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Gujarat High Court · body

2020 DIGILAW 859 (GUJ)

Ajaysinh Rajendrasinh Zala v. State Of Gujarat

2020-10-14

A.C.RAO

body2020
JUDGMENT : By way of present petition, the petitioner has challenged the illegal, arbitrary and discriminatory action on the part of the respondent authorities of not considering the case of the petitioner for placement at an appropriate place in the seniority list. 2. It is the case of the petitioner that, he was appointed as unarmed police sub-inspector in response to the advertisement issued by the respondent authority. He had participated at various stages of recruitment process and thus, pursuant to the regular selection process undertaken by the Gujarat Police Recruitment Board, the petitioner came to be selected for appointment to the post of unarmed police sub-inspector. In the said select list, the petitioner was placed at merit rank No.205 and appointment letter was also issued on 20.11.2010. 2.1 It is further the case of the petitioner that, the petitioner was assaulted by five persons on 12.06.2011 and due to the said assault, the petitioner has sustained serious injuries of fracture on his hand and leg and therefore, he was taken to Government hospital, Dhrangadhra and thereafter, he was shifted to CU Shah Hospital, Surendranagar for further treatment and he was advised for 15 days complete rest. The petitioner was also treated as indoor patient for 15 days. It is also the case of the petitioner that he had also lodged FIR bearing C.R. No.63 of 2011 before Dhangadhra City Police Station, Surendranagar against the accused persons for the offences punishable under Sections 395, 397, 323, 325, 326, 504, 506(2) of the IPC and Section 135 of the Bombay Police Act. 2.2 Due to above reasons, the petitioner could not complete his training in time and that therefore, he had made representations on 23.03.2020 and on 13.09.2017 requesting the authorities to consider his case and place him in the merits list as per the training completed by his colleagues because due to unavoidable reasons his training period was extended, however, the respondent authority has rejected his representations without assigning any reason. 3. It is vehemently submitted by the learned advocate for the petitioner that there is a provision in Rule 61(10) of the Gujarat Police Manual as to how to consider the leaves availed by a police sub-inspector, which are not considered in the present case. 3. It is vehemently submitted by the learned advocate for the petitioner that there is a provision in Rule 61(10) of the Gujarat Police Manual as to how to consider the leaves availed by a police sub-inspector, which are not considered in the present case. It is contended that as per the said Rules, the seniority of direct recruit police sub-inspector is determined by the order of merit in which they pass-out from the police training school. It is further contended that the respondent authority had published the provisional seniority list of the cadre of unarmed police sub-inspector on 28.08.2017, where the name of the petitioner was reflected at sr. no. 5085. According to the learned advocate for the petitioner his name should be reflected in seniority list at sr. no.4446 and for that he had made various representations. A detailed representation was submitted on 13.09.2017. However, the said representation was rejected. It is vehemently contended that other persons similarly situated and having enjoyed same type of leave are given different type of treatment, while the present petitioner is singled out by the respondent authority and therefore, the petitioner is before this Court challenging the same. 4. On the contrary, Mr. Trivedi, learned AGP has submitted that there is as such no error in maintaining the merit list and placing the petitioner at Sr. No.5085. He has strongly opposed the contentions raised by learned advocate for the petitioner and submitted that the representations made by the petitioner are rightly decided by the authority concerned. 5. I find substance in the submissions made by the learned advocate for the petitioner and without any reasons, the petitioner cannot be singled out. 6. At this stage, it would be appropriate to refer to the judgment of the Apex Court in case of The State Of Maharashtra & Ors v. Pratapsingh Dayal Singh Rajput, reported in AIR 1998 SC 1054 , wherein it is observed as under : “6. It is contended by the learned counsel for the appellants that it was not necessary either to record any reason in the Minutes of the Full Court meeting or to disclose those reasons to the Court on the judicial side. It is contended by the learned counsel for the appellants that it was not necessary either to record any reason in the Minutes of the Full Court meeting or to disclose those reasons to the Court on the judicial side. This is in our opinion, preposterous as the argument that it is not obligatory for the High Court to disclose reason why an officer was not proposed to be promoted when he had already been selected, runs counter to the spirit of Article 14 and 16 of the Constitution. At least this argument was not expected from a high judicial body like the Bombay High Court which is before us today as a litigant. The Division Bench was, in our opinion, right in recording the findings extracted above and we see no reason to differ.” 6.1 Reasons introduce clarity in an order. On plainest consideration of justice, the respondent ought to have set forth its reasons, howsoever brief, in its order indicative of an application of its mind, all the more when its order is amenable to further avenue of challenge. The absence of reasons has rendered the respondent's order deciding seniority not sustainable. Even in respect of administrative orders Lord Denning M.R. in Breen v. Amalgamated Engineering Union (1971 (1) All E.R. 1148) observed "The giving of reasons is one of the fundamentals of good administration". In Alexander Machinery (Dudley) Ltd. v. Crabtree (1974 LCR 120) it was observed: "Failure to give reasons amounts to denial of justice". Reasons are live links between the mind of the decision taker to the controversy in question and the decision or conclusion arrived at". Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the "inscrutable face of the sphinx", it can, by its silence, render it virtually impossible for the Courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind to the matter before Court. Another rationale is that the affected party can known why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order 6.2 The question of a proper promotion policy depends on various conflicting factors. Another rationale is that the affected party can known why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order 6.2 The question of a proper promotion policy depends on various conflicting factors. It is obvious that the only method in which absolute objectivity can be ensured is for all promotions to be made entirely on grounds of seniority. That means that if a post falls vacant it is filled by the person who has served longest in the post immediately below. But the trouble with the seniority system is that it is so objective that it fails to take any account of personal merit. As a system it is fair to every official except the best ones; an official has nothing to win or lose provided he does not actually become so inefficient that disciplinary action has to be taken against him. But, though the system is fair to the officials concerned, it is a heavy burden on the public and a great strain on the efficient handling of public business. The problem therefore is how to ensure reasonable prospect of advancement to all officials and at the same time to protect the public interest in having posts filled by the most able men? In other words, the question is how to find a correct balance between seniority and merit in a proper promotion-policy. In this connection Leonard D. White has stated as follows:- "The principal object of a promotion system is to secure the best possible incumbents for the higher positions, while maintaining the morale of the whole Organisation. The main interest to be served is the public interest, not the personal interest of members of the official group concerned. The public interest is best secured when reasonable opportunities for promotion exist for all qualified employees, when really superior civil servants are enabled to move as rapidly up the Promotion ladder as their merits deserve and as vacancies occur, and when selection for promotion is made on the sole basis of merit. For the merit system ought to apply as specifically in making promotions as in original recruitment. Employees often prefer the rule of seniority, by which the eligible longest in service is automatically awarded the promotion. Within limits, seniority is entitled to consideration as one criterion of selection. For the merit system ought to apply as specifically in making promotions as in original recruitment. Employees often prefer the rule of seniority, by which the eligible longest in service is automatically awarded the promotion. Within limits, seniority is entitled to consideration as one criterion of selection. It tends to eliminate favouritism or the suspicion thereof; and experience is certainly a factor in the making of a successful employee. Seniority is given most weight in promotions from the lowest to other subordinate positions. As employees move up the ladder of responsibility, it is entitled to less and less weight. When seniority is made the sole determining factor, at any level. it is a dangerous guide. It does not follow that the employee longest in service in a particular trade is best suited for promotion to a higher grade; the very opposite may be true". 7. Under the circumstances, the unreasoned communication dated 15.07.2020 by the respondent No.2 is hereby quashed and set aside and the said authority is directed to decide the same by giving reasoned order within a period of 2 months from the date of receipt of this order and the authority concerned shall also consider the leave rules provided in Rule 61(10) of the Gujarat Police Manual of the PSI. With the above directions, the present petition stands disposed of.