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Narayan Shivaram Kulkarni Vs. State of Karnataka - Court Judgment

LegalCrystal Citation
SubjectCivil;Service
CourtKarnataka High Court
Decided On
Case NumberW.P. No. 4163 of 1979
Judge
Reported inILR1986KAR37
ActsConstitution of India - Article 226; Specific Relief Act, 1963 - Sections 34
AppellantNarayan Shivaram Kulkarni
RespondentState of Karnataka
Appellant AdvocateW.K. Joshi, Adv.
Respondent AdvocateS. V. Narasimhan, HCGP for R-1 to 3
Excerpt:
.....thing is that even after such a decree was passed, as stated in the statement of objections, the state government has not chosen to prefer any appeal against the said judgment, though the finding of the learned munsiff on the question of limitation as well as the declaration granted by him to the effect that respondent-4 should be deemed to be a sub-inspector with effect from 24-2-1959 and circle inspector of police from 1971, were grossly erroneous and patently unsustainable. in my opinion this is a fit case in which the government should enquire into the reasons, and circumstances in which no appeal was preferred against the judgment and as to whether the officers who were charged with the duty of considering the judgment and advising the government to prefer an appeal, had failed to.....orderrama jois, j.1. in this writ petition, a sub-inspector, in the police department of the state government, has prayed for quashing the order made by the inspector general of police, by which respondent 4 one s.b. shinde, is given seniority with effect from 25-2-1959, as police sub-inspector and placed above the petitioner, and has also prayed for the issue of a writ of mandamus directing respondents 2 and 3 to promote the petitioner as sub-inspector of police with effect from a date prior to 25-2-1959.2. the facts of the case, in brief, are as follows : the petitioner and respondent-4 were originally head constables in the police department of the former state of bombay. they stood allotted to this state, under section 115 of the states reorganisation act with effect from 1-11-1956......
Judgment:
ORDER

Rama Jois, J.

1. In this Writ Petition, a Sub-Inspector, in the Police Department of the State Government, has prayed for quashing the order made by the Inspector General of Police, by which respondent 4 one S.B. Shinde, is given seniority with effect from 25-2-1959, as Police Sub-Inspector and placed above the petitioner, and has also prayed for the issue of a writ of mandamus directing respondents 2 and 3 to promote the Petitioner as Sub-Inspector of Police with effect from a date prior to 25-2-1959.

2. The facts of the case, in brief, are as follows : The Petitioner and respondent-4 were originally head constables in the Police Department of the former State of Bombay. They stood allotted to this State, under Section 115 of the States Reorganisation Act with effect from 1-11-1956. The Petitioner was senior to respondent-4. The Petitioner was promoted as Police Sub-Inspector with effect from 14 11-1960. Respondent-4 was promoted as Sub-Inspector much later. Rut by an order made by the Inspector General of Police on 19-1-1979 (Annexure-A) respondent-4 was shown at Sl. No. 41(a) in the gradation list of Police Sub Inspectors on the ground that he was deemed to have been promoted with effect from 25-2-1959. The Petitioner claims that as respondent-4 was his junior, he was also entitled to be promoted as Sub-Inspector of Police with effect from a date earlier to 25-2-1959. In the alternative, the Petitioner has also prayed for quashing the order of the Inspector General of Police dated 19-1-1979 (Annexure-A) in which the seniority is given to respondent-4 above the Petitioner.

3. In the statement of objections filed on behalf of the respondents, a preliminary objection is raised with regard to the prayer of the Petitioner for retrospective promotion to the post of Sub-Inspector with effect from a date earlier to 25-2-59. The objection is that the Petition should be rejected on the ground of inordinate delay and laches on the part of the Petitioner in approaching this Court.

4. Learned Counsel for the Petitioner, however, submitted that the objection that the Petition should be rejected on the ground of delay and laches had no force as respondent-4 had been promoted as Sub-Inspector of Police with effect from 25-2-1959 and an order giving him seniority and recognising his promotion as Sub-Inspector of Police has been made as late as in January 1979 and the Writ Petition was presented in April 1979.

5. Learned Counsel for respondents 1 to 3 submitted that the order of the inspector General of Police treating respondent-4 as Sub-Inspector of Police with effect from 25-2-1959 was made only in implementation of the judgment of the Munsiff, Gokak in Civil Suit O.S. No. 28/1978 which had become final, Having not been appealed against, it gives no fresh cause of action tor the petitioner.

6. In my opinion, the preliminary objection raised by respondents 1 to 3 regarding the second prayer of the Petitioner is well-founded. It the Petitioner considered that he had the right to be promoted in 1959, he should have resorted to appropriate legal remedy within a reasonable time thereafter. He has not done so. This Writ Petition is presented in April 1979 i.e., there has been a delay of twenty years in presenting the Petition, having regard to the prayer made by the Petitioner that he should be given promotion from a date earlier to 25-2-1959. Learned High Court Government Pleader is right in his submission that the order made in favour of respondent-4 in January 1979 furnishes no fresh cause of action to the Petitioner as that order has been made only in the implementation of a decree of a Civil Court. Therefore, I hold that the prayer of the Petitioner for a direction to respondents 1 to 3 to accord promotion to him to the post of Sub-Inspector of Police from a date prior to 25.2,1959 is liable to be rejected on the ground of delay and laches on the part of the petitioner.

7. The first prayer of the petitioner is that the order made by the Inspector General of Police giving seniority to respondent-4 in the post of Sub-Inspector of Police with effect from 25-2-1959 and placing him above the petitioner should be quashed. The ground urged for the petitioner in support of this prayer is that respondent-4 who was junior to the petitioner in the cadre of Sub-Inspectors of Police is now placed above him by treating him as Sub-Inspector of Police with effect from 25-2-1959 in accordance with the decree made by the Munsiff, Gokak, in Civil Suit O. S. No. 28/1978 to which the petitioner was not a party.

8. In my view the contention urged for the petitioner is unexceptionable. While the decree made in the Civil suit cannot be set aside, by an order made in this petition preferred under Article 226 of the Constitution, the petitioner is entitled to have the impugned order set aside as the right of the petitioner regarding his seniority in the cadre of Police Sub-Inspectors and in the cadre of Police Inspectors to which cadre also he is said to have been now promoted, cannot be adversely affected pursuant to an order made in the said civil suit, as admittedly the petitioner was not a party to the said suit. No other person above whom respondent-4 has been given the seniority and who is senior to the petitioner was also made a party to the said suit. Learned Counsel for the petitioner submitted that respondent-4 was at Sl.No. 207 in the gradation list of Police Sub-Inspectors having been promoted much later than the petitioner, whereas the petitioner was shown at Sl.No. 148 having been promoted much earlier to respondent-4. It is not disputed that the petitioner was senior to respondent-4 in the cadres of Head Constables and Police Sub-Inspectors. That right of the petitioner could not be affected even pursuant to an order made by a Court to which he was not a party, as it is settled law that rights of persons who are not parties to a suit cannot be adversely affected by an order or decree made in such a suit. Therefore, the impugned order is liable to be quashed.

9. Before concluding this judgment. I consider it my duty to expose the disturbing features about the judgment in O.S.28/1978. A copy of the plaint, the written statement and the judgment in that suit were produced at the time of hearing by the Learned Counsel for the petitioner. They are kept along with the records of the Writ Petition. The contents of these documents indicate that the said suit was filed by respondent-4 before the Court of Munsiff, Gokak on 6-3-1978. The prayer in the plaint was as follows :

'12. Prayer....The plaintiff prays that selling aside all the contentions of the defendants if any

(a) It be declared that the plaintiff be deemed to P.S.I. from 1959 and C.P.I. from 1971.

(b) It be also declared that he is entitled to all emoluments and benefits as P.S.I. from 1959 and C.P.I. from 1971 and the defendants be directed accordingly.'

The operative portion of the order made by the Munsiff reads as follows :

'The suit of the plaintiff is decreed with costs. It is hereby declared that the plaintiff shall be deemed to be P.S.I. from 25-2-1959 and consequently as C.P.I. from 1971. However, he is nor entitled to the benefits of emoluments and difference in pay etc.'

(Underlining by me)

10. Various issues were framed by the Munsiff having regard to the pleadings. One of the issues, namely, issue No. 5 was, as to whether the defendants prove that the suit was either premature or barred by limitation? The reason and finding recorded on issue No. 5 is contained in paragraph 21 of the judgment. It reads -

'21. Issue No. 5 : In para 4 and 5 of the w.s. it is contended that the plaintiff's claim is premature and that it is barred by limitation. The defendants cannot blow hot and cold at the same time. If the suit can be said to be premature it cannot be said to be barred by limitation and vice versa. The plaintiff has stated that he has written all along for the last about 19 years hoping that his case would be considered in view of his several representations but the department has not taken any action. It is further stated that only after exhausting all the remedies open to him he has resorted to this proceeding. This submission has not been repelled by the defts. In his evidence also the plaintiff has stated that he has made representations right from 1959 till he filed the suit. But he has not got any reply from the Government. He has further explained as to why he was constrained to file this suit stating that because his juniors were to be promoted as inspectors immediately he had to file this suit even without giving notice to the defts. He has further staled that the Government has not assigned any reason, also for not giving promotion to him when he was qualified and eligible. This statement has not been materially challenged in the cross examination. Merely because the plaintiff has not been informed that no promotion would be given to him it cannot be presumed that he would be given promotion to which he is entitled in due course. Therefore, I do not think that this suit is either premature or barred by limitation as contended. Therefore, I record my finding on this issue in the negative.'

11. As stated earlier, the suit was for a declaration to he effect that the petitioner was a Sub-Inspector of Police in 1959 and Police Inspector in the year 1971, As regards the prayer of respondent-4 (plaintiff in the suit) for declaration that he was a Police Sub-Inspector from 1959, it should be pointed out that assuming that the Court had jurisdiction to grant such a relief, which it did not have as shown later, the relevant article of the Limitation Act which was applicable was either Article 131 of the Limitation Act, 1908 or Article 104 of the Limitation Act of 1963. The old Article 131 prescribed the period of limitation for filing suit for establishing a periodically recurring right. The period of limitation prescribed was three years from the time when the enjoyment of that right was first refused. The residuary Article 120 of the 1908 Act prescribed the limitation of six years for declaratory suits and the limitation was to commence on the date when the right to sue accrued. If the case fell under Article 131 of the 1908 Act, the suit was barred by limitation even before the coming into force of the 1963 Act, as the period of limitation had expired on 25-2-1962 and the suit was filed on 6-3-1978 i.e., 16 years after the limitation had expired. Even on the basis that the residuary Article 120 of the 1908 Act was applicable, as the period of limitation fixed was six years from the date when the right to sue accrued and the said period had been reduced to three years under the corresponding Article 113 contained in the schedule to the 1963 Act, Respondent-4 could have filed the suit within a period of five years from the date of commencement of the 1963 Act or within the period prescribed by the 1908 Act, whichever expired earlier, as provided in Section 30 of the 1963 Act. Hence the suit could have been filed on or before 25-2-1965. But it was filed on 6-3-1978 i.e., 13 years after that period had expired. Therefore from any approach, the prayer of Respondent-4 in the suit for declaration that he was a Sub-Inspector of Police from 1959 was hopelessly barred by limitation. Even regarding the prayer of Respondent-4 for declaration that he was an Inspector of Police from 1971, as the period of limitation fixed under the provisions of the 1963 Act was only three years whether it fell under Article 104 or 113 of that Act, even that prayer was barred by limitation by 1974 as the suit was filed on 6-3-1978 i.e., four years after the period of limitation had expired. In the relevant portion of the order of the Munsiff set out earlier there is no reference to any of the Articles, either of the 1908 Act or of the 1963 Act, but nevertheless he held that the suit was not barred by limitation.

12. Section 3 of the Limitation Act reads as follows :

'3(1) Subject to the provisions contained in Sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence.

xx xx xx (Underlining is mine)

According to the said provision, even if limitation is not pleaded as a bar to a suit, it is the duty of the Court to examine the question of limitation and dismiss the suit if the suit is barred by limitation. In the present case, a specific plea had been raised in the written statement to the effect that the suit had been barred by limitation though the relevant articles were cot cited and though it was un-understandably pleaded that the suit was also premature. I am amazed that the Learned Munsiff without referring to any of the Articles of the Limitation Act held that a suit filed on 6-3-1978 praying for declaration that respondent-4 was a Sub-Inspector of Police from 1959 and a Police Inspector from 1971, was within the period of limitation. That a glaring error of this type could have been committed by the Munsiff was beyond my comprehension.

13. Having held that the suit was not barred by limitation in the above manner, the learned Munsiff proceeded to grant a declaration that respondent-4 must be deemed to be a Police Sub-Inspector with effect from 25.2.1959 and consequently a Police Inspector from 1971. It is well settled that ordinarily even this Court in the exercise of its extra ordinary power to issue the prerogative writs under Article 226 of the Constitution has no power to issue a writ of mandamus directing any authority to promote a Government servant to any post. Even after a Petitioner before this Court establishes that his case was not considered for promotion to a particular post on a particular date though he was entitled to be so considered having regard to the rules regulating the promotions to the said cadre, this Court can only issue a direction requiring the concerned authority to consider the case of such petitioner for promotion as on the date it was due and it is for the competent authority to take all the relevant factors into consideration and to decide as to whether the said person was suitable for promotion on such date or not. This law was declared by the Supreme Court in the case of State of Mysore v. Syed Mahamood, : (1970)ILLJ370SC . That was an appeal from a Division Bench judgment of this Court. This Court had issued a writ of mandamus directing the State Government to promote the respondents therein who were petitioners before this Court, to a higher post in the Statistical Department of the State Government. While Supreme Court confirmed the finding of this Court that the case of the respondents therein had not been considered for promotion as on the date it was due though they had the right for such consideration, the Supreme Court set aside the order of this Court to the extent a direction had been issued to the State Government to promote the writ petitioners' and issued a modified direction to the State Government to consider the fitness of those officials for promotion. Relevant portion of the judgment is contained in paragraph-5 of the judgment and it read :

We are of the opinion that the State Government should be directed at this stage to consider the fitness of Syed Mahamood and Bhao Rao for promotion in 1959. If on such examination the State Government arbitrarily refuses to promote them, different consideration would arise. The State Government would upon such consideration be under a duty to promote them as from 1959 if they were then fit to discharge the duties of the higher post and if it fails to perform its duty, the Court may direct it to promote them as from 1959.'

14. Again in the case of State of Mysore v. C. R. Seshadri, : (1974)ILLJ301SC the Supreme Court reiterated the view that the Court could only issue a direction to the Government to consider the case of a civil servant for promotion and could not substitute its own judgment for that of the Government. It is only in exceptional cases as indicated by the Supreme Court in Syed Mahamood's case, : (1970)ILLJ370SC and in the case of District Registrar v. M. B. Koya Kutty, AIR 1979 SC 1060 a writ of mandamus may be issued to the Appointing Authority to promote the concerned civil servant. (See also T. Rangaiah v. Commissioner of Income-Tax.) 1981(1) KLJ 279 But even, in such cases, after the writ is issued, an order promoting and appointing the person concerned to the specified post, has got to be issued by the appointing authority and it is only on the issue of such order the person stands promoted. The Court cannot exercise the power of the Appointing Authority to promote a civil servant, or to declare that he shall be deemed to have been promoted even without an order of appointment issued by the competent authority. This being the scope of the power of even the Superior Courts empowered to issue the prerogative writs, it is startling that the Learned Munsiff proceeded to give a declaration that Respondent-4 must be deemed to have been promoted as Sub-Inspector of Police with effect from 25-2-1959 and Inspector of Police from 1971 and in the latter case even without specifying the date.

15. The direction given by the Munsiff in the above manner is as glaring a mistake as his finding on the question of limitation, both of which may not be attributed by those who are adversely affected by the order either to inadvertence or error of judgment.

16. But the more surprising thing is that even after such a decree was passed, as stated in the statement of objections, the State Government has not chosen to prefer any appeal against the said judgment, though the finding of the Learned Munsiff on the question of limitation as well as the declaration granted by him to the effect that Respondent-4 should be deemed to be a Sub-Inspector with effect from 24-2-1959 and Circle Inspector of Police from 1971, were grossly erroneous and patently unsustainable. In my opinion this is a fit case in which the Government should enquire into the reasons, and circumstances in which no appeal was preferred against the judgment and as to whether the officers who were charged with the duty of considering the judgment and advising the Government to prefer an appeal, had failed to do so.

17. For the reasons aforesaid, I make the following order :

(i) The Writ Petition is partly allowed.

(ii) The impugned order dated 19-1-1979 made by the Inspector General of Police (Exhibit-A) is quashed.

(iii) The seniority assigned to the petitioner and Respondent 4 in the gradation list of Sub-Inspectors prior to the issue of the impugned order shall remain undisturbed and the same position shall be reflected and maintained in the seniority list of Inspectors of Police.

(iv) The Writ Petition is dismissed in all other respects.


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