SA/9020/2008 1/12 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SECOND APPEAL No. 90 of 2008 With CIVIL APPLICATION No. 5209 of 2008 In SECOND APPEAL No. 90 of 2008 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 GUJARAT & 2 - Appellant(s) Versus N V ASHAR - Defendant(s) ========================================================= Appearance : MS ASMITA PATEL, Assistant Government Pleader for Appellant(s) : 1 - 3. MR SACHIN D VASAVADA for Defendant(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE K.A.PUJ Date : 27/11/2008 ORAL JUDGMENT 1. The State Government has filed this Second SA/9020/2008 2/12 JUDGMENT Appeal under Section 100 of the Civil Procedure Code challenging the judgment and order passed by the learned District Judge and 3rd Fast Track Court, Junagadh on 28.2.2008 in Regular Civil Appeal No.147 of 2000 whereby the said Appeal was dismissed and the judgment and decree passed by the learned Civil Judge, Junagadh in Regular Civil Suit No.69 of 1996 on 28.7.2000 was confirmed 2. This Court has issued notice on 29.4.2008. On 13.8.2008, this Court has passed detailed order wherein it is observed that, successful plaintiff in two courts below is eager to see that the litigation comes to an end and compromise is arrived at between the parties. The Court has referred to the provisions of Order XXVII Rule 5B[2] of the Code of Civil Procedure, which says that if, in any such suit or proceeding, at any stage, it appears to the Court that there is reasonable SA/9020/2008 3/12 JUDGMENT possibility of a settlement between the parties, the Court may adjourn the proceeding for such period as it thinks fit, to enable attempts to be made to effect such a settlement. Considering the said scheme of Code of Civil Procedure, the Court observed that it is possible for the Court to intervene and pursue the government machinery to consider the scope of settlement out of Court. The court has further considered the age of the respondent [original plaintiff], which is about 75 years and hence expressed hope that this is a case where the highest official of the Department, that is, Director of Employment and Training Department and Secretary of the State of Gujarat in Labour & Employment Department, now, may sit together and consider whether it is possible to arrive at any settlement, especially when it is possible for the respondent to give some reasonable offer to the government for consideration. SA/9020/2008 4/12 JUDGMENT 3. Keeping the above view in mind, the matter was adjourned from time to time. Today when the matter is taken up for hearing Ms.Asmita Patel, learned Assistant Government Pleader, appearing for the State Government has submitted that it is not possible for the Government to arrive at any settlement as there are more than 40 to 50 cases and once the Government agrees in this matter the others may also come forward claiming the same benefit on the same line which is canvassed in the present application. She has further submitted that Rules and Notification are very clear and the respondent has not passed the requisite examination within three years and with three attempts and according to the Government five attempts were availed of by him which is not permissible. She has specifically drawn the attention of this Court to the Notification dated 16.12.1978 issued by the Labour Social SA/9020/2008 5/12 JUDGMENT Welfare And Tribal Development Department. Rule 3(a) says that all persons belonging to the Employment Exchange Subordinate Services shall be required to pass Subordinate Service Departmental examination within three chances during the period of three years from the appointed date or date of his appointment whichever is earlier. She has further submitted that Rule 4(c) of this Notification clearly says that any person who fails to pass the Employment Exchange Subordinate Service Examination prescribed under these rules within the specified period and within the specified chances shall not be eligible for promotion to higher post and shall loose his seniority to person who have passed aforesaid examination earlier than him. Based on this Rule she has submitted that both the Courts below have not considered this Rule in its proper perspective and issued direction that one Mr.Pathan, who is junior to the respondent is given promotion SA/9020/2008 6/12 JUDGMENT and hence the respondent should also be given promotion from the date on which the promotion was given to Mr.Pathan. She has further submitted that the very fact that the respondent has made a request for one more attempt to pass the examination and paid the prescribed fees. The order itself suggests that he has not passed the examination in three years and in three attempts. For this purpose she invited the Court's attention to Rule 5(a), which says that any person who fails to pass the departmental examination within the specified period and specified chances prescribed under these rules shall not withstanding such failure be eligible to appear any time in such examination on payment of examination fees of Rs.15/- which shall be credited to the Budget Head “Major Head 087-Labour and Employment Minor Head – (c) other Receipts.” Based on this Notification and Rules she has submitted that the Appeal deserves to be admitted and the SA/9020/2008 7/12 JUDGMENT orders passed by the Courts below are required to be stayed. 4. Mr.Sachin Vasavda, learned advocate appearing for the respondent submitted that both the Courts have given concurrent findings and they have examined the relevant Rules and Notification and at great length they have discussed the issue regarding the attempts having been availed of by the respondent. He has submitted that on two occasions the respondent was granted exemption and hence the same shall not be considered while counting three attempts. Both the Courts have given specific finding to the effect that the respondent has cleared the examination within three years and in three attempts. The Trial Court has observed in para-9 of his order that, considering the facts and evidence on record, it is pertinent to note that three years for passing the examination are to be counted from 14.4.1986 SA/9020/2008 8/12 JUDGMENT and in that examination, plaintiff did not appear and prayed for the exemption which was granted by the department vide Ex.22 and it was decided that it would not be considered as an attempt. While second examination was held in December, 1986 and 3rd examination was held in June, 1987. In both these examinations, plaintiff did not fill up the form for appearing in the examination. While the examination which was held in December, 1987 plaintiff appeared and failed. 5th examination was held in July, 1988 and in that examination plaintiff did not appear and he was exempted. While in the month of December, 1988 examination was held and plaintiff appeared in the examination but failed. The Trial Court, therefore, observed that as per Ex.34, which is the representation of the plaintiff dated 7.6.1993 wherein plaintiff has shown that after December, 1988 examination was held in July, 1989 and it was 3rd attempt of the SA/9020/2008 9/12 JUDGMENT plaintiff and in that examination, he was declared passed. From this detail given by the plaintiff in Ex.34, the Trial Court had come to the conclusion that after December, 1988 examination was not held upto July, 1989. Therefore, it cannot be said that the plaintiff has not passed out the departmental examination within prescribed period of three years. The learned District Judge has also discussed at great length and had come to the conclusion that after considering the written arguments, findings recorded by the learned trial Judge as well as perusing the documentary evidence and various judgments cited by both the sides, there was no erroneous and illegal finding on the issues framed by the lower Court and the defendants have failed to convince the appellate Court that the judgment and decree passed by the learned Trial Judge was required to be interfered with by the Court. It is further observed that the learned Trial Judge has SA/9020/2008 10/12 JUDGMENT specifically relied upon all the documents and following the rules and regulations framed under the Notification, rightly come to the conclusion that the defendants have taken wrongful view while adopting the procedure of promotion. Ultimately the Appeal was dismissed by holding that there was no substance and it was devoid of merit. 5. Both these orders are under challenge before this Court. This Court is of the prima facie view that normally when both the Courts have given the concurrent finding of facts the Court in Second Appeal does not interfere in the said finding. However, in the present matter, the question regarding interpretation of Notification and the relevant Rules is involved and it appears that both the Courts have not come to the right conclusion in counting attempts based on the relevant Rules which are referred to hereinabove. The Court may, therefore, incline to admit this Second SA/9020/2008 11/12 JUDGMENT Appeal. However, looking to the observations made by the Court earlier in its order dated 13.8.2008 and looking to the age of the respondent, the admission of this Appeal would not serve any purpose. One more fact which is required to be considered is that the respondent is prepared to forgo his other claims if some lumpsum amount is ordered to be given to him so that he can enjoy the fruits of this litigation during his life time. Considering this vital aspect of the matter and on sympathetic ground and without citing this as precedent and keeping all rights open to the present appellant to challenge such other matters in appropriate Court in appropriate proceedings, the Court while dismissing this Second Appeal, directs the appellant State to pay the lumpsum amount of Rs.65,000/- towards all his claims within one month from today to the present respondent. It is made clear that the Court has considered this amount as just and SA/9020/2008 12/12 JUDGMENT proper. Under the facts and circumstances of the case and keeping all rights of the present appellant open to challenge such other matters in appropriate cases and without permitting the appellant or all other similarly situated persons to cite this case as precedent. 6. Subject to the aforesaid observations and directions this Second Appeal is dismissed. Since the Appeal is dismissed, Civil Application does not survive and it is accordingly rejected. (K. A. PUJ, J.) kks