STATE OF GUJARAT Vs. PRABHAKAR RAMCHANDRA JADAV

JUDGEMENT

(1.) The appellants-above named, have preferred this Letters Patent Appeal under Clause 15 of the Letters Patent, against the judgment and order dated 28.6.1992 recorded by the learned Single Judge in First Appeal No.298/88, under which the learned Single Judge was pleased to dismiss the aforesaid First Appeal, directing the parties to bear their own costs in the appeal. The facts leading to this LPA may be, briefly, stated as follows: The respondent, herein, was initially appointed as Police Head Constable on or about 5.10.1950 by the Police Commissioner of the erstwhile State of Kachchh. He passed the qualifying examination for the post of Head Constable in 1952. The said examination was conducted by the District Superintendent of Police of Kachchh. It appears that thereafter, in 1955, other 4 Police Head Constables, similarly situated, were promoted to the post of Police Sub-Inspector, but the respondent herein, was not promoted to the said post. It seems, his case was not considered for the said post of promotion. Thereafter, the respondent, herein, again passed the examination for the Head Constable in the year 1966 and as such he was promoted to the post of Police Sub-Inspector. Again in 1973, he was promoted to the post of Police Inspector. He instituted a Civil Suit being Civil Suit No.3902/84 in the City Civil Court, Ahmedabad since he was not promoted as PSI in the year 1955. The aforesaid civil suit was resisted on behalf of the appellants, abovenamed. The learned trial Judge framed necessary issues and after affording opportunity to lead evidence to the parties, the learned trial Judge was pleased to pass decree in favour of the respondent. Under the said decree, it was declared that the act of the present appellants, in not promoting the present respondent to the post of PSI in the year 1955 is illegal, arbitrary and unconstitutional and hence not maintainable at law. The learned trial Judge further directed the present appellants to accord deemed date of promotion to the present respondent to the post of PSI from the year 1955, when other persons named in the decree were promoted as PSI. The learned trial Judge further directed the present appellants to accord deemed date of promotion to the present respondent to the post of P.I. from 1973, when the persons named in the decree were promoted as P.I. It was further directed the present appellant to pay to the respondent all consequential benefits consequently to the above according of deemed date, such as salary, allowances etc. and pensional and other benefits, as per rules. The learned trial Judge further directed the present appellant to pay cost of the suit to the respondent and to bear their own cost in the suit. The aforesaid judgment and decree of the learned trial Judge of the City Civil Court, Ahmedabad dated 22.7.1987, were carried in First Appeal being First Appeal No.298/88 before this Court. This court, heard the parties and by judgment and order dated 28.6.1993, dismissed the said appeal of the appellant above named.

(2.) Being aggrieved by the said judgment and order of this Court in the said First Appeal, the appellants herein, have preferred this LPA under Clause 15 of the Letters Patent. It has been mainly contended here that the learned Trial Judge as well as the learned Single Judge of this Court have committed serious error in not considering that the suit was apparently time-barred and that it was barred by delay, latches and acquiescence. It has further been contended that the learned trial Judge as well as the learned Single Judge of this Court has not properly considered the fact that they had not directed the appellants to consider the case of the present respondent for promotion. That instead, there is a direct decree of according deemed date which is not legal and valid. It has further been contended that the judgment and decree of the learned trial Judge and confirmed by the learned Single Judge of this Court, are otherwise also illegal, erroneous and deserve to be set aside. It is therefore, contended that the present appeal be allowed and the judgment and decree of the learned Single Judge of this Court as well as the judgment and decree of the learned trial Judge be quashed and set aside and the suit of the present respondent be ordered to be dismissed with costs all through out.

(3.) The appeal was admitted. Mr I S Supheia, learned Advocate appears on behalf of the respondent. We have heard the learned Advocates for the parties and have perused the papers. The learned AGP, as well as the learned Advocate for the respondent have taken us through the record of this appeal. In support of the contention, Mr V M Pancholi, learned AGP appearing for the appellants has argued that the respondent claimed promotion with effect from the year 1955 and the suit was filed as late as in 1984. That therefore, the suit was clearly barred by limitation and it was further barred by principles of delay, latches and acquiescence. We have given our anxious thoughts to this submission of the learned AGP. But after due consideration, we are not in a position to agree with the said submission of the learned AGP. For the said purpose, we have gone through the judgment of the learned trial Judge of the City Civil Court and there we find that the learned trial Judge had raised four issues for determining the said suit. However, we do not find that there is an issue of limitation or that there is an issue of delay, latches and acquiescence. This shows that the aforesaid contentions were not raised before the learned trial Judge. In that view of the matter, when this question has not been raised before the original court, it is extremely difficult to accept such contention when they are raised for the first time in Letters Patent Appeal. It is well settled that an issue of limitation is a mixed question of facts and law. Therefore, when disputed questions of facts are involved for the purpose of deciding the said issue of limitation, then it is not possible for us to deal with the said issue in this LPA. It is more so, when the issue was not raised or contested before the trial court. No issue was framed, no evidence was led on the said issue and there is no finding recorded by the learned trial Judge on the said issue. Therefore, in absence of any issue, the evidence or finding of the learned trial Judge it is not just, legal or proper to decide the said issue of facts in absence of any material on record. This issue does not appear to have been raised before this Court in the First Appeal. We are, therefore, not inclined to permit the learned AGP to advance arguments on this issue involving disputed questions of facts in absence of any material issue on findings of the two Courts.