N. J. PANDYA, J. ( 1 ) THE petitioner who is working as Chief Engineer and Joint Secretary to the Government of Gujarat Sachivalaya Gandhinagar has filed the present petition challenging the action of the respondent authorities in issuing the charge-sheet Annexure-A page 24 dt. 28. 11. 91. The challenge is twofold; (1) that it is very much delayed and it relates to the period of service of the petitioner in the month of March to November 1972 when he was working as Executive Engineer at Kadana Irrigation Project and (2) that the Charge was issued malafide. ( 2 ) BEFORE entering into the merits of the case it will be pertinent to give other details also. The petitioner has filed Spl. C. A. No. 5899 which is pending and is being disposed of by this common judgment. There is one more Spl. C. A. No. 2217/91. Disposal of all these matters together will require additional factual data. The first charge sheet came to be issued against the petitioner as per Annexure-B page 32 on or about 28. 12 The petitioner gave reply to it on 13. 2 Annexure-C. That inquiry related to the dates 5. 6. 77 14. 3 and 30. 5. 78. The Government by the order dated 9. 8. 83 withdrew the said charge-sheet and copy of that order is at Annexure E page 37. ( 3 ) ONE more charge sheet was served upon the petitioner in the year 1982 and that again came to be withdrawn on 8. 6. 87 as per the order at Annexure page 50. ( 4 ) CURIOUSLY enough in the year 1987 itself the Government decided to revive the inquiry relating to the incident covered by the first charge-sheet issued on 28. 12. 79 Annexure-B. This led the petitioner to file Spl. C. A. No 5899/87 and the court by an interim order stayed the inquiry and directed the respondents therein to open the sealed cover. It may be pertinent to note here that at about the time in the year 1982 when the inquiry was proposed and thereafter that inquiry was withdrawn on 8. 6. 87 the Departmental Promotion Committee met and therefore the sealed cover procedure was followed. ( 5 ) FOLLOWING the directions given by the court in Spl. It may be pertinent to note here that at about the time in the year 1982 when the inquiry was proposed and thereafter that inquiry was withdrawn on 8. 6. 87 the Departmental Promotion Committee met and therefore the sealed cover procedure was followed. ( 5 ) FOLLOWING the directions given by the court in Spl. C. A. No. 5899/89 the seal cover was opened and the petitioner was found fit for being promoted as Chief Engineer and which post he is occupying today. Virtually therefore no interim order whatsoever was passed in Spl. C. A. No. 5899 and therefore that matter is also being taken up for disposal along with the present petition. ( 6 ) SPL. C. A. No. 2217/91 was filed by the petitioner as he expected that the post of Secretary to Government of Gujarat is about to be filled in but in the course of hearing of that matter the State Government came out with statement that the incumbent who is holding the post at the relevant time is to be given extension and therefore? the post is not to fall vacant. Virtually on this statement this Spl. C. A. No. 2219 is liable to be dismissed. Mr. Oza also made a statement that he has no objection if Spl. C. A. No. 2219/91 is dismissed. Spl. C. A. 2219/91 accordingly stands dismissed. ( 7 ) THIS would lead consideration of Spl. C. A. No. 63/92 and Spl. C. A. No. 5899/87. Once it is appreciated that different inquiries were ordered and at different dates they have withdrawn the averments and allegations as to the malafides in the petition go to suggest that these actions are being taken with a view to see that the promotional chances of the petitioner are jeopardised to certain extent. ( 8 ) HERE we find some remarkable coincidence between the sitting of Departmental Promotion Committee and the issuance of charge-sheets from time to time on different dates. The height of it is the revival of the 1979 charge-sheet page 32 Annexure-B in the year 1987 and that too after receiving the reply of the petitioner it was decided to be withdrawn on 9. 8. 83. As already mentioned the COW of the reply is at Annexure-C and copy of the order of withdrawal is at Annexure-E. This has prompted the court to issue interim orders in Spl. 8. 83. As already mentioned the COW of the reply is at Annexure-C and copy of the order of withdrawal is at Annexure-E. This has prompted the court to issue interim orders in Spl. C. A. No. 5899/87. In the present matter also interim relief in terms of para 12 (e) and (g) were granted on 14. 2. 92 against which L. P. A. No. 459/92 was filed which also came to be dismissed on 21. 12. 92. One result of the L. P. A. was that the prayer contained in para 12 (g) was required to be granted because it was for the learned Judges of the Division Bench while dealing with the L. P. A stated that unless the attack on the charge sheet is settled one way or the other it is not desirable to countenance the prayer in para 12 (g) and therefore the interim relief granted by the learned Single Judge to that extent i. e. with regard to para 12 (g) was set aside and the remaining prayer of interim relief in accordance with para 12 (e) was allowed to continue. Virtually therefore the charge-sheet Annexure-A could not be proceeded with. 8 1 The matter has been heard now finally and therefore I am required to consider whether to grant the relief in para 12 (b) whereby quashing the inquiry is asked for. Now in this connection it may be stated that on page 3 para 2 of the petition as well as on page 7 in sub-para (ii) of main para 3 of the petition there are clear-cut averments with regard to the malafides and there is reference to the attempt of thwarting the promotional chances of the petitioner by persons who might be interested in doing so if not in completely preventing the petitioner from getting his due promotion. ( 9 ) THE promotional post is again that of Secretary which now fell vacant and is likely to be filled in very soon and that is why at the time of passing the final order in L. P. A. No. 459 of 1992 directed that Spl. C. A. No. 63/92 along with the two remaining matters be listed for final hearing as early as possible. C. A. No. 63/92 along with the two remaining matters be listed for final hearing as early as possible. ( 10 ) AFORESAID background of earlier two charge-sheets and their withdrawal coupled with the revival of the withdrawn charge-sheet would clearly make one feel that the petitioners averments about malafides has a substance. ( 11 ) AFFIDAVIT-IN-REPLY of the Deputy Secretary is at page 58 onwards which is a copy of the original and this affidavit-in-reply contains denial about the allegations as to malafides but the respondents cannot get away from the aforesaid factual situation of different charge sheet having been issued and withdrawn and out of the two withdrawn earliest one was revived. ( 12 ) NOW coming back to the charge-sheet with which the present application is concerned if one goes through it and strictly viewed it is clear that it relates to the period from March 1972 to November 1972 It is also to be noted that the petitioner was the Executive Engineer and therefore the highest authority of a particular section of Kadana Irrigation Project and whatever that was happened under him technically he might be responsible. But that would be an overall responsibility and the allegations with regard to the alleged financial irregularities unless it is shown that he is directly involved in it and has himself involved in it any of such irregularity it will be very difficult to comprehend that after almost 17 years these charges would be collected together and levelled against the petitioner. As I am about to strike down the said charge sheet I will not enter into its merits. I may further state that whatever financial irregularities are referred to they are nothing else but indication of certain stipulation of contract and certain rules and regulations not even scrupulously followed and thereby it is made in the chargesheet itself that there was a policy in following the same e. g. if an amount was to be recovered it was recovered late or instead of recovering it was adjusted towards the outstanding dues of the contractor. In other words on reading the charge-sheet it is not possible to even remotely suggest that Government is made to suffer a loss much less a financial loss. ( 13 ) WHEN affidavit of Mr. Modi Dy. In other words on reading the charge-sheet it is not possible to even remotely suggest that Government is made to suffer a loss much less a financial loss. ( 13 ) WHEN affidavit of Mr. Modi Dy. Secretary is taken into consideration in para 5 he has to explain a long period of 17 years and thereafter the charge-sheet is filed. As s could be readily expected Mr. Shukla learned A. G. P. has heavily relied upon para 5 of the affidavit in reply and stated that right upto the date of service of charge-sheet the period is explained. However there is a gap of almost 11 years which has not been explained at all. ( 14 ) IN para 5 page 60 of the affidavit-in-reply the date is given as 25. 3. 1983 where a sub-committee is said to have been appointed to investigate into the details of the irregularities the report of which was received by the Public Accounts Committee when the Comptroller and Auditor General of India had found the financial irregularities regarding cement carting and other items in construction of Kadana Dam. 14. 1 When the audit was carried out and when was the report made to the Public Accounts Committee the respondents are totally silent about it. There is a reference to the fact that 26 officers were responsible and the Government is proceeding against them in case of each of the officer said to be involved cannot be considered the same as that of the present petitioner and it will stand on its own footing. But so far as the petitioner is concerned in my opinion this is a vague and generalised attempt by extending time will not help the respondents. ( 15 ) IN the same way with regard to the revival in the present affidavit in reply though in the petition there are averments made challenging the said revival nothing is to be found and Spl. C. A. No. 5899/87 which relates to revival but there again nothing worthwhile is to be found. ( 16 ) IN short therefore what remains is that all of a sudden when the time has come for the authorities to consider the question of filling up the post of Secretary to Government where along with other candidates the petitioner is also likely be considered the charge-sheet is served. ( 16 ) IN short therefore what remains is that all of a sudden when the time has come for the authorities to consider the question of filling up the post of Secretary to Government where along with other candidates the petitioner is also likely be considered the charge-sheet is served. This would clearly be an inference under the facts and circumstances narrated above. ( 17 ) ONCE it may be a coincidence but the over all view of the discussion above with regard to earlier two charge-sheets withdrawal of both and revival of first almost in the nick of promotion being considered coupled with the charge-sheet at Annexure-A page 24 at the time when the post of Secretary to Government is to be filled in in my opinion leads to the inference that the prospect of the petitioner weighed with the concerned authorities than mere desire to investigate into the irregularities. ( 18 ) THE L. A. for the petitioner Mr. Y. N. Oza has drawn my attention in a reported decision of this court given in Spl. C. A. No. 2166/79 by Mr. Justice A. M. Ahmedi (as then he was) on 26. 6. 86. It appears that under Bombay Prohibition Act a case was registered against the petitioner and in that case the petitioner was acquitted by the order dt. 16. 10. 76 by a competent court. The appeal was also dismissed in the year 1976. The charge-sheet was framed against the petitioner relating to an incident of the year 1972. As a result the petitioner was not reinstated. Annexure-A dated 23. 1. 76 is the charge-sheet to that petition. The petitioner filed the said petition for quashing the charge sheet. The petition was admitted to be heard on 3. 8. 79 and interim relief against proceedings with the departmental inquiry was granted. Soon thereafter the petitioner was promoted to the next higher post of Police Inspector in due course on 9. 9. 82. The learned Judge while dealt with the matter in the year 1986. Therefore the explanation was to the effect that more them 14 years have been elapsed and that in the meantime the petitioner came to be reinstated and promoted. 9. 82. The learned Judge while dealt with the matter in the year 1986. Therefore the explanation was to the effect that more them 14 years have been elapsed and that in the meantime the petitioner came to be reinstated and promoted. He remained under suspension for a long period and after he was finally acquitted in criminal case; he was reinstated till January 1978 ( 19 ) IN short looking to the aforesaid factual background the learned Judge was pleased to accept the plea and quashed the inquiry. No doubt virtually the two cases may not be identical. However the fact remains that for an incident of the year 1972 present inquiry is proposed to be held in the year 1991. In the meantime as noted above from the post of Executive Engineer the petitioner has reached to the post of Chief Engineer and as per the averments made in the petition? he is likely to be considered for still higher post e. g. Secretary to Government of the concerned department. I therefore respectfully agree with the aforesaid line of reasoning as set out in the said judgment in Spl. C. A. No. 2166 of 1979 and will therefore adopt the same course of action here coupled with the aforesaid clear background of passage of time in the case as discussed above. There is reasonable ground to infer that something other than more administrative action is making and the element of malafide is clearly indicated. All told therefore the petition is required to be allowed and therefore the inquiry proposed against him as per charge sheet at Annexure-A is hereby quashed. If the Departmental Promotion Committee has already deliberated upon the question of promoting the petitioner to the post of Secretary to the Government of the concerned department the decision is to be implemented in the light of this order and in case the petitioners name is not considered by it it shall act in the light of the order. ( 20 ) BEFORE passing any order in Spl. C. A. No. 5899 I would like to discuss a little further. In Spl. C. A. No. 5899/87 there is affidavit-in-reply of D. K. Raval incharge Under Secretary to Government Narmada Development Department. ( 20 ) BEFORE passing any order in Spl. C. A. No. 5899 I would like to discuss a little further. In Spl. C. A. No. 5899/87 there is affidavit-in-reply of D. K. Raval incharge Under Secretary to Government Narmada Development Department. Except for reiterating that Government is competent to reopen any inquiry there is no factual basis whatsoever to be found in the said affidavit in reply which would justify the said action on the part of the Government to reopen the inquiry. Nobody is questioning the competence of Government to reopen the inquiry. However it has to justify its action especially when it received the reply from the petitioner way back in the year 1983 it had decided as per Annexure-E page 33 of Spl. C. A. No. 63/93 to withdraw the same. Unless there are compelling circumstances it should be borne out from the record itself and should be set out in some details in the affidavit in reply. Reliance of the competence of the Government to reopen the inquiry will not be sufficient. . ( 21 ) THE petitioner who was to be superseded has now been given the date of promotion in April 1982 Accordingly the respondents nos. 3 and 4 who were to steal march over the petitioner have now been given the date of promotion in July 1982 This can be gathered from page 3 of the order dt. 27. 12. 84 where the respondents nos. 3 and 4 are shown at Sr. No. 27 and 28 respectively. ( 22 ) IN the light of the aforesaid situation to be found in Spl. C. A. No 5899/87 it is obvious that the inquiry sought to be revived with reference to be charge-sheet dated 28. 12. 79 Annexure. B deserves to be quashed and accordingly it is quashed. As a consequence to this order whatever consequential actions are to be taken by the respondent authorities the same shall be done in accordance with the rules within three months. Rule made absolute accordingly. No order as to costs. Writ to go forthwith. Petition Allowed. .