Indian Kanoon - Search engine for Indian Law

(E) This Hon'ble Court may be pleased to grant such other and further relief(s) as deemed just and proper in the interest of justice."

3. The petitioner has come out with a case that he has joined the services as Junior Clerk on 06.12.1985 and was then selected and appointed as a Sub Inspector (P&E) by direct recruitment with effect from 02.11.2001 and subsequently, was also promoted to the post of Inspector (P&E) Class­III with effect from 21.01.2009. There were two vacant posts in the promotional cadre of Superintendent of Prohibition and Excise Class­II, having fallen vacant, the department wanted to fill up the post and since in the feeder cadre two employees namely the present petitioner and one Mr. S.R. Vasava were possessing of C/SCA/3747/2016 JUDGMENT requisite qualifications as per the recruitment rules, their cases were considered by the Departmental Promotion Committee (DPC). At the relevant time, when the DPC considered the case of both, the petitioner as well as Mr. Vasava since there was nothing adverse to them and they were fulfilling the criteria of merit as well as efficiency, they came to be selected by the DPC in the proceedings dated 22.01.2014. On the basis of said selection/recommendation made by DPC, the Home Department - respondent no.1 herein, issued the order of promotion on 30.01.2014 with respect to the present petitioner to the post of Superintendent of Prohibition and Excise Class­II, in anticipation of the approval from the GPSC. It is the case of the petitioner that the said promotion was adhoc as the approval from the GPSC was awaiting. Nonetheless, was posted and granted promotion against the clear vacancy at Kutch - Bhuj. The petitioner took the charge on the said promotional post on 30.01.2014 and vide order dated 13.02.2014, an order was also issued by the Accounts Officer showing up the fixation of the petitioner on the promotional post.

3.1. It is the case of the petitioner that as per the Government Resolution, the guidelines which have been issued vide Government Resolution dated 02.03.2009 by the General Administration Department of the State of Gujarat requiring the authority to sent a recommendation to the GPSC for its approval on promotion within a period of one month and maximum six months from the date of recommendation of the DPC or promotion. Despite the aforesaid clear guidelines, respondent no. 1 - Home Department, sent a proposal on 12.12.2014 much after a period as mentioned in the Government Resolution and there was a time gap of 11 months and 13 days in sending the proposal and, therefore, it was late by 5 months and 13 days after maximum period. It is the case of the petitioner that this approval of GPSC as a routine manner, since the departmental C/SCA/3747/2016 JUDGMENT promotional committee is scanning the employee for the promotional post. Had this proposal been forwarded in time, the eventuality which has taken place later on may not have come in the way of the petitioner. It is submitted that the proposal which was originally forwarded on 12.12.2014 was not promptly dealt with, as a result of this, respondent no. 1 had also submitted reminder to GPSC on 20.01.2015 and then vide specific communication and the order dated 05.02.2015, approval to the promotion of the petitioner was specifically accorded by the GPSC. This approval was only upon one condition that if in future scheduled caste candidate is available then the petitioner will have to move to his original post and with no other condition, the specific approval had been granted. It is further the case of the petitioner that even this eventuality does not remain in existence as one schedule caste candidate Mr. S.P. Vasava had also been promoted to the post of Superintendent, Prohibition and Excise, Class­II and, therefore, there is no circumstance coming in the way of the approval which has been granted specifically by GPSC.

3.2. It has been asserted in the petition that later on, the petitioner was arraigned in one ACB case, resulted in FIR No. 1 of 2016, which was recorded by ACB Police Station, Bhuj on 21.01.2015 and after the promotion of the petitioner and after DPC cleared and recommended the petitioner's case, and much after the proposal which was forwarded on 12.12.2014, on account of this compliant, the petitioner was detained in the custody for more than period of 48 hours. As a result of this, an order was issued of deemed suspension on 28.01.2015 with effect from 20.01.2015 and later on two specific orders came to be passed on 13.02.2015 and 18.05.2015 placing the petitioner under suspension as Superintendent, Prohibition and Excise, Class­II. Further, it is the case of the petitioner that instead of leaving the matter there, though there is no provision, the Deputy Secretary of the Home Department addressed a letter on 04.06.2015 C/SCA/3747/2016 JUDGMENT to the Secretary, GPSC, seeking his advise as to whether the petitioner's promotion can be regularized on the basis of the approval dated 05.02.2015 received from the GPSC, in view of the ACB case and the suspension of the petitioner. On 15.07.2015 the GPSC has asked the Home Department as to whether there was any provision and subsequently, the GPSC again addressed a letter on 21.11.2015 to ACS, Home Department and withdrawn its approval to the promotion which was already granted. The grievance of the petitioner is that there are guidelines issued by the Government to the effect that on the date of the DPC meeting, if any disciplinary proceedings or prosecution is pending against the Government Servant, then there cannot be promotion, but his case is at the best required to be kept in sealed cover which will be opened on his exoneration or acquittal in the case. The said Government Resolution indicating such proposition are Government Resolutions dated 24.08.2007 and 17.08.2015 respectively and despite the aforesaid guidelines being clearly available with the department, and there is no rule which empower to withdraw the approval once having been granted, and the promotion which has been approved came to be withdrawn, pursuant to its approval, this amounts of penal action sticking stigma upon the petitioner having far reaching consequences. As a result of this, since the impugned action has been undertaken in complete violation of the principles of natural justice, without holding any departmental inquiry, the petitioner has invoked extra ordinary jurisdiction of this Court.

4. Learned advocate Mr. R. V. Deshmukh appearing on behalf of the petitioner has vehemently contended that the action on the part of the respondent authority is absolutely in flagrant violation of the principles of natural justice and in the circumstances indicated above, reversion could not have been affected without granting any opportunity to the petitioner. It has further been submitted that the C/SCA/3747/2016 JUDGMENT approval which has been granted in specific terms vide order dated 05.02.2005, was in response to the proposition which has been forwarded at that point of time, but there was no clot of any nature on the career of the petitioner and therefore, what was considered at the time of approval was a clean record which was scanned by the DPC and pursuant to it approval was granted. The GPSC being functuous officio after passing an order on 05.02.2005, the action based upon it is impermissible and withdrawal of recommendation/approval amounts to without authority of law. Resultantly, on this count alone, the action is required to be set aside.