MAYOR NAGAR PALIKA NIGAM DURG Vs. CHERIYAN MATHAI

JUDGEMENT

(1.) This appeal has been preferred against the judgment and decree dated 18-8-99 passed by the First Additional District Judge, Durg, in Civil Appeal No. 3-A/1997 (Cheriyan Mathai Vs. Mayor, Nagar Palika Nigam, Durg and another) arising out of judgment and decree dated 12-2-1997 passed by the Civil Judge, Class-II, Durg, in Civil Suit No. 253-A/94. The Trial Court has dismissed the suit filed by the plaintiff whereas the Lower Appellate Court has allowed the appeal and set aside the judgment & decree passed by the Trial Court.

(2.) Briefly stated facts are that the respondent/plaintiff filed suit for declaration that he is entitled for promotion to the post of Assistant Engineer w.e.f. 8-1-1987 and consequential reliefs and also got mandatory injunction. The plaintiff was appointed as Deputy Overseer on 10-11-1967 in the Municipality of Chhindwara. By order dated 29-7-1973, he was promoted as Overseer. Later on, nomenclature of Post of the Overseer has been converted as Sub-Engineer. The plaintiff was transferred from Nagar Palika Chhindwara to Nagar Palika, Betul. Again on 21st Oct., 1980, plaintiff was transferred from Betul to Durg Municipality, On 2-4-1980, Nagar Palika, Durg, was notified as Corporation. The plaintiff thus became an employee of Corporation of Durg. At the time when the Municipality of Durg attained status of Corporation, the plaintiff was working as Sub-Engineer. Thereafter, in compliance of direction of the State Government, Municipal Corporation, Durg had promoted one N.K. Philipose as Sub-Engineer and he assumed charge w.e.f. 14-12-1981. Accordingly, both the plaintiff Cheriyan Mathai and N.K. Philipose were working on the post of Sub-Engineer in the Municipal Corporation, Durg. However, it was not in dispute that the plaintiff was senior to Mr. N.K. Philipose on the post of Sub-Engineer. Subsequently N.K. Philipose was promoted to the post of Assistant Engineer on probation for a period of one year. At the same time, the case of plaintiff was not considered and after so many representations, he was promoted to the post of Assistant Engineer. According to the plaintiff, he was entitled for promotion w.e.f. 8-1-1987, but his claim was denied. The plaintiff filed a suit and the Trial Court dismissed the suit. Feeling aggrieved by the order of Trial Court, plaintiff preferred an appeal and the Appellate Court formulated the questions as to whether the plaintiff is entitled to get promotion w.e.f. 8-1-1987. The Lower Appellate Court in para 10 has found that the petitioner was appointed as Deputy Overseer in the year 1967 and was promoted to the post of Overseer on 29-7-1973. Thereafter he was transferred from Chhindwara to Betul, then from Belul Municipality to Durg Municipality. These facts have not been challenged. The Court below has further considered in para 11 that his junior Shri Philipose was promoted. The Lower Appellate Court in Paragraph 12 has noted that the plaintiff filed documents vide Exs. P-1, P-2, P- 3, P-4 & P-5. A perusal of the record shows that the meeting of the Standing Committee was held wherein promotion matter of Sub-Engineer to the post of Assistant Engineer was considered. The proposal was required to be sent to Public Service Commission for approval. However, the document Ex. P-9 shows that the matter regarding promotion of Philipose was placed before the Standing Committee and the Committee had decided to prepare the seniority list as per resolution No. 63 dated 17-10-1986 and it was directed to prepare and submit the same in the next meeting, but meanwhile, in anticipation of approval from State Public Service Commission, vide order dated 5-1-1987 N.K. Philipose was promoted to the post of Assistant Engineer on the vacant post. The Lower Appellate Court found that it could not have been done in view of resolution No. 63 dated 17-10-1986 passed by the Standing Committee. The Lower Appellate Court has further noted in para 13 that N.K. Philipose was shown to be senior whereas he was not senior and the seniority list as such has not been filed. The Lower Appellate Court has also arrived at a finding that ignoring the seniority and in spite of direction of the Standing Committee ilself the plaintiff was not considered for promotion. The learned Lower Appellate Court, therefore passed decree contain in para 15 and has directed the defendants to consider the case of plaintiff for promotion to the post of Asst. Engineer w.e.f. 8-1-1987 and in case he is not otherwise found unfit for promotion, the defendants shall pay him salary treating him to have been promoted to the post of Assistant Engineer from that date till his superannuation and also fix his pension accordingly, this be done within a period of six months including payment of arrears of pension to the plaintiff.

(3.) This Court has considered the entire material on record and heard the parties afresh. It has been noted that the facts which emerge clearly go to show that the plaintiff was senior to that Philipose. Plaintiff was appointed in 1961 as Deputy Overseer and he was promoted on 29-7-1973. He was transferred from Chhindwara to Betul and then from Bctul to Durg. The nomenclature was also changed from Overseer to Sub-Engineer. Subsequently, Municipality of Durg attained the status of Corporation w.e.f. 2-4-1981 and the plaintiff became an employee of Corporation. The Court has further noted that the Standing Committee has passed resolution that the seniority list be prepared as per the resolution No. 63, dated 17-10-1986.That was not done and in between, in anticipation of approval from Public Service Commission, orders have been passed for promotion of N.K. Philipose to the post of Assistant Engineer.