L. M. SHAH v. STATE — 1993 DIGILAW 463 (GUJ)

S. NAINAR SUNDARAM, J. ( 1 ) THE appellant in this Letters Patent Appeal is the petitioner in Special Civil Application No. 7495 of 1993. The respondent in this Letters Patent Appeal is the respondent in the Special Civil Application. We shall refer to the appellant as the petitioner in this judgment of ours for the sake of convenience. The petitioner who is in the cadre of an Executive Engineer is being denied promotion to the post of Superintending Engineer on the ground that departmental proceedings have been initiated against him. The facts which have come to our knowledge as per the expositions in the pleadings and as per the records on the side of the respondent made available to us can be traced as follows: 23. 6 An application was received by the Government requesting to probe into the allegations of corruption and favouritism in the services of Gujarat Engineering Research Institute in which the petitioner was serving at the relevant point of time. The Government entrusted the preliminary inquiry to the concerned Chief Engineer and the Joint Secretary. The inquiry was prosecuted. 14. 1 The concerned authority submitted the inquiry report implicating 30 officers including the petitioner for alleged irregularities. 18. 4 Explanations of the concerned officers including the petitioner were called for. 15. 1 The petitioner submitted his explanation. 22. 5 The matter was referred to the independent auhority who we are told is the Vigilance Commissioner for his opinion. 13. 11 The independent authority- Vigilance Commissioner gave his opinion recommending departmental proceedings against the petitioner. 3. 4 On these dates the papers were having movement 19. 7 13. 9 27. 11 through various sections of the 3. 7 7. 8 17. 8 administrations for processing. 22. 8 The Chief Secretary to the Government of Gujarat gave his approval. 30. 9 The Minister of State Water Resources gave his approval. 6. 1 The Minister of Home and Water Resources gave his approval. 16. 1 The Chief Minister gave his approval. 2. 2 The charge-sheet was framed and was issued to the petitioner and was served on the petitioner on 4. 2 2 With regard to the consideration of the promotion question what transpired as come out from the pleadings and records exposed before us runs as follows: 26. 5 The Departmental Promotion Committee met. 2. 2 The charge-sheet was framed and was issued to the petitioner and was served on the petitioner on 4. 2 2 With regard to the consideration of the promotion question what transpired as come out from the pleadings and records exposed before us runs as follows: 26. 5 The Departmental Promotion Committee met. The select list was prepared by the Departmental Promotion Committee and which select list look in the petitioner. 30. 8 The Government approved the select list. 25. 9 The matter was referred to the Gujarat Public Service Commission. 24. 5 The Gujarat Public Service Commissions gave its approval for the concerned selectees. 21. 7 The select list was operated upon. It is stated that three Government servants other than the petitioner having been served with the charge-sheets were also not given promotion. The promotion of the petitioner was withheld in view of the provisions contained in para 7 of the Government Resolution No. SLT-1080-895-G. 2 General Administration Department Government of Gujarat; dated 23. 9. 1981 hereinafter referred to as the Government Resolution. We are obliged to extract as follows the entirety of the Government Resolution because we may have to advert to the implications of the paragraphs therein for the purpose of evaluating the grievances of the petitioner vis-a-vis what happened in the present case: "confidential Procedure to be followed by DPC in the case of Government servants under suspension and Government servants against whom inquiries are pending or to be initiated. Government of Gujarat general Administration Department resolution No. SLT- 1080-895-G2 sachivalaya Gandhinagar. Dated the 23rd September 1981 read: 1. GC. GAD No. 42/41 1065-G dated 24. 5. 1966. 2 GC. GAD No. SLT-1079-UO-2337-G2 dated 17. 12. 1979. RESOLUTION the High Court of Gujarat has in the SCA No. 277 of 1980 set aside the orders contained in para 4 of the Government Circular G. A. D. No. 42/41 1065 dated 24. 5. 1966 as also the instructions issued under the GC. GAD No. SLT-1079-UO- 70 dated 19. 12. 79 regarding the consideration of the cases of Government servants for promotion to higher posts against whom departmental inquiries are pending and has suggested that the State Government should adopt and apply the procedure followed by the Government of India in this regard. 5. 1966 as also the instructions issued under the GC. GAD No. SLT-1079-UO- 70 dated 19. 12. 79 regarding the consideration of the cases of Government servants for promotion to higher posts against whom departmental inquiries are pending and has suggested that the State Government should adopt and apply the procedure followed by the Government of India in this regard. In this context Government has reviewed the existing policy applicable to such cases and in supersession of the orders contained in para 4 of the GC GAD dated 24. 5. 1966 and in the GC GAD dated 19. 12 is pleased to issue the following instructions: ( 2 ) THE cases of Government servants who are facing Departmental Inquiries or whose conduct is under investigation could broadly be classified as under: i) Those who are under suspension; or ii) those against whom disciplinary proceedings are initiated i. e. where a charge sheet and the statement of allegations have been issued; or iii) those against whom disciplinary proceedings are proposed to be initiated i. e. on the basis of a preliminary enquiry or otherwise a decision has been taken by the competent authority to initiate disciplinary proceedings against them but where a charge sheet and the statement of allegations have not been issued. At the outset it is clarified that in the case of Government servants whose conduct is under investigation i. e. the complaints are being looked into departmentally or otherwise but no conclusion has been reached about the prima facie misconduct it should not W a ground for treating the said Government servant as one whose conduct is under investigation. It is further clarified that in respect of Government servants whose conduct is under investigation the procedure prescribed hereafter should be followed only after the conclusion of the investigation and when the competent authority on consideration of the results of the investigation by any agency departmental or otherwise including the ACB or the Vigilance Commissioner and after obtaining the Vigilance Commissions advice wherever necessary has formed an opinion that a charge sheet may be issued on specific imputations where departmental action is contemplated or that sanction for prosecution may be accorded where prosecution is proposed. Until the competent authority arrives at such a conclusion the Government servant should be treated on par with others. Until the competent authority arrives at such a conclusion the Government servant should be treated on par with others. ( 3 ) IN respect of Government servants covered under categories (i) to (iii) of para 2 above the following procedure shall be followed while preparing select lists for promotion or considering cases for promotion where select lists are not be prepared: (i) The Government servants suitability for promotion should be assessed at the relevant time by the Departmental Promotion Committee or other authorities in the case may be and a finding reached whether if the Government servant had not been suspended or his conduct had not been under investigation he would have been recommended/selected for promotion. Where a select list is prepared the competent authority should also take a view as to what the Government Servants position in the list would have been but for his suspension. (ii) The findings as to the suitability and the place in the select list of the Government servant should be recorded separately and attached to the proceedings in a sealed envelope superscribed Findings regarding suitability for promotion to (service/grade/post) in respect of Shri (Name of the Government servant) and Not to be opened till after the termination of the suspension of/disciplinary proceedings against Shri (Name of the Government servant ). The proceedings of the Departmental Promotion Committee etc. need only contain the note The findings are contained in the attached sealed envelope. (iii) The vacancy that could have gone to the Government servant but for his suspension or the departmental proceedings against him should be filled only on an officiating basis by the next person in the approved list. If the Government servant concerned is completely exonerated and it is held that the suspension was wholly unjustified he should be promoted thereafter to the post filled on an officiating basis the arrangements made previously being reversed. Where however the post which could have gone to the Government servant but for his suspension or the departmental proceedings against him ceases to exist before the conclusion of the Departmental proceedings he can only be promoted to the first vacancy that may be available in future and the Government servant concerned is found fit for promotion at that time. Where however the post which could have gone to the Government servant but for his suspension or the departmental proceedings against him ceases to exist before the conclusion of the Departmental proceedings he can only be promoted to the first vacancy that may be available in future and the Government servant concerned is found fit for promotion at that time. ( 4 ) IN the case of a Government servant under suspension who on the conclusion of the departmental proceedings against him is completely exonerated the suspension being held to be wholly unjustified the period during which another Government servant junior to the suspended Government servant was promoted to the higher post should be reckoned towards the minimum period of service for determining his eligibility for promotion to the higher post wherever such a minimum period of service is prescribed as a condition for eligibility for promotion. The pay of such category of Government servants should on promotion be fixed by allowing the intervening period during which the suspended Government servants could not be promoted due to his suspension to be counted for increments in the higher grade but no arrears would be admissible. This concession will also be admissible to those Government servants who though not under suspension could not be promoted to the higher post on account of their being implicated in departmental proceedings or on account of their conduct being under investigation and who are subsequently completely exonerated. ( 5 ) IN the case of a Government servant who on conclusion of the departmental inquiry is not fully exonerated his case should be reconsidered by the departmental promotion committee in the light of the decision taken by the disciplinary authority in the disciplinary proceedings. The committee shall thus makes suitable recommendations regarding the Government servants promotion or otherwise. Where promotions are to be made without preparing a select list the same procedure shall be followed mutatis mutandis. A censure or warning awarded or proposed to be awarded to Government servant need not be taken into account while considering his case for promotion. ( 6 ) IF a Government servant is facing a prosecution in a Court of law on any matter involving moral turpitude or lack of integrity his case for promotion should also be dealt with in accordance with the procedure laid down above. ( 6 ) IF a Government servant is facing a prosecution in a Court of law on any matter involving moral turpitude or lack of integrity his case for promotion should also be dealt with in accordance with the procedure laid down above. ( 7 ) A Government servant whose name is included in the select list but who is subsequently placed under suspension or against whom criminal proceedings/ departmental proceedings have been initiated should not be promoted on the basis of his inclusion in the select list until he is completely exonerated of the charges against him. If the Government servant is completely exonerated of the charges he will be promoted on the basis of his position in the select list to the post which has been filled on a temporary basis pending disposal of the charge against him. If the exoneration is not complete the question of his suitability for promotion will have to be adjusted afresh as mentioned in para S above. ( 8 ) IT is also further clarified that the procedure laid down in these orders should also apply mutatis mutandis to grant the selection grade. ( 9 ) (I) These orders shall apply to cases which have been kept open by the Departmental Promotion Committees or the competent authority as the case may be in the context of the departmental inquiries. (ii) The cases of persons for promotion against whom departmental inquiries were pending which may have been decided by the competent authorities after 23. 4. 80 and where the persons concerned have been fully exonerated should be reviewed in the light of the above instructions for the purpose of promotion with effect from the date of promotion of their juniors. (iii) The cases of promotion where departmental inquiries are pending or proposed hereafter should be regulated in accordance with these orders. By order and in the name of the Governor of Gujarat. (iii) The cases of promotion where departmental inquiries are pending or proposed hereafter should be regulated in accordance with these orders. By order and in the name of the Governor of Gujarat. H. B. PANDIT joint Secretary to the government General Administration Department" Paragraph 2 of the Government Resolution speaks about three contingencies as follows (i) Those who are under suspension; or (ii) those against whom disciplinary proceedings are initiated i. e. where a charge sheet and the statement of allegations have been issued; or (iii) those against whom disciplinary proceedings are proposed to be initiated i. e. on the basis of a preliminary enquiry or otherwise a decision has been taken by the competent authority to initiate disciplinary proceedings against them but where a charge sheet and the statement of allegations have not been issued the sub-paragraphs of the paragraph 2 only exemplify as to when the conduct of the Government servant should be held to be under investigation and as to the significance of the conclusion to be arrived at regarding initiation of disciplinary proceedings Paragraphs 3 to 5 speak about the case of the Government servant going into the sealed envelope procedure in the three contingencies spoken to in paragraph 2 Paragraph 6 speaks about following of the same procedure even in a case where the Government servant is facing prosecution in a Court of law on any matter involving moral turpitude or lack of integrity ( 10 ) AT the time when the Departmental Promotion Committee met on 26 5 1992 admittedly none of the three contingencies spoken to in paragraph 2 of the Government Resolution had come into existence. Hence the petitioner escaped the sealed envelope procedure and had the fortune of getting his name included in the provisional select list But after he got into the select list and before he could be promoted the initiation of departmental proceedings has happened on account of this only the case of the petitioner is being brought under purview of paragraph 7 of the Government Resolution and the petitioner is being denied the promotion ( 11 ) WE are told by both the sides that there are no service rules speaking on the present subject and hence the Government Resolution has taken its place on the subject it is true that the powers be it so under the rules or the administrative or the executive instructions have to be exercised fairly and reasonably and not arbitrarily capriciously and unreasonably Courts have been always reminded in the matter of judicial review of Administrative action to see to it that the Executive acts in good faith having regard to all relevant considerations and not stayed by irrelevant considerations; and must not seek to promote purposes alien to the letter or to the spirit of the Rule that confers the power to act; and further must not act arbitrarily or capriciously We are not loosing sight of the above principles and only keeping in mind the above principles we are obliged to examine what actually and factually transpired in the present case We have noted the relevant dates as above. There is a caustic comment by Mr. Y. N. Oza learned counsel for the petitioner that both with regard to the initiation of disciplinary action by issuance of the charge sheet and as well as with regard to the process of implementing and operating the select list settled by the Departmental Promotion Committee there had been undue and unexplained delay and this alone has proved a fatal factor to the petitioner getting the promotion and viewed from this angle this Court must characterise the exercise of power pursuant to paragraph 7 of the Government Resolution as arbitrary unreasonable and capricious Taking up the question of the issuance of the charge sheet; when we dwell upon the relevant happenings as noted above we find that there could not be an adverse comment of inordinate delay in the formulation of the charge sheet. The processes gone through and the stages through which they were gone cannot be skipped over and to do so would involve risk for the administration because one step missed or glossed over will make the authority miss the link and every action followed up culminating in the final decision may run the risk of being characterised as the products of non-application of mind to relevant factors. The possibility of such a situation arising cannot be totally ruled out. Hence the formalities that have been gone through cannot be nainvely brushed aside on the simple ground that the time has been consumed over them. It is not even pleaded by the petitioner that inordinate delay occurred only at the instance of some one interested against the petitioner and the process was prolonged deliberately. There are no allegations of lack of good faith and malice. Hence we are not in a position to accept the argument put forth by Mr. Y. N. Oza learned counsel for the petitioner that we must hold that the respondent acted arbitrarily and unreasonably in the matter of issuance of charge sheet. ( 12 ) THEN we take up the other aspect of the implementation or the effectuation of the select list settled by the Departmental Promotion Committee on 26. 5. 1992. It is true that the petitioner got into the select list so settled by the Departmental Promotion Committee but there the matter could not end because the select list settled by the Department Promotion Committee has got to be referred to the Gujarat public Service Commission after the approval of the Government. The Government approved the select list on 30. 8 and the reference to the Gujarat Public Service Commission happened on 25. 9. 1992. The Gujarat Public Service Commission gave its approval on 25. 4. 1993 and the promotions were ordered on 21. 7. 1993. No abnormality; we are able to perceive either in the processes or the time taken for the processes. Hence on this count also we could not say that inordinate and avoidable delay occurred. It is the misfortune of the petitioner that before he could be promoted the departmental proceedings which were already in the offing culminated in the issuance of the charge sheet. ( 13 ) THERE is a complaint by Mr. Hence on this count also we could not say that inordinate and avoidable delay occurred. It is the misfortune of the petitioner that before he could be promoted the departmental proceedings which were already in the offing culminated in the issuance of the charge sheet. ( 13 ) THERE is a complaint by Mr. Y. N. Oza learned counsel for the petitioner that the affidavit-in-reply has not exposed all the relevant dates and dates as have been now exposed before us and we should not take note of these relevant dates and dates. But we find that in the affidavit-in-reply the dates and dates have been broadly stated and from the records which are placed before us we can certainly find out further details to assess what actually transpired; especially when a complaint of inordinate delay and thereby a prejudicial situation arising against the petitioner is being put forth by him. Having examined the records and having found out the details we are bound to take note of them and not forget them. ( 14 ) IT has been countenanced in Union of India etc. etc. vs. K. V. Jankiraman etc. etc. AIR 1991 S. C. 2010:"an employee has no right to promotion. He has only a right to be considered for promotion. The promotion to a post and more so to a selection post depends upon several circumstances. To qualify for promotion the least that is expected of an employee is to have an unblemished record. That is the minimum expected to ensure a clean and efficient administration and to protect the public interests". It could be though that this proposition could be applied only where the Government servant in fact has been finally penalised. But this line of thinking is erroneous because it has also been countenanced in Delhi Development Authority vs. H. C. Khurana. Judgment Today 1993 (2) S. C. 695 that even where a decision has been taken to initiate disciplinary proceedings against a Government servant his promotion even if he is found to be otherwise suitable would be incongruous because a Government servant under such a cloud should not be promoted till he is cleared of the allegations against him into which an inquiry has to be made according to the decision taken. These are the propositions settled by the Apex Court in the context of Instructions similar to those found in the Government Resolution including paragraph 7 there of. Paragraph 7 of the Government Resolution seems to have provided for the contingency of keeping away those Government servants who have actually come within the mischief of facing prosecution of disciplinary proceedings after the issuance of charge memorandum. In the present case as already noted there are no allegation of mala fides. The only factor which we are asked to note of is the alleged inordinate delay on both the counts to say that the action is arbitrary and unreasonable. We have found that there has not been any inordinate delay either with reference to the initiation of the departmental proceedings or the effectuation of the select list settled by the Departmental Promotion Committee and the processes that are required to be taken legitimately alone have been gone through and hence they have to stand and need not be frowned upon. ( 15 ) THE learned Single Judge who dealt with the Special Civil Application has not lost sight of the relevant principles settled by the Apex Court and in fact has righly applied the principles in the background of the facts of the case. Thus the learned Single Judge did not choose to accord the reliefs prayed for by the petitioner in the Special Civil Application. Here we must record that the petitioner though challenged the charge sheet in the Special Civil Application gave up that challenge before the learned Single Judge. The learned Single Judge while rejecting the Special Civil application gave directions as follows:"the petiton is rejected. However the respondent is directed to see that the departmental proceedings against the petitioner arising on the charge sheet dated February 2 1993 should be completed as expeditiously as possible and preferably within EIGHT MONTHS from now. However if the departmental proceedings are not completed within two years from May 26 1992 the procedure for review as envisaged by paragraph 2 (1) of the Govt. Resolution G. A. D. No. SLT- 1080/896/g2 dated April 2. 1993 should be followed. There shall be no orders as to costs. Rule is accordingly discharged". However if the departmental proceedings are not completed within two years from May 26 1992 the procedure for review as envisaged by paragraph 2 (1) of the Govt. Resolution G. A. D. No. SLT- 1080/896/g2 dated April 2. 1993 should be followed. There shall be no orders as to costs. Rule is accordingly discharged". ( 16 ) WE are convinced that the learned Single Judge was right in directing the respondent to complete the disciplinary proceedings within eight months from the date of his order namely 15. 9 But the learned Single Judge delegating the case of the petitioner if the disciplinary proceedings are not completed within two years from May 26 1992 to a review process under the other Government Resolution will only place the petitioner in the sphere of discretion reserved for the respondent under the other Government Resolution. On the facts of the case this will prove onerous to the petitioner. We are told by Mr. Y. N. Oza learned counsel for the petitioner that even as on date no inquiry officer has been appointed. Mr. T. H. Sompura learned Assistant Government Pleader for the respondent is not in a position to controvert this statement of the learned counsel for the petitioner. The respondent cannot unduly protract the disciplinary proceedings to the prejudice of the petitioner and must complete the same within the time schedule prescribed by the learned Single Judge. Hence on the facts and circumstances of the case we are obliged to give and we do give a direction that in case the disciplinary proceedings are not completed within eight months from the date of the order of the learned Single Judge namely 15. 9 The petitioner shall be accorded the promotion as he has already found a place in the select list; but such promotion shall be on ad hoc basis and subject to the results in the disciplinary proceedings. This promotion shall be given without reference to paragraph 7 of the Government Resolution. Except for the modification as above this Letters Patent Appeal is dismissed. We make no order as to costs. Letters Patent appeal Dismissed. .