[1] This appeal under section 100 of the Civil Procedure Code is at the instance of the original defendants against whom the respondent – original plaintiff has filed Civil Suit No.67 of 1988 for declaration and permanent injunction. The plaintiff prayed for declaration that the action of the defendants of not giving promotion to the plaintiff be declared as illegal and unconstitutional and that the plaintiff is entitled to get promotion to the post of driver. The plaintiff further prayed for permanent injunction restraining the defendants from acting upon and giving effect to the order of promotion passed by the defendants for the post of driver.
[2] It is case of the plaintiff that the plaintiff was appointed as Cleaner in the year 1969 and after his appointment, six persons named in the plaint were appointed as Cleaners and, therefore, the plaintiff being senior to those other Cleaners, was entitled to be promoted as driver. It is further averred that by passing the claim of the plaintiff, his junior employees working as Cleaners were given appointment on the post of driver. It is further case of the plaintiff that the selection and appointment to the post of driver was just a show made by a defendants, but the junior Cleaners who could manage with the department were preferred and given appointment as driver. On such allegation, the plaintiff prayed that the defendants be ordered to promote the plaintiff and give effect of such promotion with the date when other Cleaners were promoted to the post of driver.
[3] The suit was resisted by the defendants by filing written statement at Ex.61 stating therein that the persons named in the plaint by the plaintiff were not promoted but were selected for the post of driver and, therefore, it is not correct that the defendants have promoted other employees by overlooking seniority of the plaintiff. It is further stated that as a matter of fact, there is no seniority for filling up the post of vehicle driver. It is also stated that the plaintiff was not possessing requisite qualification for the post of vehicle driver. It is specific case of the defendants that the plaintiff was also called for interview for the purpose of appointment to the post of driver but he was not selected for the said post and the Civil Court has no jurisdiction to sit in appeal over the decision of the selection committee.
[4] Learned Trial Judge on the basis of the evidence on record came to the conclusion that by advertisement the vacant posts of drivers were decided to be filled in and applications were invited from the eligible candidates and pursuant to such advertisement, even the plaintiff was called for an interview by giving call letter dated 17.03.1987 at Ex.68 and the plaintiff was not selected and, therefore, there was no question of giving promotion to the plaintiff. Learned Trial Judge, thus, dismissed the suit by judgment and decree dated 30.04.1992.
[5] The plaintiff therefore filed Regular Civil Appeal No.25 of 1992. Learned Appellate Judge came to the conclusion that merely because the recruitment to the post of driver was made by selection i.e. by holding interview, the post of driver would not become selection post. Learned Appellate Judge further came to the conclusion that 1/4th vacancies for the post of driver were to be filled in by promotion and, therefore also, the post of driver could not be said to be selection post. Learned Appellate Judge also came to the conclusion that the plaintiff was holding requisite qualification for the post of driver and since the plaintiff was senior in the cadre of Cleaner, the plaintiff was entitled to be promoted as driver. The action of the defendants in not granting promotion to the plaintiff to the post of driver was, therefore, illegal. Learned Appellate Judge further observed that the Civil Court having not acted in conformity with the statutory provisions and there is infraction of fundamental principles of natural justice, it was for the Civil Court to assume jurisdiction and adjudicate upon the controversy involved in the suit. On above said conclusion, the learned Appellate Judge allowed the appeal of the plaintiff and quashed and set aside the judgment and decree passed by the learned Trial Judge and ordered the appellants – defendants to promote the plaintiff to the post of driver and to give him deemed date of promotion with his junior colleagues and to give all other consequential benefits in respect of his pay and other allowances. It is this judgment and decree which is under challenge before this Court in this appeal.
[6] I have heard learned advocates for the parties.
[7] Learned advocate Ms. Maya Desai for learned advocate Mr.
M.D. Pandya for the appellants submitted that from the record of the case, it clearly emerges that appointment to the posts of driver was made by direct recruitment. She submitted that the plaintiff himself had submitted an application pursuant to the advertisement given by the appellants for filling up the posts of driver by direct recruitment and pursuant to the application of the plaintiff, the plaintiff was called for interview. However, the Interviewing Committee did not select the plaintiff but selected other candidates who were found more suitable for the posts of driver. She submitted that the suit of the plaintiff was based on alleged right of the plaintiff for promotion but the same was not found supported by the evidence available on record. Learned Trial Judge, therefore, cannot be said to have committed any error in dismissing the suit of the plaintiff. She submitted that it was not even the case of the plaintiff in the suit that since the posts of driver under the Rules were to be filled in by two modes, one by promotion and another by direct recruits, and since there was no ratio maintained for filling up such posts between two modes, the defendants were liable to be directed to consider the plaintiff for promotion by adhering the ratio between two modes for filling up the posts of driver. She, therefore, submitted that learned Appellate Judge was not justified in overturning the findings and conclusion reached by learned Trial Judge without assigning any cogent reasons. She submitted that if the posts of driver were advertised and not filled in by promotion, suit filed by the plaintiff itself was baseless and therefore, in such a suit, learned Appellate Judge ought not to have gone into the merits or de-merits of the plaintiff’s case and recorded finding that the plaintiff was more suitable person for promotion to the post of driver. She submitted that learned Appellate Judge has misdirected himself by deciding the issues which were not germane to the controversy involved in the suit. She submitted that learned Trial Judge has thus overstepped his jurisdiction in holding that the plaintiff was entitled to be promoted to the post of driver and in the matter of promotion, the plaintiff was illegally bypassed. Learned Appellate Judge thus on such non-issues could not have issued direction to the appellants to straightway promote the respondent and to give him deemed date of promotion with other persons when other persons were selected for appointment by way of direct recruitment and not by way of promotion. Learned advocate for the appellants thus urged to allow this appeal and to quash and set aside the judgment and decree passed by the learned Appellate Judge.
[8] As against the above-said arguments, learned advocate Mr. Parmar for the respondent has submitted that the plaintiff has come out with a clear case that the plaintiff was though senior, his juniors were given promotion and the case of the plaintiff was illegally bypassed. He submitted that the plaintiff has been wrongly denied promotion to the post of driver though the plaintiff is fully eligible for promotion to the post of driver. Mr. Parmar submitted that learned Trial Judge has misdirected himself by holding that the posts of driver were selection posts. Such finding of learned Trial Judge is contrary to the Rules of the appellants because when the Rules provide for filling up the posts of driver by two modes, i.e. one by promotion and another by direct recruits, and when the plaintiff has been waiting for his turn for promotion as a senior employee, it was not open to the appellants to fill in the posts of driver by direct recruitment. He submitted that the plaintiff has clearly stated that just to bypass the claim of the plaintiff, another mode of filling up the posts of driver was adopted by the appellants to see that anyhow, juniors to the plaintiff could be accommodated on the posts of driver. He submitted that such illegal course of action taken by the appellants was rightly dealt with by learned Appellate Judge by holding that the appellants had committed illegality by giving appointment to the juniors of the plaintiff, that it was the plaintiff who was entitled for promotion to the post of driver. Mr. Parmar further submitted that learned Appellate Judge, being the first Appellate Court, had all powers to re-appreciate the evidence available on record and on appreciation of the evidence, when learned Appellate Judge found that the plaintiff was meritorious and was eligible for promotion to the post of driver and when learned Appellate Judge on consideration of the Rules of the appellants, has found that the post of driver is to be filled in by way of promotion, no error in the judgment and decree passed by learned Appellate Judge could be found. He thus urged to dismiss the appeal.
[9] This appeal was admitted by order dated 20.01.1995 on the following substantial questions of law.
(1) Whether the Civil Court is competent to go behind and sit in appeal over the selection process made by the competent authority wherein all eligible candidates including the plaintiff was considered for promotion ?
(2) Whether the Court below erred in overlooking the plaintiff’s admission which shows that even if the post to be filled up as Seniority-Cum-Merit, he did not qualify on merits and could not be qualified ?
(3) Whether the Court below has erred in law in not appreciating the condition and requisites of a selection post and misread and misinterpreted the Clause 4A of Ch.1 in so far as criteria for appointment is concerned ?
[10] I have perused the judgment and decree passed by both the Courts below with Record & Proceedings. The suit of the plaintiff is based on the belief of the plaintiff that the post of driver was filled in by way of promotion and he was bye-passed by filling the post by promotion and his juniors were given promotion. The claim is, therefore, to get promotion on the post of driver. As against this claim, the defendants have come out with the documentary evidence to point out that the posts of driver, were advertised pursuant to which even the plaintiff had made application and was called for an interview and, therefore, the posts were not filled in by way of promotion but it was by way of selection and the claim of the plaintiff could not be said to be bye-passed. The call letter of the plaintiff is found at Ex.68 and the selection list prepared after the interview is found at Ex.71. The marks were given in interview were also produced on record by way of documentary evidence at Ex.88 to 91. From the above said documents, it clearly appears that the posts of driver were not filled in by way of promotion. Learned Appellate Judge, however, by referring to Clause IV-A of the Recruitment Procedure observed that the vacancies in the cadre of drivers were to be filled in by different modes. However, it was for the defendants to decide which mode was to be first adopted. It is required to be noted that it is not case of the plaintiff that the ratio between direct recruits and promotes for the post of driver is not maintained. Therefore, the learned Appellate Judge ought not to have considered the issue about the filling the post by adopting the mode of promotion. The record of the case clearly reveals that the posts were advertised, and the plaintiff and other persons participated in the selection. There is no illegality pointed out in the process of selection and the plaintiff is not found suitable during selection process for the post of driver. Such being the proved facts emerging from the record of the case, in my view, the learned Trial Judge has rightly dismissed the suit of the plaintiff. The learned Appellate Judge has also materially erred by going beyond the issues involved in the case by observing that the plaintiff was complying with the requisite qualification and he was eligible to be considered for promotion to the post of driver and he was senior for being considered for promotion to the post of driver and he was illegally bye-passed for promotion to the post of driver. The findings and observations made by learned Appellate Judge, in my view, are on misreading of the documentary evidence available on record and by taking irrelevant material in to consideration as regards the mode of filling up the post of driver as per the Recruitment Rules. Thus, the learned Appellate Judge has overstepped his jurisdiction by interfering with the judgment and decree passed by the learned Trial Judge.
[11] It is well settled principles of law that the Civil Court is not competent to sit in appeal over the decision of the selection process unless gross violation of provisions of law or of constitutional provisions was pointed out. Even if the plaintiff was eligible for being considered for the post of driver, once the selection committee of the defendants undertook the process of selection in objective manner and once the plaintiff who participated in the selection was not found eligible for the post of driver, it is not open to the Civil Court to decide the legality or otherwise as regards the selection committee as if the Civil Court deciding such issue by sitting in appeal. One more fact is required to be noted and the same is that the promotion was not simply on the basis of seniority, but on Seniority-Cum-Merit. Therefore, even if the plaintiff was taken to be senior then also his merits and demerits were required to be judged by the selection committee and the plaintiff was not entitled to get the promotion on the basis of his seniority alone. The plaintiff has not proved that he would be entitled to get promotion on the basis of the criteria of the Seniority-Cum-Merits because for the purpose of giving promotion, the merits of the candidates are required to be judged by the selection committee and unless such function is duly carried out by the selection committee for the purpose of promotion, candidate, like plaintiff, is not entitled straightway to promotion. Therefore, looking from the angle of criteria for promotion to the post of driver, the learned Appellate Judge could not have gone into the appreciation of the merits of the plaintiff and then to come to the conclusion that the plaintiff was entitled to get promotion to the post of driver. Learned Appellate Judge has, thus, exceeded his jurisdiction in holding that the post was not selection post and the plaintiff was eligible and entitled to be promoted and non-granting of promotion to the plaintiff by the defendants was illegal.
[12] In view of the above, the substantial questions of law formulated are answered accordingly. The appeal is, therefore, required to be allowed and the judgment and decree passed by the learned Appellate Judge is required to be quashed and set aside and the judgment and decree passed by the learned Trial Court is required to be restored.
[13] Accordingly, the appeal is allowed. The judgment and decree passed by the learned Appellate Judge is quashed and set aside and the judgment and decree passed by the learned Trial Court is restored.
(C.L.SONI, J.) vijay