U.P. State Road Transport Corporation Through Its Deputy General Manager North Zone Vs. Sri Shiv Nath Sharma S/O Sri Nathni Sharma and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/513922
SubjectService;Civil
CourtUttaranchal High Court
Decided OnMay-21-2007
Judge Rajesh Tandon, J.
Reported in[2007(114)FLR772]
AppellantU.P. State Road Transport Corporation Through Its Deputy General Manager North Zone
RespondentSri Shiv Nath Sharma S/O Sri Nathni Sharma and ors.
DispositionAppeal dismissed
Excerpt:
- motor vehicles act, 1988[c.a.no.59/1988] section 166; [a.k. patnaik, cj, a.k. gohil & s. samvatsar, jj] application for compensation for personal injury death of injured claimant subsequently for some other reasons held, claim for personal injury will abate on the death of claimant. claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. - 11. that out of the aforesaid plaintiffs shri shiv nath sharma, shamim ahmad khan, abhay singh and jai karan singh and mahendra singh were called for training as conductors but were not appointed to the post of conductors despite their better position in selection list. 12. that rest of the plaintiffs were not called for training and were also not appointed as conductors despite their better position in the merit list. suit is bad for misjoinder of parties and misjoinder of causes of action. -(1) no suit shall lie against the state government or any local authority or any statutory corporation or company for any relief in respect of any matter relating to employment at the instance of any person who is or has been a public servant, including a person specified in [clauses (a) to (g) ] of sub-section (4) of section 1. (2) all suits for the like relief, and all appeals, revisions, applications for review and other incidental or proceedings (including all proceedings under order xxxix of the first schedule to the code of civil procedure, 1908) (act v of 1908), arising out of such suits, and all applications for permission to sue or appeal as pauper for the like relief, pending before any court subordinate to the high court and all revisions (arising out of interlocutory orders) pending before the high court on the date immediately preceding the appointed date shall abate, and their records shall be transferred [to the tribunal] and thereupon the tribunal shall decide therajesh tandon, j.1. heard shri ramji shrivastava, counsel for the appellant.2. by the present second appeal filed under section 100 of the code of civil procedure, the appellant has prayed for setting aside the judgment and decree dated 11.6.1984 passed by the civil judge, nainital.3. appeal is admitted on the following substantial questions of law:(1) whether the suit filed on behalf of plaintiff/respondent, was not barred by the provisions of the u.p. public service (tribunal)act, 1976?(2) whether the civil court had jurisdiction to entertain the suit, which had been filed by the plaintiff/respondent, praying for his appointment on the post of conductor in the corporation?(3) whether, the defendant/respondent has right to be appointed on the basis of waiting list after its expiry, which is prepared from time to time and the same is valid for one year or till the next waiting list is prepared?4. briefly stated, a suit was filed by the plaintiffs for declaration to the effect that the plaintiffs are eligible to be appointed as conductor under the u.p.s.r.t.c., kumaon region as per merits obtained by them and for mandatory injunction that the defendants be directed to appoint the plaintiffs exclusively on the basis of merit obtained by them in the selection made by the selection committee on 28/29-3-1980. it has been stated in the plaint that the applications for the recruitment of the post of conductors were invited by the u.p.s.r.t.c in the month of march. 1980 through its regional manager, kumaon region. the plaintiffs applied for the recruitment in response to the said advertisement. the qualification for the recruitment of the conductor was high school and a total of 800 candidates have submitted the applications. the selection committee has selected 165 candidates and merit list was prepared as per schedule a. thereafter, 15 candidates were called for the training. in paragraph no. 3 of the plaint, the plaintiffs have alleged to the following effect:7. that the defdt. no. 3 the regional manager upsrtc nainital arbitrarily and against the principles of natural justice and in violation of rules, called for training such candidates also who were far below in merit list and also appointed such candidates who could not be appointed on the basis of the merit list to the exclusion of the plaintiffs.5. in paragraph nos. 11 and 12 of the plaint, the plaintiffs have stated to the following effect:11. that out of the aforesaid plaintiffs shri shiv nath sharma, shamim ahmad khan, abhay singh and jai karan singh and mahendra singh were called for training as conductors but were not appointed to the post of conductors despite their better position in selection list.12. that rest of the plaintiffs were not called for training and were also not appointed as conductors despite their better position in the merit list.6. it has been alleged by the plaintiffs that the appointment of candidates which had been made by superseding the merit of the plaintiffs is illegal, void and against the principles of natural justice.7. a written statement was filed on behalf of the defendants denying the contentions made in the plaint, however, the contentions of para no. 1 have been admitted. defendants have submitted that no post was published or brought out in any news paper or notice board and only the a.r.m. is the appointing authority of the post of conductors. the appointments were made by the appointing authorities to cope with the emergent tourist seasonal rush. suit is bad for misjoinder of parties and misjoinder of causes of action. the court has not jurisdiction to decide the suit and the same is liable to be dismissed with costs.8. the trial court has dismissed the suit by holding that the plaintiffs have no right to claim the appointment as the merit list was prepared for only the particular season and further the state of u.p. was not impleaded as party and also that the matter should have been tried by the public service tribunal.9. the plaintiffs went in appeal. the appellate court allowed the appeal setting aside the judgment and decree dated 25.7.1983 and observed that the judgment of the learned munsif is not in accordance of law.10. counsel for the appellant has referred section 6 of the u.p. public services (tribunal) act, 1976 which barres the suit of the reinforcement of the u.p. public services (tribunal) act, 1976 and sub-class 2 further provides that the suit cannot be abated. section 6 of the u.p. public services (tribunal) act, 1976 is quoted below:6. bar of suits. - (1) no suit shall lie against the state government or any local authority or any statutory corporation or company for any relief in respect of any matter relating to employment at the instance of any person who is or has been a public servant, including a person specified in [clauses (a) to (g) ] of sub-section (4) of section 1.(2) all suits for the like relief, and all appeals, revisions, applications for review and other incidental or proceedings (including all proceedings under order xxxix of the first schedule to the code of civil procedure, 1908) (act v of 1908), arising out of such suits, and all applications for permission to sue or appeal as pauper for the like relief, pending before any court subordinate to the high court and all revisions (arising out of interlocutory orders) pending before the high court on the date immediately preceding the appointed date shall abate, and their records shall be transferred [to the tribunal] and thereupon the tribunal shall decide the cases in the same manner as if they were claims referred to it under section 4:provided that the tribunal shall, subject to the provisions of section 5, recommence the proceedings from the stage at which the case abated as aforesaid and deal with any pleadings presented or any oral or documentary evidence produced in the court as if the same were presented or produced before the tribunal.11. in view of the abatement of suit itself by virtue of subclass 2 of section 6 of u.p. public services (tribunal) act, 1976, substantial question of law no. 1 is decided in favour of the appellant and the second appeal is dismissed having been abated.
Judgment:

Rajesh Tandon, J.

1. Heard Shri Ramji Shrivastava, counsel for the appellant.

2. By the present second appeal filed under Section 100 of the Code of Civil Procedure, the appellant has prayed for setting aside the judgment and decree dated 11.6.1984 passed by the Civil Judge, Nainital.

3. Appeal is admitted on the following substantial questions of law:

(1) Whether the suit filed on behalf of plaintiff/respondent, was not barred by the provisions of the U.P. Public Service (Tribunal)Act, 1976?

(2) Whether the Civil Court had jurisdiction to entertain the suit, which had been filed by the plaintiff/respondent, praying for his appointment on the post of Conductor in the Corporation?

(3) Whether, the defendant/respondent has right to be appointed on the basis of waiting list after its expiry, which is prepared from time to time and the same is valid for one year or till the next waiting list is prepared?

4. Briefly stated, a suit was filed by the plaintiffs for declaration to the effect that the plaintiffs are eligible to be appointed as conductor under the U.P.S.R.T.C., Kumaon Region as per merits obtained by them and for mandatory injunction that the defendants be directed to appoint the plaintiffs exclusively on the basis of merit obtained by them in the selection made by the Selection Committee on 28/29-3-1980. It has been stated in the plaint that the applications for the recruitment of the post of conductors were invited by the U.P.S.R.T.C in the month of March. 1980 through its Regional Manager, Kumaon Region. The plaintiffs applied for the recruitment in response to the said advertisement. The qualification for the recruitment of the conductor was High School and a total of 800 candidates have submitted the applications. The Selection Committee has selected 165 candidates and merit list was prepared as per schedule A. Thereafter, 15 candidates were called for the training. In paragraph No. 3 of the plaint, the plaintiffs have alleged to the following effect:

7. That the Defdt. No. 3 the Regional Manager UPSRTC Nainital arbitrarily and against the principles of natural justice and in violation of rules, called for training such candidates also who were far below in merit list and also appointed such candidates who could not be appointed on the basis of the merit list to the exclusion of the plaintiffs.

5. In paragraph Nos. 11 and 12 of the plaint, the plaintiffs have stated to the following effect:

11. That out of the aforesaid plaintiffs Shri Shiv Nath Sharma, Shamim Ahmad Khan, Abhay Singh and Jai Karan Singh and Mahendra Singh were called for training as conductors but were not appointed to the post of conductors despite their better position in selection list.

12. That rest of the plaintiffs were not called for training and were also not appointed as conductors despite their better position in the merit list.

6. It has been alleged by the plaintiffs that the appointment of candidates which had been made by superseding the merit of the plaintiffs is illegal, void and against the principles of natural justice.

7. A written statement was filed on behalf of the defendants denying the contentions made in the plaint, however, the contentions of para No. 1 have been admitted. Defendants have submitted that no post was published or brought out in any news paper or notice board and only the A.R.M. is the appointing authority of the post of conductors. The appointments were made by the appointing authorities to cope with the emergent tourist seasonal rush. Suit is bad for misjoinder of parties and misjoinder of causes of action. The court has not jurisdiction to decide the suit and the same is liable to be dismissed with costs.

8. The trial court has dismissed the suit by holding that the plaintiffs have no right to claim the appointment as the merit list was prepared for only the particular season and further the State of U.P. was not impleaded as party and also that the matter should have been tried by the Public Service Tribunal.

9. The plaintiffs went in appeal. The appellate court allowed the appeal setting aside the judgment and decree dated 25.7.1983 and observed that the judgment of the learned Munsif is not in accordance of law.

10. Counsel for the appellant has referred Section 6 of the U.P. Public Services (Tribunal) Act, 1976 which barres the suit of the reinforcement of the U.P. Public Services (Tribunal) Act, 1976 and sub-class 2 further provides that the suit cannot be abated. Section 6 of the U.P. Public Services (Tribunal) Act, 1976 is quoted below:

6. Bar of suits. - (1) no suit shall lie against the State Government or any local authority or any statutory corporation or company for any relief in respect of any matter relating to employment at the instance of any person who is or has been a public servant, including a person specified in [clauses (a) to (g) ] of Sub-section (4) of Section 1.

(2) All suits for the like relief, and all appeals, revisions, applications for review and other incidental or proceedings (including all proceedings under Order XXXIX of the first schedule to the Code of Civil Procedure, 1908) (Act V of 1908), arising out of such suits, and all applications for permission to sue or appeal as pauper for the like relief, pending before any court subordinate to the High Court and all revisions (arising out of interlocutory orders) pending before the High Court on the date immediately preceding the appointed date shall abate, and their records shall be transferred [to the Tribunal] and thereupon the Tribunal shall decide the cases in the same manner as if they were claims referred to it under Section 4:

Provided that the Tribunal shall, subject to the provisions of Section 5, recommence the proceedings from the stage at which the case abated as aforesaid and deal with any pleadings presented or any oral or documentary evidence produced in the court as if the same were presented or produced before the Tribunal.

11. In view of the abatement of suit itself by virtue of subclass 2 of Section 6 of U.P. Public Services (Tribunal) Act, 1976, substantial question of law No. 1 is decided in favour of the appellant and the second appeal is dismissed having been abated.