Gujarat High Court
Mustak Abdulgani Shaikh vs The State Of Gujarat on 8 April, 2022
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/17956/2019 ORDER DATED: 08/04/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 17956 of 2019
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MUSTAK ABDULGANI SHAIKH
Versus
THE STATE OF GUJARAT
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Appearance:
MR VK JOSHI(2329) for the Petitioner(s) No. 1
MS.SURBHI BHATI, AGP for the Respondent(s) No. 1
LAW OFFICER BRANCH(420) for the Respondent(s) No. 2
MS TRUSHA K PATEL(2434) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 08/04/2022
ORAL ORDER
1. Heard Mr.V.K.Joshi learned advocate for the petitioner.
2. By way of this petition, the petitioner has prayed for granting him notional promotion to the post of Registrar of District Court with effect from 01.04.2016 and to grant monetary benefits and revised retiral benefits accordingly.
3. Facts in brief would indicate that the petitioner was appointed as a Section Writer on the establishment of Panchmahal District Court on 03.07.1978. He was thereafter promoted to the post of Senior Clerk with effect from 01.01.2006 and as head clerk on Page 1 of 10 Downloaded on : Tue Apr 12 20:37:32 IST 2022 C/SCA/17956/2019 ORDER DATED: 08/04/2022 01.07.2006. On 23.08.2007, the petitioner was promoted to the post of Bench Clerk, Appellate Court on the establishment of the Godhara District Court. The petitioner retired on superannuation on 31.05.2016.
4. Mr.V.K.Joshi learned counsel for the petitioner would submit that the High Court on its administrative side, issued a letter on 13.12.2013 to various Principal District Judges including that of the District Court at Godhra, directing the district Judges to forward proposals for posting of Registrars to the District Courts two months before the post falls vacant. Relying on this communication of the Registrar General of the High Court, Mr.Joshi would submit that the District Court at Godhara forwarded the names of eligible candidates suitable for promotion to the post of Registrar on 23.05.2016. The petitioner's name figures at Sr. No.1. The proposal indicated that since the post had fallen vacant from 31.03.2016 on the retirement of one Shri G.K.Dodiyar, the petitioner including others were asked for their willingness to Page 2 of 10 Downloaded on : Tue Apr 12 20:37:32 IST 2022 C/SCA/17956/2019 ORDER DATED: 08/04/2022 be considered for promotion on the lien to the establishment of the District Court. On 24.05.2016, the petitioner forwarded his willingness. He however retired on superannuation within seven days on 31.05.2016.
5. Mr.Joshi would submit that it was expected of the District Court to have scrupulously followed the communication of the High Court dated 13.12.2013 and forward a proposal of the petitioner, who was admittedly the senior most available candidate for promotion to the post of Registrar in January 2016, two months before the post fell vacant. However, by doing so, two months after the post fell vacant deprived the petitioner of his promotion which was rightly to the post of Registrar of the Court.
6. Mr.Joshi would rely on an order of the coordinate bench of this Court passed in Special Civil Application No.6231 of 2018 on 24.06.2019 particularly para 5 of the order. Mr.Joshi would submit that the Court in no uncertain terms held that when the petitioner was Page 3 of 10 Downloaded on : Tue Apr 12 20:37:32 IST 2022 C/SCA/17956/2019 ORDER DATED: 08/04/2022 available and willing for being considered for promotion, if such a promotion could not be earned but for events not in control of the petitioner and the petitioner stood retired, the petitioner would be entitled not only to the relief regarding promotion but also all monetary benefits. Accordingly, Mr.Joshi would submit that the petitioner is entitled to the benefits of notional promotion to the post of Registrar, District Court, Godhara.
7. Ms.Trusha Patel learned counsel appearing for the respondent no.2 Principal District Judge would invite the Court's attention to the following submissions:
(I) She would submit that having retired on superannuation on 31.05.2016, the petition is filed in October, 2019. The same is therefore filed after a delay of three and a half years. In filing such a belated petition, therefore, no relief can be granted to the petitioner. Reading the communication of the High Court dated 13.12.2013, Ms.Patel would submit that apart from the fact that the communication was Page 4 of 10 Downloaded on : Tue Apr 12 20:37:32 IST 2022 C/SCA/17956/2019 ORDER DATED: 08/04/2022 confidential, the purpose of the communication was seeing that the administration of the District Court does not suffer. It was in this context that the District Court was so informed that the proposals should be forwarded two months before the posts were vacant so as to cause much less inconvenience to the administration of the District Court. By virtue of this letter, the petitioner would get a right to be considered for promotion based on this communication.
8. Ms.Patel would rely on a letter of 24.07.2019 addressed by the Registrar (Inspection), High Court of Gujarat, which referred to a circular No.B1475/2016 wherein, it was pointed out to the District Courts that while forwarding proposals for promotion, names were to be recommended of candidates who were potentially suitable for the post for being considered for promotion. She would therefore submit that promotion was not an automatic event that would follow on the vacancy accruing but it was based on the assessment of proficiency and Page 5 of 10 Downloaded on : Tue Apr 12 20:37:32 IST 2022 C/SCA/17956/2019 ORDER DATED: 08/04/2022 potentiality of the candidate and once the proposal was forwarded on 23.05.2016 since seven days remained for consideration of the case of the petitioner and he superannuated before the Advisory Committee met, the petitioner would not get any right merely because of the communication dated 13.12.2013 without he being assessed on the basis of he being potentially qualified.
9. She would also distinguish the decision of the Court in case of Mayank Bhagwandas Shethwala v. High Court of Gujarat and Anr. rendered in Special Civil Application No.6231 of 2018.
10. Considering the submissions made by the learned counsel for the respective parties, the communication dated 13.12.2013 which the High Court, on the administrative side addressed to the Principal District Judges would in itself not give the petitioner a right to be considered for promotion. The letter was a mere communication keeping in mind the administrative difficulty that would result in forwarding proposals Page 6 of 10 Downloaded on : Tue Apr 12 20:37:32 IST 2022 C/SCA/17956/2019 ORDER DATED: 08/04/2022 after the incumbent Registrars had retired. It was in this context that the High Court on administrative side, reminded the District Courts to forward proposal for promotions two months prior to the posts falling vacant.
11. It is in light of this communication that the decision relied upon by Mr.Joshi in case of Mayank Bhagwandas Shethwala (supra) needs to be considered. In case of the petitioner therein, he could not be considered for promotion to the post of Registrar till he retired and therefore the prayer like the one in the other petition was to grant him the benefit of notional promotion. What is evident is that after the willingness of the petitioner was asked for, his name was recommended for promotion to the post of Registrar. Pending such consideration, the Rules known as the Non-Judicial and Staff of the Courts (Recruitment and Conditions of Service) Rules 2017, came into force. The petitioner and other candidates came to be invited for oral interview on 04.07.2017. The interviews took place on 11.07.2017. Page 7 of 10 Downloaded on : Tue Apr 12 20:37:32 IST 2022 C/SCA/17956/2019 ORDER DATED: 08/04/2022 The petitioner was once again recommended on 12.07.2017. The policy which was prevalent of granting six increments was discontinued and therefore a fresh proposal or willingness was sought. His case was again considered on the third occasion for promotion and before it fructified, the petitioner retired on superannuation. The Court considering the submissions of the respondents therein, on the facts held that the petitioner's case was recommended more than once, despite of which, he could not be promoted for reasons beyond his control. Relying on the decision in case of Major General H. M. Singh, VSM v. Union of India reported in (2014) 3 SCC 670, the Court held in favour of the petitioner.
12. I find merit in the contention of the learned counsel for the respondent inasmuch as, she contended that the facts of the present petition do not stand on the same footing. Apart from the fact that no right to be considered for promotion would arise merely because of the communication addressed by the High Court on 13.12.2013, what is also evident Page 8 of 10 Downloaded on : Tue Apr 12 20:37:32 IST 2022 C/SCA/17956/2019 ORDER DATED: 08/04/2022 from reading the circular of 24.07.2009 i.e. the one which held the field prior to the Rules of 2017 was that for being considered for promotion to the post of Registrar, what was required was a person with considerable experience and proved efficiency and merit. It was in this context the circular was addressed to the High Court of Gujarat on administrative side that while assessing the suitability of the candidate for the post of Registrar of District Courts, factors such as educational qualification, past performance as reported in Confidential Report, performance in the lower and higher standards departmental examination, capacity to lead and guide the supporting staff, ability to handle correspondences in accordance with the Rules and Regulations and the experience as senior clerks in various branches are parameters which require consideration before an incumbent had to be promoted.
13. Considering the facts of the present case, what is evident is that the department did not have sufficient Page 9 of 10 Downloaded on : Tue Apr 12 20:37:32 IST 2022 C/SCA/17956/2019 ORDER DATED: 08/04/2022 time between 24.05.2016 and 31.05.2016 to convene the meeting and consider the case of the petitioner before he retired. In the facts of Mayank Bhagwandas Shethwala (supra), it was for the reasons beyond the control of the petitioner who was recommended and the acceptance of recommendation was positive in his case despite which the petitioner could not be promoted, which prompted the Court to extend the relief of notional promotion in his case.
14. The case of the present petitioner does not stand on a similar footing. His case was yet to be examined and assessed on the parameters stated herein above and before it could be done, he retired.
15.For the aforesaid reasons, the petition is dismissed with no order as to costs.
(BIREN VAISHNAV, J) ANKIT SHAH Page 10 of 10 Downloaded on : Tue Apr 12 20:37:32 IST 2022