The present Second Appeal has been filed by the Appellant - Rajkot Municipal Corporation posing the substantial questions of law as follows, on the grounds mentioned in the memo of the Second Appeal:
(1) Whether the learned Judge committed a substantial error of law in interpreting the provisions of the Bombay Provincial Municipal Corporations Act, particularly Section 465(3) and Section 4 of Chapter III of the said Act, while confirming the judgment and decree of the trial Court?
(2) Whether the learned Judge committed a substantial error of law in relying upon Rule 115(7)(c) framed by the then Rajkot Municipality and the Resolution Exh.50 of the Standing Committee for holding that the order of promotion of the respondent - plaintiff dated 31st July, 1980, was valid?
(3) Whether the learned Judge committed a substantial error of law in not holding that Rule 115(7)(c) or the Resolution of the Standing Committee were inconsistent with the provisions of the Bombay Provincial Municipal Corporations Act and therefore the promotion of the Respondent - Plaintiff was not saved in any manner and that therefore his reversion was justified?
(4) Whether the learned Judge committed a substantial error of law in holding that the order dated 16th February, 1979, issued by the Commissioner was illegal and ineffective and was void?
The facts of the case briefly summarised are that the Respondent - Original Plaintiff filed Regular Civil Suit No. 803 of 1979 before the Court of learned Civil Judge (S.D.), Rajkot, challenging the order dated 16.2.1979 issued by the Commissioner as illegal and in violation of natural justice.
On appreciation of evidence and after hearing the learned advocates for the parties, the suit was decreed vide judgment and order dated 1.2.1983 declaring that the order dated 16.2.1979 reverting the Plaintiff to the post of Clerk is illegal. The said judgment was carried in appeal by the Appellant - Original Defendant - Rajkot Municipal Corporation by way of Civil Appeal No.41 of 1983 before the first Appellate Court (District Judge, Rajkot). On re-appreciation of evidence and after hearing the learned advocates for the parties, the first appellate court dismissed Civil Appeal No. 41 of 1983 vide judgment and order dated 29.3.1985, confirming the judgment and order passed by the trial court, and therefore, the present Second Appeal has been preferred posing the substantial questions of law as set out in the memo of Second Appeal.
Learned Counsel Mr. P.V.Hathi for the Appellant referred to the details and evidence and submitted that the Respondent - Original Plaintiff was promoted to the post of Accountant on 1.8.1978 on probation for a period of 6 months. The case of the Plaintiff is that on expiry of period of probation he is confirmed, and therefore, the office order dated 16.2.1979 (Exh.52) passed by the Petitioner - Rajkot Municipal Corporation, reverting him, is bad and illegal. Learned Counsel Mr. Hathi submitted that the court had passed the interim order and thereafter the same was effected. Learned Counsel Mr. Hathi submitted that the reliance is placed by both the courts below on Rule 115(c) of the Borough Municipality Act. Learned Counsel Mr. Hathi submitted that the said Rule will not have any application as the Bombay Provincial Municipal Corporations Act ("BPMC Act" for short) had come into existence and the appointment and promotion could not be made as per the BPMC Act. He further submitted that, therefore, there is a grave error committed by both the courts below in appreciating the fact that Rule 115(c) of the Borough Municipality Act would not be attracted at all.
Learned Counsel Mr. Hathi further submitted that, again, both the courts below have committed an error in not appreciating the provisions of the BPMC Act contrary to the provisions contained in Rule 4 Chapter III of the said Chapter, which provide:
"No person can be appointed to any post unless he posses the qualifications specified for the post."
Learned Counsel Mr. Hathi referred to the qualifications which have been prescribed for the post and submitted that though it has been referred to in the judgment of the first appellate court in paragraph 18, it has misdirected in appreciating the said provision. Learned Counsel Mr. Hathi submitted that, on the basis of this Rule, the first appellate court has made an observation:
"A bare look on the abovesaid provision of law goes to show very clearly that when a person is appointed by any other authority than the Corporation, he cannot be appointed except in a temporary or provisional capacity for a period of six months unless he possesses the requisite qualification specified in the regulations."
Learned counsel Mr. Hathi relying on this, submitted that this is totally an erroneous approach in interpreting this Rule, as the first appellate court has committed an error in coming to the conclusion that standing committee has not framed the Rules for requisite qualification, and therefore, it will not have any application. He submitted that infact the qualifications have been prescribed, which is approved by resolution of the standing committee, and for that purpose, he referred to Exh.51, and submitted that, it is very clearly stated that the appointment was on probation, and on completion of period of probation, one would not automatically get confirmed, unless there is a specific rule. Therefore, he continues on probation until a specific order for confirmation is passed on completion of period of probation. Learned counsel Mr. Hathi also referred to the order dated 31.7.1978 and submitted that, it clearly refers to the fact that though he is not having the requisite qualification, infact charge was given for the post of Accountant. He therefore submitted that the question of long term appointment or continuation arose, and therefore, as per the order (Exh.57) dated 31.7.1978, was given promotion on probation for a period of 6 months with a clear stipulation that it will be subject to his performance, and if the performance during probation is not found satisfactory, he could be reverted to the original post or he could be posted on any equivalent post. Learned Counsel Mr. Hathi further emphasized referring to the order Exh.57 dated 31.7.1978 that it is made very clear that this order is subject to the provisions of BPMC Act and the Rules made thereunder. Learned Counsel Mr. Hathi, therefore, submitted that, what would be appreciated is, the provisions of BPMC Act and the Rules made thereunder and not Section 115(c) of the Borough Municipality Act, which has not been appreciated by both the courts below. He has also referred to the order dated 31.7.1978 (Exh.58) and submitted that it makes it very clear that on expiry of period of probation, he has been reverted to the same post on which he was having lien (substantive post). However, till such promotional post like the post of Accountant is filled up by following the recruitment procedure for administrative purpose, an additional charge of the post of Accountant has been given. Leaned Counsel Mr. Hathi therefore submitted that he cannot claim as a right that on expiry of period of 6 months of probation, it is deemed to have been confirmed. Learned Counsel Mr. Hathi Referred to Exh.83, which is a Schedule showing qualifications for the post of Accountant. He submitted that it is evident that this is a Revised Establishment Schedule 1967-68 and the qualification prescribed is B.Com with 2 years experience or Arts and Science Graduate with 5 years experience in accountancy work. Learned counsel Mr. Hathi therefore submitted that both the courts have utterly failed to appreciate this aspect that a person who is appointed on probation cannot claim to be confirmed on expiry of period of probation unless the Rules or the appointment order specifically provide. He submitted that on the contrary the order of appointment clearly provide that it is subject to the conditions mentioned therein. Learned counsel Mr. Hathi submitted that after the period of probation, on the contrary, the subsequent order dated 16.2.1979 (Exh.58) clearly provide that he is reverted to the substantive post and in order to see that the administrative work is not suffered, for the administrative reasons, additional charge is given. Learned Counsel Mr. Hathi submitted that this fact has not been appreciated. He further submitted that Exh.57 also makes it very clear that the appointment on the higher post of Accountant was on probation and the order itself mentions that it is subject to the provisions of BPMC Act. Learned Counsel Mr. Hathi submitted that if the BPMC Act was applicable there is no question of applying Section 115(c) of the Borough Municipality Act. He therefore submitted that this is a fundamental error which has been committed ignoring the basic principle with regard to probation and which has lead to passing of the order. He therefore submitted that though the scope of Second Appeal is limited nevertheless the court can examine such gross error of misconception committed by both the courts below in applying the correct law, and therefore, the present Second Appeal may be allowed. He referred to and relied upon the judgment of the Hon'ble Apex Court in case of Ashok Kumar Uppal and others v. State of J. & K., reported in AIR 1998 SC 2812.
Learned counsel Mr. Hathi also submitted that infact the present Second Appeal is not maintainable as on the ground of resjudicata or constructive resjudicata inasmuch as Special Civil Application No. 2195 of 1981 was filed by the Respondent on the same ground challenging the same impugned judgment and order, and as the High Court had not entertained the same, the suit was filed resulting into further litigation in the present Second Appeal. He submitted that once the same Rule 115(c) of the Borough Municipality Act and the same cause of action with regard to the order of reversion to the substantive post was not interfered with by the High Court and the petition was disposed of, the present Second Appeal would not be granted. He pointedly referred to copy of the memo of the Petition and submitted that same Rule 115(c) of the Borough Municipality Act was referred to raising the same contentions, which have not been accepted by the High Court.
Learned advocate Mr. B.B.Gogia for the Respondent referred to the judgments of both the courts below and submitted that the concurrent findings of facts arrived at by both the courts below may not be disturbed as no substantial question of law can be said to have been involved. He submitted that Rule 115(c) of the Borough Municipality Act was attracted even after the BPMC Act came into force, and as no regulation was made, the same regulation or the Rule was followed. Learned counsel Mr. Gogia submitted that, therefore, if the same regulation was followed even after the BPMC Act came into force, it specifically provided the qualification for the post of Accountant as:
B.Com with 2 years experience, OR Arts or Science Graduate with 1 year experience, OR Matric with 10 years experience.
He therefore submitted that since the person like Respondent - Original Plaintiff had experience, he was appointed for administrative reasons and thereafter he ought not to have been reverted to the substantive post on such a ground. He submitted that only the Respondent has been discriminated in single doubt and therefore also the order is bad. He submitted that therefore the present Second Appeal may not be entertained.
In view of the rival submissions, it is required to be considered whether the present Second Appeal can be entertained or not.
It is well accepted that the scope of Second Appeal is very limited in light of the catena of judicial pronouncements and the guidelines laid down by the Hon'ble Apex Court in case of Gurdev Kaur & Ors. v/s Kaki & Ors. reported in (2007) 1 SCC 546.
The Hon'ble Apex Court has laid down the guidelines after discussing the scope of exercise of discretion after the amendment in Code of Civil Procedure, 1976. Thus, it is well accepted that the High Court should not interfere unless there is a substantial question of law involved in Second Appeals. However, at the same time the Hon'ble Apex Court in case of Kashmir Singh v. Harnam Singh and Anr. - AIR 2008 SC 1749 has observed:
"17.
The general rule is that High Court will not interfere with concurrent findings of the Courts below. But it is not an absolute rule. Some of the well recognized exceptions are where (i) the courts below have ignored material evidence or acted on no evidence;
(ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to 'decision based on no evidence', it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."
Thus, the guidelines have been laid down with regard to the limited scope of exercise in Second Appeals. As a general rule the exception has been carved out which has been referred to in the aforesaid judgment. The Hon'ble Apex Court in this judgment, referring to these exceptions, has laid down specifically the well recognized exceptions. It provides that when the courts have drawn wrong inferences from proved facts by applying the law erroneously, it would be covered by such exception.
In the facts of the case it is evident that both the courts have misdirected in applying the correct law inasmuch as both the courts have proceeded to rely upon Rule 115(c) of the Borough Municipality Act though BPMC Act, 1949 would be attracted, and infact the order of appointment, which is relied upon by the Respondent - Original Plaintiff at Exh. 57 makes it very clear that it is subject to BPMC Act and the Rules made thereunder. Similarly, order Exh.58, reverting the Respondent to the substantive post make it very clear that the additional charge is given. Thus, the conjoint reading of this makes it very clear that the appointment was made on probation for a limited period, and thereafter, since the Respondent was not found to be fulfilling the required criteria / qualification, he has been reverted to the substantive post with an additional charge of the higher post of Accountant for administrative reason, which has not been considered by both the courts below. It is also required to be mentioned that it is well accepted that the person appointed on probation does not get any right of confirmation automatically, as the very concept of probation suggest, it will be subject to satisfactory completion of probation period after which a person could be confirmed. In other words it cannot be said that after the period of probation is over, one is automatically confirmed and gets any right to continue on the post even without confirmation of probation. Infact the law specifically lays down that a person appointed on probation will not have any right unless he is confirmed by any specific order of successful completion of period of probation or extended period of probation. It is only when the order appointing probation or the Rules particularly provide for automatic confirmation on expiry of the period of probation, one would continue to remain on probation. This aspect has not been considered at all while setting aside the impugned judgment and order, by which the Respondent has been reverted to his substantive post. Infact both the courts have made a gross fundamental error in not appreciating that the person appointed on probation does not have any right over such higher post until he completes the period of probation satisfactorily and during the said period his reversion to the substantive post cannot be said to be bad or illegal when he is not found qualified for the post. Mere appointment on probation does not confer any absolute right. The order itself has stated that it is subject to the provisions of BPMC Act, and the Rules made thereunder, and inspite of that, both the courts have misdirected in applying Rule 115(c) of the Borough Municipality Act.
Assuming for the sake of argument that there is no such regulation framed and the same regulation was made applicable, still it is not a matter of right where one can claim that the reversion to the substantive post is bad or illegal. Merely because the qualifications provide two or three categories - like Commerce graduate with 2 years experience, other graduate with 5 years experience, etc. Again, it is a matter within the administrative field where the authorities may consider. Further, assuming that Rule 115(c) of the Borough Municipality Act is applicable, at the most it gives discretion to the department or the administrative authority for making appointments, which they may consider depending upon the facts of the case. In the facts of the case, after a person like Respondent is appointed, he is reverted to his substantive post on expiry of probation, which cannot be questioned, much less the Respondent can claim as a matter of right, to continue on the higher post on which he is appointed on probation.
The another facet of the argument which is required to be considered is that both the courts have failed to appreciate that if the BPMC Act is applicable and there was a resolution of the Standing Committee, they have proceeded on the assumption that there is no regulation. It is also required to be mentioned that even if there is no regulation, still the administrative authority like Corporation run administration on the basis of decision and the resolution of the body like Standing Committee, and when it has taken the decision, it cannot be said that there is no regulation inasmuch as even after considering Rule 115(c) of the Borough Municipality Act, the Standing Committee has taken the decision. Therefore also, it cannot be said that the order is bad and illegal or in violation of natural justice. Resolution is passed after considering the Rule that it is not consistent with the provisions of BPMC Act and it has specifically considered Rule 115(c) of the Borough Municipality Act vis-a-vis BPMC Act of Rule 4 of Chapter III of BPMC Act.
One fails to understand how it could be said to be in violation of natural justice, as natural justice does not necessarily mean that one has to be heard even before any administrative decision is taken. When the order was made, it was made very clear that, if on expiry of period of probation, he is reverted to substantive post, there is no question of violation of rules of natural justice.
Therefore, having regard to the aforesaid discussion, when the Standing Committee vide resolution (Exh.50) after considering Rule 115(c) of the Borough Municipality Act vis-a-vis the provisions of Rule 4 of Chapter III of BPMC Act, 1949 found that it is not consistent with the provisions of BPMC Act, have passed subsequently the resolution, pursuant to which the Respondent is reverted to the substantive post. Further, the judgment of the first appellate court referring to this aspect about framing of resolution by the Standing Committee is also misconceived as the resolution is adopted in the meeting of the Standing Committee for administrative exigencies, and as the same has not been in the form of regulation adopted by the general body, it cannot be brushed aside.
In the circumstances, the present Second Appeal deserves to be allowed and accordingly stands allowed. The judgment and order passed in Civil Appeal No. 41 of 1983 of the first Appellate Court (District Judge, Rajkot) confirming the judgment and order passed in Regular Civil Suit No. 803 of 1979 by the learned Civil Judge (S.D.), Rajkot, is hereby quashed and set aside. Rule is made absolute. Interim relief, if any shall stand vacated.
(Rajesh H.
Shukla,J) Jayanti* Top