Gujarat High Court
Kuldip N Sharma Ips (Retired) vs Union Of India & on 1 August, 2016
Bench: R.Subhash Reddy, Vipul M. Pancholi
C/SCA/1100/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 1100 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
=========================================
1 Whether Reporters of Local Papers may be allowed to see No
the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as No
to the interpretation of the Constitution of India or any
order made thereunder ?
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KULDIP N SHARMA IPS (RETIRED)....Petitioner(s)
Versus
UNION OF INDIA & 1....Respondent(s)
=============================================
Appearance:
MR IH SYED, ADVOCATE WITH MR MAUNISH T PATHAK, ADVOCATE for the
Petitioner(s) No. 1
MR PK JANI, ADDITIONAL ADVOCATE GENERAL for the Respondent(s) No. 2
MR DEVANG VYAS, ADVOCATE for the Respondent(s) No. 1
MR MAULIK G NANAVATI, ADVOCATE for the Respondent(s) No. 2
MS TRUSHA K PATEL, ADVOCATE for the Respondent(s) No. 1
=============================================
CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 01/08/2016
ORAL JUDGMENT
(PER : HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY) [1] In this Writ Petition filed under Article 226 and 227 of the Page 1 of 19 HC-NIC Page 1 of 19 Created On Fri Aug 05 23:57:42 IST 2016 C/SCA/1100/2016 JUDGMENT Constitution of India, challenge is to the judgment and order dated 15.12.2015 passed by the Central Administrative Tribunal, Ahmedabad Bench in O.A.No.105 of 2011 and further to declare Performance Appraisal Reports communicated vide letter dated 31.12.2010, as non est, void ab initio and bad in law.
[2] In the original application filed before the Central Administrative Tribunal, Ahmedabad Bench, the applicant herein has challenged validity of Government Instructions dated 11.11.2003 issued by the first respondent - Union of India which are relevant for the purpose of applying All India Service (Performance Appraisal Report) Rules, 2007 (for short 'the Rules, 2007"). The instructions were challenged mainly on the ground that such instructions run contrary to statutory rules. The petitioner has also sought to declare Annual Performance Appraisal Report (for short "APAR")communicated vide letter dated 31.12.2010 as illegal and to quash the said report. [3] The petitioner is Officer of the rank of Additional Director General of Police and belongs to the directly recruited batch of Indian Police Service (Gujarat, 1976 batch). The issue in controversy is with regard to the writing of (APAR) for the period from 10.11.2009 to 31.03.2010. During the financial year 200910 i.e. from 01.04.2009 to 31.03.2010, his posting status is as under : Page 2 of 19 HC-NIC Page 2 of 19 Created On Fri Aug 05 23:57:42 IST 2016 C/SCA/1100/2016 JUDGMENT Period Status / report 01/04/2009 to 27/06/2009 UN deputation.
28/06/2009 to 29/07/2009 Joining duty period and earned leave 30/07/2009 to 09/11/2009 Compulsory waiting period. 10/11/2009 to 31/03/2010 Managing Director, Gujarat Sheep and Wool Development Corporation.
[4] It is the case of the petitioner that during the period when he was posted as Managing Director, Gujarat Sheep and Wool Development Corporation, he has availed 40 days of Earned Leave from 17.01.2010 to 25.02.2010. He had also availed Commuted Leave for 15 days from 17.03.2010 to 31.03.2010. It is the contention of the petitioner / applicant that during the period from 10.11.2009 to 31.03.2010 in the financial year 200910, he had worked for less than 90 days after deducting leaves availed by him and as such, APAR could not have been written as communicated vide letter 31.12.2010 and "No Initiation Certificate" is required to be issued. [5] Before we proceed further, we deem it proper to refer relevant rules of Rules, 2007. Said rules are framed in exercise of powers conferred by subsection (1) of section 3 of the All India Services Act, 1951 and in supersession of earlier Rules which was titled as All India Services (Confidential Rolls) Rules, 1970. Definition of Accepting Page 3 of 19 HC-NIC Page 3 of 19 Created On Fri Aug 05 23:57:42 IST 2016 C/SCA/1100/2016 JUDGMENT Authority, Performance Appraisal Report, Reporting Authority and Reviewing Authority as defined under Rule 2(a), (f), (j) and (k) of the Rules, 2007 reads as under: 2(a) "accepting authority" means the authority which supervises the performance of the reviewing authority as may be specifically empowered in this behalf by the Government. 2(f) "performance appraisal report" means the performance appraisal report referred to in rules 4 and 5.
2(j) "reporting authority" means such authority or authorities supervising the performance of the member of the service reported upon as may be specifically empowered in this behalf of the Government.
2(k) "reviewing authority" means such authority or authorities supervising the performance of the reporting authority as may be specifically empowered in this behalf by the Government.
[6] Rule 4, 5 and 6 of the Rules, 2007 reads as under :
4. Form of the performance appraisal report. (1) The reporting authority shall write the performance appraisal report in such form as may be specified by the Central Government in Schedule 2 and the officer reported upon and the reporting, reviewing and accepting authority shall ensure that the portions of the forms which are to be filled in by them are completed by them within the time limit specified in this behalf by the Central Government:
5. Performance appraisal reports. (1) A performance appraisal report assessing the performance, character, conduct and qualities of every member of the Service shall be written for each financial year or as may be specified by the Government in the Schedule 2:
(2) Subject to the provisions of subrule (4), a performance appraisal report shall also be written when either the reporting or Page 4 of 19 HC-NIC Page 4 of 19 Created On Fri Aug 05 23:57:42 IST 2016 C/SCA/1100/2016 JUDGMENT reviewing authority or the member of the Service reported upon relinquishes charge of the post, and, in such a case, it shall be written at the time of the relinquishment or ordinarily within one month of such relinquishment.
(3) Where more than one performance appraisal reports are written on a member of the Service during the course of a financial year each such report shall indicate the period to which it pertains: (4) Where the reporting authority has not seen, but the reviewing authority has seen the performance of a member of the Service for at least three months during the period for which the performance appraisal report is to be written the reviewing authority shall write the performance appraisal report of any such member for any such period.
(5) Where, both the reporting authority and the reviewing authority have not seen and the accepting authority has seen, as referred to in subrule (4), the performance of any such member, the accepting authority shall write the performance appraisal of any such member during such period.
(6) Where the reporting authority, the reviewing authority and the accepting authority have not seen the performance of a member of the Service for at least three months during the period for which the report is to be written, the Government shall make an entry to that effect in the performance appraisal report for any such period. (7) Notwithstanding anything contained in subrules (1), (2), (4) and (5), it shall not be competent for the reporting authority, the reviewing authority or the accepting authority to write a performance appraisal report after he demits office where the authority writing the performance appraisal report is not a Government servant.
6. Review of the performance appraisal report. (1) The reviewing authority shall record his remarks on the performance appraisal report, within the time frame specified in the Schedule 2. (2) Where the report is written by the reviewing authority under subrule (4) of rule 5, or where the reviewing authority has not seen, and the accepting authority has seen, the performance of a member of the Service for at least three months during the period for which the performance appraisal report is written, the accepting authority shall review the performance appraisal report of any such member for any such period within the time frame specified in the Schedule 2. (3) It shall not be competent for the reviewing authority, or the accepting authority, to review any such performance appraisal report unless it has seen the performance of the member of the Service for at least three months during the period for which the report has been written, and in every such case an entry to that effect shall be made in Page 5 of 19 HC-NIC Page 5 of 19 Created On Fri Aug 05 23:57:42 IST 2016 C/SCA/1100/2016 JUDGMENT the performance appraisal report.
(4) Notwithstanding anything contained in subrules (1) and (2), it shall not be competent for the reviewing authority or the accepting authority to review any such performance appraisal report
(a) Where the authority reviewing the performance appraisal report is a Government servant, after one month of his retirement from service, and
(b) In other cases, after one month of the date on which he demits office.
[7] Prior to framing of Rules, 2007 earlier All India Services (Confidential Rolls) Rules, 1970 were in force. Circular instructions were issued by DoPT in their letter No.11059/7/2003AIS(III) dated 11.11.2003 written by the Deputy Secretary, DoPT to the Chief Secretaries of all the State Government and Union Territories. Said Circular which is relevant for the purpose of this case reads as under : "I am directed to state that as per the rules 5(4) of AIS (CR) Rules, 1970 where the Reporting /Reviewing / Accepting authorities have not seen the performance of a member of the Service for at least three months during the period for which the report is to be written, an entry to that effect shall be made in the confidential report for any such period by Government.
In case of training, it has been clarified vide letter No.11059/3/91AIS (III) that since a member of the Service would not be physically present during the period of training and his performance cannot be observed by the Reporting / Reviewing / Accepting authorities, that period of training should be excluded from the period of Report.
On the analogy of aforementioned instructions, it has been decided that where an officer has taken Earned Leave for a long Page 6 of 19 HC-NIC Page 6 of 19 Created On Fri Aug 05 23:57:42 IST 2016 C/SCA/1100/2016 JUDGMENT period, which is being defined as more than 15 days, the total period spent on leave can be deducted from the total period spent on any post, for purposes of computing the period of three months which is relevant for writing of entries under Rule 5(4) of AIS (CR) Rules, 1970. Leave taken for a shorter duration need not be treated as relevant for the purpose."
[8] When clarification was sought for, further note vide dated 18.05.2011 was issued which reads as under: "When an officer has taken Earned Leave for a long period which is being defined as more than 15 days, the total period spent on leave can be deducted from the total period. The same criteria should be followed in the case of Medical Leave, Half Pay Leave, Extra Ordinary Leave".
[9] We also refer to the relevant provisions of The All India Services (Leave) Rules, 1955 (for short "the (Leave) Rules, 1955") which are framed in exercise of the powers conferred by subsection (1) of section 3 of the All India Services Act, 1951. Commuted Leave and Earned Leave as defined in Rule 2(a) and 2(d) of the (Leave) Rules, 1955 reads as under : 2(a) "commuted leave" means leave taken under rule 13. 2(d) "earned leave" means leave earned under rule 10. [10] Rule 12 deals with Half Pay leave and Rule 13 deals with Commuted leave. Said rules read as under :
12. Half pay leave --
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C/SCA/1100/2016 JUDGMENT
12(1) The half pay leave account of every member of Service shall subject to the provisions of subrule (2), be credited with half pay leave in advance in two installments of ten days each on the first day of January and July of every calendar year.
12(2) (a) The leave shall be credited to the said leave account at the rate of 5/3 days for each completed calendar month of service which he is likely to render in the half year of the calendar year in which he is appointed.
12(2) (b) The credit for the half year in which a member of Service is due to retire or resign from the service shall be allowed at the rate of 5/3 days per completed calendar month up to the date of retirement or resignation.
12(2) (c) When a member of the Service is removed or dismissed from service or dies while in service, credit of half pay leave shall be allowed at the rate of 5/3 days per completed calendar month up to the end of the calendar month preceding the calendar month in which he is removed or dismissed from service or dies in service. 12(3) The leave under this rule may be granted on medical certificate or on private affairs.
13. Commuted Leave --
13(1) Commuted leave not exceeding half the amount of half pay leave due may be granted on medical certificate to a member of the Service subject to the condition that twice the amount of such leave shall be debitable to the half pay leave due.
13(2) Commuted leave for a period not exceeding ninety days may be granted to a member of the Service during his entire service when such leave is availed of for course of study which is certified to be in public interest by the Government.
13(3) No commuted leave may be granted under this rule unless the Government has reason to believe that the member of the Service will return to duty on its expiry.
13(4)Where a member of the Service who has been granted commuted leave resigns from service or, at his request, is permitted to retire voluntarily without returning to duty, the commuted leave shall be treated as half pay leave and the difference between leave salary in respect of commuted leave and half pay leave shall be recovered:
[11] Precisely, it is the case of the petitioner that period 10.11.2009 to 31.03.2010 which falls in the assessment year 200910 Page 8 of 19 HC-NIC Page 8 of 19 Created On Fri Aug 05 23:57:42 IST 2016 C/SCA/1100/2016 JUDGMENT i.e. actual period fall below 90 days, no Annual Performance Appraisal Report could have been written for such period as per Rules. It is his case that if the Circular / instructions issued are contrary to rules, such Circular / instructions are to be set aside. It is the case of the petitioner that during the period 10.11.2009 to 31.03.2010, he has availed Earned Leave from 17.01.2010 to 25.02.2010 i.e. 40 days and Commuted Leave from 17.03.2010 to 31.03.2010 i.e.15 days. It is his further case that if such leave period is deducted, he has worked for 87 days which is less than 90 days and as such no APAR could have been written.
[12] The Central Administrative Tribunal, Ahmedabad while considering the plea of the petitioner in paragraph no.13 and 14 has held as under : "13. As per the records, the total number of days that the applicant worked as Managing Director, Gujarat Sheep and Wool Development Corporation from 10112009 to 3122010 comes to 142 days. As per the clarification furnished by the DoPT vide their note dated 185 2011 (supra) and as mentioned in the reply of the respondent No.1, Earned Leave if taken for more than 15 days, shall be deduced from the total period spent on duty and the same criteria should be followed in case of Medical Leave, Half Pay Leave, Extra Ordinary Leave. It does not talk about Commuted Leave. The applicant had taken 40 days Earned Leave commencing from 1712010 to 252 2010 and later on 15 days of Commuted Leave from 1732010 to 31032010. These two kinds of leaves namely Earned Leave and Commuted Leave were taken in two separate spells. As per the DoPT instruction contained in their letter dated 11112003, forty days of Earned Leave can be excluded from the said period of 142 days. But, fifteen days of Commuted Leave taken from 1732010 to 3132010 cannot be excluded. Exclusion of Commuted Leave has not been specifically mentioned in the DoPT letter dated 11112003 nor in the clarification issued by the DoPT vide their Note dated 1852011 to Page 9 of 19 HC-NIC Page 9 of 19 Created On Fri Aug 05 23:57:42 IST 2016 C/SCA/1100/2016 JUDGMENT the Ministry of Home Affairs, Government of India i.e. Respondent No.1.
14. In view of the above, it is held that the applicant has, in fact, worked for 14240 = 102 days i.e. more than 90 days during the period under reckoning. Hence, the respondent Nos. 3 & 4 were fully justified to write APAR of the applicant for the said period." [13] In this Writ Petition, affidavitinreply is filed on behalf of respondent No.2. In said affidavitinreply filed on behalf of respondent No.2, while denying various allegations made by the petitioner, it is stated that the petitioner had joined as Managing Director, Gujarat Sheep & Wool Development Corporation Limited on 10.11.2009. Therefore, relevant period for considering his PAR was from 10.11.2009 to 31.03.2010 for the year 200910. It is stated that Home Department has issued resolution dated 12.08.2009 being No.PAR102010161898 CRB for prescribing channel of submission for Performance Appraisal Report of Managing Director, Gujarat Sheep and Wool Development Corporation. It is stated that channel of submission prescribes Chief Secretary as Reporting Authority, Hon'ble Minister (Agriculture) as Reviewing Authority and Hon'ble Chief Minister as Accepting Authority. It is stated that for financial year 200910 for the period for which the petitioner had not worked, he was issued "No Initiation Certificate". It is stated that Performance Appraisal Reports were prepared for the period from 10.11.2009 to 31.03.2010 i.e. total period of 143 days. It is stated Page 10 of 19 HC-NIC Page 10 of 19 Created On Fri Aug 05 23:57:42 IST 2016 C/SCA/1100/2016 JUDGMENT that Earned Leave of 40 days availed by the petitioner for the period from 17.01.2010 to 25.02.2010 has been deducted from the total days as the period is more than 15 days as prescribed in the rules and instructions. It is stated that the petitioner availed commuted leave from 18.03.2010 to 31.03.2010 prefixing 17.03.2010 with benefit of 17.03.2010 which was public holiday. It is stated that as Commuted leave was virtually for 15 days but as the same is less than 15 days, it cannot be deducted for counting three months period as prescribed in the rules.
[14] Along with counter affidavit, copy of the application filed by the petitioner requesting for leave from 18.03.2010 to 31.03.2010 is placed on record. Referring to such application of the petitioner, it is specific stand in the affidavitinreply that 14 days commuted leave cannot be deducted as per applicable rules and instructions of the Government of India.
[15] In this Writ Petition, it is contention of the learned Counsel Mr.I.H.Syed for the petitioner that though the petitioner has virtually worked for 90 days which is less than three months, no Performance Appraisal Report could have been written of the petitioner for the assessment year 200910. It is submitted that no executive instructions dated 11.11.2003 could be issued contrary to rules and they are fit to be Page 11 of 19 HC-NIC Page 11 of 19 Created On Fri Aug 05 23:57:42 IST 2016 C/SCA/1100/2016 JUDGMENT declared illegal. It is the say of the petitioner that the petitioner has availed commuted leave for 15 days from 17.03.2010 to 31.03.2010 and there is no reason for not deducting such period. It is submitted that when earlier instructions were issued only by referring Earned Leave, a clarification was sought and in the clarification note dated 18.03.2011 it is clearly mentioned that the criteria which is followed for Earned Leave, same should be followed in case of Medical Leave, Half Pay Leave, Extra Ordinary Leave etc. It is the case of the petitioner that the Tribunal has not considered plea of the petitioner in proper perspective and such judgment and order is fit to be set aside by quashing APAR prepared by respondent for the assessment year 200910. It is also contented that commuted leave is nothing but half pay leave and for half pay leave criteria is mentioned in the clarification note dated 18.05.2011, therefore, there is no reason not to deduct period of commuted leave. [16] On the other hand, it is submitted by learned Additional Advocate General Mr. Jani that as per Rules, 2007 if the officer works almost for a period of three months, APAR is to be written. It is submitted that there is no absolute basis for the claim of the petitioner so as to interfere with the order passed by the Tribunal in this Writ Petition filed under Article 226 and 227 of the Constitution of India. It is submitted that the petitioner has worked as Managing Director for total period of 143 days i.e. from 10.11.2009 to 31.03.2010 and he has Page 12 of 19 HC-NIC Page 12 of 19 Created On Fri Aug 05 23:57:42 IST 2016 C/SCA/1100/2016 JUDGMENT availed Earned Leave for a period from 17.01.2010 to 25.02.2010 and as such leave is more than 15 days. It is submitted that the petitioner has availed commuted leave from 18.03.2010 to 31.03.2010 by prefixing 17.03.2010 being holiday and such leave not being more than 15 days, same was rightly not deducted by the authority.
[17] In this case, it is undisputed fact that the petitioner has worked as Managing Director, Gujarat State Sheep and Wool Development Corporation from 10.11.2009 to 31.03.2010. So far as rules on the subject, it is clear that for assessing performance, APAR is to be written if member of the service works almost three months during period for which performance appraisal report is written. It appears that by way of clarification note dated 18.05.2011, it is clarified that when an officer has taken Earned Leave for a long period which is being defined as more than 15 days, the total period spent on leave can be deducted from the total period. We do not find any illegality in the said instructions which are issued by way of clarification. [18] It is not in dispute that rules are being made applicable after the Rules, 2007 came into force. By way of clarification, purpose of clarification appears to be short duration leave cannot be taken note of to deduct period from three months as contemplated under the rules. A Page 13 of 19 HC-NIC Page 13 of 19 Created On Fri Aug 05 23:57:42 IST 2016 C/SCA/1100/2016 JUDGMENT situation may arise that if a officer avails leave of one day (CL), he virtually works for three moths. In such event it cannot be said that he has worked less than 90 days i.e. 89 days. To meet with such situation, it appears that Circular instructions dated 11.11.2003 is issued clarifying that short period of leave cannot be deducted but only the officer who has taken Earned Leave for long period for more than 15 days, such period should be deducted. It is true that further clarification is issued by Ministry of Home Affairs, Government of India dated 18.05.2011 that same criteria as mentioned in the earlier Circular dated 11.11.2003 should be followed in case of Medical Leave, Half Pay Leave, Extra Ordinary Leave.
[19] Though it is case of the learned Counsel for the petitioner that commuted leave is nothing but half pay leave, however, the same is not mentioned in the clarification note dated 18.05.2011. Having regard to Circular instructions issued on 11.11.2003 and 18.05.2011, the petitioner cannot claim to deduct period which he has availed as commuted leave. As per the (Leave) Rules, 1955, commuted leave means leave taken under rule 13 which is already extracted above. Earned leave defined under Rule 2(d) of the Rules has detail in rule 10 of the (Leave) Rules, 1955. Half pay leave means leave earned under rule 12 in respect of completed years of service. Having regard to the definitions mentioned in the (Leave) Rules, 1955, we reject the Page 14 of 19 HC-NIC Page 14 of 19 Created On Fri Aug 05 23:57:42 IST 2016 C/SCA/1100/2016 JUDGMENT contention of the learned Counsel for the petitioner that commuted leave is nothing but half pay leave. In absence of mentioning of commuted leave in the Circular instructions dated 11.11.2003 and further clarification note dated 18.05.2011, we are of the considered view that respondents have rightly not deducted commuted leave as claimed by the petitioner for writing Performance Appraisal Report for the assessment year 200910.
[20] From the reading of Circular instruction dated 11.11.2003 and further clarification note dated 18.05.2011 issued by the Ministry of Home Affairs, Union of India, we do not find any conflict between the rules and instructions issued by the Union of India. In view of executive instructions by way of circular dated 11.11.2003 and further circular dated 18.05.2011, we do not find any merit in the argument of the learned Counsel for the petitioner that said circulars run contrary to statutory rules.
[21] There is yet another reason to reject plea of the petitioner in this case. It is the case of the petitioner that he has availed 15 days commuted leave from 17.03.2010 to 31.03.2010. From the original application, it is clear that the petitioner has availed commuted leave from 18.03.2010 to 31.03.2010 by prefixing public holiday on 17.03.2010. The petitioner has availed 14 days commuted leave but not Page 15 of 19 HC-NIC Page 15 of 19 Created On Fri Aug 05 23:57:42 IST 2016 C/SCA/1100/2016 JUDGMENT 15 days as claimed by the petitioner. Merely because, he has prefixed public holiday to the leave availed by him for the period from 18.03.2010 to 31.03.2010, public holiday cannot be counted for the purpose of counting leave period. If leave is counted from 18.03.2010 to 31.03.2010, then it would appear that the petitioner has availed only 14 days but not 15 days. From the DoPT letter dated 11.11.2003 written by the Deputy Secretary which is addressed to Chief Secretaries of all State Government and Union Territories, it is clear that only leave availed for more than 15 days, such period is to be deducted. Instructions in the letter dated 11.11.2003 and further clarification note dated 18.05.2011 are issued only for the purpose of complying statutory rules. Such instructions issued in the letter dated 11.11.2003 and further clarification note dated 18.05.2011 appears to be by way of guidelines for assessing and reviewing officer for implementing provisions of the Rules, 2007. As we do not find any illegality in such circulars, consequently, we do not find any illegality in the Performance Appraisal Report prepared for the assessment year 200910 by the respondents. [22] It is contended by learned Additional Advocate General Mr.Jani that the very petition filed before the Administrative Tribunal is not maintainable as the petitioner has remedy to approach Referral Board and inspite of such remedy to put forth the case before the Referral Board, the petitioner straightway approached Administrative Page 16 of 19 HC-NIC Page 16 of 19 Created On Fri Aug 05 23:57:42 IST 2016 C/SCA/1100/2016 JUDGMENT Tribunal by filing O.A. Learned Additional Advocate General has relied on decisions of the Hon'ble Supreme Court in the case of D.B.Gohil v/s. Union of India reported in 2010(12) SCC 301 and Govt. of A.P. v/s. P. Chandra Mouli decided in Civil Appeal No.2588 of 2009 on 16.04.2009.
[23] In the case of Govt. of A.P. (supra), the Hon'ble Supreme Court has held that High Court should not have interfered in the writ petition when the Tribunal had disposed of the application on the ground of availability of alternative remedy. On the said ground, the appeal filed by the State was allowed by setting aside the order of the High Court.
[24] In the Case of D.B.Gohil (supra), the Hon'ble Supreme Court has held that the appellant could approach Tribunal without exhausting a departmental remedy of appeal. In this judgment, while setting aside the order passed by the High Court, the matter was remitted back to the High Court for fresh consideration.
[25] It is true that there is remedy under section 20 of the Administrative Tribunal Act, 1985. However, we are not inclined to accept submission made by learned Additional Advocate General to reject the petition filed by the petitioner on the ground of alternative Page 17 of 19 HC-NIC Page 17 of 19 Created On Fri Aug 05 23:57:42 IST 2016 C/SCA/1100/2016 JUDGMENT remedy. The petitioner has approached the Central Administrative Tribunal by way of filing O.A.No.105 of 2011 and same was pending adjudication before the Tribunal for more than four years and ultimately on 15.12.2015, said application came to be dismissed. [26] In absence of any petition filed by the respondent State questioning entertainability of the very petition and having regard to the fact that we have adjudicated the issue on merits, we are not inclined to accept submission made by the learned Additional Advocate General to reject the petition only on the ground of alternative remedy. If there is alternative remedy, it may be ground to reject the petition at the very beginning but having kept the matter for number of years, we are of the view that such ground may not be reason to reject the petition. [27] We have considered the matter on merits and we are of the view that no case is made out by the petitioner and the writ petition is fit to be dismissed. Having regard to the reasons stated by us as referred above and considering the reasons stated in the judgment dated 15.12.2015 passed by the Central Administrative Tribunal, Ahmedabad in O.A.No.105 of 2011, we do not find any merit in the writ petition. The writ petition is liable to be dismissed and accordingly, the writ petition is dismissed. No order as to costs.
Page 18 of 19 HC-NIC Page 18 of 19 Created On Fri Aug 05 23:57:42 IST 2016 C/SCA/1100/2016 JUDGMENT (R. SUBHASH REDDY, CJ) (VIPUL M. PANCHOLI, J.) satish Page 19 of 19 HC-NIC Page 19 of 19 Created On Fri Aug 05 23:57:42 IST 2016