Gujarat High Court
State vs Anvar on 23 December, 2010
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
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SA/80/1993 12/ 12 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND
APPEAL No. 80 of 1993
With
SECOND
APPEAL No. 81 of 1993
With
SECOND
APPEAL No. 79 of 1993
With
SECOND
APPEAL No. 74 of
1993
=========================================================
STATE
OF GUJARAT & 1 - Appellant(s)
Versus
ANVAR
SULEMAN KANIYA - Defendant(s)
=========================================================
Appearance
:
Ms
Mathur for
Appellant(s) : 1 - 2.
MR PM THAKKAR for Defendant(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 23/12/2010
ORAL
ORDER
Being an identical matter, papers of Second Appeal No.74 of 1993 has been called from Registry as mentioned by learned advocate Mr.D.M.Thakkar.
Heard learned A.G.P. Ms.Mathur appearing on behalf of appellants and learned advocate Mr.D.M.Thakkar on behalf of respondents in all four matters. Employee - original plaintiff - present respondent in each case had filed Civil Suit before Joint Civil Judge(S.D.), Jamnagar against State of Gujarat and Deputy Conservator Forests, Jamnagar, which was allowed and Civil Court had declared that act of present appellant in not giving promotion to respondent was illegal, unconstitutional and against principles of natural justice and directed to give promotion with effect from 01.07.1981 with consequential benefits in post of Forester. Trial Court has passed aforesaid judgment and decree on 24.04.1987 against which appeal was preferred by State of Gujarat before Assistant Judge, Jamnagar. Lower Appellate Court dismissed said appeal and confirmed judgment and decree passed by Lower Court on 31.12.1991. Thereafter, present Second Appeal is preferred by State of Gujarat.
Substantial question of law involved in present appeal was formulated by this Court while exercising powers under Section 100 of Code of Civil Procedure was, whether on interpretation of Rule-2 of Forester (Subordinate Forest Service) Recruitment Rules, 1969, criteria for promotion to Forester from Forest Guard is Seniority-cum-merit, seniority or proved merit and efficiency prevail? Page 'D'.
Learned advocate Mr.D.M.Thakkar submitted that in Civil Application No.7778 of 2006 to Civil Application No.7780 of 2006, this Court has passed an order on 16.03.2007 (Coram: Hon'ble Mr.Justice R.S.Garg), which is quoted as under:-
"1. On 26th August, 1992, this Court granted stay against the execution on the following conditions:
(1) The applicant-State shall carry out the direction of the trial Court with respect to giving of promotion to the original plaintiff with effect from 1st July, 1981 within a period of six weeks from today.
(2) The promotion order will be subject to the outcome of the appeal and the applicant-State so shall state in the promotion order itself.
It was also observed: "it is clarified that the consequential order granting monetary benefits granted to the original plaintiff is stayed until further orders".
2. It appears that in accordance with the directions of this Court, the promotion has been effected in favour of the applicants effective from 1st July, 1981, however, they are still being paid the salary of the Forest Guard. Shri Pujari, learned Assistant Government Pleader, says that certain further benefits are also being given to the opponents because the promotional avenues are blocked.
3. From the order passed by this Court, it clearly appears that the monetary benefits with effect from 1st July, 1981 upto 26th August, 1992 were to remain stayed. The High Court did not intend to say that even after the order, the respondent would not be entitled to any benefits attached to the promotional post. The Conservator of Forest, in his affidavits dated 15th March, 2007, has submitted that the respondents would be entitled for higher pay-scale and if are taken to be promoted with effect from 1st July, 1981, their salary/total emoluments would be Rs.16,220/-, but, the respondents are being paid a sum of Rs.11,480/- only. Shri Pujari learned Counsel for the opponents, submits that the figures are tentative and not final.
4. The present applications for early hearing have been filed on the ground that despite orders in favour of the respondents, the present appellants are not paying the salary in accordance with law and the directions of this Court.
5. Let the Conservator of Forest look into the matter and observe the earlier order, as explained by today's order, and pass necessary and appropriate orders latest by 30th March, 2007. It shall be his duty to place the matters before the Audit Committee or the Higher Officials and obtain their approvals and orders. It shall be his duty to inform the other authorities that the High Court has directed that the matter should be concluded by 30th March, 2007 and if it is not, accordingly, done, then, it will be taken to be a serious lapse on the part of the Conservator of Forest and other authorities. The matters be taken up for consideration on 3rd April, 2007."
Learned advocate Mr.Thakkar submitted that in light of interim relief, which has been granted by this Court, present respondents - employees have been promoted in post of Forester by order of Conservator of Forest, Jamnagar dated 14.12.1992 and thereafter, salary of promoted post was also given. Deemed date for promotion was also granted in favour of present respondent by order of Conservator of Forest, Junagadh dated 02.09.1995. Thereafter, by order of Principle Chief Conservator of Forest dated 08.04.2009, first higher pay-scale was also made available to respondents and by that order higher pay-scale benefits in post of Forester were granted in favour of respondents with effect from 11.11.1991, but, arrears between the date when actually post was held by respondent and deemed date is to be given.
As against that learned A.G.P. Ms.Mathur produced on record letter received from Deputy Conservator of Forest, Marin National Park, Jamnagar dated 18.12.2010, where according to accountant, a difference from the year 1982 to 1987 for respondent - Mr.A.S.Kania comes to Rs.12,313.10, for respondent - Mr.E.H.Solanki comes to Rs.12989.40 and for respondent - Mr.M.M.Joshi comes to Rs.15935.10 and as per letter of Deputy Conservator of Forest, Jamnagar Forest Division, Jamnagar dated 22.12.2010, a difference from the date 11.11.1982 to 30.05.1987 for respondent - Mr.Chudamal Gala Patil comes to Rs.9,787/-, which requires to be paid after disposal of present appeal. Learned advocate Mr.D.M.Thakkar submitted that this calculation given by appellants is not accepted by respondents.
In light of this background of all four Second Appeals and considering substantial question of law formulated by this Court on 19.04.1993 for interpretation of Rule - 2 of Forester (Subordinate Forest Service) Recruitment Rules, I have considered submissions made by both learned advocates and I have also perused judgment and decree passed by Trial Court as well as judgment and decree passed by Lower Appellate Court. Both parties lead their oral as well as documentary evidence on record and thereafter, Trial Court has come to conclusion that in seniority list dated 01.01.1980, though plaintiffs were senior to some of juniors, even though, juniors were promoted in post of Forester. Promotion had been denied and this is how it has been challenged before Trial Court that juniors were promoted to higher post, ignoring plaintiff's seniority. This question has been examined by Trial Court, after considering relevant Rule - 2 as referred above and come to conclusion that promotion of a person to higher post is to be given to a person of proved merit and efficiency from amongst Forest Guards meaning thereby merits can be considered, but, seniority should not be ignored. This principle has been considered by this Court in case of K.L.Gadhvi Vs. Chief Conservator of Forest and Others reported in 1985(2) GLR Page No.1106. It has been held that while considering case of promotion to higher post on seniority-cum-merit basis, seniority cannot be ignored. There must be positive demerits and vague adverse remark is not sufficient. Relevant para of said judgment is quoted as under:-
"3. Mr.M.B.Gandhi, the learned A.G.P. has urged even when the criterion for promotion is seniority-cum-merit, a person has to show that he has sufficient merit to be promoted. In this case according to him, the petitioner has been found to be weak in performance and therefore he could only be promoted when his efficiency improves. It is well laid down principle that when the criterion for promotion is seniority-cum-merit, the seniority prevails in absence of a clear finding that the person concerned is positively unfit to be promoted. In this case, there is nothing on the record to show that petitioner was positively unfit for promotion. A mere vague allegation of inefficiency or irregularity without any facts to substantiate such an allegation cannot be regarded as positive unfitness. There has to be something quite substantial against the person to show that he is not fit to be promoted. That requires much greater demerit than the mere allegation of inefficiency or irregularity in attendance, Moreover, it does not seem to have any basis for making such allegation. This Court has held in the case of Dr.B.R.Kulkarni V. Government of Gujarat and others, XIX G.L.R. 1021, that an ephemeral roll should be maintained to show the day to day performance of the employee which could provide material for coming to the conclusion that his performance is not good and that the adverse remarks entered in the confidential reports can be based on the material contained in the ephemeral roll. It is therefore, clear that the respondents have wrongly denied the petitioner the promotion he was entitled to from the post of Forest Guard to that of the Forester when it was due to him on the basis of his seniority. The petitioner therefore will have to be given promotion from Forest Guard to Forester with effect from the date on which he was due for such a promotion on the basis of his seniority. It will have to be from the date on which the person immediately next to him in the seniority was promoted from Forest Guard to Forester "
Trial Court has come to conclusion that there is no demerits or adverse remarks about respondents for granting promotion to higher post. Therefore, Trial Court has rightly come to conclusion, after considering decision of Hon'ble Apex Court in case of Amarkant Chaudhary Vs. State of Bihar reported in AIR 1994 SC Page No.531 , wherein it was held that if adverse remarks are not communicated, his case requires to be considered for promotion. So long case of concerned employee is not found for demerits for giving promotion to higher post, therefore, seniority cannot be ignored. Trial Court has considered undisputed fact that most of juniors have promoted, ignoring seniority of plaintiffs.
This aspect is also examined in detail by Lower Appellate Court while interpreting Rule - 2 as referred above. Lower Appellate Court has also considered aforesaid decision, reported in 1985(2) GLR Page No.1106. Relevant discussion made by Lower Appellate Court in his judgment in Para - 7 to 11 are quoted as under:-
"7. I have heard the learned advocate Shri H.G.Joshi for the respondent or and the Learned A.G.P. Shri M.J.Parekh for the appellant and have also considered the documents and evidence on record. Now, it appears from the evidence or record that the plaintiff is serving as a forest guard in the State of Gujarat. Now, looking to the seniority list produced by the parties apparently it is clear that several junior to the plaintiffs are promoted in the cadre of forester by superseding the plaintiff. The plaintiff has deposed on oath that he was fit to be promoted as forester and no any adverse remars were ever passed against his nor any such adverse adverse remarks were ever communicated to him and the criterion for the promotion seniority cum Merits and therefore, he was entitled to promotion with retrospective effect with all other benefits as provided under the rules. As against that the defendants have examined witness Kiritkant Pratapray who is serving in the office of Conservator of Foreast at Junagadh. He has deposed that the plaintiff is not entitled to get promotion as promotions are released on the ground of proved merits and efficiency. He has denied the fact that the plaintiff is entitled to yet promotion as per seniority list. He has further deposed that the Selection Commission prepares list for the candidates to be promoted as forester. But, at the same time he has not been able to show any such rules wherein provisions for the selecti committee has been made. He has further deposed that the basis for the promotion are confidential reports of the candidates. But, looking to the record, it appears that nothing is shown against the name of the candidates those who were juniors to the plaintiff and those who were promoted. It further appears from the documents on record that the alleged adverse remarks are vague and there is nothing on record to substantiating such adverse remarks. The defendants have been unable to show when suhc remarks were passed, upon what basis same were passed and whensuch remarks were communicated to the plaintiff
2. The learned advocate Shri. Joshi has invited my attention towards rule 2 of the Forester (Subordinate Forest Service) Recruitment Rules, which reads as under:-
Appointment to the post of Forester in the lower subordinate forest service shall be made either by promotion of (e) person of proved merit and efficiency from amongst the guards, or (b) by direct selection.
Now, looking to this provision, it is very clear that the criterion for the promotion is seniority cum merits. No any special knowledge, efficiency or training is required for the promotion of the Guard as a Forester.
9.
Shri Joshi cited 26 CLR 1106, K.I.Gadhavi V. Chief Conservator of Forests, wherein the Hon'ble Gujarat High Court has held that it is a well laid down principle that when the criterion for promotion is seniority cum merit, the seniority prevails in absence of a clear finding that the person concerned is found or positively unfit to be promoted. In this case, there is nothing on the record to show that the petitioner was positively unfit for promotion. A mere vague allegation of inefficiency or irregularity without any facts, it substantiate such an allegation cannot be recorded as positive unfitness. There has to be something quite substantial against the person to show that he is not fit to be promoted. That requires much greater demerit than the mere allegation of inefficiency or irregularity in attendance. Shri Joshi also cited 1984 GLH OJ 26, Thakorlal M. Khambholja V. State of Gujarat, wherein the Hon'ble Gujarat High Court has held that unless the employee found to be positively unfit he ould not be denice promotion his juniors cannot be promoted overlooking his claim. Shri Joshi has also cited 1985 GLH OJ 60 Smt. Jyotsana Mati V. Y.M.Desai, wherein it was held by the Hon'ble Gujarat High Court that in case of Adverse remarks made in the confidential report without any basis , promotion of the employee cannot be denied Shri Joshi has also cited 25(1) GLR 264, T.C. Bhargav V. State of Gujarat, wherein it was held by the Hon'ble High Court of Gujarat that in case where confidential remarks were not communicated to the petitioner, such remarks cannot be considered for assessing his performance at the time of crossing efficiency bar. Shri Joshi also cited AIR 1984 SC 531, Amar Kant Chaudhary V. State of Bihar, wherein it was observed by the Supreme Court that were the case of employee was not considered by Selection Committee for promotion and his name not included in the selection list due to adverse remarks in his confidential roll which were either not communicated to him or against which the representation made by him remained undisposed of any though those adverse remarks had been expunged by the State Govervnemnt there were not removed from the confidential roll and subsequent confidential roll which contained entries favourable to the employee were not placed before the Selection Committee in the next meeting. It was held that the decision of the Selection Committee was vitiated. Shri Joshi has also cited 1986(3)SLR 283, Hari Singh Verma V. Union of India, wherein the Hon'ble Bombay High Court has held that denial of promotion to the petitioner on the basis of uncommunicated adverse remarks are illegal. Shri Joshi has also cited 1986(1)SLR 500, Arunkumar Chatterjee V. South Eastern Railway wherein the Hon'ble Supreme Court has held that in case where the promotion of the employee was illegally denied, in that case the employee is entitled to promotion from due date with all consequential benefits.
10. Thus, looking to the above proposition of law, it is apparently clear that the denial of the promotion to the plaintiff can only be justified if he is positively found unfit to be promoted. Here in the present suit, there is nothing on record to show that looking to the services of the plaintiff, he was ground positively unfit to be promoted as forester and further when the Hon'ble Gujarat High Court has positively held in case of K.I.Saghed V. Chief Conservator of Forest (Supra) which was the similar case to the present one and Mr. Gadhvi was serving as a Forest Guard in case of which the Hon'ble Gujarat High Court has held that the criterion for promotion being seniority cum mertis, seniority cannot be ignored on the basis of bague remarks. Thus, considering the fact that the juniors to the plaintiff were promoted overlooking the seniority of the plaintiff was the act in itself illegal, unconstitutional and against the principles of natural justice.
11. The learned Trial Judge has well discussed the documents and evidence on record and has also well discussed the law points and the ratio laid down in the said authorities cited before him in his judgment and it is found that the judgment of the Learned Trial Judge is based on the sound legal principles and therefore, I am completely in agreement with the findings arrived at by the Learned Trial Judge. For the above stated reasons, I answer point Nos. 1 & 2 in the negative. In the result the appeal deserves to be dismissed."
Both Lower Courts have concurrent findings on question of law, while deciding matter as per principle laid down in judgment in case of K.L.Gadhvi Vs. Chief Conservator of Forest and Others reported in 1985(2) GLR Page No.1106. According to my opinion, both Court has rightly interpreted Rule - 2 of Forester (Subordinate Forest Service) Recruitment Rules and considered case of each respondent that each respondent are entitle for post of Forester being a promotion post because positive demerits has not been established against respondents by Appellant before Trial Court as well as Lower Appellate Court. Therefore, contention raised by learned AGP Ms. Mathur cannot be accepted. In all Second Appeals, there is no substance, since question of law formulated by this Court has been answered by both Courts below, as discussed above. Therefore, all Second Appeals are dismissed. Interim-relief, if any, stands vacated.
Learned advocate Mr.D.M.Thakkar appearing on behalf of respondents submitted that these being an old matters and one or two respondents are already retired, whatever service benefits are available in pursuance to judgment and decree passed by Trial Court, let it be paid within some reasonable time. Considering submission made by learned advocate Mr.Thakkar, it is directed to appellants to implement judgment and decree passed by Trial Court and confirmed by Lower Appellate Court and this Court, within a period 2(Two) months from the date of receiving a copy of present order and to pay monetary benefits arising out of that.
[H.K.RATHOD, J.] ..mitesh..
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