Dismissed

Abdul Jabbar v. State and Ors.

Rajasthan HC2 Apr 2024CSA/520/2009

Case brief

AI extract

What is this about?

Plaintiff denied appointment as PTI Grade-III sought restoration of trial court decree reversed on first appeal. Court allowed additional documents but held no substantial question of law arose, since selected candidates have no right to appointment and no one below appellant's merit was appointed, and dismissed the second appeal.

What did the court decide?

Application under Order 41 Rule 27 CPC allowed taking documents on record; second appeal dismissed; no order as to costs.

Abdul Jabbar Vs State and Ors. — Service and Employment | Rajasthan HC (2024)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Second Appeal No. 520/2009

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Abdul Jabbar S/o Abdul Gaffar, Behind Jama Masjid, Nadi Gate, Karauli

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----Appellant

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Versus

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State Of Rajasthan Through The District Collector, Karauli 2. District Education Officer Secondary, Karauli

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----Respondents

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For Appellant(s)	: Mr. Satish Kumar Sharma for Mr.
	Arvind Kumar Sharma
For Respondent(s)	: Mr. S. Zakawat Ali,AGC

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HON'BLE MR. JUSTICE ASHOK KUMAR JAIN

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Order

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02/04/2024

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Instant second appeal is preferred by appellant plaintiff aggrieved from judgment dated 27.07.2009 in civil appeal no. 127/2009 passed by learned Additional District Judge no.2, Karauli whereby an appeal preferred by respondents defendants aggrieved from judgment and decree dated 04.03.2002 in civil suit no. 72/1999 by learned Civil Judge ( Junior Division) Karauli was allowed and the plaint of the appellant was rejected. 2. The appellant plaintiff has also filed an application under Order 41 Rule 27 CPC for taking additional documents on record. A Co-ordinate Bench of this Court has directed for consideration of this application at the time of admission, therefore, we are considering the instant appeal on admission and also the application under Order 41 Rule 27 of CPC at this stage.

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Learned counsel for appellant submits that the plaintiff has filed a civil suit against the defendants for appointment on post of PTI Grade-III and the trial court after considering the evidence and documents has passed a decree in favour of appellant plaintiff but the first appellate court without considering the material on record has allowed the appeal of defendants and rejected the suit of plaintiff. He also submitted that the plaintiff was a meritorious person and who stood in merit but was denied appointment by the defendants. He also referred to the case of Jagram who was less meritorious but on a civil suit filed by him, a decree for appointment was passed in his favour and the order was upheld by this Hon’ble Court. He also submitted that the appellant is also entitled for restoration of original decree in the instant second appeal.

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Aforesaid contentions were opposed by learned counsel for State and he submitted that the second appeal of Jagram was dismissed on technical ground though, the judgment and decree in favour of Jagram is also against settled cannons of law. He also submitted that the judgment of first appellate court is based on judgment of Hon’ble Supreme Court and Co-ordinate Bench of this Court. He also submitted that no person inferior in merit to the present appellant was appointed by the respondents defendant, therefore, the appellant has no right to claim appointment on the post of PTI Grade-III.

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Heard learned counsel for the parties and perused the material available on record. Along with this appeal an application under Order 41 Rule 27 is filed by appellant plaintiff for taking judgment dated 20.05.2005 in civil appeal no. 43/2002 passed by

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learned District Judge, Karauli in first appeal titled as “ State of Rajasthan and Anr. Vs. Jagram” and order dated 16.04.2007 in S.B. Civil Second Appeal No. 70/2007 titled as “State of Rajasthan and Anr. Vs. Jagram” passed by a Co-ordinate Bench of this Court. 6. Having considered the submissions of learned counsel for the parties as the documents which were produced by the appellant plaintiff are judgment of courts, therefore, it is appropriate to take them on record. Thus, this application under Order 41 Rule 27 CPC is liable to be allowed. 7. A perusal of the instant case indicates that Abdul Jabbar and Kunwar Singh have filed two civil suits on the ground that in recruitment process relating to recruitment of PTI Grade-III in the year 1998-1999 the defendants had not given any appointment to the plaintiff and also did not disclose any reason for nonappointment. Learned trial court after considering the material on record has decreed the suit in favour of plaintiff and directed the respondents defendants to initiate process for appointment of plaintiff.

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Aggrieved from aforesaid, the defendants respondents have filed an appeal under Section 96 of CPC and same was allowed by the first appellate court which resulted into setting aside of judgment and decree in favour of present appellant-plaintiff.

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A perusal of record further indicated that the defendants have raised an issue on the process of appointment. The trial court after considering the material on record came to the conclusion that the defendants have failed to explain the stay order passed by the Hon’ble High Court, therefore, the trial court was of the view that the plaintiff is entitled for appointment.

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The first appellate court after considering the material on record and on the basis of judgment of Hon’ble Supreme Court and Co-ordinate Bench of this Court opined that a candidate is not entitled for appointment even if he was selected after due process. Similarly, a Co-ordinate Bench has dismissed the writ petition on the ground that as there was no ban on appointment process, so appointment is not possible.

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A perusal of record indicated that no one below the merit of present appellant was appointed by the defendant till the time of filing of civil suit and the appellant has failed to show that any person was appointed de hors the rules.

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As regard to case of Jagram is concerned, first appellate court has dismissed the appeal against decree by the Trial Court and when the order was challenged before this Court, second appeal was dismissed as same was filed after a delay of 397 days. The State of Rajasthan and District Education Officer have failed to give reasons for condonation of delay and same was noticed by this Court while deciding application on 16.04.2007.

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The order dated 16.04.2007 in S.B. Civil Second Appeal No. 70/2007 shows that the government Officials are either negligent or hand in gloves with Jagram. A Co-ordinate Bench of this Court has observed that the application under Section 5 of Limitation Act is very vague and no sufficient and cogent reasons were assigned in the application, which means the Government law officers need adequate capacity building programs to uplift their skills.

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In N number of judgments of Hon’ble Supreme Court including Brijesh Kumar Vs. State of Haryana and Ors. 2014 (11) SCC 351, Esha Bhattacharjee Vs. Managing

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Committee of Raghunathpur Nafar Academy and Ors. (2013) 12 SCC 649 Hon’ble Supreme Court has laid down that sufficient cause is a condition precedent for exercise of discretion by the Court for condoning the delay. Thus, the second appeal against Jagram was dismissed on technical grounds and same is not helpful for present appellant plaintiff.

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A perusal of material on record indicated that there was a ban on appointment process and moreover, the selected candidate has no right to seek appointment from department concerned. All these facts were considered by the first appellate court but the trial court on the basis of non-production of certain stay orders has decreed the suit. It is very well possible that the Officials of the Education Department have colluded with the plaintiff at grassroot level for non-production of documents before the trial court. Similarly, in case of Jagram, officials and concerned counsel were also responsible for poor pleadings which led to dismissal of application under Section 5 of Limitation Act and second appeal.

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In order to determine the substantial question of law we have to consider the test laid down by the Constitution Bench of Hon’ble Supreme Court in case of Chunilal V. Mehta & Sons.

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Ltd. Vs. Century Spg. and Mgf. Co. Ltd . AIR 1962 SC 1314

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Hon’ble Supreme Court has observed has observed as under:

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The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the

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general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."

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17. In case of Amar Singh Vs. Dalip Singh (2012) 13 SCC

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405 , Hon’ble Supreme Court explained the purpose of framing

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question of law in following manner:

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“a) The purpose of framing of substantial question of law is to give the parties an opportunity to come prepared on that particular question.

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b) When a substantial question of law is formulated by the Court then the same must be made known to parties and thereafter they have to be given an opportunity to advanced arguments thereon. c) If any additional questions were framed at the time of hearing, the Court must hear the parties on that question as well.”

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Hon’ble Court in case of Chandrabhan Vs. Saraswati 2022 SCC

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Online (SC) 1273 (decided on 22.09.2022) has summarised

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principle relating to Section 100 of CPC in following words:-

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“(i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof.”

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Hon’ble Supreme Court in case of Suresh Lataruji Ramteke versus Sau. Sumabai Pandurang Petkar & Ors. (Civil Appeal No. 6070/2023, arising out of SLP(C)No.20183 of 2022 decided on 21.09.2023) referred to the judgments and observed that the general rule is that the High Court will not interfere with the concurrent findings of the Courts below but same is not an absolute rule. The requirement, most fundamental

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under this section is the presence and framing of a “substantial question of law”. In other words, the existence of such a question is sine qua non for exercise of this jurisdiction.

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Having considered aforesaid, I am of the considered view that there is no substantial question of law which required adjudication of this Court, therefore, this second appeal is liable to be dismissed.

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