PHOOL CHANDRA v. UNION OF INDIA — 1995 DIGILAW 194 (ALL)

R. B. MEHROTRA, J. This is plaintiffs second appeal. 2. The fads necessary for the decision of the appeal are as under : Phool Chandra, the plaintiff, filed Civil Suit No. 373 of 1977 against the Union of India and ethers in the court of Munsif, Etawah. In the aforesaid suit the plaintiff prayed for a relief of declaration that the plaintiff is entitled to be given permanent promotion in Inspector Post Offices (for short I. P. O.) Cadre from the date Sri Ram Swarup, Scheduled Castes candidate has taken over charge in the I. P. Os. cadre. The suit was contested by the defendants. 3. On the pleadings of the parties the trial court framed issues. Only following issues are relevant for the decision of the present appeal. (i) Whether the plaintiff was entitled to be promoted on this reserved post of the I. P. O. s Cadre as scheduled caste candidate ? (viii) Whether the plaintiff was entitled to be included in I. P. Os cadre as a Scheduled Castes candidate ? (ix) Whether in accordance with Post and Telegraph Manual, Chapter-VIII, Rule 279/1 the plaintiff possessed necessary qualifications. If yes, then whether the plaintiff was rightly declared successful in Army Postal Service ? 4. The trial court considered issue Nos. VIII and IX together and on the basis of the evidence on record held that the plaintiff did rt possess the necessary qualifications for I. P. O. s Cadre and was entitled to be considered for the post of I. P. O. s Cadre. 5. On consideration of the evidence and the relevant rules the trial court held that out of six seats reserved for Scheduled Caste only four were filled and two seats were vacant to be filled by the Scheduled Caste candidates. The plaintiff was declared successful alongwith other defendants and the plaintiff was qualified and available for filling the post in the I. P. O. s Cadre. Two posts of the Inspector Post Office Cadre were vacant and there was in justification in not promoting the plaintiff on the aforesaid two posts. 6. On the basis of the aforesaid findings the trial court decreed the suit of the plaintiff and declared that the plaintiff is entitled to be promoted in Inspector, Post Offices Cadre from the date Sri Ram Swarup was promoted in the Inspector, Post Offices Cadre. 7. 6. On the basis of the aforesaid findings the trial court decreed the suit of the plaintiff and declared that the plaintiff is entitled to be promoted in Inspector, Post Offices Cadre from the date Sri Ram Swarup was promoted in the Inspector, Post Offices Cadre. 7. Aggrieved by the aforesaid judgment the Union of India filed Civil Appeal No. 31 of 1981 in the court of Dist. Judge, Etawah. The District Judge Etawah, vide its judgment dated 1-4-1982, allowed the appeal of the Union of India and dismissed the suit of the plaintiff No. 378 of 1977 in the trial court. 8. Aggrieved thereby the present second appeal has been filed. The lower appellate court on the basis of the facts and evidence on record considered the issues and framed points for consideration which as under : (i) Whether the plaintiff appeared in the examination of Army Postal Services in the year 1965, or the plaintiff appeared in the examination alongwith other applicants of Postal Service. (ii) Whether the plaintiff was entitled to be promoted alongwith other Scheduled Caste candidates ? (iii) Whether the suit was within time ? (iv) Whether the plaintiff was entitled for a decree of declaration as claimed in the plaint ? On consideration of the evidence the appellate court decided point No. 1 in the following terms : "in the circumstances, it is decided that the plaintiff appeared in 1965 examination as applicant of Army Postal Services and the result of which the successful candidates in Army Postal Services will be entitled to be appointed in the Inspector, Post Offices Cadre on completion of two years of service. " 9. On point No. 2 the appellate court held that the plaintiff was not entitled to be promoted alongwith other Scheduled Caste candidates. 10. On point No III the lower appellate court also held that the suit is barred by limitation. 11. On the basis of the aforesaid findings the appeal was allowed. 12. I have gone through the appellate court judgment. I am of the opinion that it does not suffer from any error of law and is concluded by the findings of fact No interference is called for in the second appellate court jurisdiction. The appeal is accordingly failed and is dismissed with costs. Dated 2-2-1995: AK. 13. 12. I have gone through the appellate court judgment. I am of the opinion that it does not suffer from any error of law and is concluded by the findings of fact No interference is called for in the second appellate court jurisdiction. The appeal is accordingly failed and is dismissed with costs. Dated 2-2-1995: AK. 13. Before I could sign the aforesaid judgment, learned counsel for the appellant made a request that he should be heard before signing the judgment. The request was conceded and the learned counsel for the appellant and learned counsel for the respondents were heard. 14. After hearing the counsel for the parties I am satisfied that my conclusion which I drew without hearing the counsel for the parties that the judgment of the lower appellate court does not suffer from any error of law, is not correct and since the said judgment was passed without hearing the learned counsel for the parties. I recall my aforesaid conclusion and decide the matter afresh. 15. Necessary facts, as borne out from the record of the judgment of the court below for the decision of the appeal are as under. 16. On 27-5-1960 the appellant was appointed as a Clerk in the Post and Telegraph Department. On 7-9- 1961 the appellant was sent on deputa tion on Army Postal Service. On 30-1-1965 vacancies for the post of Inspector, Post Offices and Inspector, Railway Mail Service was advertised. This advertisement has been filed by the plaintiff and has been numbered as paper No. 24-G. Contents of the documents are not disputed. In this advertisement, the Director General, Post Offices in continuation of its earlier circular notified for general information the number of vacancies for each circle to be filled up on the results of the examination announced therein. Each State was shown as a circle in the aforesaid notice. In the present appeal. I am concerned with the circle of U. P. where total number of posts for Inspector, Post Offices was advertised to be 18 and total number of post for Inspector, Railway Mail Service was notified to be only one. Each State was shown as a circle in the aforesaid notice. In the present appeal. I am concerned with the circle of U. P. where total number of posts for Inspector, Post Offices was advertised to be 18 and total number of post for Inspector, Railway Mail Service was notified to be only one. By another notification, which has been filed as paper No. 25-C and which is also not disputed, the number of vacancies reserved for the Scheduled Castes and Scheduled Tribes in connection with the notification dated 21-1-1965, filed is paper No. 24-C were notified for U. P. The vacancies reserved for Scheduled Castes were 6 and vacancies reserved for Schedule Tribes were 2. In February, 1965 an examination was conducted for the aforesaid posts of Inspector, Post Offices and Inspector Railway Mail Service. The plaintiff appeared in the aforesaid examination. On 5-6-1965 the result of the examination was declared and appellant was declared successful and a select list was prepared and the Secretary Post and Telegraph Services Selection Board notified the aforesaid select list on 5-6-1965. In U. P. Circle for the post of Inspector of Post Offices, name of 18 persons was shown out of which only four Scheduled Caste candidates were included in the aforesaid select list. Their name was mentioned at SI. Nos. 15 to 18. In the same select list for the post of Inspector, Railway Mail Service, names of three persons were shown out of which one Sri Bhola Nath Jaiswar was shown as Scheduled Castes candidate. The appellants name was not included in the aforesaid select list. The appellants case, as borne out from the representation of the appellant to the authorities concerned as well as from the plaint allegations is that though the appellant was informed of his marks but the appellant WAS not informed of the marks obtained by other candidates nor the appellants position in the select list was made known to the appellant. The appellants case is that it was also mentioned in the copy of the result that the vacancies for Scheduled Caste and Scheduled Tribes, which could not be filled for want of qualified candidates belonging to these communities have been treated as unreserved and to be filled up by the qualified candidates of other communities, if available. The appellant is a Scheduled Castes candidate, there is no dispute about it. The appellant is a Scheduled Castes candidate, there is no dispute about it. The declaration of the result also shows that out of 18 vacancies only four Scheduled Castes candidates were included in the select list. The total number of reserved post was 6. The total reservation for Scheduled Castes is to be confined to the post of Inspector, Post Offices, as there was only one vacancy for Inspector, Railway Mail Service. As settled by judicial decision, no reserva tion was possible if there is only me vacancy, unless some rule provides a rotational filling of vacancy by reservation. No such case is brought forward that one vacancy for Inspector, Railway Mail Service was to be filled up by Scheduled Castes candidate on any rotational basis, The appellants has also filed Paper No. 18-C. It is also undisputed that the permit list of Scheduled Castes officials for Inspector, Post Offices and Inspector, Railway Mail Service examination was declared. The appellant was shown at SI. No. 8 and Sri Bhola Nath Jaiswal and Sri Budhi Ram Prasad were shown at SI. Nos. 4 and 6 respectively. Against both the aforesaid persons, namely, Bhola Nath Jaiswal and Budhi Ram Prasad it was mentioned that they are candidates for Inspector Railway Mail Service, so if the aforesaid two names are excluded from the aforesaid select list, the petitioner comes within first six persons for the post of Inspector, Post Offices and as such, the appellant being a Scheduled Castes candidate was entitled to be included in the aforesaid select list. The respondents wrongly assumed that the Scheduled Castes candidates were not available for the reserved post and on this basis illegally declined permission to the appellant. The trial court on considering the aforesaid facts has decreed the suit of the plaintiff- appellant. The appellate court has reserved the aforesaid finding on an assumption that the plaintiff- appellant appeared in the aforesaid as a candidate for Postal Army Service and not as a candidate for Postal Department. The appellants counsel has contended that it was no bodys case that the plaintiff- appellant has appeared in the examination as a candidate for Army Postal Service. Admittedly the plaintiff-appellant was on deputation on Army Postal Service and came back from deputation in the year 1973. The appellants counsel has contended that it was no bodys case that the plaintiff- appellant has appeared in the examination as a candidate for Army Postal Service. Admittedly the plaintiff-appellant was on deputation on Army Postal Service and came back from deputation in the year 1973. Merely on the basis that the appellant was sent on deputation, the plaintiff-appellant-cannot be treated as a member of Army Postal Service nor there was any justification for treating the plaintiff- appellant as at Army Postal Service. Even otherwise, in the facts of the present case, the only question which requires consideration is whether in the examination for the post of Inspector Post Offices, 18 posts were to be filled by the candidates appearing for the aforesaid post and out of these 18 vacancies were to be filled by Scheduled Castes candidates. The appellant was within first six Scheduled Caste candidate for the aforesaid post. The respondents were not justified in making appointment of only four Scheduled Castes and filling up two vacancies by general candidates. 17. In this connection it may also be mentioned that as per rules, a circular has been issued by the Assistant Director General, Post and Tele graph Department, relevant portion whereof is produced here for convenience : "it has been decided that if an official sits for the examination for promotion to the cadres of Inspectors of Post Offices/r. M. S. , while working in the Army Postal Service and passes the examination but does not secure sufficiently high marks to be candidates nor the appellants position in the. select list was made known to the appellant. The appellants case is that it was also mentioned in the copy of the result that the vacancies for Scheduled Caste and Scheduled Tribes, which could not be filled for want of qualified candidates belonging to these communities have been treated as unreserved and to be filled up by the qualified candidates of other communities, if available. The appellant is a Scheduled Castes candidate, there is no dispute about it. The declaration of the result also shows that out of 18 vacancies only four Scheduled Castes candidates were included in the select list. The total number of reserved post was 6. The total reservation for Scheduled Castes is to be confined to the post of Inspector, Post Offices, as there was only one vacancy for Inspector, Railway Mail Service. The declaration of the result also shows that out of 18 vacancies only four Scheduled Castes candidates were included in the select list. The total number of reserved post was 6. The total reservation for Scheduled Castes is to be confined to the post of Inspector, Post Offices, as there was only one vacancy for Inspector, Railway Mail Service. As settled by judicial decision, no reserva tion was possible if there is only me vacancy, unless some rule provides a rotational filling of vacancy by reservation. No such case is brought forward that one vacancy for Inspector, Railway Mail Service was to be filled up by Scheduled Castes candidate on any rotational basis, The appellants has also filed Paper No. 18-C. It is also undisputed that the permit list of Scheduled Castes officials for Inspector, Post Offices and Inspector, Railway Mail Service examination was declared. The appellant was shown at SI. No. 8 and Sri Bhola Nath Jaiswai and Sri Budhi Ram Prasad were shown at SI. Nos. 4 and 6 respectively. Against both the aforesaid persons, namely, Bhola Nath Jaiswai and Budhi Ram Prasad it was mentioned that they are candidates for Inspector Railway Mail Service, so if the aforesaid two names are excluded from the aforesaid select list, the petitioner comes within first six persons for the post of Inspector, Post Offices and as such, the appellant being a Scheduled Castes candidate was entitled to be included in the aforesaid select list. The respondents wrongly assumed that the Scheduled Castes candidates were not available for the reserved post and on this basis illegally declined permission to the appellant. The trial court on considering the aforesaid facts has decreed the suit of the plaintiff- appellant. The appellate court has reserved the aforesaid finding on an assumption that the plaintiff- appellant appeared in the aforesaid as a candidate for Postal Army Service and not as a candidate for Postal Department. The appellants counsel has contended that it was no bodys case that the plaintiff- appellant has appeared in the examination as a candidate for Army Postal Service. Admittedly the plaintiff-appellant was on deputation on Army Potal Service and came back from deputation in the year 1973. The appellants counsel has contended that it was no bodys case that the plaintiff- appellant has appeared in the examination as a candidate for Army Postal Service. Admittedly the plaintiff-appellant was on deputation on Army Potal Service and came back from deputation in the year 1973. Merely on the basis that the appellant was sent on deputation, the plaintiff-appellant-cannot be treated as a member of Army Postal Service nor there was any justification for treating the plaintiff- appellant as at Army Postal Service. Even otherwise, in the facts of the present case, the only question which requires consideration is whether in the examination for the post of Inspector Post Offices, 18 posts were to be filled by the candidates appearing for the aforesaid post and out of these 18 vacancies were to be filled by Scheduled Castes candidates. The appellant was within first six Scheduled Caste candidate for the aforesaid post. The respondents were not justified in making appointment of only four Scheduled Castes and filling up two vacancies by general candidates. 17. In this connection it may also be mentioned that as per rules, a circular has been issued by the Assistant Director General, Post and Tele graph Department, relevant portion whereof is produced here for convenience : "it has been decided that if an official sits for the examination for promotion to the cadres of Inspectors of Post Offices/r. M. S. , while working in the Army Postal Service and passes the examination but does not secure sufficiently high marks to be placed on the approved list for promotion, he will be placed on the approved list, below the others normally selected in that year, provided he has served in the Army Postal Service for at least two years as a Junior Commissioned Officer. The selection of the eligible A. P. S. Personnel will be over and above the vacancies announced for the particular circle. (2) Officials who have not rendered two years service as Junior Commissioned Officers at the time of passing the examination will be brought on to the approved list from the date on which they complete two years service as J. C. Os. (3) This concession is admissible to those who passed the Inspectors examination hereafter while in Army Postal Service and not to those who qualify while in Civil service before deputation to Army Postal Services. " 18. (3) This concession is admissible to those who passed the Inspectors examination hereafter while in Army Postal Service and not to those who qualify while in Civil service before deputation to Army Postal Services. " 18. A bare reading of the aforesaid circulate shows that the personals who have been sent on deputation on Army Postal Service have been provided extra benefit in case they fail to qualify in the main examination but that does not mean that a personnel who has been sent on deputation on Army Post Service will be deprived of his claim as a general candidate, if he qualifies on merit. The aforesaid analysis makes it clear that the lower appellate court labouring under a wrong impression and under a wrong assumption held that since the plaintiff-appellant appeared as a candidate on Army Postal Service, he was not entitled to be considered on merits as a general candidate of Postal Department. The judgment of the appellate court is based on the aforesaid wrong assumption and is patently contrary to law. 19. On the basis of the aforesaid analysis, I am satisfied that the plaintiff-appellant was entitled to be included in the select list for 18 posts of Inspector, Post Offices as scheduled caste candidate on the basis of the examination held and result declared on 5-6-1965. 20. Now the only question which requires consideration in the present matter is as to whether the suit of the plaintiff was barred by time. The case of the plaintiff as pleaded in the plaint is that since the plaintiff was on deputation in Army Postal Service, the plaintiff was not informed of the result of other candidates and regarding the details of the select list. The plaintiff could know the same only after coming back from deputation to his parent department i. e. , on 19-11-1973. The plaintiff on coming to know of the aforesaid injustice, made a representation to Director General, Post and Telegraph, New Delhi on 21-5-1974 i. e. , within six months from the date of coming to know the injustice done to the plaintiff. The plaintiffs representation was rejected on 8-9-1975. The plaintiff served a notice on the respondents under Section 80, C. P. C. on 24-8-1977 and filed the suit giving rise to the present second appeal in September, 1977. This suit was within time from the date, plaintiffs representation was rejected. 21. The plaintiffs representation was rejected on 8-9-1975. The plaintiff served a notice on the respondents under Section 80, C. P. C. on 24-8-1977 and filed the suit giving rise to the present second appeal in September, 1977. This suit was within time from the date, plaintiffs representation was rejected. 21. In this connection it is also to be noticed that in the rules relating to the departmental examination for the Post and Telegraph Department, Rule 13 (a) contemplates that the marks of the candidates shall be supplied to them on payment of a fee of Re. 1 per examination per candidate. The rule further contemplates that the marks of other candidate should not be supplied. Rule-13 (d) provides that any marks will not be, however, com municated to the candidate selected in the departmental competitive examination held at any level and Rule 13 (f) provides that it is absolutely necessary that the marks list and tabulated result sheets should be treated as confidential and handled by responsible officials only. This Rule shows that strict confidentiality regarding declaration of result was required to be maintained. The plaintiff-appellant cannot be blamed for negligence in not enquiring about the result and preparation of selected list etc. in regard to the aforesaid examination. Thus there is nothing to disbelieve that he did not know about the fact that out of 18 vacancies 6 scheduled caste vacancies were required to be filled for the post of Inspector, Post Offices. The plaintiff was amongst first six, as such, the cause of action for initiating proceedings when the plaintiff-appellant came back to his parent department on 19-11-1973 within six months thereof the plaintiff-appellant made a representation to the concerned authority. 22. By office Memothersndum No. 25/52/52-Establishment dated 11. 10-1952, the Government of India decided to issue instructions wherein it has been directed that government servants seeking redress to their grievance arising out of their employment or continuance of service should, in their own interest and also consistently with official propriety and discipline, first exhaust the normal official channel before they take issue before a court. As a government servant it was the duty of the plaintiff to abide by the government orders and in view of the aforesaid government, order, the plaintiff-appellant could not have approached the court directly by passing the departmental remedy available to the plaintiff by making representation. 23. As a government servant it was the duty of the plaintiff to abide by the government orders and in view of the aforesaid government, order, the plaintiff-appellant could not have approached the court directly by passing the departmental remedy available to the plaintiff by making representation. 23. In the aforesaid background the plaintiffs suit cannot be held to be time-barred. From the date he came to know of his non-inclusion in the select list on the post of inspector, Post Offices, the cause of action arose for filing the suit to the plaintiffs-appellant for the first time when plaintiffs appellants representation was rejected on 3-9-1975. The plaintiff filed the suit in September, 1977. Under Article 58 of the Schedule of Limitation Act, the period of limitation for tiling the suit for declaration is three years. The plaintiffs suit was within the stipulated period. 24. In S. S. Kathore v. State of Madhya Pradesh, (1990) 1 UPLBEC 74, a Constitution of the Supreme Court has held : "17. In this background if the original order of punishment is taken as the date when cause of action first services for purposes of Article 58 of the Limitation Act, great hardship is bound to result. On the side, the claim would not be maintainable if laid before exhaustion of the remedies ; on the other, if the departmental remedy though availed is not finalised within the period of limitation, the cause of action would no more be justifiable having become barred by limitation. Redressal of grievances in the hands of the departmental authorities take an unduly long time. That is so on account of the fact that no attention is ordinarily bestowed over these matters and they are not considered to be governmental business of substance. This approach has to be deprecated authorities on whom power is vested to dispose of appeals and revisions under the Service Rules must dispose of such matters as expeditiously as possible. Ordinarily, a period of three to six months should be the outer limit. That would discipline the system and keep the public servant away from a protected period of litigation. "18. We are satisfied that to meet the situation as has arisen here, it would be appropriate to hold that the cause of action first arises when the remedies available to the public servant under the relevant Service Rules to redressal are disposed of. " 25. "18. We are satisfied that to meet the situation as has arisen here, it would be appropriate to hold that the cause of action first arises when the remedies available to the public servant under the relevant Service Rules to redressal are disposed of. " 25. The aforesaid decision clinches the issue in favour of the plaintiff-appellant. The plaintiff could not have approached the court without exhaust ing departmental remedy and the cause of action for filing the suit arose to the plaintiff only after rejection of his representation by the department. 26. The appellate court has taken a wrong view of law in holding that the plaintiffs suit was barred by limitation. In view of the decision of the Constitution Bench of the Supreme Court, there cannot be any manner of doubt that the plaintiffs suit was within time. 27. Lastly, it has been observed by the lower appellate court while deciding Issue No. 4 that no relief could have been granted against respondent Nos. 2, 3 and 4 as they were not juristic persons. This view is also incorrect as respondent Nos. 2, 3 and 4 are all officers of the Central Government and were necessary parties. The plaintiff did not mention the names of the officer, as mala fide was alleged against any person. The officers were arrayed in the suit by designation of their posts. The lower appellate court fell in error in holding that the respondent Nos. 2, 3 and 4 were not juristic persona. 28. In view of the above discussion, the plaintiffs appeal is allowed with costs throughout. Judgment and decree passed by the court of 1st Additional District Judge in Civil Appeal No. 31 of 1981 dated 8-4- 1982 and 21-4-1982 is set aside. The judgment and decree passed in original rait No. 378 of 1977 is restored. Appeal allowed. .