Yunush Gulamhusen Dal vs State Of Gujarat
2021 Latest Caselaw 16456 Guj

     C/SA/215/2021                               JUDGMENT DATED: 21/10/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                     R/SECOND APPEAL NO. 215 of 2021


FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

==========================================================

1    Whether Reporters of Local Papers may be allowed
     to see the judgment ?

2    To be referred to the Reporter or not ?

3    Whether their Lordships wish to see the fair copy
     of the judgment ?

4    Whether this case involves a substantial question
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

==========================================================
                        YUNUSH GULAMHUSEN DAL
                                 Versus
                           STATE OF GUJARAT
==========================================================
Appearance:
MR VA MANSURI(2880) for the Appellant(s) No. 1
for the Respondent(s) No. 2,3,4
MR BHARGAV PANDYA, AGP for the Respondent(s) No. 1
==========================================================

    CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                             Date : 21/10/2021

                            ORAL JUDGMENT

1. This second appeal is filed under Section 100 of the Civil Procedure Code, 1908 at the instance of the appellant (original plaintiff) being aggrieved and dissatisfied by the judgment and order dated 5.4.2021 passed by the 6 th Additional District

C/SA/215/2021 JUDGMENT DATED: 21/10/2021

Judge, Bhavnagar in the Regular Civil Appeal No.35 of 2018, whereby the Court below dismissed the appeal and confirmed the judgment and order dated 15.2.2018 passed by the 5 th Additional Civil Judge, Bhavnagar in Regular Civil Suit No.203 of 2000.

2. The facts giving rise to the present appeal may be summarised as under :-

2.1 The Appellant - plaintiff had filed Regular Civil Suit no. 203 of 2000 for declaration against the respondents, claiming the post of Craft Teacher (hereinafter referred to as "the disputed post") in the concerned office of observation home. It is the case of the appellant herein that as there was one vacant post of Craft Teacher in the concerned office of observation home, the opponent no. 3 herein sought names of suitable candidates through Employment Exchange Office. The appellant - plaintiff was directed to appear alonwith original certificates on 24/06/1999 at 11:00 am in the morning alongwith other candidates. The appellant - plaintiff was possessing requisite qualifications having 51% in SSC with first attempt having experience of Tailoring work. The said experience is with regard to related post of craft teacher, having other experience and fulfilling all eligibility criteria for the said disputed post, but without considering the qualification and experience of the appellant with regard to related post, straight away the opponent no. 4 - Piyush

C/SA/215/2021 JUDGMENT DATED: 21/10/2021

Navinchandra Patel came to be selected for the said post, even though the opponent no.4 having passed SCC with 35% in second attempt and having no experience with regard to related post i.e. craft teacher was selected. The present appellant is better qualified than the opponent no. 4 - Piyush Navinchandra Patel. The respondent authorities sought names of suitable candidates through Employment Exchange Office and total 18 candidates were called for interview, out of 18 candidates there were 14-15 candidates remained present for interview. The respondent - authorities merely asked one question to the appellant in interview and thereafter straight away selected to the opponent no. 4 - Piyush Navinchandra Patel, though the present appellant is better qualified candidate for the said post even on the basis of qualifications and experience which is against the principles of natural justice. The appellant- plaintiff made submission to the opponent authorities, but the said representation came to be neglected by the competent authority. The appellant therefore was constrained to file the Regular Civil Suit No.203 of 2000 before the Learned Civil Court which came to be dismissed vide judgment and decree dated 15/02/2018 and the Appellate Court also dismissed the appeal filed by the appellant by order dated 5.4.2021.

3. Heard Mr. V. A. Mansuri, the learned advocate appearing for the appellant and Mr. Bhargav Pandya, the learned AGP appearing for the respondent No.1 - State.

C/SA/215/2021 JUDGMENT DATED: 21/10/2021

4. Mr. V. A. Mansuri, the learned advocate appearing for the appellant submitted that both the courts below have erred in as much as not properly considered the requisite qualifications, experience and other certificates of the appellant- plaintiff for the post of Craft Teacher in Observation Home. The present appellant was the better qualified candidate than the opponent no. 4, however without considering the documentary evidences the opponent no. 4 came to be selected for the disputed post.

4.1 He submitted that the appellant - plaintiff filed Regular Civil Suit no. 203 of 2000 for declaration against the respondents, claiming the post of Craft Teacher (hereinafter referred to as "the disputed post") in the concerned office of observation home. As there was one vacant post of Craft Teacher in the concern office of observation home for which the opponent no. 3 herein sought names of suitable candidates through Employment Exchange Office. The appellant - plaintiff was directed to appear alonwith original certificates on 24/06/1999 at 11:00 am in the morning alongwith other candidates.

4.2 He submitted that the appellant - plaintiff was possessing requisite qualifications having 51% in SSC with first attempt having experience of Tailoring work the said experience is with

C/SA/215/2021 JUDGMENT DATED: 21/10/2021

regard to related post of craft teacher, having other experience and fulfill all eligibility for the said disputed post, but without considering the qualification and experience with regard to related post, straight away the opponent no. 4 - Piyush Navinchandra Patel was selected for the said post, even though the opponent no. 4 is having 35% in SSC in second attempt having no experience with regard to related post i.e. craft teacher. The present appellant is better qualified than the opponent no. 4 - Piyush Navinchandra Patel. The respondent authorities sought names of suitable candidates through Employment Exchange Office and total 18 candidates were called, out of 18 candidates there were 14-15 candidates were present in interview. The respondent - authorities merely asked one question to the appellant in interview and thereafter straight away selected to the opponent no. 4 - Piyush Navinchandra Patel, though the present appellant is better qualified candidate for the said post even on the basis of qualifications and experience which is against the principle of natural justice. The appellant- plaintiff made submission to the opponent authorities, but it is neglected by the competent authority.

4.3 He submitted that both the courts below have seriously erred in not considering the documentary evidence produced at Exhibit 67 - the Deposition of Lalitkumar Chhotbhai Gamit, Deputy Director, Social Security Department, Gandhinagar who specifically deposed that the recruitment post was for the

C/SA/215/2021 JUDGMENT DATED: 21/10/2021

person having experience of tailoring would be given preference, though the appellant is having experience of the tailoring work as per the certificate issued by the Talati cum Mantri dated 27/04/1999 which is at Exh. 59 having experience of tailoring work for four years, though as per the circular Exh.75 minimum qualifications for the said post is SSC, but present appellant is also having other experience having certificate of M.W.G of Technical Education which is Exh, 50 and Exh. 51. Additionally, the present appellant having certificate of Gram Seva Family welfare Project which is Exh 57 which includes craft activity, Certificate of Water Resource Development Project which is Exh 58. The appellant plaintiff is possessing certificate issued by the Mathda Gram Panchayat to the appellant for tailoring work which is produced at Exh. 59.

4.4 He submitted that it is also admitted by the witness - Lalitkumar Chhotbhai Gamit that there is no adverse remark against the present appellant by the interview committee, Therefore it has come out from the evidence that the present appellant is possessing the more qualification, experience with respect to the said post than the opponent no. 4, but considering the opponent no.4 who is having 35% in SSC in second attempt and as such no any experience with regard to the said disputed post and no any certificate has been produced, but considering him for the said disputed post as

C/SA/215/2021 JUDGMENT DATED: 21/10/2021

the same is illegal, unjust and against the principle of natural justice. Lastly he submitted that on the basis of said deposition and documentary evidences, both the courts below ought to be considered most eligible candidate to the present appellant than the opponent No.4.

5. The trial Court while deciding the Regular Civil Suit No.203 of 2000 framed issues at Ex.26, which read thus :-

"(1) Whether the plaintiff proves that defendant no.2 and 3 have unlawfully appointed defendant no.4 as Craft teacher though the plaintiff is more qualified than defendant no.4? (2) Whether the defendant proves that suit of plaintiff is barred by section-9 of CPC?

(3) Whether the defendant proves that suit of plaintiff is barred by section-80 of CPC?

(4) Whether the defendant proves that the candidate is selected as Craft teacher by defendant no.2 and 3 lawfully and in accordance with the rules and regulations or circulars of the Government?

(5) Whether the plaintiff is entitled to get all or any relief as prayed by him in his plaint?

      (6)        What Order and Decree?"


5.1     The trial Court answered the issue No.1 in negative,

issues No.2 to 4 in affirmative, issue No.5 in negative and issue No.6 as per final order.

C/SA/215/2021 JUDGMENT DATED: 21/10/2021

6. The trial Court while dismissing the suit considered the case of the appellant herein and passed the following order. The paragraph-20 and operative para of the said order read thus :-

"(20) On considering the aforementioned conversations, provisions etc. of all the facts, the approach of the evidence is of affirmative type in the provisions which are made in the Indian Evidence Act. It means that no any fact could be proven in negative way. If any person wants to take the help of law, then at the very first such party has to prove the facts which they have produced before the Court in proper and satisfactory way with necessary evidence in prima facie. Means that the concerned person who is stating about the existence of any facts, then the responsibility to prove its existence lies upon that party who has said such and those facts shall be proved by that person only who wants to get the aid by representing the existence of those facts. In these circumstances, if any evidence is not produced from the opponent side OR the opponent side could not prove his point in proper and satisfactory manner and though the weakness of the opponent party is disclosed on record, then also such weakness of the opponent party is not helpful to the person who has filed the suit for seeking legal aid, until and unless he proves the facts which he is supposed to prove. Hence the approach of legal provisions and Indian Evidence Act lies in broad prospectus in reference to the aforementioned discussion. On considering it, the opponent has produced the defence and proved the issues by evidences.

C/SA/215/2021 JUDGMENT DATED: 21/10/2021

Therefore, the weakness of the defence is not disclosed, but the Plaintiff has failed to prove the issues. He is not able to prove the issues in proper and satisfactory manner. Also it is not transpired prima facie that the Plaintiff is entitled to file the suit in Civil Court for which he has prayed. He has also not complied with the mandatory provisions of the law and he has not proved that the selection of the Plaintiff should be done only because of having more qualification. Also on considering the detailed discussion of the aforementioned issues, prima facie it is proved that the Plaintiff has falsely filed the suit and has caused the harassment to the Opponent to compell him to take the defence. For which the Plaintiff has prayed for special cost. In this reference, this Court believes that the Order should be passed to pay rs. 2,500/- (Two Thousand Five Hundred Only) for each Opponent then only the purpose of justice will be served in true sense. Hence, in reference to the Jugment of Court produced from the Plaintiff's side, as no any just and proper reason is found for not believing the arguments stated by the Opponent, at this stage this Court respectfully agrees with the Judgment of the Court. But as it is not co-relevant with the facts of the present Suit on behalf of the Plaintiff, so this Court believes that it is not helpfull to the Plaintiff. On considereing such, this court clearly believes that the Plaintiff is not able to prove on record the issues properly and satisfactorily towards his side in the said case. In reference to all the aforementioned discussion, the answer of issue no. 1 is held in negative and answers of issue no. 2 to 4 are held in

C/SA/215/2021 JUDGMENT DATED: 21/10/2021

affirmative, accordingly the answer of issue no. 5 in negative and for issue no. 6 - I believe justifiable to pass the Final Order as below.

- : Final Order :-

1. It is Ordered to reject the present Suit of the Plaintiff.

2. It is Ordered to the Plaintiff to pay Rs. 2,500/- (Rupees Two Thousand Five Hundred Only) to each of the Opponents.

3. It is Ordered to the Plaintiff to bare the cost of suit of himself as well as of the Opponent.

4. Decree to be drawn according to the Order."

6.1 Being aggrieved and dissatisfied by the judgment and decree passed by the trial Court, the appellant approached the Appellate Court. The Appellate Court confirmed the judgment and decree passed by the trial Court. The paragraph-18 and operative order read thus :-

"18. In view of the aforesaid, it is hereby concluded that the PlaintiffAppellant has failed to establish on record that there were found irregularity in the selection process. The PlaintiffAppellant has come up before the Court, therefore, burden is fasten upon him to prove the facts of his case for satisfaction of the court by adducing and producing cogent evidence, and he has to stand on his own leg and cannot find lecuna on the part of the Defts.'side as against this the DeftsRespondents have established on record that to fill up the

C/SA/215/2021 JUDGMENT DATED: 21/10/2021

disputedpost, names from the Employment Exchange were sought for, and thereafter, interview panel consisting 3 members were conducted oral interview, and marks were given to each candidates, and as per the remarks of the committee/panel members, it was decided to sent the said finalize list to its Head Office, and subsequently, Deft.

No.4 was given appointment, and as such, the judgment of the Learned Trial Court is perused by this court and found that the Learned Trial Court has recorded the findings after appreciating the evidence on record. The Learned Trial Court has not committed any error while passing the impugned judgment and decree. Therefore, the judgment and decree passed by the Learned Trial Court is just, legal, proper and in consonance with the documentary as well as oral evidence adduced before it and the same is not required to be interfered with by this court. Therefore I answer Issue No.1 and 2 are in negative accordingly, and following order is passed.

ORDER

1. The appeal stands dismissed.

2. The judgment and decree passed by the Learned 5 th Addl. Senior Civil Judge, Bhavnagar in Reg. Civil Suit No.203/2000 on 15.02.2018 stands confirmed.

3. Looking to the facts and circumstances of the case, the parties shall bear their own cost.

 4. R&P,            if     any,      along           with            copy         of        this
 judgment,          be transmitted to the concerned trial court.






      C/SA/215/2021                                     JUDGMENT DATED: 21/10/2021



      5. Decree be drawn accordingly.

Dictated and signed in Open court today, on this 5th Day of April, 2021."

7. Heard Mr. Bhargav Pandya, the learned AGP appearing for the respondent - State. He categorically denied the facts stated by the appellant in the present appeal and vehemently opposed the appeal. It was submitted that findings of both the Courts below concurrently held against the appellant herein. He submitted that no notice was served to the defendants under Section 80 of the Civil Procedure Code, 1908 therefore the suit was not tenable. He submitted that the suit was barred by Section 9 of C.P.C. He submitted that no prima facie case is made out against the respondents, hence the appeal may be dismissed. He submitted that if the present appeal is allowed, then it would cause general administration difficulties for the respondents. The selection procedure was conducted after adopting due process of Law and the name of the appellant was not included in the merit list, therefore he was not selected. As the appellant was not found fit for the disputedpost, he was not selected by the competent authority. The selection of the defendant No.4 was made as per the Rules, and he was selected by the Selection Committee and, therefore, the appellant has no right to challenge such act and decision of the respondents. It was further submitted by Mr. Pandya that the decision of the

C/SA/215/2021 JUDGMENT DATED: 21/10/2021

respondent authority is binding to all the candidates. In view of above he lastly requested to dismiss the appeal.

8. In the case of Bimla Devi vs. State of Himachal Pradesh & Ors., reported in JT 2010 (10) SC 466, the Hon'ble Supreme Court in para 6 held as under :-

"6. This Court in Dalpat Abasaheb Solunke (supra), held as follows :

"It is needless to emphasise that it is not the function of the Court to hear appeals over the decisions of the Selection Committees and to scrutinize the relative merits of the candidates. Whether a candidate is fit for a particular post or not has to be decided by the duly constituted Selection Committee which has the expertise on the subject. The court has no such expertise. The decision of the Selection Committee can be interfered with only on limited grounds, such as illegality or patent material irregularity in the Constitution of the Committee or its procedure vitiating the selection, or proved mala fides, affecting the selection etc. It is not disputed that in the present case the University had constituted the Committee in due compliance with the relevant status.

The Committee consisted of experts and it selected the candidates after going through all the relevant material before it. In sitting in appeal over the selection so made and in setting it aside on the ground of the so called comparative merits of the candidates as assessed by the

C/SA/215/2021 JUDGMENT DATED: 21/10/2021

Court, the High Court went wrong and exceeded its jurisdiction."

6.1 In Durga Devi (supra), this Court held as follows :

"......the selection of the appellants has been quashed by the Tribunal by itself scrutinising the comparative merits of the candidates and fitness for the post as if the Tribunal was sitting as an appellate authority over the Selection Committee. The selection of the candidates was not quashed on any other ground. The Tribunal fell in error in arrogating to itself the power to judge the comparative merits of the candidates and consider the fitness and suitability for appointment. That was the function of the selection committee."

6.2 Therefore, if the Selection Board which prescribed the qualifications for the post, bona fide proceeded on the basis that a Trade Certificate in Cutting & Tailoring is equivalent to a Trade Certificate in Dress Making, and on that basis made the appointment, and that has been accepted by the Tribunal and the High Court as proper, we do not consider it a fit case for interference after 11 years, even if appellant has made out some difference between the two trades."

9. Heard learned advocates appearing for the respective parties. This Court has gone through the judgment and order passed by the trial Court as well as Appellate Court, the appellant herein raised the following questions of law for consideration of this Court which are produced thus :-

C/SA/215/2021 JUDGMENT DATED: 21/10/2021

"1. Whether the judgement and order passed by Learned appellate is Erroneous, without application of mind, perverse and against the principle of law.

2. Whether the appellant - plaintiff is proved the opponent no. 2 and 3 have selected candidate for the post of craft teacher as per the circular and rules of the government.

3. Whether the appellant - plaintiff has proved that the disputed post is for the person who having experience of tailoring work.

4. Whether the appellant has proved that the appellant - plaintiff is better qualified than the opponent no. 4.

5. Whether the appellant proved that he has fulfilled the requirement for the said post by documentary evidences."

9.1 The appellant herein and the defendant No.4 appeared in interview for the post of Craft Teacher in Observation Home on 24.6.1999. The defendant No.4 was appointed to the said post. It is the case of the appellant that the appellant was more qualified and having the requisite qualification as compared to the defendant No.4. It is however also an admitted fact that the name of the appellant did not figure at Serial Nos.1, 2 and 3 in the merit-list. Merely possessing the requisite qualification for the disputed post would not entitle the appellant as a fit candidate for the said post. The

C/SA/215/2021 JUDGMENT DATED: 21/10/2021

qualification is a general criteria and all the candidates who possessed the requisite qualification were called for the interview and, therefore, it could not be presumed that the candidates called for the interview would be selected. In every interview, selection is made on the basis of performance in the said interview which embodies other criteria such as nature of work, grasping power, family background, communication skills and so on. It is not the case of the appellant that though the appellant possessed the requisite qualification, he was not called for the interview. On the contrary, the appellant accepted that the name of the appellant was not included in the merit-list amongst first three candidates.

9.2 It is also not the case of the appellant that after being declared as a successful candidate in the oral interview the appointment was given to some other candidate. At this stage, it is pertinent to note that the interview committee consisted of three members and, therefore, it cannot be presumed that all the three members of the interview committee did not follow the rules and regulation. Further no other candidate out of fourteen or fifteen candidates who appeared at the interview have been aggrieved by the said selection process. At the instance of a failed candidate who did not even figure in the merit-list amongst the first three candidates and which is candidly accepted by the appellant, the selection process cannot be inferred by this Court on the ground that the procedure adopted by the competent authority was de hors the

C/SA/215/2021 JUDGMENT DATED: 21/10/2021

rules and regulation. There is nothing on record to suggest that the appellant was intentionally refrained from appointment to the disputed post.

9.3 The appellant has failed to produce any material on record that the respondent No.4 was not found to be eligible and that the appellant could have been easily selected for appointment to the disputed post. There were other eligible candidates and the appellant would not automatically become entitle for appointment to the said disputed post. Even if there was some infirmity in the selection process, the appointment could have been given to the other candidates who were higher in merit then the appellant herein, more so when the interview process as well as merit-list are not challenged by the appellant herein.

9.4 In the case of Gurnam Singh (D) by Lrs. and others vs. Lehna Singh (D) by Lrs., reported in AIR 2019 SC 1441, the Hon'ble Supreme Court in paragraphs 14 and 18 held as under:-

"14. When a substantial question of law can be said to have arisen, has been dealt with and considered by this Court in the case of Ishwar Dass Jain (Supra). In the aforesaid decision, this Court has specifically observed and held :

"Under Section 100 CPC, after the 1976 amendment, it is essential for the High Court to formulate a substantial question of law and it is not permissible to reverse the

C/SA/215/2021 JUDGMENT DATED: 21/10/2021

judgment of the first appellate court without doing so. There are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered, would have led to an opposite conclusion. The second situation in which interference with findings of fact is permissible is where a finding has been arrived at by the appellate court by placing reliance on inadmissible evidence which if it was omitted, an opposite conclusion was possible. In either of the above situations, a substantial question of law can arise."

18. Before parting with the present judgment, we remind the High Courts that the jurisdiction of the High Court, in an appeal under Section 100 of the CPC, is strictly confined to the case involving substantial question of law and while deciding the second appeal under Section 100 of the CPC, it is not permissible for the High Court to reappreciate the evidence on record and interfere with the findings recorded by the Courts below and/or the First Appellate Court and if the First Appellate Court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in Second Appeal. We have noticed and even as repeatedly observed by this Court and even in the case of Narayanan Rajendran v. Lekshmy Sarojini, (2009) 5 SCC 264, despite the catena of decisions of this Court and even the mandate under Section 100 of the CPC, the High Courts under Section 100 CPC are disturbing the concurrent findings of facts and/or even the findings recorded by the First Appellate Court, either

C/SA/215/2021 JUDGMENT DATED: 21/10/2021

without formulating the substantial question of law or on framing erroneous substantial question of law.

Therefore, we are constrained to observe as above and remind the High Courts the limitations under Section 100 of the CPC and again hope that High Courts would keep in mind the legal position before interfering in Second Appeal under Section 100 of the Code of Civil Procedure."

9.5 The questions of law raised by the appellant herein cannot be said to be construed to be substantial questions of law for entertaining the present second appeal.

9.7 In view of this Court, no substantial question of law arise for determination of present second appeal. Further also concurrent findings arrived at by both the Courts below and the appeal being devoid of merit, the same is required to be dismissed and the same is dismissed.

(VAIBHAVI D. NANAVATI,J) K.K. SAIYED