Gujarat High Court
Rameshkumar Pravinbhai Babaria vs State Of Gujarat on 17 June, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/11546/2000 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 11546 of 2000
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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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 ?
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RAMESHKUMAR PRAVINBHAI BABARIA....Petitioner(s)
Versus
STATE OF GUJARAT....Respondent(s)
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Appearance:
MR SATYAM Y CHHAYA, ADVOCATE for the Petitioner(s) No. 1
GOVERNMENT PLEADER for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 17/06/2016
ORAL JUDGMENT
1. By this writ application under Article 226 of the Constitution of India, the petitioner, a retired Additional Page 1 of 6 HC-NIC Page 1 of 6 Created On Wed Jun 22 01:42:26 IST 2016 C/SCA/11546/2000 JUDGMENT Assistant Engineer, Class III, has prayed for the following reliefs;
"(A) Declaring that the petitioner is entitled for promotion to the post of Deputy Executive Engineer from 30-6-1990, and is also entitled him to get all the consequential benefits like arrears of salary, dues of salary, seniority position, further promotion and all other benefits;
(B) Quashing and setting aside the impugned order of penalty dated 12-1-1999, which was rectified by order dated 15-7-1999, and the impugned order rejecting petitioner's representation dated 28-6-2000, as they being arbitrary, capricious, mala fide and violative of Articles 14 and 16 of the Constitution of India.
(C ) Directing the respondent, their agents and servants to forthwith consider the petitioner for promotion to the post of Dy. Executive Engineer with effect from 30-6- 1990 and grant him all the consequential benefits like arrears of pay, fixation of pay scale, seniority and further promotion and all other consequential benefits;
(D) Directing the respondent, their agents and servants to fix the responsibility of the concerned officers who are responsible for depriving the petitioner of his chance of being promoted to the post of Dy. Executive Engineer with effect from the date on which his juniors were promoted.
(E) Any other and further reliefs as deemed just and proper by granted."
2. It is the case of the petitioner that he is a member of the scheduled caste. He joined the service in the respondent- department as an Additional Assistant Engineer vide appointment order dated 19.10.1978. His grievance is that he has not been considered for promotion even once.
3. I take notice of the fact that the petitioner attained Page 2 of 6 HC-NIC Page 2 of 6 Created On Wed Jun 22 01:42:26 IST 2016 C/SCA/11546/2000 JUDGMENT superannuation in 2015, i.e. during the pendency of this writ application. He retired as an Additional Assistant Engineer, Class III.
4. On behalf of the State Government, an affidavit-in-reply has been filed, duly affirmed by the Under Secretary, inter alia, stating as under;
"5. I further say and submit that as per his turn in the seniority list of Add. Asst. Engineer (c) the petitioner was for the first time considered for promotion to the post of Deputy Executive Engineer © in P.S.L. as on 30.6.1990 along with other S.C.Addl. Asstt. Engineer (c) as per reservation policy. Since the petitioner was facing a departmental enquiry in which he was served a charge sheet on 30.12.1989, the recommendation of the Departmental promotion Committee was kept in the 'sealed cover' in accordance with the Government Resolution GAD No. SLT-1080-895-G(2) dated 23.9.1981 which his junior A.A.Es(C) belong to S.C. category who found fit for promotion were promoted. Hence it is not true that the petitioner was entitled for promotion in the year 1992 when his junior have been promoted. The Government, there after prepared a select list of Asstt. Engineer/Addl.Asst. Engineer/Overseer(C) fit for promotion to the post of Deputy Executive Engineer (c) as on 30/6/1994 in which the petitioner along with other candidates was also considered for adhoc promotion as per Government Resolution, GAD No. SLT-1080-895-G(2) dated 2.4.1983 and 30.10.1993. But in the meanwhile, the Government had received several representations from Additional Assistant Engineers of S.C. category and other S.C.M.L. as to fill in the backlog vacancies of the S.C. Candidates in the cadre of Deputy Executive Engineer (c) by ignoring the internal ration of 7:4:1 of A.E./AAE/Overseer (c) respectively and to promote 10 more Additional Assistant Engineer(c) of S.C. category. These representations were under active consideration of Government since promotions were made from P.S.L. as on 30.6.0988 and the Government decided to promote 10 more Additional Assistant Engineer (c) of S.C. to the post of Deputy Executive Engineer (c) to fill in the vacancies of S.C. in the cadre of Deputy Executive Engineer as a special case and to adjust this Additional Page 3 of 6 HC-NIC Page 3 of 6 Created On Wed Jun 22 01:42:26 IST 2016 C/SCA/11546/2000 JUDGMENT Promotion against the posts allocable to the Additional Assistant Engineer (c) of S.C. in the next select list to be prepared in the future. Due to this decision additional Assistant Engineer (c) of S.C. promoted earlier were adjusted against the post of allocable to Additional Assistant Engineer (c) of S.C. Category in the P.S.L. as on 30.6.1994 and no further posts were allocable to this category i.e. AAE (Civil) SC category. Hence, the petitioner was not considered for adhoc promotion to the post of Deputy Executive Engineer © in the P.S.L. as on 30.6.1994.
6. I further say and submit that the petitioner was awarded minor penalty of withholding increment for a period of six months without future effective vide Government order No.Lktp/1089/37/E dated 12.1.1999 which was rectified vide Government order dated 15.7.1999 copies of orders are annexed and marked as ANNEXURE N collectively to the petition. As he was not exonerated in the pending enquiry against him, his case was required to be considered for promotion while filling up posts by promotions made after the date of order of punishment as per Para 5 & 7 of the Government in GAD Govt. Resolution No, SLT-1080-895-G(2)dated 23.9.1981. But in the meanwhile the vacancy based roster policy was changed and Govt. accepted 'post based' roster policy as per Hon'ble Supreme Court's judgement vide Government Order No. PVS-1696-878-G.4 dated 8.3.1999. I further say and submit that as per the new roster policy, the representation of S.C. Category in the cadre of Deputy Executive Engineer (c) required to be 73 D.E.E.(C) while 91 Deputy Executive Engineer (c) of S.C. were already working in the cadre of Deputy Executive Engineer (c) as on 8.3.99 and at present 87 Deputy Executive Engineer (c) of S.C.Candidate are working at present and as such the representation of SC candidates in Deputy Executive Engineer (c) is much more than the required number of reserved posts of SC in Deputy Executive Engineer (c) cadre. Therefore, at present no further post in the category of SC is required to be filled up by promotion from AE(C), AAE(C) or overseer (c) therefore, the petitioner, though at present not facing any departmental enquiry was not considered for promotion to the post of Deputy Executive Engineer © while preparing select list as on 30.6.1999. It is submitted that the averments made in Para 6 is not Page 4 of 6 HC-NIC Page 4 of 6 Created On Wed Jun 22 01:42:26 IST 2016 C/SCA/11546/2000 JUDGMENT correct. In fact as stated in Para 3 and 5 above the petitioner was for the first time taken into consideration for promotion to the post of Deputy Executive Engineer
(c) in P.S.L. as on 30.6.1990. As at that time he was facing a departmental inquiry in which he was charge sheeted vide Govt. order No. Khtp/1089-37-E.4 dated 30.12.1989, the recommendation of the Departmental Promotion Committee was kept in the 'Sealed Cover' while juniors to the petitioner who were not under any clouds & found fit for promotion, were promoted earlier. Hence it is not true that he was entitled for promotion in the year 1992. So far as S.C.A. No. 621/2000 is concerned it is stated that as per the direction in the said S.C.A. the representation of the petitioner was taken into consideration and the Government has replied the same as per the directions of the Hon'ble High Court of Gujarat.
7. In view of the facts and circumstances as stated herein above, the petition of the petitioner is required to be rejected in the interest of justice, and I also submit that the petitioner is not entitled for any of the relief as prayed for in the petition."
5. Thus, it appears from the stance of the other side and which has not been disputed that the petitioner was considered for promotion first in point of time in the year 1990. At that point of time, the DPC noted that there was a departmental inquiry pending against him. Accordingly, the sealed cover procedure was adopted.
6. Again, in 1994, the DPC considered the case of the petitioner, but at that point of time also, it noted that there was a departmental inquiry.
7. Ultimately, in the year 1999, a penalty of withholding of one increment without future effect was imposed. It also appears that the State Government, having regard to the representations received from the other engineers of the Page 5 of 6 HC-NIC Page 5 of 6 Created On Wed Jun 22 01:42:26 IST 2016 C/SCA/11546/2000 JUDGMENT scheduled caste category, had to promote ten Additional Assistant Engineers of scheduled caste to the post of the Deputy Executive Engineer for the purpose of filing in the vacancies in the Scheduled Caste in the cadre of the Deputy Executive Engineer as a special case.
8. In such circumstances, the petitioner was not considered for an ad-hoc promotion to the post of the Deputy Executive Engineer in the P.S.L as there was no post available at that point of time. In such circumstances referred to above, it is difficult for me to grant any relief to the petitioner.
9. As a result, this writ application fails and is hereby rejected. Rule is discharged.
(J.B.PARDIWALA, J.) Vahid Page 6 of 6 HC-NIC Page 6 of 6 Created On Wed Jun 22 01:42:26 IST 2016