Civil Judge No Paschim Gujarat Vij Co Ltd Thro vs D J Kapadi & 4 ­ Defendants

1.0 Present Second Appeal under Section 100 of the Code of Civil Procedure has been preferred by the appellant herein­original defendant to quash and set aside the impugned judgment and decree passed by the learned 3rd Joint Civil Judge (S.D.), Junagadh dated 7.4.2005 passed in Regular Civil Suit No.443 of 1999 as well as the impugned judgment and order passed by the learned District Judge, Junagadh dated 26.3.2007 passed in Regular Civil Appeal No.63 of 2006 by which, the learned Appellate Court has dismissed the said appeal confirming the judgment and decree passed by the learned trial Court and learned Appellate Court directed the appellant herein­original defendant to operate the select list dated 6.5.1993 and to appoint the plaintiffs on the post of Meter Tester.

2.0 That the respondents herein original plaintiffs were working with the appellant herein­original defendant as helper. It appears that the applications were invited for the post of Meter Tester­ Grade III from the eligible candidates inclusive of helpers who were serving with the appellant and pursuant to the same, the original plaintiffs also applied. That the defendant ­Gujarat Electricity Board prepared the select list on 6.5.1993 of 50 candidates. It is to be noted that as such, as per the rules of the Gujarat Electricity Board the validity of the select list is only for one year. Still for whatever reasons the appellant­original defendant operated the select list upto the year 1999 i.e. upto the candidate at Serial No.18. It appears that in view of the subsequent development of constituting two different circles, it was decided to have fresh selection and therefore, the original defendant took a decision not to further operate select list and to invite applications afresh and at that stage the original plaintiffs instituted Regular Civil Suit No.443 of 1999 in the Court of learned Civil Judge, Junagadh directing the defendant to operate the select list prepared on 6.5.1993 and to appoint them on the post of Meter Tester along with its consequential benefits like salary, allowances and seniority. That by judgment and decree dated 7.4.2005 the learned 3rd Civil Judge, Junagadh decreed the suit declaring that the plaintiffs are entitled to get appointment as per select list prepared on 6.5.1993 on the post of Meter Tester along with its consequential benefits i.e. salary, allowances and seniority and consequently directed the defendant to give appointment to the plaintiffs on the post of Meter Tester serial wise from select list. The learned trial Court also granted permanent injunction restraining the defendant to prepare new select list instead of giving appointment to the plaintiffs as per the previous selection list and also restrained the defendant from cancelling the selection list.

2.1. That being aggrieved and dissatisfied with the judgment and decree passed by the learned trial Court, the appellant­herein original defendant preferred Regular Civil Appeal No.63 of 2006 before the District Court, Junagadh and though the learned Appellate Court observed in para 15 that the order passed by the learned trial Court grating consequential benefits like salary, allowances and seniority to the plaintiffs is erroneous and is set aside and though it was observed that Court cannot direct to give appointment still learned Appellate Court dismissed the said appeal by directing the defendant to appoint the candidates in accordance with selection list dated 6.5.1993.

2.2. Being aggrieved and dissatisfied with the judgment and decree passed by both the Courts below, the appellant herein­ original defendant has preferred present Second Appeal under Section 100 of the Code of Civil Procedure.

3.0. Shri Sinha, learned advocate for the appellant­original defendant has vehemently submitted that both the Courts below have materially erred in decreeing the suit and directing the appellant­original defendant to operate the select list dated 6.5.1993. It is submitted that the direction issued by the learned trial Court as well as learned Appellate Court to operate the select list and to appoint the candidates from the select list are contrary to the law laid down by the Hon'ble Supreme Court in catena of decisions. It is submitted that when select list was prepared in the year 1993 and when the suit was filed in the year 1999 i.e. after a period of 6 years of preparing select list, even otherwise the learned trial Court could not have been directed to operate the select list after a period of six years. It is further submitted that as such, as held by the Hon'ble Supreme Court and this Court in catena of decisions, persons included in the select list does not acquire any right to get the appointment. It is further submitted that as such, in the present case as per the recruitment rules validity of the select list was only for one year, still for whatever reasons the original defendant continued and / or operated the select list even upto 1999, which in fact was illegal. It is further submitted that in the year 1999 in view of the change circumstance and bifurcation of the circles, a conscious decision was taken to scrap earlier select list and to prepare the fresh selection list and therefore, earlier select list was cancelled and / or not to operate, the learned trial Court was not justified in directing to operate the select list and issuing further direction directing appellant­defendant to appoint them by operating select list. It is submitted that relief which is granted by the learned trial Court as well as learned Appellate Court is beyond jurisdiction of Civil Court. Under the circumstances, it is requested to allow present Second Appeal.

3.1. Shri Sinha learned advocate for the appellant­original defendant has submitted that as on today one of the plaintiff had already attained the age of superannuation and so far as other plaintiffs are concerned, they are already promoted on the other higher post even higher than Meter Tester.

4.0 Shri Anshin Desai, learned advocate for the respondent has tried to oppose the present Second Appeal by submitting that as such there are concurrent findings of fact given by both the Courts below that there was no justification not to operate the select list and more particularly, when the same was operated even upto 1999. Therefore, it is submitted that as such no illegality has been committed by the learned trial Court directing the defendant to operate the select list and to appoint the plaintiffs on the post of Meter Tester. By making above submissions, it is requested to dismiss the present Second Appeal.

5.0 Heard the learned advocates for the respective parties. At the outset, it is required to be noted that original plaintiffs instituted suit before the learned trial Court for declaration and permanent injunction and directing the defendant to operate the select list dated 6.5.1993 and consequently to appoint the plaintiffs on the post of Meter Tester. It is to be noted that the select list was prepared in the year 1993 and despite the fact that under relevant Recruitment Rules, the validity of the select list was only for one year, still the defendant continued to operate the select list upto 1999. It is also required to be noted due to bifurcation of the circles, a decision was taken to scrap and / or not to further operate the select list dated 6.5.1993 and to prepare the fresh select list. As per the catena of decisions of the Hon'ble Supreme Court as well as this Court the select list cannot be operated and / or permitted to be operated for longer period otherwise it will affect the other eligible candidates who were not eligible at the relevant time when the select list was prepared and who have become eligible thereafter. Consistently the Hon'ble Supreme Court as well as this Hon'ble Court in catena of decisions has held that the person included in the select list does not acquire any right to appoint and as such no direction can be granted to the employer to operate the select list. In the present case, when the select list was prepared in the year 1993 and as per the Recruitment Rules the validity of the select list was only for one year, learned trial Court ought not to have directed the defendant to operate the select list and to operate the select list in the year 2005, which was prepared in the year 1993. The Civil Court has no such jurisdiction to grant declaration and directing the defendant to operate the select list which was prepared before 12 years. Even learned trial Court could not have granted the permanent injunction restraining the defendant from canceling the select list and / or making any change in the select list and / or restraining the defendant from appointing any other person on the post of Meter Tester­Grade III instead of selected candidates. Therefore, decree passed by the learned trial Court is wholly without jurisdiction and even on merits also the said could not have been issued.

5.1. Now, so far as impugned judgment and order passed by the learned Appellate Court dismissing the appeal, it appears that despite the learned Appellate Court has observed in para 15 that the order passed by the learned trial Court granting consequential benefits like salary, allowances and seniority to the plaintiffs is erroneous and despite the finding of fact given by the learned Appellate Court that the Court cannot direct to give appointment still the learned Appellate Court has dismissed the said appeal and has directed the defendant to appoint the candidates in accordance with select list dated 6.5.1993. The operative portion of the impugned judgment and order passed by the learned Appellate Court are self contradictory and contrary to the findings given by the learned Appellate Court. Under the circumstances, impugned judgment and order passed by the learned Appellate Court cannot be sustained and same deserves to be quashed and set aside.

5.2. It is to be noted that as reported by Shri Sinha, learned advocate for the appellant ­original defendant, one of the plaintiffs has already retired on attaining the age of superannuation on 31.4.2009 and in fact he was already promoted on the higher post other than the post of Meter Tester. It is also reported that so far as other plaintiffs are concerned, they are also promoted to the higher post other than the post of Meter Tester­Grade III and are drawing higher grade,

6.0 In view of the above and for the reasons stated above, present Second Appeal succeeds and the impugned judgment and decree passed by the learned 3rd Joint Civil Judge (S.D.), Junagadh dated 7.4.2005 passed in Regular Civil Suit No.443 of 1999 as well as the impugned judgment and order passed by the learned District Judge, Junagadh dated 26.3.2007 passed in Regular Civil Appeal No.63 of 2006 are hereby quashed and set aside. No costs.

“kaushik”.

sd/­ ( M. R. Shah, J. )