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Gujarat High Court · body

2013 DIGILAW 758 (GUJ)

R. Ravi v. State of Gujarat

2013-12-21

RAVI R.TRIPATHI

body2013
Judgment Ravi R. Tripathi, J.—Present petition No. 27050 of 2007 is filed by the petitioner, who was serving to Chitnish to Additional Collector at the relevant time, praying that: 16(B) Be pleased to issue a writ of mandamus and/or a writ in the nature of mandamus or any other appropriate writ, direction or order upon the respondent, it’s agents or servants directing them release all the arrears of retirement dues and to re-fix the pension of the petitioner by giving deemed promotion to the Higher Post / Pay scale”. 2. Learned advocate, Mr. R.N. Shah, for the petitioner requested that papers of Special Civil Application No. 11001 of 2008 may be called for as it is by the same petitioner and having the relief of the same nature. Learned advocate, Mr. Shah, also stated that on 27.11.2008, this Court while admitting the matter ordered that this special civil application be heard along with Special Civil Application No. 27050 of 2008. 3. It is further prayed that; (C) And be pleased to quash and set aside the adverse remark at Annexure-B, D & E and be pleased to further direct the respondents to give promotion to the petitioner as he is eligible by ignoring the aforesaid adverse remark in confidential report at Annexure-B. 4. The petition was amended vide order dated 11.9.2013 passed in Civil Application No. 7497 of 2013, the following relief’s which are added: 16(B1) Be pleased to issue a writ of mandamus and/or a writ in the nature of mandamus or any other appropriate writ, direction or order upon the respondent, it’s against or servants directing them release all the arrears of retirement dues and to refix the pension o the petitioner by giving deemed promotion to the Higher Post / Pay scale. 16(B2) Be pleased to direct the respondents, it’s agents or servants to pay arrears o the pension with 18% interest. 5. 16(B2) Be pleased to direct the respondents, it’s agents or servants to pay arrears o the pension with 18% interest. 5. So far as Special Civil Application No. 11001 of 2008 is concerned, the petitioner has prayed that 11(B) To quash and set aside the order at Annexure-F along with the noting at Annexure-E, passed by the Respondent No. 1 and be pleased to hold that there is no adverse remarks against the confidential report pertaining to the period 3.7.2005 to 31.3.2006 and be pleased to quash and set aside any adverse remarks in the confidential report for the said period and be pleased to direct the respondent-authorities Respondent Nos. 1 and 2 to promote to the petitioner to the higher post as his juniors have been given and be pleased to grant the relief by considering the deemed date of promotion and be pleased to quash and set aside the adverse remarks in the confidential report and the order passed at Annexure-E & F and be pleased to direct the respondents to give promotion to the petitioner as he is eligible by ignoring the aforesaid remarks in the confidential report. 6. Learned advocate for the petitioner submitted that during the pendency of this petition, petitioner was constrained to file Civil Application for amendment being Civil Application No. 7496 of 2013 which was allowed by 11.9.2013. Pursuant to that order, the following reliefs are added in Special Civil Application: 11-B1 Be pleased to issue a writ of mandamus and/or a writ in the nature of mandmus or any other appropriate writ, direction or order upon the respondent, it’s against or servants directing them release all the arrears of retirement dues and to refix the pension of the petitioner by givng deemed promotion to the Higher Post / Pay scale 11-B2 Be pleased to direct the respondents, it’s agents or servants to pay arrears of the pension with 18% interest. 7. The facts of the case are as set out by the petitioner in Paras 1 and 2 in Special Civil Application No. 27050 of 2007, the same are reproduced for the ready reference: 1. The petitioner is a national and citizen of India. That his birth date is 10th June, 1952, he is hardworking and fond of studies and obtained the qualification of M.P.A. (Master of Public Administration) and also holding the decree of MBA from B.K. School of Management. The petitioner is a national and citizen of India. That his birth date is 10th June, 1952, he is hardworking and fond of studies and obtained the qualification of M.P.A. (Master of Public Administration) and also holding the decree of MBA from B.K. School of Management. He belongs to Tamil Nadu and he joined the service in the Gujarat State as Dy. Mamlatdar by direct recruitment on 1.10.1977. As he belongs to Tamilnadu, he has learnt Gujarat language and he has passed all the departmental examination in Gujarati and he has also assisted and worked as a member of Prayojak Committee for the work of computerization of the records of the state of the land and therefore, he is capable of holding the executive post. Thereafter, he was promoted as Mamlatdar in the year 1996. That he has worked as Mamlatdar from 16th May, 2002 and 25th March, 2003 at Ranpur. Thereafter, he was working as Mamlatdar since then to 14th March, 2007. That he is eligible for the promotion on the post of Dy. Collector as well as he is entitled to get the higher salary, higher grade in lieu of his services since 1977. 2. Thereafter, he came to know by notification issued on 24th July, 2007, that his juniors are promoted to the post of Dy. Collector and he has not been promoted. The copy of the said notification dated 24th July, 2007 is annexed hereto and marked as Exhibit-A. That the petitioner was served with a report of confidential report, by the Respondent No. 2 vide letter dated 5th August, 2002, by informing that the petitioner is given the confidential report with regard to the service from 14th September, 2001 to 13th March, 2002 by informing that the petitioner is not suitable for executive line postings. It is also mentioned that “he is gentleman but he is very weak officer, he is not taking pains to understand the issue. He is not studious, he is totally unfit for executive post”. The petitioner was further informed that if he is aggrieved entitled to file representation six weeks from the receipt of this report. The copy of the said report confidential report is annexed hereto and marked as Annexure-B. 8. The controversy involved in this petition is that adverse remarks for the period from 14.9.2001 to 13.3.2002 which were communicated to the petitioner on 5th August, 2002. The copy of the said report confidential report is annexed hereto and marked as Annexure-B. 8. The controversy involved in this petition is that adverse remarks for the period from 14.9.2001 to 13.3.2002 which were communicated to the petitioner on 5th August, 2002. Against which, the petitioner filed a representation on 13th September, 2003 which was not replied for a period of 4 years and it was replied only by communication dated 15.6.2006. 9. The learned advocate for the petitioner vehemently submitted that the communication dated 15.6.2006 is illegal and unjust inasmuch as the result of his representation dated 13.9.2003 conveyed to the petitioner only by letter dated 15.6.2006. True it is that there is a delay in communicating the decision on the representation but this Court has to take into consideration the fact that the petitioner was not prejudicially affected by that non communication. Beside that, a note of the fact that the petitioner never made any reminder about his representation against the adverse remarks is also required to be taken. It so happened that in the month of December, 2006, the Departmental Promotion Committee met and the petitioner was not promoted. Obviously that is the reason by which the petitioner was inspired to approach this Court by filing the petition being Special Civil Application No. 27050 of 2007. This is clear from the fact that initially prayer in this petition was to the effect that adverse remarks be expunged and to consider the case of the petitioner for promotion. There is a reply filed by the Authority in this petition by one Shri S.S. Parekh, Under Secretary, Revenue Department and it is specifically mentioned that: 6. I say and submit that the petitioner was having adverse remarks from 14.9.2001 to 31.3.2002 in his CR, the department on 5.8.2002 informed the petitioner about the said remarks reflecting in his CR. I say and submit that a representation dated 13.9.2002 was made by the petitioner in light of the letter dated 5.8.2002. I further say and submit that the said representation dated 13.9.2002 was sent to the Reporting and Reviewing Authority, the said authority opined that the said adverse remarks in the CR of the petitioner from 14.9.2001 to 31.3.2002 shall remain permanent. (Emphasis supplied). 10. That particular decision is communicated to the petitioner only by communication dated 15.6.2006. I further say and submit that the said representation dated 13.9.2002 was sent to the Reporting and Reviewing Authority, the said authority opined that the said adverse remarks in the CR of the petitioner from 14.9.2001 to 31.3.2002 shall remain permanent. (Emphasis supplied). 10. That particular decision is communicated to the petitioner only by communication dated 15.6.2006. But then, the facts are that the petitioner also earned adverse CRs for the period from 3.7.2005 to 31.3.2006 which too were communicated to the petitioner on 20.12.2006 and the petitioner replied to the said communication by letter dated 1.2.2007. 11. The cumulative effect of these two adverse CRs is that Departmental Promotion Committee which met on 21.2.2006, 26.12.2006 and on 21.2.2007, did not find the petitioner eligible for promotion. It is submitted by the learned AGP that the promotion from the post of Mamlatdar to Deputy Collector is governed by the principle of ‘merit-cum-seniority’. That being so, the confidential report of the officers of the last 5 years prior to the date of meeting of the Departmental Promotion Committee are required to be taken into consideration. It is only if the person is having good CRs his case finds favour with the Departmental Promotion Committee. 12. In the present case, the petitioner was having two adverse CRs i.e. one from 14.9.2001 to 31.3.2002 and another from 3.7.2005 to 31.3.2006. 13. In view of that Departmental Promotion Committee did not find him fit for promotion and that is how, the petitioner was deprived of the promotion. 14. At this juncture, it will be appropriate to look to the adverse CRs assigned for the period from 14.9.2001 to 31.3.2002. It is stated that, “He is gentleman but he is a very weak officer, he is not taking pains to understand the issue. He is not studious, he is totally unfit for executive post”. 15. Now one may say that remark to the effect that, ‘he is gentleman’ cannot be said to be an adverse remark but then the question is what follows thereafter, is important. He is not studious, he is totally unfit for executive post”. 15. Now one may say that remark to the effect that, ‘he is gentleman’ cannot be said to be an adverse remark but then the question is what follows thereafter, is important. When a person is required to be considered to be promoted to the post of Deputy Collector, who is otherwise suppose to take all important decisions of administration of various departments at the District level, it becomes not only relevant but also important that, ‘he is a very weak officer’ and ‘he is not taking pains to understand the issue’. In light of that, it is rightly inferred that, ‘he is totally unfit for executive post’. 16. Learned advocate for the petitioner did argue that he was holding the post of Mamlatdar. In absence of the specific criteria of promotion from the Deputy Mamlatdar to Mamlatdar being placed on record, this Court restrains itself from opining whether he was rightly holding the post of Mamlatdar or not. It is settled law that for promotion of a person from the post of Deputy Mamlatdar to Mamlatdar there will be a septate criteria. But when a person is to be further promoted i.e. from Mamlatdar to Deputy Collector the department has to take into consideration his capacity to discharge the duties of the promotional post. Therefore, once the department having communicated to him the adverse CRs for two different periods and having taken into consideration the representation made by him, not finding favour so as to expunge those remarks it cannot be said that Department has faulted in not promoting him to the post of Deputy Collector. Learned advocate for the petitioner relied upon following decisions of this Court. (i) In the matter of C.N. Chavda vs. Director General of Police, Gujarat State reported in 1992 (1) GLH 209 . The judgment is to the effect that delay in communicating the adverse remarks and not on the point of communicating the result of the representation made by the petitioner. In the present case, the remarks for the period from 14.9.2001 to 31.3.2002 were communicated to the petitioner without any delay and on 5.8.2002, not only that against that the petitioner was weak enough to make representation and thereafter, there is inaction on the part of the petitioner. In the present case, the remarks for the period from 14.9.2001 to 31.3.2002 were communicated to the petitioner without any delay and on 5.8.2002, not only that against that the petitioner was weak enough to make representation and thereafter, there is inaction on the part of the petitioner. It is not on record that petitioner made any reminder about the said representation may be that the petitioner though making representation is sufficient and once a representation is made, the adverse remarks are deemed to have acquired. In that view of the aforesaid, decision is not of any help to the petitioner. (ii) In the matter of Bimal Motilal Rajvanshi vs. State of Gujarat and another reported in 1997 (1) GLH 354 . The decision is on the point of the Departmental Promotion Committee had come to the conclusion that petitioner is not fit to be promoted on the basis of the service record. The Court found that the promotion was denied on irrelevant consideration. In the case on hand, the promotion is denied in light of the fact that in view of the adverse remarks for two different periods, the Departmental Promotion Committee did not find him fit to be promoted. Therefore, this decision is of no help to the petitioner. (iii) Learned advocate for the petitioner next relied upon a decision of this Court in the matter of R.I. Tekriwala vs. Collector, Ahmedabad reported in 1999 (0) GLHEL 209817. A copy of the judgment is made available for perusal. The Hon’ble Court was pleased to hold that there is an alternative remedy of appeal to the petitioner against the decision of denial of giving benefits of higher grade scale, the petition was not entertained. (iv) Learned advocate next relied upon the decision in the case of I.H. Mehta vs. State of Gujarat and Anr. reported in 2001 (1) GLH 8 . In this case, the adverse remarks were communicated to the petitioner beyond a reasonable period and therefore, the Court held that the same cannot be considered against an employee while judging the merit for higher promotion. As discussed herein above, the facts of the present case are not to the effect that the delay in communicating the adverse CRs, and the best case is only about the delayed communication of the result of representation. Therefore, this case will not be of any help to the petitioner. As discussed herein above, the facts of the present case are not to the effect that the delay in communicating the adverse CRs, and the best case is only about the delayed communication of the result of representation. Therefore, this case will not be of any help to the petitioner. It is made clear that had it been a case of communicating the adverse CRs beyond reasonable period, the petition would have a different result. (v) Last but not the least, the learned advocate relied in the matter of H.A. Vyas vs. State of Gujarat and Anr. reported in 2006 (1) GLH 592 . In this case, the Court considered the representation having remained pending before the concerned authorities for an inordinate delay of 4 years. The Court was pleased to hold that there is an obligation on the part of the authorities to decide the representation to come to a conclusion and communicate the same to the employee. The Court was pleased to hold that without doing the same, if the adverse remarks are considered and promotion is denied to the employee it is a clear violation of the settled legal position, especially when the juniors are promoted. 17. This Court is of the opinion that in the present case, as is clear from the affidavit in reply, the decision was taken on the representation. It is specifically mentioned in Affidavit-in-reply that the representation of the petitioner was sent to the reporting and the renewing authority and said authority had opined that the said adverse remarks for the period from 14.9.2001 to 31.3.2002 shall remain permanent. That being so, the only lapse on the part of the authorities is about non-communication of that decision. This Court is not ready to view the same so seriously in light of the fact that the petitioner also became inactive after filing a representation dated 13.9.2002. If the petitioner would have filed any reminder to the authority, the authority could have communicated the decision. Therefore, this Court is of the opinion that the decision aforesaid cannot be made applicable to the facts of the present case. 18. Learned Assistant Government Pleader, Mr. Rindani, submitted that even though there is delay in communicating the decision on the representation, the same may not be treated as grave as non-communication of the adverse CRs within a reasonable time. 18. Learned Assistant Government Pleader, Mr. Rindani, submitted that even though there is delay in communicating the decision on the representation, the same may not be treated as grave as non-communication of the adverse CRs within a reasonable time. Therefore, the petition be dismissed without granting the reliefs prayed for. 19. In view of the aforesaid discussion, no relief can be granted to the petitioner. The petitions fail and same are dismissed. Rule discharged with no order as to cost.