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2013 DIGILAW 694 (GUJ)

Bhadrayu C. Vachharajani v. Saurashtra University

2013-11-29

PARESH UPADHYAY

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JUDGMENT Paresh Upadhyay, J. 1. Heard Mr. Hemang R. Rawal learned Advocate for the appellant and Mr. A.R. Thacker for the contesting respondent-University. This Court (Coram: Hon'ble Mr. Justice N.V. Anjaria) had, vide order dated 26-3-2013 admitted this Second Appeal, on the following question of law: "(i) Whether in the facts and circumstances of the case when concededly in view of Sec. 8 of the Gujarat Universities Services Tribunal Act, 1993 the Civil Court had no jurisdiction to try the suit and the Court below having answered the said issue in affirmative, could still have gone into merits and still could have been given findings on controversy?" 2.1. Before the above question is considered and answered, the relevant facts are required to be noted, which are as under. 2.2. The present appellant was appointed by the Saurashtra University as Project Officer, vide order dated 30-6-1992. Pursuant to the said appointment order, when the appellant remained present to resume his duties, the University gave a communication dated 9-7-1992, that since there were only two posts of Project Officers and two persons were already working on those posts, the appointment given by the University to the appellant was erroneous, and therefore, the same was cancelled. 2.3. The above communication dated 9-7-1992 of the University and the action was challenged by the appellant in the Court of Senior Civil Judge, Rajkot by preferring Regular Civil Suit No. 695 of 1992. 2.4. The respondent-University filed written statement inter alia stating therein, that the appellant can join his duties. Under these circumstances, the plaintiff - the present appellant had joined the service as Project Officer on 3-11-1992. 2.5. There is no controversy with regard to the appellant being in continuous service of the University from 3-11-1992. 2.6. The appellant gave an application for voluntary retirement on 7-5-2013. The same was accepted by the Competent Authority and an office order came to be passed by the University on 8-8-2013 relieving the appellant from the service of the University with effect from 10-8-2013. 2.7. 2.6. The appellant gave an application for voluntary retirement on 7-5-2013. The same was accepted by the Competent Authority and an office order came to be passed by the University on 8-8-2013 relieving the appellant from the service of the University with effect from 10-8-2013. 2.7. One of the contentions of the University before the trial Court was to the effect that, the appellant-plaintiff being an employee of the University, in view of Sec. 8 of the Gujarat Universities Services Tribunal Act, 1983 (hereinafter referred to as "the said Act"), the said Tribunal had the jurisdiction and further that in view of Sec. 13 of the said Act, the jurisdiction of the Civil Court was barred. The trial Court framed the issue and one of the issues was to the effect as to whether it had jurisdiction to try the suit or not. 2.8. One of the issues framed by the trial Court (Issue No. 4) was, as to whether it had the jurisdiction to hear the suit. The said issue was answered in negative. 2.9. Other issues on merits were also framed by the Court and they are also answered on merits, including that the plaintiff - the appellant had no case on merits. 2.10. Thus, the trial Court on one hand held that it did not have the jurisdiction to try the suit, and at the same time it tried and decided the suit on merits against the plaintiff by the same judgment and order dated 14-12-2006. 2.11. Being aggrieved by the said judgment and order dated 14-12-2006 passed by the learned 4th Additional Senior Civil Judge, Rajkot in Regular Civil Suit No. 695 of 1992, the plaintiff had preferred the Regular Civil Appeal No. 22 of 2007 in the Court of District Judge, Rajkot, where the bone contention of the present appellant, was to the effect that, after having held that the trial Court did not have jurisdiction to try the suit, on merits of the matter the Court ought not to have observed anything. This contention is rejected by the appellate Court below, against which the present Second Appeal is filed under Sec. 100 of the Code of Civil Procedure, 1908. 2.12. This Court has formulated the substantial question of law which is quoted above. 3. This contention is rejected by the appellate Court below, against which the present Second Appeal is filed under Sec. 100 of the Code of Civil Procedure, 1908. 2.12. This Court has formulated the substantial question of law which is quoted above. 3. Learned Advocate for the appellant has contended that after having held that the trial Court did not have the jurisdiction, other issues on merits ought not to have been gone into. It is further contended that, in view of Sec. 13(2) of the said Act, the proceedings pending in the Civil Court i.e. the suit in question ought to have been transferred to the Tribunal. It is contended that, the question of law framed by this Court be answered in negative. Reliance is placed on the judgment of Hon'ble the Supreme Court of India in the case of R.S.D.V. Finance Co. Pvt. Ltd. v. Shree Vallabh Glass Works Ltd., reported in AIR 1993 SC 2094 . 4. On the other hand, Mr. Thacker learned Advocate for the respondent-University is not in a position to dispute the proposition of law that after having held that it did not have the jurisdiction to try the suit, the trial Court ought not to have examined and answered the issues on merits of the suit. 5.1. Having heard learned Advocates for the respective parties and having gone through the material on record, this Court finds that, the substantial question of law which is quoted above, does not have any substantial bearing so far, the service of the present appellant is concerned, in the facts which are stated above. The controversy before the Court was as to whether on the face of appointment order dated 30-6-1992, communication of the University dated 9-7-1992 was legal or not. Thus, it would have substantial bearing on the very entry of the appellant in the service of the University, however, it was indicated in the written statement of the defendant-University itself that it is open to the appellant to join the service of the University and as a matter of fact, he had joined the duty on 3-11-1992. Not only his service had started, he has completed his pensionable service of more than 20 years and he is also permitted to retire voluntarily with effect from 10-8-2013. Not only his service had started, he has completed his pensionable service of more than 20 years and he is also permitted to retire voluntarily with effect from 10-8-2013. Under above circumstances, the principal issue before the trial Court, even in the year 2006, was academic, since pursuant to the say of the University itself, the appellant had joined the service in the year 1992 itself. However, those aspects are not required to be gone into in this Second Appeal. 5.2. The issue formulated by this Court after having held that the suit was not maintainable where the trial Court was justified to go into the merits. Reliance is placed by the learned Advocate for the appellant on the judgment of Hon'ble the Supreme Court of India in the case of R.S.D.V. Finance Co. Pvt. Ltd. v. Shree Vallabh Glass Works Ltd., reported in AIR 1993 SC 2094 , and the same will apply with full force in the facts of this case as well. Reference can also be made to the judgment of this Court in the case of Dena Bank v. Jaswant N. Shah, Second Appeal No. 83 of 2012 dated 25-11-2013. Keeping this preposition of law in view that, it is clear that if the Court finds and holds that, it does not have jurisdiction to try the case, it is incompetent to go into the merits of the matter. In the present case, the trial Court has thus, committed an error in law, by rejecting the suit, being not maintainable as well as on merits both. After having held that, it does not have jurisdiction, trial Court was incompetent to go into the merits. The substantial question of law as quoted above, is therefore, needs to be answered in negative. For the reasons recorded above, this Court arrives at the judgment and passes order as under: (i) The substantial question of law, as quoted above, is answered in negative, by holding that, it was incompetent for the trial Court to go into the merits of the matter, after having held that, it did not have the jurisdiction. (ii) This Second Appeal stands allowed. (ii) This Second Appeal stands allowed. (iii) The judgment and order of the learned 4th Additional Senior Civil Judge, Rajkot, in Regular Civil Suit No. 695 of 1992 dated 14-12-2006, is upheld only to the extent that, it did not have the jurisdiction to hear the suit, however, the rest of the said judgment and order is quashed and set aside. (iv) The Civil Suit in question i.e. Regular Civil Suit No. 695 of 1992 in the Court of Senior Civil Judge, Rajkot, is ordered to be transferred to the Gujarat University Services Tribunal, Ahmedabad, in view of Sec. 13(2), read with Sec. 8 of the Gujarat Universities Services Tribunal Act, 1983. (v) The judgment and order of the appellate Court below i.e. learned 10th Additional District Judge, Rajkot, in Regular Civil Appeal No. 22 of 2007 dated 31-7-2012, stands modified accordingly. Decree be drawn accordingly. Appeal allowed.