Gujarat High Court
Mohansinh Vechatbhai Patelia vs State Of Gujarat & on 13 August, 2015
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/12150/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 12150 of 2014
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MOHANSINH VECHATBHAI PATELIA....Petitioner(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR ASIM J PANDYA, ADVOCATE for the Petitioner(s) No. 1
MR. SWAPNESHWAR GAUTAM, ASST. GOVERNMENT PLEADER for the
Respondent(s) No. 1
MS ROOPAL R PATEL, ADVOCATE for the Respondent(s) No. 2
NOTICE SERVED BY DS for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 13/08/2015
ORAL ORDER
1. By this writ application under Article 226 of the Constitution of India, the petitioner serving as a Deputy Executive Engineer in the office of the River Gauging Sub- Division, Rajkot, has prayed for the following reliefs:
"(A) This Hon'ble Court may be pleased to issue appropriate directions, orders or writ directing respondent No.1 to delete the impugned remark made against the petitioner in the seniority list dated 03/05/2013 (Annexure-A) and forward the file of the petitioner to respondent No.2 for considering the case of the petitioner for promotion to the nest higher post i.e. Executive Engineer;
(B) The Hon'ble Court may be pleased to direct the respondents to consider the name of the petitioner for promotion for the next higher post as having been part of Unconditional Seniority List from the inception and Page 1 of 7 HC-NIC Page 1 of 7 Created On Thu Aug 20 00:16:24 IST 2015 C/SCA/12150/2014 ORDER without being influenced by the impugned remark in the seniority list.
(C ) Pending admission and final hearing of the present petition, this Hon'ble Court may be pleased to direct the respondent No.1 to clarify the remark to respondent No.2 within 15 (fifteen) days and the respondents may be directed to issue at least a provisional/ad hoc promotion to the petitioner.
In the alternative (C) Pending admission and final hearing of the present petition, this Hon'ble Court may be pleased to restrain the respondents, their officers, servant and agents from giving promotion to anyone from the seniority list until the case of the petitioner is cleared.
(D) Any other relief that this Hon'ble Court may deem just and proper may kindly be granted."
2. The facts of the case may be summarized as under;
2.1 On 16th February, 1982, the petitioner was appointed as the Additional Assistant Engineer (Civil) vide Officer Order No.56/82 passed by the respondent No.1. On 19th February, 1982, the petitioner joined the office of the respondent No.1.
2.2 On 3rd April, 1993, the petitioner was promoted to the post of the Deputy Executive Engineer (Civil).
2.3 On 19th April, 1993, the petitioner was sent on deputation as the Deputy Executive Engineer at the Narmada Project Main Canal Construction Sub Division No.5/11, Kalol (NG).
2.4 On 24th June, 1993, the petitioner was transferred at the Panam Project Circle, Godhara.
Page 2 of 7HC-NIC Page 2 of 7 Created On Thu Aug 20 00:16:24 IST 2015 C/SCA/12150/2014 ORDER 2.5 It appears that in the year 1993, the adverse remark was put in the confidential report of the petitioner.
2.6 On 19th January, 1995, the Superintending Engineer called upon the petitioner to make representation against the adverse remarks. The petitioner vide his representation dated 17th February, 1995, tendered his explanation so far as the adverse remarks were concerned.
2.7 On 25th May, 1995, the petitioner was informed that his representation was rejected. In the seniority list which was prepared by the respondent No.1 in the year 2008, the name of the petitioner did not figure.
2.8 On 3rd May, 2013, a supplementary seniority list was prepared by the respondent No.1 and the petitioner was placed at the serial No.1706.
2.9 On 3rd December, 2013, it was declared that the promotion of the persons figuring between Serial No.1678 and 1721 in the seniority list would be considered for promotion to the post of the Executive Engineer.
2.10 It appears that a junior employee figuring at Serial No.1720 was promoted to the post of the Executive Engineer but the petitioner was not considered.
2.11 Indisputably, the Departmental Promotion Committee considered the case of the petitioner and cleared him for the promotion. The remarks of the Departmental Promotion Committee were forwarded to the Gujarat Public Service Page 3 of 7 HC-NIC Page 3 of 7 Created On Thu Aug 20 00:16:24 IST 2015 C/SCA/12150/2014 ORDER Commission. The Gujarat Public Service Commission got confused on account of the adverse entry which was figured next to the name of the petitioner herein. The entry reds thus;
"Subject to inclusion in the unconditional select list"
3. Mr. Pandya, the learned advocate appearing for the petitioner submitted that the State Government realized at a later stage that such remark was unwarranted. Mr. Pandya invited my attention to the order passed by the Deputy Secretary, Narmada Water Resources, Kalpasar Department dated 20th July, 2015 stating that the petitioner and two other engineers shall be placed in the unconditional select list w.e.f. 30th June, 1994.
4. Mr. Pandya submitted that his client has not been promoted till this date to the post of the Executive Engineer whereas junior engineers have have already been promoted.
5. Mr. Gautam, the learned AGP, pointed out that the problem cropped up because the initial appointment of the petitioner was conditional. On account of the adverse remark which was put in the year 1993, the appointment of the petitioner continued as conditional. He submitted that now since the petitioner has been included in the unconditional select list, his case will now be again put before the Departmental Promotion Committee and the Departmental Promotion Committee will, accordingly, consider and recommend the case.
6. Mr. Gautam, the learned AGP, has placed reliance on the Page 4 of 7 HC-NIC Page 4 of 7 Created On Thu Aug 20 00:16:24 IST 2015 C/SCA/12150/2014 ORDER affidavit-in-reply filed on behalf of the respondent No.1 wherein he has made the following averments;
"6.4 During 04.11.1993 to 24.02.1994, there was an adverse remark which was put under the Confidential Report of the petitioner about political pressure for transfer as per circular dated 10.09.1980. The said remark was also communicated to the petitioner on 25.5.95 and by said letter petitioner's representation about said adverse remarks was not accepted by Government. The copy of the aforementioned Circular is annexed herewith and marked as ANNEXURE-R-III.
6.5 Subsequently, on 04.04.1996 the DPC met for considering the appointments to unconditional herein the case of the petitioner was also considered but due to adverse remarks, the case of petitioner was found to be unfit by the DPC; and which was also endorse by the Gujarat Public Service Commission. While the case of the petitioner was unfit, the DPC emphatically observed that the petitioner is unfit in the select list of 30.06.1990.
6.6 At this stage, it is further pertinent to mention that, as the petitioner was found unfit in select list of 30.06.1990, his case was referred to be considered in the subsequent select list of 30.06.1994 and for which the DPC met on 20.09.2001. But due to oversight the case of the petitioner could not be considered in that DPC.
6.7 In the mean time, in the year 1999 the Government passed the Resolution dated 22.06.1999 by which the earlier policy of the State Government for confirming the conditional appointment into unconditional appointment was cancelled. But the case in which promotion orders were issued before 22.06.99, the procedure for unconditional list shall be followed as per GR. The copy of the aforesaid Government Resolution is annexed herewith and marked as ANNEXURE-R-IV.
6.8 On 09.04.2015 the DPC remeet to reconsider those cases where the appointment were given on conditional basis. In this DPC the case of the petitioner was again considered and the same was forwarded to the GPSC vide letter dated 07.05.2015 for consultation. The copy of Page 5 of 7 HC-NIC Page 5 of 7 Created On Thu Aug 20 00:16:24 IST 2015 C/SCA/12150/2014 ORDER the said is annexed herewith and marked as ANNEXURE-R-V. 6.9 Subsequently, on 08.07.2015 the GPSC wrote to the deponent office that as the Confidential Report of the petitioner is not available, the State shall take an adequate and appropriate decision. The copy of the aforesaid letter is annexed herewith and marked as ANNEXURE-R-VI.
6.10 Subsequently, as per advice from GPSC, Department passed order on 20.07.15, in which petitioner found fit in unconditional select list of 30.06.1994. The copy of the aforesaid order is annexed herewith and marked as ANNEXURE-R-VII.
7. I respectfully say and submit that petitioner's name is included in unconditional select list by the order dated 20.7.15. DPC will consider the case of petitioner for promotion to next higher post.
8. By way of this petition, the petitioner has contended that the remarks made against the petitioner in the seniority list dated 03.05.2013, the answering respondent respectfully submits that as the petitioner's name is included in 30.06.1994 select list and his appointment became unconditional, the remarks mentioned under the seniority list have not any significance and now the petitioner's name will be considered for promotion to the Executive Engineer. Furthermore, it is clarified herein that the case of the petitioner shall be considered by the next DPC as per rules. At this stage, it is clarified herein that the promotion to next higher post of the petitioner shall be subject to his fulfilling all the criteria and eligibility for promotion in the next DPC and, if DPC and GPSC find fit petitioner's name, petitioner will be promoted to the post of Executive Engineer."
6. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration is whether the petitioner is entitled to the relief prayed for in the writ application.
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7. If I accept what has been submitted by Mr. Gautam, the learned AGP, then the entire exercise will have to be undertaken afresh. I am of the view that since the Departmental Promotion Committee had already cleared the petitioner and his case was positively recommended before the GPSC, then in such circumstances, there is no question now again placing the case of the petitioner before the Departmental Promotion Committee. I am saying so in light of the order dated 20th July, 2015, Annexure-VII, page 201. I have already quoted the said order above which says that the petitioner has been included in the unconditional select list w.e.f. 30th June, 1994.
8. In such circumstances referred to above, the respondents are directed to consider the case of the petitioner for promotion to the post of the Executive Engineer w.e.f. 7th October, 2014, i.e., the date on which the junior engineers were promoted.
9. This exercise shall be undertaken at the earliest and appropriate order in that regard shall be passed within a period of four weeks from the date of the receipt of the writ of the order. Rule is made absolute to the aforesaid extent.
(J.B.PARDIWALA, J.) Vahid Page 7 of 7 HC-NIC Page 7 of 7 Created On Thu Aug 20 00:16:24 IST 2015