Gujarat High Court
Arvindkumar Labhshankar Bhatt vs District Education Officer on 4 April, 2018
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/13817/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13817 of 2015
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ARVINDKUMAR LABHSHANKAR BHATT
Versus
DISTRICT EDUCATION OFFICER
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Appearance:
MR JV JAPEE(358) for the PETITIONER(s) No. 1
MR. D.M.DEVNANI, AGP for the RESPONDENT(s) No. 1,2,3,5
MR MJ MEHTA(5797) for the RESPONDENT(s) No. 4
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 04/04/2018
ORAL ORDER
1. Heard Mr. Japee, learned advocate for petitioner, Mr. Devnani, learned AGP for respondent nos. 1,2,3 and 5 and Mr. Mehta, learned for respondent no.4.
2. In this petition, the petitioner has prayed, inter alia, that:
"14(A) YOUR LORDSHIPS be pleased to issue the writ of mandamus or any other appropriate writ, order or direction and be pleased to quash and set aside the impugned orders passed by the respondent number 5 dated 17/3/2015 and 25/3/2015 refusing to grant the deemed date of promotion to the petitioner and be further pleased to quash and set aside the action of the respondents in wrongfully denying the petitioner the promotion to class I cadre of Gujarat Education Service for the period of 3 years on account of the procedural irregularities and lapses on the part of the respondents without any fault on the part of the petitioner.Page 1 of 23 C/SCA/13817/2015 ORDER
(B) YOUR LORDSHIPS be pleased to issue the writ of mandamus or any other appropriate writ, order or direction and be pleased to direct the respondents to grant deemed date of promotion to the petitioner to class I cadre of Gujarat Education Services from 15.10.1997 with all the consequential benefits including revision of pension and other retirement benefits.
(C) YOUR LORDSHIPS be pleased to direct the respondents to forthwith grant deemed date of promotion to the petitioner to class I cadre of Gujarat Education Services from 15.10.1997 with all the consequential benefits including the revision of pension and other retirement benefits pending admission, hearing and final disposal of this petition"
3. At the outset it is necessary to mention that though from Para14(A) of present petition, it would primafacie appear that the petitioner is aggrieved by communication/ order passed in March, 2015, actually the dispute raised in present petition relates to the action taken in October, 1997 i.e. almost 28 years before this petition came to be filed.
4. The facts and circumstances involved in present petition clearly bring out that the cause of action for the petitioner, if there was any, arose in October, 1997.
Page 2 of 23 C/SCA/13817/2015 ORDER
5. For almost 28 years, the petitioner did not take any steps with regard to his grievance and merely because in 2015 the respondent no.5 gave response to belated representation made by the petitioner, the petitioner has, conveniently, converted the said reply into opportunity to breathe life into a dead grievance and to resurrect life into 28 years old grievance by presenting said communication/ reply as the cause of action.
6. The facts involved in present case can be summarised thus:
6.1 The petitioner came to be appointed as Assistant Teacher in ClassIII cadre, somewhere in September, 1973. In June, 1977 he was posted as Assistant Education Inspector. According to the petitioner he came to be promoted to ClassII cadre in October, 1988. It is further claimed that in 199192 he was posted as Deputy District Education Officer.
6.2 According to the petitioner, his name Page 3 of 23 C/SCA/13817/2015 ORDER appeared at Sr. No.483 in the seniority list prepared for the employees in ClassII cadre of Gujarat Education Service.
6.3 According to the petitioner, his entitlement for promotion in ClassI cadre accrued in the year 1997.
6.4 The petitioner has alleged that the DPC prepared select list of Officers from amongst the employees whose names appeared at Sr. No.452 to 483 and Sr. No.358 in ClassII cadre of Gujarat Education Service. The petitioner has claimed that the said select list prepared by the DPC contained his name. The petitioner has also alleged that the DPC forwarded the proposal to GPSC.
7. If the petitioner's claim is to be believed, above mentioned events occurred during 1992.
Broadly stated, the said claim viz. that petitioner's name appeared in the list forwarded by GPSC is specifically not denied by the respondent GPSC.
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8. Even according to petitioner's own case which is repeatedly emphasised by learned advocate for the petitioner, he was within consideration zone in 1997.
8.1 It is pertinent to mention, at this stage, that it is not even the case of the petitioner that he was most Senior person amongst the persons whose names were provisionally enlisted by the DPC in the list/ recommendation forwarded to GPSC.
8.2 It is also relevant to mention that DPC had prepared the select list from amongst the employee whose names appeared in the seniority list for ClassII cadre of Gujarat Education Service, for promotion to the post in ClassI cadre but that was subject to availability of vacancy and subject to fulfillment of other criteria and requirement.
9. Mr. Japee, learned advocate for petitioner would submit that the petitioner was not at any Page 5 of 23 C/SCA/13817/2015 ORDER fault for the delay of 2½ 3 years and that therefore the petitioner should not be deprived of the consequential benefit. He would further submit that there is no justification on the part of the respondent for not giving effect to the petitioner's promotion along with 22 persons whose case were recommended by GPSC in August, 1997 and who came to be promoted in October, 1997. Mr. Japee, learned advocate for petitioner submitted that if the unnecessary and avoidable issue with regard to ACR had not arisen or if the said issue had been immediately resolved then the petitioner's case would have been considered along with other 22 persons and would have been promoted in 1997.
10. It appears that after the said list was forwarded by DPC, the GPSC found certain anomalies, more particularly with regard to ACR which were forwarded to GPSC by the concerned department.
10.1 According to the petitioner, GPSC raised Page 6 of 23 C/SCA/13817/2015 ORDER queries with the concerned department on the ground that ACR for certain period in respect of some of the employees whose names were enlisted by DPC were not received at GPSC
11. According to the petitioner, on this count correspondence ensued between GPSC and concerned department. The petitioner has claimed that concerned department forwarded the ACR demanded by GPSC, however even thereafter GPSC found certain fault/ anomalies or shortfall and therefore GPSC called for clarification and copies of ACR.
11.1 At one stage, GPSC, according to the petitioner called for entire file of ACR of certain employees, which included name of present petitioner.
12. The petitioner has alleged that the said exchange of correspondence between GPSC and the concerned department continued for almost 3 year. Page 7 of 23 C/SCA/13817/2015 ORDER
13. It is not necessary to mention the details about ACR which were allegedly not received by GPSC and/ or the ACR in respect of which the GPSC had raised queries with the concerned department. Suffice it to say that on the ground that relevant ACR were not received and/ or there were anomalies in the record forwarded by the department, GPSC raised certain queries and, according to the petitioner, Resolution of the said difference and confusion between GPSC and concerned department continued for almost 3 years i.e. until July, 2000.
14. The petitioner has alleged that in the meanwhile GPSC cleared names of about 22 employees for promotion to the post in ClassI cadre however since the issue related to petitioner's ACR for certain period was not resolved when the GPSC cleared names of 22 persons his case could not be finalised. It is claimed by the petitioner that his name was not included by GPSC in the recommendation forwarded Page 8 of 23 C/SCA/13817/2015 ORDER to respondent State.
15. The petitioner has alleged that GPSC forwarded names of 22 employees vide its communication dated 19.8.1997 to the Secretary, Education Department, however, for almost 3 years his name could not be cleared and forwarded, only on account of nonsubmission of ACR for relevant period.
16. The grievance of the petitioner is that except alleged nonsubmission of ACR for certain period, there was no ground for nonconsideration of his case/ candidature and it was only on account of the alleged nonsubmission of ACR for certain period that his case could not be cleared along with other 22 persons in August, 1977. The petitioner has also alleged that the respondent State acted upon GPSC recommendation vide communication dated 19.8.1997 and granted promotion to 22 employees, recommended by GPSC. The petitioner has also alleged that ultimately the issue got resolved somewhere in 199899 and Page 9 of 23 C/SCA/13817/2015 ORDER in response to the inquiry by the concerned department, GPSC recommended petitioner's name vide its communication dated 29.1.1999. After receipt of GPSC's recommendation vide communication dated 29.1.1999 the concerned department and competent authority considered the recommendation and passed order dated 7.7.2000 promoting the petitioner to ClassI cadre. Accordingly, the petitioner came to be promoted w.e.f. 7.7.2000.
17. In this background, the petitioner's grievance is that his case should have been considered and cleared in August, 1997 along with other 22 persons and he should have been promoted in October, 1997 along with other 22 persons however on account of the issue related to alleged nonsubmission of ACR, which could not be resolved for almost 2 years, his case was delayed and consequently his promotion got delayed by almost 2½ - 3 years.
Page 10 of 23 C/SCA/13817/2015 ORDER 17.1 It is with regard to the said grievance and claim that the petitioner has prayed for above quoted relief in Paras 14(B) and (C).
18. Even on plain reading of the relief prayed for in Paras14(B) and (C) it becomes clear that the petitioner seeks effect of promotion w.e.f. 15.10.1997. He seeks deemed date of promotion and consequential benefits on the ground w.e.f. 15.10.1997. He also seeks revision in retiral benefits namely the amount paid towards gratuity, Provident Fund and pension and that such revision/ arrears should be paid w.e.f. 15.10.1997.
18.1 Thus, on reading the relief prayed for in Paras14(B) and (C) it becomes clear that the petitioner's grievance is with regard to events (cause of action) which occurred and arise in October, 1997.
19. In connection with said grievance and dispute the petitioner filed present petition in 2015. Page 11 of 23 C/SCA/13817/2015 ORDER
20. In this context, it is relevant to note that for the said interregnum (from October 1997 to August, 2015 when the petitioner filed present petition) all that the petitioner has to say is that he had submitted certain representations and he was awaiting action by the respondent in connection with the said representations. That is the only explanation which the petitioner could offer for complete inaction from 199798 to July, 2015.
21. Before proceeding further, it s relevant to mention at this stage that it is not the case of the petitioner that any person junior to him was promoted in October, 1997 when the respondent State accepted GPSC's recommendation (forwarded by GPSC vide communication dated 19.8.1997) and/ or that before 7.7.2000 (i.e. when the petitioner came to be promoted) any person junior to him came to be promoted.
21.1 Actually, during hearing of the present petition, learned advocate for petitioner Page 12 of 23 C/SCA/13817/2015 ORDER specifically submitted that the petitioner has not approached the Court with the case that any person junior to him was promoted before he, too, came to be promoted.
21.2 The learned advocate for the petitioner also clarified that the petitioner's claim for deemed date is not on the premise that his promotion should be considered effective from the date when his junior came to be promoted.
21.3 It is not even the case of the petitioner that from amongst 22 persons who came to be promoted in October, 1997, any one was junior to the petitioner.
21.4 It is also not the claim of the petitioner that until the time he came to be promoted, any person junior to him was promoted on the basis of GPSC's recommendation/ DPC's decision.
22. In this context, it is also relevant to note that even in the provisional select list which was prepared by the DPC in 1997 (which was Page 13 of 23 C/SCA/13817/2015 ORDER forwarded to GPSC) the DPC had included the employees whose names appeared at Sr. No.452 to 483 and Sr. No.358 in the common seniority list of the employee in ClassII cadre of Gujarat Education Services and the petitioner's name appeared at Sr. No.483 in the said common seniority list of ClassII employees in cadre of Gujarat Education Services.
22.1 Meaning thereby the petitioner's name was last in the provisional select list prepared and forwarded by DPC to GPSC.
22.2 Even the said fact highlights that any person junior to the petitioner was never promoted until the petitioner's name came to be recommended by GPSC vide its communication dated 29.1.1999 and it came to be accepted by the respondent State vide order dated 7.7.2000.
23. Above mentioned details and chronology bring out and make it clear that the cause of action for the petitioner arose in October, 1997, when the GPSC forwarded names of the said 22 employees Page 14 of 23 C/SCA/13817/2015 ORDER and GPSC list did not include name of the petitioner however from October, 1997 to July 2000 the petitioner did not raise any claim or dispute. Further, even if this period is not taken into account then also the cause of action for the petitioner arose atleast in January, 1999 when GPSC forwarded the recommendation qua the petitioner.
24. At this stage, it is relevant and necessary to mention that the petitioner retired from service, on superannuation in May, 2001.
25. During the said period, October, 1997 to May, 2001, the petitioner did not raise any dispute on any ground whatsoever.
26. In this context, it would be relevant to take into account the averment by the petitioner in Paras8 and 9 of the petition. The said Paras8 and 9 read thus:
"8. The petitioner respectfully states that thereafter, by letter dated 29/1/1999, the GPSC had informed the respondent number 5 that the GPSC had approved the Page 15 of 23 C/SCA/13817/2015 ORDER inclusion of the petitioner in the provisional select list for promotion to class I cadre. Accordingly, the GPSC had belatedly given the consent for promotion of the petitioner. Annexed hereto and marked as Annexure P to the petition is the copy of the letter dated 29/1/1999. Ultimately, the petitioner was granted the promotion to class I cadre by order dated 7/7/2000 and was posted as lecturer in Gujarat Educational Technology Bhavan, Ambavad. Annexed hereto and marked as Annexure Q to the petition is the copy of the promotion order dated 7/7/2000.
The petitioner was accordingly wrongfully denied the promotion for the period of 3 years from 15/10/1997 to 7/7/2000. Although, the petitioner was eligible and qualified in all respects and was also in the zone of consideration, only on account of some mischief played in the movement of the file of ACR either in the office of GPSC or in the office of respondent number 5, the petitioner was wrongfully deprived of the promotion. However, the fact remains that even if the concerned authorities had committed mistakes and lapses either deliberately or nondeliberately in providing the file of ACR, the petitioner cannot be made to suffer for no fault on his part because it is none of the business of the petitioner to provide file of ACR to the GPSC. It is entire responsibility of the respondent number 5 to supply the complete file of ACR to the GPSC. It is further submitted that on account of the wrongful denial of the promotion earlier, the promotion was further delayed on account of the subsequent requirement to get the approval of the finance department due to 5% cut. Therefore, the respondent authorities are entirely and exclusively responsible for the wrongful denial of the promotion to the petitioner for the period of 3 years from 15/10/1997 to 7/7/2000.
The petitioner had ultimately retired on 31/5/2001 while rendering service under the respondent number 2. The petitioner had suffered huge financial disadvantage on account of wrongful denial of promotion for the period of 3 years. If the petitioner was granted promotion in the year 1997, he would have earned increments for 3 years in the promotional cadre which would have substantially increased his pensionary and retirement benefits.
9. The petitioner had thereafter made series of representations to the respondents for the deemed date of promotion on account of the wrongful denial of promotion. Annexed hereto and marked as Annexure R collectively are the copies of the representations made from the year 2002 to 2004. The respondent number 5 had informed the respondent number 3 to prepare a detailed proposal for the claim of the petitioner for deemed date of promotion or give appropriate reply to the petitioner. Annexed hereto and marked as Annexure S to the petition is the copy of the letter dated 21/8/2004. However, no further Page 16 of 23 C/SCA/13817/2015 ORDER steps were taken by either of the authorities. The petitioner had thereafter made further representations from the year 2006 upto the year 2011. Annexed hereto and marked as Annexure T collectively to the petition are the copies of the representations from the years 20072011. The petitioner had also submitted the applications under RTI for getting the relevant details, documents and correspondence and the same were supplied between the years 20132015. Most of the correspondence and documents annexed with the petition are received by the petitioner under RTI.
The petitioner states that the respondent number 2 had by letter dated 14/3/2011 called for the copy of the application sent by the petitioner to the respondent number 5. Annexed hereto and marked as Annexure U to the petition is the copy of the letter dated 14/3/2011. The petitioner had made a further representation to the respondent number 2 by letter dated NIL/7/2012 regarding the injustice caused to the petitioner in the matter of promotion. Annexed hereto and marked as Annexure V to the petition is the copy of the letter dated NIL/7/2012. The respondent number 2 had recommended to respondent number 3 by letter dated 3/8/2012 to do the needful in respect of the representation of the petitioner for the deemed date of promotion. Annexed hereto and marked as Annexure W to the petition is the copy of the letter dated 3/8/2012."
27. From the above quoted averment, it becomes clear that the first representation which the petitioner submitted was in January, 2002 (Annexure R page51) which was followed by another representation dated 24.9.2002 (page55). The petitioner, thereafter, submitted another representation in December, 2003 (page58) followed by representation dated 7.7.2004. Thus, from 1997 until he retired in 2001 and thereafter till January, 2002, the petitioner never raised Page 17 of 23 C/SCA/13817/2015 ORDER any grievance or dispute with regard to the so called delay in clearing his case for promotion.
28. It appears that after hiatus of almost 10 years (from 20042013) the petitioner seems to have filed an application under RTI Act. The said application seems to have been submitted somewhere in April, 2013.
29. It was with reference to the said application that the Education Department forwarded a reply to the petitioner vide communication dated 17.3.2015. Another reply came to be forwarded to the petitioner vide communication dated 25.3.2015.
30. As mentioned earlier, the petitioner has converted the said reply in to cause of action whereas actually the petitioner's cause of action arose in October, 1997 however the petitioner did not take any action in law, against respondents from 1997 to 2015 and now after passage of almost Page 18 of 23 C/SCA/13817/2015 ORDER 28 years the petitioner has come out with present petition seeking above quoted relief.
31. The petition is opposed by the respondents. The Under Secretary with respondent no.1 Government has filed reply affidavit wherein it is averred and stated that:
"6. I state that it is undisputed fact that no person below the petitioner in the seniority list has been granted promotion prior to the petitioner and therefore, the action of the authorities to grant promotion as and when one is entitled to be duly followed.
7. Even otherwise, on bare perusal of the impugned order dated 17.03.2015, it is clear that the same is a well reasoned, detailed, self explanatary and therefore, it should not be interfered with.
8. I state that the DPC which was held on 17.02.1997 considered the cases of officers of the Gujarat Education Services Class II to promote on the post of Gujarat Education Service Class I from serial No.451 to 500, of the Seniority list. After considering all the aspects, the DPC recommended promotion from serial No. 451 to 483 of seniority list. On the basis of recommendation of the DPC, the Education Department submitted the proposal to the GPSC vide Education Department's letter dtd. 17/4/1997 for their approval. The GPSC accorded their approval vide letter dtd. 19/8/1997 in which they recommended for promotion upto Sr. No.:482, and asked the Govt. to send the ACRs of certain period of officers of Sr. No. 454, 458 and 483. Accordingly necessary promotion orders were issued by the Education Department as recommended by the GPSC. (A letter dtd. 19/08/1997 of GPSC is annexed & marked as AnnexureR1)
9. Since the petitioner was on Sr. No.483, his name was not recommended by the GPSC as his ACR of certain period was not available at that relevant point of time and accordingly he was not granted promotion.
10. ACR of the petitioner (Sr. No.483) was made available and the same was forwarded to the GPSC as asked by them. The GPSC sent their recommendation vide letter dtd.29/1/1999 and accordingly the petitioner was granted promotion from 07.07.2000. (A letter dtd. 29/1/1999 is annexed and marked as Annexure R2) Page 19 of 23 C/SCA/13817/2015 ORDER
11. So far as the contention of the petitioner that ACRs of other persons were also not found at the relevant point of time when the DPC met, however, they were granted promotion but in my respectful submission, their serial numbers were prior to the serial number of the petitioner and their names were recommended by the GPSC and accordingly they were granted promotion. Further the petitioner who was at serial No.483 was not recommended and therefore he did not get promotion in the year 1997.
12. The next DPC was held on 27/03/2001 to consider the cases from serial No.:484 to 530 of the Seniority List. The promotion orders were issued from serial No: 484 onwards on 8/2/2002. The petitioner was at Sr. no: 483. His junior at Sr. no: 483 has not been promoted prior to the petitioner. Therefore, as per the instructions contained in Government circular in General Administrative Department No.SGS1069/121(19)G, (G2), dated 30/03/1970, the petitioner is not entitled to get deemed date since his junior at Sr. No.: 484 has not been promoted prior to him. (A copy of GAD's circular dtd. 30/03/1970 is annexed marked as Annexure R.3)"
32. It is necessary to mention that despite passage of 3 years respondent GPSC has not cared to file reply. Therefore, the version of GPSC with regard to allegations by GPSC is not available on record.
33. The respondent GPSC has not filed affidavit. Even if the Court proceeds on the premise that allegation by the petitioner with regard to period consumed from 19971999 are true, then also there is no basis or justification, much less any merits, in the claim by the petitioner. Page 20 of 23 C/SCA/13817/2015 ORDER 33.1 Further, gross delay of almost 10 to 11 years cannot be ignored, more so when there is explanation for such indolence and gross delay. The delay disentitles the petitioner.
34. Having regard to inordinate and gross delay of almost 28 years, the petitioner's claim does not deserve to be entertained.
34.1 As mentioned above, only on the strength of the reply given by the respondent in response to the application filed under RTI Act in April, 2013, the petitioner has made out cause of action which, actually died with passage of almost 28 years (after having arisen in October, 1997). 34.2 In view of the fact that from October, 1997 until May, 2001 (when the petitioner retired from service), he never raised any grievance or demand or any dispute with regard to the so called delay in promotion and even after his retirement in May, 2001 for almost 1415 years, he did not raise the dispute (except sporadically submitting representation from 2002 to 2004). Page 21 of 23 C/SCA/13817/2015 ORDER
35. The petitioner's grievance, if any, is a dead dispute and stale claim.
36. Such dead dispute and grievance does not deserve to be entertained. Neither law nor equity would help indolent and negligent person.
37. There is another reason which would not permit the Court to entertain petitioner's grievance and to grant any relief. 37.1 It is appropriate to recall that DPC had forwarded tentative and provisional list from amongst the employees in ClassII cadre. Out of the list forwarded by DPC, GPSC recommended cases of 22 persons in 1997.
37.2 At that stage, it was for the respondent State to accept GPSC's recommendation or to not accept the said recommendation. The State may accept recommendations in part and not in totality. Such decision and discretion rests with the respondent State.
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38. Under the circumstances, there is no basis for petitioner to assume that if GPSC had forwarded his name along with other 22 persons then entire recommendation of the GPSC would have been accepted by the respondent State. The decision of the respondent State would depend upon various factors including availability of actual vacancy. Under the circumstances, the petitioner's assumption is baseless and unjustified.
39. For above mentioned reasons, the claim by the petitioner does not merit consideration and cannot be granted.
40. Consequently, the petition fails and deserves to be rejected and is accordingly rejected.
(K.M.THAKER, J) saj Page 23 of 23