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2017 DIGILAW 1259 (GUJ)

State of Gujarat v. Ibrahim Abbasali Raj

2017-07-06

B.N.KARIA, M.R.SHAH

body2017
ORDER : M.R SHAH, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 11th December 2015 passed by the learned Single Judge in Special Civil Application No. 8521 of 2010, by which the learned Single Judge has dismissed the said writ petition preferred by the State of Gujarat and thereby confirmed the Order dated 9th March 2010 passed by the Gujarat Civil Services Tribunal, Gandhinagar directing the respondent therein ie., the Director of Scheduled Caste Welfare Department to take necessary action and issue orders of promotion to the appellant with effect from April 1990. 2. The facts leading to the present Letters Patent Appeal in nutshell are as under. 3. Respondent-Ibrahim Abbasali Raj was appointed as an Inspector in the Social Welfare Department in the pay-scale of Rs. 425-700, in the year 1986. Employees junior to him were promoted as Office Superintendents in the year 1990, in the pay-scale of Rs. 1,640-2,900/-. However, the respondent was not promoted. He, therefore, filed an appeal before the Gujarat Civil Services Tribunal, Gandhinagar, being Appeal No. 140/1990, which came to be subsequently withdrawn. 3.1 On 28th April 1989, a charge-sheet was issued against the said respondent and a departmental inquiry was initiated. For this reason, he was not considered for promotion. Subsequently, the respondent-employee stood exonerated in the departmental inquiry and the charge-sheet against him was withdrawn/filed in the year 1992. Thereafter, the respondent no. 1 herein was promoted as the Office Superintendent on 5th April 1993. However, it is the case of the appellant that the aforesaid promotion order was issued by mistake, therefore, it was cancelled by an order dated 7th August 1993. 3.2 Against the above order of reversion, the respondent no. 1 herein preferred an appeal before the Tribunal, being Appeal No. 99 of 1996, with a prayer to quash and set-aside the order of reversion and for grant of deemed date of promotion as Office Superintendent from April 1990. It was the case of the petitioner before the Tribunal that his Annual Confidential Report [ACR] for the year 1988-89 was not good, therefore, the promotion which was granted by a clerical mistake, was rightly cancelled. The Tribunal accepted contention of the petitioner and dismissed the appeal. Subsequently, however, the adverse entries in the ACR of the respondent for the year 1988-89, stood expunged by the concerned Department of the petitioner, in the year 2005. The Tribunal accepted contention of the petitioner and dismissed the appeal. Subsequently, however, the adverse entries in the ACR of the respondent for the year 1988-89, stood expunged by the concerned Department of the petitioner, in the year 2005. The respondent no. 1, thereafter represented to the petitioner to grant him the deemed date of promotion from April 1990, on 28th May 2005; 16th June 2006 and 20th June 2006 along with the benefit of arrears. As no action was taken by the Department upon this plea, the respondent no. 1 approached the Tribunal by filing Appeal No. 189 of 2006. The learned Tribunal allowed the said Appeal and directed the Department to take necessary action and issue the orders of promotion in respect of the respondent w.e.f April 1990 ie., the date on which junior to the petitioner was promoted. 4. Feeling aggrieved and dissatisfied with the judgment and order passed by the Tribunal, the State preferred a writ petition before this Court, being Special Civil Application No. 8521 of 2010 and by the impugned judgment and order dated 11th December 2015, the learned Single Judge has dismissed the same and thereby confirmed the order passed by the learned Tribunal. 5. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Single Judge, the State has preferred the present Letters Patent Appeal. 6. Shri Dhawan Jayswal, learned AGP appearing on behalf of the appellant-State is not disputing that at the relevant time ie., in the year 1990 when the Departmental Promotion Committee [DPC] met, the case of the respondent-employee was considered and result thereof was kept in a sealed cover, in view of adverse entries against him. He is also not disputing that ‘subsequently the adverse remarks against the respondent have been expunged, and therefore as such, the case of the respondent for promotion is required to be considered by ignoring the adverse remarks as the same came to be expunged subsequently. He is also not disputing that ‘subsequently the adverse remarks against the respondent have been expunged, and therefore as such, the case of the respondent for promotion is required to be considered by ignoring the adverse remarks as the same came to be expunged subsequently. However, Shri Jayswal, learned AGP has submitted that in that case also, appropriate directions would have been to open the seal cover and consider the case of the respondent for promotion, and if after opening the sealed cover, it is found that the respondent was otherwise fit for promotion, his case may be considered for promotion and he may be granted deemed date of promotion from the date on which his junior came to be promoted. It is submitted that however, both the learned Tribunal as well as learned Single Judge have straight away directed to give deemed date of promotion to the respondent from the date on which his junior came to be promoted ie., in the year 1990. It is submitted that to the afore stated extent, the impugned judgment and order passed by the learned Tribunal as well as the one passed by the learned Single Judge confirming the same is required to be modified. 7. Shri NK Majmudar, learned advocate appearing on behalf of the respondent no. 1 is not in a position to dispute that in the year 1990, when the case of the petitioner was considered by DPC for promotion, the same was kept in a sealed cover; in view of adverse remarks against the respondent. He has submitted that therefore, when subsequently the adverse remarks are expunged, in that case, now the sealed cover is required to be opened and the case of the employee is required to be considered on the basis of report/decision of DPC mentioned in the sealed cover. Therefore, Shri Majmudar, learned advocate for the respondent requested to pass appropriate order. 8. Heard learned advocates appearing on behalf of the respective parties at length. Perused the order passed by the learned Tribunal as well as the impugned order passed by the learned Single Judge. 9. At the outset, it is required to be noted and it is not in dispute that in the year 1990, DPC met and the case of the petitioner for promotion was considered along with other eligible candidates. Perused the order passed by the learned Tribunal as well as the impugned order passed by the learned Single Judge. 9. At the outset, it is required to be noted and it is not in dispute that in the year 1990, DPC met and the case of the petitioner for promotion was considered along with other eligible candidates. The report/case of the respondent was kept in a sealed cover, in view of adverse remarks against him. However, subsequently by mistake, he was promoted. This mistake came to be rectified and he was reverted. It is not in dispute that subsequently adverse remarks against the respondent has been expunged. Under the circumstances, as held by the Hon'ble Supreme Court in the case of G. Muthuraj v. State of Tamil Nadu, reported in (2013) 11 SCC 648 , once the adverse remarks are expunged, they are to be ignored for all time to come, and that the same cannot be taken into consideration, as his case is required to be considered ignoring such adverse remarks. However, considering the recruitment rules, it appears that the promotion to the next post was on the basis of merit-cum-seniority, therefore, case of the concerned employee was required to be considered for promotion on the basis of merit-cum-seniority, ignoring the adverse remarks which subsequently came to be expunged. As observed hereinabove, at the relevant time when the DPC met and the case of the respondent was considered for promotion, the same was kept in a sealed cover, which still continues to be in a sealed cover. Under the circumstances, appropriate order that would have been to open the sealed cover and if otherwise the respondent is found to be fit for promotion [ignoring the adverse remarks which are expunged] in that case, the respondent is required to be given deemed date of promotion as on April 1990; more particularly the date on which his junior came to be promoted. To the afore stated extent, the impugned judgment and order passed by the learned Single Judge as well as the order passed by the learned Tribunal are required to be modified. 10. To the afore stated extent, the impugned judgment and order passed by the learned Single Judge as well as the order passed by the learned Tribunal are required to be modified. 10. For the reasons afore stated, the present Letters Patent Appeal succeeds in part Impugned judgment and order dated 11th December 2015 passed by the learned Single Judge in Special Civil Application No. 8521 of 2010 as well as the Order dated 9th March 2010 passed by the Gujarat Civil Services Tribunal, Gandhinagar confirmed by the learned Single Judge are hereby modified to the extent that the State Government appropriate authority to consider the case of the respondent herein for promotion by ignoring the adverse remarks and to open the sealed cover, and if it is found that the respondent was otherwise found eligible/suitable for promotion, in that case, appropriate order of promotion be passed and his deemed date of promotion be considered from the date on which his junior came to be promoted. The aforesaid exercise shall be completed within a period of three months from today. 11. LPA stands partly allowed to the afore stated extent. Civil Application stands disposed of accordingly.