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2010 DIGILAW 103 (GUJ)

SHAH VINOD KUMAR CHANDULAL v. STATE OF GUJARAT

2010-02-25

D.H.WAGHELA

body2010
JUDGMENT D. H. WAGHELA, J. The petitioners have invoked Articles 14, 16 and 226 of the Constitution and they have sought consideration of their cases for promotion to the post of Senior Environment Engineer from the post of Environment Engineer, which they are holding at present under respondent no.2. There is no dispute about the fact that the respondent concerned is required to abide by the policy of the State Government contained in the resolution dated 08.06.2007, according to which, the principle of selectivity is required to be followed in the promotion in question. The guidelines for applying the principle of selectivity are provided by earlier resolution dated 29.10.2005 of the State Government and the requirement relevant for the present purpose is that the officer in Class-II has to have the remark of “very good” or “outstanding” in five out of last eight years in his ACRs, for the purpose of entering zone of consideration for promotion to the higher post in Class-I. 2. The petitions were pressed by learned senior advocate, Mr. Nanavati, mainly on the basis that after the judgement of the Apex Court in Dev Dutt Vs. Union of India [ 2008 (8) SCC 725 ] being declared on 12.05.2008, and being widely published immediately thereafter, the respondents were not justified in initiating the process for promotion without following the ratio of the judgement, according to which all ACRs were required to be communicated to the officer concerned. He submitted that admittedly, the ACRs of previous eight years have not been communicated to the petitioners. The remark of 'good', being not communicated on the one hand and depriving the petitioners of consideration for promotion on the other hand, made it important and imperative that the process of promotion should not have been undertaken in the first place before the aforesaid judgement was fully and properly complied with, according to the submission. He further submitted that, factually, even after the aforesaid judgement and the relevant year of 2008-09 being over, the petitioners were not communicated even the ACRs of the last year and, 3. Learned Additional Advocate General, Mr. Mehta, appearing for the respondent, submitted that the aforesaid judgement of the Supreme Court could not be applied in such manner that no one can be promoted for eight years after the said judgement. Learned Additional Advocate General, Mr. Mehta, appearing for the respondent, submitted that the aforesaid judgement of the Supreme Court could not be applied in such manner that no one can be promoted for eight years after the said judgement. On facts, statement was made after verification of the record, which was made available in the Court, that none of the petitioners were falling within the zone of consideration even if their evaluation in the ACR for the year 2008-09 were “very good” or “excellent”. Therefore, the petitioners were unlikely to get any benefit if they were communicated the ACRs for the last year. Thus, the apprehension of the petitioners that if their ACRs in respect of the last year i.e. 2008-09 were considered, they might have had a chance of consideration is belied on facts. 4. As for application of the aforesaid judgement in Dev Dutt (supra.) it was pointed out from the record that the procedure and modality of applying the ratio of that judgement was under consideration of the Government and even the Central Government has, by Office Memorandum dated 14.05.2009, of which a copy was placed on record, taken a decision that : “(v) The new system of communicating the entries in the APAR shall be made applicable prospectively only with effect from the reporting period 2008-09 which is to be initiated after 1st April, 2009.” Learned additional advocate general also relied upon Division Bench decision dated 20.06.2007 of this Court in Letters Patent Appeal No. 1629 of 2006 wherein, it was held that confidential reports are written on the basis of performance of an officer and has no connection whatsoever with the rules of promotion. It is held by the Supreme Court way back in the year 1974 in State of Jammu & Kashmir Vs. Triloki Nath Khosa & Ors. [ AIR 1974 SC 1 ] that, a rule which classifies employees for promotional purposes, undoubtedly operates on those who entered service before the framing of the rule but it operates in future in the sense that it governs the future right of promotion of those who are already in service. 5. In view of the above factual and legal position, the argument, that the whole promotion process was required to be stayed till the petitioners were communicated their latest ACRs, cannot be accepted. 5. In view of the above factual and legal position, the argument, that the whole promotion process was required to be stayed till the petitioners were communicated their latest ACRs, cannot be accepted. It was stated at the bar that the present process for promotion is initiated for filling up eight promotional posts and the respondents are bound to follow the Supreme Court judgement as well as the guidelines that may be issued by the Government from time to time, in the process of promotion which may be undertaken from year to year in the future. However, as no ground is made out to interfere with the present process of promotion, the petitions are dismissed. Notice is discharged in each of the petitions with no order as to costs. Ad interim relief granted earlier stands vacated. 6. Upon this order being dictated in the open Court, learned senior advocate for the petitioner requested to continue the ad interim relief, which was operating till today, for a further period of fifteen days for approaching the higher forum. Partly conceding to that request, it is directed that if the promotions in question are being finalized and given effect to on or before 15.03.2010, three of the total eight promotional posts shall not be filled up till that date. (NRP) Petitions dismissed.