1. The present Second Appeal under Section 100 of the Code of Civil Procedure has been preferred by the appellant- original defendant no. 2 to quash and set aside the impugned judgment and order/decree passed by the learned appellate Court-learned Assistant Judge, Porbandar in Regular Civil Appeal No. 33/1985 by which the learned appellate Court has allowed the said appeal preferred by respondent no. 1-original plaintiff by quashing and setting aside the judgment and decree passed by the learned trial Court in Regular Civil Suit No. 4/1983 by which the learned trial Court dismissed the suit and consequently decreed the suit.
2. Respondent no. 1-original plaintiff instituted Regular Civil Suit No. 4/1983 in the Court of learned Civil Judge (Senior Division), Porbandar for declaration and permanent injunction to quash and set aside the order dated 18/02/1981 showing original plaintiff Junior to one Shri A.M. Bhut, though he was appointed five years later than original plaintiff, and also to quash and set aside the communication dated 22/12/1982 refusing to uphold the stepping up of original plaintiff and consequently for permanent injunction restraining the original defendants from recovering any amount, which was already paid to the original plaintiff by granting the benefit of stepping up.
3. It was the case on behalf of the original plaintiff that she was serving as Assistant Teacher in Talpad Girls School in Porbandar and was appointed on 07/09/1966. One Shri A.M. Bhut was also serving as Assistant Teacher in the same school and was appointed on 07/01/1971. Original defendant no. 2 published one seniority list in the year 1970 in which the name of the original plaintiff was shown at Serial No. 3857 and in the new amended seniority list published on 31/12/1976 she was put at Serial No. 4418 whereas Shri A.M. Bhut was placed at Serial No. 3920 and in that way Shri A.M. Bhut was considered to be senior to the original plaintiff. It was the case on behalf of the original plaintiff that in fact the aforesaid was a mistake on the part of the original defendant no. 2 and thereafter after publication of the amended list on 31/12/1976, the additional and supplementary yadi showed the seniority of the original plaintiff at Serial No. 3047 whereas the seniority of Shri A.M. Bhut was shown at serial No. 3920, which was correct position. It was the case on behalf of the original plaintiff that thereafter on the basis of the aforesaid amendment i.e modified seniority list treating the original plaintiff at Serial No. 3047 she was granted all other benefits inclusive of stepping up etc.. However, subsequently, by the aforesaid communication and on the basis of the audit objection original plaintiff was considered to be junior to Shri A.M. Bhut and an order was issued to recover the amount granting the benefit of stepping up treating the original plaintiff at Serial No. 3047 in the seniority list and therefore, the original plaintiff instituted the aforesaid suit for aforesaid declaration and permanent injunction. It was the case on behalf of the original plaintiff that in fact the aforesaid Shri A.M. Bhut joined the services after five years from the date on which the original plaintiff joined the services and, therefore, in any case, he could not have not been shown as senior to the original plaintiff.
4. The suit was resisted by the original defendants by submitting that as at the relevant time the original plaintiff was not having requisite qualification of PTC she was appointed as untrained assistant teacher and, thereafter she obtained the qualification of PTC after the said Shri A.M. Bhut was appointed who was having the qualification of PTC and, therefore, her seniority was to be appointed from the date on which she was qualified to become a Teacher and, therefore, she was wrongly placed in the seniority list at Serial No. 3047 and she was wrongly shown as senior to Shri A.M. Bhut and, therefore, when the aforesaid mistake was found and the seniority list was to be modified accordingly it was found that she was not entitled to benefit of stepping up treating her to be senior to the Shri A.M. Bhut and, therefore, it was submitted that the order passed is absolutely just and legal. It was also submitted on behalf of the appellant that as such the suit is bad and/or required to be dismissed for want of notice as required under Section 320 of the Gujarat Panchayat Act.
5. The learned trial Court framed the issues and on appreciation of evidence, dismissed the suit by judgment and decree dated 30/10/1985 by observing that the suit is bad for want of notice under Section 320 of the Gujarat Panchayat Act as well as on merits also. Being aggrieved and dissatisfied with the judgment and decree passed by the learned trial Court dismissing the suit, original plaintiff preferred Regular Civil Appeal No. 33/1985 before the learned District Court, Porbandar and the learned appellate Court by impugned judgment and order/decree has allowed the said appeal by quashing and setting aside the judgment and decree passed by the learned trial Court and consequently decreeing the suit and declaring that the order of the District Education Committee i.e original defendant no. 2 so far as it effects the seniority of the original plaintiff as illegal and the letter of the District Education Committee-original defendant no. 2 dated 18/02/1981 so far as it affects the seniority list of the original plaintiff also to be illegal and further ordered the communication dated 22/12/1982 as illegal and void. The learned appellate Court further passed an order directing respondents nos. 2 and 3 restraining them from implementing the order at Exh. 59 as well as Exhs. 55 and 57. Being aggrieved and dissatisfied with the impugned judgment and order passed by the learned appellate Court, the appellant- original defendant no. 2 has preferred the present Second Appeal under Section 100 of the Code of Civil Procedure.
6. Shri Vyas, learned advocate appearing on behalf of the appellant has vehemently submitted that the learned appellate Court has materially erred in allowing the appeal and quashing and setting aside the judgment and decree passed by the learned trial Court dismissing the suit. It is submitted that the learned appellate Court has materially erred in holding that original plaintiff was senior to Shri A.M. Bhut. It is submitted that by holding so, the learned appellate Court has not referred any provision of law. It is further submitted by Shri Vyas, learned advocate appearing on behalf of the appellant that the date of joining the service cannot be extreme criteria to fix the seniority when the relevant rules provide that no untrained persons is to be appointed as primary teacher. It is submitted that the original plaintiff was appointed as teacher only because no trained persons were available and, therefore, two separate cadres and pay scales were for untrained teachers. Making the above submissions, it is requested to allow the present Second Appeal.
7. The present appeal is opposed by Shri Karia, learned advocate appearing on behalf of respondent no. 1-original plaintiff. It is submitted that in the facts and circumstances of the case, more particularly, when it is found that the original plaintiff was appointed in the year 1966 and Shri A.M. Bhut before whom the original plaintiff was directed to be placed in the seniority list was appointed in the year 1971, the learned appellate Court has rightly held that the original plaintiff is senior to Shri A.M. Bhut. It is submitted that once the original plaintiff subsequently cleared the training as primary teacher her seniority is required to be considered from the date of the initial appointment. It is submitted that as such no provision of law has been pointed out to show that for the purpose of seniority list, passing of the training is required to be considered. It is submitted that no illegality has been committed by the learned appellate Court, which calls for the interference of this Court in exercise of powers under Section 100 of the Code of Criminal Procedure.
8. Heard the learned advocates appearing on behalf of the respective parties at length and considered the impugned judgment and order passed by both the Courts below.
9. At the outset, it is required to be noted that while admitting the present Second Appeal, the learned Single Judge has framed the following substantial question of law’ “Whether the seniority is to be fixed on the basis of the date of the appointment or from the date of passing requisite examination for the same cadre?”
10. Thus, while deciding the present Second Appeal under Section 100 of the Code of Civil Procedure, the aforesaid substantial question of law is required to be considered.
11. It is required to be noted and it is not in dispute that the original plaintiff was appointed in the year 1966 and admittedly Shri A.M. Bhut was appointed in the year 1971 i.e after a period of five years from the date of appointment of the original plaintiff. In the year 1971, the said Shri A.M. Bhut passed the requisite examination/training and the original plaintiff cleared the examination subsequently. However, it is required to be noted that earlier when the seniority list was prepared the original plaintiff was put in the seniority list ahead and thereafter she has been placed in the seniority list behind Shri A.M. Bhut. As rightly observed by the learned appellate Court, in absence of any provisions of law pointed out by the original defendants that seniority is to be counted from the date of passing of the requisite examination and not from the date of initial appointment, the action of the original defendant in placing the original plaintiff behind the said Shri A.M. Bhut in the seniority list cannot be sustained. During the course of hearing of the present appeal also as such the learned advocate appearing on behalf of the appellant is not in a position to point out any provision of law whether seniority is to be fixed from the date of passing the requisite examination and not from the date of actual appointment.
12. Under the circumstances and considering the fact that the original plaintiff was appointed in the year 1966 and thereafter Shri A.M. Bhut was appointed in the year 1971, no illegality has been committed by the learned appellate Court in declaring the original plaintiff senior to Shri A.M. Bhut and consequently the learned appellate Court has rightly quashed and set aside the judgment and decree passed by the learned trial Court dismissing the suit. In view of the above and for the reasons stated hereinabove, the present appeal fails and the same deserves to be dismissed and is accordingly dismissed. No order as to costs.
13. Now so far as Civil Application No. 8619/2012 is concerned the same has been preferred by the applicant -original appellant to formulate and add the following substantial question of law
a) Whether the suit preferred was maintainable, challenging the seniority list published by the defendant/state authorities?
b) Whether the suit is bad for the reasons of non- joinder of necessary and proper parties?
c) Whether the suit preferred is maintainable without the notices contemplated under Section 80 of the Code of Civil Procedure under Section 320 of the Gujarat Panchayat Act, 1961 and under Section 62 of the Bombay Primary Education Act, 1947?
d) Whether the suit preferred is time barred in view of the provision contained in Section 320 of the Gujarat Panchayat Act and Section 62 of the Bombay Primary Education Act, 1947?
14. At the outset, it is required to be noted that the main Second Appeal is of the year 1987 and the application to add the substantial question of law has been submitted in the year 2012 i.e. belatedly. Even otherwise, considering the points for determination framed by the learned appellate Court and the issues framed by the learned trial Court, no such issue as per the proposed substantial questions of law were framed. Therefore, the appellant cannot be permitted to raise new ground for the first time before this Court in the present Second Appeal, which is of the year 1987 and in a suit of 1983. Now with respect to the proposed substantial question of law mentioned as per (c) and (d) are concerned as such the aforesaid has been dealt with by the learned appellate Court in detail. The learned appellate Court has rightly negatived the said contention by holding that in absence of notice under Section 320 of the Gujarat Panchayat Act Section 62 of the Bombay Primary Education Act, the suit was not required to be dismissed. Under the circumstances, Civil Application No. 8619/2012 stands disposed of.
(M.R.SHAH, J.) siji