SCA/4671/2005 1/31 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 4671 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE K.A.PUJ =================================== 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 ? =================================== STATE OF GUAJRAT - Petitioner Versus ARSIBHAI VAJSINHBHAI PEETHIA - Respondent =================================== Appearance : MR MIHIR JOSHI, ADDL. ADVOCATE GENERAL WITH MR KT DAVE, A.G.P. for Petitioner. MR PH PATHAK for Respondent. =================================== CORAM : HONOURABLE MR.JUSTICE K.A.PUJ SCA/4671/2005 2/31 JUDGMENT Date : 09/02/2007 ORAL JUDGMENT 1. The petitioner, State of Gujarat, has filed this petition under Article 226 & 227 of the Constitution of India praying for quashing and setting aside the order dated 22.02.2005 passed by the learned Civil Judge (S.D.), Porbandar in Regular Execution Application No. 25 of 1998 in Regular Civil Suit No. 61 of 1990 as well as the order passed in Civil Misc. Appeal No. 46 of 2004 passed by the learned Assistant Judge, Porbandar dated 18.01.2005. The petitioner has also prayed for the declaration that the judgment and decree passed in Regular Civil Suit No. 61 of 1990 passed by the learned Civil Judge (S.D.), Porbandar and confirmed in Regular Civil Appeal No. 07 of 1996 passed by the learned Assistant Judge, Porbandar is fully complied with when the petitioner's case was considered and he was found not entitled for the promotion. By virtue of an amendment granted by this Court vide order dated 09.05.2005 passed in Civil Application No. 3937 of 2005, the petitioner has also prayed for SCA/4671/2005 3/31 JUDGMENT quashing and setting aside the orders at Annexure G- 1, G-2 and G-3 as well as Annexure H dated 16.10.2004 on an application below Exh. 11 and prayed for stay against the operation, implementation and execution of all these orders. 2. The petition was admitted and rule was issued on 18.03.2005. This Court has also granted ad-interim relief in terms of para 11 (C) of the petition whereby order dated 22.02.2005 passed by the learned Civil Judge (S.D.), Porbandar in Regular Civil Execution Application No. 25 of 1998 was stayed. 3. The brief facts giving rise to the controversy involved in this petition are that the respondent, namely, Arsibhai Vajsinhbhai Peethia has filed Civil Suit No.61 of 1990 before the learned Civil Judge (S.D.), Porbandar and contended, inter alia, that he was working as Assistant Teacher in Education Department since 01.10.1977. He has passed departmental examination for promotion from Class III to Class II and has prayed that he should be SCA/4671/2005 4/31 JUDGMENT promoted to the said promotional post. The said Civil Suit was allowed and the following operative order was passed :- “The plaintiff's suit is hereby allowed. It is hereby declared that the Act of the defendant in not granting the promotion to both the plaintiffs to the post of Education Department Class-II (Admn. Branch) is illegal, un-constitutional and void. The defendant is hereby directed to reconsider the post of both plaintiffs afresh and pass the necessary order for promotion with other service benefit which available to both the plaintiffs. The defendant has to bear his own costs of the suit and also the costs of the plaintiff.” 4. Being aggrieved and feeling dissatisfied by the said order and judgment of the learned Civil Judge (S.D.) Porbandar, the State Government preferred Regular Civil Appeal No. 07 of 1996 before the District Court, Porbandar. The said appeal was heard by the Assistant Judge, Porbandar and he has dismissed the said appeal vide his judgment and order dated 30.12.1997. SCA/4671/2005 5/31 JUDGMENT 5. Being further aggrieved by the said judgment and order of the learned Assistant Judge Porbandar, the State Government has preferred Second Appeal being Second Appeal (Stamp Number) No. 27 of 2000. Since the said appeal was delayed, an application for condonation of delay being Civil Application No. 7254 of 2000 was filed. The said application was heard by this Court and vide order dated 22.08.2000, it came to be rejected as no sufficient ground was made out for condonation of delay. 6. After rejection of the said application, the State Government has decided to comply with the judgment of the learned Civil Judge and considered the case of the respondent and by a detailed order, it was decided that the respondent was not entitled for the promotion because as many as 845 employees were senior to the respondent and they would be superseded if the respondent was promoted. While passing the said order, the State Government has considered the case of the respondent as per the SCA/4671/2005 6/31 JUDGMENT directions issued by this Court and as per the recruitment rules of Gujarat Education Service Class II Recruitment and Examination Rules of 1977. 7. The respondent thereafter revived his Regular Execution Application and moved to the learned Civil Judge (S.D.) for execution of the order passed by the learned Civil Judge (S.D.) in Regular Civil Suit No.61 of 1990. The learned Civil Judge (S.D.), Porbandar has passed an order below an application Exh. 11 whereby he has directed the responsible Officer to remain present before the Court. Being aggrieved by the said order, the State Government has preferred Regular Civil Misc. Appeal No. 346 of 2004 and also moved an application Exh. 5 and contended that the judgment and order in question was already complied with. The learned Assistant Judge, Porbandar has, however, rejected the said application Exh. 5 vide his order dated 18.01.2005 and held that it was merely a show-cause notice and the petitioner should show his cause before the learned Civil Judge (S.D.). The learned Civil Judge SCA/4671/2005 7/31 JUDGMENT (S.D.), Porbandar thereafter directed the Secretary, Education Department to remain present before him vide his order dated 22.02.2005 and being aggrieved by the said order, the present petition was filed by the petitioner – State of Gujarat. 8. Mr. Mihir Joshi, learned Additional Advocate General appearing with Mr. K.T. Dave, learned Assistant Government Pleader appearing for the petitioner – State of Gujarat has submitted that the learned Civil Judge (S.D.), Porbandar has utterly failed in exercising jurisdiction in the service matters, which have exclusive jurisdiction of Gujarat Civil Services Tribunal under Section 16 of the Gujarat Civil Services Tribunal Act, 1972. He has invited the Courts attention to Section 16 of the Act which deals with bar of jurisdiction of Civil Courts. He has further invited the attention of the Court to the provisions of Section 16-A of the Act which deals with manner of executive orders passed by the Tribunal. On the basis of the provisions of Section 16 as well as Section 16-A as well as Schedule SCA/4671/2005 8/31 JUDGMENT appended to the Act, Mr. Joshi has submitted that non-promotion to a higher post is subjected within domain of Civil Services Tribunal and, therefore, both the Courts below were not justified in entertaining the suit of respondent and were also not justified in rejecting the appeal preferred before the District Court, Porbandar by the petitioner. When the decree itself is a nullity, because of lack of jurisdiction, the Execution Application should not have been entertained and no coercive steps should have been taken against the petitioner or its officials for implementation of the impugned judgment and order. 9. Mr. Joshi has further submitted that even otherwise on merits, when promotion to a post is based on proved merit and efficiency and is further depending upon passing of the examination as sine qua non condition, the Courts below should have appreciated that simply by passing examination, no employee could get any indefeasible right of promotion without considering the claim of the other senior persons SCA/4671/2005 9/31 JUDGMENT and also without considering the availability of the promotions. He has further submitted that on account of the order and judgment of the learned Civil Judge, as may as 845 other eligible employees are going to be superseded and it would further lead to multiplicity of proceedings, claiming inter alia, for promotion and consequential benefits by all 845 employees, if Govt. is compelled to grant the promotion to the respondent. 10.Mr. Joshi has further submitted that even otherwise the learned Civil Judge (S.D.), Porbandar is not justified in entertaining the Execution Application and directing the petitioner to comply with the judgment by using coercive measures for complying the said judgment, namely, directing the Secretary, Education Department to remain personally present before the Court for complying with the said judgment and order. He has further submitted that the judgment was fully complied with in as much as the case of the respondent was considered by the petitioner and it was decided that the respondent SCA/4671/2005 10/31 JUDGMENT was not entitled for promotion and, therefore, question of giving consequential benefits thereof i.e. pay and allowance of promotional posts from the date of the judgment would not arise. He has, therefore, submitted that order dated 22.02.2005 is bad in law, illegal and arbitrary and, therefore, the same is required to be quashed and set aside. 11.Mr. P.H. Pathak, learned advocate appearing for the respondent has submitted that the petitioner has suppressed the material fact from this Court. The respondent had filed Caveat application before this Court on 03.02.205 on the apprehension that the petitioner may approach to this Court against the order dated 18.01.2005. The respondent has also filed second caveat application on 22.02.2005. Copies of both these caveat applications were served to the petitioner and the petitioner was aware about the request of the respondent before this Court to give an opportunity of being heard. By suppressing this fact, the petition was moved and interim order was requested. He has, therefore, submitted that for SCA/4671/2005 11/31 JUDGMENT vacating this interim relief, the respondent has moved Civil Application No. 2804 of 2005 which is ordered to be heard along with this petition. 12.He has further submitted that the petitioner had made wrong and misleading statements in paragraph 8.5 of the petition by stating that the petitioner had complied with the order passed by the learned Civil Judge (S.D.), Porbandar in Regular Civil Suit No. 61 of 1990. As a matter of fact, the said order has not been complied with and it is not brought to the notice of this Court that so far as the defence of the petitioner about the seniority position of the respondent is concerned, the said defence has no value in the eye of law as the learned Civil Judge (S.D.) has rejected the said defence after adjudication and that order has become final. He has, therefore, submitted that on this ground, promotion of the respondent could not have been withheld. 13.Mr. Pathak has further submitted that this Court, in SCA/4671/2005 12/31 JUDGMENT the identical matter of junior to the respondent, in Civil Revision Application No. 1017 of 1991 decided the issue on 27.03.1995. It was specifically observed therein that the defendant cannot be permitted to reagitate and reopen the very question which stood concluded by the judgment and decree of the Civil Court. He has invited the attention of this Court to the order passed by the learned Civil Judge in Civil Suit No. 415 of 1987 and the order of this Court passed in Civil Revision Application No. 1017 of 1991. 14.Mr. Pathak has further submitted that the petitioner has also suppressed the fact about the case of the junior to the respondent i.e. Mr. K.C. Kakkad, who is at Serial No. 1513 in the seniority list of Assistant Teacher / Assistant Education Inspector and the respondent is at Serial No. 1427. Mr. Kakkad, junior to the respondent joined service on 21.06.1978 as Assistant Teacher in the same School while the respondent had joined on 01.10.1977. The respondent as well as Mr. Kakkad both had passed SCA/4671/2005 13/31 JUDGMENT departmental examination in July, 1979. Promotions were issued in favour of those who have not passed departmental examination to the post of Gujarat Education Service Grade – II. Therefore, Mr. Kakkad had filed Civil Suit No. 415 of 1987 which was allowed in favour of Mr. Kakkad on 12.10.1989. Due to non-implementation of the decree of the said Civil Suit, Mr. Kakkad had filed Execution Application No.10 of 1990 where the learned Civil Judge has directed the authority of the State Government to remain personally present before the Court, on rejection of the defence of the petitioner i.e. Mr. Kakkad did not fall within the seniority position. On reconsideration of the case of Mr. Kakkad, promotion could not have been denied on the same ground. Against the action of the learned Civil Judge in Execution Application, the State Government has approached to this Court by way of Civil Revision Application and the said Civil Revision Application was rejected by this Court and subsequently, the petitioner has granted promotion to Mr. Kakkad from 1989. SCA/4671/2005 14/31 JUDGMENT 15.Mr. Pathak has further submitted that the respondent who is senior to Mr. Kakkad, relying on the said order of Mr. Kakkad junior to the respondent, filed Civil Suit No. 61 of 1990 which was allowed in favour of the respondent on 26.02.1996. An appeal was filed by the State Government against the order in Civil Suit which was also dismissed on 30.12.1997. Against the order of appeal, the State Government filed Civil Revision Application No. 7254 of 2000 which was rejected by this Court on 22.08.2000. In the meantime, due to non-compliance of the order of the Civil Court, the respondent has filed Execution Application No. 25 of 1998. Despite specific opportunities having been given to the petitioner to comply with the directions in the suit which were on the same line of those directions issued in the case of Mr. Kakkad, the petitioner – State Government has not complied with the said directions and raised same defence by saying that the respondent did not fall within the seniority for consideration. He has further submitted that this SCA/4671/2005 15/31 JUDGMENT issue has already been concluded by the Civil Court and the said defence has no value in the eye of law. He has, therefore, submitted that the present petition has no merit and the petitioner may be directed to report compliance of the directions of the Civil Court on the same line. 16.The Court has heard the learned advocates appearing for the respective parties and considered their respective submissions and pleadings as well. The Court has also perused the orders passed by the Courts below in civil proceedings as well as execution proceedings. The Court has further taken into consideration the earlier orders passed by the Courts below as well as by this Court in other cases involving similar issue. As far as the main submission of Mr. Joshi that the decree being a nullity for want of jurisdiction with the Civil Court, the same cannot be executed against the petitioner, State of Gujarat, is concerned, it is true that Section 16 of the Gujarat Civil Services Tribunal Act, 1972 deals with bar of jurisdiction of Civil Courts. It states that no Civil SCA/4671/2005 16/31 JUDGMENT Court shall have jurisdiction to deal with or decide any question which by or under this Act is required to be or can be dealt with or decided by the Tribunal under the provisions of this Act. Section 10 deals with jurisdiction of the Tribunal. It states that the Tribunal shall have jurisdiction to hear and decide the appeals filed by the specified Civil Servants under Section 11. Section 11 states that any specified Civil Servant aggrieved by an original or appellate order or decision of any Officer or authority other than the State Government with respect to any of the matters specified in the Schedule may, within a period of 90 days from the date of such order or decision, appeal to the Tribunal against such order or decision, in a case where an appeal lies under law to the State Government. Item 4 in the Schedule refers to non-promotion to a higher post. Here in the present case, the respondent's main grievance is that he was not promoted from Class III to Class II post and he being specified civil servant, he can ventilate his grievance only before the Tribunal and not before the Civil Court. Since SCA/4671/2005 17/31 JUDGMENT the Civil Court has no jurisdiction by virtue of Section 16 of the Act, the order passed by the Civil Court cannot be executed. As against this, Mr. Pathak's main contention is that the promotion orders were passed by the Director of Education on the basis of selection made by the Education Department, Government of Gujarat, which was approved by the Gujarat Public Service Commission and hence, virtually the selection was made by the Education Department and the Director has simply passed the order of posting and, therefore, it was the promotion given by the Government and not by the Director. He has, therefore, submitted that the order passed by the Director cannot be challenged before the Service Tribunal by virtue of Section 11 of the Act. As a matter of fact, Gujarat Civil Services Tribunal has taken the decision in Appeal No. 365 of 1982 filed by one Mr. K. L. Dodiya and the Tribunal vide its order dated 29.03.1984 has dismissed the said appeal for want of jurisdiction and memo of appeal was ordered to be returned to the appellant in that case for SCA/4671/2005 18/31 JUDGMENT presentation to the proper authority. Pursuant to the said order, K.L. Dodiya has field Regular Civil Suit No. 184 of 1984 before the learned Civil Judge (S.D.), Porbandar who dismissed the said suit and being aggrieved by the said order of the learned Civil Judge (S.D.), Porbandar, the said Mr. Dodiya has preferred Regular Civil Appeal No. 41 of 1986 and while disposing of the said Regular Civil Appeal, the learned Assistant Judge, Porbandar has set aside and reversed the order and decree passed by the learned Civil Judge (S.D.), Porbandar and declared an order that the act of the defendant in that case in not granting promotion to the plaintiff to the post of Education Department Class II (Administrative Branch) was illegal, unconstitutional and void. The defendant was further directed to reconsider the case of the said plaintiff afresh in light of the observations made in the judgment and without affecting the seniority of the persons who were senior in the lower cadre to the plaintiff / appellant and the plaintiff / appellant should be promoted immediately to the last candidate who had not SCA/4671/2005 19/31 JUDGMENT passed the required qualifying examination before the plaintiff in that case in January, 1979. Considering this fact situation, this Court is of the view that since the order of promotion was passed by the Director, Education while exercising the powers delegated to him, the said order was deemed to have been passed by the State Government and hence, by virtue of Section 11 of the Act, the Gujarat Civil Services Tribunal has no jurisdiction to entertain any application or appeal and hence, bar imposed under Section 16 of the Act would not be applicable. The Civil Court has, therefore, jurisdiction to entertain, try and decide the suit filed by the respondent and it has rightly decided the said suit. The execution proceedings filed by the respondent cannot, therefore, be forestalled on the ground that the decree passed by the Civil Court was a nullity. 17.So far as second submission of Mr. Joshi is concerned, it is true that earlier, one Mr. K.C. Kakkad has filed Regular Civil Suit No. 445 of 1987 and it was decreed in favour of him. The learned SCA/4671/2005 20/31 JUDGMENT Civil Judge (S.D.), Porbandar in the said suit has declared that the act of the defendant i.e. State of Gujarat in not granting promotion to the said plaintiff to the post of Education Department Class II (Administrative Branch) was illegal, unconstitutional and void and the defendant was directed to reconsider the case of the plaintiff afresh and pass necessary order for promotion with other service benefit which was available to the said plaintiff. Against the said order and decree of the Civil Court, no appeal was preferred by the State of Gujarat and it has become final. Thereafter, the said plaintiff filed Execution Application No. 10 of 1990. In the said execution proceedings, an application was filed to prosecute the Executive Officers of the State Government for committing contempt of Court by not carrying out the directions contained in the decree passed by the Civil Court. The Executing Court has taken the view that once the finding was reached by the competent Civil Court after recording evidence, the defendant cannot be permitted to reagitate and reopen the very question which stood SCA/4671/2005 21/31 JUDGMENT concluded by the judgment and decree of the Civil Court. The said order of the Executing Court was challenged before this Court in Civil Revision Application No. 1017 of 1991 and while disposing of the said application on 27.03.1995, this Court has held that neither the Executing Court, much less this Court, in its revisional jurisdiction can upturn such decree and can record a finding against the plaintiff. The Court has rejected the said Civil Revision Application by holding that the Court has not found any jurisdictional flow in the judgment and order of the Executing Court. Based on this judgment, Mr. Pathak has strongly contended before this Court that the Executing Court has rightly rejected all the contentions raised before it which would amount to re-agitating the same issues which were already decided by the competent Civil Court. On proper appreciation of his submission, the Court found that the case of the present respondent is not exactly similar to that of Mr. K. C. Kakkad. In the present case, against the order of the learned Civil Judge (S.D.), an appeal was preferred. On dismissal of the SCA/4671/2005 22/31 JUDGMENT appeal, Second Appeal was preferred before this Court. However, it was filed late. The Court has not condoned the delay and no finding is given on the merits of the Second Appeal. It is, however, true that the order passed by the learned Civil Judge has become final. But one more fact which has come on record of this proceeding is that immediately after dismissal of the Second Appeal, the petitioner – State of Gujarat has given effect to the order of the learned Civil Judge and passed a detailed order. This step which is taken here in the present proceedings was lacking in the case of Mr. K.C. Kakkad. The Selection Committee consisting of 4 senior officers of the State of Gujarat has considered the case of the respondent and in view of the letter dated 13.12.2000 written by the Education Department wherein it is stated that as per the order and decree of the Civil Court, the proposal for promotion of the respondent from Class III to Class II was sent to the Finance Department after approval of the Gujarat Public Service Commission and the Finance Department has expressed its opinion that SCA/4671/2005 23/31 JUDGMENT the Civil Court has directed the State Government to reconsider the case of the respondent and to give him all consequential benefits available to him. On reconsideration, it was found by the Committee that the respondent has passed the departmental examination in July 1979 and no promotion was given from Class III to Class II to any person after serial No. 582 in the seniority list and since the respondent was junior in the seniority list, he was not entitled to any promotion. Thus, as per the direction of the Civil Court, the Selection Committee has taken the decision. If the respondent is