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Vinod Kumar Sahu v. Ajay Kumar Tandon And Ors. - SECOND APPEAL No. 2720 of 1986 [2007] RD-AH 6584 (10 April 2007)


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Court No. 19

Second Appeal No. 2720 of 1986

Vinod Kumar Sahu


Ajit Kumar Tandon & Ors.,


Hon. Dilip Gupta, J.

This Second Appeal has been filed by the defendant for setting aside the judgment and decree of both the Courts below.

The plaintiff/respondent no. 1 had filed the suit for setting aside the ex-parte decree given in Original Suit No. 210 of 1979. The Courts below have held that the ex-parte decree was obtained with collusion of the defendants and that in any view of the matter, as the post of Lecturer in Mathematics was to be filled up by promotion and not by direct recruitment, the defendant could not have been appointed as a Lecturer by direct recruitment.

While admitting this appeal, the substantial questions of law that had been framed was ''whether the plaintiff could challenge the decision of the Managing Committee of the College to filled up the post by direct recruitment' and ''whether the plaintiff/respondent was entitled to automatic promotion and even if the post was to be filled up by promotion'. The third substantial question of law that had been framed by this Court was ''whether the suit was barred by time'.

I have heard learned counsel for the appellant and the learned counsel appearing for the respondent.

A clear finding has been recorded by the Courts below that the ex-parte decree had been obtained by defendant no. 1 by collusion. No substantial question of law has been framed regarding this issue. In this view of the mater, if the ex-parte decree had been obtained by collusion with the defendants, the decree of the Courts below for setting aside this ex-parte decree is justified.

The submission of the learned counsel for the appellant is that the post of Lecturer was required to be filled up by direct recruitment and not by promotion. This submission cannot be accepted as both the Courts below have recorded a categorical finding of fact that the vacant post fell within the 40% quota required to be filled up by promotion. Learned counsel for the appellant, however, urged that in view of the additional evidence brought before this Court, this finding is not correct. The additional document that has been filed is a seniority list for the year 1979-80. The entries made in the said list cannot conclusively determine whether a teacher had been appointed by promotion or by direct recruitment. It is the appointment letter itself which will determine whether a teacher has been appointed by promotion or by direct recruitment. In such circumstances, there is no scope for interference in the findings recorded by the courts below.

Learned counsel for the appellants did not make any submission with regard to the third substantial question of law namely whether the suit was barred by time.  

The Second Appeal is, therefore, without any merit. It is, accordingly, dismissed

Date: 10.4.2007



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