STATE OF GUJARAT v. Chandulal Manilal Acharya — 1991 DIGILAW 284 (GUJ)

R. A. METHA, J. ( 1 ) THIS appeal is filed by the defendant State against the judgment and decree fixing the deemed date of seniority of the respondent-plaintiff and other reliefs as detailed in the impugned judgment. The respondent plaintiff joined the services of the state Government on May 1,1949, as a Junior Clerk and was promoted as a Senior Clerk from August 12, 1963. Thereafter he was made Head Clerk on July 13, 1968 and was transferred to Baroda on December 1, 1968, but he applied for continuation at ahmedabad and he had forgone the promotion to the post of Head Clerk and got himself voluntarily reverted to the post of Senior Clerk at Ahmedabad. There was a departmental inquiry against him and an order of punishment was passed against him and he was reverted from the post of Senior Clerk to the post of Jur;or Clerk. The order of reversion directed that he was reverted for a period of one year and thereafter he was to be considered for promotion on the basis of his work. This order was challenged by way of a civil Suit and stay against implementation of that judgment was obtained. Ultimately, that suit was dismissed and the order of punishment came to be implemented on January 13, 1973 and he was reverted to the post of Junior Clerk by way of penalty. ( 2 ) ON expiry of one year of reversion, according to the appellant, he should have been automatically promoted. However, he was not promoted on expiry of one year. On successive occasions of promotion, he was superseded. He had approached the Gujarat civil Services Tribunal against his non-promotion on several occasions and in the matter before the Tribunal, he confined his challenge to his non promotion in 1979. The Tribunal dismissed his matter holding that his say of non communication of the adverse remarks for all the years was not correct and in fact against some of the adverse remarks, he had made representations and the representations were rejected and the plaintiff failed before the Tribunal. The Tribunal dismissed his matter holding that his say of non communication of the adverse remarks for all the years was not correct and in fact against some of the adverse remarks, he had made representations and the representations were rejected and the plaintiff failed before the Tribunal. The plaintiff had filed Special Civil Application No. 1964 of 1981 in the high Court and during the pendency of that petition, the appellant petitioner was given a promotion as Senior Clerk and he withdrew that petition stating that the petition was withdrawn subject to the right of the petitioner to make representation to the competent authority to give him a deemed date of promotion. As the State Government did not give him the deemed date, the plaintiff filed Civil Suit No. 1654 of 1983 and that has been decreed by the trial Court. That judgment and decree is challenged on the ground of limitation, resjudicata, lack of jurisdiction in Civil Court and also on merits. It is submitted that there is no question of automatic promotion on the expiry of the period of one year of reversion and the appellant petitioners case has been considered for promotion from time to time and as he was not found fit for promotion, he was superseded and the adverse remarks have been communicated to the plaintiff from time to time and those communications have been placed on record. Even though there may not be proof of acknowledgement for these adverse remarks, it cannot be said that the adverse remarks were not communicated. The plaintiff had come with a case that no adverse remarks had ever been communicated to him. That has been proved to be false because in respect of atleast the adverse remarks of two years, he has made representations and those representations have been rejected. In respect of other years also, the adverse remarks have been sent, but there is no proof of acknowledgement, but on one of these occasions, the plaintiff himself was the person in charge of the jail through which the remarks were to be communicated to him and, therefore, the Gujarat Civil Services Tribunal had also rejected his case of non communication of the adverse remarks. Having regard to the fact that his say that no adverse remarks are communicated is falsified by proof of communication of some adverse remarks and the appellants representations against the same, his word loses any credibility and, therefore, the trial court was in error in proceeding on the footing that the adverse remarks of some of the years were not proved to have not been communicated. These are the submissions of the State. ( 3 ) ON the other hand, the learned Counsel for the respondent plaintiff has submitted that the question of limitation does not arise in the present case because the plaintiff was given promotion as Senior Clerk as late as in 1981 and thereby some of the injustice done to the plaintiff was redressed in 1981 and only the question of deemed date had survived and that was challenged by filing a suit in 1983 and, therefore, according to the plaintiff, the suit is within time. As regards the jurisdiction, the learned Counsel for the respondent plaintiff submitted that under section 16 of the Gujarat Civil Services Tribunal Act, 1972, the jurisdiction of the Civil Court would be barred only if the case is within the jurisdiction of the Tribunal and according to the plaintiff, the reliefs claimed in the suit could not have been granted by the Services Tribunal because according to the plaintiff, this was not a case of non- promotion, but it was a case of deemed date of promotion. It is further submitted that if the Tribunal has no jurisdiction to give this relief, the decision of the Tribunal cannot be sustained. On merits, it was submitted that the trial court has rightly found that the adverse remarks were not shown to have been communicated and, therefore, the petitioners supersession on the basis of such non-communicated adverse remarks was illegal and the trial court was right in passing the judgment and decree in favour of the plaintiff. ( 4 ) THE plaintiff has claimed a decree for deemed date of promotion as Head Clerk on the date of the expiry of one year of reversion and has claimed that he should be deemed to have been promoted to the post of Head Clerk from January 13,1974 and the act of the defendant authorities in not giving deemed date and promotion was illegal. The operative part of the judgment of the trial court reads as follows:"the action of the defendant State in fixing deemed date of seniority of the plaintiff for the post of Sr. Clerk from 9. 11. 1981, when he was again appointed as Sr. Clerk after reversion order and action of defendant for fixing deemed date of seniority of plaintiff for the post of Head Clerk, when he was reappointed as Head Clerk after reversion, is hereby set aside, so far as it relates to the consideration of plaintiff as Sr. Clerk and Head Clerk from the date of said appointments on said posts. It is hereby declared and ordered that plaintiff was entitled to be appointed as Sr. Clerk after one year from the second order of punishment and the plaintiff was also entitled for further promotion to the post of Head Clerk on 17. 4. 1976, when vacancy arose and when Mr. N. C. Shah, was appointed as Head Clerk on 17. 4. 1976 and the seniority in service of plaintiff and rights of the plaintiff, including difference in salary, if any, the same be considered from the deemed date of the seniority as directed by the Court in the present suit. If the plaintiff is found eligible to the post of further promotion on the post of Office Superintendent or further promotion, the defendant to follow directions in the present suit and consider the case of the plaintiff for further promotion as per the deemed date of the seniority and rights of promotion of the plaintiff decided in the present case. The difference in pay and other allowances be settled by defendant on the basis of deemed date of seniority of plaintiff as per the directions in the order, treating the plaintiff as if he had served on the post of Sr. Clerk and Head Clerk, as per deemed date of promotion, within six months from today. 2. The defendants are ordered and directed to keep one vacancy for the plaintiff on the post of Office Superintendant, till the date the case of the plaintiff is considered by the defendant for promotion to the post of Office superintendant and it is hereby ordered and directed that the case of the plaintiff be considered for further promotion on the post of Office superintendent or any higher post within four months from today. The defendants are hereby further restrained from acting contrary to the present directions. Defendants are free to fill in rest of the posts of Office superintendents but they are directed to state in the appointment orders, if any, issued by them for other employees, stating that the appointments were subject to the rights of seniority and claims of the plaintiff and also without prejudice to the rights and claims of the plaintiff, if any. 3. In view of the facts of the case, the parties are directed to bear their own costs. Order and decree accordingly. " ( 5 ) THE first question, therefore, that arises is whether the plaintiff was entitled to be appointed as Senior Clerk after expiry of one year of reversion and whether he was entitled to further promotion to the post of Head Clerk on April 17, 1976 when Mr. N. C. Shah was appointed as Head Clerk on April 17,1976. It must be noted that in the cadre of senior Clerk, Mr. N. C. Shah was junior to the plaintiff before the plaintiff was reverted to the post of Junior Clerk. Therefore, until the plaintiff comes back to the cadre of Senior clerk, it would not be correct to say that Mr. N. C. Shah was junior to the plaintiff. The question of plaintiffs seniority in the cadre of senior Clerk will have to be decided on the basis of the answer to the question whether he was entitled to be automatically repromoted on expiry of one year. If he was entitled to be repromoted on expiry of one year, there may be an arguable case that he would be entitled to his original seniority in the cadre of Senior Clerk. If he was entitled to be repromoted on expiry of one year, there may be an arguable case that he would be entitled to his original seniority in the cadre of Senior Clerk. But if he was not entitled to be repromoted automatically, but was required to be considered for promotion and was not found fit to be promoted on one or more occasion and he is promoted on a later occasion, he cannot have any claim of seniority in that cadre because that link has been totally snapped and his subsequent promotion in the cadre of Senior Clerk would give him seniority only from that date and in that case, N. C. Shah cannot be said to be junior to him and, therefore, he cannot be given deemed date of promotion to the post of Head Clerk from the date when N. C. Shah got that post on April 17,1976. ( 6 ) THEREFORE, the first question is whether there was to be automatic repromotion on expiry of one year from reversion. The order of punishment is at Ex. 109. For the misconduct of not forwarding the mercy petitions of two prisoners for about a year and not taking further proceedings on mercy petition of a third prisoner, the plaintiff was held guilty of negligence and misconduct and he was given a show cause notice as to why he should not be reduced in rank and reverted from the post of Senior Clerk to the post of junior Clerk and ultimately an order was passed that the plaintiff (Senior clerk in ahmedabad Central Prison) was reduced in rank from the post of Senior Clerk to the post of Junior Clerk for a period of one year and after one year, his case for repromotion would be considered after looking to his performance. ( 7 ) THE learned Counsel for the respondent plaintiff submits that since the reversion is for a fixed period of one year, there is automatic repromotion. As against that, the contention of the appellate State is that the reversion is for a minimum period of one year and not for a maximum period of one year and during the period of one year, he cannot be considered for promotion and after one year, he would be considered for promotion on the basis of his performance and, therefore, there is no automatic repromotion. ( 8 ) THE learned trial Judge has not held that there is automatic repromotion on expiry of the period of one year. The learned trial Judge held in para 16 of the judgment that on expiry of one year from January 12, 1973, i. e. after January 11, 1974, the case of the plaintiff was required to be considered for promotion. The trial Court further observed that the plaintiffs contention that his case was not considered for promotion for a period upto 1975. 76 deserves to be accepted in absence of any proof that adverse remarks were communicated to the plaintiff. In those circumstances, the trial court held that the deemed date of promotion of the plaintiff was from January 12,1974 to the post of Senior Clerk. Once the order of punishment is very clear that the case of the plaintiff was to be considered for promotion only after expiry of one year and that also on the basis of his performance, there was no question of automatic repromotion. The promotion could be only on the basis of assessment and selection. No promotion of any person junior to the plaintiff in the cadre of Junior Clerk is shown to have been made on January 12, 1974 or in that year so as to give him deemed date from 1974. The deemed date of 1974 is given by the trial court only on the basis that the period of reversion had expired on that date. That for doing so, there is no legal basis whatsoever. ( 9 ) THE plaintiff has been considered for promotion on several occasions and he has not been found fit for promotion and his juniors have been found fit and promoted and the plaintiff has been superseded. In these circumstances, the plaintiff could not have been given any deemed date of Senior Clerk from January 12, 1974. He can get the date of promotion only from the actual date of his promotion. If he has been wrongly superseded with reference to a particular junior, he can claim at the most that date. However, with reference to any particular junior, no such case has been made out. He can get the date of promotion only from the actual date of his promotion. If he has been wrongly superseded with reference to a particular junior, he can claim at the most that date. However, with reference to any particular junior, no such case has been made out. In fact such case was sought to be made out before the Gujarat Civil Services Tribunal when he was not promoted and other juniors were promoted and admittedly that was the question within the jurisdiction of the Tribunal and once that question is concluded by that Tribunal, there was no question of the Civil Court dealing with the same question. It will be barred both on the question of jurisdiction under section 16 of the Gujarat Civil Serices Tribunal Act as well as on the principles of resjudicata. ( 10 ) THE respondent plaintiff had submitted that no adverse remarks for all these years have been communicated. However, the Services Tribunal found as a matter of fact that adverse remarks were communicated atleast for some years and the plaintiff had made representations against the same and the said representations were rejected. In these circumstances, on the question of communication of earlier adverse remarks, when there is word against word, it is necessary to consider whose version is believable and more credit worthy. The defendant State has produced on record the letters communicating the adverse remarks, but the acknowledgements are not there. Mereby because acknowledgements are not available for the given period, it cannot be presumed that the adverse remarks were not in fact communicated. The communications of adverse remarks are on record, but proof or receipt is not on record in respect of some earlier years. During some of such years, remarks were communicated to the plaintiff through himself because he was incharge of the office on account of his superior being on leave. In such circumstances, the Tribunal had discarded the say of the plaintiff that the remarks were not communicated. The word of the plaintiff is highly suspicious and doubtful not only because he is interested, but also because his word is falsified in respect of some years in respect of which he has denied to have been communicated with the adverse remarks, whereas in fact he has made representations against the same. Therefore, the plaintiff cannot be said to be a person who has regard for the truth. Therefore, the plaintiff cannot be said to be a person who has regard for the truth. In these circumstances, the finding of the trial court that some of the adverse remarks were not proved to have been communicated cannot be sustained and must be reversed and it must be held that the remarks for all the years were communicated to the plaintiff. Having regard to the adverse remarks he was rightly superseded and came to be promoted as Senior Clerk only as late as in 1981 and he will get seniority as Senior Clerk only from that date. Since he gets seniority as Senior Clerk from 1981, he cannot be said to be in any manner senior to N. C. Shah who was Senior Clerk much earlier and who was promoted as Head Clerk in 1976. In that view of the matter, the plaintiff cannot be given the deemed date of promotion of head Clerk from the date N. C. Shah was given the promotion as Head Clerk in 1976. Once the seniority of the plaintiff as Senior clerk is required to be reckoned only from the date of his actual promotion from 1981, the whole basis of the judgment and decree of the trial court is knocked out and the plaintiff must fail. ( 11 ) EVEN apart from merits, the plaintiffs suit is liable to fail on the question of limitation. The suit is filed in 1983 and the plaintiff wanted deemed date of promotion from 1974 on the basis that on expiry of one year of reversion, there was to be automatic promotion. His non-promotion or non repromotion in 1974 could not have been made a ground for cause of action and relief after 10 years in 1983. The suit would be obviously barred. For any deemed date of promotion or any event of non promotion, beyond the period of three years the suit would be barred by limitation. ( 12 ) THE learned Counsel for the plaintiff submitted that the plaintiff had been litigating his cause and making representations before the tribunal, before the Government and the High Court and ultimately he was done partial justice in 1981 by giving him promotion as Senior Clerk. Therefore, he had withdrawn the writ petition in the High court with a view to make a representation to the Government regarding deemed date of promotion with effect from 1974. Therefore, he had withdrawn the writ petition in the High court with a view to make a representation to the Government regarding deemed date of promotion with effect from 1974. The fact remains that the plaintiff had unsuccessfully litigated the question before the Services Tribunal and the Tribunal, on merits, rejected the claim of the plaintiff. Thereafter, if the plaintiff choosed not to challenge the order of the Tribunal, he cannot by approaching the Civil Court in 1983, get relief for the socalled injustice done to him in 1974 or 1976. The suit of the plaintiff is, therefore, barred by limitation. On that ground also, the appeal is required to be allowed. ( 13 ) IN the result, the appeal is allowed. The judgment and decree of the trial court are set aside and the suit of the plaintiff is dismissed. There will be no order as to costs. .