STATE OF GUJARAT Vs. MAGANBHAI LAXMANBHAI

JUDGEMENT

(1.) The appeal has been admitted for hearing the parties on 18.7.91 on the following substantial question of law:-

(2.) The short facts necessary for disposal of the present appeal are that the plaintiff and number of others were appointed as Forest Guard at Keshod on 31.8.81 under exh. 17. These persons were allowed to work for four and half months, vide letter dated 1.1.82 [exh.18] they were declared surplus and were discharged. However, under letter dated 4.1.82, the Deputy Forest Officer, Keshod[Junagadh] made recommendations to the Forest Officer, Surendranagar that two persons named in the recommendations be absorbed and allowed to work as Forest Guard in Surendranagar Division. The petitioner and one Hira Masri Rathod, under the letter dated 4.1.82 went to Surendranagar, Hira Masri was allowed to join, but the present plaintiff was not allowed to join the services, firstly on the ground that no vacancy was left and secondly on the ground that his height was below 163.cms. which was minimum requirement for appointment as Forest Guard. The plaintiff, facing such severe consequences and the problems, filed the suit submitting inter alia that the order dated 1.1.82 [exh.18] was bad in law because junior to him was retained in services at Surendranagar. The defendant appeared before the Court and submitted that the order dated 1.1.82 [exh.18] was in accordance with law and was meeting the requirements of order of appointment dated 31.8.81 [exh.17], because, appropriate notice of 7 days was issued to the plaintiff. It was also submitted by them that the suit was not maintainable in view of Section 11 of the Gujarat Civil Services Tribunal Act, 1972 and that the suit was bad for non-issuance of notice under Section 80 of the Act.

(3.) After recording the evidence and hearing the parties, the learned trial court held that the Civil Court had jurisdiction to entertain the matter, notice under Section 80 of the Code of Civil Procedure was not necessary in view of the plaintiff's application filed under sub-section [2] of Section 80 of the Code whereupon exemption from issuing notice was granted in favour of the plaintiff. The trial court further held that the suit in its frame was not maintainable, because the plaintiff had filed the suit in Junagadh jurisdiction, while the grievances of the plaintiff were against the Forest Officer, Surendranagar. Being aggrieved by the said judgment and decree, the plaintiff took up the matter in appeal. The question of maintainability of the suit in view of Section 11 of 1972 Act and of notice under Section 80 of the Code of Civil Procedure were not raised by the State. The State, however, contended before the appellate court that the suit could not be entertained, because the termination dated 1.1.82 was in accordance with law and if the plaintiff had any cause of action, it was against the Forest Officer, Surendranagar, who did not allow the plaintiff to join. The learned first appellate court, after hearing the parties held that the order dated 1.1.82 was bad, because Hira Masri, junior to the plaintiff was retained in services and that the report of the Civil Surgeon at Surendranagar, showing the plaintiff's height was not 163 cm., was wrong, it accordingly allowed the appeal and held that the order dated 1.1.82 was bad, it directed the Deputy Forest Officer, Keshod to reinstate the plaintiff in services.