considered were considered and the instructions issued for considering the officers in the zone of consideration are also not followed.
5. The aforesaid contention of the learned counsel appearing for the petitioner shall be considered at the time of final hearing. However, it prima facie appears that if the petitioner has scored the marks less than the cut-of marks, denial of promotion cannot be said as unreasonable or arbitrary. The aforesaid observations shall be subject to the final view, which this Court may take-up after considering the matter in detail, including the record.
6. It also appears that it is on account of non-production of the necessary documents of the proceedings of DPC for consideration of the case of the petitioner with other eligible officers, the Trial Court had to draw the adverse inference and the Suit came to be decreed against ONGC. Even at the stage of appeal before the District Court, no attempts were made on the part of ONGC to produce the record or supporting the defence raised that the petitioner was considered by the DPC. It is only at the stage of Second Appeal, more particularly, after this Court passed the order on 22.12.2005, the record is made available to the Court for the first time. Therefore, it prima facie appears that though there was a good case on merits for ONGC, due to the lethargy or the lapse on the part of the concerned officer of the ONGC in not producing the record in three Courts including this Court, the Court was constrained to draw the adverse inference and consequently the Suit is decreed against ONGC and the petitioner is facing with such situation of litigation. As otherwise on merits, since ONGC has good defence, I find that the petitioner should be allowed to succeed only on account of lapse shown in the Trial Court and/or in the First Appeal Court and such lapse can be compensated by imposing suitable cost upon the ONGC, which may ultimately be recovered by ONGC from the erring officer."
6.5. Mr. Naik further submitted that thereafter also the defendant ONGC produced original record including the marks allocated by the DPC to all candidates including the plaintiff and other relevant documents. It is, therefore, submitted that the impugned judgment and order of the trial Court to straightway grant promotion to the plaintiff, so also the order of the First Appellate Court to constitute new committee for promotion can be said to be bad in law and facts on record.
6.6. Mr. Naik further submitted that in the suit, only certain office bearers of the ONGC Ltd., were joined as defendants and not the organization itself i.e. ONGC Ltd., and, therefore, the suit itself was not maintainable on the ground of non-joinder of necessary party. It is further submitted that in the suit, the plaintiff claimed his promotion, but when several employees are considered for promotion and some of them are recommended for promotion while others are not, the suit filed by the plaintiff without joining such other employees would also be not maintainable for want of joining necessary parties as in their absence, no decision could have been taken which affects their right of promotion, seniority, etc. 6.7. About the petition filed by the original plaintiff, Mr. Naik submitted that the petition itself is not maintainable because virtually what is prayed in the petition is to set aside the modified order of the First Appellate Court, whereby the new selection committee was ordered to be constituted and further prayed in the petition to execute the judgment and decree passed by the trial Court. It is submitted that when the alternative relief of filing appeal over the judgment of the First Appellate Court is available, the petition was not maintainable. Alternatively, Mr. Naik submitted that even on merits, considering the grounds and contentions raised by the defendant in the Second Appeal, the petition deserves dismissal.
6.8. Mr. Naik. Ld. Advocate for the defendant relied upon certain decisions which shall be discussed in this judgment at its appropriate time. It is, therefore, submitted that the Second Appeal may be allowed and the petition may be dismissed. Mr. Naik, however, submitted that during the pendency of this proceedings before this Court, promotion was granted to the plaintiff for the post of E-5 Level by order dated 23/10/2007 and, therefore, now even otherwise, the grievance of the plaintiff does not survive.
7. Ms. Renuka Gaur, Ld. Advocate for the respondent in the Second Appeal and petitioner in the Petition [original plaintiff] submitted that the trial Court, which had recorded full-fledged evidence, was perfectly justified in decreeing the suit in toto. It is submitted that though the plaintiff was eligible for the promotion, he was not recommended for the post of promotion and was illegally denied promotion. It is submitted that this Court rightly observed in the order dated 22/12/2005 and in the order dated 8/2/2006 passed in the petition that the defendant suppressed material documents not only from the trial Court, but even from the First Appellate Court. Though the plaintiff persistently urged that malafide tactics were adopted by the Department and that calling for "group discussion"
treating the same as interview and then to deny promotion was outright breach of the rules framed by the Department for the promotion as well as important documents were withheld by the defendant. The defendant produced such documents only when this Court passed the order.
7.1. Ms. Gaur, Ld. Advocate submitted that mere fact that pending these proceedings, the Department granted promotion to the plaintiff to the promotional post, shall not redress the grievance of the plaintiff as the plaintiff was entitled to promotion w.e.f 1/1/1999 and the said effect is not given to the plaintiff by the Department. Ms. Gaur submitted that when there is a concurrent finding of both the subordinate Courts that the plaintiff was wrongly denied promotion and the Department did not follow the consistent policy for the promotion, no interference is warranted in said finding in the Second Appeal. However, Ms. Gaur submitted that since the plaintiff was given promotion for the E-5 Level post, the petition filed by the petitioner [original plaintiff] now only survives on the question of effective date of promotion i.e. the plaintiff claims that it should be with effect from 1/1/1999 and not from the date of his promotion order dated 23/10/2007.
7.2. However, Ms. Gaur, Ld. Advocate for the plaintiff submitted that though the First Appellate Court confirmed all the reasonings and findings arrived at by the trial Court in the judgment and decree dated 14/6/2005, but erred in its judgment and order dated 6/9/2005 in constituting a special selection committee. It is submitted that to appoint such committee was neither the prayer from the either-side. It is under such limited issue that the plaintiff was constrained to file aforementioned Special Civil Application requesting this Court to invoke powers conferred under Articles 226 and 227 of the Constitution of India. Thus, the petition is, therefore, maintainable. Since all the findings arrived at by the trial Court have been virtually confirmed by the First Appellate Court, the plaintiff was not required to file any Second Appeal and, therefore, it is wrong to say that efficacious alternative remedy was available to the plaintiff. Under such circumstances, virtually the judgment and decree passed by the trial Court has attained finality and the same is deserved to be executed only for a limited question of giving the benefits of promotion to the plaintiff w.e.f. 1/1/1999.
7.3. Ms. Gaur, Ld. Advocate, therefore, submitted that the Second Appeal may be dismissed and the Petition may be allowed for the aforementioned limited issue.
8. At the outset, the bare perusal of the judgment and decree rendered by the trial Court as well as the judgment and order rendered by the First Appellate Court would suggest that both the lower Courts appeared to have misread the two different concepts, namely consideration for the promotion post and recommendation for the promotion post. There is no dispute that the plaintiff was found fit to be called for interview and was otherwise eligible for the same and in fact he was called by the DPC. In other words, it can safely be said that the plaintiff was within the zone of consideration and was also considered. Considering the documents produced by the defendant pursuant to the above referred order dated 22/12/2005 passed in the petition, it can safely be said that the plaintiff was called for the interview by the DPC on more than one occasion, but in every occasion he secured less marks than the minimum marks. Therefore, though he was considered for the promotion, his name was not recommended for the same. There is no dispute that if such record was produced by the Department either before the trial Court or before the First Appellate Court, the dispute could have been ended there.
9. The important development which took place during the course of these proceedings before this Court, is also required to be taken into consideration, namely the admitted fact that vide order dated 23/10/2007 [Annexure - 6 page 159 in the record of Second Appeal], plaintiff was promoted. Considering the said order, it clearly transpires that the plaintiff was promoted to the promotional post w.e.f 1/1/2006. When such is the situation, the question as to whether the plaintiff is entitled to promotion or not, etc., shall pale into insignificance. Though on behalf of the plaintiff, Ms. Gaur, Ld. Advocate submitted that since the promotion is not granted with effect from 1/1/1999, the grievance of the plaintiff cannot be said to have been fully redressed and, therefore, the petition filed by the plaintiff still survives. Apart from the fact as to whether any amendment was required to be carried out by the plaintiff [petitioner in the petition] in the petition on account of the subsequent development, since orally it is submitted that though the plaintiff is granted promotion, but it should have been w.e.f 1/1/1999, we deem it expedient to go into this issue.
10. So far as the Second Appeal is concerned, since pending the appeal, the plaintiff was granted promotion, virtually the cause for the Second Appeal, so also the cause for the suit itself do not survive, but, since on behalf of the plaintiff, it is submitted that the promotion should have been w.e.f 1/1/1999, for said limited purpose, it would be in the interest of justice to go into the merits of the Second Appeal.
11. In the above view of the matter, examining the judgment and decree rendered by the trial Court, so also the judgment and order rendered by the First Appellate Court, it clearly transpires that both the Courts below misread the relevant provisions contained in the rules framed by the ONGC Ltd., regarding the promotion and more particularly rule 7. Rule 7 pertains to filling up of vacancies by promotion. It contemplates that all the eligible employees who fulfill the requisite criteria, shall be eligible for consideration for promotion. Considering rule 7[3], it is further provided that in case an employee of the Corporation, who fulfilled the said criteria is not considered by the DPC, it shall record in writing the reasons for not considering such employee. Rule 7[3] appears to have been understood by both the Courts below as recommendation for promotion. In the instant case, there is no dispute that as soon as the plaintiff acquired his eligibility for the promotion and fell within the zone of consideration, he was called for the interview by the DPC. Under such circumstances, since he was called for the interview, it was not necessary for the DPC to fulfill the requirement laid down under rule 7 [3] to assign any reasons. There is also no dispute that as per rule 7 [11], E-5 Level post is considered to be merit promotion by selection. Rule 7[4] contemplates that where the post for promotion is to be filled in on merits, the DPC shall consider the service record and annual confidential reports, may hold a written examination or practical test or interview or any combination of these and shall follow the procedure for determining merits. In the instant case, a vague allegation appears to have been levelled by the plaintiff regarding malafide, that too in the pleadings. In the case of Abraham Kuruvila v/s. S.C.T. Institute of Medical Sciences & Technology reported in [2005] 9 S.C.C. 49, it was held by Hon'ble the Apex Court that mere general statements regarding the bias alleged by the employee and certain old correspondence/ orders are not sufficient to establish bias. Specific plea of factual bias must be raised and must be proved by adducing cogent and sufficient evidence. In the instant case, no such proof or evidence is adduced. In the case of State of Rajasthan v/s. Sriram Verma reported in [1996] 6 S.C.C. 493, the issue regarding recording of reasons by DPC was raised before Hon'ble the Apex Court and it was held that recording of reasons for superseding a senior by his junior was not necessary.
12. In light of the above discussion, in the instant case, it was not necessary for the DPC to record reasons for not recommending the name of the plaintiff for the promotion since it is obvious that the plaintiff could not secure requisite minimum marks i.e. cut-off marks. Under such circumstances, it can safely be said that it was not legally permissible for the Civil Court to hold that the DPC was obliged to give reasons. It is further pertinent to note that in the instant case, what the Civil Court did was to sit in appeal over the decision of DPC. This is not legal and permissible especially when the promotion was on merits and the DPC, examining the merits, found that the plaintiff could not secure minimum requisite marks. Since the Civil Court should not have sit in appeal over the decision of DPC, the observation that the group discussion cannot be said to be a part of interview was also unwarranted. The First Appellate Court seriously erred in observing that it was necessary to constitute a new selection committee. Such was neither the request of either-side nor the same was forming part of any issue arising in this litigation. It further transpires that both the lower Courts lost sight of one important fact that the plaintiff did not join ONGC Ltd., as one of the defendants and only certain officers of the ONGC were joined as defendants. Likewise, though the plaintiff claimed his promotion in the suit, yet other concerned employees were not joined as defendants in the suit though the success of the plaintiff in the suit would have adversely affected either their promotion or their seniority. Moreover, the plaintiff failed to prove that the ONGC Department or the DPC failed to follow consistent policy of promotion or the Rules or directives issued in this behalf. Under such circumstances, this Court is of the opinion that the appellants [original defendants] not only raised the substantial questions of law in the Second Appeal, but those questions are required to be replied in favour of the appellants/ defendants. In the result, the impugned judgment and order rendered by the First Appellate Court in partially confirming the impugned judgment and decree rendered by the trial Court and in directing constitution of the special selection committee deserves to be interfered with in the Second Appeal by allowing the said appeal.
13. However, as stated above, on behalf of the respondent original plaintiff, it has been submitted that since during the pendency of this appeal, the plaintiff was promoted and, therefore, the Second Appeal has become infructuous. There is no dispute that during the pendency of these proceedings, the plaintiff was promoted to the post of E-5. In this view of the matter, virtually the grievance ventilated by the plaintiff in his original suit regarding he being debarred from promotion can be said to have been duly redressed. So far as the instant Second Appeal is concerned, the same is directed against the impugned judgment and order rendered by the First Appellate Court wherein the decree passed by the trial Court in the said suit came to be partly confirmed. Under such circumstances, the disposal of the appeal merely on the ground that the plaintiff has been promoted subsequent to the First Appellate Court passed the impugned order, it would cause great prejudice to the appellants / defendants because in that event impugned judgment and order rendered by the First Appellate Court shall remain in force and shall attain finality. On the other hand, it is pertinent to note that though the plaintiff has been promoted, but his grievance is that he should have been promoted w.e.f. 1/1/1999. Even in the suit, his relief was seeking promotion w.e.f. 1/1/1999. Moreover, as discussed above, this Second Appeal involves important questions of law. Under such circumstances, the Second Appeal was decide on merits. In above view of the matter and in light of the entire above discussion, the Second Appeal deserves to be allowed on merits and the impugned judgment and order passed by the First Appellate Court deserve to be set aside. The First Appellate Court should have allowed that appeal and should have set aside the judgment and decree passed by the trial Court in the suit, which was challenged before it. The suit, in fact, deserves dismissal.
14. It is pertinent to note that the impugned judgment and order rendered by the First Appellate Court came to be challenged by the plaintiff by preferring the petition under Articles 226 and 227 of the Constitution of India. At the first instance, it can safely be said that there was other efficacious alternative remedy which was available to the plaintiff. If at all the plaintiff felt aggrieved by the impugned judgment and order of the First Appellate Court, whereby instead of confirming the decree passed by the trial Court directing the defendants to grant promotion to the plaintiff, the First Appellate Court ordered to constitute a special selection committee, the plaintiff could have challenged that part of the order of the First Appellate Court by preferring Second Appeal. Over and above this, the defendant has challenged the impugned judgment and order rendered by the First Appellate Court by preferring the above referred Second Appeal and in the proceedings of the Second Appeal, on behalf of the plaintiff, identical contentions and disputes are raised as raised in the petition under Articles 226 and 227 of the Constitution and have been elaborately dealt with above in this judgment. This Court has come to the conclusion that the Second Appeal involves important questions of law as the First Appellate Court so also the trial Court erred in observing that even when DPC did not recommend the name of the plaintiff for promotion, the DPC was required to give reasons for it. Moreover, it is well settled that when the promotion was solely on merits and DPC examined the merits of the plaintiff along with other candidates and the DPC found that the plaintiff could not secure minimum marks prescribed for the promotion, the Civil Court should not have sit in appeal over the decision of the DPC. It is further pertinent to note that both the lower Courts lost sight of one important aspect that in the suit the plaintiff did not join his employer i.e. ONGC Ltd., as one of the defendants and the defendants were mere office bearers of the ONGC Ltd., and that the other employees who were likely to be affected in case if the suit was to be decreed, were not joined in the suit.
15. During the pendency of this proceedings, the defendant ONGC produced the copies of proceedings of the DPC. We have thoroughly examined the papers of said proceedings and it transpires that the plaintiff scored 74 marks for the lot of 1999 officers, but the cut off marks was 76. In the year 2000 when the plaintiff was considered, the plaintiff secured 79.33 marks as against the cut-off marks of 87 and in the year 2001 the plaintiff scored 81.33 marks, whereas the cut-off marks fix was
88. Under such circumstances, the DPC was justified in not recommending the name of the plaintiff for promotion on the aforesaid different occasions. As stated above, if this record was produced by the defendant either before the trial Court or before the First Appellate Court, these two proceedings before this Court could have been averted. It is further clear that as per the rule, there are separate criteria for employee of the defendant ONGC for entering within zone of consideration and for recommendation for promotion and it is further emerged that the requirement of the former cannot be applied to later. When such is the situation, we are of the considered opinion that not only the Second Appeal preferred by the original defendant deserves to be allowed, but on the same ground, the petition preferred by the plaintiff deserves to be dismissed. It is further clear that the very maintainability of petition under Articles 226 and 227 of the Constitution has been seriously challenged by the respondents - defendants and as discussed above, in the petition, what is challenged is the impugned judgment and order passed by the First Appellate Court and, therefore, the alternative efficacious remedy available is the Second Appeal. In that view of the matter, we find justification in the challenge of the respondents - defendants about the maintainability of the petition.
16. Thus, when the Second Appeal and the petition arise out of the identical order passed by the First Appellate Court on 6/9/2005 in Regular Civil Appeal No. 49/2005, the petition preferred by the plaintiff deserves to be dismissed on the same grounds on which the Second Appeal preferred by the defendants is ordered to be allowed. Under such circumstances, the claim made by the plaintiff that the promotion should have been granted to him w.e.f. 1/1/1999 is devoid of any merits.
17. In the result, the Second Appeal No. 231/2005 deserves to be allowed and the Special Civil Application No. 18937/2005 deserves to be dismissed.
18. For the foregoing reasons, the Second Appeal No. 231/2005 is allowed. The impugned judgment and order dated 6/9/2005 rendered by the Ld. Presiding Officer, F.T.C. No. 8, Vadodara, in Regular Civil Appeal No. 49/2005 is set aside and consequently the judgment and decree passed on 14/6/2005 passed by Ld. Civil Judge [S.D.], Vadodara, in Special Civil Suit No. 660/2003 is set aside. Resultantly, the suit of the plaintiff is ordered to be dismissed.
19. Special Civil Application No. 18937/2005 stands dismissed. Rule is discharged.
There shall be no order as to costs for both the proceedings. Both the parties shall bear their own costs.
[ JAYANT PATEL, J. ] [ J.C. UPADHYAYA, J.] * Pansala.Top