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Gujarat High Court · body

2016 DIGILAW 455 (GUJ)

Mahendra Chinulal Shah v. State of Gujarat

2016-02-25

V.M.PANCHOLI

body2016
JUDGMENT: V.M. Pancholi, J. 1. By way of this petition, petitioners have prayed that the order dated 17.04.2002 passed by the respondents be quashed and set aside and respondents be directed to implement the order dated 09.04.2002 considering the promotion of the petitioners as Labour Investigator. 2. Heard learned advocate Mr. C.B. Dastoor for the petitioners, learned AGP Mr. Mehta for respondent Nos. 1, 2 and 3 and learned advocate Mr. Biren Vaishnav for respondent No. 4. Though served, respondent Nos. 5 and 6 have not filed appearance. 3. At the outset, learned advocate Mr. Dastoor appearing for the petitioners submitted that the grievance of petitioner No. 2 would not survive as he got the promotion and therefore he has argued the matter qua petitioner No. 1 only. 4. Learned advocate Mr. Dastoor submitted that petitioner was appointed as Junior Clerk in the year 1980 with the respondent authority and thereafter in the year 1987 he was promoted to the post of Senior Clerk. From the post of Senior Clerk, further promotion is of the Assistant Government Labour Officer as well as Labour Investigator as well as Statistical Assistant and lastly of Head Clerk. Once the promotion is given in a particular cadre, seniority will be maintained in that cadre only. Petitioner cleared the departmental examination in 1992. The petitioner was, therefore, due for promotion and therefore the Departmental Promotion Committee has prepared the list of candidates for promotions of four cadres. Petitioner No. 1 was at serial No. 22. At this stage, it is submitted that cadres of Assistant Government Labour Officer and Labour Investigator are different, because from the post of Assistant Government Labour Officer further promotion would be of Superintendent, whereas, from the post of Labour Investigator, further promotion would be of Scrutinizer and therefore seniority of both the cadres would be maintained separately. It is submitted by learned advocate that DPC recommended the name of the petitioner for promotion to the post of Assistant Government Labour Officer Class III. Accordingly, concerned respondents issued a letter dated 26.03.2002 giving promotion and detail posting as Assistant Government Labour Officer Class III to the petitioner. However, petitioner on account of his personal difficulty wrote a letter to the concerned respondent pointing out that he is not in a position to resume his duties on the promoted post within stipulated time. Accordingly, concerned respondents issued a letter dated 26.03.2002 giving promotion and detail posting as Assistant Government Labour Officer Class III to the petitioner. However, petitioner on account of his personal difficulty wrote a letter to the concerned respondent pointing out that he is not in a position to resume his duties on the promoted post within stipulated time. Accordingly, another order dated 09.04.2002 was passed by the concerned respondent directing the petitioner to resume his duties on the promotional post of Labour Investigator instead of Assistant Government Labour Officer Class III. Petitioner was directed to resume duties on the new post. Accordingly, he joined his duty on 10.04.2002 on the said post. 5. At this stage, learned advocate Mr. Dastoor contended that within a period of 7 days only i.e. on 17.04.2002, impugned order was passed by the respondent authority cancelling the order of promotion granted to the petitioner to the post of Labour Investigator and while passing the said order no notice was issued to the petitioner nor any opportunity of hearing was given. The learned advocate has referred to the allegations made in para 5 of the petition and submitted that the respondent No. 2 passed an order on the political influence and with mala fide intention. Name of respondent Nos. 4, 5 and 6 were also selected by Departmental Promotion Committee along with the petitioner. They were promoted to the post of Assistant Government Labour Officer. However, they were directed to resume duties on the post of Labour Investigator. In fact respondent Nos. 5 and 6 were not at all interested for said posting and therefore they made representation. 6. At this stage, learned advocate Mr. Dastoor contended that during the pendency of the present petition when this Court directed the petitioner to make representation to the respondent authority, it had issued the order of promotion on 28.01.2005 whereby now the petitioner has been promoted to the post of Assistant Government Labour Officer. Learned advocate, therefore, submitted that now the petitioner is claiming deemed date of promotion from 09.04.2002 and praying for all consequential benefits. 7. Learned advocate, therefore, submitted that now the petitioner is claiming deemed date of promotion from 09.04.2002 and praying for all consequential benefits. 7. Learned advocate for the petitioner in support of his submissions, relied on the following decisions: "(1) The decision rendered by the Hon'ble Supreme Court in the case of Uma Charan v. State of Madhya Pradesh and Anr., (1981) 4 SCC 102 (2) The decision of Bombay High Court in the case of Arvind Anand Phadke v. Bhiwandi Nizampur Municipal Council & Ors., reported in, 1998 I CLR 1998. (3) The decision of Hon'ble Division Bench of this Court in the case of N.K. Bellaney v. State of Gujarat, reported in, 1994 I LLJ 788" 8. On the other hand, learned AGP Mr. Mehta referred to the affidavit dated 15.07.2015 filed by Administrative Officer of respondent No. 2 and submitted that the petitioner was promoted on 28.01.2005 to the post of Assistant Government Labour Officer and even the respondent Nos. 4 to 6 were placed back in the original post of Assistant Government Labour Officer by order dated 28.01.2005 and therefore now the petitioner would not have any grievance. He, therefore, submitted that this Court may pass appropriate order. 9. I have considered the submissions canvassed on behalf of the learned advocates for the parties. Petition is filed in the year 2002 for quashing and setting aside the order dated 17.04.2002 whereby the order dated 09.04.2002 of promotion of the petitioner on the post of Assistant Government Labour Officer was cancelled. It is undisputed fact that before passing the impugned order on 17.04.2002 the respondents authority did not issue any notice to the petitioner nor any opportunity of hearing was given to him before cancelling the order of promotion dated 09.04.2002 on the post of Assistant Government Labour Officer. Moreover, during the pendency of the present petition, on 28.01.2005, the respondent authority has promoted the petitioner on the post of Assistant Government Labour Officer and placed respondent Nos. 4 to 6 back to their original post of Assistant Government Labour Officer. Thus, the petitioner has got the promotion which was granted to him by order dated 09.04.2002 from 28.01.2005. However, there was no justification for the respondent authority to pass order dated 17.04.2002 and when the said order was passed in violation of the principle of natural justice, the same is required to be quashed and set aside. Thus, the petitioner has got the promotion which was granted to him by order dated 09.04.2002 from 28.01.2005. However, there was no justification for the respondent authority to pass order dated 17.04.2002 and when the said order was passed in violation of the principle of natural justice, the same is required to be quashed and set aside. Accordingly, deemed date of promotion is required to be granted to the petitioner from 09.04.2002 on the post of Assistant Government Labour Officer. 10. The Hon'ble Supreme Court, in the case of Uma Charan (supra) has held in para 8 as under: "8. Except for the words "in preference to those selected" the ground just above set out is identical with the ground given by the Selection Committee in the case of the appellant. Rejecting this ground as being no statement of reasons within the meaning of sub-regulation (5) of regulation 5, Mathew, J., speaking for the Court, observed: (SCC p. 853, paras 27 and 28) "We next turn to the provisions of Regulation 5 (5) imposing a mandatory duty upon the Selection Committee to record "its reasons for proposed supersession". We find considerable force in the submission made on behalf of the respondents that the "rubber-stamp" reason given mechanically for the supersession of each officer does not amount to "reasons for the proposed supersession." The most that could be said for the stock reason is that it is a general description of the process adopted in arriving at a conclusion. This apology for reasons to be recorded does not go beyond indicating a conclusion in each case that the record of the officer concerned is not such as to justify his appointment "at this stage in preference to those selected". "In the context of the effect upon the rights of aggrieved persons, as members of a public service who are entitled to just and reasonable treatment, by reason of protections conferred upon them by articles 14 and 16 of the Constitution, which are available to them throughout their service, it was incumbent on the Selection Committee to have stated reasons in a manner which would disclose how the record of each officer superseded stood in relation to records of others who were to be preferred, particularly as this is practically the only remaining visible safeguard against possible injustice and arbitrariness in making selections. If that had been done, facts on service records of officers considered by the Selection Committee would have been correlated to the conclusions reached. Reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject matter for a decision whether it is purely administrative or quasi-judicial. They should reveal a rational nexus between the facts considered and the conclusions reached. Only in this way can opinions or decisions recorded be shown to be manifestly just and reasonable. We think that it is not enough to say that preference should be given because a certain kind of process was gone through by the Selection Committee. This is all that the supposed statement of reasons amounts to. We, therefore, think that the mandatory provisions of Regulation 5 (5) were not complied with." 10.1. The High Court of Judicature at Bombay, in the case of Arvind Anand Phadke (supra) has observed in para 3 as under: "3. The short point that arises for our consideration in this petition is whether the order of cancellation of promotion dated 18th June, 1986 is legal and valid. From the face of order, it is seen that no reasons are assigned by Respondent No. 1 for cancellation of the order of promotion of the petitioner. The order therefore suffers on this count. It is to be noted that the petitioner was the senior most person and was in fact deserving for promotion as Food Inspector. Taking into consideration this aspect of the matter, initially, he was rightly promoted by the order dated 12th June, 1986. There was absolutely no reason for cancellation of the promotion order of the petitioner. Moreover, no reasonable opportunity of hearing was given to the petitioner. On this count also, the order of cancellation suffers from infirmity. Under the circumstances, the order of cancellation dated 18th June, 1986 does not sustain in law." 10.2. The Division Bench of this Court, in the case of N.K. Bellaney (supra), observed and held in para 4 of the judgment as under: "4......... In this behalf, the learned counsel for the appellant would place reliance upon the pronouncement of the Supreme Court in Union of India etc. v. K.V. Jankiraman, etc., (1991-II-LLJ-570). The Division Bench of this Court, in the case of N.K. Bellaney (supra), observed and held in para 4 of the judgment as under: "4......... In this behalf, the learned counsel for the appellant would place reliance upon the pronouncement of the Supreme Court in Union of India etc. v. K.V. Jankiraman, etc., (1991-II-LLJ-570). Here, we find that the Court is not made wiser of any power that is available for the respondent to withhold a promotion already accorded to a servant, like the appellant. Assuming that there is such a power, as already noted, on the date when the impugned action, withholding or keeping in abeyance the promotion already accorded to the appellant, was taken, admittedly there was no issuance of a charge memorandum/charge-sheet against the appellant. If that is o, the case squarely come within the mischief of the ratio decidendi set down by the Supreme Court in the above pronouncement. We also find force in the submission of the learned counsel for the appellant that once the appellant has been found fit for promotion and, in fact, has been accorded promotion, to withhold such a promotion would, virtually, amount to imposition of a penalty and such visitation of penalty should not happen without the appellant benign afforded an adequate opportunity to make his cay on the question.......... " 11. In view of the aforesaid discussion, the impugned order dated 17.04.2002 is quashed and set aside. The respondents are directed to consider the case of the petitioner for deemed date promotion from 09.04.2002. It is clarified that the deemed date of promotion from 09.04.2002 shall be considered only for the purpose of pay fixation, seniority and pension. However, petitioner is not entitled to get the arrears for the post of Assistant Government Labour Officer for the period from 09.04.2002 till 28.01.2005. Petition is accordingly allowed and disposed of. Rule is made absolute to the aforesaid extent. No order as to cost. Direct service is permitted.