Monday, 4 January 2016

Distinction between right of appeal and forum before which such right is available

 The next question is whether such as amendment
would apply to the pending suit. The submission on behalf of the
respondent no. 1 that the decree passed in the suit relates back to
the filing of the suit, even if accepted, cannot come to the aid of
the respondent no. 1. This is because assuming so, this would
necessarily presuppose that the suit is maintainable in accordance
with law. It is trite that although a right of appeal is a substantive
right, it does not include a right as to forum. Thus, a distinction
has to be drawn between a right of appeal and the forum before
which such right is available. The provision as to forum is
essentially a part of adjectival law or procedural law. It is further
well settled that a change in procedural law would apply and would
cover the pending dispute/litigation unless otherwise provided
either expressly or by necessary implication. Rule 87-A of the
Rules of 1986 as it stands, does not show that any pending
proceedings, have been saved thereunder. In this regard a useful
reference may be made to the case of New India Insurance Co.
Ltd. Vs. Smt. Shanti Misra, reported in AIR 1976 SC 237
IN THE HIGH COURT OF BOMBAY AT GOA
FIRST APPEAL NO. 41 OF 2007
Smt. Nanda N. Haldankar,

Versus
 Smt. Nalini K. Kulkarni,

CORAM:- C.V. BHADANG, J.

 PRONOUNCED ON:- 10th APRIL, 2015
Citation;2015(6) MHLJ 901

A dispute as to seniority between two teachers (one of
whom is since dead) has dragged on for more than 28 years giving
rise to the present appeal.
2. The respondent no. 1-Smt. Nalini Kulkarni (since
deceased) had filed a Civil Suit No. 148/2004; [Regular Civil Suit
No. 200/88/A(old)], in which the present appellant-Smt. Nanda
Haldankar was the defendant no. 6. The present respondents nos.
2 to 6 were the original defendant nos. 1 to 5.
3. As per the plaint allegations, Samaj Seva Sangh,
(hereinafter referred to as, Trust), registered under the Societies
Registration Act was running a High School known as M & N
English High School (hereinafter referred to as, High School) and
was also running a Diploma Course of teaching under the name
and style, as “Samaj Seva Sangh Training College” (hereinafter
referred to as, Training College). Undisputedly, the High School
and Training College were at the relevant time governed by Goa,
Daman and Diu (Grant in Aid) Code (the Code, for short).FA 41/2007
4
4. According to the original plaintiff, she was appointed as
an Assistant Teacher, in the graduate category in the High School
on 10.06.1968. Further according to her, after she worked for two
weeks she was transferred to the Training College as Instructor.
She was re-transferred to the High School with effect from
09.06.1969. Thus, in short she claimed that her seniority in the
High School ought to have been reckoned from 10.06.1968 and
not from 09.06.1969, as determined by the respondent no. 3,
Director of Education. It appears that the management of the
High School had circulated a seniority list showing the appellant
senior to Smt. Nalini Kulkarni. In such circumstances, Nalini
Kulkarni had sent a representation on 22.03.1985. The Director of
Education after holding enquiry had decided that date of
appointment of Smt. Nalini Kulkarni in Graduate category should
be reckoned as 09.06.1969 and not 10.06.1968. According to the
original plaintiff, the appellant had joined the services after her
and she could not have been shown senior to her. It appears that
feeling aggrieved by the decision of the Director, the original
plaintiff had filed Writ Petition No. 188/1986 which was
subsequently withdrawn. It is thereafter that, now deceasedFA 41/2007
5
Nalini Kulkarni filed a Regular Civil Suit as stated aforesaid,
sometime in the year 1988 for the following reliefs:
(i) It may be declared that the services between
the two establishments i.e. Training College and
High School are transferable.
(ii) It may be declared that at the inception i.e. on
10.06.1968 , the plaintiff was appointed to the post
of Assistant Teacher in High School and thereafter
she was transferred to the Training College.
In the alternative to prayer (b), it may be held that
the plaintiff may be given seniority from
10.06.1968, as services to both the institutions are
transferable and the plaintiff be held to be entitled
for notional benefits based on her date of
appointment as 10.06.1968.
5. The respondent nos. 2 and 3 filed a written statement
contesting the claim. It was contended that the Civil Court has no
jurisdiction and the suit is not maintainable in law. It was also
contended that the services inter se between the High School and
Training College were not transferable. It was contended that the
seniority list drawn by the management was not approved. It was
denied that there was any cause of action to file the suit.
6. The respondent nos. 4, 5 and 6 contended that the suit
is barred by limitation and also on principles of res judicata in as
much as the respondent no. 1 had unconditionally withdrawn the
Writ Petiton No. 188/1986. It was also contended that the Civil
Court has no jurisdiction. It was contended that initially the
respondent no. 1 had applied for the posts of an Assistant Teacher
some time in March 1967 and by order dated 02.04.1967 she was
appointed from 05.06.1967, however, she did not join. The
respondent no. 1 applied afresh and in response, thereto she was
offered employment in the Training College which she accepted
and she accordingly joined in the Training College on 10.06.1968.
Thereafter by her application dated 09.06.1969, she applied for
the post of Headmistress in the High School as the earlier
Headmaster, Shri S.P. Joshi had left and she was asked to take the
charge of Headmistress from that day itself. She worked as such
during the academic year 1969-70 till June 1970 and on the
appointment of another Headmaster, she started working as an
Assistant Teacher. It was thus contended that the respondent no.
1 was appointed in the High School only from 09.06.1969 and not
from 10.06.1968, as claimed by her. FA 41/2007
7
7. The appellant (defendant no. 6) contested the suit on a
similar ground, namely the suit being barred by limitation and on
the ground that the Civil Court has no jurisdiction. The defence
based on unconditional withdrawal of Writ Petition No. 188/1986
was also raised. It was contended that the appellant after
obtaining a Post Graduation (M.A.) degree had joined the High
School on 22.07.1968 and was appointed on a graduate scale.
She obtained professional qualification namely, B.Ed in 1978. In
short it was contended that the appellant joined High School in
1968 when the respondent no. 1 was working in Training College
and as such, she could not be ranked senior to the appellant.
8. The learned Trial Court framed the following issues in
the matter:-
1. Whether the plaintiff proves that her services
were transferred from the High School to the
Training College ?
2. Whether the plaintiff proves that the services
between the said two establishments are
transferable ?FA 41/2007
8
3. Whether the plaintiff proves that she is entitled
for seniority from 10.06.1968 ?
4. Whether the defendant nos. 1 to 6 prove that
this Court has no jurisdiction ?
5. Whether the defendant nos. 3 to 6 prove that
the suit is barred by res judicata, the claim of
plaintiff having been decided in the writ
proceedings ?
6. What relief ? What Order ?
ADDITIONAL ISSUE:
1. Whether the defendant nos. 3 and 5 prove that
this Court has no jurisdiction to try and entertain
the subject matter of the suit, because the order of
Director of Education, Government of Goa can be
challenged before the Administrative Tribunal
and/or High Court ?
9. At the trial, the respondent no. 1 examined herself,
while on behalf of respondent nos. 1 and 2, one Dr. Thomas
Mathew, Deputy Education Officer was examined. On behalf of
respondent nos. 3, 4 and 5, Mr. Ankush Gawas, a retiredFA 41/2007
9
Headmaster of the High School was examined. The appellant
examined herself in her defence. The learned Trial Court by
judgment and order dated 22.12.2006 has decreed the suit.
Feeling aggrieved the original defendant no. 6 has come up in
appeal. During the pendency of the appeal, respondent no. 1 has
died and her legal representatives, 1(a) and 1(b) have been
brought on record.
10. I have heard Shri Pangam, learned Counsel for the
appellant, Shri Usgaonkar, learned Counsel for the respondent nos.
1(a) and 1(b), the learned Government Advocate for respondent
nos. 2 and 3 and Shri Bandodkar, learned Counsel for the
respondent nos. 4, 5 and 6. With the assistance of the learned
Counsel for the parties, I have perused the record and the
impugned judgment.
11. It is submitted by Shri Pangam, learned Counsel for the
appellant that respondent no. 1 had given a letter dated
12.05.1969 which would clearly show that she joined as Acting
Headmistress in the High School. It is submitted that theFA 41/2007
10
appellant has joined the High School on 22.07.1968, which is prior
to the joining of the respondent no. 1. It is thus submitted that
the Director was right in holding that the seniority of respondent
no. 1 has to be reckoned from 09.06.1969 and not from
10.06.1968, as claimed by her. The learned Counsel has also
raised a submission based on the want of jurisdiction of Civil
Court. It is submitted that the respondent no. 1 has
unconditionally withdrawn Writ Petition No. 188/1986. Insofar as
the contention of lack of jurisdiction in the Civil Court, is
concerned, it is contended that although at the time the parties
joined the High School, the same was governed by the Code,
subsequently, the Goa, Daman and Diu School Education Act,
1984 (Act of 1984, for short) came to be enacted, which came into
force on 24.07.1985. It is submitted that the suit is filed
thereafter in the year 1988. The learned Counsel has referred to
the provisions of Section 22 and Section 27 of the Act of 1984, in
order to submit that the Civil Court would lack jurisdiction. The
learned Counsel has pointed out that the provisions of Rule 87-A
as amended with effect from 11.08.1994 of the Goa, Daman and
Diu School Education Rules, 1986 (Rules of 1986, for short), inFA 41/2007
11
order to submit that during the pendency of the suit, a remedy of
appeal to the Administrative Tribunal was provided and thus, the
suit was not maintainable. The learned Counsel has placed
reliance on the decision of the Hon'ble Apex Court in the case of
Sarguja Transport Service Vs. S.T.A. Tribunal, Gwalior,
reported in AIR 1987 SC 88, in order to submit that the
respondent no. 1 having withdrawn Writ Petition No. 188/1986
unconditionally and without seeking leave or permission of the
Court, was not justified in filing the suit in respect of same subject
matter and reliefs.
12. Shri Usgaonkar, learned Counsel for the respondent
nos. 1(a) and 1(b) submitted that there is enough material on
record to show that the respondent no. 1 had applied for the post
of Assistant Teacher and not for the post of Instructor in the
Training College. It is submitted that respondent no. 1 had joined
as Assistant Teacher in the High School on 10.06.1968 and by
letter dated 12.05.1969 her services were transferred to the
Training College. It is submitted that she was re-transferred to the
High School and for sometime, she worked as Headmistress andFA 41/2007
12
thereafter as an Assistant Teacher. The learned Counsel has taken
me through the impugned judgment, in order to show that the
Trial Court rightly considered the oral and documentary evidence
on record, to come to the conclusion that respondent no. 1 was
appointed as Assistant Teacher, prior to the appellant in the High
School and as such, it was the respondent no. 1 who ranked senior
to the appellant. It is submitted that the learned Trial Court was
justified in holding that the letter dated 09.06.1969 was obtained
from the respondent no. 1 “For setting the record right”. It is
submitted that there is enough material on record to show that the
respondent no. 1 never applied for the post of Instructor and she
was in fact transferred from the High School to the Training
College. So far as the objection to the maintainability of the suit is
concerned, it is submitted that although the Rules of 1986 were
amended during the pendency of the suit, the same will not
operate retrospectively. The learned Counsel submitted that the
decree in the suit operates retrospectively from the date of filing of
the suit and it relates back to the date of institution and in that
view of the matter, the amendment of the Rules of 1986 providing
an appeal to the Administrative Tribunal, cannot have the effect ofFA 41/2007
13
taking away the jurisdiction of the Civil Court, to entertain the suit.
13. The learned Government Advocate for the respondent
nos. 2 and 3 has submitted that the Director was right in holding
that the seniority of the respondent no. 1 has to be reckoned from
09.06.1969. The learned Government Advocate has fairly
submitted that as long as there is no financial implication/burden
on the Government, he has nothing to add.
14. Shri Bandodkar, learned Counsel for the respondent
nos. 4, 5 and 6 has also supported the appellant in order to submit
that the seniority of the respondent no. 1 has to reckoned from
09.06.1969.
15. On hearing the learned Counsel for the parties and on
perusal of record, I find that the appeal has to be allowed on the
ground of lack of jurisdiction in the Civil Court. It would appear
from the issues which are reproduced above that the issue no. 4
covers the additional issue no. 1 also. Both these issues are on
the point of jurisdiction of the Civil Court to try and entertain theFA 41/2007
14
subject matter of the dispute. Before going to that issue, I would
briefly go to the submission of unconditional withdrawal of Writ
Petition No. 188/1986. The learned Trial Court vide issue no. 5
has found that the said petition was dismissed as withdrawn and
was not decided on merits and as such, the bar of res judicata
cannot apply. It would appear that the question is not about res
judicata, of the principles akin to or underlying the provisions of
Order XXIII, Rule 1 of the Civil Procedure Code. However, I find
that even in this regard, submission on behalf of the appellant
based on the decision in the case of Sarguja Transport Service
(supra) cannot be accepted. The question before the Hon'ble
Supreme Court, in the case of Sarguja Transport Service
(supra) was whether a party can be permitted to approach the
High Court by filing writ petition under Article 226 of the
Constitution of India, once the party having withdrawn a similar
petition without seeking leave/permission of the Court. The
Hon'ble Supreme Court held that in order to prevent a litigant
from abusing the process of the Court and as a matter of public
policy, he should not be permitted to take re-course to similar
remedy again. However, it has been further held that thisFA 41/2007
15
disability may not apply, if a party subsequently takes re-course to
other remedy, such as filing a suit or a petition under Article 32 of
the Constitution of India. The following observations in paragraph
9 of the judgment may be reproduced with profit:
“The point for consideration is whether a petitioner
after withdrawing a writ petition filed by him in the
High Court under Article 226 of the Constitution of
India without the permission to institute a fresh
petition can file a fresh writ petition in the High
Court under that Article. On this point the decision
in Daryao's case (supra) is of no assistance. But
we are of the view that the principle underlying
Rule 1 of Order XXIII of the Code should be
extended in the interests of administration of
justice to cases of withdrawal of writ petition also,
not on the ground of res judicata but on the
ground of public policy as explained above. It
would also discourage the litigant from indulging in
bench-hunting tactics. In any event there is no
justifiable reason in such a case to permit a
petitioner to invoke the extraordinary jurisdiction
of the High Court under Article 226 of the
Constitution once again. While the withdrawal of a
writ petition filed in High Court without permission
to file a fresh writ petition may not bar otherFA 41/2007
16
remedies like a suit or a petition under Article 32
of the Constitution since such withdrawal does not
amount to res judicata, the remedy under Article
226 of the Constitution of India should be deemed
to have been abandoned by the petitioner in
respect of the cause of action relied on in the writ
petition when he withdraws it without such
permission. In the instant case the High Court was
right in holding that a fresh writ petition was not
maintainable before it in respect of the same
subject-matter since the earlier writ petition had
been withdrawn without permission to file a fresh
petition. We, however, make it clear that whatever
we have stated in this order may not be considered
as being applicable to a writ petition involving the
personal liberty of an individual in which the
petitioner prays for the issue of a writ in the nature
of habeas corpus or seeks to enforce the
fundamental right guaranteed under Article 21 of
the Constitution since such a case stands on a
different footing altogether. We, however, leave
this question open.”
(Emphasis supplied)
Thus, the withdrawal of the earlier petition cannot come
in the way of the respondent no. 1, filing a suit. In such
circumstances, the contention in this regard has to be refuted. FA 41/2007
17
16. This takes me to the question of lack of jurisdiction in
the Civil Court. It is undisputed that at the time, the appellant
and the respondent no. 1 joined the High School, the services
were governed by the Code. Subsequently, the Act of 1984 came
into force with effect from 24.07.1985. The suit is filed in the year
1988. Section 22 and 27 of the Act of 1984 which are relevant for
the purpose may be re-produced as under:
“22. Appeal.- (1) Subject to the provisions of subsection
(2), an appeal shall lie to the Tribunal from
the following orders:
(a) refusing to recognize a school under subsection
(2) of section 5;
(b) withdrawing the recognition of a school under
sub-section (3) of section 5;
(c) stopping, reducing or suspending aid under
sub-section (2) of section 7;
(d) refusing to grant permission under sub-section
(3) of section 9;
(e) [dismissing, removing from service any
employee or reducing him in rank or retiring him
compulsorily or otherwise terminating his services
under sub-sections (2), (2a), (4) and (4a) as the
case may be, of section 11.] FA 41/2007
18
(2) Every such appeal shall be preferred within
thirty days from the date of communication of the
order:
Provided that the Tribunal may entertain an
appeal after the expiry of the said period of thirty
days if it is satisfied that the appellant was
prevented by sufficient cause from preferring the
appeal in time.
(3) On receipt of any such appeal, the tribunal
shall, after giving the appellant a reasonable
opportunity of being heard and after making such
enquiry as it deems proper, pass such orders as it
may deem fit, after recording the reasons
therefore.”
“27. Jurisdiction of Civil courts barred.- No
Civil Court shall have jurisdiction in respect of any
matter in relation to which the Administrator or the
Director or any other person authorised by the
Administrator or Director or any other Officer or
authority appointed or specified by or under this
Act, is empowered by or under this Act to exercise
any power, and no injunction shall be granted by
any civil court in respect of anything which is done
or intended to be done by or under this Act.”FA 41/2007
19
17. It can thus be seen that remedy of appeal provided
under Section 22 of the Act of 1984 is in respect of the specified
orders as set out in sub-section 1 of Section 22 of the Act of 1984.
Section 27 of the Act of 1984 inter alia provides that no Civil Court
shall have jurisdiction in respect of any matter in relation to which
an Administrator or Director or any person authorised by
Administrator or Director is empowered to decide. The question is
whether the Director was authorised to entertain the dispute as to
seniority and if yes, what was the remedy available to the
aggrieved party, in the event, the decision of the Director was
against it. It appears that the Government of Goa has framed
Rules under the Act better known as Goa, Daman and Diu School
Education Rules, 1986, which were amended with effect from
11.08.1994, whereby Rule 87-A came to be introduced, which
reads as under:
“87A. Seniority list.— (1) It shall be the
responsibility of the management to compile
categorywise seniority list of employees in order of
their seniority, as defined in rule 87, and
maintain them upto date, in accordance with
the norms laid down by the Director. FA 41/2007
20
(2) Draft seniority lists drawn up for each
category, shall include the names of all
employees of that category working in the
school/schools run by the management.
(3) A copy of the draft seniority list, so
drawn up for each category, shall be made
available to each employee of that category, for his
records.
(4) Any objection to the draft seniority list if any,
shall be submitted by the employee in writing to
the Head of the school within fifteen days
from the date of receipt of the
copy of such draft list.
(5) The management shall after due scrutiny and
verification of such objections/claims as are
received and after hearing each of such employees
as may be affected by possible revision in the list
revise, the draft list, if necessary.
(6) A copy of the revised seniority list as
finalized by the management, for each
category, shall be made available to each
employee of that category for his/her record.
The employee shall acknowledge the receipt ofFA 41/2007
21
such list for the record of the school.
(7) In case an employee has any
objection/claim in respect of the seniority list
so finalized by the management, he/she may
prefer an appeal against the same to the
Director, within 30 days from the date of
receipt of the finalized list, who after making
such enquiries as may be deemed necessary, shall
decide the case:
Provided that any party aggrieved by the
decision of the Director, may prefer an appeal to
the Tribunal.”
18. It can thus be seen that the Rule 87-A of the Rules of
1986 provides for a procedure in the matter of management
drawing a seniority list of the employees as per their seniority as
provided under Rule 87-A. The proviso to Rule 87-A(7) of the
Rules of 1986 states that a party aggrieved by the decision of the
Director, may prefer an appeal to the Tribunal. It can thus be seen
that during the pendency of the suit, the Rules of 1986 came to be
amended, thereby providing a remedy of appeal to employee
aggrieved by adverse decision of the Director, in determining
seniority, as in the present case.
19. The next question is whether such as amendment
would apply to the pending suit. The submission on behalf of the
respondent no. 1 that the decree passed in the suit relates back to
the filing of the suit, even if accepted, cannot come to the aid of
the respondent no. 1. This is because assuming so, this would
necessarily presuppose that the suit is maintainable in accordance
with law. It is trite that although a right of appeal is a substantive
right, it does not include a right as to forum. Thus, a distinction
has to be drawn between a right of appeal and the forum before
which such right is available. The provision as to forum is
essentially a part of adjectival law or procedural law. It is further
well settled that a change in procedural law would apply and would
cover the pending dispute/litigation unless otherwise provided
either expressly or by necessary implication. Rule 87-A of the
Rules of 1986 as it stands, does not show that any pending
proceedings, have been saved thereunder. In this regard a useful
reference may be made to the case of New India Insurance Co.
Ltd. Vs. Smt. Shanti Misra, reported in AIR 1976 SC 237.FA 41/2007
23
Although that was a case arising under the provisions of Motor
Vehicles Act, 1939 (old Act), the enunciation of the law on the
point, is relevant for the present purpose. In that case on account
of death of one Amarnath Misra, his heirs being his widow and two
sons had become entitled to file a civil suit seeking compensation.
However, shortly after the date of the accident, an Accident Claims
Tribunal came to be constituted under the amended provisions of
Section 110(a) and 110(f) of the Motor Vehicles Act, 1939. The
question was whether action for compensation would lie before the
Tribunal. The following observations in paragraph 5 of the
judgment are to the point:
“On the plain language of sections 110A and 110F
there should be no difficulty in taking the view that
the change in law was merely a change of forum
i.e. a change of adjectival or procedural law and
not of substantive law. It is well-established
proposition that such a change of law operates
retrospectively and the person has to go to the
new forum even if his cause of action or right of
action accrued prior to the change of forum. He will
have a vested right of action but not a vested right
of forum. If by express words the new forum is
made available only to causes of action arisingFA 41/2007
24
after the creation of the forum, then the
retrospective operation of the law is taken away.
Otherwise the general rule is to make it
retrospective. The expressions "arising out of an
accident" occurring in sub- section (1) and "over
the area in which the accident occurred",
mentioned in sub-section (2) clearly show that the
change forum was meant to be operative
retrospectively irrespective of the fact as to when
the accident occurred. To that extent there was no
difficulty in giving the answer in a simple way. But
the provision of limitation of 60 days contained in
sub-section (3) created an obstacle in the straight
application of the well-established principle of law.
If the accident had occurred within 60 days prior to
the constitution of the Tribunal then the bar of
limitation provided in sub-section (3) was not an
impediment. An application to the Tribunal could
be said to be the only remedy. If such an
application, due to one reason or the other, could
not be made within 60 days then the Tribunal had
the power to condone the delay under the proviso.
But if the accident occurred more than 60 days
before the constitution of the Tribunal then the bar
of limitation provided in sub-section (3) of section
110A on its face was attracted. This difficulty of
limitation led most of the High Courts to fall backFA 41/2007
25
upon the proviso and say that such a case will be a
fit one where the Tribunal would be able to
condone the delay under the proviso to subsection
(3), and led others to say that the Tribunal
will have no jurisdiction to entertain such an
application and the remedy of going to the Civil
Court in such a situation was not barred under
section 110F of the Act. While taking the latter
view the High Court failed to notice that primarily
the law engrafted in sections 110A and 110F was a
law relating to the change of forum.”
(Emphasis supplied)
20. In the present case, also, there is nothing to suggest
that the right of the appeal to the Tribunal was made available
only to causes of action subsequent to the date on which Rule
87-A, of the Rules of 1986 was introduced. Thus, in my
considered view, on introduction of Rule 87-A, the Civil Court
lacked jurisdiction to entertain a dispute as to seniority as the
remedy of appeal was provided before the Administrative Tribunal.
For this reason, the impugned judgment and decree cannot be
sustained.FA 41/2007
26
21. In the result, the appeal is allowed. The impugned
judgment and decree is set aside. The suit is hereby dismissed.
In the circumstances, there shall be no order as to
costs.
C. V. BHADANG, J.
Print Page

No comments:

Post a Comment