Gujarat High Court
Ila Ganpatlal Patel vs High Court Of Gujarat on 27 December, 2019
Equivalent citations: AIRONLINE 2019 GUJ 748
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/3524/2019 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3524 of 2019
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ILA GANPATLAL PATEL Versus HIGH COURT OF GUJARAT & 2 other(s) ========================================================== Appearance:
MS HARSHAL N PANDYA(3141) for the Petitioner(s) No. 1 MR MANAN MEHTA, AGP (1) for the Respondent(s) No. 3 LAW OFFICER BRANCH(420) for the Respondent(s) No. 1,2 MR HEMANG M SHAH(5399) for the Respondent(s) No. 1,2 ========================================================== CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA Date : 27/12/2019 CAV ORDER Heard learned advocate Ms.Harshal Pandya for the petitioner, learned advocate Mr.Hemang Shah for respondent Nos.1 and 2 and learned Assistant Government Pleader Mr.Manan Mehta for respondent No.3, at length.
2. By filing the present petition, the petitioner has called in question the inaction on part of respondent No.1 in not attending to the proposal dated 12th January, 2018 resulting into denial of promotion to the petitioner to the post of Registrar, Industrial Court.
2.1 The petitioner has next prayed to set aside the decision communicated by the Registrar General, High Court, in letter dated 15th April, 2018, turning down the proposal of the petitioner for promotion on Page 1 of 11 Downloaded on : Fri Dec 27 23:25:22 IST 2019 C/SCA/3524/2019 CAV ORDER the ground that fresh Rules were brought into force with effect from 19th April, 2018.
3. The details of the service background of the petitioner are that she was appointed after process of selection, as Clerk-cum-Typist on the establishment of Industrial Court, Ahmedabad on 30th September, 1982. On 11th August, 1987, she was promoted as Senior Clerk, thereafter on 15th July, 1991 came to be promoted as Clerk and thereafter stood promoted on the post of Superintendent with effect from 01st September, 2012. The petitioner came to be transferred from Industrial Court, Ahmedabad to Industrial Court, Surat on 07th June, 2016.
3.1 The petitioner admittedly stands senior-most Superintendent on the establishment of the Industrial Court. As per the Rules then prevalent, the petitioner was entitled to be considered for promotion, since the promotion to the post of Registrar, Industrial Court, were to be given from amongst the Superintendents. On 01st December, 2017 the post of Registrar, Industrial Court fell vacant.
3.2 In view of the vacancy becoming available, respondent No.2 - the President, Industrial Court, Ahmedabad, forwarded proposal to respondent No.1 for consideration of promotion, sending details of the petitioner and of one Mr.M.G. Chavda. The Rules which governed the appointment to the Registrar, Industrial Court, were those notified on 19th September, 1994. Rule 2 provided that the appointment to the post of Page 2 of 11 Downloaded on : Fri Dec 27 23:25:22 IST 2019 C/SCA/3524/2019 CAV ORDER Registrar, Industrial Court, shall be made by promotion from amongst the persons of proved merit and efficiency who have worked for not less than seven years on the post of Superintendent (Class-III) in the Industrial Court. Even if the experience of seven years contemplated is not possessed by a person but if he has the experience for a period not less than two-thirds of the period specified and if the appointing authority is satisfied that the person having the seven years experience not available, then such person with lesser experience as above could be appointed. There is no dispute about the fact that the petitioner stood eligible to be promoted at that juncture.
3.3 In proposal dated 12th January, 2018 referred to above, copy of which figures on record of petition, respondent No.2 recommended the case of the petitioner, extracting the penultimate paragraphs, "I humbly state that no departmental inquiry pending against Ms. I.G. Patel and Mr. G.S. Chavda and no police case is registered against Ms. I.G. Patel and Mr. G.S. Chavda. There is no such system of writing Special Confidential Report and therefore, Special Confidential Reports in respect of both the above employees are not written please.
I humbly state that I have gone through the Confidential Reports for the last five years in respect of Ms. I.G. Patel, Superintendent, Industrial Court, Surat. Annual Confidential Reports for the last five years are "Good" and there are no any adverse remarks in the Confidential Report during the last five years in respect of Ms. I.G. Patel, presently working as Superintendent, Page 3 of 11 Downloaded on : Fri Dec 27 23:25:22 IST 2019 C/SCA/3524/2019 CAV ORDER Industrial Court, Surat.
I humbly submit that Ms. I.G. Patel, presently working as Superintendent, Industrial Court, Surat, is an able person with considered experience and merit. She is found to be eligible, suitable and fir to be considered for selection and appointment to the post of Registrar (Class-II), Industrial Court, Ahmedabad and therefore, I recommend her name for promotion to the post of the Registrar (Class-II), Industrial Court, Ahmedabad."
3.4 It was stated by the petitioner that since nothing was heard about the proposal, having made inquiry under the Right to Information Act, 2005, the petitioner could receive the aforementioned communication dated 15th April, 2018 addressed by respondent No.1 to the President, Industrial Court. As mentioned above, the proposal dated 12th January, 2018 was returned by respondent No.1 stating that Rules called Industrial Courts and Labour Courts (Recruitment and Conditions of Services of Non- Judicial Officer and Staff) Rules, 2018 were required to be followed while selecting the incumbent for the post of Registrar in the Industrial Courts and Labour Courts.
3.5 Thus on the ground of new Rules having been come into play in the meantime, the proposal already forwarded was not processed and not considered by respondent No.1. It deserves to be mentioned that new Rules of 2018 changed the entire eligibility criteria for promotion to the post of Registrar, Industrial Court. Only those candidates who had worked in the Page 4 of 11 Downloaded on : Fri Dec 27 23:25:22 IST 2019 C/SCA/3524/2019 CAV ORDER Labour Court were considered eligible. The Rules of 2018 are on record which reflect the eligibility that for the purpose of promotion to the post of Registrar, Industrial Courts, the candidate should have preferably possessed the law graduation degree and shall have five years experience in the cadre of Registrar, Labour Court, or shall have combined eight years experience as Registrar, Labour Court and Bench Clerk, Grade-I. 3.6 In other words, a person like petitioner who had worked on the establishment of the Industrial Court rendering long service, would not be eligible for the promotion to the post of Registrar, Industrial Court. Only those who are on the establishment of the Labour Courts and possessed the requisite experience came to be attached with the eligibility under the newly framed Rules.
4. Learned advocate for the petitioner could emphatically submit that when the proposal was made on 12th January, 2018, the new Rules had not come into force and the petitioner was liable to be promoted as she possessed the necessary eligibility. Learned advocate could further relied on decision of this Court in Mayank Bhagvandas Shethwala v. High Court of Gujarat being Special Civil Application No.6231 of 2018 decided as per order dated 24th June, 2019, the facts of which were akin to the facts of the present case.
4.1 Petition was contested by respondent No.1 Page 5 of 11 Downloaded on : Fri Dec 27 23:25:22 IST 2019 C/SCA/3524/2019 CAV ORDER
highlighting that the promotional selection to the post shall have to be governed by the new Rules of 2018 which had come into force from 19th April, 2018. It was stated that the Chamber Meeting held on 19th January, 2018 accepted the new Rules which were going to be implemented. It was stated that after the Chamber Meeting decision, the new Rules of 2018 were forwarded to the State Government on 23rd January, 2018.
4.2 It was then stated that the proposal dated 12th January, 2018 received from respondent No.2 was placed for consideration before the Registrar General and thereafter decision was taken by the High Court on the administrative side to follow the draft rules of 2018.
5. From the facts noticed on record, there is no gainsaying that when the proposal to promote the petitioner was made by respondent No.2 on 12th January, 2018, the petitioner was fully eligible. Her case was positively recommended and she was considered fit to be promoted. The vacancy was already there having fallen vacant on 01st December, 2017, pursuant to which the proposal was made. The new Rules of 2018 came into force subsequently on 19th April, 2018. The petitioner's case duly recommended was already in pipeline to culminate into an appropriate decision. However, respondent No.1 on its administrative side proceeded not to accept the recommendation for promotion of petitioner. Even the decision was taken by respondent No.1 to accept the Page 6 of 11 Downloaded on : Fri Dec 27 23:25:22 IST 2019 C/SCA/3524/2019 CAV ORDER Rules on 19th January, 2018 which were subsequently forwarded on 23rd January, 2018 to the State Government for sanction of the Honourable Governor.
5.1 The position emerged was that the petitioner's case was recommended with reference to the vacancy already arisen which was liable to be considered as per the proposal and in the backdrop of the then prevalent Rules. The petitioner could legitimately claim the promotional right on the basis of the facts existed at the point of time when the proposal was made.
5.2 The facts in Mayank Bhagvandas Shethwala (supra) were noticeably similar where the petitioner was qualified and eligible to the cadre of Deputy Registrar to be promoted to the post of Registrar. Recommendation in favour of the petitioner was forwarded to the High Court on 12th July, 2017. However, before the actual promotion could be granted, new Rules came into force with effect from 10th April, 2017. Under the new Rules, process of interview was contemplated. The facts of the case of the petitioner herein stand virtually at par, rather the petitioner's case stand on a better footing. In Mayank Bhagvandas Shethwala (supra), the recommendation was forwarded subsequent to coming into force of new Rules.
5.3 In Mayank Bhagvandas Shethwala (supra), the Court relied on the decision of the Supreme Court, which is reproduced herein to be part of reasoning of Page 7 of 11 Downloaded on : Fri Dec 27 23:25:22 IST 2019 C/SCA/3524/2019 CAV ORDER the present order.
"6. In Major General H.M. Singh, VSM v. Union of India [(2014)3 SCC 670] the facts were comparable which was highlighted by the Apex Court in these words.
"The appellant was promoted to the rank of substantive Major-General with effect from 7-1- 2004. It is also not a matter of dispute that the substantive vacancy in the rank of Lieutenant-General, against which the appellant was eligible for consideration, became available with effect from 1-1-2007. Even though the appellant had nearly 14 months of military service remaining at the aforesaid juncture, the procedure contemp0lated for making promotions to the rank of the Lieutenant-General was initiated for the first time just two days before the date of retirement of the appellant, on 27-2-2008.
Although it is the contention of the respondents, that the delay in convening the Selection Board and conducting its proceedings was not deliberate of mala fide, yet there can be no doubt about the fact that the appellant was not responsible for such delay. For all intents and purposes, he was repeatedly seeking consideration orally as well as in writing. He had been repeatedly informing the authorities about the approaching date of his retirement. In response, he was always assured that if found suitable, he would be actually promoted prior to the date of his retirement. It was for the respondents to convene the meeting of the Selection Board. Since the Selection Board came to be convened for the vacancy which had arisen on 1-1-2007 only on 27-2-2008, the respondents must squarely shoulder the blame and responsibility of the above delay." (Para 27) 6.1 It was held by the Supreme Court thereafter that when the vacancy was existing and the appellant was in service and it was not the situation as if the vacancy was created after the appellant before it had reached the age of retirement, the appellant Page 8 of 11 Downloaded on : Fri Dec 27 23:25:22 IST 2019 C/SCA/3524/2019 CAV ORDER was entitled to be promoted to the post. It was stated, "In situations wherein an officer attains the age of retirement without there being a vacancy for his consideration to a higher rank, even though he is eligible for the same. Such an officer who is granted extension in service, cannot claim consideration for promotion, against a vacancy which has become available during the period of his extension in service. However, insofar as the present controversy is concerned, there is no doubt whatsoever, that a clear vacancy against the rank of Lieutenant- General became available with effect from 1-1- 2007. At that juncture, the appellant had 14 months of service remaining. It is not as if the vacancy came into existence after the appellant had reached the age of retirement on superannuation. The present case is therefore, not covered by the technical plea raised by the State." (Paras 32 and 33)"
5.4 It is trite to observe that promotion is an important right partaking a fundamental right of the employee. It is the avenue of promotion which prompts the employee to discharge duties actively and efficiently. A promotion is an encouraging doze for an employee in his or her career promoting to improve and work better. Non-availing of timely promotion and denying the promotional opportunity when due, has a tendency to create an adverse effect in the performance of the employee.
5.5 In Delhi Jal Board v. Mahinder Singh [(2000) 7 SCC 210] the Court highlighted in the context of right to be considered by the Departmental Promotion Committee, the importance of promotion to observe that it is a fundamental right under Article 16 of the Constitution, though subject to the conditions that the claimant is eligible and within the zone of Page 9 of 11 Downloaded on : Fri Dec 27 23:25:22 IST 2019 C/SCA/3524/2019 CAV ORDER consideration. In Raghunath Sinh v. Government of Bihar [AIR 1988 SC 1033], the Apex Court highlighted the need for availing the reasonable promotion opportunity to government servant.
"Reasonable promotional opportunities should be available in every wing of public service. That generates efficiency in service and fosters the appropriate attitude to grow for achieving excellence in service. In the absence of promotional prospects, the service is bound to degenerate and stagnation kills the desire to serve properly." (Para 4)
6. In light of the above facts obtaining, the principles stated and the position of law emerging, reverting back to the case of the petitioner, the promotional right of the petitioner could be said to have been accrued quite before the new Rules of 2018 came into play. When the vacancy was available for the promotional post, when the petitioner was eligible awaiting promotion and was fit to be promoted under the then prevalent Rules and when even the proposal was also made for promoting the petitioner with favourable recommendation, not considering the same by raising a shield of new Rules which were subsequent, could said to be unjust, unreasonable and against the tenets of Articles 14 and 16 of the Constitution.
7. As a result of the above discussion and reasons, the present petition deserves to be allowed. Respondents are directed to expeditiously consider the case of the petitioner for promotion to the post of Registrar, Industrial Court, treating the eligibility of the petitioner under the Rules prevalent at the time of proposal dated 12th January, Page 10 of 11 Downloaded on : Fri Dec 27 23:25:22 IST 2019 C/SCA/3524/2019 CAV ORDER 2018 granting the petitioner all consequential service benefits.
Direct service is permitted.
(N.V.ANJARIA, J) Anup Page 11 of 11 Downloaded on : Fri Dec 27 23:25:22 IST 2019