JUDGMENT 1. This appeal under Section 100 of the Code of Civil Procedure is filed by the original defendant- State of Gujarat. 2. The respondent in this appeal- deceased Mulnarayan Popatlal Purohit (original plaintiff) filed Regular Civil Suit No.389 of 1983 for declaration and permanent injunction. It was the case of the plaintiff that the plaintiff was a permanent Government servant of the State and was appointed on 15.1.1951 as Surveyor and was promoted as District Surveyor on 28.2.1962, however reverted to the post of Surveyor on 6.6.1962 without any reason. It is further case of the plaintiff that about 100 juniors of the plaintiff were promoted and the promotion of the plaintiff was intentionally and prejudicially withheld. It is stated that the defendant never assigned any reason for not promoting the plaintiff nor the plaintiff was given any opportunity of hearing. Thus, the act of the defendant in not giving promotion to the plaintiff was illegal, unconstitutional, malafide and against the principles of natural justice. The plaintiff is entitled to promotion from 28.2.1962 as District Surveyor. The plaintiff has further stated that cause for the plaintiff to file the suit had arisen when he was compulsorily retired and when the suit was decreed against the challenge to the compulsory retirement on 17.9.1983 and when thereafter, the plaintiff was not given promotion. 3. The suit of the plaintiff was resisted by filing written statement at Exh.11, taking a specific plea that the suit was barred by law of limitation and the Court had no jurisdiction to decide the suit of the plaintiff. It is also stated in the written statement that the order of compulsory retirement was passed against the plaintiff but on account of pending appeal, the plaintiff was continued in service and he ultimately retired on 15.1.1984 taking voluntary retirement, therefore, the suit is also barred by the principle of Estoppel and laches and in such suit, the plaintiff is not entitled to any relief. It is further stated by the defendant that the plaintiff was communicated with adverse remarks in his Confidential Report and the case of the plaintiff was also considered, however, the plaintiff was not found fit for promotion. The plaintiff is thus not entitled to any relief in the suit. 4. It is further stated by the defendant that the plaintiff was communicated with adverse remarks in his Confidential Report and the case of the plaintiff was also considered, however, the plaintiff was not found fit for promotion. The plaintiff is thus not entitled to any relief in the suit. 4. On the basis of the pleadings, Trial Court framed following issues and answered against each of them as under:- “1) Whether the plaintiff proves that Junior person to him are promoted and he is single out and, therefore, order dated 17.10.83 is illegal ? 2) Whether the plaintiff proves that he is entitled to get promotion to the post of District Surveyor from retrospective effect i.e. dt. 28.2.62 ? 3) Whether the plaintiff is entitled for declaration and permanent injunction ? 4) Whether the suit notice is not legal and valid ? 5) Whether the suit is time barred ? 6) Whether the Civil Court has no jurisdiction to try the present suit? 7) Whether the defendants prove that the plaintiff has waived right of promotion, therefore, he is not entitled for any relief in the suit ? 8) What order and decree ? Trial Court answered the above issues as under:- 1) In the affirmative 2) In the affirmative 3) Yes, In the affirmative 4) In the negative 5) In the negative 6) In the negative 7) In the negative 8) As per final order. 5. On appreciation of the evidence, Trial Court came to the conclusion that the adverse remarks were not communicated to the plaintiff, except on one occasion, and that when the promotion was to be given on the basis of seniority, there was nothing to consider merit or de-merit of the plaintiff by the Selection Committee and to declare the plaintiff unfit for promotion. Trial Court thus allowed the suit and declared the act of the defendant of not giving promotion to the plaintiff from the post of Surveyor to the post of District Surveyor on the basis of seniority as illegal, unconstitutional, malafide, discriminatory and against the principle of natural justice. Trial Court directed the defendant to give benefit of promotion to the plaintiff with all consequential benefits from March 1966 within six months from the date of the order. 6. Being aggrieved by the judgment and decree of the Trial Court, the appellant-State of Gujarat preferred Civil Regular Appeal No.100 of 1987. Trial Court directed the defendant to give benefit of promotion to the plaintiff with all consequential benefits from March 1966 within six months from the date of the order. 6. Being aggrieved by the judgment and decree of the Trial Court, the appellant-State of Gujarat preferred Civil Regular Appeal No.100 of 1987. Learned Appellate Judge came to the conclusion that since the plaintiff was promoted as District Surveyor by order dated 28.2.1962, the plaintiff could be said to be found fit to be promoted and no reasons were coming forth for reverting the plaintiff from the post of District Surveyor to the post of Surveyor on 6.6.1962. Learned Appellate Judge further came to the conclusion that looking to the Rules for promotion, Selection Committee has to consider merits and de-merits of the plaintiff but since the plaintiff joined the service on 15.1.1951, his seniority was overlooked on number of times and number of persons juniors to the plaintiff were promoted as District Surveyors and therefore, the order reverting the plaintiff appeared to be illegal. Appellate Court further concurred with the findings and reasoning of the learned Trial Judge to the effect that the plaintiff was not communicated with adverse remarks and that the plaintiff was entitled to promotion on the basis of seniority as there was nothing to find that the plaintiff was positively unfit to be promoted as District Surveyor. On the above reasoning and conclusion, learned Appellate Judge dismissed the appeal by judgment and decree dated 21.1.1992. It is this judgment and decree of the learned first Appellate Judge which is under challenge before this Court in this appeal. 7. This appeal was admitted on the following substantial question of law: “Whether in the facts and circumstances of the case, the Courts below have erred in not dismissing the suit of the plaintiff on the ground that the Civil Court has no jurisdiction under Section 16 of the Gujarat Civil Services Tribunals Act, 1972 ?” This Court is of the view that the pleadings in the case and admitted evidence call for framing of two below mentioned additional substantial questions of law:- (1) Whether the plaintiff was entitled to any relief in his suit filed at belated stage on principles of delay and laches ? (2) Whether the Civil Court was competent to decide the legality or otherwise on the decision of Selection Committee on eligibility and merits of the plaintiff for promotion and to direct the defendant to give benefit of promotion with retrospective effect ? 8. In fact, learned Assistant Government Pleader Mr. Janak Raval also pointed out that the plaintiff was not entitled to any relief in the suit which was filed after more than 16 years and the Civil Court has no jurisdiction to sit in appeal over the decision of the Selection Committee, which found the plaintiff not fit for promotion and he requested to frame additional substantial questions of law. I have, therefore, heard learned advocate for the respondent-plaintiff for the purpose of framing the above two substantial questions of law. Learned advocate for the respondent submitted that since the appeal was admitted on the sole substantial question of law, this Court may not hear the appeal on any other substantial question of law. She submitted that from the facts of the case, no other substantial questions of law arise for consideration of this Court. 9. Having heard both the learned advocates for the parties, I am of the view that the above two additional substantial questions of law do arise for consideration of this Court for the following reasons: 9.1. It appears that the plaintiff was denied promotion in 1962 and in 1966, his juniors were promoted. The plaintiff still filed suit after more than 16 years. The plaintiff has also confirmed in his cross-examination that the criteria for promotion was on the basis of the seniority-cum-merit and the Selection Committee met for consideration of promotion. The defendant has in the written statement took up plea of limitation and also about consideration and rejection of the case of the plaintiff by the Selection Committee. Trial Court framed issues about limitation and about consideration of the case of the plaintiff for promotion by Selection Committee. I am, therefore, of the view that the case would certainly involve consideration of the above said two substantial questions of law. Accordingly, this appeal is also heard on the above-said two additional substantial questions of law. 10. I have heard learned advocates for the parties. 11. Learned Assistant Government Pleader Mr. I am, therefore, of the view that the case would certainly involve consideration of the above said two substantial questions of law. Accordingly, this appeal is also heard on the above-said two additional substantial questions of law. 10. I have heard learned advocates for the parties. 11. Learned Assistant Government Pleader Mr. Janak Raval appearing for the appellant- State submitted that pleadings in the case clearly depict that the case of the plaintiff was considered by the Selection Committee and that he was bypassed in the matter of promotion in the year 1966. He submitted that when the plaintiff himself in his evidence stated that he was due for promotion in the year 1962 and thereafter, he was bypassed in the matter of promotion when his juniors were promoted in the year 1966, the cause for the plaintiff had arisen in the year 1966 itself and therefore, the plaintiff was not justified in putting forth his claim of promotion at a belated stage after a period of 16 years. Learned Assistant Government Pleader submitted that not only the written statement clearly reveals that the promotion was on the basis of seniority-cum-merit but the plaintiff himself admitted in his cross-examination that the promotion was on the basis of seniority-cum-merit. He submitted that the case of the plaintiff for promotion was considered thrice by the Selection Committee and the Selection Committee found the plaintiff not fit for promotion to the higher post. He thus submitted that not only the suit of the plaintiff suffered by the principle of delay and laches but the Civil Court had also no jurisdiction to sit in appeal over the decision of the Selection Committee. He submitted that by allowing the suit and directing the defendant to give benefit of promotion to the plaintiff, the Civil Court has overstepped in its jurisdiction and therefore, this appeal is required to be allowed on the above-said two additional substantial questions of law. Learned Assistant Government Pleader also submitted that when the suit was filed in the year 1983, the Civil Services Tribunal was already functioning to decide cases of Government servants for promotion and therefore also, the Civil Court lacked jurisdiction in deciding the suit of the plaintiff. 12. Learned Assistant Government Pleader in support of his submission, has relied on the following authorities :- (1) In the case of K.V. Rajalakshmiah Setty and another Vs. 12. Learned Assistant Government Pleader in support of his submission, has relied on the following authorities :- (1) In the case of K.V. Rajalakshmiah Setty and another Vs. State of Mysore and Another reported in AIR 1967 SC 993 ; (2) In the case of H.P. State Electricity Board Vs. K.R. Gulati reported in (1998)2 SCC 624 , (3) In the case of Nani Sha and others Vs. State of Arunachal Pradesh and others reported in (2007)15 SCC 406 , (4) In the case of Rajinder Pal Singh Limba Vs. Suraj Bhan and others reported in (2008)14 SCC 679 , (5) In the case of High Court of Judicature of Patna Vs. Madan Mohan Prasad and others reported in (2011)9 SCC 65 , 13. As against the above arguments, learned advocate Ms. Mita Panchal appearing for the respondent- original plaintiff submitted that from the admitted evidence, it has clearly come out that the case of the plaintiff was time and again considered till he was ordered to be compulsorily retired in the year 1983 and since the plaintiff succeeded against the order of compulsory retirement, cause had arisen to the plaintiff to file suit in the year 1983. She submitted that when the case of the plaintiff was under consideration at different stages with other employees, the plaintiff was justified in filing the suit in the year 1983 when he was denied benefit of promotion. She submitted that wrong done to the plaintiff by denying promotion to him at every stage would be continuous cause of action for the plaintiff to file suit even after a period of 16 years. Ms. Panchal submitted that the plaintiff was never communicated with adverse remarks by the defendant and all throughout, the case of the plaintiff was prejudicially considered by the Selection Committee on the basis of adverse remarks and therefore, the Civil Court was justified to go into the merits or de-merits of the case of the plaintiff for the purpose of deciding, whether the plaintiff was entitled to be promoted or not. She thus submitted that in the facts of the case, the Civil Court was competent to grant relief to the plaintiff once the Civil Court has found that the plaintiff was fit for promotion and was illegally denied benefit of promotion. She thus urged to dismiss the appeal. 14. In support of her submissions, learned advocate Ms. She thus submitted that in the facts of the case, the Civil Court was competent to grant relief to the plaintiff once the Civil Court has found that the plaintiff was fit for promotion and was illegally denied benefit of promotion. She thus urged to dismiss the appeal. 14. In support of her submissions, learned advocate Ms. Panchal relied on the judgment of the Hon’ble Supreme Court in the case of Rajasthan State Road Transport Corporation and others Vs. Mohar Singh reported in (2008)5 SCC 542 to point out that since right accrued to the plaintiff under the Common Law, civil suit filed by the plaintiff was maintainable. 15. Having heard learned advocates for the parties and having perused the judgment and decree passed by the Courts below with Record and Proceedings of the case, it appears that the plaintiff was initially promoted to the post of District Surveyor in the year 1962 but within four months, he was reverted as the said promotion was provisional one. It further appears that the plaintiff based his claim for promotion in his suit only on seniority. It is his case that about 100 juniors to him were promoted bypassing his seniority. He has further stated that on many occasions, his juniors came to be promoted and lastly, on the basis of seniority list of 1.6.1983, many other juniors were also promoted. Thus, taking a base of last promotion given to the juniors in the year 1983, the plaintiff filed the suit in the year 1983 with a prayer to grant him promotion with all consequential benefits with effect from 28.2.1962 by declaring the act of the defendant of non-promoting him as illegal, unconstitutional, malafide and against the principles of natural justice. 16. In support of his case, the plaintiff has examined himself at Exh.17. The plaintiff in his cross-examination admitted that one of his immediate juniors, one Shri M.M. Pandya was given promotion in 1966. He also admitted that thereafter on 20.6.1972, his another junior namely Shri H.T. Zala was promoted and thereafter on 13.6.1973, one more junior to him namely Shri M.P. Vekaria was promoted. The plaintiff in the alternative demanded in the deposition that he should be given promotion at least from the date on which his above juniors were promoted. At this stage, the deposition of witness of the defendant at Exh.36 is also required to be considered. The plaintiff in the alternative demanded in the deposition that he should be given promotion at least from the date on which his above juniors were promoted. At this stage, the deposition of witness of the defendant at Exh.36 is also required to be considered. He stated that the case of the plaintiff was considered by the Selection Committee in the year 1972, 1976, 1980 and lastly in the year 1981. The said witness deposed that on all the occasions, the Committee did not find the plaintiff fit for promotion. The above consideration of the case of the plaintiff in the year 1972 if considered with admission of the plaintiff that his first immediate junior was promoted in the year 1966, it becomes abundantly clear that the plaintiff was deprived of the promotion in the year 1966 when his immediate junior Shri M.M. Pandya was given promotion and therefore, cause for the plaintiff for filing the suit for the benefit of promotion could be said to have arisen in the year 1966. Even thereafter also, the cause for the plaintiff had arisen for filing the suit for the benefit of promotion in the year 1972 and 1973 when other two juniors were promoted. The plaintiff did not think it fit to file the suit within a reasonable period thereafter. The suit filed by the plaintiff in the year 1983 was at a stage when the plaintiff was about to retire. As per the case of the plaintiff, the plaintiff was permitted to voluntarily retire in the year 1984. The above being admitted facts, the suit of the plaintiff clearly suffered by the principle of delay and laches. From the admitted facts, it clearly appears that the plaintiff raised his claim for promotion in the Civil Court at a very belated stage. Therefore, in my view, in such suit filed at belated stage, the plaintiff was not entitled to any relief. 17. At this stage, judgments on the question of denial of relief for belatedclaim are required to be referred: [1] In the case of K.V. Rajalakshmiah Setty (supra), the Hon’ble Supreme Court has held and observed in para 13 as under:- “13. There is also a good deal of force behind the contention that the appellants are guilty of laches. 17. At this stage, judgments on the question of denial of relief for belatedclaim are required to be referred: [1] In the case of K.V. Rajalakshmiah Setty (supra), the Hon’ble Supreme Court has held and observed in para 13 as under:- “13. There is also a good deal of force behind the contention that the appellants are guilty of laches. After the passing of the order of May 17, 1950, they should have made an application within a reasonable time thereafter. Merely because the Chief Engineer had espoused their cause and was writing letters from time to time to the State Government to do something for them did not mean that they could rest upon their oars if they were really being discriminated against. As we cannot hold that the appellants were entitled to any particular indulgence or concession, the only way of meting out equality to all surveyors who had been promoted to the cadre of Assistant Engineers would be to say that promotions should in all cases be effective from the date of the notification. This is obviously beyond our powers.” [2] In the case of H.P. State Electricity Board (supra), the Hon’ble Supreme Court has held and observed in para 9 as under:- “9. Coming now to the third question on the face of the impugned order the direction of the Tribunal to treat the respondent as having been promoted as a Stenographer with effect from 31st May, 1966 is wholly without jurisdiction inasmuch as such a direction could not have been given to the Board when the Board itself was not in existence on that date. Secondly, on that date the respondent was an employee of the State Government and the State Government was not a party to the proceedings before the Tribunal. Thirdly, the aforesaid direction has been given as one S.S. Kaushal who was junior to the respondent in his erstwhile post of Stenotypist got promotion to the post of Stenographer and that Shri Kaushal was not a party to the proceedings. Lastly, a cause of action, if at all, which arise on 31st May, 1966 could not have been assailed before the Tribunal by filing an application in the year 1992 and by allowing such belated and stale claim, would upset the entire cadre management and will not be in the interest of justice. Lastly, a cause of action, if at all, which arise on 31st May, 1966 could not have been assailed before the Tribunal by filing an application in the year 1992 and by allowing such belated and stale claim, would upset the entire cadre management and will not be in the interest of justice. Learned counsel for the respondent, therefore in course of hearing very fairly stated that the said direction of the Tribunal was probably not proper and we have, therefore, no hesitation in holding that the aforesaid direction is wholly unjustified and unsustainable in law and we accordingly quash the same.” [3] In the case of Nani Sha (supra), the Hon’ble Supreme Court has held and observed in para 17 as under:- “17. There is still one another reason for our concurring with the High Court's judgments. There cannot be any dispute that all through right from 1996 when the respondents were appointed till 2002, the appellants were working under them in capacity of the Range Forest Officers, the appellants came in those posts and started exercising the powers and duties of the post of ACF only from 2002. It would be, therefore, very unfair to allow the appellants to steal a march over the direct appointees under whom they worked practically for eight years. On this ground we concur with the High Court that at this point of time there would be no justification in upsetting the whole balance.” [4] In the case of Rajinder Pal Singh Limba (supra), the Hon ble Supreme Court has held and observed in para 14 as under:- “14. The Respondent No. 4 was under a fiduciary duty and was required to consider the name of appellants for promotion to the post of UDC in accordance with the statutory rule as and when the vacancy arose. Unfortunately, there was lapse on the part of the Respondent No. 4 due to which the case of the appellants for promotion could not be considered. At the same time it cannot be scored out that the appellants slept over their rights, which led to a considerable delay i.e. delay of 11-12 years on the part of the appellants to give representation for promotion to the grade of UDC. Delay defeats equity is a well-known principle of jurisprudence. At the same time it cannot be scored out that the appellants slept over their rights, which led to a considerable delay i.e. delay of 11-12 years on the part of the appellants to give representation for promotion to the grade of UDC. Delay defeats equity is a well-known principle of jurisprudence. Delay of 11 to 12 years cannot be overlooked when an applicant before the court seeks equity and specially in the case of service matters as in the said case it jeopardises the existing positions of a very large number of members of that service.” [5] In the case of High Court of Judicature of Patna (supra), the Hon’ble Supreme Court has held and observed in para 21 and 23 as under:- “21. However, there is no manner of doubt that the respondent No.1 is claiming promotions to different cadres from the post of Additional Munsif as well as promotional benefits from the due dates as were given to his juniors in the years 1971, 1974 and 1978. In C.W.J.C. No. 6538 of 1990 from which the present appeal arises the petitioner had claimed following relief in paragraph 20 of the writ petition : "It is therefore respectfully prayed Your Lordship may be graciously pleased to admit this Writ Petition and may be pleased to direct the respondent Nos. 1 and 2 to give all the service claims of this petitioner as given to his juniors during the period he was illegally kept out of service and adequate compensation for having ruined the career of petitioner as fully stated in paras 1 and 4 of this writ petition and may be pleased to pass such other order or orders as may be considered fit and proper". 23. There is no manner of doubt that claim of promotion made in C.W.J.C. No. 6538 of 1990 was stale one and could not have been entertained by the High Court. Further juniors to the respondent No.1 who were given benefits of promotion in the years 1971, 1974 and 1978 were not impleaded as respondents in the petition. In their absence, claim advanced by the respondent No.1 could not have been examined by the High Court. Further juniors to the respondent No.1 who were given benefits of promotion in the years 1971, 1974 and 1978 were not impleaded as respondents in the petition. In their absence, claim advanced by the respondent No.1 could not have been examined by the High Court. Thus, the impugned judgment is liable to be set aside on the ground that stale claim of promotions to different cadres was advanced by the respondent No.1 after great delay and that too without impleading his juniors. 18. As stated above, the plaintiff in the present case claimed promotion with retrospective effect from 1962 by filing the suit in the year 1983. Such being a very stale claim of the plaintiff for promotion, during which period, more than 100 juniors of the plaintiff came to be promoted, I am of view that the Courts below have materially erred in entertaining such a belated claim of the plaintiff and the suit of the plaintiff only on the ground of delay in approaching the Court was required to be dismissed. First additional substantial question of law is thus answered accordingly. 19. So far as the second additional substantial question as regards the Civil Court s power to decide the claim of the plaintiff for promotion is concerned, it is found from the evidence on record that the criteria for promotion was seniority-cum-merit. The plaintiff has also admitted in his cross-examination that promotion under the Rules was based on seniority-cum-merit. In spite of such admitted fact, the Courts below have allowed the suit by holding that the plaintiff, since was senior, was entitled to promotion when his juniors were promoted. Not only this but the Courts below have also discussed and considered the merits and de-merits of the case for the purpose of granting him relief of promotion. Trial Court has gone to the extent of observing that there was no question of considering the case of the plaintiff by the Selection Committee because not only the plaintiff was senior but the plaintiff was not communicated adverse remarks. Appellate Court has also observed that the plaintiff’s case was not found to be positively unfit for promotion and the plaintiff was required to be given promotion. Thus, from the findings and reasoning of the Courts below, it clearly appears that the Courts below have sat in appeal over the decision of the Selection Committee. Appellate Court has also observed that the plaintiff’s case was not found to be positively unfit for promotion and the plaintiff was required to be given promotion. Thus, from the findings and reasoning of the Courts below, it clearly appears that the Courts below have sat in appeal over the decision of the Selection Committee. When there is a clear evidence available on record that the case of the plaintiff was thrice considered by the Selection Committee and he was not found fit for promotion, the Civil Court was not competent to delve upon the correctness of the decisions of the Selection Committee. In my view, when the Selection Committee found the plaintiff not fit for promotion on three occasions, it was not open to the Civil Court to declare the plaintiff fit for promotion and to direct the defendant to give benefit of promotion with retrospective effect. The Courts below have thus overstepped in their jurisdiction in going into the merits of the case of the plaintiff for deciding the claim of the plaintiff for promotion and in holding that the plaintiff was fit to be promoted. Thus, second additional question of law is answered accordingly. 20. At this stage, decision cited by learned advocate for the respondent-plaintiff is required to be referred. In the case of Mohar Singh (supra), the Hon’ble Supreme Court has laid down that when a right accrues under Statute or a common law, employee has option to choose forum. In the said case, the Hon’ble Supreme Court was concerned with an issue, whether the Civil Court was competent to decide the dispute about dismissal of an employee of Rajasthan State Road Transport Corporation. Since the allegation by employee was as regards the principle of natural justice and violation of the Constitutional provision, the Hon’ble Supreme Court has held that an employee had right to opt for forum for agitating his grievance. We are not concerned with such issue in the fact situation of the present case. 21. Since this appeal is required to be allowed on additional two substantial questions of law, the substantial question of law whether the jurisdiction of the Civil Court was barred by virtue of Section 16 of the Gujarat Civil Services Tribunals Act, 1972 formulated at the time of admitting the appeal is not required to be considered. 22. For the reasons stated above, the appeal is allowed. 22. For the reasons stated above, the appeal is allowed. Judgment and decree passed by the Courts below are hereby quashed and set aside. (BCR) (Appeal allowed)