STATE OF GUJARAT Vs. N V ASHAR

JUDGEMENT

(1.) THE State Government has filed this Second Appeal under Section 100 of the Civil Procedure Code challenging the judgment and order passed by the learned District Judge and 3rd Fast Track Court, Junagadh on 28.2.2008 in Regular Civil Appeal No.147 of 2000 whereby the said Appeal was dismissed and the judgment and decree passed by the learned Civil Judge, Junagadh in Regular Civil Suit No.69 of 1996 on 28.7.2000 was confirmed

(2.) THIS Court has issued notice on 29.4.2008. On 13.8.2008, this Court has passed detailed order wherein it is observed that, successful plaintiff in two courts below is eager to see that the litigation comes to an end and compromise is arrived at between the parties. The Court has referred to the provisions of Order XXVII Rule 5B[2] of the Code of Civil Procedure, which says that if, in any such suit or proceeding, at any stage, it appears to the Court that there is reasonable possibility of a settlement between the parties, the Court may adjourn the proceeding for such period as it thinks fit, to enable attempts to be made to effect such a settlement. Considering the said scheme of Code of Civil Procedure, the Court observed that it is possible for the Court to intervene and pursue the government machinery to consider the scope of settlement out of Court. The court has further considered the age of the respondent [original plaintiff], which is about 75 years and hence expressed hope that this is a case where the highest official of the Department, that is, Director of Employment and Training Department and Secretary of the State of Gujarat in Labour and Employment Department, now, may sit together and consider whether it is possible to arrive at any settlement, especially when it is possible for the respondent to give some reasonable offer to the government for consideration.

(3.) MR .Sachin Vasavda, learned advocate appearing for the respondent submitted that both the Courts have given concurrent findings and they have examined the relevant Rules and Notification and at great length they have discussed the issue regarding the attempts having been availed of by the respondent. He has submitted that on two occasions the respondent was granted exemption and hence the same shall not be considered while counting three attempts. Both the Courts have given specific finding to the effect that the respondent has cleared the examination within three years and in three attempts. The Trial Court has observed in para -9 of his order that, considering the facts and evidence on record, it is pertinent to note that three years for passing the examination are to be counted from 14.4.1986 and in that examination, plaintiff did not appear and prayed for the exemption which was granted by the department vide Ex.22 and it was decided that it would not be considered as an attempt. While second examination was held in December, 1986 and 3rd examination was held in June, 1987. In both these examinations, plaintiff did not fill up the form for appearing in the examination. While the examination which was held in December, 1987 plaintiff appeared and failed. 5th examination was held in July, 1988 and in that examination plaintiff did not appear and he was exempted. While in the month of December, 1988 examination was held and plaintiff appeared in the examination but failed. The Trial Court, therefore, observed that as per Ex.34, which is the representation of the plaintiff dated 7.6.1993 wherein plaintiff has shown that after December, 1988 examination was held in July, 1989 and it was 3rd attempt of the plaintiff and in that examination, he was declared passed. From this detail given by the plaintiff in Ex.34, the Trial Court had come to the conclusion that after December, 1988 examination was not held upto July, 1989. Therefore, it cannot be said that the plaintiff has not passed out the departmental examination within prescribed period of three years. The learned District Judge has also discussed at great length and had come to the conclusion that after considering the written arguments, findings recorded by the learned trial Judge as well as perusing the documentary evidence and various judgments cited by both the sides, there was no erroneous and illegal finding on the issues framed by the lower Court and the defendants have failed to convince the appellate Court that the judgment and decree passed by the learned Trial Judge was required to be interfered with by the Court. It is further observed that the learned Trial Judge has specifically relied upon all the documents and following the rules and regulations framed under the Notification, rightly come to the conclusion that the defendants have taken wrongful view while adopting the procedure of promotion. Ultimately the Appeal was dismissed by holding that there was no substance and it was devoid of merit.