Gujarat High Court
Urmila D Patel vs State Of Gujarat on 24 November, 2022
Author: A.Y. Kogje
Bench: A.Y. Kogje
C/SCA/3537/2014 JUDGMENT DATED: 24/11/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3537 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE Sd/-
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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URMILA D PATEL
Versus
STATE OF GUJARAT & 2 other(s)
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Appearance:
MR K B PUJARA, ADVOCATE WITH
MR PARV S GUPTA(11850) for the Petitioner(s) No. 1
MR ROHAN SHAH, AGP for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
Date : 24/11/2022
ORAL JUDGMENT
1. This petition under Article 226 of the Constitution of India is filed with following prayer(s):-
Page 1 of 13 Downloaded on : Fri Dec 23 23:51:45 IST 2022C/SCA/3537/2014 JUDGMENT DATED: 24/11/2022 "31(A) Your Lordships may be pleased to issue a writ of certiorari or any other appropriate writ, order or direction, declaring the action on the part of the respondent authorities in not promoting the petitioner from GAS Class-I (Senior Scale) to GAS Class-I (Selection Scale) from the date of approval of the panel on 12.11.2011, resulting in denial of promotion to the petitioner and increase in emoluments and retirement benefits, and rejection of her representation vide letter dated 30.01.2014 from General Administration Department, as bad in law, illegal, unreasonable and violative of Articles 14, 16 and 21 of the Constitution of India and quashing and setting aside the same.
(B) Your Lordships may be pleased to issue a writ of mandamus commanding the respondent authorities to promote the petitioner from GAS Class I (Senior Scale) to GAS Class I (Selection Scale) with retrospective effect from the date of approval of the select list on 12.11.2011 with all the consequential benefits, such as revision of her retirement benefits on her retirement on superannuation on 30.11.2011.
(C) ...
(D) ..."
2. It is a case where the petitioner is claiming a pay-scale of a promotional level in the administrative service where the administrative decision was taken by the State Government, but before the same could be implemented, the petitioner retired on attaining the age of superannuation, and therefore, was deprived of the next higher scale of promotional level. It is submitted that it was only on account of delay on the part of the State Government not implementing the administrative decision as a result of which the petitioner has to face a substantial monetary loss.
3. Learned advocate for the petitioner submitted that the issue arose when a demand was made by the Gujarat Administrative Association to the General Administration Page 2 of 13 Downloaded on : Fri Dec 23 23:51:45 IST 2022 C/SCA/3537/2014 JUDGMENT DATED: 24/11/2022 Department to grant higher pay-scales above the level of Additional Collector, as there were no avenues for promotion and hence, the officers were facing stagnation.
3.1 The State did take a decision to restructure the cadre to overcome the stagnation issue raised by the officers and accordingly, Government Resolution dated 21.02.2009 came to be passed, wherein the cadre was revised.
3.2 For the purpose of the present case of the petitioner, the claim would be to place the petitioner in the newly created senior scale or selection scale, as would be applicable to the petitioner dependending upon her status in the selection process.
3.3 It is submitted that after having undergone the entire selection process, the petitioner was found entitled to the selection process at the hands of DPC was found suitable for selection scale. Along with the petitioner, the other candidates were also found suitable and accordingly, as per their merits were given senior scale and selection scale, respectively. However, when it came to passing of the necessary orders, the petitioner had retired and hence, the other co-employees were given the benefits, whereas the petitioner was deprived of the same.
3.4 Learned advocate for the petitioner submitted that as the petitioner was already holding the post of Additional Collector GAS Class-I (Senior Scale) with effect from 05.08.1997 and having completed more than 5 years was eligible for promotion to the next level as GAS Class-I (Selection Scale). The case of the petitioner was considered by the DPC in the meeting conveyed Page 3 of 13 Downloaded on : Fri Dec 23 23:51:45 IST 2022 C/SCA/3537/2014 JUDGMENT DATED: 24/11/2022 on 25.02.2011 for preparing the selection list of officers of GAS Class-I (Senior Scale) for promotion to GAS Class-I (Selection Scale). He drew attention of this Court to the Minutes of the Meeting of the DPC and submitted that 57 posts in the level of GAS Class-I (Selection Scale) were vacant and were available to be filled up. The DPC had considered the case of 96 officers, who formed the zone of consideration for 32 vacancies and select list of 34 officers were made. The 4 officers, who were assessed outstanding were at the top of the list and were therefore, approved for Senior Scale, whereas 28 candidates were assessed very good and in that list, the petitioner was at the top. Therefore, the day on which DPC considered the case of the petitioner being selected at Sr.No.5 in merits and the same was placed for approval before the Hon'ble the Chief Minister and the approval of the Hon'ble the Chief Minister was made on 12.11.2011, and therefore, the petitioner would be entitled to the promotion with effect from 12.11.2011, as after the final approval by the Hon'ble the Chief Minister, it is only a matter of procedure that the petitioner was to be given benefit with other co-employees. However, the notification was issued on 22.03.2012 after the approval by the Finance Department, but before that on 30.11.2011, the petitioner had retired, and therefore, though the name of the petitioner made into the select list, the benefit was not given.
3.5 Learned advocate for the petitioner drew attention of this Court to the previous petition filed being Special Civil Application No.15623 of 2013 and the order passed therein on 10.10.2013 pursuant to which the representation was made by the petitioner, but such representation came to be rejected vide Page 4 of 13 Downloaded on : Fri Dec 23 23:51:45 IST 2022 C/SCA/3537/2014 JUDGMENT DATED: 24/11/2022 communication dated 30.01.2014.
4. Learned AGP opposing the petition submitted that the claim of the petitioner for the retirement benefits with retrospective effect, cannot be considered, as the name of the petitioner never reflected in the promotional orders.
4.1 It is submitted that admittedly before issuance of promotional order, the petitioner had attained the age of superannuation, and therefore, her name could not have been included in the promotional order. For that reason alone, the petitioner cannot stack the claim, as if the petitioner had worked on a promotional posts, and therefore, the claim entitlement of the benefits of the promotional post.
4.2 It is submitted that the case of the petitioner on the ground that there was delay may not be accepted, as the Government has undertaken the process in due course and even from the chronology, there does not appear to be so grosser delay so as to burden the State Government with the claim of the petitioner for monetary benefits.
4.3 It is submitted that the recommendations of the DPC was on 25.10.2011 and after undergoing the due process on administrative side i.e. seeking approval from the highest level and lastly, from the Finance Department on 22.03.2012, the order of promotion came to be passed, however, by that time, the petitioner had already retired so the period of approval of DPC and grant of promotion does not indicate gross delay on the part of the State.
Page 5 of 13 Downloaded on : Fri Dec 23 23:51:45 IST 2022C/SCA/3537/2014 JUDGMENT DATED: 24/11/2022 4.4 From the affidavit filed on behalf of the State Government also, the time consumed in executing the decision was justified. It is submitted that it was for the first time after the revision of cadre in the Year-2009 that the procedure for promotion in the GAS, Class-I (Selection Scale) was undertaken, and therefore, it required due consideration at various levels of the Department to identify the vacancies for the promotions, and thereafter, only the issue was put up before the Government to taken decision. It was also pointed out that while the procedure was underway, the code of conduct was also enforced in view of the bye-election declared for Mansa Assembly Constituency, and thereafter, immediately followed by the meeting with the year of requirement of financial year. Still, the State Government had expeditiously taken up the issue and pass the order. The incident of the petitioner retiring in the meantime is only fortituous, and therefore, the claim of the petitioner cannot be entertained.
5. Having heard learned advocates for the parties and having perused the documents on record, the claim of the petitioner is to treat the petitioner as being promoted from GAS, Class-I (Senior Scale) to GAS, Class-I (Selection Scale) from the date on which her selection was approved by the panel on 12.11.2011 and on account of the delay on the part of respondent in executing the order, the petitioner was deprived of retiring on a post of GAS, Class-I (Selection Scale) though the petitioner was deserving the same.
Page 6 of 13 Downloaded on : Fri Dec 23 23:51:45 IST 2022C/SCA/3537/2014 JUDGMENT DATED: 24/11/2022 5.1 From the record, it appears that the petitioner was holding the post of Additional Collector, GAS, Class-I (Senior Scale) for which next higher promotion level is GAS, Class-I (Selection Scale). The exercise of promotion was based on the review of the cadre schedule and restructuring of administrative services, Class-I, which was adopted as a matter of policy under the Government Resolution dated 21.02.2009. The said Government Resolution of 2009 provided for resolved as under:-
Item Pre-revised Revised Scale Remarks
Scale
GAS Class-I Rs.8000-275- PB 3 This cadre will
comprising 14050 Rs.15600-39100 henceforth be
Dy.Collector and (Grade Pay known as
Dy.DDO's Rs.5400) "Gujarat
Administrative
Service (Junior
Scale)"
GAS Class-I Rs.12000-375- PB 3 This cadre will
(Ex-cadre Posts) 16500 Rs.15600-39100 henceforth be
or (Grade Pay known as
Additional Rs.7600) "Gujarat
Collector Administrative
level posts. Service (Senior
Scale)"
Gujarat Rs.14300-400- PB 4 This cadre will
Administrative 8300 Rs.37400-67000 henceforth be
Service Class-I (Grade Pay known as
(Selection Rs.8700) "Gujarat
Administrative
Scale)
Service (Senior
Scale)"
Gujarat Rs.16000-450- PB 4 This is a new
Administrative 20050 Rs.37400-67000 level created
Service Class-I (Grade Pay above the
(Apex Scale) Rs.8900) Gujarat
Administrative
Service
(Selection
Scale)
5.2 The procedure adopted inconsonance with the 2009
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C/SCA/3537/2014 JUDGMENT DATED: 24/11/2022
Government Resolution was given effect too, which is evident from the minutes. It can be seen from the minutes that the principles of "selectivity" as laid down in rulé11(3)(a) of the Gujarat Civil Services Classification and Recruitment (General) (Second Amendment) Rules, 2005 are applicable while considering the cases of eligible GAS Class-l (Senior Scale) officers for promotion to the GAS Class-I (Selection Scale). In other words, the officers in the zone of consideration are required to be classified as 'Outstanding', 'Very Good', 'Good" or 'Unfit'; the select list shall be prepared by including the required number of officers, first from amongst the officers classified as "Outstanding", and then from amongst those classified as "Very Good', and then the order of names inter-se within each category shall be in the order of seniority; the officers who are classified as 'Good' or 'Unfit' shall not be included in the select list.
5.3 The DPC has noted that as per the revised Cadre Schedule of GAS Class-l as determined yide GR GAD dated 21.02.2009, the number of posts in the level of GAS Class-I (Selection Scale) is 57. Since the question of promotion from Class-I (Senior Scale) to GAS Class-I (Selection Scale) is being considered for the first time, all the 57 posts in the level of GAS Class-I (Selection Scale) are vacant at present, all the §7 posts are required to be filled up. However, as required in the case of applicability of principles of 'selectivity'. the number of officers in the zone of consideration will be three times the number of vacancies. Hence. for 57 vacancies, the zone of consideration will be of 171. But, the number of officers having completed five years of service, or having completed at least 2/3rd of five years, are only 97. If 97 Page 8 of 13 Downloaded on : Fri Dec 23 23:51:45 IST 2022 C/SCA/3537/2014 JUDGMENT DATED: 24/11/2022 eligible officers are available, the vacancies that could be filled up by applying principles of 'selectivity' would be 32 only. Hence, the Committee took into account 32 vacancies, and consequently assessed 96 officers, who formed the zone of consideration. The 96 officers in the zone of consideration have been graded as mentioned in the minutes. Based on the assessment of all the 96 officers in the zone of consideration, the select list of 34 officers has been prepared (keeping in view the fact that two officers in "the select list are facing DE/Prosecution and, therefore, the assessments of their performance have been kept in the sealed cover'. The promotions of the last two persons in the select list shall be ad-hoc, subject to the final decision that may be taken in the cases of Shri M.H. Gadhavi and Snn M.R. Varsani).
It can be seen from the minutes that 4 officers have been assessed as "Outstanding", and the remaining 28 Officers have been assessed as 'Very Good''; the 4 'Outstanding' officers have gone to the top of the select list, followed by the offcers graded as 'Very Good'.
5.4 From the record, it appears that a note in this regard was prepared by the GAD on 05.11.2011 and was ultimately approved by the Hon'ble the Chief Minister on 12.11.2011.Further, from the file note of GAD, which records as under:-
"2. Government has approved the minutes of the meeting held on 25.10.2011 to consider the cases of eligible GAS officers in Additional Collector rank for promotion to the GAS Page 9 of 13 Downloaded on : Fri Dec 23 23:51:45 IST 2022 C/SCA/3537/2014 JUDGMENT DATED: 24/11/2022 Class-| (Selection Scale). There are 34 officers in the select list of which the officer at Sr.No.5 (Smt. U.O. Patel) has since retired from the service and the assessments in respect of two officers (Shri ----- Sr.No.15 and Shr ---- Sr.No.261) have been placed in the 'sealed cover' because of pendency of prosecution / Departmental inquiry. Therefore, the remaining 31 officers are required to be considered for giving postings in the GAS Class-I (Selection Scale).
3. As discussed, the different levels of GAS will have to be distinguished by creating separate horizontal strata for each of them. For example, there will be a different horizontal level of posts for the GAS (Junior Scale) officers, i.e. Deputy Collectors and Deputy D.D.Os. There will be another separate horizontal level of posts for the Additional Collector rank officers [i.e. GAS Class-I (Senior Scale) officers]. The post for Additional Collector rank officers could be basically the post of Resident Additional Collector, Director (DRDA), Project Administrator (TASP), Additional Collector (Irrigation) at Ahmedabad, Vadodara, Rajkot, etc., Additional Collector (Narmada), Registrars in different Universities, second rung posts in different HODS, Boards, Corporations etc., In so far as the GAS Class-l (Selection Scale) is concerned, the posts of small Heads of Departments, M.Ds of small Boards, Corporations, Companies, etc, Deputy Municipal Commissioners, Chief Executive Officers in different Urban Development Authorities, etc. could be taken into account for their postings.
4. If the promotions / transfers are to be made keeping the above position in view, then it would entail a large number of Page 10 of 13 Downloaded on : Fri Dec 23 23:51:45 IST 2022 C/SCA/3537/2014 JUDGMENT DATED: 24/11/2022 transfers, which cannot be possible / desirable at this juncture (The Assembly Session is on, the Code of Conduct because of Bye Election to the Mansa Assembly Constituency is in force, financial and physical targets by the field officers are to be achieved by the financial year ending, etc.).
5. As such, the appropriate course of action would be to give in-situ promotions to the 31 officers in the select list (Please see the list of 34 officers given at Flag-A. From this list, 2 officers Shri ----- and Shri ----- being in 'sealed cover' cannot be promoted, and the officer at Sr.No.5 has since retired from the service. If these 3 officers are excluded from the select list of - 34 officers, it leaves 31 officers available for promotion."
5.5 This required approval of the Finance Department in view of the fact that the promotions were being given by up-gradation of the post in insitu. This was received approval of the Finance Department on 22.03.2012 after being signed by the Hon'ble Chief Minister on 03.03.2012. Pursuant thereto, the General Administration Department issued a notification dated 22.03.2012 by which the Officers of GAS (Senior Scale) of (Rs.15600 - 3900, Grade Pay 7600) were promoted to GAS (Selection Grade) (Rs.37400 - 67000, Grade Pay 8900).
5.6 This notification for promotion being issued to 33 individuals along with the conditions applicable. However, as recorded in the preceding paragraphs, the petitioner having retired before such order, the case of the petitioner was not considered for promotion.
Page 11 of 13 Downloaded on : Fri Dec 23 23:51:45 IST 2022C/SCA/3537/2014 JUDGMENT DATED: 24/11/2022 5.7 Reliance is placed upon the decision in case of Mayank Bhagwandas Shethwala Vs. High Court of Gujarat & Anr. Passed in Special Civil Application No.6231 of 2018 to support the claim of the petitioner that, if she is found eligible for promotion, but was not given promotion in time, then such a candidate should not be deprived of the benefits otherwise available by treating such candidate to have promoted. In the aforesaid decision extensive reliance is placed on the decision of the Apex Court in case of Major General H.M. Singh, VSM Vs. Union of India & Anr. reported in 2014 3 SCC 670.
5.8 It was submitted that by citing the aforesaid decision that , as in the case of the petitioner also, the vacancies were available and the procedure for selection had actually undertaken and was in fact concluded, wherein the petitioner was selected. However, in the facts of the case of Mayank Bhagwandas, it is found that before the case of the petitioner therein could be considered and actual promotion could be granted. The new rules came into effect and the procedure was required to be followed under the said new rules, which required for holding of interview for the post. It was on account of the change in policy that the petitioner though qualified for the promotional post and was recommended, but somehow could not get the actual promotion despite there being vacancies. Such is not the facts of present case, where obviously the factor of vacancies was in favour of the petitioner, the selection procedure resulted in petitioner successfully being selected, however, the incident of retirement, which is a confirmed date and could not be changed in any manner as a resulted in present situation where before Page 12 of 13 Downloaded on : Fri Dec 23 23:51:45 IST 2022 C/SCA/3537/2014 JUDGMENT DATED: 24/11/2022 execution of the order, the petitioner had retired.
5.9 The chronology of incidents, as examined by the Court, does not indicate that there was a gross delay and that such delay was with malafide intention to deprive the petitioner or any other candidates from its legitimate dues and hence, according to the Court, the entire procedure has proceeded in due course and only as an unfortunate co-incident, the age of superannuation of the petitioner fell earlier to culmination of such procedure, and therefore, this can only be termed as an unfortunate turn of event, however, the Court does not deem it fit that the case of the petitioner, who has retired on 12.11.2011 should be considered to have worked on a promotional post on the date of which, i.e. 12.11.2011, she claims that the decision was formally approved.
6 In that view of the aforesaid discussion, no case is made out for issuing any direction to the respondent-authorities to treat the petitioner to have been posted as GAS Class-I (Selection Scale) from the date of approval of the panel. The action on the part of the respondent-State does not am ount to denial of promotion to the petitioner, as it is with the due passage of time that the petitioner has attained the age of superannuation co- incidently falling ahead of the order of promotion granted. The petition is therefore and hereby dismissed. Rule is discharged.
(A.Y. KOGJE, J) GIRISH Page 13 of 13 Downloaded on : Fri Dec 23 23:51:45 IST 2022