K.M.Patel vs State Of Gujarat on 10 June, 2022

[Cites 15, Cited by 1]

Gujarat High Court

K.M.Patel vs State Of Gujarat on 10 June, 2022

Bench: Bhargav D. Karia

    C/SCA/2087/2005                              CAV JUDGMENT DATED: 10/06/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


                R/SPECIAL CIVIL APPLICATION NO. 2087 of 2005
                                    With
                R/SPECIAL CIVIL APPLICATION NO. 19803 of 2005


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BHARGAV D. KARIA
==========================================================

1 Whether Reporters of Local Papers may be allowed to see the judgment ?

2 To be referred to the Reporter or not ?

3 Whether their Lordships wish to see the fair copy of the judgment ?

4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== K.M.PATEL Versus STATE OF GUJARAT & 1 other(s) ========================================================== Appearance:

SR ADV MR G.M.JOSHI WITH MR VYOM H SHAH(9387) for the Petitioner(s) No. 1 MR K M ANTANI, AGP for the Respondent(s) No. 1 MR VAIBHAV A VYAS(2896) for the Respondent(s) No. 2 ========================================================== CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA Date : 10/06/2022 COMMON CAV JUDGMENT

1. Heard learned Senior Advocate Mr. Gautam Joshi for learned advocate Mr. Vyom H. Shah for the petitioner, learned Assistant Government Pleader Mr. K.M.Antani for the Page 1 of 62 Downloaded on : Mon Jun 13 21:07:32 IST 2022 C/SCA/2087/2005 CAV JUDGMENT DATED: 10/06/2022 respondent-State and learned advocate Mr. Vaibhav A Vyas for respondent No.2.

2. Issues involved in both the petitions are similar. Therefore, they have been heard together and would be disposed of by this common judgement.

3. The petitioner has filed Special Civil Application No. 2087 of 2005 challenging the order dated 16.08.2004 by which the petitioner was reverted from the post of Chief Administrative Officer [CAO] to that of Administrative Officer by cancelling the promotion given by the respondent No.2-Gujarat Pollution Control Board ['GPCB' for short] in the year 1996. The petitioner has also challenged letter dated 01.11.1999 issued by the Deputy Secretary, Forest and Environment Department of the State for initiating proceedings against the petitioner for reversion from the post of Chief Administrative Officer to Administrative Officer. The petitioner has challenged the order dated 13.08.2004 by which, the State Government found that promotion given to Page 2 of 62 Downloaded on : Mon Jun 13 21:07:32 IST 2022 C/SCA/2087/2005 CAV JUDGMENT DATED: 10/06/2022 the petitioner as Chief Administrative Officer by the respondent No.2-GPCB was not in order as the creation and continuation of the post of Chief Administrative Officer was irregular. The petitioner has also challenged order dated 11.09.2004 passed by the GPCB whereby the pay-scale of the petitioner was corrected pursuant to his reversion on the lower post of Administrative Officer w.e.f.

1996.

4. In Special Civil Application No. 19803 of 2005 the petitioner has challenged the order dated 12.09.2005 whereby the pay- scale fixed in the lower post of Administrative Officer was revised to Rs. 8000-275-14050 instead of Rs. 8500-275- 14050 pursuant to the Government Resolution dated 06.09.2000.

5. For the sake of convenience, facts are recorded from Special Civil Application No. 2087 of 2005 treating it as a lead matter.

5.1 Pursuant to the advertisement dated 11.08.1987 for the post of Page 3 of 62 Downloaded on : Mon Jun 13 21:07:32 IST 2022 C/SCA/2087/2005 CAV JUDGMENT DATED: 10/06/2022 Administrative Officer, the petitioner made an application and was appointed on the said post on 22.06.1988 in the pay scale of Rs. 2500-75-3100-100-4200.

5.2 On 09.08.1989, the petitioner was appointed on permanent basis on completion of probation of one year period in the pay scale of Rs. 2500-4200.

5.3 The petitioner made an application for promotion to the post of Chief Administrative Officer in the year 1994 which was considered and the petitioner was promoted as Chief Administrative Officer w.e.f. 24.06.1996.

5.4 Respondent No.2-GPCB passed an order dated 16.08.2004 cancelling the order of promotion ab initio and reverted the petitioner to his original post of Administrative Officer.

5.5 The petitioner challenged the order of reversion dated 16.08.2004 by preferring Special Civil Application No. 10393 of 2004 before this Court. However, Page 4 of 62 Downloaded on : Mon Jun 13 21:07:32 IST 2022 C/SCA/2087/2005 CAV JUDGMENT DATED: 10/06/2022 the petitioner sought permission to withdraw the said petition as he was not in possession of the relevant material with a view to file fresh petition. The petitioner has thereafter preferred Special Civil Application No. 2087 of 2005.

5.6 This Court [Coram: Hon'ble Mr. Justice Akil Kureshi, As His Lordship was then] by order dated 24.03.2005 dismissed Special Civil Application No. 2087 of 2005 holding as under:

"8. Having considered the rival submissions, it is apparent that by communication dated 13th August, 2004, the government directed the Board to discontinue the petitioner on the promotion post. It was noted in the said communication that the Board had breached the provisions of the government circulars and continued in Class-I post and granted promotion on the post without proper permission from the government. It is recorded that the post was created on 4.10.1990, the same had remained vacant for the period of 5 years and 8 months and, therefore, in view of the government resolution dated 12.12.1986, after three years of remaining vacant, the post would automatically stand abolished. It was, therefore, not open for the Board to Page 5 of 62 Downloaded on : Mon Jun 13 21:07:32 IST 2022 C/SCA/2087/2005 CAV JUDGMENT DATED: 10/06/2022 fill up the post by granting promotion to the petitioner, since with effect from 4.10.1993, the post in question stood automatically abolished. The government, therefore, found that the Board erred in granting promotion to the petitioner in the year 1996. It was also noted that by communication dated 1.11.1999 also, this was conveyed to the Board and that therefore, the said decision should be implemented without any further delay.

9. When it is found that the promotional post of Chief Administrative Officer in the respondent no.2-Board was no longer in existence after October, 1993 and the same was, therefore, wholly irregularly sought to be filled up by granting promotion to the petitioner, it is not open for this Court to interfere with the action of the respondents of reverting the petitioner to his lower post. When the government found that the post stood abolished in the year 1993 and when the subsequent attempts of the Board to recreate the post by sending proposal for creation of such post in the year 1999 also did not meet with success, and the government did not permit the Board to create such post, it would not be possible to direct that the petitioner should be continued on the promotional post regardless of availability of such post. When the salary paid to the petitioner on the promotional post is protected, the prime question is whether the petitioner has any right to Page 6 of 62 Downloaded on : Mon Jun 13 21:07:32 IST 2022 C/SCA/2087/2005 CAV JUDGMENT DATED: 10/06/2022 insist that he must be continued on the promotional post even after August, 2004. Answer to this question has to be clearly in the negative, since undisputedly, no such post is in existence. For want of existence of post, the petitioner cannot claim any promotion. It is, therefore, not possible to strike down the reversion order. It is true that the same has been passed without hearing the petitioner, however, principles of natural justice can not be put in straight jacket. In fact, when the petitioner has failed to establishh that there is any post of Chief Administrative Officer available with the Board, it is not possible to uphold the contention of the petitioner that the said order of his reversion should not have been passed without hearing him and the same would be a mere empty formality. The averment that some other posts have been continued contrary to the government circulars, would not be of any help to the petitioner and it would be up to the government to look into such continuance. The petitioner, however, cannot claim any right to continue on the post which is not in existence with the Board. In view of the above, the petition is rejected. Notice is discharged. No order as to costs."

5.7 The petitioner, being aggrieved by the aforesaid order of dismissal preferred Letters Patent Appeal No. 655 of 2005 which was partly allowed vide order Page 7 of 62 Downloaded on : Mon Jun 13 21:07:32 IST 2022 C/SCA/2087/2005 CAV JUDGMENT DATED: 10/06/2022 dated 13.07.2005 passed by the Division Bench [Coram:Hon'ble Mr. Justice G.S.Singhvi, As His Lordship was then and Hon'ble Mr. Justice Anant S.Dave, As His Lordship was then]. The Division Bench, while remanding the matter back has observed as under:

"We have heard learned counsel for the parties at considerable length and perused the file produced by Ms.Manisha L.Shah in which the decision was taken by the Government to approve the Gujarat Pollution Control Board (Recruitment) Regulations, 1999. In our opinion the plea of discrimination raised by the appellant by making a specific averment in Para-7 of the Special Civil Application which was duly supported by the contents of Annexure-S could not have been summarily brushed aside by the Learned Single Judge without requiring the respondents to file counter affidavit.

The question whether the post of Chief Administrative Officer created by the Board vide resolution dated 04.10.1999 had lapsed on the expiry of three years period and the same could have been filled vide resolution dated 24.06.1996 was required to be decided keeping in view the fact that a large number of other posts were filled by the Board after more than three years from the date of creation. Prima-facie, it seems Page 8 of 62 Downloaded on : Mon Jun 13 21:07:32 IST 2022 C/SCA/2087/2005 CAV JUDGMENT DATED: 10/06/2022 paradoxical that while the appellant was reverted from the post of Chief Administrative Officer on the premise that the Board could not have filled that post without seeking permission from the Finance Department, similar action was not taken qua large number of other appointments. The question whether Government Resolutions dated 20th February, 1979, 12th December 1986 and 28th October, 1991 could be invoked for nullifying the appointment made by the Board in 1996 and whether the 1999 regulations could be pressed into service to justify the reversion of the appellant after almost 8 years of his promotion also required detailed consideration. An ancillary question whether the appellant had manipulated his promotion vide order dated 24.6.96 and he was instrumental in not making available the files relating to his promotion to the Government also needs detailed consideration. Therefore, it would be in the interest of justice to set aside the order of the learned Single Judge and remand the case for fresh adjudication of the writ petition.

In the result, the appeal is allowed. Order dated 24.3.2005 passed by the learned Single Judge is set aside. The Special Civil Application No.2087/05 is admitted for hearing. The respondents may file counter affidavits within two months. Thereafter the appellant may apply for early hearing of the writ petition."

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C/SCA/2087/2005 CAV JUDGMENT DATED: 10/06/2022 5.8 Pursuant to the order passed by the Division Bench, two affidavits-in- replies were filed by respondent No.2 affirmed on 12.09.2005 and 04.10.2005 in Special Civil Application No. 2087 of 2005. Respondent No.1 has also filed affidavit-in-reply affirmed on 13.09.2005.

5.9 The petitioner filed Special Civil Application No. 19803 of 2005 challenging the order dated 12.09.2005 whereby the pay scale of the petitioner for the post of Administrative Officer was reduced from 8500-275-14050 to 8000-275-14050 in view of the Government Resolution dated 06.09.2000.

6. Learned Senior Advocate Mr. Gautam Joshi for the petitioner submitted that the Division Bench while remanding the matter opined that there is a clear discrimination raised by the petitioner by making specific plea in para 7 of the memo of the petition along with contents of the Annexure S to point out that no action is taken against the other similarly situated persons who have been promoted without Page 10 of 62 Downloaded on : Mon Jun 13 21:07:32 IST 2022 C/SCA/2087/2005 CAV JUDGMENT DATED: 10/06/2022 seeking permission from the Finance Department. The Division Bench raised three questions for consideration of this Court viz. (I) Whether the post of Chief Administrative Officer cease to exit on expiry of three years in view of the Government Resolutions dated 20.02.1979, 12.12.1986 and 28.10.1991 so as to nullify the appointment made by respondent No.2- GPCB in 1996, (II) whether the regulations framed in the year 1999 would be invoked to justify the reversion of the petitioner after eight years of his promotion? and; (III) Whether the petitioner had manipulated by not making available the files relating to his promotion?

6.1 It was submitted that the respondent-GPCB has not placed on record the report of the Inquiry Officer one Mr. H.H.Joshi but referred only to the report of one Ms. P.S.Shah in the affidavit-in-reply.

6.2 Learned Senior Advocate Mr. Joshi has placed on record the report of Inquiry Officer Mr. H.H.Joshi which is not Page 11 of 62 Downloaded on : Mon Jun 13 21:07:32 IST 2022 C/SCA/2087/2005 CAV JUDGMENT DATED: 10/06/2022 objected by any of the learned advocates for the respondents. It was submitted that after detailed investigation, Inquiry Officer Mr. H.H.Joshi in his report dated 19.08.2009 has come to the conclusion that though it is true that two files were missing in the year 1994 but for that levelling allegation of motive on the petitioner, there is no basis or evidence for holding him or anyone else responsible and therefore it was recommended to drop the inquiry against the petitioner which was accepted by respondent No.2-GPCB as no further inquiry of any kind whatsoever is initiated thereafter.

6.3 It was submitted that respondent No.2 is a statutory Board constituted under the provisions of the Act, 1974 and the Rules framed thereunder.

6.4 Reference was made to section 11A of the Act,1974 which provides that the Chairman of the Board shall exercise the powers and perform such duties as may be prescribed or as may from time to time be Page 12 of 62 Downloaded on : Mon Jun 13 21:07:32 IST 2022 C/SCA/2087/2005 CAV JUDGMENT DATED: 10/06/2022 delegated to him by the Board and in that regard Rule 15 of the Gujarat Water (Prevention and Control of Pollution) Rules, 1976 [for short 'the Rules,1976] was referred which defines the powers and duties of the Chairman of respondent No.2- GPCB. It was submitted that as per sub- rule (3) of Rule 15 the State Board shall not create a post exceeding the pay scale of Rs. 1600/- per month which limit was increased to Rs. 4500/- by notification dated 05.10.1988. It was therefore submitted that the post of Chief Administrative Officer which was in the pay scale of Rs. 3000-4500 was within the competence of respondent No.2 GPCB to create the post and the same was not subject to any regulation or control by the State Government as the Rules, 1976 are statutory Rules duly notified and published and therefore, only respondent No.2-Board can create or abolish the post. It was submitted that the Government Resolution dated 20.02.1979 does not have any application to the post carrying pay upto the pay scale of Rs. 4500/-. It was within the statutory power of the Page 13 of 62 Downloaded on : Mon Jun 13 21:07:32 IST 2022 C/SCA/2087/2005 CAV JUDGMENT DATED: 10/06/2022 respondent No.2-Board to create such post without obtaining any Government sanction.

6.5 Learned Senior Advocate Mr. Joshi also relied upon the provisions of section 12 (3A) of the Act,1974 prescribing the modalities of recruitment and other aspects of the post of respondent No.2- GPCB. It was submitted that the resolution in question that provides for automatic lapse of the post would not come within the ambit and scope of section 12(3A) of the Act,1974 as the Administrative instructions cannot restrict the operation of the statutory Rules.

6.6 Reliance was placed on the decision of Hon'ble Supreme Court in case of Guman Singh vs. State of Rajasthan and others reported in 1971 (2) SCC 452.

6.7 It was submitted that it is well settled that in the event of conflict between the statutory Rules and administrative instructions, the Rules would prevail over the administrative instructions. In support of his Page 14 of 62 Downloaded on : Mon Jun 13 21:07:32 IST 2022 C/SCA/2087/2005 CAV JUDGMENT DATED: 10/06/2022 submission, reliance was placed on the decision of Hon'ble Supreme Court in case of Laxman Dundappa Dhamanekar and anr vs. Management of Vishwa Bharata Seva Samity and anr reported in 2001 8 SCC 378 wherein the Apex Court held that the administrative instructions being supporting legislation cannot supplement the statutory Rules. It was therefore submitted that Resolution of 1979 was wrongly applied in the facts of the case of the petitioner as neither respondent No.1-State Government nor the respondent No.2-GPCB ever applied the resolution to any of the posts of the Board knowing fully well that such resolution would not apply in view of the statutory provisions and of the Rules.

6.8 It was therefore submitted that there is discrimination qua the petitioner in applying the Resolution of 1979.

6.9 With regard to applying resolution of the State Government in the facts of the case of the petitioner, it was submitted that the petitioner is not Page 15 of 62 Downloaded on : Mon Jun 13 21:07:32 IST 2022 C/SCA/2087/2005 CAV JUDGMENT DATED: 10/06/2022 claiming any negative equity but it is the case of the petitioner that the decision lacks bona fide as no action is taken in respect of any of the other similarly situated employees of the respondent No.2- GPCB who are named in Annexure S of the petition in past 16 years. It was therefore submitted that the respondents have exercised powers mala fide by picking up a single individual to his disadvantage resulting into violation of Article 14 of the Constitution of India.

6.10 With regard to reduction of pay scale from 8500-14050 to 8000-14050 is concerned in Special Civil Application No. 19803 of 2005, learned Senior Advocate Mr. Joshi submitted that the impugned order dated 12.09.2005 as well as the Government Resolution dated 06.09.2000 are required to be quashed and set aside only on the ground that as per the scale-to- scale revision of the Fifth Pay Commission Recommendations as adopted by the State Government with required modifications of the High Power Committee, pay scale admissible and payable comes to Rs. 8500- Page 16 of 62 Downloaded on : Mon Jun 13 21:07:32 IST 2022 C/SCA/2087/2005 CAV JUDGMENT DATED: 10/06/2022 14100. It was submitted that the petitioner was appointed initially on probation on the equivalent pay scale as per the Fourth Pay Commission Recommendations adopted by the State Government in the pay scale of Rs. 2500- 4200 which should have been increased to 8500-14100 and could not have been reduced to 8000-14050. It was submitted that the pay scale applicable to the petitioner in the post of Administrative Officer on his appointment was equivalent to that of the Under Secretary of the State of Gujarat.

7. On the other hand, learned advocate Mr. Vaibhav Vyas appearing for respondent No.2-GPCB submitted that so far as the ground of discrimination, as alleged by the petitioner for the posts stated in Annexure S to the petition is concerned such posts are approved by the State Government and on approval of the State Government, Gujarat Pollution Control Board (Recruitment) Regulations,1999 came into effect and such posts are notified in Annexure-I to the said regulation. It was submitted that the post of Chief Page 17 of 62 Downloaded on : Mon Jun 13 21:07:32 IST 2022 C/SCA/2087/2005 CAV JUDGMENT DATED: 10/06/2022 Administrative Officer is not part of the approved posts in the said Regulation.

7.1 It was submitted that the concept of equality as envisaged in the Article 14 of the Constitution of India is a positive concept which cannot be enforced in a negative manner as it does not envisage negative equality and if any illegality is alleged to have been committed by the State Government, it cannot be forced to perpetuate as the petitioner has failed to establish his own case for promotion. It was submitted that the promotion cannot be claimed as a matter of right when the post is not approved by the State Government.

7.2 Learned advocate Mr. Vyas submitted that respondent No.2-GPCB is a statutory body created by the State Government in exercise of the powers conferred under the provisions of the Act,1974 and the policies of the State Government as contained in the Resolutions/Circulars of the State Government except pension and Provident Fund, are applicable to the employees of Page 18 of 62 Downloaded on : Mon Jun 13 21:07:32 IST 2022 C/SCA/2087/2005 CAV JUDGMENT DATED: 10/06/2022 the respondent No.2-GPCB as per the resolution dated 28.03.1977. It was therefore submitted that the Government Resolutions dated 20.02.1979, 12.12.1986 and 28.12.1999 regarding economic measures are also applicable to the respondent No.2-GPCB.

7.3 It was submitted that the provisions of the Act,1974, and the Rules,1976 as well as the Rules,1989 are required to be taken into consideration and when the post of Chief Administrative Officer does not exist on the set-up of the respondent No.2-GPCB as per the Regulations, the order of reversion of the petitioner is justified.

7.4 Learned advocate Mr. Vyas in support of his submissions relied upon the following decisions of the Apex Court:

1. Gursharan Singh, Ashwani Sachdeva vs. New Dehli Municipal Committee reported in 1996 2 SCC 459:

"9. Apart from that even if it is assumed that concession was shown to Page 19 of 62 Downloaded on : Mon Jun 13 21:07:32 IST 2022 C/SCA/2087/2005 CAV JUDGMENT DATED: 10/06/2022 such stall-holders by the N.D.M.C. the appellants cannot make grievance in respect of discrimination under Article 14 of the Constitution.

             Having   agreed    to   the    terms   of
             allotment   they   cannot    legitimately

claim that they should also be treated in the same manner. There appears to be some confusion in respect of the scope of Article 14 of the Constitution which guarantees equality before law to all citizens. This guarantee of equality before law is a positive concept and it cannot be enforced by a citizen or court in a negative manner. To put it in other words, if an illegality or regularity has been committed in favour of any individual or a group of individuals, the others cannot invoke the jurisdiction of the High Court or of this Court, that the same irregularity or illegality be committed by the State an authority which can be held to be a State within the meaning of Article 12 of the Constitution, so far such petitioners are concerned, on the reasoning that they have been denied the benefits which have been extended to others although in an irregular or illegal manner. Such petitioners can question the validity of orders which are said to have been passed in favour of persons who were not entitled to the same, but they cannot claim orders which are not sanctioned by law in their favour on principle of equality before law. Neither Article 14 of the Constitution conceives within the equality clause this concept nor Article 226 empowers Page 20 of 62 Downloaded on : Mon Jun 13 21:07:32 IST 2022 C/SCA/2087/2005 CAV JUDGMENT DATED: 10/06/2022 the High Court to enforce such claim of equality before law. If such claims are enforced, it shall amount to directing to continue and perpetuate an illegal procedure or an illegal order for extending similar benefits to others. Before a claim based on equality clause is upheld, it must be established by the petitioner that his claim being just and legal, has been denied to him, while it has been extended to others and in this process there has been a discrimination. None of the 98 stall-holders were impleaded as parties to the writ petitions. The appellants questioned the validity of the allotment of 98 shops on concessional rates, without trade zoning restrictions in favour of the stall-holders of Panchkuian Road, but they were primarily interested that same concessions in respect of licence fee and relaxation in trade zoning restrictions, be also extended to them. Any such claim on their behalf cannot be entertained on the basis of concept of equality before law as enshrined in Article 14 of the Constitution."

2. P.Singaravelan vs. District Collector, Truppur reported in 2020 3 SCC 133:

"23. In this respect, we find that the High Court in the impugned judgment was correct in concluding that the Appellants cannot claim such relief on the strength of Article 14 of the Constitution of India, when once it has Page 21 of 62 Downloaded on : Mon Jun 13 21:07:32 IST 2022 C/SCA/2087/2005 CAV JUDGMENT DATED: 10/06/2022 been found that they are not lawfully entitled to the same. It is well- settled by now that a person cannot invoke Article 14 to claim a benefit extended to someone similarly placed if he is not lawfully entitled to such benefit in the first place. Article 14 embodies the concept of positive equality alone, and not negative equality, that is to say, it cannot be relied upon to perpetuate an illegality or irregularity. In fact, this Court has opined that this principle extends to orders passed by judicial fora as well. Thus, the jurisdiction of a higher court cannot be invoked on the basis of a wrong order passed by a lower forum. In this respect, it would be fruitful to refer to the following passage from the decision of this Court in Basawaraj v. Land Acquisition Officer, (2013) 14 SCC 81:

"8. It is a settled legal proposition that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases. The said provision does not envisage negative equality but has only a positive aspect. Thus, if some other similarly situated persons have been granted some relief/benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well. If a wrong is committed in an earlier case, it cannot be perpetuated. Equality is a trite, which cannot be claimed in illegality and therefore, cannot be enforced by a citizen or court in a negative manner.

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C/SCA/2087/2005 CAV JUDGMENT DATED: 10/06/2022 If an illegality and irregularity has been committed in favour of an individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing a similarly wrong order. A wrong order/decision in favour of any particular party does not entitle any other party to claim benefits on the basis of the wrong decision. Even otherwise, Article 14 cannot be stretched too far for otherwise it would make functioning of administration impossible. (Vide Chandigarh Admn. v. Jagjit Singh [(1995) 1 SCC 745 : AIR 1995 SC 705] , AIR 1995, Anand Buttons Ltd. v. State of Haryana [(2005) 9 SCC 164 : AIR 2005 SC 565] , K.K. Bhalla v. State of M.P. [(2006) 3SCC 581 :AIR 2006 SC 898] and Fuljit Kaur v. State of Punjab [(2010) 11 SCC 455: AIR 2010 SC 1937])"

This proposition was also recently affirmed by a 3-Judge Bench of this Court in State of Odisha v. Anup Kumar Senapati (Civil Appeal No. 7295/2019, judgement dated 16.09.2019)"

7.5 Learned advocate Mr. Vyas has referred to and relied upon the following averments in the affidavit-in-reply filed on behalf of respondent No.2 with regard to the allegations levelled against the Page 23 of 62 Downloaded on : Mon Jun 13 21:07:32 IST 2022 C/SCA/2087/2005 CAV JUDGMENT DATED: 10/06/2022 petitioner for fraud and misrepresentation made by the petitioner and manipulating his own promotion:

"4. With reference to para 9, I say the promotion of the Petitioner the from the vice of fraud by the petitioner in manipulating his own promotion. I say that the order passed by the Honourable Division promotion while remanding the aforesaid Special Civil Application for hearing by the learned Single Judge Clearly states that, "the ancillary question whether the appellant had manipulated his promotion vide order dated 24th June 1996 and he was instrumental in not making available the files relating to his promotion to the Government also needs detailed consideration. I say that in fact an inquiry regarding disappearance of service file of the present petitioner upto the year 1996 clearly suggests that he had managed to see that his service file is misplaced and/ or lost and would never be found till the personnel committee considers the case of his promotion. I say that Since September 2004 a preliminary report of the Inquiry Officer of Smt. P.S.Shah, Chief Environment Engineer is received by the GPCB She has pointed out in the preliminary inquiry that by letter Of Shri K.M. Patel, petitioner herein, his file bearing No. Administration/P- 225(2) shows that his servic, file is not traceable, He gave additional certificates and other documents of his own. His Page 24 of 62 Downloaded on : Mon Jun 13 21:07:32 IST 2022 C/SCA/2087/2005 CAV JUDGMENT DATED: 10/06/2022 original service file bearing No Administration/P-225(2) was never found and that other officers working in the Administration Branch have given statement that they were not aware of disappearance of the file of Shri K.M.Patel in the year 1994, No proceedings were taken for finding out the said file or no Office Memos were issued to any officer regarding disappearance of the said file. It is found in the preliminary inquiry that Shri K.M. Patel, the petitioner was the only person who was aware of disappearance of his service file about which he has made a statement in his letter dated 14th December 1994. The file which is now available as No. Administration/P-225(2) starts only from 16th June 1996 and in note P.1/N the officers working in the Administration Branch have stated that they have no information whatsoever regarding disappearance of the file the additional documents given along with the letter of Shri K.M.Patel, the Petitioner herein dated 14th December 1994 does not show any noting Made regarding the said copies. There is no noting regarding his "NO Objection Certificate: regarding his passport dated 24th August 1995. The complete record with effect from 14th February,1994 to 31st May 1996 seems to have disappeared. It is further found in the preliminary inquiry that the files/docket for promotion of the present petitioner was prepared by one Shri K.D. Rathod, and that the personal file No.Administration/P-225(2) was lost. The correspondence of the Member--Secretary dated 17th May 1995 and the note shows that no separate file was made for the Page 25 of 62 Downloaded on : Mon Jun 13 21:07:32 IST 2022 C/SCA/2087/2005 CAV JUDGMENT DATED: 10/06/2022 Purpose of promotion of the petitioner. It was further found that the meeting of the Personnel Committee was held on 24th June 1996 at 2.00 PM and the minutes were prepared on the same day. The proposal made by the Member-Secretary in the is not signed file at page 311/C. On inquiry Shri has stated that according to the oral instructions of the Member-Secretary the signature of the Member-Secretary was obtained on the order of promotion of Shri K.M. Patel. The Personnel Committee put a specific remark that in anticipation of the Government's approval of the Recruitment Rules, Shri K.M. Patel can be promoted. However, in the order, no such condition was enjoined. On preliminary inquiry it is specifically found that Shri K.M.Patel, the petitioner herein was himself responsible for disappearance of his service file, which was not placed before the Personnel Committee at the time of the decision to promote him and as the Administrative Officer himself has manipulated his own promotion it is found that the personal file No.Administration/P-225(2) upto 13th December 1994 is not found in the Noting Section and the noting from 14.12.1994 to 31.05.1996 is not found in the preliminary inquiry. It is also found by the Inquiry Officer that whatever adverse remarks might have been made against the petitioner from 24.12.1994 to 21.01.1996 are not available on record and that nobody in the Administration Branch knew about disappearance of the said file. If the file was lost by inadvertence by any staff member, the petitioner as Administrative Officer could have taken action for the same.

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C/SCA/2087/2005 CAV JUDGMENT DATED: 10/06/2022 However, no action is taken by him. It is prima facie, found that Shri K.M Patel, the petitioner herein is responsible for disappearance of the file and all the contents thereof. It is also significant to note that on the date on which meeting of the Personnel Committee was held the order was signed by the Member-Secretary without there being any written noting about the same. It is, therefore, found in the preliminary inquiry that shri KM. Patel, the petitioner herein has committed misuse of his own position as Administrative Officer and contrary to all rules, regulations and procedure he has manipulated his own promotion to the post of Chief Administrative officer. I say that this preliminary inquiry report is dated 22nd and September 2904. I therefore, say this is a clear case of managing one's own promotion by misusing his position as Administrative Officer. I say that since the year 1999 the Government had pointed out irregularities. However , correspondence went on between GPCB and the Government. I say that in case of fraud or misrepresentation the petitioner cannot take advantage of the fact that he worked on the post of Chief Administrative Officer from 1990 to 2004. I say that the fraud vitiates the right to the post."

7.6 Learned advocate Mr. Vyas submitted that in view of the Government Resolution dated 06.09.2000 revising the pay scale from Rs. 8500-14040 to Rs. 8000- 14050, the impugned order dated 12.09.2005 Page 27 of 62 Downloaded on : Mon Jun 13 21:07:32 IST 2022 C/SCA/2087/2005 CAV JUDGMENT DATED: 10/06/2022 was passed by respondent No.2-GPCB and therefore the Special Civil Application No. 19803 of 2005 is required to be dismissed.

8. Learned Assistant Government Pleader Mr. Antani submitted that the petitioner came to be promoted to the post of Chief Administrative Officer by order dated 24.06.1996 subject to approval by the State Government. It was pointed out that in the year 1999 itself the State Government did not grant approval to the promotion of the petitioner and in the year 2004 the State Government directed respondent No.2-GPCB not to continue the petitioner any longer on the promotional post. It was submitted that creation of the post of the respondent No.2 GPCB has to be regulated by framing of appropriate Regulations which have to be approved by the State Government before any person gets appointment on such post. It was pointed out that respondent No.2 GPCB proposed creation of post of Chief Administrative Officer and such proposal was conveyed to the State Government in Page 28 of 62 Downloaded on : Mon Jun 13 21:07:32 IST 2022 C/SCA/2087/2005 CAV JUDGMENT DATED: 10/06/2022 the year 1999 which was not granted and therefore the GPCB has rightly reverted the petitioner to the post of Administrative Officer.

8.1 Learned AGP Mr. Antani in support of his submissions relied upon the following averments made in the affidavit- in-reply filed on behalf of the respondent No.1.

"4. With reference to para 5 of the petition, it is submitted that letters dated 1-11-99 and 13-8-2004 are the letters issued by this department. It is also admitted that the letter dated 17-11-03 was received by the Forest & Environment Department.

5. With reference to Para 7, it is submitted that in this regard it is admitted that the letter dated 1-11-99 and the letter dated 13-8-2004 were issued by the F&ED. The copies of the same are annexed herewith and marked as ANNEXURES-R1 and R-2 to this affidavit. These letters are quite self-explanatory as to under what circumstances, the decision was taken by the State Government for the reversion of the petitioner to be communicated to the G.P.C.B. These letters are not at all arbitrary, unreasonable, and discriminatory and not violative of fundamental rights under article 14 Page 29 of 62 Downloaded on : Mon Jun 13 21:07:32 IST 2022 C/SCA/2087/2005 CAV JUDGMENT DATED: 10/06/2022 and 16 of the Constitution of India. This will be clear in the following remarks.

6. With reference to Para 8 of the petition, it is submitted that as far as the Government is concerned, The Government did not allow the violation of rules and regulations as well as illegal procedure adopted by the Board i.e. not following the laid procedure and rules and regulations of Government, in case of promotion of the petitioner described in the letters dated 1/11/99 and 13-8-2004 respectively, so there was not any question of giving any opportunity to the petitioner on the part of the Government.

7. With reference to Para 9 of the petition, it is submitted that the averment made by the petitioner, that promotion was on the permanent post and also on permanent basis, is not correct. As per the provisions of the F.D. Resolution dated 20-2-1979 and clarity made by F.D. letter No.EXP-1086-2460-Z-1 Dated 12-12-1986, any post which remains vacant for three or more than three years after its creation, it stands abolished automatically. The post of the Chief Ad. Officer was created by the G.P.C.B. on 4-10-90 and petitioner was promoted on this post by the Board on 24-6-1996 so, in accordance with aforesaid provisions of the F.D. Resolution and letter, there was not any existence of the post of the C.A.O. So the question Page 30 of 62 Downloaded on : Mon Jun 13 21:07:32 IST 2022 C/SCA/2087/2005 CAV JUDGMENT DATED: 10/06/2022 of the permanent post on permanent basis does not arise.

8. With reference to Para 10 of the petition, it is submitted that taking into account, the facts narrated in the letter of Forest and Environment Department dated 13-8-2004, it is crystal clear that the G.P.C.B. did not follow any due procedure of Promotion in accordance with the law, the rest of things pertain to the G.P.C.B.

9. With reference to Para 11 of the petition, it is submitted that it is true that the F&ED vide its letter dated 7-2-1990 gave approval for appointment of Shri D.J. Zala, as Chief Administrative Officer. But this letter is also crystal clear that it was a temporary phenomenon till further suitable arrangement was made. This has been accepted by the petitioner also in his petition. Moreover, this matter has nothing to do with the subsequent development of the post of C.A.O. The rest of the matter of this para pertains to the G.P.C.B.

10. With reference to Para 12 of the petition, it is submitted that mostly pertains to the G.P.C.B. the concluding part especially the averment by the petitioner that the Chairman of G.P.C.B. was empowered to promote the petitioner without sanction is not correct in view of what has been narrated in the preceding paras.

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11. With reference to Para 13 of the petition, it is submitted that in this regard, it is to state that, these regulations in the form of the resolution dated 20-2-1979 and the letter dated 12/12/1986 of the Finance Department are still in the force and they are applicable to the Board. For the rest of the posts, i.e. with respect to the Annexure-'S', it is to state that the State Government was not in any knowledge of such posts. The case of the petitioner came to the notice of the Government only through the official application dated 2-7-1998 presented to the F&ED by the President of the Employees Association of the G.P.C.B. With regard to the letter of G.P.C.B., dated 17-11-2003, it is to state that, as mentioned in preceding paras, the Government orders dated 20- 2-1979 and 12-12-1986 were there and these orders were meant for economy which can be perused very clearly. Even F.D. Resolution dated 28-10-1991 regarding economy in Administration was also violated by the Board. So there was clear violation of all these resolutions."

8.2 Relying upon the aforesaid averments it was submitted that the petition is required to be dismissed as no right much-less any fundamental right of the petitioner is violated by the impugned orders of reversion passed by respondent No.2 GPCB.

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C/SCA/2087/2005 CAV JUDGMENT DATED: 10/06/2022 8.3 In support of his submission learned AGP Mr. Antani relied upon the decision of the Hon'ble Supreme Court in case of Sant Ram Sharma vs. State of Rajasthan and others reported in AIR 1967 SC 1910 wherein the Apex Court has held as under:

"7. We proceed to consider the next contention of Mr. N.C. Chatterjee that in the absence of any statutory rules governing promotions to selection grade posts the Government cannot issue administrative instructions and such administrative instructions cannot impose any restrictions not found in the Rules already framed. We are unable to accept this argument as correct. It is true that there is no specific provision in the Rules laying down the principle of promotion of junior or senior grade officers to selection grade posts. But that does not mean that till statutory rules are framed in this behalf the Government cannot issue administrative instructions regarding the principle to be followed in promotions of the officers concerned to selection grade posts. It is true that Government cannot amend or supersede statutory rules by administrative instructions, but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue Page 33 of 62 Downloaded on : Mon Jun 13 21:07:32 IST 2022 C/SCA/2087/2005 CAV JUDGMENT DATED: 10/06/2022 instructions not inconsistent with the rules already framed."

8.4 It was therefore submitted that in absence of any Rule on any particular point Government can fill up the gaps and supplement the Rules and issue instructions not inconsistent with the Rules already framed.

8.5 It was pointed out that the resolution of 1979 is not in violation of any of the Rules as canvassed on behalf of the petitioner but it is only to supplement the Rules.

8.6 Reliance was placed on the decision of the Apex Court in case of Lalit Mohan Deb and others vs. Union of India and ors reported in (1973) 3 SCC 862 to submit that it is for the administration to sanction the post and it would not be possible for a Court to direct that the scale be revised. It was pointed out that the absence of statutory Rules regulating the selection is no bar to the Administration giving instructions regarding the promotion to higher post as Page 34 of 62 Downloaded on : Mon Jun 13 21:07:32 IST 2022 C/SCA/2087/2005 CAV JUDGMENT DATED: 10/06/2022 long as such instructions are not inconsistent with any Rule on the subject.

8.7 Learned AGP Mr. Antani referred to the decision in case of Chandigrah Administration and anr vs Jagjit Singh and anr reported in (1995) 1 SCC 745 wherein the Apex Court has held as under:

"8. We are of the opinion that the basis or the principle, if it can be called one, on which the writ petition has been allowed by the High Court is unsustainable in law and indefensible in principle. Since we have come across many such instances, we think it necessary to deal with such pleas at a little length. Generally speaking, the mere fact that the respondent authority has passed a particular order in the case of another person similarly situated can never be the ground for issuing a writ in favour of the petitioner on the plea of discrimination. The order in favour of the other person might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner If the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the Page 35 of 62 Downloaded on : Mon Jun 13 21:07:32 IST 2022 C/SCA/2087/2005 CAV JUDGMENT DATED: 10/06/2022 respondent authority to repeat the illegality or to pass another unwarranted order. The extraordinary and discretionary power of the High Court cannot be exercised for such a purpose. Merely because the respondent authority has passed one illegal/unwarranted order, it does not entitle the High Court to compel the authority to repeat that illegality over again and again. The illegal/unwarranted action must be corrected, if it can be done according to law indeed, wherever it is possible, the Court should direct the appropriate authority to correct such wrong orders in accordance with law but even if it cannot be corrected, it is difficult to see how it can be made a basis for its repetition. By refusing to direct the respondent authority to repeat the illegality, the Court is not condoning the earlier illegal act/order nor can such illegal order constitute the basis for a legitimate complaint of discrimination. Giving effect to such pleas would be prejudicial to the interests of law and will do incalculable mischief to public interest. It will be a negation of law and the rule of law. Of course, if in case the order in favour of the other person is found to be a lawful and justified one it can be followed and a similar relief can be given to the petitioner if it is found that the petitioners' case is similar to the other persons' case. But then why examine another person's case in his absence rather than examining the case of the petitioner who is present before Page 36 of 62 Downloaded on : Mon Jun 13 21:07:32 IST 2022 C/SCA/2087/2005 CAV JUDGMENT DATED: 10/06/2022 the Court and seeking the relief. Is it not more appropriate and convenient to examine the entitlement of the petitioner before the Court to the relief asked for in the facts and circumstances of his case than to enquire into the correctness of the order made or action taken in another person's case, which other person is not before the case nor is his case. In our considered opinion, such a course barring exceptional situations would neither be advisable nor desirable. In other words, the High Court cannot ignore the law and the well-accepted norms governing the writ jurisdiction and say that because in one case a particular order has been passed or a particular action has been taken, the same must be repeated irrespective of the fact whether such an order or action is contrary to law or otherwise. Each case must be decided on its own merits, factual and legal, in accordance with relevant legal principles. The orders and actions of the authorities cannot be equated to the judgments of the Supreme Court and High Courts nor can they be elevated to the level of the precedents, as understood in the judicial world. (What is the position in the case of orders passed by authorities in exercise of their quasi-judicial power, we express no opinion. That can be dealt with when a proper case arises."

8.8 Relying upon the above observations of the Apex Court it was Page 37 of 62 Downloaded on : Mon Jun 13 21:07:32 IST 2022 C/SCA/2087/2005 CAV JUDGMENT DATED: 10/06/2022 submitted that the High Court cannot ignore the law and well accepted norms governing the writ jurisdiction and say that because in one case a particular order has been passed or a particular action has been taken, the same must be repeated irrespective of the fact whether such an order or action is contrary to law or otherwise. It was submitted that each case has to be decided on its own merits, factual and legal, in accordance with relevant legal principles and the orders and actions of the authorities cannot be equated so as to form a precedent. It was therefore submitted that as the State Government has not granted sanction to the post of Chief Administrative Officer, respondent No.2 GPCB has rightly passed the order of reversion in the case of the petitioner.

8.9 Learned AGP Mr. Antani also submitted that insofar as the Government Resolution dated 06.09.2000 challenged by the petitioner in Special Civil Application 19803 of 2005 is concerned, the same is explained in the affidavit-in- Page 38 of 62 Downloaded on : Mon Jun 13 21:07:32 IST 2022 C/SCA/2087/2005 CAV JUDGMENT DATED: 10/06/2022 reply filed on behalf of respondent No.1- State of Gujarat as under:

"5. I say and submit that the Gujarat Pollution Control Board is working under the Forest and Environment Department, Sachivalaya, Gandhinagar.

6. I say and submit that K.M. Patel, petitioner is the employee of the Board and recruitment of Shri Patel was made by the Board.

7. I say and submit that the Gujarat Pollution Control Board is a public sector undertaking (PSU). The State Government in Finance Department vide its circulars dated 18/2/1980, 7/4/1982, 2/8/1984, 7/9/1991 and 13/2/1995 and 26/11/1996, has issued instructions which state that the public sector undertakings should get prior approval of the Government in cases of revision of scales of pay and other conditions of services of their employees. These instructions are applicable to the Gujarat Pollution Control Board also and the GPCB is required to get prior approval of the Government before revising pay scales etc. of all the cadres of the Board.

8. I say and submit that whenever the pay scales of the State Government employees are revised by the State Government, the benefits of pay revisions. are also granted to the Board staff in consultation with the Finance Department. In this context, it is further stated here that in the year 1986 there had been a revision of Page 39 of 62 Downloaded on : Mon Jun 13 21:07:32 IST 2022 C/SCA/2087/2005 CAV JUDGMENT DATED: 10/06/2022 pay of the Government employees, in the state. The Finance Department vide its letter no.

JNV/1687/2464/A dated 16/6/1987, had issued direction that the 1986 pay revision in public sector undertakings would not apply automatically and the PSUs had to submit their pay revision proposals to the Finance Department through their concerned Department. A Copy of the Government Resolution dated 16/6/1987, is annexed herewith and marked as Annexure-R- 1, to this affidavit in reply. In response to these instructions the Gujarat Pollution Control Board had submitted a composite pay revision proposal of its various cadres to the forest & environment Department in the Month of July, 1987. In the said proposal of the Gujarat Pollution Control Board, the Board had also included the cadres of Administrative Officer and Account Officer. Further in the said proposal the existing pay scales (i.e. the pay scales before the 1986 revision) of these two cadres i.e. Administrative Officer and Account Officers were shown as Rs. 900-1500 and 700-1500 respectively. As pointed out in that proposal, the post of administrative officer was vacant in the Board. The forest and environment Department had submitted the whole pay revision proposal to the Finance Department. The Finance Department was not agreeable with the forest and environment Department for some of the cadres. For the cadre of Administrative Officer, the finance Department did not agree to give the revised pay scale of Rs. 2500-4200. Finally, the Finance Department granted the revised pay scale of RS. 2200-4200 to each of the cadre of Administrative Page 40 of 62 Downloaded on : Mon Jun 13 21:07:32 IST 2022 C/SCA/2087/2005 CAV JUDGMENT DATED: 10/06/2022 Officer as well as Account Officer. After getting the approval from the Finance Department, the forest and environment Department issued orders vide G.R.NO. PCB/1087/784/28/P dated 7/9/1987 to the effect that from dated 1/1/1986, the pay scales of both the cadres i.e. the cadre of Administrative Officer as well as Account Officer should be 2200-4200. Thus, in the 1986's pay revision, the cadre of Administrative Officer was given pay scale of Rs. 2200-4200 by the State Government and not the pay scale of Rs. 2500-4200.

9. I say and submit that like wise 1986, there had been one more pay revision exercise in 1996, and the effect of this revision was from the date 1/1/1996. This time also the forest and environment Department had submitted the GPCB's staffs pay revision proposal to the Finance Department in the year 1998. In this pay, revision proposal the details of existing pay and the proposed revision was mentioned as under by the Gujarat Pollution Control Board.




     Name of Post Existing           Pay       Revised
                  Scale                     (Propal) pay
                                                scale
     Administrati 2500-4200                8500-14106
     ve Officer
     Account       2500-4200               8500-14100
     Officer




                     Page 41 of 62

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It is a fact that in consultation and after the approval of the Finance Department the Forest and Environment Department issued orders vide GR dated 20/7/1998, to the effect that Administrative Officer be granted revised pay scale of Rs. 8500-14100 as against the existing pay scale of Rs. 2500-4200. However, in the said GR dated 20/7/ 1998, the cadre of Account Officer was not included granting new pay scale, as its case was still under consideration with the Government. The pay revision of Account Officer's cadre was yet to be finalized by the Finance Department. Subsequently, thereafter the forest and environment Department had issued orders vide GR no. PCB/1098/866/P dated 5/3/1999, revising the pay scales of Account Officer as Rs. 8000- 14050, after the Finance Department's approval.

10. It is submitted that however, after such revision of pay of both the cadres, it was noticed by the forest and environment Department that in the recruitment regulation to provide for regulating recruitment to the various posts under the Gujarat Pollution Control Board, the pay scale of both the cadres ie. Administrative Officer as well as Account Officer were shown Rs. 8000-14050 to each one. Moreover, while finalizing the revised pay scale to the administrative officer, the pay scale granted in 1986 Le. scale of Rs. 9200-4200 was not taken in the consideration, by mistake the scale of Rs. 2500-4200 was considered and that way it was required Page 42 of 62 Downloaded on : Mon Jun 13 21:07:32 IST 2022 C/SCA/2087/2005 CAV JUDGMENT DATED: 10/06/2022 that the whole matter of 1996's Administrative Officers scale was to reconsidered in these contexts. Therefore, with a view to avoid any type of anomaly or to avoid threaten injustice to similar types of the cadres of Board, the Forest and Environment Department had moved to the Finance Department just immediately after the pay revision of Account Officers cadre. The Finance Department had made some observation on the issue. As cadre of the Administrative officer was granted pay scale of Rs. 2200-4200, by the State Government in the 1986's pay revision and as the pay scale of Rs. 2500-42000 to the Administrative Officer. Therefore, in the reconsideration, it was decided that for Administrative officer, the 1996's revision should be carried out on the basis of 2200-4200 only and the relative revised pay scale should be Rs. 8000- 14050 And after getting such verdict from the Finance Department, the forest and Environment Department, vide corrigendum orders no. PCB/ 1098/866/P1 dated 6/9/2000, had sanctioned pay scale of Rs 8000-14050 instead of Rs. 8500-14100, which granted vide orders dated 20/7/1998, to the cadre of Administrative Officer."

8.10 It was submitted that the State Government did not sanction the pay scale of Rs. 2500-4200 and pay scale at the relevant point of time was 2200-4200 which is equivalent to pay scale of 8000-14050. It was submitted that the pay scale sanctioned and granted by respondent No.2 Page 43 of 62 Downloaded on : Mon Jun 13 21:07:32 IST 2022 C/SCA/2087/2005 CAV JUDGMENT DATED: 10/06/2022 without the prior approval of the State Government cannot be considered for revising pay scale for the post of Administrative Officer and therefore, the pay scale of Rs. 8000-14050 for the post of Administrative Officer is in consonance with the instructions issued by the Finance Department from time to time and corrigendum order dated 06.09.2000 is just and valid.

9. Having heard learned advocates for the respective parties and having considered rival submissions as well as the documents on record, three questions raised by the Division Bench in Letters Patent Appeal No. 655 of 2005 are required to be considered in the facts of the case.

10. Before consideration of the questions posed by the Division Bench in the order passed in Letters Patent Appeal, it would be germane to refer to the undisputed facts and the relevant provisions of the Act, 1974 and the Rules, 1976.

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11. The petitioner was appointed on the post of Administrative Officer of the respondent No.2 GPCB in the year 1988 on probation basis and was confirmed in the year 1989. Thereafter the petitioner applied for promotion to the post of Chief Administrative Officer which was created by respondent No.2 GPCB in the year 1990 and was granted such promotion by order dated 24.06.1996.

12. The allegations leveled against the petitioner for fraud and misrepresentation to get the promotion by respondent No.2 GPCB in the affidavit-in-reply filed in Special Civil Application No. 2087 of 2005 is also found to be without any basis as the only reliance is placed on the report of Ms. P.S.Shah whereas the preliminary inquiry report dated 19.05.2005 of Mr. H.H.Joshi is neither referred to nor placed on record by the respondent No.2 GPCB but the same was produced on record by the petitioner. In the report of Mr. H.H.Joshi, it was concluded that no further inquiry is necessary for missing two files in absence of any evidence Page 45 of 62 Downloaded on : Mon Jun 13 21:07:32 IST 2022 C/SCA/2087/2005 CAV JUDGMENT DATED: 10/06/2022 against the petitioner or any other officer of the respondent No.2 GPCB. It appears that no further inquiry is held against the petitioner or any other officer of respondent No.2 GPCB pursuant to the preliminary inquiry report submitted by Mr. H.H.Joshi on 19.05.2005.

13. Relevant sections of the Act, 1974 read as under:

"11A. Delegation of Powers to Chairman:-

The Chairman of a Board shall exercise such powers and perform such duties as may be prescribed or as may, from time to time, be delegated to him by the Board.

"12. Member-secretary and officers and other employees of Board.--

[(3A) The method of recruitment and the terms and conditions of service (including the scales of pay) of the officers (other than the member-secretary) and other employees of the Central Board or a State Board shall be such as may be determined by regulations made by the Central Board or, as the case may be, by the State Board:

Provided that no regulation made under this sub-section shall take effect unless,--

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(a) in the case of a regulation made by the Central Board, it is approved by the Central Government; and

(b) in the case of a regulation made by a State Board, it is approved by the State Government."

14. Rules 15 of the Rules, 1976 reads as under:

"15. Powers and duties of Chairman-(1) The Chairman shall superintend the functions of the State Board.

(2) The power of confirmation and transfer of an officer or employee of the Board shall be exercised by the Chairman.

(3) The State Board shall not create a post the maximum scale of which exceeds Rs. 1600 per month nor shall it make any appointment to such post except with the prior sanction of the State Government."

15. Sub-rule (3) of Rule 15 was amended by notification dated 05.10.1988 whereby the limit of Rs. 1600/- p.m is increased to Rs. 4500/-p.m. Page 47 of 62 Downloaded on : Mon Jun 13 21:07:32 IST 2022 C/SCA/2087/2005 CAV JUDGMENT DATED: 10/06/2022

16. Some relevant regulations of Regulation, 1999 read as under:

"Regulation No.1:- Title These regulations may be called "Gujarat Pollution Control Board (Recruitment) Regulations,1999".

"Regulation No.3:- Applicability These Regulations shall apply to all recruitment made to the posts in the Board as listed in Annexure-I after the date of their coming into force.

Regulation No.4- Definitions Unless the context requires otherwise the following words and expressions shall have the meaning as assigned to them herein below:

7. Chairman.- "Chairman" means the chairman of the Board and in relation to any powers exercisable by him includes any officer authorized by him to exercise his relevant powers and functions.

17. Post.- "Post Annexure-I. Sr. Designation No Technical Wing 1 Senior Environmental C/SCA/2087/2005 Engineer 2 Environmental Engineer 3 Deputy Environmental Engineer 4 Assistant Engineer Scientific Wing 5 Senior Environmental Scientist 6 Senior Scientific Office 7 Scientific Officer 8 Senior Scientific Assistant 9 Junior Scientific Assistant Administration Wing 10 Administrative Officer 11 Accounts Officer 12 Junior Officer 13 Deputy Superintendent 14 Senior Clerk 15 Clerk-cum-Typist Legal Wing 16 Law Officer 17 Assistant Law Officer Computer Wing 18 Computer Programmer 19 Computer Operator 20 Data Entry Operator General Wing 21 Public Relation Officer 22 English Stenographer 23 Gujarati Stenographer 24 Senior Draftsman 25 Draftsman 26 English Stenographer 27 Gujarati Stenographer Gr.II C/SCA/2087/2005 28 Librarian 29 Instrument Mechanic 30 English Stenographer Gr. III 31 Gujarati Stenographer Gr.III 32 Assistant Librarian 33 Wireman 34 Driver 35 Havaldar 36 Naik 37 Peon-cum-chowkidar 38 Sweeper means post included in Annexure-I Pay Scale Rs. Class of the Post 12000-375-16500 I Page 48 of 62 Downloaded on : Mon Jun 13 21:07:32 IST 2022 CAV JUDGMENT DATED: 10/06/2022 10000-325-15200 I 8000-275-13500 II Environmental 6500-200-10500 II 12000-375-16500 I 10000-325-15200 I 8000-275-13500 II 5500-175-9000 III 4500-125-7000 III 8000-275-14050 I 8000-275-14050 I 6500-200-10500 II 5500-175-9000 III 4000-100-6000 III 3050-75-3950-80-4590 III 10000-325-15200 I 8000-275-13500 II 5500-175-9000 III 1400-40-1800-EB-50- III 2300 950-20-1150-EB-25-1500 III 8000-275-13500 II Gr.I 6500-200-10500 II Gr.I 6500-200-10500 II 5500-175-9000 III 5000-150-8000 III Gr.II 5000-150-8000 III 5000-150-8000 III Page 49 of 62 Downloaded on : Mon Jun 13 21:07:32 IST 2022 CAV JUDGMENT DATED: 10/06/2022 1400-40-1800-EB-50- III 2300 1400-40-1800-EB-50- III 2300 4000-100-6000 III 4000-100-6000 III 1200-30-3950-80-4590 III 3050-75-3950-80-4590 III 3050-75-3950-80-4590 III 2650-65-3300-70-4000 IV 2610-60-3150-65-3540 IV 2550-55-2660-60-3200 IV 2550-55-2660-60-3200 IV

17. On perusal of the Annexure-I as per the list prescribed in the list of Post as per the Regulation No.3 there is no post of Chief Administrative Officer whereas the Administrative Officer appears at Serial No. 10 in the pay scale of 8000-14050 for which prescribed pay scale is 8000-275- 14050.

18. Reliance is placed on behalf of respondent No.2 GPCB on the Government Resolutions dated 20.02.1979, 12.12.1986 and 05.01.1992 prescribing restriction upon the recruitment or promotion are made applicable to the post of Chief Page 50 of 62 Downloaded on : Mon Jun 13 21:07:32 IST 2022 C/SCA/2087/2005 CAV JUDGMENT DATED: 10/06/2022 Administrative Officer which was created by respondent No.2 GPCB vide resolution dated 04.10.1990 confirming the decision taken in the Administrative Committee in the pay scale of Rs. 3000-4500 which was within the power and function of the Chairman as per Rule 15 of the Rules 1976. At the relevant time the Recruitment Rules 1999 were not framed and therefore in 105th meeting held on 23.01.1996 the Chairman was authorized to grant promotion and accordingly the petitioner was promoted w.e.f. 24.06.1996 by the Administrative Committee of respondent-Board consisting of the Chairman of the Board respondent No.2-GPCB, Director of Municipality and Member Secretary of respondent No.2 GPCB. The petitioner continued to discharge his function of Chief Administrative Officer from 1996 till 2004. The petitioner has raised the contention that subordinate legislation viz. the Government Resolutions cannot override the provisions of the Act and the Rules. The Apex Court in case of Guman Singh vs. State of Rajasthan and others (supra) has held as under:

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C/SCA/2087/2005 CAV JUDGMENT DATED: 10/06/2022 "53. The object of the circular may be to bring about uniformity in the award of marks. But the directions contained therein do' offend the rules. This is not a case of the government filling up the gaps or of giving executive instructions on matters not provided for by or not inconsistent with the rules. 'Me learned Judges of the Division Bench of the High Court, have by and large, upheld the validity of the marking system as well as the other instructions contained in the circular of 1966 on the ground that the marking system as pointed out by the State has been in vogue from 1960, on the basis of a previous circular, dated August 31, 1960 issued by the State Government. Reliance placed upon this circular of 1960 by the High Court, in our opinion, is not justified. We have gone through the circular of 1960 which is No. F. 1(6) Apptts. (D)160 dated 31-

8-1960. That circular was issued by the State to clarify the misapprehension that appears to have been caused in the application, for promotion of the principle of merit-cum-seniority or seniority-cum-merit. For the purpose of having uniformity, the State Government had laid down certain principles in the said circular to be borne in mind by the Promotion Committees. No doubt there is a marking system indicated therein. But there are two features which distinguish the circular of 1960 from that of the 1966 circular. In paragraph 3 of the former circular, it is specifically laid down that the principles mentioned therein are only Page 52 of 62 Downloaded on : Mon Jun 13 21:07:32 IST 2022 C/SCA/2087/2005 CAV JUDGMENT DATED: 10/06/2022 in the nature of executive instructions to be kept in view by the Committees when making promotions. It is made clear that those Committees should, however, exercise their own discretion while applying the above principles in view of the fact that occasionally the Confidential Rolls may not have been written with full sense of responsibility. Moreover, some of the rules permit interview before selection and in such cases the Selection Committee will have to assess suitability of the officer as a result of the interview also." Under the circular of 1966, we have already indicated, no such discretion is left to the Selection or Promotion Committees to adopt any method other than that indicated in the circular. In fact it is emphasised that the statutory service rules and the instructions contained in the circular are to be treated as a complete code by the Committees. Another point to be noted is that in 1960 the question of promotion on the basis of merit alone had no place. That principle was adopted only, as pointed out by us earlier, in1965 which led to the amendment of the rules. Therefore, the principles mentioned in the circular of 1960 cannot be relied on when considering the validity of the present circular, when promotion by merit alone has been recognised by the rules from 1965. We have already indicated that the instructions in the 1966 circular contravene the Rules. Therefore, we are of the opinion that the circular dated 27-8-1966 is bad and accordingly it is Page 53 of 62 Downloaded on : Mon Jun 13 21:07:32 IST 2022 C/SCA/2087/2005 CAV JUDGMENT DATED: 10/06/2022 struck down. We make it clear that we express no opinion on the validity or otherwise of the cir- cular of 31-8- 1960. We have only referred to that circular to show that the High Court has committed an error in placing reliance on the same."

19. In view of the above, this is not a case of the Government filling up the gaps or of giving executive instructions on matters not provided for by or not inconsistent with the Rules. The Rule 15 read with Section 12(3A) clearly empowers respondent No.2-GPCB to create post up to the pay scale of Rs. 4500 which is created. Therefore, it cannot be said that such post would cease to exist if not filled for more than 3 years applying the Government Resolutions dated 12.12.1986 or 20.02.1979.

20. With regard to contention that the State Government has not granted sanction to the post of Chief Administrative Officer is also without any basis as the post of Chief Administrative Officer created by respondent No.2-GPCB was within the powers of the Chairman as per the Rule 15 of the Rules 1976.

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21. Section 11A of the Act, 1974 stipulates delegation of powers to Chairman authorizing the Chairman to exercise such powers and perform such duties as may be prescribed or as may, from time to time, be delegated to him by the Board. Section 12 of the Act, 1974 provides for the terms and conditions of service of Member- Secretary and Officers and other employees of respondent No.2 GPCB. Sub section (3A) of Section 12 of the Act, 1974 provides that the method of recruitment and the terms and conditions of service including the scales of pay of the officers other than the member-secretary and other employees of the respondent No.2-Board shall be such as may be determined by the Regulations made by the respondent No.2- GPCB. Clause (b) of the Proviso to sub- section (3A) of the Section 12 of the Act 1974 further provides that no regulation made under the said sub-section shall take effect unless it is approved by the State Government.

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22. It is pertinent to note that when the petitioner was promoted as Chief Administrative Officer in the year 1996, no Regulations were framed by respondent No.2-GPCB under sub-section (3A) of section 12 of the Act, 1974 and therefore there was no need for taking any prior approval of the State Government more particularly, when respondent No.2 GPCB promoted the petitioner as Chief Administrative Officer by passing a resolution as per the powers conferred upon the Chairman under section 11A of the Act, 1974 read with Rule 15 of the Rules, 1976.

23. In such circumstances, subsequent framing of Regulation, 1999 cannot be applied retrospectively to the promotion granted by respondent NO.2 GPCB to the petitioner. The contentions raised on behalf of respondents that the State Government did not grant any sanction to the post of Chief Administrative Officer is also not tenable because the resolutions of 1979, 1986 and 1992 cannot be made applicable when the post of Chief Administrative Page 56 of 62 Downloaded on : Mon Jun 13 21:07:32 IST 2022 C/SCA/2087/2005 CAV JUDGMENT DATED: 10/06/2022 Officer was already created by respondent No.2-GPCB in the year 1990 under Rule 15 of the Rules, 1976 as such resolutions are passed by the State Government pursuant to the economic measures undertaken and therefore the same cannot be made applicable to the respondent No.2-Board which is a Statutory Board created under the provisions of the Act, 1974. Section 2(a) of the Act, 1974 defines "Board" to mean Central Board or the State Board and section 2(h) of the Act, 1974 defines "State Board" to mean a State Pollution Control Board constituted under section 4. The respondent No.2-GPCB is formed under section 4 of the Act, 1974 and therefore it is an independent authority having powers conferred under the Act of 1974. Therefore, the contention raised on behalf of respondent authorities that the post of Chief Administrative Officer was subject to sanction by the State Government is not sustainable as such post is created pursuant tot he powers conferred under section 11A of the Act, 1974 read with Rules 15 of the Rules 1976.

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24. It is also emerging from the record that the respondent No.2-GPCB has taken action of reversion of the petitioner to the post of Administrative Officer from that of the Chief Administrative Officer almost after eight years of his promotion applying the Government Resolutions dated 20.02.1979, 12.12.1986 and 05.01.1992 and further relying upon Regulation, 1999 for the promotion of the petitioner which was made in the year 1996 could not have been reversed. Thus, the respondents authorities have committed grave error in passing impugned order of reversion of the petitioner.

25. In view of the above finding that the petitioner was illegally reverted after eight years of his promotion, the question with regard to discrimination raised by the petitioner is not considered as held by the Apex Court in case of Chandigarh Admn. v. Jagjit Singh(supra).

26. The contention raised on behalf of the respondents that the petitioner had manipulated his promotion by not making Page 58 of 62 Downloaded on : Mon Jun 13 21:07:32 IST 2022 C/SCA/2087/2005 CAV JUDGMENT DATED: 10/06/2022 available files relating to his promotion to the Government is also not tenable in view of the inquiry report of Mr. H.H.Joshi which was not referred to or placed on record by the respondent along with affidavit. It is true that the said report is of the year 2009. However, it was the duty of the respondent authorities to place such report on record as it goes to the root of the case with regard to the contention raised on behalf of the respondent of the conduct of the petitioner relying upon the report of Ms.P.S.Shah as narrated in the averments of the affidavit in reply. Mr. H.H.Joshi was appointed as an Inquiry Officer to conduct a preliminary inquiry as to whether further inquiry is required with regard to files of the petitioner which were missing at the time of consideration of his promotion to the post of Chief Administrative Officer in the year 1996. As per the preliminary inquiry report dated 19.05.2009 Mr. H.H.Joshi after considering the statements of Shri K.D.Rathod- retired Principal Secretary, Shri B.F.Salunia-retired Principal Page 59 of 62 Downloaded on : Mon Jun 13 21:07:32 IST 2022 C/SCA/2087/2005 CAV JUDGMENT DATED: 10/06/2022 Secretary, Mr. D.M.Parmar- Accounts Officer, Mr. Alkesh Vora-Deputy Superintendent, Shri R.K.Kalyan-Senior Clerk and and Mr.R.R.Trivedi-Deputy Superintendent and the petitioner as well as the original files placed before him by respondent No.2-GPCB while appointing him as Inquiry Officer vide letter dated 21.11.2008, it is found that neither the petitioner nor the officer is involved for deliberate allegation of missing files as there is no evidence to that effect and the report of Ms. P.S.Shah which was relied upon by the respondent No.2 in the affidavit-in-reply filed before this Court was also considered in the said report. It was found that Mr. K.D.Rathod, who was Member-Secretary at the relevant time was aware about the missing files since 1994 and it is the petitioner who provided all the other relevant documents to reconstruct the file P-225(2) and after considering the relevant documents as well as service record of the petitioner, the petitioner was promoted to the post of Chief Administrative Officer by the joint decision of the Personnel Committee of Page 60 of 62 Downloaded on : Mon Jun 13 21:07:32 IST 2022 C/SCA/2087/2005 CAV JUDGMENT DATED: 10/06/2022 respondent No.2-Board in the meeting held on 24.06.1996.

27. Therefore, the allegations made by respondents against the petitioner for misrepresentation or fraud is also not tenable in the facts of the case and in view of the preliminary inquiry report dated 19.05.2009 submitted by Mr. H.H.Joshi coupled with the fact that no further inquiry is held by respondent No.2- Board thereafter.

28. In view of my finding that the reversion of the petitioner was illegal, the question of applicability of the pay scale of Rs. 8500-14050 claimed by the petitioner for the post of Administrative Officer in Special Civil Application No. 19803 of 2005 would become academic and therefore the same is not dealt with. Special Civil Application No. 19803 of 2005 is accordingly disposed of having become infructuous.

29. In view of the foregoing reasons, Special Civil Application No. 2087 of 2005 is Page 61 of 62 Downloaded on : Mon Jun 13 21:07:32 IST 2022 C/SCA/2087/2005 CAV JUDGMENT DATED: 10/06/2022 accordingly allowed. Respondent authorities are directed to pay the difference of pay to the petitioner from 2004 till the date of his superannuation in the year 2016 after deducting the actual payment made to the petitioner as per the pay scale of Rs. 3000-4500 which was revised from time to time within a period of eight weeks from the date of receipt of this order. The petitioner has provided calculation of the difference of arrears payable to him. However, the petitioner is also directed to submit such calculation before respondent No.2 within a period of two weeks from the date of receipt of this order along with representation to pay arrears as per the directions issued by this Court.

30. Rule is made absolute to the aforesaid extent with no order as to costs.

(BHARGAV D. KARIA, J) JYOTI V. JANI Page 62 of 62 Downloaded on : Mon Jun 13 21:07:32 IST 2022

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