STATE OF GUJARAT Vs. CHANDULAL MANILAL ACHARYA AHMEDABAD

JUDGEMENT

(1.) This appeal is filed by the defendant State against the judgment and decree fixing the deemed date of seniority of the respondent-plaintiff and other reliefs as detailed in the impugned judgment. The respondent plaintiff joined the services of the State Government on May 1,1949, as a Junior Clerk and was promoted as a Senior Clerk from August 12, 1963. Thereafter he was made Head Clerk on July 13, 1968 and was transferred to Baroda on December 1, 1968, but he applied for continuation at Ahmedabad and he had forgone the promotion to the post of Head Clerk and got himself voluntarily reverted to the post of Senior Clerk at Ahmedabad. There was a departmental 'inquiry against him and an order of punishment was passed against him and he was reverted from the post of Senior Clerk to the post of Jur;or Clerk. The order of reversion directed that he was reverted for a period of one year and thereafter he was to be considered for promotion on the basis of his work. This order was challenged by way of a Civil Suit and stay against implementation of that judgment was obtained. Ultimately, that suit was dismissed and the order of punishment came to be implemented on January 13, 1973 and he was reverted to the post of Junior Clerk by way of penalty.

(2.) On expiry of one year of reversion, according to the appellant, he should have been automatically promoted. However, he was not promoted on expiry of one year. On successive occasions of promotion, he was superseded. He had approached the Gujarat Civil Services Tribunal against his non-promotion on several occasions and in the matter before the Tribunal, he confined his challenge to his non promotion in 1979. The Tribunal dismissed his matter holding that his say of non communication of the adverse remarks for all the years was not correct and in fact against some of the adverse remarks, he had made representations and the representations were rejected and the plaintiff failed before the Tribunal. The plaintiff had filed Special Civil Application No. 1964 of 1981 in the High Court and during the pendency of that petition, the appellant petitioner was given a promotion as Senior Clerk and he withdrew that petition stating that the petition was withdrawn subject to the right of the petitioner to make representation to the competent authority to give him a deemed date of promotion. As the State Government did not give him the deemed date, the plaintiff filed Civil Suit No. 1654 of 1983 and that has been decreed by the trial Court. That judgment and decree is challenged on the ground of limitation, resjudicata, lack of jurisdiction in Civil Court and also on merits. It is submitted that there is no question of automatic promotion on the expiry of the period of one year of reversion and the appellant petitioner's case has been considered for promotion from time to time and as he was not found fit for promotion, he was superseded and the adverse remarks have been communicated to the plaintiff from time to time and those communications have been placed on record. Even though there may not be proof of acknowledgement for these adverse remarks, it cannot be said that the adverse remarks were not communicated. The plaintiff had come with a case that no adverse remarks had ever been communicated to him. That has been proved to be false because in respect of atleast the adverse remarks of two years, he has made representations and those representations have been rejected. In respect of other years also, the adverse remarks have been sent, but there is no proof of acknowledgement, but on one of these occasions, the plaintiff himself was the person in charge of the jail through which the remarks were to be communicated to him and, therefore, the Gujarat Civil Services Tribunal had also rejected his case of non communication of the adverse remarks. Having regard to the fact that his say that no adverse remarks are communicated is falsified by proof of communication of some adverse remarks and the appellant's representations against the same, his word loses any credibility and, therefore, the trial court was in error in proceeding on the footing that the adverse remarks of some of the years were not proved to have not been communicated. These are the submissions of the State.

(3.) On the other hand, the learned Counsel for the respondent plaintiff has submitted that the question of limitation does not arise in the present case because the plaintiff was given promotion as Senior Clerk as late as in 1981 and thereby some of the injustice done to the plaintiff was redressed in 1981 and only the question of deemed date had survived and that was challenged by filing a suit in 1983 and, therefore, according to the plaintiff, the suit is within time. As regards the jurisdiction, the learned Counsel for the respondent plaintiff submitted that under section 16 of the Gujarat Civil Services Tribunal Act, 1972, the jurisdiction of the Civil Court would be barred only if the case is within the jurisdiction of the Tribunal and according to the plaintiff, the reliefs claimed in the suit could not have been granted by the Services Tribunal because according to the plaintiff, this was not a case of non- promotion, but it was a case of deemed date of promotion. It is further submitted that if the Tribunal has no jurisdiction to give this relief, the decision of the Tribunal cannot be sustained. On merits, it was submitted that the trial court has rightly found that the adverse remarks were not shown to have been communicated and, therefore, the petitioner's supersession on the basis of such non-communicated adverse remarks was illegal and the trial court was right in passing the judgment and decree in favour of the plaintiff.