Judgment K.A. Puj, J.—Since both these matters are inter-connected and the appellant - petitioner as well as Respondent No. 1 in both the matters are common and since common submissions have been made before the Court, they are being disposed of by this common judgment and order. 2. Second Appeal No. 100 of 1986 is filed by the appellant - Gujarat Maritime Board - original defendant No. 2 challenging the judgment and order passed by the learned Assistant Judge, Porbandar on 12.02.1986 in Regular Civil Appeal No. 05 of 1984 reversing the judgment and decree passed by the learned Civil Judge (S.D.), Porbandar on 29.10.1983 in Regular Civil Suit No. 317 of 1981. 3. As far as second appeal is concerned, this Court has admitted the said appeal on 08.05.1986 and granted ad-interim relief in terms of Paragraph 9 (A) of Civil Application No. 790 of 1986 whereby the operation and execution of the judgment and decree passed by the learned Assistant Judge, Porbandar in Regular Civil Appeal No. 05 of 1984 was stayed during the pendency and final disposal of the Second Appeal. 4. So far as Special Civil Application is concerned, this Court has issued notice on 18.04.1991 and ad-interim relief was granted in terms of Paragraph 19 (C) of the petition whereby the operation of the order dated 22.03.1991 was stayed by the Court. The petition was thereafter admitted on 12.08.1992 and ad-interim relief granted earlier was ordered to be continued till the final disposal of the petition. 5. It is in the above background of the matter, the second appeal as well Special Civil Application both are taken up for final hearing. 6. The present respondent joined the services as a Junior Engineer in the work charge department in 1970. He was actually promoted as Deputy Engineer in July 1977 after passing the prescribed professional examination in 1976-77. He was, however, promoted to the cadre of Deputy Engineer, as per the judgment and order passed by the learned Civil Judge (S.D.), Porbandar in Regular Civil Suit No. 369 of 1974 with effect from 01.04.1973. The respondent thereafter filed Regular Civil Suit No. 317 of 1981 in the Court of the learned Civil Judge (S.D.), Porbandar originally against the State of Gujarat and thereafter also adding Gujarat Maritime Board upon constitution of the Board with effect from 05.04.1982. The respondent thereafter filed Regular Civil Suit No. 317 of 1981 in the Court of the learned Civil Judge (S.D.), Porbandar originally against the State of Gujarat and thereafter also adding Gujarat Maritime Board upon constitution of the Board with effect from 05.04.1982. At the time of filing of the said suit, the respondent was Deputy Executive Engineer. In the said suit, he has prayed for the declaration that the action of the defendant / present appellant - petitioner in promoting Deputy Executive Engineers (Mechanical) of other departments to the post of Executive Engineers (Mechanical) in the Ports Department is unconstitutional, illegal and that the plaintiff - present respondent be declared to have been promoted as Executive Engineer (Mechanical) in the Ports Department with effect from 01.04.1979. The respondent has also prayed for the declaration that he is entitled to the salary and all other benefits of the post of Executive Engineer (Mechanical) in the Ports Department with effect from 01.04.1979. 7. In the aforesaid suit, the defendant - present appellant filed written statement Exhibit 30 stating that under the Statutory Recruitment Rules dated 02.05.1977, the Government could fill in the post of Executive Engineer (Mechanical) in the Ports Department, either by direct recruitment or by promotion or by transferring Executive Engineer (Mechanical) from the General State Services Class 1 of the Public Works Department and that the Officers were promoted as Executive Engineers (Mechanical) in Public Works Department and were transferred and posted as Executive Engineers (Mechanical) in the Ports Department. It was further contended that the plaintiff - present respondent actually started working as Deputy Executive Engineer (Mechanical) with effect from 02.07.1977 on his passing the prescribed professional examination held by the department in October 1975 and, therefore also, he did not have the prescribed experience of 6 years. Moreover, it was pointed out that the post of Executive Engineer (Mechanical) is a responsible post and that even for promotion to the said post, seniority is not the criteria but proved merit and efficiency is the criteria. It was also contended that the plaintiff / present respondent’s performance was not of proved merit and efficiency. 8. The said suit was dismissed by the learned Civil Judge (S.D.) by his judgment and decree dated 29.10.1983. It was also contended that the plaintiff / present respondent’s performance was not of proved merit and efficiency. 8. The said suit was dismissed by the learned Civil Judge (S.D.) by his judgment and decree dated 29.10.1983. While dismissing the said suit, he gave the finding that in view of the statutory recruitment Rules dated 02.05.1977, the plaintiff / present respondent was not justified in making the grievance in the suit. The learned Civil Judge (S.D.) had further held that in view of the fact that the Government had the power to make appointment to the post of Executive Engineer (Mechanical) by transferring of an Officer from the cadre of Executive Engineers (Mechanical). The officers who were in the irrigation of the Public Works Department were first promoted in the post of Executive Engineers (Mechanical) in their department and were transferred to the post of Executive Engineers (Mechanical) in the Ports Department. Hence, there was nothing illegal or unconstitutional about the said order. 9. Being aggrieved by the said order, the plaintiff / present respondent filed Regular Civil Appeal No. 05 of 1984 in the Court of the learned Assistant Judge, Porbandar who had allowed the said appeal by his judgment and order dated 12.02.1986. While allowing the said appeal, the learned Assistant Judge has set aside and reversed the judgment and decree passed by the learned Civil Judge (S.D.), Porbandar and decreed and ordered that the plaintiff - present respondent was declared as promoted as Executive Engineer (Mechanical) in the Port Department with effect from 01.04.1979 and he was entitled to all the benefits accruing to the promotional post w.e.f. 01.04.1979 and was also held to be entitled to all other benefits which may be attached to that post of promotion. 10. Being aggrieved by the said judgment and order, the present appellant preferred Second Appeal No. 100 of 1986 which has been admitted by this Court on 08.05.1986 and granted ad-interim stay of operation and execution of the judgment and order passed by the lower Appellate Court. 11. During the pendency of the Second Appeal and during the operation of the stay of the first Appellate Court’s order, the plaintiff / present respondent filed Regular Civil Suit No. 66 of 1990 on 15.03.1990. 11. During the pendency of the Second Appeal and during the operation of the stay of the first Appellate Court’s order, the plaintiff / present respondent filed Regular Civil Suit No. 66 of 1990 on 15.03.1990. In the said Civil Suit, the respondent - plaintiff claimed to be Executive Engineer w.e.f. 01.03.1979 inspite of the fact that no such promotion order was issued in favour of the plaintiff - present respondent and this Court had already granted stay of the judgment and decree dated 12.02.1986 of the learned Assistant Judge in Regular Civil Appeal No. 05 of 1984. The said stay was granted by this Court as far back as on 08.05.1986 and the plaintiff - present respondent was already served with the notice of the said stay application and the stay order. In this subsequent suit, the plaintiff - present respondent referred to Second Appeal No. 100 of 1986, but deliberately suppressed the material fact that the judgment of the Assistant Judge was already stayed by this Court in Civil Application No. 790 of 1986. in the said civil suit, the plaintiff - present respondent claimed to be senior to one Mr. T.N. Thakkar in the cadre of Executive Engineers inspite of the fact that the said Shri Thakkar was already promoted as Executive Engineer as far back as on 18.09.1982 and the plaintiff - present respondent was promoted as Executive Engineer on ad hoc basis on 30.06.1988. In the said Civil Suit, the promotion given to Mr. Thakkar on the post of Executive Engineer as far back as on 18.09.1982 was never challenged by the plaintiff -present respondent. 12. The plaintiff - present respondent had also filed another suit being Regular Civil Suit No. 202 of 1990 in the Court of Civil Judge (S.D.), Jamnagar. The same was contested by the appellant. During the pendency of all these proceedings and despite there being reply filed by the present appellant, the learned Civil Judge (J.D.), Porbandar has passed order dated 22.03.1991 allowing the plaintiff - present respondent’s application Exhibit 5 and restrained the appellant Board from promoting Shri T.N. Thakkar or any other Executive Engineer (Mechanical) except the plaintiff - present respondent to the post of Superintendent Engineer (Mechanical) or to the post of Marine Engineer. 13. 13. Being aggrieved by the said order, the present appellant - petitioner straightway filed Special Civil Application No. 2739 of 1991 invoking the writ jurisdiction of this Court under Article 227 of the Constitution of India. The Court issued notice on 18.04.1991 and granted ad-interim relief in terms of Para 19 (c) of the petition. The Court thereafter admitted the petition on 12.08.1992 and directed to be heard along with Second Appeal No. 100 of 1986 and ad-interim relief was continued. 14. This Court has passed an order on 14.10.2008 in Special Civil Application No. 2739 of 1991 directing the office to place the papers of Special Civil Application along with Second Appeal No. 100 of 1986 before the appropriate Court taking up such matters after obtaining necessary permission from the Hon’ble the Chief Justice. 15. Since then both these matters are placed together. 16. Ms. Sejal K. Mandavia, learned Advocate appearing for Gujarat Maritime Board in both the matters has submitted that the post of Executive Engineer (Mechanical) in the Ports department could be filled in by resorting to any of the three modes of recruitment i.e. direct, transfer or by promotion. She has further submitted that before the promotion orders of the Officers are declared as illegal, the concerned Officers are required to be joined as parties to the suit or appeal and without hearing them, no adverse order could have been passed against them. That the promotion to the post of Executive Engineer (Mechanical) in the Ports department could be made on the basis of proved merit and efficiency and not on the basis of mere seniority. The promotion of two Officers in question was made in the Public Works Department (Irrigation) wing and thereafter they were transferred and posted as Executive Engineer (Mechanical) in the Ports department. Such action can never amount to supersession of the respondent. She has further submitted that lower Appellate Court is not vested with the power to give a direction that the respondent is declared as promoted as Executive Engineer (Mechanical) in Ports department w.e.f. 01.04.1979 and that he is entitled to all the benefits accruing on that basis w.e.f. 01.04.1979. Such action can never amount to supersession of the respondent. She has further submitted that lower Appellate Court is not vested with the power to give a direction that the respondent is declared as promoted as Executive Engineer (Mechanical) in Ports department w.e.f. 01.04.1979 and that he is entitled to all the benefits accruing on that basis w.e.f. 01.04.1979. In support of this proposition, she relied on the decision of the Hon’ble Supreme Court in the case of State of Mysore vs. C.R. Seshadri and Others, AIR 1974 SC 460 wherein it is held that “In our constitutional scheme, a broad three-fold division exists. The power to promote an officer belongs to the Executive and the judicial power may control or review Government action but cannot extend to acting as if it were the Executive. The Court may issue directions but leave it to the Executive to carry it out. The judiciary cannot promote or demote officials but may demolish a bad order of Government or order reconsideration on correct principles. What has been done here is in excess of its jurisdiction. Assuming the petitioner’s seniority over Venkataraman, how can the Court say that the former would have been for certain promoted ? Basically, it is in Government’s discretionary power, fairly exercised, to promote a Government servant. If the rule of promotion is one of sheer seniority it may well be that promotion is a matter of course. On the other hand, if seniority-cum-merit is the rule, as in the Supreme-Court decisions cited before us, promotion is probelmatical. While we agree that the High Court has been impelled by a right judicial instinct to undo injustice to an individual, we feel that a finer perception of the limits of judicial review would have forbidden it from going beyond directing the Executive to reconsider and doing it on its own, venturing into an area of surmise and speculation in regard to the possibilities of escalation in service of the appellant. Judicial expansionism, like allowing the judicial sword to rust in its armoury where it needs to be used, can upset the constitutional symmetry and damage the constitutional design of our founding document”. Based on this judgment, she has submitted that the recruitment rules lay down the criteria of proved merit and efficiency and, therefore, the learned Assistant Judge has all the more erred in exercising the power not vested in him. Based on this judgment, she has submitted that the recruitment rules lay down the criteria of proved merit and efficiency and, therefore, the learned Assistant Judge has all the more erred in exercising the power not vested in him. She has further submitted that the order of the lower Appellate Court is erroneous in this wise that the respondent was awarded all the benefits of the post of Executive Engineer (Mechanical) w.e.f. 01.04.1979, admittedly that the plaintiff had never worked on the said higher post. She has, therefore, submitted that the judgment and order of the lower Appellate Court is contrary to law and against the evidence on record and the lower Appellate Court has committed material irregularity and illegality in exercising the jurisdiction and hence, the said order is required to be quashed and set aside by this Court. 17. So far as Special Civil Application is concerned, Ms. Mandavia has submitted that the impugned order dated 22.03.1991 passed by the learned Civil Judge (J.D.), Porbandar is without jurisdiction as he had no jurisdiction to entertain the suit in respect of the promotion to the post of Superintending Engineer (Mechanical) which post is not at all within the jurisdiction of the Porbandar Civil Court. The decision to give promotion to the post of Superintending Engineer (Mechanical) is to be taken at the head office of the petitioner Board at Ahmedabad and hence, Porbandar Court has no jurisdiction. She has further submitted that the learned Civil Judge could not have granted interim injunction in view of the fact that the suit is bad for want of statutory notice required to be given under Section 107 of the Gujarat Maritime Board Act. She has further submitted that the learned Civil Judge could not have granted interim injunction in a suit which deserves to be dismissed for want of necessary parties as the respondent sought an injunction that the petitioner Board could not promote Shri T.N. Thakkar or any other Executive Engineer to the post of Superintending Engineer. The affected party, namely, Shri T.N. Thakkar is not even joined as a party –defendant in the suit and, therefore, the impugned order deserves to be set aside. She has further submitted that the said Shri T.N. Thakkar was promoted as Executive Engineer as far back as on 18.09.1982 whereas the respondent was promoted on ad hoc basis on 30.06.1988. The affected party, namely, Shri T.N. Thakkar is not even joined as a party –defendant in the suit and, therefore, the impugned order deserves to be set aside. She has further submitted that the said Shri T.N. Thakkar was promoted as Executive Engineer as far back as on 18.09.1982 whereas the respondent was promoted on ad hoc basis on 30.06.1988. Hence, the respondent could neither be considered senior to Shri T.N. Thakkar nor could the respondent be considered to be eligible for promotion to the post of Superintending Engineer. He had not put in minimum required experience of 7 years in the cadre of Executive Engineer. The recruitment Rules lay down criteria of proved merit and efficiency. The respondent himself has undergone the penalty of reduction in his pay by four increments as per the order dated 11.07.1988 which was produced before the trial Court. The respondent had filed Regular Civil Suit No. 202 of 1990 challenging the said penalty order and contending that the said penalty order could not come in the way of his promotion. Respondent’s application Exhibit 5 for interim injunction in the said Civil Suit was dismissed by the Civil Court at Jamnagar. All these material facts were suppressed by the respondent in the suit filed before the Trial Court. 18. She has further submitted that in the said suit, the respondent had relied on the judgment and order dated 22.2.1986 passed by the learned Assistant Judge, Porbandar in Regular Civil Appeal No. 05 of 1984 contending that he should be considered as Executive Engineer w.e.f. 01.04.1979. However, the respondent was aware that not merely the Second Appeal No. 100 of 1986 was filed by the petitioner Board against the said judgment and order but also of stay was granted by this Court in Civil Application No. 790 of 1986. The learned Trial Judge had grossly erred in ignoring the said fact and not considering the fact that even the respondent was not in a position to deny the fact that this Court had granted stay against the judgment and order of the learned Assistant Judge in Regular Civil Appeal No. 05 of 1984. She has, therefore, submitted that the order passed by the trial Court granting interim injunction is required to be quashed and set aside. 19. Initially, Mr. D.D. Vyas, learned Advocate was appearing on behalf of the respondent. She has, therefore, submitted that the order passed by the trial Court granting interim injunction is required to be quashed and set aside. 19. Initially, Mr. D.D. Vyas, learned Advocate was appearing on behalf of the respondent. However, the respondent had taken the papers from him and hence, he filed a purshish with the Registry of this Court intimating that the papers have been taken away by the respondent from him on 5.02.2003 and hence, appropriate order may be passed. It appears that after taking papers from Mr. D.D. Vyas, the respondent has not made any alternative arrangement. When the matter came up for hearing before this Court on 21.01.2009. Mr. Dhaval Vyas, learned Advocate appearing for Mr. D.D. Vyas has reiterated his submission that he has no instruction to appear in this matter. At this juncture, Mr. Uday N. Vyas, learned Advocate has submitted that he will appear in this matter. However, neither his appearance is on record nor he has made any submission thereafter, despite the fact that the matter was adjourned to 22.01.2009 and thereafter on 29.01.2009. 20. In the above view of the matter, both these matters are decided on the basis of the submissions made by learned Advocate Ms. Sejal Mandavia appearing for the appellant / petitioner and the documentary evidence found on record. 21. In Second Appeal No. 100 of 1986, following substantial questions of law are formulated by the Court :— A. Whether the lower Appellate Court has substantially erred in law in giving declarations / findings against employees who are not joined as parties to the suit / appeal ? B. Whether the lower Appellate Court has substantially erred in law in holding that sub-rule (b) or Rule 2 of the Recruitment Rules dated 02.05.1977 for the post of Executive Engineer (Mechanical) in the Ports Department for filling in the said post by transfer could not have been resorted to without first resorting to Sub-clause (a) of the said Rules for filling in the post by promotion ? C. hether the lower Appellate Court has substantially erred in law in promoting the plaintiff as Executive Engineer (Mechanical) in the Ports Department w.e.f. 01.04.1979 and thus substituting itself as the promoting authority, when the criteria for promotion is “proved merit and efficiency”. C. hether the lower Appellate Court has substantially erred in law in promoting the plaintiff as Executive Engineer (Mechanical) in the Ports Department w.e.f. 01.04.1979 and thus substituting itself as the promoting authority, when the criteria for promotion is “proved merit and efficiency”. D. Whether the lower Appellate Court has substantially erred in law in awarding the plaintiff all the benefits of the post of Executive Engineer (Mechanical) w.e.f. 01.04.1979 when the plaintiff has not admittedly worked as Executive Engineer ? 22. The Court has considered all the four substantial questions of law and the documents produced before the Court. The order passed by the lower Appellate Court was stayed by this Court on 08.05.1986 and was not given effect to. During the pendency of this second appeal, the respondent had already retired from service. Considering the submissions made on behalf of the appellant - petitioner, the Court is of the view that the order passed by the lower Appellate Court is contrary to the statutory Rules and since the promotion was given by one of the three modes prescribed under the statutory Rules, it cannot be said that there is any infirmity in the said promotion order. The order of the lower Appellate Court directing the appellant herein to give promotion to the respondent w.e.f. 01.04.1979 causes severe hardships and anomalies to the Board and even otherwise, such a direction can never be issued by the Court as it is contrary to the law laid down by the Hon’ble Supreme Court. The respondent is, therefore, not entitled to be promoted w.e.f. 01.04.1979 and he is also not entitled to derive any benefits as a result of such order. This Second Appeal is, therefore, allowed and the order and judgment passed by the first lower Appellate Court is hereby quashed and set aside and the interim relief granted by this Court on 08.05.1986 is hereby confirmed. 23. Since the order of the lower Appellate Court is hereby quashed and set aside, the respondent cannot rely on the said order for the purpose of getting any relief pursuant to the interim order dated 22.03.1991 passed by the learned Civil Judge (J.D.), Porbandar below an application Exhibit 5 in Civil Suit No. 66 of 1990. The said order is, therefore, quashed and set aside and the Special Civil Application filed by the petitioner Board is accordingly allowed. Rule is made absolute. 24. The said order is, therefore, quashed and set aside and the Special Civil Application filed by the petitioner Board is accordingly allowed. Rule is made absolute. 24. It is clarified that though this Court has not stayed the further proceedings of Civil Suit No. 66 of 1990, it must have been disposed of by now. However, Ms. Mandavia has no information about the said suit. In any case, the petitioner Board has got the relief in the Second Appeal. The said suit does not survive and it is, therefore, deemed to have been disposed of, if not disposed of so far.