Gujarat High Court
State Of Gujarat vs Ibrahim Abbasali Raj & on 11 December, 2015
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
C/SCA/8521/2010 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 8521 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
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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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STATE OF GUJARAT....Petitioner(s)
Versus
IBRAHIM ABBASALI RAJ & 1....Respondent(s)
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Appearance:
MR JANAK RAVAL, ASST.GOVERNMENT PLEADER for Petitioner(s) No. 1
MR NK MAJMUDAR, ADVOCATE for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
RULE SERVED for the Respondent(s) No. 1
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CORAM: HONOURABLE SMT. JUSTICE ABHILASHA
KUMARI
Date : 11/12/2015
ORAL JUDGMENT
1. By way of the present petition under Articles226 and 227 of the Constitution of India, the petitioner State of Gujarat has challenged the order dated 09.03.2010, passed by the Gujarat Civil Services Page 1 of 17 HC-NIC Page 1 of 17 Created On Thu Dec 17 00:45:14 IST 2015 C/SCA/8521/2010 JUDGMENT Tribunal ("the Tribunal", for short), which has been arrayed as respondent No.2, whereby the Tribunal has allowed the appeal preferred by the first respondent and directed the petitioner to take necessary action and issue orders of promotion in respect of respondent No.1, with effect from April, 1990, within three months from the date of the order.
2. Briefly stated, the relevant factual aspects of the matter may be noted as under.
2.1 The first respondent was recruited and appointed as an Inspector in the Social Welfare Department, in the payscale of Rs.425700, in the year 1986. Persons junior to the first respondent were promoted as Office Superintendents in the year 1990, in the payscale of Rs.16402900. However, the first respondent was not promoted. He, therefore, filed an appeal before the Tribunal, being Appeal No.140/1990, which was subsequently withdrawn. On 28.04.1989, a chargesheet was issued against the first respondent and a departmental inquiry was initiated. For this reason, he was not considered for promotion. Subsequently, the first respondent stood exonerated in the departmental Page 2 of 17 HC-NIC Page 2 of 17 Created On Thu Dec 17 00:45:14 IST 2015 C/SCA/8521/2010 JUDGMENT inquiry and the chargesheet against him was withdrawn/filed in the year 1992. Thereafter, the first respondent was promoted as Office Superintendent on 05.04.1993. However, it is the case of the petitioner that the aforesaid promotion order was issued by mistake, therefore, it was cancelled by an order dated 07.08.1993. Against the above order of reversion, the first respondent preferred an appeal before the Tribunal, being Appeal No.99/1996, with a prayer to quash and set aside the order of reversion and for the grant of the deemed date of promotion as Office Superintendent, from April, 1990. It was the case of the petitioner before the Tribunal that his Annual Confidential Report (ACR) for the year 198889 was not good, therefore, the promotion which was granted by a clerical mistake, was rightly cancelled. The Tribunal accepted the contention of the petitioner and dismissed the appeal. Subsequently, however, the adverse entries in the ACR of the first respondent for the year 198889, stood expunged by the concerned Department of the petitioner, in the year 2005. The first respondent, thereafter, represented to the petitioner to grant him the deemed date of promotion Page 3 of 17 HC-NIC Page 3 of 17 Created On Thu Dec 17 00:45:14 IST 2015 C/SCA/8521/2010 JUDGMENT from April, 1990, on 28.05.2005, 16.06.2006 and 20.06.2006, along with the benefit of arrears. As no action was taken by the petitioner upon this plea, the first respondent approached the Tribunal by filing Appeal No.189/2006.
2.2 The Tribunal allowed the above appeal of the first respondent, as already indicated hereinabove. Aggrieved by the said order of the Tribunal, the petitionerState of Gujarat, has approached this Court.
3. Mr.Janak Raval, learned Assistant Government Pleader, has submitted that the impugned order passed by the Tribunal is contrary to the provisions of law, proved facts and the evidence on record, hence, it deserves to be quashed and set aside.
3.1 It is next submitted that while passing the said order, the Tribunal has not appreciated the serious allegations against the first respondent, the departmental inquiry, as well as three criminal cases that were pending against him. The petitioner has Page 4 of 17 HC-NIC Page 4 of 17 Created On Thu Dec 17 00:45:14 IST 2015 C/SCA/8521/2010 JUDGMENT rightly rejected the plea of the first respondent for promotion, from the deemed date of April, 1990. 3.2 That the Tribunal ought to have considered the fact that though the adverse remarks were expunged in the year 2005, the criminal cases were still pending and a fresh inquiry had been ordered to be initiated against the first respondent, on 03.12.2009. Due to the above reasons, the petitioner is within its rights in not considering the case of the first respondent for promotion, from the deemed date of April, 1990. 3.3 That the Tribunal has not considered the aspect that on the deemed date of April, 1990, claimed by the first respondent, the adverse remarks were still in existence and the departmental inquiry was pending. As important facts and legal aspects have not been considered by the Tribunal, while passing the impugned order, the petition may be allowed and the said order be quashed and set aside.
4. The petition has been strongly contested by Mr.N.K.Majmudar, learned advocate for the first respondent, by submitting that the order passed by the Tribunal is a just, proper and wellreasoned one, Page 5 of 17 HC-NIC Page 5 of 17 Created On Thu Dec 17 00:45:14 IST 2015 C/SCA/8521/2010 JUDGMENT which does not require any interference by this Court, in exercise of powers under Articles226 and 227 of the Constitution of India. The Tribunal has not committed any illegality or jurisdictional error while passing the impugned order. No perverse, irrational or arbitrary findings have been recorded in the impugned order. On the contrary, the said order has been passed in accordance with settled principles of law. 4.1 It is next submitted on behalf of the first respondent, that the departmental inquiry and the chargesheet against him were withdrawn in the year 1992, which is clear from the communication dated 17.02.1992, issued by the Director, Social Welfare Department, Gandhinagar, annexed as AnnexureR1 to the reply. The first respondent is, therefore, entitled to the deemed date of promotion, since the adverse remarks in his ACR pertained to allegations levelled in the chargesheet, which were never proved. In spite of this position, for reasons best known to the petitioner, the remarks in the ACR of the first respondent were not expunged at the relevant point of time, but were belatedly expunged in the year 2005.
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C/SCA/8521/2010 JUDGMENT
During the intervening period of time, these remarks continued to be on the record, in order to hamper the promotional prospects of the first respondent. 4.2 It is contended that once the adverse remarks have been expunged, they have to be construed as being nonexistent. The adverse entries in the ACR of the first respondent, pertaining to the year 198889, are no longer in existence, therefore, there is no impediment in the way of the petitioner to grant the first respondent the deemed date of promotion, with effect from April, 1990. That, the Tribunal has rightly considered this aspect and allowed the appeal of the first respondent.
4.3 That, the inquiry with regard to the alleged misappropriation of luggage by the first respondent, from the Government Hostel, has also come to an end and the first respondent has been exonerated of the said allegation. A copy of the order of the Competent Authority dated 21.04.2001, has already been placed on record as AnnexureR2 to the reply filed by the first respondent. The allegations regarding the issuance of a false Caste Certificate have also not been proved Page 7 of 17 HC-NIC Page 7 of 17 Created On Thu Dec 17 00:45:14 IST 2015 C/SCA/8521/2010 JUDGMENT against the first respondent, who has been exonerated of the said allegations, by an order dated 08.03.2010, passed by the Competent Authority and annexed as AnnexureR3 to the affidavitinreply. 4.4 It is further submitted that the pendency of the criminal cases, which pertain to the year 2002 and 2009, respectively, have nothing to do with the issue of the deemed date of promotion with effect from April, 1990, as those cases have been instituted subsequently and do not cover the period of time from which the first respondent is claiming the deemed date of promotion. The deemed date has been denied to the first respondent only on the basis of the adverse remarks in his ACR, for the year 198889, which no longer exist, having been expunged. Hence, there is nothing on record to obstruct the first respondent from being given the deemed date of promotion with effect from April, 1990.
4.5 It is further submitted that the departmental inquiry initiated on 03.12.2009, is in connection with the ACB case, which issue has nothing to do with the period for which the deemed date of promotion is being Page 8 of 17 HC-NIC Page 8 of 17 Created On Thu Dec 17 00:45:14 IST 2015 C/SCA/8521/2010 JUDGMENT prayed for. Subsequent events cannot apply retrospectively and the legitimate claim of the petitioner cannot be defeated in this manner. 4.6 Lastly, it is submitted that the expunction of the adverse remarks in the ACR of the first respondent has not been challenged by the petitioner and has attained finality.
4.7 On the basis of the above submissions, it is submitted by Mr.N.K.Majmudar, learned advocate for the first respondent, that the petition be dismissed.
5. This Court has heard learned counsel for the respective parties, perused the averments made in the petition, the contents of the other pleadings and the documents on record.
6. The undisputed facts may be noticed for the sake of clarity. It is not in dispute that there were adverse entries in the ACR of the first respondent, for the year 198889, which pertained to the pendency of the departmental inquiry initiated vide two charge sheets dated 28.04.1989 and 22.01.1990. It is clear Page 9 of 17 HC-NIC Page 9 of 17 Created On Thu Dec 17 00:45:14 IST 2015 C/SCA/8521/2010 JUDGMENT from the communication dated 17.02.1992, issued by the Director of Social Welfare Department of the petitioner, that the allegations levelled in both the chargesheets could not be proved against the first respondent and, therefore, both chargesheets, containing separate allegations, came to be withdrawn and filed. The departmental inquiries thus came to an end.
7. It is also not in dispute that the adverse remarks in the ACR of the first respondent, for the year 198889, pertained to the pendency of the departmental inquiries. The chargesheets were withdrawn/filed on 17.02.1992. In the DPCs that were held subsequent thereto, as well, the first respondent was not considered for promotion, in spite of the withdrawal of the chargesheets, as the adverse remarks were not expunged at the relevant point of time, but were expunged only later on, on 21.03.2005. After the expunction of the adverse remarks, the first respondent represented to the petitioner for the grant of the deemed date of promotion, with effect from April, 1990, on the ground that the adverse remarks Page 10 of 17 HC-NIC Page 10 of 17 Created On Thu Dec 17 00:45:14 IST 2015 C/SCA/8521/2010 JUDGMENT were no longer in existence.
8. It is an accepted position that the non consideration of the petitioner for promotion, at the relevant point of time, was the existence of adverse entries in his ACR for the year 198889, regarding the departmental inquiries against him. The learned Assistant Government Pleader for the petitioner, has submitted that the first respondent was not considered for promotion, at the relevant point of time, due to the said adverse entries and the pendency of the departmental inquiry. He has submitted that, even thereafter, another departmental inquiry had been initiated against the first respondent and a criminal case is pending against him, therefore, the Tribunal was not correct in granting the deemed date of promotion with effect from April, 1990. What the learned Assistant Government Pleader has, however, failed to bring out satisfactorily before the Court is, why the effect of deemed date of promotion cannot be granted to the first respondent for the period pertaining to the adverse remarks in his ACR, when the said remarks have now been expunged. Subsequent events Page 11 of 17 HC-NIC Page 11 of 17 Created On Thu Dec 17 00:45:14 IST 2015 C/SCA/8521/2010 JUDGMENT cannot have a retrospective effect upon the claim of the petitioner, which is a legitimate one, in view of the expunction of the adverse remarks. Further, the expunction of the adverse remarks has not been challenged by the petitioner, and has attained finality. The period of 198889, which is the relevant period for the consideration of the deemed date of promotion, contains nothing adverse, now that the remarks have been expunged. Subsequent events cannot be read into that period or applied to it. Thus, in the view of this Court, there is no justification on the part of the petitioner in denying the benefit of the deemed date of promotion to the first respondent with effect from April 1990, in terms of the judgment of the Tribunal.
9. It is a settled position of law that the expunction of adverse remarks in the ACR of an employee results in rendering them nonexistent. In the present case, the remarks pertained to the allegations contained in the chargesheets issued against the first respondent, which chargesheets could not be proved and were withdrawn/filed by the Page 12 of 17 HC-NIC Page 12 of 17 Created On Thu Dec 17 00:45:14 IST 2015 C/SCA/8521/2010 JUDGMENT petitioner. When the specific basis for the adverse remarks no longer exists, it follows, that the legitimate relief that is due to the first respondent upon their expunction, albeit belatedly, cannot be withheld by the petitioner for the relevant period of time.
10. The view of this Court finds support from the following judgments :
(i) G. Muthuraj Vs. State of Tamil Nadu and another, reported in (2013) 11 SCC 648.
(ii) B.C.Dwivedi Vs. State of Gujarat and another, reported in 1996 (1) GLR 254.
11. The relevant extract of the judgment of the Supreme Court in G.Muthuraj Vs. State of Tamil Nadu and another (Supra.), is reproduced hereinbelow :
"12. The pleadings of the parties show that the appellant had been denied promotion to the post of Executive Engineer only on account of pendency of the departmental proceedings. Indeed, it is neither the pleaded case of the respondents nor any material has been placed before this Court to show that he was passed over/superseded on account of adverse remarks recorded in the annual confidential records or any other adversity in the service record. Therefore, once the order of Page 13 of 17 HC-NIC Page 13 of 17 Created On Thu Dec 17 00:45:14 IST 2015 C/SCA/8521/2010 JUDGMENT punishment was quashed by the learned Single Judge, the appellant automatically became entitled to be considered for promotion with effect from the date persons junior to him were promoted to the post of Executive Engineer. However, that right of the appellant has been stultified by the direction contained in the impugned judgment which, in our view, is legally unsustainable because the Division bench has not assigned any reason for directing that the appellant shall not be entitled to notional promotion or promotional benefits.
13. In Sulekh Chand and Salek Chand v. Commr. of Police, this Court held that after his acquittal in the criminal case filed under the Prevention of Corruption Act the employee was entitled to be promoted with effect from the date his juniors were promoted because the factor which was responsible for his nonpromotion had become non existent."
In the present case, as well, the chargesheets against the first respondent having been withdrawn, the adverse remarks recorded against him were came to be expunged. The said adverse remarks were based on the pendency of the departmental proceedings which came to an end. Hence, when the very basis of the Page 14 of 17 HC-NIC Page 14 of 17 Created On Thu Dec 17 00:45:14 IST 2015 C/SCA/8521/2010 JUDGMENT adverse remarks had ceased to exist and the adverse remarks were expunged, the first respondent was entitled for the deemed date of promotion with effect from April, 1990, because the reason for his non promotion had become redundant.
12. In B.C.Dwivedi Vs. State of Gujarat and another (Supra.), this Court has held as below :
"8. ***** So far as the legal proposition with regard to the selection for promotion, based on the criteria of merit and efficiency, is concerned, there cannot be any quarrel that the mere absence of adverse remarks would not necessarily mean that such government servant, against whom there were no adverse remarks, has the requisite merit and efficiency and no exception can be taken to this proposition of law. Nevertheless, the fact remains that in the case at hand, the adverse remarks were taken into consideration. Those adverse remarks had been later on expunged and, thereafter, whether the effect of expunction of these remarks was taken into consideration or not in the May 1991 DPC is not known. The petitioner's say is that he was allowed to cross Efficiency Bar not once, but twice from due dates i.e., from 01.09.1978 and from 01.09.1983 and orders allowing him to cross such Efficiency Bar were passed on 14.03.1983, Page 15 of 17 HC-NIC Page 15 of 17 Created On Thu Dec 17 00:45:14 IST 2015 C/SCA/8521/2010 JUDGMENT which is a date in close proximity with the point of time when the DPC met in June 1983, and on 16.01.1991, which is also a date in close proximity with the point of time when the DPC met in May, 1991. There cannot be any doubt that if any adverse material is taken into consideration against a Government servant at the time when the DPC meets and such material has later on become no existent and if there are certain orders allowing him to cross Efficiency Bar from due date and there is uncertainty about the merit of juniors and as to whether all these facts were kept in view or not, in all fairness, the petitioner, who had suffered supersession, is certainly entitled to reconsideration of his candidature at the point of time when he was superseded. Whether the petitioner possesses the requisite merit and efficiency for the purpose of such promotion is certainly a question, which is to be decided by the DPC and this Court has not to go into that aspect of the matter, but the grievances, which are raised with regard to discrimination, have to be examined and similarly, if the Court finds that the candidature of the petitioner has not received a fair consideration within the meaning of Arts. 14 and 16, the Court has to give appropriate directions so as to undo the injustice meted out to the citizen, who has come to seek protection of the Court against the invasion of his fundamental rights under Art.16 of the Page 16 of 17 HC-NIC Page 16 of 17 Created On Thu Dec 17 00:45:14 IST 2015 C/SCA/8521/2010 JUDGMENT Constitution of India. There can not be any dispute that the consideration within the meaning of Art.16 of the Constitution of India means a fair consideration, which in the present case, in my considered opinion, has been denied through to the petitioner in the DPCs for the promotion to the post of Assistant Labour Commissioner as and when they have met since June 1983."
13. In view of the above discussion, examining the impugned order of the Tribunal in light of the above principles of law, this Court does not find any illegality, perversity or infirmity in the said order, so as to warrant interference.
14. The petition is, therefore, rejected. Rule is discharged. The interim relief stands vacated.
(SMT. ABHILASHA KUMARI, J.) Gaurav+ Page 17 of 17 HC-NIC Page 17 of 17 Created On Thu Dec 17 00:45:14 IST 2015