Gujarat High Court
J.S. Gamit- Jagdishkumar Sukanjibhai ... vs State Of Gujarat on 6 March, 2018
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/13271/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 13271 of 2015
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J.S. GAMIT- JAGDISHKUMAR SUKANJIBHAI GAMIT
Versus
STATE OF GUJARAT
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Appearance:
MS DIMPLE A THAKER for the PETITIONER(s) No.
1,10,11,12,13,14,2,3,4,5,6,7,8,9
MR. D.M.DEVNANI, AGP for the RESPONDENT(s) No. 1
DS AFF.NOT FILED (N) for the RESPONDENT(s) No. 2,3
GOVERNMENT PLEADER for the RESPONDENT(s) No. 1,2
NOTICE SERVED BY DS for the RESPONDENT(s) No. 2,3
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 06/03/2018
ORAL ORDER
1. Heard Ms. Dimple Thaker learned advocate for petitioner and Mr. Devnani, learned AGP for respondent.
2. In this petition, the petitioner has prayed, inter alia, that:
"7(a) The Hon'ble Court may be pleased to issue a writ of or a writ in the nature of mandamus or any other appropriate writ, order or direction directing the Respondent State Government to consider the case of the present petitioners for Ad Hoc Promotion to the post of Superintendent Engineer as per the Seniority list dated 15.09.2004 and Government Resolution dated 30.10.1993;
(b) the Hon'ble Court may be pleased to issue a writ of or a writ in the nature of mandamus or any other appropriate writ, order or direction directing the Respondent State Government to conclude the departmental inquiry against the petitioner in 3 months."1 C/SCA/13271/2015 ORDER
3. So as to justify the relief prayed for in this petition, the petitioner has averred and stated that:
"3.1 In 1997, The petitioners herein were directly appointed to the post of the Executive Engineer. Copy of the list showing the petitioners were duly selected to the post of Executive Engineer is annexed hereto and marked Annexure A. Vide Circular dated 15.09.2004, Narmada and Water Resource Department issued a list of candidates who had been directly recruited and promoted to the post of Executive Engineer from 1.4.1986 to 31.12.2000. The candidates in the said list are listed in a Seniority List based on the date of Appointment of Candidates as Executive Engineer i.e. from 01.04.1986 to 31.12.2000. Copy of the Circular dated 15.09.2004 is annexed hereto and marked as Annexure B. 3.2 The petitioners herein are listed at different serial numbers in the list as per their seniority. Copy of the Tabular statement showing the details of the petitioners herein are annexed hereto and marked as Annexure C. 3.3 In the year 2003, another group of almost 15 candidates were appointed by Narmada Water Resource and Water Supply Department. The 15 candidates appointed in 2003 by Narmada Water Resource and Water Supply Department belonged to General Category. Copy of the list of candidate belonging to the general category recruited as Executive Engineer in the year 2003 are annexed herewith and marked as Annexure D. 3.4 The Petitioners herein state that as per the Circular dated 15.09.2004, the petitioners are prior in Seniority List and are entitled to promotion to the post of Superintendent Engineer prior to the candidates appointed in the year 2003. The petitioners herein are serving in the department since 1997.
3.5 The petitioners herein belong to Schedule Tribe. The Petitioners herein however, are charged of various charges. It would be pertinent to note that the charges against the petitioners are of trivial and frivolous. Moreover charges are general allegation more of administrative nature and not about integrity or any misappropriation of Government money. Respondent no.1 has issued show cause notices to some of the petitioners. In many of the cases, straightway charge sheets are issued on the Petitioners. A copy of the tabular statement giving details of each of the candidates with respect to the date of show cause notice, date of charge sheet and date of intimation of Department enquiry are annexed hereto and marked Annexure E collectively. For the sake of convenience and avoid the bulky records the petitioner 2 C/SCA/13271/2015 ORDER have not produced the show cause notice and the copy of chargesheet although the petitioners herein are ready and willing to supply the same as and when required. The petitioners state none of the charges have been proved against the Petitioners and the Proceedings are initiated since long against all of them. Its only in case of one petitioner the charges have been proved. Infact in many case Departmental inquiries are pending since 2 to 11 years. It would further be important to note in most of the cases, Petitioners have been issued chargesheet just a few months back more particularly just before the commencement of the Departmental Promotion Committee. The Departmental Promotion Committee met in March, 2015. The petitioners are working since 1997 in the department. The Petitioners are entitled to promotion to the post of Superintendent Engineer based on seniority. However, Petitioners have recently received information that the candidates appointed as Executive Engineer in the year 2003 have been considered for promotion by Departmental Promotion Committee. It has come to the knowledge of the petitioner that the names of the petitioners were not placed for consideration for promotion at all before Departmental Promotion Committee as the enquiry were pending against the petitioners which in any case are not proved till date. It has further come to the knowledge of the petitioner that the names of 6 candidates have been forwarded to GPSC. The action of Department of Considering the Junior Candidates for promotion on one side and issuing charge sheets and initiating Departmental Enquiry against the petitioners and thereby depriving the petitioner from considering for promotion are high handed, arbitrary, unreasonable. The petitioners have duly raised their objections against such action of the Respondent no.1. Copy of the objection dated 2.8.2015 is annexed hereto and marked Annexure F. 3.6 The petitioners state that vide Circular dated 12.3.2012 Respondent no.1 Department issued seniority list for the year 1.1.2001 to 31.12.2010. A copy of the list is annexed hereto and marked Annexure G. 3.7 The petitioners stated that Departmental enquiry although initiated against the petitioners has not been completed till date. The Respondent no.1 has intentionally issued charge sheet to all 34 candidates and is taking no steps to complete the same within a reasonable time and is thereby keeping hanging sword on all the petitioners and is thereby depriving the candidates from considering from promotion. Hence it is stated that the pendency of inquiries cannot held the petitioner back from claiming their Right of Promotion. 3.8 The Petitioners further state that the petitioners are entitled to promotion even as per Resolution dated 30.10.1993 issued by the General Administrative Department which clearly states that pending the Departmental enquiry, the candidates can be granted Ad 3 C/SCA/13271/2015 ORDER Hoc Promotions. A copy of the Resolution dated 30.10.1993 is annexed hereto and marked Annexure H."
4. It is not in dispute that departmental proceedings (domestic inquiry) are pending against the petitioners.
5. In that background, the petitioners have prayed for above quoted relief.
5.1 By means of Para7(b), the petitioner seeks direction to the respondent to complete the inquiry.
5.2 However, by means of Para7(a) the petitioners have also raised claim for adhoc promotion to the post of Superintendent Engineer as per seniority list dated 15.9.2004.
6. The respondent no.1 has filed reply affidavit wherein it is averred and clarified that:
"4. By way of the present petition, the petitioner has contended that the petitioners should be granted adhoc promotion in light of the Government Resolution dated 30.10.1993. The answering respondent respectfully submits that the said Government Resolution is not applicable in the instant case as the Government Resolution dated 30.10.1993 is applicable in only those cases, where, the departmental/ court proceedings are not concluded even after expiry of two years from the date of issuance of charge sheet. At this, it is very significant to mention herein that as per the Government Resolution dated 02.04.1983 and 30.10.1993 the promotion of officer in 4 C/SCA/13271/2015 ORDER whose case the sealed cover procedure has been followed, but against who disciplinary/ court proceedings are pending for a long time.
5. I respectfully say that as per the aforementioned Government Resolution, it clearly mentions in Clause2 that the cases in which the departmental proceedings are taking long time in spite of the efforts, the Government in consultation with GPSC, may consider the question as to how the hardship caused by the long pendency of disciplinary/ court proceedings to government employees in whose case seal cover procedure is followed, could be mitigated.
6. I respectfully submit that the period of two years was not completed to the issuance of the charge sheets to 12 petitioners from the date of first meeting of the departmental promotion committee on 24.3.2015. In the case of One Petitioner Shri J.S.Gamit has been issued three charge sheets. But one charge sheet was issued to him after the meeting of departmental promotion committee on 24.3.2015. As the same way second petitioner Mr. Chaudhary declared fit by D.P.C but he was also issued the charge sheet after the meeting of departmental promotion committee and before the date of issuance of promotion order. So they were not entitled to get the ad hoc promotion order. So they were not entitled to get the ad hoc promotion as per govt. resolution dated 23/9/81. Therefore, Government has decided to adopt seal cover procedure in case of all the petitioners.
7. I respectfully say and submit that the departmental promotion committee met on 24.3.2015 to consider the case of all the employees falling under the zone of consideration for the promotion of Superintendent Engineer. However, while considering the case, the departmental promotion committee deemed fit to keep the case of the petitioners along with other 20 Executive Engineers in sealed cover as per the Government Resolution dated 23.09.1981.
8. It is respectfully submitted that total 59 cases have been considered by the D.P.C met on dated 24.3.2015 and 35 Executive Engineers among 59 were facing inquiry and none of them were considered for ad hoc promotion by D.P.C as per GR dated 2.4.83 and 31.10.93. But all 35 cases were kept in sealed cover. At this stage, it is very pertinent to prefer to Clause 2 of the Government Resolution dated 02.04.1983 and para 3(1) of the GR dated 30.10.93. Copy of the Resolutions dated 02.04.1983 and 30.10.93 are annexed herewith and marked as AnnexureI and II.
9. I say that as the departmental promotion committee did not consider the case of petitioners and decided not consider further the case of petitioners for ad hoc promotion, the GPSC was also consulted. Copy of the letter dated 10.07.2015 is annexed herewith and marked as AnnexureIII.
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10. I respectfully say and submit that the DPC and GPSC have carefully considered the case and thought fit to keep the cases of petitioners in sealed cover. Therefore, the petitioners are not considered to be granted the ad hoc promotion.
11. I respectfully say and submit that there are charges of serious nature and having substance of misconduct and financial irregularities against most of the petitioners. Furthermore, most of the petitioners are facing more than one departmental inquiry. In this background, the department has thought fit not to consider the case of the petitioner for ad hoc promotion.
12. I respectfully say and submit that the tabular chart of each and every individual petitioner explaining the date of issuance of the charge sheet is annexed herewith and marked as AnnexureIV.
13. I say that as it is evident from the aforementioned tabular chart the date of issuance of charge sheets in all cases are within the two years. At this stage, it is respectfully submitted that only those cases, in which 2 years have been lapsed from the issuance of charge sheet and the date of meeting of DPC shall be considered for adhoc promotion, however, that is for further satisfaction of the DPC in consultation of GPSC. In the instant case, the petitioners do not fulfill the specific period of 2 years as mentioned in the Government Resolution dated 02.04.1983 and 30.10.1993. Therefore, the contention of the petitioners to grant adhoc promotion is not justified. Withal, it is reverently submitted that some of the petitioners do not fulfill the minimum requirements for promotion to the post of Superintendent Engineer as per the recruitment rules. To succinctly mentioned three of the above petitioners do no reach to the benchmark fixed under the recruitment rules of having the confidential report graded as "very good"
and two of them having the adverse remarks in their confidential reports. One of the petitioner 9G.M.Bhagat) is already considered as an unfit by D.P.C"
6.1. According to the case setup by the respondent no.1 in the said affidavit, the details about the date on which the chargesheet came to be issued and the stage of proceedings are obtained and date of affidavit is mentioned in AnnexureG to the affidavit. The reply 6 C/SCA/13271/2015 ORDER affidavit which is placed on record of the petition does not, as of now, have any annexure. The affidavit is filed sans annexures. Learned AGP seeks permission to place on record the Annexures referred to in the affidavit. The permission to take necessary steps within 1 day is granted.
6.2 From the copy of the reply affidavit (Extra copy) provided by the learned AGP (for perusal) it comes out that in most of the cases the authority has reached to the stage of issuance of final/ second showcause notice calling for reply from the employees about proposed penalty. 6.3 That was the stage of proceedings in 2015. Under the circumstances, by now, the proceedings must have been concluded. However, as of today, both sides do not have instruction about exact status of the proceedings against present petitioners.
7. If the domestic inquiry are, as of now, pending against the petitioners then it is high 7 C/SCA/13271/2015 ORDER time for the respondent to conclude the domestic inquiry.
7.1 The ground which is urged to justify the delay (viz. since joint inquiry are conducted against the petitioners, more time is consumed) is not palatable and, in any case, it is not sustainable after passage of 3 years since the affidavit came to be made.
8. Under the circumstances, the Court deems it proper to direct the respondents to complete the proceedings against the petitioners as expeditiously as possible but not later than 31.5.2018.
9. With the said direction, the grievance ventilated by the petitioner and relief prayed for in Para7(b) stands addressed.
10. Before proceeding further, it is relevant to note that any further affidavit dated 20.9.2017 filed by respondent no.1, it is averred and stated that:
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"8. It is respectfully submitted that the remaining petitioners i.e. J.S.Gamit (Petitioner no.1) and one another employee namely S.M.Damor (petitioner no.7) were fulfilling the criteria stipulated in the resolution dated 02.04.1983 and therefore, the DPC (Departmental Promotional Committee) held on 14.3.2017 reviewed their case and forwarded the recommendation of committee to Gujarat Public Service Commission on 01.05.2017 and which is awaiting the approval from Gujarat Public Service Commission. Annexed hereto and marked as Annexure P II is a copy of the said proposal sent to Gujarat Public Service Commission."
10.1 From the said averment it appears that respondent no.1 has forwarded recommendation in respect of 2 petitioners namely Mr. J.S.Gamit (petitioner no.1) and Mr. S.M.Damor (petitioner no.7) and that the approval by GPSC is awaited. 10.2 According to said averment, the recommendation was forwarded to GPSC in May, 2017.
10.3 Almost 10 months have passed since the respondent no.1 forwarded the recommendation to GPSC.
10.4 By now, respondentGPSC should have conveyed its decision to the respondent no.1. 10.5 At this stage it is necessary to mention that on previous date when the petitioners and respondent no.1 submitted that any decision from 9 C/SCA/13271/2015 ORDER GPSC is not conveyed, the petitioners were permitted to implead GPSC as party respondent vide order dated 6.11.2017.
10.6 Today, the learned advocate for petitioners submitted that not only the petitioner impleaded GPSC as respondent but the petitioners have served the process to respondent-GPSC. However, GPSC has not entered appearance.
10.7 Since GPSC has chosen not to enter appearance and has not informed the Court about the status of the recommendation submitted by the respondent no.1, the Court deems it proper to direct the respondent no.3GPSC to convey its decision, if already not conveyed, to the respondent no.1 (with regard to the recommendation forwarded by respondent no.1 in May, 2017) on or before 31.3.2018.
10.8 Upon receipt of the decision of the GPSC, the respondent no.1 shall convey the said decision to the said 2 petitioners and respondent no.1, shall simultaneously, also take appropriate 10 C/SCA/13271/2015 ORDER decision and action on the basis of GPSC's decision.
11. If the said 2 petitioners feel aggrieved by the decision of the respondent no.3GPSC, then it is open to the said petitioners to take appropriate action against decision by respondentGPSC's decision and/ or against the action of respondent no.1.
12. This order and disposal of this petition at this stage shall not stand in the way of said petitioners to pursue such course of action as may be available to them in that regard.
13. So far as other petitioners are concerned, the respondent no.1 has, in further affidavit, declared and clarified that:
"4. It is respectfully submitted that the affidavit in reply filed by the respondent dated 03.10.2015 in the said affidavit in reply the reference to resolution dated 02.04.1983 is categorically mentioned and as per the said resolution and more particularly clause 2 is required to be considered.
5. It is respectfully submitted that on the basis of the resolution dated 02.04.1983 and following the said 11 C/SCA/13271/2015 ORDER resolution the departmental promotion committee met on
14.3.2017 to review the cases of adhoc promotion. In the said meeting names of R.M.Patel (Petitioner no.3) and S.O.padvi (Petitioner No.6) were not considered due to an "adverse" remarks in their confidential reports and not having the "Very Good" benchmarks as per recruitment rules. Shri G.N.Damor (Petitioner No.2) also not having the "Very Good' benchmarks in his confidential reports. But they are facing the departmental inquiry and kept their case in sealed cover. Therefore, they are not entitled for adhoc promotion as per the resolution dated 02.04.1983 and 30.10.1993.
6. It is respectfully submitted that names of V.C.Patel (Petitioner No.4), J.C.Chaudhari (Petitioner No.9), G.M.Bhagat (Petitioner No.10), M.K.Chaudhari (Petitioner no.11), S.A.Vahia (Petitioner No.13) and A.R.Chaudhari (Petitioner No.14) were not considered because of the reasons that these persons period of 2 years against departmental proceedings have not been completed."
14. In view of the said reply and clarification by respondent no.1, at this stage, the relief as prayed for by the petitioner in Para7(a) cannot be granted.
14.1 It is however, clarified that if said other petitioners feel aggrieved by any of the remarks in confidential report and / or if they feel aggrieved by the respondent's decision about penalty or about any of the aspects related to departmental proceedings and consequential decision, the petitioner may take appropriate action against such decision/ action by the respondent.
12 C/SCA/13271/2015 ORDER 14.2 In view of the fact that the decision/ action of the respondents, which are described in Paras5 and 6 of the reply affidavit are not subject matter of present petition and in view of the fact that the decision/ action by the respondent no.1 with regard to the claim for promotion/ adhoc promotion during pendency of the proceedings, is not the subject matter of the petition, the Court would refrain from making any observation in that regard.
14.3 Suffice it to say that since the said decision/ action of the respondent no.1 are not set aside by the Court in any proceedings, the relief prayed for in Para7(a) cannot be granted at this stage.
14.4 Therefore while disposing of this petition, it is clarified that the decision/ action by respondent no.1 against petitioners are not subject matter of the petitioner. In that view of the matter disposal of this petitioner and this order will not stand in way of the petitioners to 13 C/SCA/13271/2015 ORDER take appropriate proceedings, in that regard, if the petitioners so desire.
15. With aforesaid clarification, following order is passed:
(a) For the reasons mentioned above, the relief prayed for in Para7(a) is not granted at this stage.
(b) Above direction to respondent no.1 addresses the petitioners' grievance in Para7(b). The respondent no.1 shall act in accordance with said direction.
With said observation and clarification, this petition is disposed of. Orders accordingly.
(K.M.THAKER, J.) saj 14