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2009 DIGILAW 276 (GUJ)

Chandubhai N. Soni v. Administrative Officer

2009-04-16

JAYANT PATEL

body2009
JUDGMENT : Jayant Patel, J. The short facts of the case appears to be that the petitioner when was working as Divisional Controller, was not considered for promotion and the grievance on the part of the petitioner was that one Mr. S.K. Patel, who was junior to him was granted promotion. Therefore, the petitioner has preferred the petition for issuing appropriate directions to the respondent Corporation to give the promotion to the petitioner on the post of Junior Traffic and Commercial Manager/Chief Personal Officer of the Corporation from the date on which his junior Mr. S.K. Patel was granted promotion. 2. It appears that when the petition was admitted by this Court on 16.01.1992, following order was passed: "Rule. Interim relief granted earlier is modified to the effect that promotion which may be given to the post in question will be subject to the outcome of this petition. It is clarified that the pendency of this petition will not deter the respondents from considering the petitioner for promotion to the post in question or any equivalent post." 3. The matter was thereafter to be listed for final hearing. It appears pending the petition, the case of the petitioner was considered by the Corporation and he was granted promotion from 21.04.1994 on the post on the post of Chief Traffic and Commercial Manager. The petitioner thereafter continued in service and also retired. Ultimately, when the matter came up for consideration before this Court (Coram : S.K. Keshote, J.) for final hearing, on 11.08.2000, this Court recorded that the petitioner has already been given promotion on 24.04.1994 and he has retired from service. This Court, therefore, observed that for giving deemed date of the promotion, the petitioner may make representation to the respondent No.3 and the respondent was directed to consider the same. It was also observed that in the event the case of the petitioner is not acceptable, the reasoned order shall be passed and the petitioner was given liberty to revive the petition. 4. It appears that thereafter, the petitioner had made a representation on 12/15.09.2000 and in the said representation, it was prayed by him that Mr. It was also observed that in the event the case of the petitioner is not acceptable, the reasoned order shall be passed and the petitioner was given liberty to revive the petition. 4. It appears that thereafter, the petitioner had made a representation on 12/15.09.2000 and in the said representation, it was prayed by him that Mr. S.K. Patel has been granted promotion in the year 1991, i.e. 25.06.1991 and therefore, he would also be entitled to promotion from that date and hence, the deemed date be given from 25.06.1991 and the consequential benefit for the period from 25.06.1991 to 21.04.1994 also be paid to him. It appears that thereafter, the Corporation considered the representation of the petitioner and vide decision dated 11.04.2001, the same is rejected on the ground that as default case were pending against him in the Departmental Inquiry, he was not granted promotion and subsequently, in the default cases in such Departmental Inquiry, the punishment has been imposed upon him and under these circumstances, the deemed date as prayed by him cannot be granted. Therefore, his representation is rejected. The petitioner thereafter has preferred the application for revival of the petition which has been granted. Hence, the present petition comes up for consideration before this Court. 5. The learned advocate for the petitioner has placed on record the copy of the representation dated 12/15.09.2000 as well as the decision upon the representation dated 11.04.2001. 6. Mr. Desai, learned counsel for respondent Corporation has placed on record the reasons recorded by the Authority for rejection of the representation of the petitioner. It may also be recorded that after revival of the petition, the petitioner by amendment has challenged the decision of the Corporation below the representation of the petitioner or for rejection of the representation. 7. Heard Mr. Saurabh Patel with Mr. Jani for the petitioner and Mr. Desai for respondent Corporation. 8. Perusal of the reasons recorded by the respondent Corporation shows that case of the petitioner from 1991 to 1994 was not considered for promotion since 3 default cases of the Departmental Inquiry were pending against him and he was kept outside the zone of consideration and the other officer viz. H.T. Chauhan and S.K. Patel were selected for promotion. Thereafter, in the Departmental proceedings, punishment was imposed upon the petitioner, but in only one case, he preferred the appeal wherein the punishment was reduced. H.T. Chauhan and S.K. Patel were selected for promotion. Thereafter, in the Departmental proceedings, punishment was imposed upon the petitioner, but in only one case, he preferred the appeal wherein the punishment was reduced. It also appears that thereafter, in the year 1994, since the departmental proceedings were concluded, the case of the petitioner is considered for promotion and he has been granted promotion. 9. If the departmental proceedings were pending and in such departmental proceedings, ultimately, the punishment has been imposed upon the petitioner, the action on the part of the Corporation for excluding the petitioner from the zone of consideration cannot be said as arbitrary or unreasonable. Further, if the punishment has been imposed in the departmental proceeding upon the petitioner, he cannot be termed at par with the other juniors, viz. H.T. Chauhan and S.K. Patel who were granted promotion. The petitioner has not been fully exonerated from the departmental proceeding. If the punishment has been imposed, may be a minor punishment, would not confer the right upon the petitioner to get the deemed date of promotion on the date when his juniors were promoted though his case was not considered for promotion also on account of the departmental proceedings pending then. The petitioner has been communicated the substance of the decision that as the punishment was imposed upon the petitioner, the deemed date of promotion has not been granted. 10. No material is shown to this Court that the petition was fully exonerated from the Departmental Inquiry pertaining to the default cases as prevailing then. Therefore, this Court has to proceed on the basis that the punishment were imposed in the departmental proceeding. It is true that at the time when the departmental proceeding are concluded, the authority has the power to make observations for conferring the benefit or otherwise for the period during which the departmental proceedings were pending. However, if at the outcome of the departmental proceedings, the punishment is imposed upon any employee and no specific observations are made for maintaining the benefit of promotion, such an approach cannot be said to be per se unreasonable or arbitrary. However, if at the outcome of the departmental proceedings, the punishment is imposed upon any employee and no specific observations are made for maintaining the benefit of promotion, such an approach cannot be said to be per se unreasonable or arbitrary. Further, if at the outcome of the inquiry, the punishment has been imposed, the action on the part of the competent authority for not considering the case of the employee concerned for promotion on account of the pendency of the departmental proceeding cannot be said as unreasonable or arbitrary. In any case ultimately, such inquiry, has culminated into punishment since the petitioner was found guilty. 11. Hence, as punishment has been imposed upon the petitioner in the Departmental Inquiry, the petitioner would not be entitle to the deemed date of promotion at part with Shri S.K. Patel, who was junior to him and grant promotion on 25.06.1991. Consequently, the decision of the Corporation of rejecting the representation of the petitioner also cannot be said as unreasonable or arbitrary. 12. In the result, the petition fails. Hence, the same is dismissed. Rule discharged. No order as to costs.