Ramesh Chandra Sharma v. Nagarpalik Nigam, Gwalior
2011-01-19
S.N.AGGARWAL
body2011
DigiLaw.ai
ORDER 1. This second appeal under section 100 of the Code of Civil Procedure, 1908 preferred by appellant Rameshchandra Sharma is directed against the impugned judgment and decree dated 22.6.09 in Civil First Appeal 9A/09 affirming the judgment and decree dated 19.01.09 of the trial Court dismissing the suit filed by the appellant against the respondents for setting aside the appointment of respondents No.2 and 3 as homeopathic doctors and to appoint him as homeopathic doctor on the basis of his seniority. 2. Heard on this appeal for final disposal at admission stage itself. 3. The appellant was appointed as LDC with respondent No. I and was confirmed on the said post on 29.6.71. Respondent No. 1 had promoted respondents No.2 and 3 as homeopathic doctors in its health department on 19.6.81. Appellant, aggrieved by their promotion, had filed a civil suit being suit No. 91 Al08 for setting aside the promotion of respondents No.2 and 3 and to appoint him in their place as homeopathic doctor w.e.f. 19.6.81 and grant him benefit of arrears of pay of the said post. 4. The suit filed by the appellant against the respondents was dismissed by the trial Court by a reasoned order vide its judgment and decree dated 19.1.09. aggrieved wherefrom the appellant filed a first appeal being Civil Appeal No.9A/09, which after hearing him, was also dismissed by the first appellate Court vide its judgment and decree dated 22.6.09. Thereafter, the appellant filed a review petition being Review Petition 1/09 seeking review of judgment of first appellate Court but to his misfortune, his said review petition also stood dismissed by the appellate Court vide its order dated 31.3.10. 5. The appellant still being not satisfied with the concurrent findings of two Courts below had filed the present second appeal, inter alia, alleging that the Courts below have ignored the documentary evidence placed by the appellant before them to show that he was senior to respondent No.2 and 3 and was therefore entitled for his promotion to the post of homeopathic doctor before their promotion done w.e.f. 19.6.81. 6. Mr.
6. Mr. Sharma, learned counsel appearing on behalf of the appellant, further argued that since the appellant possessed all the requisite qualifications for his appointment to the post of homeopathic doctor, there was no reason for respondent No. 1 to have denied promotion to him to the said post ignoring his seniority while granting promotion to respondent No.2 and 3, who were juniors to him. 7. Mr. Sharma, learned counsel appearing on behalf of the appellant, has• referred to and relied upon a judgment of the Hon'ble Supreme Court of India in the case of Haryana State Electronics Development Corporation Ltd. & Ors. v. Seema Sharma & Ors. reported as AIR 2009 SC 2592 and placing reliance on the said judgment, he has contended that since the Court below did not frame an issue regarding whether the promotion to the post of homeopathic doctor by respondent No.1 was to be made on the basis of merit cum seniority, this case needs to be remitted to the trial Court for deciding this question afresh. 8. I have given my anxious thought to the above arguments advanced by the learned counsel appearing on behalf of the appellant and have also perused the judgment of the Hon. Apex Court in the case of Seema Sharma (supra) but I am sorry I have not been able to perused myself to agree with the contentions of the learned counsel for the appellants. 9. The appointment of the appellant with respondent No. 1 was in the clerical cadre. He being appointed as an LDC in 1971, was entitled to promotion in the clerical cadre on the basis of his senority in the said cadre. It is not the case of the appellant that respondents No.2 and 3 were also working in the clerical cadre or that a joint seniority of clerical staff and the people working in the health department like respondents No.2 and 3 was maintained there.
It is not the case of the appellant that respondents No.2 and 3 were also working in the clerical cadre or that a joint seniority of clerical staff and the people working in the health department like respondents No.2 and 3 was maintained there. At this stage, it shall be relevant to refer to the reasoning given by the first appellate Court in para 18 and 19 of the impugned judgment which are extracted below : ** oknh us vius vfHkopu esa ;g O;Dr fd;k fd mldh fuq;fDr uxj fuxe Xokfy;j ls fuEu Js.kh fyfid ds in ij gqbZ Fkh rFkk mls fnukad 29-6-71 dks LFkkbZ fd;k x;k gSA fu;qfDr izek.k i= izn'kZ ih-1 gSA vkSj LFkkbZ gksus dk nLrkost izn'kZ ih 2 gSA bu lHkh nLrkostksa ls ;g Li"V gS fd oknh uxj fuxe Xokfy;j esa fuEu Js.kh fyfid ds in ij dk;Zjr FkkA oknh us vius U;k;ky; c;ku ds izfrijh{k.k iSjk 31 eas ;g Lohdkj fd;k gS fd fyfidh; laoxZ vkSj fpfdRlh; laoxZ vyx&vyx gksrs gS fyfidh; oxZ dh mPprj Js.kh dk;kZy; v/kh{kd vkSj mik;qDr gS tcfd fpfdRlh; laoxZ dh mPprj Js.kh iz/kku fpfdRlk vf/kdkjh gSA blus vius izfrijh{k.k ds iSjk 32 esa ;g Lohdkj fd;k gS fd og LokLF; foHkkx esa LFkkbZ :i ls dHkh mPp Js.kh fyfid o dk;Zokgd v/kh{kd ds in ij ugha jgkA fQj vkxs lk{; esa ;g dgk gS fd vius 30 fnu ls vf/kd LokLF; foHkkx esa dk;Z fd;k gSA oknh ds }kjk izn'kZ ih 22 dh ofj"Br lwph ;|fi fof/k ds vuqlkj U;k;ky; esa izekf.kr ugha djkbZ gS fdarq ,d iy ds fy;s okn }kjk izLrqr nLrkost dks eku Hkh fy;k tk;s rks blls ;g Hkh Li"V gS fd oknh fuEu Js.kh fyfid ds in ij inLFk gS vkSj izfroknh Ø- 2 o 3 vLukrd fpfdRld laoxZ esa gSA ,slh fLFkfr esa tc oknh fuEu Js.kh fyfid ds in ij inLFk gS vkSj fyfidh; oxZ vkSj fpfdRlh; oxZ nksuksa vyx&vyx gSA ,slh fLFkfr esa oknh ek= izfroknh Ø- 2 o 3 ls uxj ikfydk esa iwoZ ls ukSdjh djus ds vk/kkj ij ofj"Brk dh ik=rk ugha j[krk gSA bl vk/kkj ij oknh ofj"Brk ds vk/kkj ij gksE;ksiSfFk fpfdRld ds in ij inksUufr ikus dh vf/kdkjh ugha ik;k tkrk gSA** 10.
This Court is in complete agreement with the above reasoning given by the first appellate Court in the impugned judgment for denying promotion to the appellant to the post of homeopathic doctor as claimed by him in the suit. In the opinion of this Court, this second appeal does not raise any question of law much less a substantial question of law for decision by this Court. 11. In view of the foregoing, I do not find any merit in this appeal, which fails and is hereby dismissed but with no order as to costs.