Gujarat High Court
B R Acharya vs State Of Gujarat & 2 on 1 August, 2016
Author: Anant S.Dave
Bench: Anant S. Dave, Z.K.Saiyed
C/LPA/407/2010 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 407 of 2010
In
SPECIAL CIVIL APPLICATION NO.12170 OF 1993
With
LETTERS PATENT APPEAL NO. 423 of 2010
In
SPECIAL CIVIL APPLICATION NO. 7884 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE Z.K.SAIYED
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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B R ACHARYA....Appellant(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
================================================================
Page 1 of 67
HC-NIC Page 1 of 67 Created On Sat Aug 06 00:07:37 IST 2016
C/LPA/407/2010 CAV JUDGMENT
Appearance:
MR MD RANA, ADVOCATE for the Appellant(s) No. 1
MR HARDIK SONI AGP for the Respondent(s) No. 1-3
===========================================================
CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE Z.K.SAIYED
Date : 1/08/2016
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE ANANT S. DAVE) 1 The appellant has filed Letters Patent Appeal No.407 of 2010 and Letters Patent Appeal No.423 of 2010 challenging common order dated 15.12.2008 passed in Special Civil Application No.7884 of 2005 with Special Civil Application No.12170 of 1993 whereby the learned Single Judge rejected both the petitions.
1.1 The appellant has filed Special Civil Application No.12170 of 1993 with the following main prayers:
"[a] Your Lordships may be pleased to issue a writ in the nature of mandamus or certiorari or any other appropriate writ or order or directions to:
i] quash and set aside termination by transfer to lower cadre in absence of de Page 2 of 67 HC-NIC Page 2 of 67 Created On Sat Aug 06 00:07:37 IST 2016 C/LPA/407/2010 CAV JUDGMENT notification or reversion order in case of confirmed ClassII petitioner w.e.f. 1973 itself;
ii] the action of the respondent of not granting payscale and gazetted status w.e.f. 1973 itself [instead granting only cadre w.e.f.1985) and;
iii] completely depriving the petitioner of all the promotional avenues since 1963 inclusive of benefit of 9/18/27 and..
[b] Your Lordships may be pleased to hold and declare that above actions of the respondents are illegal, arbitrary and void abinitio and the said actions have blocked the petitioners way upto ClassI position prior in time compared to respondent No.3 and [c] Your Lordships may be pleased to grant consequential reliefs in terms of full pay in ClassII w.e.f. 1973 itself, ClassI w.e.f. 1981;
[d] Your Lordships may be pleased to direct the respondent No.1 to grant lawful posting to the petitioner with immediate effect as an effective measure of interim relief.
[e] Your Lordships may be pleased to direct the respondent No.1 to consider the petitioner's case first for ClassI [in charge] position and/or confirmed position on the next available opportunity and continue to treat the petitioner as Class I Officer for the purposes of cadre and pay during the pendency and final disposal of this petition;"Page 3 of 67
HC-NIC Page 3 of 67 Created On Sat Aug 06 00:07:37 IST 2016 C/LPA/407/2010 CAV JUDGMENT 1.2 The appellant has filed Special Civil Application No.7884 of 2005 with the following main prayers:
"[B] Your Lordships may be pleased to stay the implementation and operation of order dated 14305 and order dated 301297 pending admission and final hearing of this petition.
[C] Your Lordships may be pleased to quash and set aside the order dated 14305 passed by the Hon'ble Tribunal consequent there of order dated 301297 passed by the respondent No.1 be quashed and set aside.
[D] Your Lordships may be pleased to direct the Respondents to pay consequential benefits such as pay and allowances from 11189 to 31196 the date of the superannuation of the petitioner.
[E] Your Lordships may be pleased to direct the Respondents to pay all pensionary benefit with effect from 12 1996 till date.
[F] Your Lordships may be pleased to direct the Respondents to pay a lumpsum amount of Rs.1,00,000/ one Lac as an interim relief against the pensionary benefits for livelihood of the Petitioner pending admission and final hearing of this Petition".
2 That certain details about service record of the appellant, as referred to in Page 4 of 67 HC-NIC Page 4 of 67 Created On Sat Aug 06 00:07:37 IST 2016 C/LPA/407/2010 CAV JUDGMENT earlier litigation undertaken by the him and suo motu contempt proceedings initiated by this Court, and these Letters Patent Appeals are as under:
1963The appellant was appointed as Probation Officer and post of work at Junagadh, Jamnagar, Amreli, Surendranagar under the different acts like Children Act, Beggars Act, and Bombay Probation of Offenders Act.
1969 to 1973 The appellant worked as Probationary Officer at Amreli and Surendranagar.
04.09.1973 The Probation of Offenders Act, 1958 which was enacted by Government of India as far back as 1958 was made applicable to the State of Gujarat on September, 1973 in its entirety. The Probation of Offenders Act, by Subsection (3) of Section 1 provided that it shall come into force on such date as may be notified in the Official Gazette and different dates may be appointed for different parts of the State.Page 5 of 67
HC-NIC Page 5 of 67 Created On Sat Aug 06 00:07:37 IST 2016 C/LPA/407/2010 CAV JUDGMENT 17.01.1973 The Gujarat Probation of Offenders Rules, 1973 were made by the State Government in exercise of the power conferred upon it by Section 17 of the Probation of Offenders Act, 1958 and were made on 17th January, 1973.
19.05.1975 Departmental inquiry in respect of the charges was initiated while he was at Surendranagar. In the enquiry the punishment of stoppage of two increments and transfer was imposed. The punishment orders were appealed before the Government. Government for quite some time did not decide the appeal.
As the appeal was not decided the petitioner / appellant filed Special Civil Application No.2214 of 1979. The Hon'ble Court directed the department to decide the appeal pending the petition within 45 days. The government instead of deciding the appeal by itself, transferred it to Gujarat Civil Services Tribunal Gandhinagar.
05.08.1975 Page 6 of 67 HC-NIC Page 6 of 67 Created On Sat Aug 06 00:07:38 IST 2016 C/LPA/407/2010 CAV JUDGMENT So far as Special Civil Application No. 2215 of 1979 was concerned, the petitioner was first served with a chargesheet on Aug. 5, 1975.
07.08.1975 In Special Civil Application No. 806 of 1975 decided by D. A. Desai, J. (as he then was of this High Court) on August 7, 1975, it was held that, the State of Gujarat and the Director of Social Defence must classify Probation Officers and the Chief Probation Officer as Gazetted Officers in Class II Service of the State of Gujarat. On an interpretation of Rule 7 of the Gujarat Probation of Offenders Rules, 1973 and other relevant statutory provisions, D. A. Desai, J. held that the petitioners of that petition, namely, Probation Officers and the Chief Probation Officer, were entitled to be notified as Gazetted Officers, holding Class II posts. A writ of mandamus directing the State of Gujarat and the Director of Social Defence to classify the petitioners of that petition as Gazetted Officers of Class II Service from the date on which the Gujarat Probation of Offenders Rules came into force, was issued against the respondents and the respondents were directed to give the benefits to the petitioners consequent, Page 7 of 67 HC-NIC Page 7 of 67 Created On Sat Aug 06 00:07:38 IST 2016 C/LPA/407/2010 CAV JUDGMENT upon such classification.
Thus, there was a direct and precise declaration of law by this High Court on the question of classification of the posts of Probation Officers functioning under the provisions of Probation of Offenders Act, 1958.
09.03.1976 He was found guilty and penalty of stoppage of promotion for ten years was imposed upon him.
31.07.1976 He appealed to the state Government and by the order dated July 31, 1976 the State Government allowed the appeal and set aside the order of penalty on the ground that rules of natural justice had been violated by the Director of Social Defence.
24.12.1976 A fresh inquiry was started on December 24, 1976 and a chargesheet was served upon the said petitioner.
28.06.1977 Page 8 of 67 HC-NIC Page 8 of 67 Created On Sat Aug 06 00:07:38 IST 2016 C/LPA/407/2010 CAV JUDGMENT The Inquiry Officer submitted his report holding the said petitioner to be guilty of the charges levelled against him.
29.06.1977 Show cause notice regarding the penalty proposed to be imposed on him was issued.
31.08.1977 After hearing explanation, by the order dated Aug. 31, 1977 the Director of Social Defence imposed the penalty of removal from service.
Against this decision of the Director of Social Defence the petitioner filed a civil suit at Bhavnagar.
22.08.1979 The Tribunal did not decide the controversy in appeal as the Tribunal clearly held that the appellant is a confirmed classII Gazette Officer and the Tribunal has no jurisdiction to decide the appeal of the appellant as per the judgment of this Court he has been declared as Gazette Page 9 of 67 HC-NIC Page 9 of 67 Created On Sat Aug 06 00:07:38 IST 2016 C/LPA/407/2010 CAV JUDGMENT Officer ClassII. The appeal was remanded to the Government since the High Court directed to pass speaking order in SCA No.2214 of 1979, the case was submitted to the Court in a pending petition. The High Court set aside the order of transfer to Navsari. The judgment was delivered and reported in 1979(2) GLR 557 given by Hon'ble Mr. Justice P.D.Desai. The order was quashed while he was at Bhavnagar.
August, 1979 Special Civil Application No. 2215 of 1979 was filed.
25.09.1979 Hon'ble Mr. Justice P. D. Desai [as His Lordship then was] considered the whole position and he gave time to the respondents in Special Civil Application No. 2215 of 1979 to make amends and the matter was adjourned to October 12, 1979.
10.10.1979 Amendments were made by an order passed by the State Government cancelling the order dated August 31, 1977 removing Acharya, the petitioner, from service On cancellation of that order, Mr. Page 10 of 67 HC-NIC Page 10 of 67 Created On Sat Aug 06 00:07:38 IST 2016 C/LPA/407/2010 CAV JUDGMENT Acharya was deemed to have been continued in service even from the date of his removal from service and he was posted as Probation Officer under the provisions of the Probation of Offenders Act at Jamnagar under the Chief Probation Officer, Jamnagar, and it was also mentioned in the order dated Oct. 10, 1979 "This order shall not operate as a bar to taking fresh action or proceedings against Shri B.R. Acharya as per rules...." The main reason why time to make amendments was granted by P. D. Desai, J. on Sept. 29. 1979 was that quite contrary to the legal position laid down by this Court in Special Civil Application No. 806 of 1975 by D. A. Desai, J. in his judgment and order of August 7. 1975 and in spite of it being pointed out to the Director of Social Defence and the State Government that in view of the fact that Mr. Acharya, the petitioner, was a Gazetted Class II Officer, the entire inquiry proceedings against him were bad and vitiated, his contentions were totally brushed aside and the order of removal from service came to be passed.
2.1 So far as Special Civil Application No.12170 of 1993 is concerned, learned Single Judge [Hon'ble Ms. Justice R.M.Doshit][as Her Ladyship then was] vide oral judgment dated 16.02.1998 dismissed the writ petition with Page 11 of 67 HC-NIC Page 11 of 67 Created On Sat Aug 06 00:07:38 IST 2016 C/LPA/407/2010 CAV JUDGMENT regard to prayer of implementing the Government Notification dated 30.10.1979 and to pay the appellant salary of the Gazette Officer from 30.10.1979. Further prayer was to give benefit of promotion to the petitioner to the higher posts in ClassII service and ClassI service of the Government of Gujarat as necessary consequences and consequently benefits thereof.
2.2 However, the above oral judgment of learned Single judge was challenged in Letters Patent Appeal No.289 of 1998 and by judgment dated 27.04.1998, Division Bench of this Court quashed and set aside oral judgment dated 16.02.1998 only on the short ground that earlier orders were passed on 25.02.1994 and 27.04.1994 and that Special Civil Application No.12170 of 1993 was to be heard with another Special Civil Application No.7267 of 1992 and the above fact was not brought on record before the leaner single Judge and, therefore, the learned Single Judge was requested to hear the matter along with other petitions. However, no opinion was expressed on merit of the matter.
2.3 Subsequently, vide order dated 29.06.1999 passed in Special Civil Application No.12170 of 1993 this writ petition was delinked from Special Civil Application No.7267 of 1992 Page 12 of 67 HC-NIC Page 12 of 67 Created On Sat Aug 06 00:07:38 IST 2016 C/LPA/407/2010 CAV JUDGMENT and was ordered to be heard accordingly by learned Single Judge.
2.4 It appears that subsequently matter was even referred to Lok Adalat held in High Court of Gujarat and since the learned advocates appearing for the parties were not present, by order dated 09.11.2003 it was ordered to be placed before the appropriate court.
2.5 It is the case of the petitioner that he was holding ClassII officer status pursuant to decision in Special Civil Application No.806 of 1975 and Appeal No.555 of 1979 by Gujarat Civil Services Tribunal holding the petitioner as confirmed ClassII officer and ignoring the above fact the respondent transferred the appellant on nongazetted post on 25.05.1987, which was challenged in Special Civil Application No.4199 of 1987, whereby initially stay was granted on 27.08.1987, but on the date of hearing on 30.12.1988 no one represented the appellant as the appellant was appearing as party in person the writ petition came to be dismissed for default and ad interim relief granted earlier came to be vacated and notice was discharged. Upon filing of Misc. Civil Application No.504 of 1989, by an order dated 16.10.1989 writ petition came to be restored. Later on, Special Civil Page 13 of 67 HC-NIC Page 13 of 67 Created On Sat Aug 06 00:07:38 IST 2016 C/LPA/407/2010 CAV JUDGMENT Application No.4199 of 1987 came to be withdrawn on 20.10.1989 as the appellant intended to make a representation for cancellation of order of transfer.
2.6 Further, with regard to fixation of seniority of appellant, another grievance had arisen since the appellant was not placed in the seniority list at appropriate place and though representation was made on 01.05.1987 and reminder was made on 27.10.1988 it remained undecided. Therefore, Special Civil Application No.6273 of 1989 was filed and by order dated 02.02.1990, the respondent No.2, an authority of the Government was directed to decide the representation within 8 weeks from the date of receipt of the order. On 05.02.1991 Government order to which reference will be made in later part of this judgment.
2.7 That upon receipt of order dated 02.02.1990 of Special Civil Application No.6273 of 1989 concerned Secretary of the Department of Government of Gujarat finally rejected all claims of the petitioner with regard to conformation of ClassII status, place in the list of seniority and consequential promotion and other monetary benefits. A detailed reference to the above order dated 05.02.1991 of Government of Gujarat Page 14 of 67 HC-NIC Page 14 of 67 Created On Sat Aug 06 00:07:38 IST 2016 C/LPA/407/2010 CAV JUDGMENT 05.02.1991 will be made in later part of this judgment.
2.8 For about a period of 2½ months, the appellant was on leave due to eye ailment and his leave was not sanctioned.
2.9 On 11.03.1992 show cause notice was issued that calling upon the appellant to show cause as to why he should not be dismissed from service on the charge of unauthorized absenteeism and reply was filed by the appellant on 09.04.1992, however, order of dismissal of the appellant came to be passed on 19.02.1994. The case of the appellant is that he was removed by a junior and an officer not competent to dismiss him from service. Challenging the above order of dismissal dated 10.02.1994, Special Civil Application No.2739 of 1994 was filed by the appellant having taken one of the main grounds that it was passed in violation of Article 311(2) of the Constitution of India without even issuing charge sheet and holding departmental inquiry.
2.10 On 31.01.1996 petitioner came to be retired on attaining the age of superannuation.
2.11 By judgment dated 05.05.1997 passed in the above writ petition, order of dismissal of Page 15 of 67 HC-NIC Page 15 of 67 Created On Sat Aug 06 00:07:38 IST 2016 C/LPA/407/2010 CAV JUDGMENT the appellant came to be quashed and set aside with a liberty to hold and complete inquiry against the appellant in accordance with law and to pass order accordingly.
2.12 Admittedly, on 03.09.1997 inquiry officer submitted his report to which reply and defence statement was filed by the appellant on 18.12.1997, but finally the authority of State of Gujarat passed order of dismissal dated 30/31.12.1997 with retrospective effect from 19.10.1989. As against the above, Appeal No.142 of 1998 was preferred before the Gujarat Civil Services Tribunal challenging the order of dismissal and the appeal came to be decided on 14.03.2005 and being aggrieved by the said order, the appellant has preferred Special Civil Application No.7884 of 2005 and it was finally decided by learned Single Judge vide judgment and order dated 16.12.2008, which is under challenged.
2.13 However, for better appreciation of various contentions raised by the learned counsel for the appellant, proceedings undertaken prior to 1991 with regard to status of the appellant as ClassII Gazetted Officer, dispute about his placement in the list of seniority, benefit of pay scales and other consequential monetary Page 16 of 67 HC-NIC Page 16 of 67 Created On Sat Aug 06 00:07:38 IST 2016 C/LPA/407/2010 CAV JUDGMENT benefits to be granted to him claim to promotion to the higher post in ClassII and ClassI services on Government of Gujarat, etc. the Secretary of the Department in which the appellant was serving not only passed reasoned order but has extensively dealt with each and ever contention raised by the appellant in his representation, litigation undertaken by the appellant by filing various writ petitions orders passed and directions issued by this court from time to time and on 05.02.1991 following order is passed:
"5 FEB 1991 ORDER In regard to subject mentioned above, the Hon'ble High Court, while disposing of Special C.A. No.6273 of 1989 had directed Govt. to decide the representation made by Shri B.R.Acharya on 151987 within eight weeks from the date of receipt of the writ of the Court's order. The court's order was received in the Deptt. on 13th March, 1990. Shri B.R.Acharya was called for personal hearing on 7.5.90. On that date Shri Acharya appeared personally and made written as well as oral representation. As some factual information was required to be collected from Director, Social Defence on points raised by Shri B.R.Acharya, he was directed to produce the same to facilitate examination and disposal of Shri B.R.Acharya's Page 17 of 67 HC-NIC Page 17 of 67 Created On Sat Aug 06 00:07:38 IST 2016 C/LPA/407/2010 CAV JUDGMENT representation on merit. Shri B.R.Acharya suggested that in that case, after the requisite factual information is received from the Director, he may be given further opportunity of personal hearing. Thereafter, the matter was fixed for further hearing on 2.7.1990. However, Shri B.R.Acharya sent a telegram that he was undergoing an eye operation. Therefore, he wanted the hearing to be kept after a period of about one month. Accordingly, further hearing was fixed on 8.8.1990, when Shri Acharya was again heard personally and allowed to submit further written representation. The important points raised by Shri B.R.Acharya may be briefly stated as under:
[1] He should be given the benefit of fixation of seniority as per GR dated 17.2.1987 according to which the promotion given to lady officer working in Women's institution run by the deptt. are to be treated as fortuitous for the purpose of seniority. More specifically, his seniority should be worked out afresh treating the GR as having retrospective effect. In other words, all subsequent promotions given in the post to lady officers should not be considered for purpose of seniority or his seniority visavis such lady officers should be protected by giving him the appropriate stage and scale of pay, with past benefits.
[2][i] He should be treated as a ClassII Officer in view of the decision of the Administrative Tribunal in Appeal No.555 of 1979, and decision of High Court in Page 18 of 67 HC-NIC Page 18 of 67 Created On Sat Aug 06 00:07:38 IST 2016 C/LPA/407/2010 CAV JUDGMENT Special C.A. No.806 of 75, with effect from January, 1973.
[2][ii] In view of his above claim for ClassII status, he should also be given the consequential monetary benefits together with arrears.
[3] He should be granted the following payscales with effect from the dates mentioned against each pay scale.
[1] Payscale of Rs.270410 (present scale Rs.16402900) from 20th August, 1968.
[2] payscale of Rs.6501200 (present pay scale Rs.20003500) from January, 1973.
[3] Payscale of Rs.7001500 (present payscale Rs.22004200) with effect from April, 1982.
He may also be given seniority, deemed date for promotion, and arrears of pay, etc, on the basis of the above.
[4] His name should be shown in the ClassII seniority list in view of his ClassII status from January, 1973.
[5] His transfer from Surendranagar to Baroda should be treated as cancelled. (This new point is made on 881990).
Shri B.R.Acharya joined the department as a Core Worker in ClassIII on 7.1.63. He has not been promoted to any higher post in the department, so far. The present pay scale of Shri Page 19 of 67 HC-NIC Page 19 of 67 Created On Sat Aug 06 00:07:38 IST 2016 C/LPA/407/2010 CAV JUDGMENT B.R.Acharya's post is Rs.14002300. This payscale covers the common cadre of Probation Officers, Core Workers and other equivalent posts. It may be stated here that the next higher payscale on promotion is Rs.16402900. This payscale in ClassIII is applicable to a common cadre of Chief Probation Officer, Superintendent, and other equivalent posts. The next promotion can be to the post of Child Marriage Prevention Officer cumSocial Defence Officer in ClassII service, in the payscale of Rs.20003500. The post of Deputy Director in the pay scale of Rs.22004200 is a Class I service. The fact that Shri B.R.Acharya has not been promoted to any higher post so far, naturally raisen the question as to why he has been left out, after about 28 years of service in the department. In the following paragraphs, a brief resume of events relating to the service of Shri B.R.Acharya is presented, as seniority, etc. As Shri B.R.Acharya has been involved in a number of limitations relating to promotion, punishment, seniority, etc. several judgments and orders of the Hon'ble High Court are also available. It would be useful to refer to the following cases to clarify the factual and legal position.
3[i] Special C.A. No.1292/73.
In this Special Civil Application, which was filed by Shri B.R.Acharya before the Hon'ble High Court regarding his promotion, he had prayed for orders to quash and set aside the promotion of S/Shri A.T.Parwani, N.V.Parikh, D.V.Gopalani and P.S.Vegad, as he claimed to be senior to all of them. The Hon'ble Page 20 of 67 HC-NIC Page 20 of 67 Created On Sat Aug 06 00:07:38 IST 2016 C/LPA/407/2010 CAV JUDGMENT High Court, in its judgment which was delivered on 22.12.77 after dealing extensively with the contentions raised by Shri B.R.Acharya against each of the aforesaid four officers.
gave the verdict as follows:
"The foregoing discussion would show that as regards none of the respondents the case of the petitioner is well founded. It has not been shown that in promoting any of the respondents to the higher post, the first and second respondents have acted arbitrarily or that statutory rules have been violated."
Further, the Hon'ble High Court stated in the said judgment that:
"In my opinion, therefore, the entire grievance made by the petitioner in this petition is baseless. The petitioner cannot succeed either on the ground of violation of Article 14 and 16 or on the ground of noncompliance with the relevant Recruitment Rules".
Accordingly, the Hon'ble High Court was pleased to dismiss the petition.
[ii] Special C.A. No.1481 of 1981 In this SCA, S/Shri B.R.Acharya and J.P.Brahmbhatt, both Probation Officers in the ClassIII payscale of Rs.425700, had filed the petition claiming promotion to the higher post carrying the payscale of Rs.550900 mainly on the ground that some officers junior to them were promoted to the higher post. One of the contentions of the petitioners was that they should be considered to be eligible for appointment Page 21 of 67 HC-NIC Page 21 of 67 Created On Sat Aug 06 00:07:38 IST 2016 C/LPA/407/2010 CAV JUDGMENT to the post of Lady Superintendent for District Centers, State Home & Reception Centers for women. They had also prayed that promotions given to the Lady Officers who were junior to them should be quashed and set aside. It was further contended by them that in any case they should be promoted or deemed to have been promoted from the date their juniors were promoted to the higher posts. The Hon'ble High Court took into consideration the representation of the State Government that the institutions were deserted women, unmarried mothers, etc. are kept, are headed by Lady Superintendents and, therefore, only lady Officers are considered for such posts. The Hon'ble High Court of Gujarat pleased to accept the contention of the State Govt. as may be noted from the following observations made in the judgment given on 30th September, 1987:
"The institutions which are headed by Lady Superintendent are exclusively for women, and it is for the Government to decide as a matter of policy whether or not such institutions should be headed by only lady officers. Merely because at some stage there is a common cadre in which the officers of both the sexes are appointed, does not mean that all posts in the higher cadres must also be filled in by persons belong to both the sexes. Having regard to the nature of duties to be performed, it is open to the State Government to decide that the institutions which are exclusively meant for women should be headed by only women or lady officers. The Government cannot be compelled to appoint male officers to head such institutions if it does not consider it advisable to do so".Page 22 of 67
HC-NIC Page 22 of 67 Created On Sat Aug 06 00:07:38 IST 2016 C/LPA/407/2010 CAV JUDGMENT The Court also did not accept the contention of the petitioners about discrimination against them on the ground of sex, in view of the provision contained in Article 15(3) of the Constitution which directs that nothing in this Articles prevent the State from making any special provisions for women and children. The observation made in the judgment of the Court is relevant and therefore reproduced hereunder:
"I, therefore, do not find any substance in the petitioners' contention that they should be considered to be eligible for promotion to the post of lady Superintendent".
While disposing of the contention of the Petitioners that they should have been given promotions, the Hon'ble High court made the observation that promotions had not been given to the petitioners as they had not been found fit for promotion by the Departmental Selection Committee. The relevant portions of the judgment of the Hon'ble High Court on this point are reproduced below: "So far as the Petitioners' claim for promotion to the higher post is concerned, it is stated in the affidavit in reply filed on behalf of the State and the Director of Social Defence that the petitioners have not been promoted to the higher post as the Departmental Selection Committee [`D.S.C.' for short) did not find them fit for such promotion. There is no reason to disbelieve this statement made in the affidavit of the Director of Social Defence."
Page 23 of 67HC-NIC Page 23 of 67 Created On Sat Aug 06 00:07:38 IST 2016 C/LPA/407/2010 CAV JUDGMENT X X X X X X X X X X X X X X X X X X "It would thus appear that promotions have been denied to the petitioners on merit. There is no allegation that the respondents have acted mala fide in denying promotions to the petitioners. I, therefore, do not see any merit in the petitioners' contention that they should have been promoted to the higher post from the date their juniors were promoted. Since I do not find merit in any of the contentions raised on behalf of the petitioners, the petition deserved to be rejected".
[iii] Regular Civil Suit No.111/89 in the court of Civil Judge, Senior Division, Surendranagar In this suit, the plaintiff, Shri B.R.Acharya, has claimed promotion to the post of Deputy Director (ClassI). The Suit is still pending in the Surendranagar Court. The plaint contains, interala, the following statement:
"The plaintiff is a ClassII Officer from January, 1973 and continues so and enjoys the status though in fact the Govt. has never treated him as such".
Considering the fact that Govt. amended the relevant Rules on 811980 and abolished the ClassII status of Probation Officers under the Probation of Offenders Act, and further considering that Shri B.R.Acharya's challenge to the amendment of the Rules did not succeed before the Hon'ble High Court and the highest Court Page 24 of 67 HC-NIC Page 24 of 67 Created On Sat Aug 06 00:07:38 IST 2016 C/LPA/407/2010 CAV JUDGMENT of the country, vis., the Hon'ble Supreme court of India, as discussed in the succeeding paragraphs, it is not correct on the part of Shri B.R.Acharya to maintain that he continued to enjoy the ClassII status. While he has produced copies of selection / documents before the Civil Court at Surendranagar, mention of facts regarding the judgment of the High Court in SCA No.2342/80 dated 23.10.80 as well as in SCA No.12/81 and the order of the Supreme Court, rejecting the Special Leave Petition is avoided by Shri B.R.Acharya in the plaint. It appears to be a case of suppressio veri and sugestio false.
4 The matter relating to ClassII status given to some Probation Officer under the Probation of Offenders Act, 1958 and the Rules framed thereunder by the State Govt., as well as the specific notification in the case of Shri B.R.Acharya and others under the Act and Rules has been discussed in several cases which have been decided by the Hon'ble high Court. These cases are:
[1] SCA No.806/75
[2] MCA No.50/77 in SCA No.806/75
[3] SCA No.2215/79
[4] SCA No.1284/80
[5] SCA No.2342/80
[6] MCA No.12/81 in SCA No.2342/80.
It is admitted that Govt. had
classified Shri B.R.Acharya as ClassII Officer under the Probation of Offenders Act, 1958, in view of the provision made in the Gujarat Prohibition of Offenders Rules, 1973. However, subsequently, the State Govt. after obtaining the approval of the Central Govt. amended the relevant Page 25 of 67 HC-NIC Page 25 of 67 Created On Sat Aug 06 00:07:38 IST 2016 C/LPA/407/2010 CAV JUDGMENT provisions of the Gujarat Probation of Offenders Rules, 1973 by a Notification dated 811980 whereby Rule 7(1) was amended by deleting the following words:
"A salaried Probation Officer shall be classified as a Gazetted Officer of Class II service of the State of Gujarat"
Similarly, Rule 10(1) of the aforesaid Rules was deleted by another Govt. Notification dated 811980. In view of these amendments to the Gujarat Probation of Offenders Rules, 1973, the Chief Probation Officer and the Probation Officers working under the Probation of Offenders Act no longer remain Gazetted Officers of Class II service of the State of Gujarat.
It has also been made clear and defined under the Bombay Civil Service Rules, VolumeI, Rule No.9, Subrule (21) that: "A Gazetted Government servant who in a member of an All India or State Service or a person appointed in accordance with the terms of a contract or agreement and whose appointment in gazetted by Government. Member of the subordinate Civil Services whose appointments are gazetted by Head of Departments are nongazetted Government servants. Notifications investing Government servants with power under different Acts, in order that the Courts may take judicial cognizance of them, do not constitute the person invested with such powers gazetted Government servant within the meaning of these rules".
On amendment of the rules 7(1) and Page 26 of 67 HC-NIC Page 26 of 67 Created On Sat Aug 06 00:07:38 IST 2016 C/LPA/407/2010 CAV JUDGMENT 10(1) of the Gujarat Probation of Offenders Rules, 1973, Shri B.R.Acharya filed a SCA No.1284/80 before the Hon'ble High court wherein his prayer was that the Govt. be directed and ordered to treat his as ClassII Gazetted Officer in the pay scale of Rs.6501200. When this petition came up for admission the Advocate of the petitioner applied for withdrawal of the petition, which the Hon'ble High Court was pleased to grant and pass the following order:
"Mr. Majmudar withdraws this Spl. C.A. without prejudice to his right & to file fresh petition challenging the notification of January 8, 1980 PC. Spl. C.A. Dismissed as withdrawn. Notice discharged. No order as to costs".
28/7/80.
The above petition now stands as withdrawn.
Therefore, Shri B.R.Acharya filed SCA No.2342/80 challenging the validity of the Government Notification dated 8180 under which the provision regarding ClassII Gazetted status was deleted from the Rules. When this petition was called out for admission, the Hon'ble High Court rejected the petition by passing the following speaking order on 23.10.1980:
"The petitioner is a Probation Officer. He filed, in this Court, Special Civil Application No.2215 of 1979. That petition was allowed and the Government has directed to place him in Class II service along with other Probation Officers belonging to his cadre. This Court also directed the Government to give him all other consequential benefits.Page 27 of 67
HC-NIC Page 27 of 67 Created On Sat Aug 06 00:07:38 IST 2016 C/LPA/407/2010 CAV JUDGMENT Since then the Government has abolished Class II for Probation Officers by amending the relevant Rules with effect from January 8, 1980. The effect of the amendment made to the Rules is that all probation officers now become Class III employees. If all Probation Officers become Class III employees, the Petitioner alone cannot continue as Class II Officer. He has got to go down along with others to Class III. Therefore, the benefit given to him in Special Civil Application No.2215 of 1979, in no way, denied to him. Then, all the Probation Officers belonged to class II service the petitioner was also ordered, by this Court to be placed in the Class and when all the Probation Officers are now made Class III employees, he goes to Class III service along with them. The grievance which Mr. Vyas has made is that the petitioner loses the Gazetted status. In our opinion, that is an insignificant consequence of the amendment to the Rules as all other lose it. So far as the service conditions are concerned, they are not affected because what all the Probation Officers who are now designated as Class III employees would be paid, would also be paid to the petitioner, no doubt, in terms of length of his service. We do not find, in the impugned amendment Rules anything which adversely affect his service conditions. Therefore, merely because the petitioner loses the Gazetted status as 11 others lose, he cannot make any grievance before this Court. The petition, therefore, fails and is dismissed. The notice is discharged."
Not being satisfied with the above judgment, Shri B.R.Acharya filed a Miscellaneous C.A. NO.12/81 in SCA Page 28 of 67 HC-NIC Page 28 of 67 Created On Sat Aug 06 00:07:38 IST 2016 C/LPA/407/2010 CAV JUDGMENT No.2342/80 in the Hon'ble High Court for reviewing the Court's order in SCA No.2342/80. In this Review applications, Shri B.R.Acharya made the following prayers:
"Under the above circumstances the order passed on 231080 by the Hon'ble High Court requires to be sympathetically reviewed in the interest of justice for which the following prayer is submitted:
i] The Hon'ble Court be pleased to direct that the Gazetted Status of Class II service given as per the directive of the High Court still continues and is not effected with retrospective date, inspite of the amendment made on 8180.
ii] Be pleased to give the pay scales 650 1200 given to other class II gazetted officers of the department and of the state service.
iii] The Hon'ble High Court be pleased to direct to fix the seniority in the gazetted cadre as per the judgment of 806/75.
iv] Any further reliefs may please be given in the interest of justice.
v] Delay, if any, may please be condoned".
After hearing Shri B.R.Acharya - petitioner present in person and the Advocate for the Govt. the Hon'ble High court passed the following order:
"After hearing the petitioner in the present case we find that there is no Page 29 of 67 HC-NIC Page 29 of 67 Created On Sat Aug 06 00:07:38 IST 2016 C/LPA/407/2010 CAV JUDGMENT ground for review, since there is no error apparent on the face of the record, nor is there any question of discovery of new materials or any other material or the existence of any new materials. Review application is therefore rejected. Rule discharged".
The following further order is passed by this Court separately as common order in Special Civil Application No.831 of 1981: "On behalf of the petitioner an application is made for a certificate under Article 133(1) OF THE Constitution for leave to appeal to the Supreme Court. In our opinion, no substantial question of law of general importance which is needed to be decided by the Supreme Court arises in this case and hence the application is rejected.
Status quo as of today to be maintained for a period of three weeks to enable the respective petitioner to obtain appropriate orders from the Supreme Court."
Thereafter Shri B.R.Acharya approached the Hon'ble Supreme Court of India with Petition for Special Leave to Appeal [Civil] No.5754 of 81 which was rejected by the Hon'ble Supreme Court's order dated 23484 as intimated by Assistant Registrar, Supreme Court of India vide his letter dated 25/11/86 addressed to the Director of Social Defence, Gujarat State.
5 There is clearly a vital difference between (a) enjoying classII status for the purpose of administration of law, viz., the Probation of Offenders Act, and Page 30 of 67 HC-NIC Page 30 of 67 Created On Sat Aug 06 00:07:38 IST 2016 C/LPA/407/2010 CAV JUDGMENT [b] actual promotion to ClassII post with the benefit of the relevant payscale. In Shri B.R.Acharya's case only (a) is relevant and not (b). To take an illustration, for the purpose of the Bombay Land Revenue Code, a Mamlatdar exercises certain powers as "Collector". However, it does not mean that he is entitled to get the payscale of the post of Collector. This can be considered only as an administrative arrangement. Further, it may be once again noted that by Notification issued on 8.1.80, Govt. abolished the Class II status, which was challenged by Shri B.R.Acharya in Special C.A. No.2342 of 80 wherein the High Court has clearly observed that the amended rules did not contain anything which adversely affect Shri Acharya's service conditions. The High court has clearly ruled that as Shri B.R.Acharya had lost the Gazetted status alongwith eleven others, he cannot take any grievance. This decision of the Hon'ble High Court of Gujarat is effective and binding on Shri B.R.Acharya, as the application for special leave to appeal filed by him was also dismissed by the Supreme Court of India, as mentioned earlier.
6 I will now refer to several cases of punishment imposed on Shri B.R.Acharya in departmental disciplinary proceedings during his middle career, which have marred his prospects of getting promotions in the department.
[I] On 19.5.1975, the Director, Social Defence made an order imposing punishment of stoppage of two increments with future effect on Shri B.R.Acharya for irregularities in stores and for not staying in the quarters allotted to him, Page 31 of 67 HC-NIC Page 31 of 67 Created On Sat Aug 06 00:07:38 IST 2016 C/LPA/407/2010 CAV JUDGMENT etc. On a representation made by Shri B.R. Acharya against this order, Govt. confirmed the punishment but reduced the penalty to stoppage of one increment with future effect vide order dated 17.03.80.
[II] In the second case of departmental action against Shri B.R.Acharya, the Director, Social Defence imposed a penalty of stoppage of promotion for five years on him for not carrying out the order under which Shri B.R.Acharya's headquarters was changed from Bhavnagar to Savarkundla. Subsequently, Govt. modified this order and decided that instead of stoppage of promotion, the penalty of stoppage of two increments for four years with future effect should be imposed on "Shir B.R.Achayra. Against this order of Govt. Shri B.R.Acharya moved the Hon'ble High Court. On the basis of the Hon'ble High Court's order, the punishment was later reduced to stoppage of two increments for four years without future effect [Special C.A. No.569/84].
[iii] In the third case of punishment imposed on Shri B.R.Acharya, the charge against him was that he had tortured one of the child inmates of the Observation Home at Surendranagar and also confined him in a separate room every day for a period of one week. The child alleged by attempted to commit suicide. The Director imposed the penalty of removal of service on Shri B.R.Acharya and relieved him vide his order dated 3181977. Against his removal from service, Shri B.R.Acharya moved the Civil Court at Bhavnagar, but that Court did not interfere. Thereafter, Shri B.R.Acharya moved the High Court on the basis of his claim of ClassII status. Govt. Considered it advisable on the basis Page 32 of 67 HC-NIC Page 32 of 67 Created On Sat Aug 06 00:07:38 IST 2016 C/LPA/407/2010 CAV JUDGMENT of legal opinion that departmental proceedings should be conducted afresh by Govt. so as to avoid the technical objection of Shri B.R.Acharya that the departmental action against him was taken by Director, who was not competent. Accordingly, after giving chargesheet and show cause notice to Shri B.R.Acharya, and after consulting the Gujarat Public Services Commission, Govt. finally ordered the punishment of reduction of two increments on permanent basis. This order was made on 20.10.1987. It was confirmed in appeal to Govt. vide order made on 11.4.1989.
Thus, Shri B.R.Acharya's promotion appears to have been affected adversely by the various disciplinary proceedings resulting in three separate cases of punishment at a period of time when he would have been ordinarily considered for promotion on the basis of senioritycum merit alongwith others. Thus, the service record of Shri B.R.Acharya was not satisfactory and positive. In the circumstances, when the Departmental Promotion Committee met for considering promotions, the case of Shri B.R.Acharya did not find favour with the Committee. As mentioned above, the Hon'ble High Court (in Spl. C.A. 1481 of 1981) had observed that no malafides on the part of the DPC could be established by Shri B.R.Acharya.
7 The case of Shri B.R.Acharya for promotion was lastly considered by Departmental Promotion Committee on 10.7.86 against Shri B.R.Acharya, his case was kept in a sealed cover in accordance with the standing instructions of Govt. for such cases. The departmental proceedings were subsequently completed, Page 33 of 67 HC-NIC Page 33 of 67 Created On Sat Aug 06 00:07:38 IST 2016 C/LPA/407/2010 CAV JUDGMENT and the penalty of reduction of two increments was imposed on Shri B.R.Acharya. Subsequently, therefore, the sealed cover has been opened by the Director, Social Defence. On perusal of the view of DSC held on 10.7.86, it is seen that the Committee did not give a positive recommendation for giving promotion to Shri B.R.Acharya. The DPC's report refers to some adverse remarks in the CRs of Shri B.R.Acharya for the years 197980, 198283 and 198384. It is seen that the adverse remarks for 198283 were confirmed after considering Shri B.R.Acharya's representation against the same. The adverse remarks in the CR for the year 198384 were also communicated to Shri B.R.Acharya on 1851984.
As mentioned above, the contention of Shri B.R.Acharya that he should have been considered for the post of Lady Superintendent or that, in the alternative, he should have been considered for deemed promotion in view of the fact that some junior lady offices had been promoted above him, has not been accepted by the Hon'ble High Court in Special C.A. No.1481 of 1981.
7A. It may not be out of place here to refer to the case of Shri J.P.Brahmbhatt, who had joined the cadre of Probation Officer on 121964 and who was, thereafter, junior to Shri B.R.Acharya, Shri J.P.Brahmbhatt was copetitioner (alongwith Shri B.R.Acharya) in Special Civil Application No.1481 of 81, to which reference has been made above. Shri J.P.Brahmbhatt's case was also considered by the Departmental Promotion Committee's meeting held on 17.4.82. Shri B.R.Acharya's case was also considered by Page 34 of 67 HC-NIC Page 34 of 67 Created On Sat Aug 06 00:07:38 IST 2016 C/LPA/407/2010 CAV JUDGMENT the Departmental Promotion Committee in the same meeting, but, whereas in the case of Shri J.P.Brahmbhatt, the Committee recommended that he may be promoted to the next higher post of Chief Probation Officer, the Committee did not recommend the promotion of Shri B.R.Acharya mainly on the ground of pending departmental disciplinary proceedings. Thus, there is no reason to believe that the case of Shri B.R.Acharya was decided by the Committee with a prejudiced mind. Considering the fact that Shri J.P.Brahmbhatt was promoted in 1982, from the cadre of Probation Officer to the next higher cadre of Chief Probation Officer he clearly superseded Shri B.R.Acharya who was his senior at the relevant time. It is noteworthy that after his promotion to the post of Chief Probation Officer in ClassIII, Shri J.P.Brahmbhatt has not yet been promoted to the next higher post in ClassII.
7B. I will also make a brief reference to the case of a Senior of Shri B.R.Acharya in the cadre of Probation Officer. Smt. R.N.Jariwala had joined in the cadre of Probation Officer / Care Worker, on 8.4.1961, and she has continued in the same cadre. It is undisputed that Smt. R.N.Jariwala had joined the Deptt. much earlier than Shri B.R.Acharya. However, since she was not prepared to accept the liability for transfer in the event of promotion, she had willingly forgone her promotion, citing family circumstances as the reason. Now, the difference between the cases of Smt. R.N.Jariwala and Shri B.R.Acharya is that whereas the former had willingly foregone her promotion, the latter had not been recommended for promotion by the Departmental Promotion committee. No Page 35 of 67 HC-NIC Page 35 of 67 Created On Sat Aug 06 00:07:38 IST 2016 C/LPA/407/2010 CAV JUDGMENT malafide against the Departmental Promotion Committee have been proved, and there is in fact a judgment of the Hon'ble High Court on the point. Since length of service is not the only criterion for getting promotion in government service, the result is that both Smt. R.N.Jariwala and Shri B.R.Acharya had remained in the cadre of Probation Officer as on 1.1.1986, for different reasons. As discussed in the foregoing paragrapahs, in none of the petitions filed by Shri B.R.Acharya before the Hon'ble High Court, he has been able to establish the case that he has been denied promotion for reasons of malafides, etc. 8 I may now deal with the issue relating to interpretation and effect of the G.R. dated 17.2.87 by which it has been decided by Govt. that the promotion of lady officers by way of their posting as Lady Superintendent of women's institutions, run by the State Govt. may be considered as ad hoc and fortuitous for the purpose of further promotions. In this connection, it may be mentioned that the Govt. had clarified to the Director, Social Defence on 15.10.1987 that the principles of considering the promotion as adhoc and fortuitous for the purpose of seniority shall not apply to seniority lists finalized already. Thus, Govt. had clearly decided that the seniority lists finalized already should not be reopened. In other words, the principle of adhoc and fortuitous promotions of Lady Officers for considering seniority for further promotion was intended to have only retrospective effect. The final seniority list of Probation Officers as on 1.1.86 was issued on 10.3.87. In that seniority list Shri B.R.Acharya's name appeared as Page 36 of 67 HC-NIC Page 36 of 67 Created On Sat Aug 06 00:07:38 IST 2016 C/LPA/407/2010 CAV JUDGMENT Sr. No.2 below the name of Smt. R.N.Jariwala who is clearly his senior by virtue of earlier date of appointment. Similarly, the seniority list of ClassII officers of the Social Defence Deptt. had been finalized on 17.l2.87. In that list, naturally, the name of Shri B.R.Acharya did not figure, since he had not even been promoted to the next higher post in Class III.
9 I may now sum up the important points which are relevant to the various contentions raised by Shri B.R.Acharya before Government as under: [1] As regards the promotions given to Lady Officers junior to him, it has been held that the Hon'ble High Court that the promotions were legally valid and in accordance with the Constitutional provisions.
[2] As regard ClassII status of Shri B.R.Acharya, it has been decided by the Hon'ble Court that the abolition of ClassII status by Govt. has not adverse effect on the service conditions of Shri B.R.Acharya. His petition for Special Leave to Appeal has been dismissed by the Hon'ble Supreme Court of India.
[3] It is true that Govt. has decided that promotions given to Lady Officers posted to women's institutions run by the State Govt. shall be treated as ad hoc and fortuitous. However, it is equally pertinent that Govt. has clarified that seniority lists already finalized should not be reopened. In other words, it is intended that Govt. orders shall have only prospective effect.
Page 37 of 67HC-NIC Page 37 of 67 Created On Sat Aug 06 00:07:38 IST 2016 C/LPA/407/2010 CAV JUDGMENT [4] Shri Acharya's point that officers junior to him have been promoted to higher posts and some of them have been appointed by promotion to ClassII posts, is factually true. However, the more pertinent and relevant fact is that the case of Shri B.R.Acharya had been considered by the Departmental Promotion Committee which did not recommend his promotion. This fact is now not challengeable, more particularly in the light of the judgment of the Hon'ble High Court in Special C.A. No.1481 of 81.
[5] Shri B.R.Acharya's main contention is that he had been given ClassII status under the Probation of Offenders Act, and, therefore, he should be considered as promoted to ClassII post. Here, distinction has to be drawn as regards ClassII Gazetted status for the purpose of Probation of Offenders Act and promotion to ClassII post as such, which comes only by way of senioritycummerit from the lower feeder cadre of Chief Probation Officer. Shri B.R.Acharya not having been even promoted to the post of Chief Probation Officer in ClassIII, the question of his promotion to ClassII post does not arise at all.
10 On careful consideration of the various contentions of Shri B.R.Acharya in the light of the facts and circumstances discussed above, it is not possible to accept his claim that he should be treated as having been promoted to ClassII and that his seniority should be determined on that basis.
I hold that the final seniority list as on 111986 for officers in the cadre of Probation Officer, which had been Page 38 of 67 HC-NIC Page 38 of 67 Created On Sat Aug 06 00:07:38 IST 2016 C/LPA/407/2010 CAV JUDGMENT published on 1031987, shows the correct position in respect of Shri B.R.Acharya, and no injustice has been caused to him by showing his name in that seniority list at Sr. No.2. As regards benefit of G.R. dated 1721987, in view of Government decision vide clarification issued to the Director on 15101987, the seniority list published on 1031987 is final and it is not to be reopened. Further, as Shri B.R.Acharya had not been recommended for promotion to higher post by the DPC, the question of showing his name in ClassII seniority list does not arise. However, the Director, Social Defence may consider the case of Shri B.R.Acharya for promotion to higher post in the pay scale of Rs.16402900 in Class III in the next meeting of Departmental Promotion Committee. As regards Shri B.R.Acharya's contention that he continues to enjoy ClassII Gazetted status, which had been conferred on him earlier under the Probation of Offenders Act, 1958, and the Gujarat Probation of Offenders Rules, 1973, in view of later decision of the Hon'ble High Court and dismissal of Shri B.R.Acharya's petition for Special Leave to Appeal by the Hon'ble Supreme Court of India, the same cannot be sustained. In view of the reasons given above, the matter regarding giving Shri B.R.Acharya higher pay scale with effect from the dates claimed by him, alongwith arrears of pay, etc, does not survive.
11 In the end, I may mention that Shri B.R.Acharya, had been posted to Baroda as Liaison Officer in the Central Prison vide Director, Social Defence's order dated 25 587. Shri B.R.Acharya was relieved from Surendranagar on 191089 for the purpose of reporting at Baroda, but he had not Page 39 of 67 HC-NIC Page 39 of 67 Created On Sat Aug 06 00:07:38 IST 2016 C/LPA/407/2010 CAV JUDGMENT reported at Baroda. His representation against his transfer to Baroda was considered by Government and he was replied on 30690 that the same cannot be accepted. However, he has not carried out the order of Government.
By order and in the name of Government of Gujarat".
2.14 If the prayers of Special Civil Application No.12170 of 1993 are perused, the main prayer is to be considered is about directing the respondent to implement Government notification dated 30.10.1979 and to pay the appellant salary of the Gazette Officer from 03.10.1979 and other consequential benefits, including promotion to the higher post in Class II service and ClassI of Government of Gujarat. However, no specific challenge was made to order dated 05.02.1991 passed by the Government of Gujarat.
2.15 Upon extensive reference to the record of the case and elaborate arguments made by learned counsel for the appellant, following facts were recorded by learned Single Judge in oral judgment dated 16.02.1998 in Special Civil Application No.12170 of 1993 remained undisputed. We are conscious that the above order was set aside in Letters Patent Appeal only on the ground Page 40 of 67 HC-NIC Page 40 of 67 Created On Sat Aug 06 00:07:38 IST 2016 C/LPA/407/2010 CAV JUDGMENT that the above writ petition was not heard along with another writ petition though ordered to be heard together. Paras 4, 5 & 6 of order dated 16.02.1998 reads as under:
"4. It appears that in the year 1973, the Government in exercise of powers conferred upon it by Section 17 of the Probation of Offenders Act, 1958, framed the rules known as the Gujarat Probation of Offenders Rules, 1973 (hereinafter referred to as "the Rules"). Rule 7 thereof provided that the payscale of the salaried Probation Officers shall be such as may be fixed by the State of Gujarat from time to time. A salaried Probation Officer shall be classified as a Gazetted Officer of ClassII service of the State of Gujarat. Rule 10 (1) thereof provided, interalia, that the recruitment and condition of service of salaried Probation Officers shall be governed generally by the rules and orders for the time being applicable to the Government Officers belonging to ClassII service of the State of Gujarat. Thus, under the aforesaid statutory rules, the Probation Officers were granted the benefit of the status of a Gazetted Officer in ClassII service of the government. It is undisputed that the Probation Officers hitherto were in ClassIII service under the Director of Social Defence. In spite of the Rules, the Probation Officers were not conferred the status of a Gazetted Officer. Feeling aggrieved, some of the Officers (not the present petitioner) preferred a Writ Petition being Spl. Civil Appln. No.806 of 1975 before this Court. The said Page 41 of 67 HC-NIC Page 41 of 67 Created On Sat Aug 06 00:07:38 IST 2016 C/LPA/407/2010 CAV JUDGMENT petition was decided on 7th August, 1975, in favour of those petitioners. The Court held that the petitioners could be said to have been appointed as Probation Officers under Section 13 of the Act of 1958 and they being Salaried Probation Officers were entitled to be classified as Gazetted Officer of ClassII service. A mandamus was directed to be issued to classify those petitioners as Gazetted Officer of ClassII service of the State from the date when the rules came into force with all other benefits. However, the benefit of the said ruling was not granted to the other Probation Officers who were situated similarly as the petitioners in Spl. Civil Appln. No.806 of 1975 but who were not parties thereto. Feeling aggrieved, the petitioner herein preferred Spl. Civil Appln. No.2215 of 1979. In view of the order made by this Court in the said petition, the above referred Notification dated 30th October, 1979, was issued and the Corrigendum was issued on 15th November, 1979. However, in spite of the said Notification and the Corrigendum thereof, it is the complaint of the petitioner that the same has not been given effect to. Neither the petitioner has been given the status of a Gazetted Officer nor has he been granted the benefits flowing from such status. Therefore, the petition.
5 On 8th January, 1980, the Government issued Notifications amending the Rules. Under the said Notifications the words "A salaried Probation Officer shall be classified as a Gazetted Officer, Class II, of the service of the State of Gujarat " appearing in Rule 7 and Rule (10) (1) have been deleted respectively.
The effect of the said Notification would Page 42 of 67 HC-NIC Page 42 of 67 Created On Sat Aug 06 00:07:38 IST 2016 C/LPA/407/2010 CAV JUDGMENT be that the Gazetted Status conferred upon the Probation Officer under the Rules has been withdrawn under the amending rules.
6 Feeling aggrieved, the petitioner preferred a Writ Petition being Spl. Civil Appln. No.2342 of 1980 before this Court. The petitioner's challenge to the validity of the amending rules failed before this Court and the application for Leave to Appeal filed before the Hon'ble Supreme Court was also rejected. The petitioner, thereafter, filed another Writ Petition being Spl. Civil Appln. No.6273 of 1989 before this Court. This Court under its order dated 2nd February, 1990, directed the State Government to consider the representation made by the petitioner on 1st May, 1987, and decide the same. Pursuant to the said direction, the petitioner's representation was considered by the State Government. The petitioner was also given an opportunity of personal hearing. An order was made on 5th February, 1991, rejecting the petitioner's claim."
The above paragraphs are reproduced since the facts remained undisputed.
3 Learned counsel for the appellant original petitioner is unable to substantiate challenge to finding or any of the ground or reason for rejecting representation of the appellant as illegal in the above order dated 05.02.1991 passed by the Government of Gujarat.
Page 43 of 67HC-NIC Page 43 of 67 Created On Sat Aug 06 00:07:38 IST 2016 C/LPA/407/2010 CAV JUDGMENT 3.1 However, learned counsel for the appellant made reference to certain grounds in the writ petition and Letters Patent Appeal No.407 of 2010, but the fact remains that there is no substantial challenge to the order dated 05.02.1991 passed by the Secretary of the Department in which the appellant was serving. A threadbare analysis of all contentions raised by the appellant - petitioner in his representation dated 01.05.1987 so ordered to be decided by learned Single Judge vide order dated 02.02.1990 passed in Special Civil Application No.6273 of 1989 were considered extensively upon hearing the appellant and on every count reasons are given for rejecting the claim of appellant for classII status, placement in the seniority list, promotions, other monetary benefits, etc. 4 A careful perusal and consideration of the order passed by the Government on 05.02.1991, it is clear that the appellant was inflicted minor punishments of withholding of increments and also reduction in pay scale to which there was no challenge. The appellant failed in Special Civil Application No.1292 of 1973 and Special Civil Application No.1481 of 1981 when he challenged his supersession and on both the occasions, this court found that the appellant Page 44 of 67 HC-NIC Page 44 of 67 Created On Sat Aug 06 00:07:38 IST 2016 C/LPA/407/2010 CAV JUDGMENT was not suitable for further promotion and was rightly denied the promotion. Thus, both the orders attained finality and claim with regard to ClassII status also attained finality as per the order dated 23.10.1980 in Special Civil Application No.2342 of 1980. Further, the appellant was appointed as Probationary Officer in ClassIII service and judgment and order which was passed in Special Civil Appreciation No.806 of 1975 in which it was held that in view of provisions contained in Rule 7 of the Rules, the Probationary Officer was entitled to a status of Gazetted Officer ClassII and as per order passed in Special Civil Application No.2215 of 1979, the appellant was entitled to the same benefits as the petitioner in Special Civil Application No.806 of 1975. No doubt, under notification dated 30.10.1979, the petitioner was also conferred status of a Gazetted Officer, ClassII and effect was given from 03.10.1975. That challenge to the validity of amending rules under which aforesaid Rule 7 was modified and deletion of Rule 10(1) in Special Civil Application No.2342 of 1980 failed since the court upheld the validity and constitutionality of the notification dated 08.01.1980 under which Rule 7 of the Rules was modified and Rule 10(1) was deleted. The above order upon challenge to the Apex Court also failed.
Page 45 of 67HC-NIC Page 45 of 67 Created On Sat Aug 06 00:07:38 IST 2016 C/LPA/407/2010 CAV JUDGMENT 4.1 In Special Civil Application No.2342 of 1980 filed by the appellant, a Division Bench of this Court [Coram Hon'ble Mr. Justice S.H.Sheth & Hon'ble Mr. Justice G.T.Nanavati] passed the following order on 23.10.1980 while dismissing the petition:
"The petitioner is a probation officer, he filed in this Court Special Civil Application No.2215 of 1979. That petition was allowed and the Government was directed to place him in ClassII service along with other probation officers belonging to his cadre. This Court also directed the Government to give him all other consequential benefits. Since then the Government has abolished ClassII posts of probation officers by amending the relevant Rules with effect from January 8, 1980. The effect of the amendment made to the Rules is that all probation officers now become CassIII employees, the petitioner alone cannot continue as a ClassII officer. He has got to go down along with other to ClassIII. Thereafter, the benefit given to him in Special Civil Application No.2215 of 1979, is in no way denied to him, when all the probation officers belonged to ClassII services the petitioner was also ordered, by this Court to be placed in that class and when all the probation officers are now made classIII employees, he goes to ClassIII services along with them. The grievance which Mr. Vyas had made is that the petitioner loses the gazette status. In our Page 46 of 67 HC-NIC Page 46 of 67 Created On Sat Aug 06 00:07:38 IST 2016 C/LPA/407/2010 CAV JUDGMENT opinion, that is an insignificant consequence of the amendment to the Rule as all other lose it. So far as the service conditions are concerned, they are not affected because what all the probation officers who are now designated as ClassIII employees would be paid would also be paid to the petitioner, no doubt, in terms of length of is service. We do not find in the impugned Amendment Rules anything which adversely affect his service conditions. Therefore, merely because the petitioner loses the gazette status as 11 others lose, he cannot make any grievance before this Court. The petition, therefore, fails and is dismissed. The notice is discharged."
4.2 Thus, claim of the appellant with regard to grant of actual service benefits refusing him as ClassII gazette officer with further prayer of promotion to the post of Deputy Director and Director cannot be accepted and likewise seniority, fixations of pay, etc. with the consequential benefits, etc. also to be rejected. Further, there was a specific prayer for grant of payscale of Rs. 650 1200 (that of ClassII service of the Government) with effect from 17th January, 1973, same too has not been granted. We are, therefore, of the view that the question agitated before this court in the present petition is barred by principle of resjudicata. Having once failed before this court and in the Hon'ble Supreme Page 47 of 67 HC-NIC Page 47 of 67 Created On Sat Aug 06 00:07:38 IST 2016 C/LPA/407/2010 CAV JUDGMENT Court, petitioner cannot reagitate the issue by raising different pleas and the claim that he be granted benefit of a Gazetted Officer of ClassII service from January, 1973 or from 3rd October, 1975 or from any other date. In view of the modification of Rule 7 and deletion of Rule 10(1) of the Rules, the petitioner cannot be permitted to claim the benefit of status of Gazetted Officer in ClassII service. The petitioner's claim for salary in the payscale of Rs. 650 1200, is also barred by principle of constructive resjudicata. The very prayer which was made in Spl. Civil. Appln. No. 2342 of 1980 and was not granted by the court shall be deemed to have been refused.
4.3 Conjointly and collectively considering the history of the litigation so far and prayers in Special Civil Application No.12170 of 1993, we are satisfied that neither competent authority and appellate authority nor the learned Single Judge failed in considering and answering contentions raised by the appellant. On the contrary, the appellant continued to pursue the issue about ClassII status though it attained finality as early as on 23.10.1980 when his claim was rejected in Special Civil Application No.2342 of 1980. So is the case when his representation dated 01.05.1987 came to be rejected by Page 48 of 67 HC-NIC Page 48 of 67 Created On Sat Aug 06 00:07:38 IST 2016 C/LPA/407/2010 CAV JUDGMENT Government on 05.02.1991. Therefore, Letters Patent Appeal No.407 of 2010 having no substance deserves to be rejected and accordingly rejected. Order dated 15.12.2008 passed by the learned Single Judge qua Special Civil Application No.12170 of 1993 is hereby confirmed to the extent as above.
Letters Patent Appeal No.423 of 2010 5 Mr. M.D.Rana, learned counsel for the appellant has relief on the decision in the case of UCO Bank & Anr. v. Rajinder Lal Capoor [AIR 2007 SC 2129] and submitted that disciplinary proceedings against retired officer cannot be initiated after retirement and it can only be continued if it is initiated prior to the age of retirement. It is further submitted that departmental proceedings are not initiated merely by issuing a show cause notice and it is initiated only when a charge sheet is issued. In the above context, learned counsel for the appellant has invited our attention to Rule 189A of BCSR and Rule 9(3) of Gujarat Civil Services [Disciplinary & Appeal] Rules, 1971.
5.1 It is submitted that in the facts of this case, learned Single Judge committed an error by interpreting order and direction of Page 49 of 67 HC-NIC Page 49 of 67 Created On Sat Aug 06 00:07:38 IST 2016 C/LPA/407/2010 CAV JUDGMENT learned Single Judge [Hon'ble Mr. Justice R.Balia][His Lordship then was] as the order and direction to continue the inquiry, but wordings are so clear and specific that disciplinary authority was directed to hold and complete the disciplinary proceedings and to pass an order in accordance with law. So, is not the case, and therefore, order of dismissal deserves to be quashed and set aside.
5.2 Learned counsel for the appellant has also placed reliance on the decision in the case of Dev Prakash Tewari v. Uttar Pradesh Cooperative Institutional Service Board, Lucknow & Ors. [(2014)7 SCC 260] whereby the Apex Court held that no authority is vested with respondent authority for continuing disciplinary proceedings after retirement of appellant even for the purpose of imposing any reduction in retiral benefits.
6 Learned AGP submitted that in absence of any error in the order passed by the learned Single Judge, both the Letters Patent Appeals arise out of misconceived efforts made by the appellant in spite of the fact that his claim was rejected by this Court at all stage and finally by Government as per order dated 05.02.1991 and Page 50 of 67 HC-NIC Page 50 of 67 Created On Sat Aug 06 00:07:38 IST 2016 C/LPA/407/2010 CAV JUDGMENT both the appeals deserves to be rejected with costs.
7 Heard learned counsel for the appellant and learned APP for the State of Gujarat in this appeal and considered record of the case.
7.1 With regard to prayer of Special Civil Application No.7884 of 2005 and Letters Patent Appeal No.423 of 2010 are concerned, it is relevant to refer to order dated 05.05.1997 passed in Special Civil Application No.2739 of 1994 and it reads as under:
"1 Heard learned counsel for the parties. The petitioner has challenged the order dated 19.2.1994 by which it has been ordered that petitioner's services are terminated with effect from 29.10.1989. The brief facts leading to this order are that on 31.12.1993 petitioner was required to show cause against his continuous absence from duty since 18.10.1989 at the place of his transfer and to take necessary consequential action in case explanation is not accepted in accordance with CCA rules. The petitioner has submitted his explanation on 14.1.1994.
2 The impugned order after giving history of the previous litigation and references about the transfer orders and various intimation to the petitioner for joining the duty had passed the order by observing that Page 51 of 67 HC-NIC Page 51 of 67 Created On Sat Aug 06 00:07:38 IST 2016 C/LPA/407/2010 CAV JUDGMENT from his conduct it is presumed that the petitioner is not willing to continue in service and there is no necessity to hold an enquiry into the alleged misconduct of remaining absent.
3 The order cannot but be termed an order of termination of service and must conform to the norms under Article 311, before such termination order can take effect. The authority concerned has not resorted to any of the provisos to Article 311(2) where the holding of enquiry before dismissal / termination order, removal or reduction in rank shall take place of a civil servant. The opinion of the disciplinary authority, without going into the question whether in the present case the authority who has passed the order could be treated as appointing authority, the same has also been challenged, that he does not think it fit to hold an enquiry does not absolve the authority from making enquiry in which misconduct against the delinquent can be proved and to pass necessary order thereafter, as the circumstances of the case may warrant. Order on the face of it cannot be sustained on its own telling and deserves to be quashed.
4 However, keeping in view the alleged conduct of the petitioner in remaining absent from duty without authority since October 1989, and keeping in view the fact that petitioner had already attained the age of superannuation, I deem it appropriate to quash the order and direct the disciplinary authority to hold and Page 52 of 67 HC-NIC Page 52 of 67 Created On Sat Aug 06 00:07:38 IST 2016 C/LPA/407/2010 CAV JUDGMENT complete the enquiry into the alleged misconduct within a period of 3 months from the date of receipt of this order and make necessary orders in accordance with law. Since the contention is about petitioner not discharging any duty for the last so many years, claim of any emoluments for that period or other service benefits like promotions can be considered only after the enquiry into the alleged misconduct of remaining willfully absent from duty is concluded in the light of findings reached thereon.
Rule made absolute accordingly. No order as to costs.
Civil application is disposed off accordingly".
7.2 The above order, more particularly directions issued to the disciplinary authority to hold and complete the inquiry into the alleged misconduct viz. remaining willfully absent from duty by the petitioner, are very important since the learned Single Judge has understood and interpreted the above directions to continue and complete the departmental inquiry by relying on one of the decision of the Hon'ble Supreme Court.
7.3 For better understanding relevant rules of Rule Bombay Civil Services Rules [for short, BCSR], reads as under:
Page 53 of 67HC-NIC Page 53 of 67 Created On Sat Aug 06 00:07:38 IST 2016 C/LPA/407/2010 CAV JUDGMENT "189A. The Governor reserves the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government if in a departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his service, including services rendered upon reemployment after retirement:
Provided that [a] such departmental proceedings, if instituted while the Government servant was in service whether before his retirement or during his reemployment shall after the final retirement of the Government servant be deemed to be a proceeding under this rule and shall be continued and concluded by the authority by which it was commenced in the same manner as if the Government servant had continued in service:
[b] such departmental proceeding if not instituted while the Government servant was in service, whether before his retirement or during his reemployment [i] shall not be instituted save with the sanction of the Governor;
[ii] shall not be in respect of any event which took place more than 4 years before such institution; and [iii] shall be conducted by such Page 54 of 67 HC-NIC Page 54 of 67 Created On Sat Aug 06 00:07:38 IST 2016 C/LPA/407/2010 CAV JUDGMENT authority and in such place as the Governor may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relations to the Government servant during his service;
[c] no such judicial proceedings, if not instituted while the Government servant was in service, whether before his retirement or during his reemployment, shall be instituted in respect of a cause of action which arose or an event which took place more than 4 years before such institution; and [d] the Gujarat Public Service Commission shall be consulted before final orders are passed.
Explanation For the purpose of this rule [a] a departmental proceeding shall be deemed to be instituted on the date on which the statement of charges is issued to the Government servant or pensioner, or if the Government servant has been placed under suspension from an earlier date, on such date; and [b] a judicial proceeding shall be deemed to be instituted [i] in the case of a criminal proceeding on the date on which the complaint or report of the police office on which the Magistrate takes cognizance, is made, and [ii] in the case of a Civil proceedings, on the date of presentation of the Page 55 of 67 HC-NIC Page 55 of 67 Created On Sat Aug 06 00:07:38 IST 2016 C/LPA/407/2010 CAV JUDGMENT plaint in the court."
7.4 Rule 9 of the Gujarat Civil Services [Disciplinary & Appeal] Rules, 1971 reads as under:
"9. Procedure for imposing major penalties: [1] No order imposing any of the penalties, specified in items (4) to (8) of rule 6 shall be passed except after an inquiry, held as far as may be, in the manner provided in this rule and rule 10 or in the manner provided by the Public Servant (Inquiry) Act, 1950 where such inquiry is held under that Act.
[2] Whenever the Disciplinary, Authority is of the opinion that there are grounds for inquiry into the truth of any imputation of misconduct or misbehaviour or of any culpable act or omission, against a Government servant, it may itself inquire into, or appoint under this rule or under the provisions of the Public Servant (Inquiry) Act, 1850 as the case may be, an authority to inquire into the truth thereof (hereinafter referred to as the Inquiry Authority).
Explanation: Where the disciplinary authority itself holds the inquiry, any reference in the3se rules to the Inquiry Authority shall be construed as a reference to the disciplinary Authority.
[3] Where it is proposed to hold an inquiry against a Government servant Page 56 of 67 HC-NIC Page 56 of 67 Created On Sat Aug 06 00:07:38 IST 2016 C/LPA/407/2010 CAV JUDGMENT under this rule or rule 10, the Disciplinary Authority shall draw up or cause to be drawn up [i] the substance of the imputations of misconduct or misbehaviour or of any culpable act or omission into definite and distinct articles of charge;
[ii] a statement of the imputations of misconduct or misbehaviour or of any culpable act or omission in support of each article of charge, which shall contain [a] a statement of all relevant facts including any admission or confession made by the Government servant; and [b] a list of documents by which, and a list of witnesses by whom the articles of charges are proposed to be sustained.
[4] The Disciplinary Authority shall deliver or cause to be delivered to the Government servant a copy of the articles of charge, the statement of the imputations of misconduct or misbehaviour or of any culpable act or omission and a list of documents and witnesses by which each article of charges is proposed to be sustained and shall require the Government servant to submit, within such time as may be specified, a written statement of his defence and to state whether he desires to be heard in person".
7.6 That Rule 189A of BCSR conferred right upon the Governor of withholding or withdrawing a pension or any part of it, whether permanently or Page 57 of 67 HC-NIC Page 57 of 67 Created On Sat Aug 06 00:07:38 IST 2016 C/LPA/407/2010 CAV JUDGMENT for a specified period and also to order recovery from a pension of the whole or part of any pecuniary loss caused to Government, if in a departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his service, including services rendered upon reemployment after retirement. However, the above powers are subject to conditions enumerated in proviso [a], [b] [i], [ii][iii], [c] and [d] along with explanation below Rules and proviso [a] empowered the Governor to exercise the above right only if the Departmental proceedings were instituted while the Government servant was in service whether before his retirement or during his reemployment and deemed to be a proceeding under this Rule after the final retirement of the Government servant and such departmental proceedings are to be continued by the competent authority in the same manner as if Government servant had continued in service. We are concerned with the above proviso [a] read with explanation for the purpose of this Rule whereby it is explained that a departmental proceedings shall be deemed to be instituted on the day on which the statement of charges is issued to the Government servant or pensioner or if the Government servant has been placed under suspension from an earlier date, on such date.
Page 58 of 67HC-NIC Page 58 of 67 Created On Sat Aug 06 00:07:38 IST 2016 C/LPA/407/2010 CAV JUDGMENT Thus, we have to see that orders were passed and directions were issued by this Court in para 4 of order dated 05.05.1997 in Special Civil Application No.2739 of 1994, departmental proceedings were pending or initiated or instituted or not. The order and the direction contained in para 4 is explicitly clear whereby the disciplinary authority was directed to hold and complete the inquiry into the alleged misconduct within a specified time of 3 months form the date of receipt and to pass order in accordance with law. Thus, interpretation of the above direction by learned Single Judge to continue the departmental inquiry and pass appropriate order against the appellant is not the correct interpretation. The above fact is clear if we peruse show cause notice dated 11.03.1992 issued by the authority calling upon the appellant to show cause as to why he should not be dismissed from service on the charge of unauthorized absenteeism to which reply was filed by the appellant on 09.04.1992 and straightaway order of dismissal of the appellant was passed on 19.02.1994 which was subject matter of the challenge of Special Civil Application No.2739 of 1994 in which directions were given in para as above in order dated 16.02.1998. The above show cause notice dated 11.03.1992 was not the charge Page 59 of 67 HC-NIC Page 59 of 67 Created On Sat Aug 06 00:07:38 IST 2016 C/LPA/407/2010 CAV JUDGMENT sheet issued in terms of Rule 9 of the Rules, 1971.
7.7 Part IV of Gujarat Civil Services [Disciplinary & Appeal] Rules, 1971 pertaining to procedure for imposing penalties, Rule 9 pertains to procedure to impose major penalties and Rule 9(3) is about where it is proposed to hold an inquiry against a Government servant under Rule 9 or Rule 10 it mandates the disciplinary authority shall draw up or cause to be drawn up the substance of the imputations of misconduct or misbehaviour or of any culpable act or omission into definite and distinct articles of charge which shall also contain statement of all relevant facts including any admission or confession made by the Government servant accompanied by a list of documents by which, a list of documents and list of witnesses by whom the articles of charges are proposed to be sustained. The above copy of articles of charge, statement of imputations of misconduct or misbehaviour, etc. and a list of documents and witnesses are to be believed to the Government servant, and therefore, facts will have to be seen whether the above mandatory procedure is followed by the disciplinary authority in the facts of this case in juxtaposition to Rule 189A of BCSR Rules along with explanation therein.
Page 60 of 67HC-NIC Page 60 of 67 Created On Sat Aug 06 00:07:38 IST 2016 C/LPA/407/2010 CAV JUDGMENT Therefore, it was contrary to the mandate of subrule (3) of Rule 9 whereby the disciplinary authority shall have to draw up or cause to be drawn up firstly the substance of the imputations of misconduct or misbehaviour or of any culpable act or omission into definite and distinct articles of charge and also a statement of the imputations of misconduct or misbehaviour or of any culpable act or omission in support of each article of charge, which shall contain a statement of all relevant facts including any admission or confession made by the Government servant and a list of documents by which, and a list of witnesses by whom the articles of charges are proposed to be sustained. Finally, the disciplinary authority shall have to deliver or cause to be delivered a copy of the articles of charge, the statement of the imputations of misconduct or misbehaviour to the delinquent and that whether any defence statement is to be filed to such statement and that delinquent would like to be heard in person. That no such procedure was followed in the facts of the present case, and therefore, when the order dated 05.05.;1997 was passed in Special Civil Application No.2739 of 1994 and direction given in para 4 of the above order, departmental proceedings were not instituted against the appellant and under the Page 61 of 67 HC-NIC Page 61 of 67 Created On Sat Aug 06 00:07:38 IST 2016 C/LPA/407/2010 CAV JUDGMENT circumstances no power could have been exercised by the authority under Rule 189A(a) and admittedly no sanction was given as envisaged under (b) of the proviso to Rule 189A read with explanation therein and the order and directions in para 4 of the order dated 05.05.1997 to be construed accordingly.
7.7 In the case of Uco Bank [supra], where th Apex Court was concerned with retired bank officer against him misconduct of embezzlement or exceeding limits in sanctioning of loan for which disciplinary proceedings were initiated under Regulation 20(3) could be invoked only when disciplinary proceedings had clearly being initiated prior to the employee ceased to be in service. In the above case, it was held by the Apex Court that departmental proceedings is not initiated merely by issuance of show cause notice and it is initiated only when a charge sheet is issued. In the facts of the case, law laid down by the Apex Court would be applicable in view of Rule 189A read with proviso [a] and [b] with explanation contained therein and Rule 9 of D & A Rules, 1971. Paragraph 21 of the above judgment reads as under:
"21. The aforementioned Regulation, however, could be invoked only when the Page 62 of 67 HC-NIC Page 62 of 67 Created On Sat Aug 06 00:07:38 IST 2016 C/LPA/407/2010 CAV JUDGMENT Disciplinary Proceedings had clearly been initiated prior to the respondent's ceases to be in service. The terminologies used therein are of seminal importance. Only when a disciplinary proceeding has been initiated against an officer of the bank despite his attaining the age of superannuation, can the disciplinary proceeding be allowed on the basis of the legal fiction created thereunder, i.e., continue "as if he was in service". Thus, only when a valid departmental proceeding is initiated by reason of the legal fiction raised in terms of the said provision, the delinquent officer would be deemed to be in service although he has reached his age of superannuation. The departmental proceeding, it is trite law, is not initiated merely by issuance of a show cause notice. It is initiated only when a chargesheet is issued (See Union of India etc. etc. v. K.V. Jankiraman, etc. etc. reported in AIR 1991 SC 2010). This aspect of the matter has also been considered by this Court recently in Coal India Limited & others v. Saroj Kumar Mishra [2007 (5) SCALE 724] wherein it was held that date of application of mind on the allegations levelled against an officer by the Competent Authority as a result whereof a chargesheet is issued would be the date on which the disciplinary proceedings said to have been initiated and not prior thereto. Pendency of a preliminary enquiry, therefore, by itself cannot be a ground for invoking Clause 20 of the Regulations. Albeit in a different fact situation but involving a similar question of law in Coal India Ltd. (supra) this Court held :
"13. It is not the case of the appellants that pursuant to or in Page 63 of 67 HC-NIC Page 63 of 67 Created On Sat Aug 06 00:07:38 IST 2016 C/LPA/407/2010 CAV JUDGMENT furtherance of the complaint received by the vigilance department, the competent authority had arrived at a satisfaction as is required in terms of the said circulars that a chargesheet was likely to be issued on the basis of a preliminary enquiry held in that behalf or otherwise.
14. The circular letters issued by the appellants put restrictions on a valuable right of an employee. They, therefore, are required to be construed strictly. So construed there cannot be any doubt whatsoever that the conditions precedent contained therein must be satisfied before any action can be taken in that regard."
It was further more observed that :
"20. A departmental proceeding is ordinarily said to be initiated only when a chargesheet is issued."
(See also Union of India v. Sangram Keshari Nayak 2007 (6) SCALE 348) 7.8 From the file of Special Civil Application No.7884 of 2005, it is revealed that show cause notice was issued on 11.03.1992 by which the appellant was called upon to explain as to why he should not be dismissed from the service within 30 days of the receipt of the notice. The above notice was not the charge sheet containing article of charges, which shall Page 64 of 67 HC-NIC Page 64 of 67 Created On Sat Aug 06 00:07:38 IST 2016 C/LPA/407/2010 CAV JUDGMENT contain a statement of all relevant facts including any admission or confession made by the Government servant and a list of documents by which, and a list of witnesses by whom the articles of charges are proposed to be sustained, was not issued as required under D & A Rules, 1971. The above fact is evident from the charge sheet dated 03.09.1997 issued by the competent authority in view of order dated 05.05.1997 in Special Civil Application NO.2739 of 1994 which contained article of charges and to institute departmental proceedings for which no sanction was accorded by his Excellency Governor of Gujarat under proviso [b] of Rule 189A of the BCS Rules since by the above time, the appellant had already attained age of superannuation i.e. on 31.01.1996. The order and direction contained in order dated 05.05.1997 in Special Civic Application No.2739 of 1994 directing the department to hold and complete the inquiry in accordance with law cannot be construed to continue the inquiry since no inquiry was initiated earlier by following procedure under Rule 9 of D & C Rules, 1971.
7.8 Precisely, on this count and on violation of Article 311(2) of the Constitution of India earlier order of dismissal dated 24.02.1994 came to be quashed and set aside.
Page 65 of 67HC-NIC Page 65 of 67 Created On Sat Aug 06 00:07:38 IST 2016 C/LPA/407/2010 CAV JUDGMENT Learned Single Judge in order dated 05.05.1997 never envisaged any breach of mandatory rule for instituting departmental inqui8ry against a civil servant contrary to Article 311(2) of the Constitution of India. Therefore, the direction contained in para 4 of order dated 05.05.1997 in Special Civil Application No.2739 of 1994 was wrongly construed by the Tribunal and so confirmed by the learned Single Judge as to continue the inquiry against the appellant and subsequently issuance of charge sheet of 03.09.1987 was in violation of proviso [b] of Rule 189A read with explanation therein and contrary to Rule 9 of D & A Rules, 1971 culminating into passing order of dismissal again on 30.11.1997 with retrospective effect from 19.10.1989 being without authority of law, illegal and unconstitutional and deserves to be quashed and set aside.
7.9 For the reasons stated as above order dated 15.12.2008 passed by the learned Single Judge in Special Civil Application No.7884 of 2005 is hereby quashed and set aside and consequently order dated 14.03.2005 passed by the Gujarat Civil Services Tribunal in Appeal No.142 of 1998 and order dated 30.12.1997 passed by the respondent No.1 - Director, Social Defence Page 66 of 67 HC-NIC Page 66 of 67 Created On Sat Aug 06 00:07:38 IST 2016 C/LPA/407/2010 CAV JUDGMENT Department are also hereby quashed and set aside.
7.10 The appellant has completed more than 30 years of service. Further, since the department has failed to prove charge of absenteeism of the appellant, and therefore, he is deemed to have been continued in service till the age of superannuation i.e. 31.01.1996 and would be entitled for all consequential benefits from the above date. However, retrospective effect to the order of dismissal is given on 19.10.1989. If the appellant is not paid salary and permissible allowances from the above date viz. 19.10.1989 he is entitled for such salary and allowances in ClassIII post on the basis of last pay drawn from the date of superannuation. Other retiral dues viz. pension, gratuity and other permissible retiral dues be paid to the appellant in accordance with law with simple interest of 6% p.a. within a period of six weeks from the date of receipt of this order.
(ANANT S.DAVE, J.) (Z.K.SAIYED, J.) pvv Page 67 of 67 HC-NIC Page 67 of 67 Created On Sat Aug 06 00:07:38 IST 2016