Gujarat High Court
G B Jadeja vs State Of Gujarat & 2 on 8 June, 2017
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/2464/2006 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 2464 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.M.THAKER
==========================================================
1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
==========================================================
G B JADEJA....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
==========================================================
Appearance:
HIMANSHI R BALODI, ADVOCATE for the Petitioner(s) No. 1
MR ANAND L SHARMA, ADVOCATE for the Petitioner(s) No. 1
GOVERNMENT PLEADER for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 1 - 3
==========================================================
CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 08/06/2017
ORAL JUDGMENT
Page 1 of 16
HC-NIC Page 1 of 16 Created On Fri Aug 18 06:09:01 IST 2017 C/SCA/2464/2006 JUDGMENT
1. Heard Mr. Sharma, learned advocate for the petitioner and Mr. Barot, learned AGP for the respondent - State.
2. The petitioner is aggrieved by order dated 21.12.2005 whereby the petitioner, after repatriation from deputation, came to be appointed as Arm Constable.
2.1 According to the claim of the petitioner, before he was sent on deputation to CID (IB), he was promoted to the post of Head Constable Grade II (Armour Branch), and that therefore, upon repatriation from deputation, he should have been posted/appointed on the same post, however, the respondents appointed / posted him as armed constable.
2.2 According to the petitioner, the impugned action of the respondents amounts to reversion without any reason and without following any procedure.
Page 2 of 16
HC-NIC Page 2 of 16 Created On Fri Aug 18 06:09:01 IST 2017
C/SCA/2464/2006 JUDGMENT
3. So far as factual background is concerned, it has emerged from the record that the petitioner was initially appointed on 1.11.1982 as Armed Police Constable in SRP Group8, Gondal. 3.1 In May, 1984, he came to be appointed as Armourer in the same pay scale.
3.2 The petitioner has claimed that in 1989, he had undergone and passed training for the post of Armourer and in the year 1991, he was promoted as GradeII Head Constable (Armour Branch). 3.3 The petitioner has claimed that he served as such from 1991 until 10.11.1995 at Gondal. 3.4 It is also claimed and asserted by the petitioner that, in the meanwhile, his promotion was confirmed on the said post vide order dated 6.10.1993.
3.5 The petitioner has also claimed that from
Page 3 of 16
HC-NIC Page 3 of 16 Created On Fri Aug 18 06:09:01 IST 2017
C/SCA/2464/2006 JUDGMENT
11.11.1995 to 5.1.1996, he served as GradeII Head Constable at Choki Training Centre, Rajkot. 3.6 Subsequently, the petitioner was sent on deputation at CID (IB) on the post of Intelligence Officer where he worked as such from 1.6.1996 to 3.4.1999.
3.7 Upon completion of deputation, he was repatriated to SRP Group8, Gondal. 3.8 At that point of time, the petitioner came to be repatriated and posted as Armed Police Constable w.e.f. 10.4.1999.
3.9 He reported for duty as such on 11.4.1999. However, the petitioner, it appears, raised grievance about the post and claimed that he should have been appointed as Head Constable and not as Constable.
3.10 At that stage, the petitioner filed
Page 4 of 16
HC-NIC Page 4 of 16 Created On Fri Aug 18 06:09:01 IST 2017
C/SCA/2464/2006 JUDGMENT
petition, i.e. Special Civil Application No.1478 of 2005. The said petition came to be disposed of vide order dated 22.7.2008 whereby the petitioner was directed to submit representation and the competent authority was directed to decide the representation within specified time. 3.11 Subsequently, the petitioner submitted the representation, however, the said representation came to be rejected on the ground that when the petitioner came to be repatriated, there was no vacancy to the post of Head Constable and therefore, he came to be posted as Armed Constable.
4. Feeling aggrieved by said reply, the petitioner preferred present petition.
5. Mr. Sharma, learned advocate, reiterated above mentioned facts and details and he placed reliance on the order dated 24.9.1991 (AnnexureC to the petition) and the order dated 6.10.1993 Page 5 of 16 HC-NIC Page 5 of 16 Created On Fri Aug 18 06:09:01 IST 2017 C/SCA/2464/2006 JUDGMENT (AnnexureD to the petition) to support his contention that the petitioner was not only promoted to the post of GradeII Head Constable (Armour Branch) but his promotion was subsequently confirmed on the said post and that therefore, reply given by the authority in response to his representation is unjustified and without application of mind to relevant facts. With the said submission, learned advocate for the petitioner submitted that the impugned order deserves to be set aside and the respondent should be directed to post him as GradeII Head Constable (Armour Branch).
6. The petition is opposed by the respondents. In the reply affidavit dated 22.06.2006, the respondents have averred and stated that: "6. At the outset, it is submitted that petitioner Ghanshyamsinh B. Jadeja was given the adhoc promotion as Armed Second Head Constable 24/09/1999 and other Armed Second Head Grade Constable Kishorsinh B. Jadeja of the same group from training center has returned to the Chowki Group and therefore petitioner being junior to him was required to be placed in his original cadre. It is submitted that in the meanwhile, Ghanshyamsinh B. Jadeja was placed on deputation at the Choki from 11/11/1995. During this period, the petitioner was sent to deputation on 6/1/1996 in Intelligence Branch as Intelligent Officer. After the return of the petitioner from the deputation from IB, he was relieve and from 11/04/1999. Petitioner has kept present himself with the respondent and he was posted as additional Page 6 of 16 HC-NIC Page 6 of 16 Created On Fri Aug 18 06:09:01 IST 2017 C/SCA/2464/2006 JUDGMENT Armed Police Constable in the Armourer Branch. Therefore, the petitioner in by way of this petitioner has claimed for appointment as Armed Head Constable in this petition. It is submitted that there is no vacant post of Armed Head Constable with the respondent and the petitioner therefore, has been appointed as Armed Police Constable.
7. With regards to averments made in the Para 3 of the petition, the same are denied. It is submitted that from the 1/5/1982, the petitioner has been appointed as Armed Police Constable with the department of respondent and he was placed in the Armourer Branch. It is submitted that the petitioner has taken the training of Armourer from the period of 7/09/1989, with the State Reserve Police Force, Group No.1 of Vadodara. It is submitted that because of the vacant post in the Armourer Branch the petitioner was given the adhoc promotion from 24/09/1991 in the Armourer Branch as Armed Head Constable and from 24/09/1991 to 10/01/1995, the petitioner has working as Armed Head Constable in this group.
It is submitted that from 11/11/1995 to 5/01/1996, petitioner was on deputation at SRP training Choki and 6/01/1996 to 3/04/1999 with the CIDIB Branch as Intelligence Officer. It is submitted that after returning him from branch CID Intelligence as an Armed Head Constable, he was placed in the Armourer Branch as Additional Armed Police Constable due to nonavailability of the post of Armed Head Constable. The petitioner was placed with the Armourer Branch after the returning from the CID (IB) from the 21/04/1999.
8. With regards to averments made in Para 4 of the petition, the same are denied. It is submitted that for the application/representation made by the petitioner reply has been given to him vide reply dated 21/12/2005 to the advocate of the petitioner.
It is submitted that the reply was also given to the advocate of the petitioner by the office of the respondent pursuant to the notice dated 8/04/2005 under Section 80 of the Civil Procedure Code.
9. With regards to averments made in the Para 5 of the petition, the same are denied. It is submitted that petitioner has referred the oral order dated 22/07/2005 was passed in Special Civil Application No.14878 of 2005. Petition was filed by the present petitioner for the giving him the appointment to the post of Armed Head Constable. It is submitted that reply was also submitted pursuant to the notice under Section 80 of the Civil Procedure Code reply dated 21/12/2005."
7. Learned AGP reiterated the facts and details stated in the above mentioned affidavit. Upon Page 7 of 16 HC-NIC Page 7 of 16 Created On Fri Aug 18 06:09:01 IST 2017 C/SCA/2464/2006 JUDGMENT reiteration of the said facts, learned AGP submitted that the claim by the petitioner is unjustified and the order passed by the competent authority posting the petitioner to the post of armed constable is in accordance with Rules and, therefore, the petition may not be entertained.
8. I have considered rival submission as well as material on record and impugned order.
9. At the outset it is pertinent to note that even the respondent did not dispute the fact that the order dated 24.9.1991 and orders dated 6.10.1993 have been passed by the Competent authority.
10. In this backdrop, the respondent's explanation in Paras6 and 7 reply affidavit are required to be considered. The deponent in the affidavit has stated, inter alia, that:
"Ghanshyamsinh B. Jadeja was given adhoc promotion as Armed Second Head Constable 24/09/1999...." Now if one turns to the order Page 8 of 16 HC-NIC Page 8 of 16 Created On Fri Aug 18 06:09:01 IST 2017 C/SCA/2464/2006 JUDGMENT dated 24.9.1999, it comes out that in the said Order it is mentioned that promotion to the post of GradeII Head Constable (Armour Branch) was granted to the petitioner and he was placed in Payscale of 975251150EB301660 on temporary and adhoc basis.
11. However, what is relevant is the fact that by order dated 6.10.1993 the petitioner's promotion to the said post came to be confirmed.
12. Interestingly, the affidavit dated 22.6.2006 filed by the respondent does not make reference about and/ or does not speak anything about the order dated 6.10.1993.
12.1 The respondents have conveniently avoided to make reference of and to take into account the order dated 6.10.1993 and have filed the affidavit as if the said order was never passed.
13. On reading the order dated 6.10.1993 it comes Page 9 of 16 HC-NIC Page 9 of 16 Created On Fri Aug 18 06:09:01 IST 2017 C/SCA/2464/2006 JUDGMENT out clearly that about 90 permanent post in the cadre of Head Constable Grade II were sanctioned/ approved and 6 post of Constable were upgraded to the post of Head Constable and the petitioner's promotion came to be confirmed on one of said vacancies i.e. to the post of GradeII Head Constable.
14. It is also pertinent to mention that it was after the said confirmation to the post of Grade II Head Constable the petitioner was sent on deputation to CID( IB) on the post of Intelligence Officer.
15. In this background, when the petitioner came to be repatriated to his parent department i.e. SRP Grade8, then ordinarily he should have been posted to the post to the post he was promoted before proceeding on deputation i.e. to the post of GradeII Head Constable.
15.1 Unless any special reason is made out and Page 10 of 16 HC-NIC Page 10 of 16 Created On Fri Aug 18 06:09:01 IST 2017 C/SCA/2464/2006 JUDGMENT appropriate procedure prescribed by Rule for not posting petitioner to the post of Second Grade Head Constable (Armour Branch) is established,there would not be justification for not posting the petitioner to the post he held before proceeding on deputation viz. the post of Second Grade Head Constable (Armour Branch). 15.2 It is also relevant to mention that the only ground which is made out by the respondent in impugned order is that at the time when the petitioner came to be repatriated there was no vacancy.
15.3 The said replyexplanation is not palatable inasmuch as before he was sent on deputation the petitioner was already promoted to the post of Second Grade Head Constable (Armour Branch) and his promotion was also confirmed vide order dated 6.10.1993. The said factual aspect is not disputed even by the respondent. Thus, when it is not in dispute that the petitioner was sent on Page 11 of 16 HC-NIC Page 11 of 16 Created On Fri Aug 18 06:09:01 IST 2017 C/SCA/2464/2006 JUDGMENT deputation after confirmation of his promotion, how can the explanation about nonavailability of the vacancy be digested.
15.4 By the reply affidavit it is claimed that on account of certain vacancies, adhoc promotion was given.
16. The reply affidavit filed by the respondent falls short of necessary and relevant explanation. Besides this, when the petitioner, pursuant to the order passed by this Court, submitted representation the concerned authority rejected the petitioner's representation however in the order rejecting the representation any reasons dealing with the facts mentioned in the petition are not made out.
17. It is pertinent that neither impugned order nor order whereby the authority rejected the representation nor the reply affidavit deal with the fact and situation related to the order dated 6.10.1993. It is also pertinent that in the reply Page 12 of 16 HC-NIC Page 12 of 16 Created On Fri Aug 18 06:09:01 IST 2017 C/SCA/2464/2006 JUDGMENT affidavit the respondent has averred and stated that because of the vacant post in the Armourer Branch the petitioner was given the adhoc promotion from 24/09/1991 in the Armourer Branch as Armed Head Constable and from 24/09/1991 to 10/01/1995, the petitioner has working as Armed Head Constable in this group. However, the reply affidavit is silent about the order dated 6.10.93.
The petitioner has asserted that his promotion was confirmed vide said order dated 6.10.93 however any specific denial along with proper explanation with regard to said assertion by the petitioner and with regard to order dated 6.10.93 does not come out form affidavit or impugned order.
18. In this view of the matter, the impugned order which does not take into account the order dated 6.10.1993 and also does not deal with the fact that when the petitioner's promotion to the post of Second Grad Head Constable was confirmed Page 13 of 16 HC-NIC Page 13 of 16 Created On Fri Aug 18 06:09:01 IST 2017 C/SCA/2464/2006 JUDGMENT vide order dated 6.10.1993 how the question of any vacancy could have arisen at the time when the petitioner came to be repatriated to his department.
19. In absence of relevant details and complete facts, the Court, at this stage, is unable to determine as to whether there were any legally sustainable reason with regard to the posting of the petitioner on the post of Armed Constable (after his repatriation from CID (IB) to his parent department).
20. The Order which is impugned in the present petition, seems to have been passed only on the ground that at the relevant time there was no vacancy and, therefore, the petitioner came to be posted as Armed Constable. As mentioned above, in light of the Order dated 06.10.1993, the said reason does not appear to be sustainable.
21. It is also relevant to mention that it is not the case of the respondent that the Order dated Page 14 of 16 HC-NIC Page 14 of 16 Created On Fri Aug 18 06:09:01 IST 2017 C/SCA/2464/2006 JUDGMENT 06.10.1993 does not relate to the petitioner and he was not covered within purview of the said order.
21.1 Since impugned order dated 21.12.2005 and the order passed in respect of representation made by the petitioner does not deal with the order dated 6.10.1993, the Court is of the view that case deserves reconsideration by the Authority.
22. Therefore, following order is passed:
a. The impugned order dated 21.12.2005 is set aside and the case is remanded to the competent authority who shall pass fresh order and shall also deal with order dated 6.10.93 and the claim of the petitioner after taking into account the order dated 24.9.1991 and 06.10.1993. b. The concerned authority shall pass appropriate fresh speaking and reasoned order in accordance with applicable Rules and after taking Page 15 of 16 HC-NIC Page 15 of 16 Created On Fri Aug 18 06:09:01 IST 2017 C/SCA/2464/2006 JUDGMENT into account complete facts of the case including above mentioned orders and without being influenced by the impugned order dated 21.12.2005.
c. It is clarified that this Court has not expressed any opinion with regard to maintainability or otherwise of petitioner's claim.
23. With aforesaid direction and clarification, the petition is partly allowed. Rule is made absolute to the aforesaid extent.
(K.M.THAKER, J.) saj Page 16 of 16 HC-NIC Page 16 of 16 Created On Fri Aug 18 06:09:01 IST 2017