1.00. Present Second Appeal under section 100 of the Code of Civil Procedure has been preferred by the appellant - original defendant No.1 - District Panchayat, Junagadh to quash and set aside the impugned judgement and decree dtd.7/2/1991 passed by the learned 3rd Joint Civil Judge (S.D.), Junagadh in Regular Civil Suit No. 520 of 1988, by which the learned trial court decreed the suit preferred by the respondent No.1 herein - original plaintiff and declared that the plaintiff is entitled to get promotion as Public Health Nurse (hereinafter referred to as "the PHN" for short) on one of the posts out of two posts in Junagadh District Panchayat by replacement of unqualified ad-hoc appointee - defendant No.3 and also ordered and directed to release the claim of the plaintiff as PHN from the date the plaintiff resumed the duties after return from the training. That the appellant - original defendant No.1 has also challenged the impugned Judgement and Order dtd.9/7/1999 passed by the learned appellate court - District Judge, Junagadh in Regular Civil Appeal No. 86 of 1991 by which the learned appellate court has dismissed the said appeal preferred by the appellant No.1 and one another, by confirming the judgement and decree passed by the learned trial court decreeing the suit.
2.00. That the respondent No.1 herein - original plaintiff instituted Regular Civil Suit No.520 of 1988 against the appellant and respondent Nos.2 and 3 - original defendants in the court of learned Civil Judge (S.D.), Junagadh for declaration and permanent injunction to declare that the plaintiff is entitled to promotion on the post of Public Health Nurse contending inter-alia that at the relevant time she was the only eligible candidate for promotion on the post of PHN having requisite training and therefore, was entitled to promotion on the post of PHN. It was the case on behalf of the plaintiff that though she was the only eligible candidate for promotion to the post of PHN, unqualified person continued on the post of PHN - defendant No.3 and therefore, it was requested to decree the suit.
3.00. That the defendant Nos.2 and 3 resisted the suit by filing Written Statement at Ex.14. It was submitted that the plaintiff was not a qualified nurse for appointment but she received training in 1987. It was the case on behalf of the defendants that on examination/training, there is no automatic promotion and has no right to promotion but has to prove eligibility according to the rules. It was also the case on behalf of the defendants that as such at the relevant time the plaintiff was offered ad-hoc promotion but she refused and therefore, defendant No.3 was given ad-hoc promotion.
4.00. That the learned trial court framed Issues at Ex.36. The parties have chosen not to give oral evidence. Both the sides led documentary evidence which was exhibited and thereafter, after considering the submissions made on behalf of the respective parties, the learned Joint Civil Judge (S.D.), Junagadh by impugned judgement and decree dtd.7/2/1991 decreed the suit granting declaration that the plaintiff is entitled to get promotion as PHN on and from the date she was returned from training and also granted consequential benefits.
5.00. Being aggrieved by and dissatisfied with the judgement and decree passed by the learned 3rd Joint Civil Judge (S.D.), Junagadh in Regular Civil Suit No.520 of 1988 dtd.7/2/1991, the appellant - original defendant No.3 jointly preferred Regular Civil Appeal No. 86 of 1991 and the learned Principal District Judge, Junagadh by his impugned Judgement and Order dtd.9/9/1999 has dismissed the appeal confirming the judgement and decree passed by the learned trial court.
Being aggrieved by and dissatisfied with the Judgement and Order passed by both the courts below, appellant - original defendant No.1 - District Panchayat, Junagadh has preferred the present Second Appeal under section 100 of the Code of Civil Procedure.
6.00. Mr.Dhiren Mehta, learned advocate appearing for Mr.P.V. Hathi, learned advocate appearing on behalf of the appellant has vehemently submitted that as such the learned trial court has materially erred in passing the decree virtually directing the appellant to promote the plaintiff on the post of PHN. It is submitted that the judgement and decree passed by the learned trial court is without jurisdiction as the learned trial court has no jurisdiction to direct the defendants to promote the original plaintiff. It is submitted that as such merely because the plaintiff was eligible for promotion as she was having training, she was not entitled to get promotion automatically on the post of PHN. It is submitted that as per the Draft Rules, the post of PHN was required to be filled in by promotion on the post of Seniority-cum-Merit. It is submitted that as such the learned Civil Judge could have directed the employer to reconsider the case for promotion only, but in no case can straightway direct an employer to promote an employee. Therefore, it is submitted that both the courts below have materially erred in directing the defendant to promote the plaintiff on the post of PHN from the date on which she completed training and she became eligible for promotion to the post of PHN.
7.00. Mr.Champaneri, learned advocate appearing for Mr.Ashish Shah, learned advocate appearing on behalf of the plaintiff has tried to oppose the present Second Appeal by submitting that as such at the relevant time, the plaintiff was the only eligible candidate for promotion to the post of PHN and despite the same the defendant did not promote and granted promotion to the plaintiff on the post of PHN and on the contrary continued unqualified persons. Therefore, it is submitted that the learned trial court has not committed any error and/or illegality in directing the defendant Nos.1 and 2 to promote the plaintiff on the post of PHN and to grant all consequential benefits as PHN from the date after she completed training. Therefore, it is requested to dismiss the present Second Appeal.
8.00. Heard the learned advocates appearing on behalf of the respective parties.
9.00. At the outset, it is required to be noted that the original plaintiff instituted suit for declaration and permanent injunction that she was entitled to promotion on the post of PHN from the date on which she completed training and became eligible for promotion on the post of PHN and that at the relevant time she was the only employee who was having requisite training and was qualified and eligible for promotion on the post of PHN. On the other-hand, it was the case on behalf of the defendant Nos.1 and 2 that merely because she got training, she was not entitled to promotion on the post of PHN. As per the defendants as per Draft Rules, promotion on the post of PHN was to be given on the basis of seniority-cum-merit. By the impugned judgement and decree the learned trial court has virtually directed the defendant Nos.1 and 2 to promote the plaintiff on the post of PHN and grant all other consequential benefits as PHN from the date on which she completed training i.e. from the date on which she became eligible for the post of PHN. The aforesaid direction issued by the learned trial court confirmed by the learned appellate court, cannot be sustained. As per the settled proposition of law laid down by the Hon'ble Supreme Court as well as this Court, Court cannot direct an employer to grant promotion. At the most, Court can direct employer to reconsider the decision in light of the observations and to reconsider the case for promotion. Court has no jurisdiction to direct an employer to appoint and/or promote a particular employee. Under the circumstances, the impugned judgement and decree passed by the learned trial court confirmed by the learned appellate court by which the learned trial court directed and granted declaration that the plaintiff is entitled to promotion on the post of PHN on completion of training and to grant consequential benefits cannot be sustained, as the same is without jurisdiction.
10.00. Merely because the plaintiff was eligible for promotion that does not mean that automatically she is to be granted promotion. It appears from the record and evidence on record that even at the relevant time the plaintiff was offered temporary / ad-hoc promotion, however, she refused and thereafter defendant No.3 was continued as PHN on temporary / ad-hoc basis.
11.00. In view of the above and for the reasons stated above, present Second Appeal succeeds in part. The impugned judgement and decree dtd.7/2/1991 passed by the learned 3rd Joint Civil Judge (S.D.), Junagadh in Regular Civil Suit No. 520 of 1988, confirmed by the impugned Judgement and Order dtd.9/7/1999 passed by the learned appellate court - District Judge, Junagadh in Regular Civil Appeal No. 86 of 1991 is hereby modified to the extent directing the appellant herein to reconsider the case of the original plaintiff for promotion on the post of PHN considering the fact that at the relevant time she was the only eligible candidate for promotion on the post of PHN and to reconsider her case in light of the Rules / Draft Rules in force. The aforesaid exercise shall be completed within a period of three months from the date of receipt of the present order. It goes without saying that if ultimately it is held by the appellant - District Panchayat, Junagadh that the respondent No.1 herein - Smt.Ramaben Bondale was entitled for promotion on the post of PHN on and from the particular date, she will be entitled to all consequential benefits from such date and for which necessary calculation be made thereafter and the same be paid to the aforesaid respondent - original plaintiff at the earliest. Present Second Appeal is allowed to the aforesaid extent. In the facts and circumstances of the case, there shall be no order as to costs.
[M.R. SHAH, J.] rafik Top