Research › Search › Judgment

Gujarat High Court · body

2024 DIGILAW 1654 (GUJ)

Vipulkumar Motichand Mehta v. State Of Gujarat

2024-08-02

VAIBHAVI D.NANAVATI

body2024
ORDER : (Vaibhavi D. Nanavati, J.) : 1. Heard Mr. Shakti Jadeja, learned advocate appearing for learned advocate Mr. S. P. Majmudar, learned advocate for the petitioner, Mr. Premal R. Joshi, learned advocate appearing for the respondent No.4 and Ms. Nidhi Vyas, learned Asst. Government Pleader appearing for the respondent No.1. 2. The petitioner by way of present petition seeks to challenge the unjustified and arbitrary action of the respondent – authorities in not communicating the remark of “good” for the years 2003-2004, 2004-2005, 2005-2006 and 2008-2009 in the Annual Confidential Report (ACR) of the petitioner. The benchmark for promotion of the petitioner to the post of Joint Registrar, Co-operative Societies, is "very good" or "outstanding" remark in the ACR in five years out of last eight years. Under the aforesaid circumstances the non- communication of remark "good" to the petitioner for the abovementioned years in question is fatal and such an action is in fact contrary to the position of law. Departmental Promotion Committee (DPC) was held in March 2011 and the petitioner came to know about the aforesaid remark of "good" in the abovementioned years after making an application under the Right to Information Act, 2005. It is the case of the petitioner that non communication of aforesaid remarks “good” has affected the petitioner adversely and therefore, petitioner is constrained to approach this Court with following prayers; “(21) (A) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or directions quashing and setting aside grading/remark of the petitioner made by the concerned authority respondent Annual in Confidential Report (ACR) for the year for the remark of "good" for the years 2003- 2004, 2004-2005, 2005-2006 and 2008-2009 and further be pleased to direct respondent authorities the to consider the case of the petitioner for promotion to the post of Joint Registrar and further be pleased to hold that the promotion of the petitioner to the post of Joint Registrar cannot be withheld on account of entries of "good" for the years in question, which have not been communicated to the petitioner. (A1) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus appropriate writ. (A1) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus appropriate writ. directions any order directing other the respondent authorities to give deemed date promotion to the petitioner to the post of Joint Registrar, Co-operative Society, w.e.f. 29.03.2011 (when Departmental Promotion Committee met for promotion) w.e.f. consideration of alternatively with all/ and 23.10.2015 consequential benefits arrears of pay and also further be pleased to quash and set aside decision dated 03.08.2015; (2A) I state Government Gandhinagar that of has the state Gujarat issued a Government resolution dated 14- 06-2016, copy whereof are annexed hereto marked as ANNEXURE-H I state that even as per said Government resolution the petitioner is entitled to promotion because the so called issued charge sheet is before of six years, but thereof decision thereof. (B) During the pendency and final disposal petition, of Your Lordships may be pleased to restrain the respondent authorities from promoting any person junior to the petitioner on the post of Joint Registrar, without first considering the case of the petitioner for such promotion and further be pleased to direct the respondent authorities not to consider the remark of "good" for the years 2003- 2004, 2004-2005, 2005- 2006 and 2008-2009 for effecting further promotion of the petitioner to the post of Joint Registrar; (C) Pass any such other and/or further orders that may be thought just and proper, in the facts and circumstances of the present case.” 3. Mr. Jadeja, learned advocate submits that the petitioner herein was required tobe communicated the remarks for the years 2003-2004, 2004-2005, 2005-2006 and 2008-2009 because in view of the said remarks “good” the petitioner is made eligible for the promotion. It is submitted that as per the circular of the State Government dated 29.10.2005, the benchmark for promotion of the petitioner is the remark of either "very good" or "outstanding in the five out of last eight years. Thus, the remark of "good" is as such an adverse remark as far as the promotional aspect of the petitioner is concerned. 3.1 It is submitted that the said remark was never communicated to the petitioner and the petitioner came to know about the same only in the month of April, 2011 by making an application under the RTI Act after the DPC was held in March 2011. 3.1 It is submitted that the said remark was never communicated to the petitioner and the petitioner came to know about the same only in the month of April, 2011 by making an application under the RTI Act after the DPC was held in March 2011. 3.2 It is submitted that the said remark of “good” for the years in question is not communicated to the petitioner and such action is in clear violation of the law as laid down by this Court as well as Hon'ble the Supreme Court. 3.3 Mr. Jadeja, learned advocate relied upon a decision of the Hon’ble Supreme Court in case of (1) Devdutt Vs. Union of India and Ors., AIR 2008 SC 2513 and (2) Abhijit Ghosh Dastidar Vs. Union of India & Ors., (2009) 16 SCC 146 . The identical issue was also subject-matter for consideration by this Court in Special Civil Application Nos. 5945 of 2011 and 17873 of 2011, wherein identically placed employees of respondent No.1 have also approached this Court when the uncommunicated remarks for the period from 2001 to 2008 were directed to be expunged and also directed to consider the deemed date of promotion, with consequential benefits, from the date on which his juniors, if any, were promoted, pursuant to the meeting of the DPC dated 19.03.2011. 3.4 The aforesaid orders were also subject-matter of challenge by the respondent – State by preferring Letters Patent Appeal No.559 of 2019 in Special Civil Application No.5945 of 2011 and Letters Patent Appeal No.713 of 2019 in Special Civil Application No.17873 of 2011. However, the appeals were dismissed. 3.5 Reliance is also placed by Mr. Jadeja, learned advocate for the petitioner on the copy of proceedings of DPC, which is placed on record, wherein ACRs of the employees at Sr. No.5 on page 26 and at Sr. No.12 on page 27 are also “good” and it is submitted that the petitioner herein is identically placed and prayers in present petition are required tobe granted by allowing the petition. 4. Ms. Vyas, learned AGP appearing for the respondent authority relied upon the reply duly produced at page 94 and submitted that no interference is required in light of the fact that the petitioner was informed about the aforesaid ACRs. It is submitted that petitioner was serving as District Registrar, Junagadh. 4. Ms. Vyas, learned AGP appearing for the respondent authority relied upon the reply duly produced at page 94 and submitted that no interference is required in light of the fact that the petitioner was informed about the aforesaid ACRs. It is submitted that petitioner was serving as District Registrar, Junagadh. On 30.01.2009, the anti-corruption bureau had executed the trap and in connection with the said trap, the order dated 10.07.2012 came to be passed of granting sanction for initiating prosecution against the petitioner. It is submitted that in view such fact, case of the petitioner cannot be considered for further promotion. It is also submitted that another departmental inquiry was also initiated against the petitioner vide charge-sheet dated 22.05.2013 in respect of his conduct during his tenure as District Registrar, Amreli. It is therefore prayed to dismiss this petition. 5. Mr. Jadeja, learned advocate appearing for the petitioner in rejoinder, reiterated the contentions raised earlier and relied upon a decision of the division bench of this Court in Letters Patent Appeal No.213 of 2023 arising out of Special Civil Application No.60 of 2019 in case of Babubhai Jethabhai Patel vs. Registrar General, wherein the division bench allowed the appeal by giving the petitioner ex post facto promotion from the date of his eligibility with all consequential and retirement benefits. 5.1 It is submitted that the case of the petitioner is identical to the employees at Sr. No.5 and Sr. No.12 of the same DPC and the case of the petitioner is required tobe consider on the same line. It is also submitted that in Special Civil Application No.17873 of 2011, the identically criminal proceedings were initiated against the said petitioner. However, the Court held that the proceedings under the provisions of Prevention of Corruption Act cannot have retrospective effect so as to make the petitioner unfit for the promotion at the relevant point of time. It is submitted that in the fact of the present case also, after the DPC was held in the year 2011, the sanction was given in the year 2012, which is duly produced at page 100. 6. Having heard the learned advocates appearing for the respective parties, undisputed facts emerge that petitioner herein is in service of the State Government on 05.04.1993 as Assistant District Registrar in Co-operative Societies (Class-II). The petitioner was promoted as District Registrar (Class-I) on 11.11.1998. 6. Having heard the learned advocates appearing for the respective parties, undisputed facts emerge that petitioner herein is in service of the State Government on 05.04.1993 as Assistant District Registrar in Co-operative Societies (Class-II). The petitioner was promoted as District Registrar (Class-I) on 11.11.1998. The DPC, which was held on 19.03.2011, the ACR of the petitioner was remarked as “good” which was not communicated to the petitioner. As per the circular of the State Government dated 29.10.2005, the benchmark for promotion of the petitioner is the remark of either "very good" or "outstanding in five out of last eight years. Non- communicating of the said ACR for the aforesaid years affected the petitioner adversely and the said remarks were not communicated the petitioner till the petitioner preferred RTI application in the month of April, 2011. In light of the aforesaid, petitioner is constrained to approach this Court by filing present petition. 6.1 On perusal of record it appears that identically placed employees at Sr. No.5 and 12 of the same DPC have approached this Court and the prayers were allowed on the ground that the said remarks were adverse and non- communicating the same adversely affected the said petitioners. 7. In light of the aforesaid background, this Court thinks it fit to refer the ratio as laiddown by the Honourable Supreme Court and this Court which squarely covers the case of the petitioner. (1) Dev Dutt vs. Union of India & Ors reported in (2008) 8 SCC 725 , wherein Hon’ble the Supreme Court has held as under; “6. The grievance of the appellant was that he was not communicated the 'good' entry for the year 1993-94. He submitted that had he been communicated that entry he would have had an opportunity of making a representation for upgrading that entry from 'good' to 'very good', and if that representation was allowed he would have also become eligible for promotion. Hence he submits that the rules of natural justice have been violated. 11. Hence, in our opinion, the 'good' entry should have been communicated to the appellant so as to enable him to make a representation praying that the said entry for the year 1993-94 should be upgraded from 'good' to 'very good'. Hence he submits that the rules of natural justice have been violated. 11. Hence, in our opinion, the 'good' entry should have been communicated to the appellant so as to enable him to make a representation praying that the said entry for the year 1993-94 should be upgraded from 'good' to 'very good'. Of course, after considering such a representation it was open to the authority concerned to reject the representation and confirm the 'good' entry (though of course in a fair manner), but at least an opportunity of making such a representation should have been given to the appellant, and that would only have been possible had the appellant been communicated the 'good' entry, which was not done in this case. Hence, we are of the opinion that the non-communication of the 'good' entry was arbitrary and hence illegal, and the decisions relied upon by the learned counsel for the respondent are distinguishable. 16. If we hold that only 'poor' entry is to be communicated, the consequences may be that persons getting 'fair', 'average', 'good' or 'very good' entries will not be able to represent for its upgradation, and this may subsequently adversely affect their chances of promotion (or get some other benefit). 17. In our opinion if the Office Memorandum dated 10/11.09.1987, is interpreted to mean that only adverse entries (i.e. 'poor' entry) need to be communicated and not 'fair', 'average' or 'good' entries, it would become arbitrary (and hence illegal) since it may adversely affect the incumbent's chances of promotion, or get some other benefit. 18. For example, if the bench mark is that an incumbent must have 'very good' entries in the last five years, then if he has 'very good' (or even 'outstanding') entries for four years, a 'good' entry for only one year may yet make him ineligible for promotion. This 'good' entry may be due to the personal pique of his superior, or because the superior asked him to do something wrong which the incumbent refused, or because the incumbent refused to do sycophancy of his superior, or because of caste or communal prejudice, or for some other extraneous consideration.” (2) Abhijit Ghosh Dastidar vs. Union of India & Ors. reported in (2009) 16 SCC 146 , wherein the Hon’ble Supreme Court has held as under; “8. reported in (2009) 16 SCC 146 , wherein the Hon’ble Supreme Court has held as under; “8. Coming to the second aspect, that though the benchmark "very good" is required for being considered for promotion admittedly the entry of "good" was not communicated to the appellant. The entry of 'good' should have been communicated to him as he was having "very good" in the previous year. In those circumstances, in our opinion, non-communication of entries in the ACR of a public servant whether he is in civil, judicial, police or any other service (other than the armed forces), it has civil consequences because it may affect his chances for promotion or get other benefits. Hence, such non- communication would be arbitrary and as such violative of Article 14 of the Constitution. The same view has been reiterated in the above referred decision relied on by the appellant. Therefore, the entries "good" if at all granted to the appellant, the same should not have been taken into consideration for being considered for promotion to the higher grade. The respondent has no case that the appellant had ever been informed of the nature of the grading given to him.” (3) Special Civil Application No.5945 of 2011 in case of Manji Khodaji Dethalia vs. State of Gujarat & Ors. (At Sr. No.12 in DPC held on 19.03.2011) “2. Briefly stated, the facts of the case are that the petitioner who was, at the relevant point of time, serving as Manager (KVCI), District Industries Centre, Sabarkantha at Himmatnagar, was due to be considered for promotion to the post of Joint Registrar, Co- operative Societies. The Departmental Promotion Committee (DPC) was to consider the ACRS of the petitioner for the last eight years preceding the date of its meeting. For the years 2003-04, the Reporting Officer assessed the performance of the petitioner as 'Outstanding'. However, the Reviewing Officer changed it to "Good". For the year 2004-05, the Reporting officer assessed the petitioner assessment an 'Good', which was maintained by the Reviewing Officer. for the year 2005-06, the assessment of 'Very Good' made by the Reporting Officer was maintained by the Reviewing Officer. The same was in the case of the year 2006-07. For the year 2007-08, the Reporting Officer assessed the petitioner as Outstanding' whereas the said assessment was downgraded by the Reviewing Officer. for the year 2005-06, the assessment of 'Very Good' made by the Reporting Officer was maintained by the Reviewing Officer. The same was in the case of the year 2006-07. For the year 2007-08, the Reporting Officer assessed the petitioner as Outstanding' whereas the said assessment was downgraded by the Reviewing Officer. For the year 2008-09, the assessment of the petitioner was made as 'Very Good' by the Reporting Officer and was maintained by the Reviewing Officer. The same was the situation in the year 2009-10. Hence, for the years 2003-04, 2004-05 and 2007-08, the petitioner was assessed as 'Good'. As per the Government Resolution dated 29.10.2005, the benchmark for promotion to a Class-I post was enhanced from 'Good' to 'Very Good. The petitioner was, therefore, required to have five Very Good assessments in his ACRs of the last eight years. As he was assessed as 'Very Good for only four years, the petitioner did not meet the enhanced benchmark and, therefore, was denied promotion. It is the case of the petitioner that the remark 'Good' has now been considered benchmark, communicated as adverse in view of the enhanced therefore, it ought to have been to him. As it was not communicated, in view of the princ ples of law laid down by the Supreme Court in a number of judgments, the adversely considered remarks of "Good", in the ACRs of the petitioner for the years 2003-04, 2004-05 and 2007-08, are required to be expunged and the petitioner entitled to be considered for promotion. It is the case of the petitioner that the remark ‘Good’ has now been considered as adverse in view of the enhanced benchmark, therefore, it ought to have been communicated to him. As it was not communicated, in view of the principles of law laid down by the Supreme Court in a number of judgments, the adversely considered remarks of “Good”, in the ACRs of the petitioner for the years 2003-04, 2004-05 and 2007-08, are required to be expunged and the petitioner is entitled to be considered for promotion. 3. Mr.Hiren Trivedi, learned advocate for Mr.S.P.Majmudar, learced advocate for the petitioner, has submitted that for the ear 2003-04, the Reporting Authority has graced the petitioner as 'Outstanding'. However, the Reviewing Authority has downgraded this assessment to 'Good' thout giving any reasons. 3. Mr.Hiren Trivedi, learned advocate for Mr.S.P.Majmudar, learced advocate for the petitioner, has submitted that for the ear 2003-04, the Reporting Authority has graced the petitioner as 'Outstanding'. However, the Reviewing Authority has downgraded this assessment to 'Good' thout giving any reasons. Moreover, in the years 2004-05 and 2007-08, the 'Good' remarks were never communicated to the petitioner. As held by the Supreme Court in the cases of Dev Dutt Vs. Union of India and others reported in (2008) 8 SCC 725 , Sukhdev Singh Vs. Union of India and others reported in (2013) 9 SCC 566 , Abhijit Gosh Dastidar Vs. Union of India and others reported in (2009) 16 SCC 146 . 8. In the present, it is clear that the petitioner has never been granted an opportunity of representing against the 'Good' remarks which have been given an adverse connotation and resulted in the denial of promotion to him. In this view of the matter, the principles of natural justice have been violated.” The aforesaid order was challenged by the State authority by filing Letters Patent Appeal No.559 of 2019, wherein the Division Bench has observed as under; “5. In our considered view, un-communicated “Good” remarks for the respective years expunged by learned Single Judge and further direction to consider the petitioner for promotion to the post of Joint Registrar, Cooperative Societies on the basis of “Very Good” remarks in his ACR for the remaining years with effect from the DPC meeting convened on 19.03.2011 do not require any interference and accordingly the appeal is dismissed.” (4) Special Civil Application No.17873 of 2011 in case of Manoj Sitaram Lokhande vs. State of Gujarat & Ors. (At Sr. No.5 in the DPC held on 19.03.2011) “14. Taking into consideration the above settled principles of law and the fact that the petitioner was not communicated the adverse remarks of “Good” within the stipulated period of time, the following order is passed: “The uncommunicated "Good" remarks in the AGRs of the petitioner for the years 2001-02, 2002-03, 2003- 04 and 2007-08, shall stand expunged. Taking into consideration the above settled principles of law and the fact that the petitioner was not communicated the adverse remarks of “Good” within the stipulated period of time, the following order is passed: “The uncommunicated "Good" remarks in the AGRs of the petitioner for the years 2001-02, 2002-03, 2003- 04 and 2007-08, shall stand expunged. The case of the petitioner shall be considered on the basis of the Very Good' remarks in his ACRs for the years 2005-06, 2006-07, 2008-09 and 2009-10 Consequently, the petitioner shall be granted the deemed date of promotion, with consequential benefits, from the date on which his juniors, if any, were promoted, pursuant to the meeting of the DPC dated 19.03.2011 The entire exercise be completed as expeditiously as possible and without avoidable delay.”” The aforesaid order was subject-matter of appeal in Letters Patent Appeal No.713 of 2019, wherein the division bench has observed as under; “9. Considering the facts and circumstances and when representation made by the respondent officer herein was already rejected, resubmission of representation again would not serve any purpose and registration of criminal case in the year 2014 after convening meeting of DPC on 19.3.2011 shall have no bearing on considering the case of the respondent officer for further promotion if otherwise be is found elligible based on service record of 11 years. 10. When learned Single Judge deemed it proper to treat the remarks uncommunicated remarks "good" as expunged, particularly, when the representation of the employee officer was already rejected, we deem it not proper to relegate the employee officer to make submission again on the same line but at the same time consideration of the case of employee officer for further promotion shall have to be considered by Departmental Promotion Committee keeping in mind remarks "good" as expunged and to pass order accordingly.” (5) Letters Patent Appeal No.213 of 2023 arising out of Special Civil Application No.60 of 2019 in case of Babubhai Jethabhai Patel vs. Registrar General. “33.On the bedrock of the foregoing reasons, we allow the present Letters Patent Appeal. The impugned judgment and order dated 29.06.2022 passed by the learned Single Judge in the captioned writ petition hereby quashed and set aside. The writ petition filed by the appellant original petitioner is allowed. “33.On the bedrock of the foregoing reasons, we allow the present Letters Patent Appeal. The impugned judgment and order dated 29.06.2022 passed by the learned Single Judge in the captioned writ petition hereby quashed and set aside. The writ petition filed by the appellant original petitioner is allowed. The action of the respondent authorities denying ex post facto promotion to the appellant to the post of Principal Private Secretary, Class- is hereby quashed and set aside. The respondents are further directed to confer the promotion/up- gradation/appointment to the appellant to the post of Principal Povath Secretary Class- ex post facto from the date of his eligibility. The appellant is also erititied for the consequential benefits. His retirement benefits le pension, gratuity, etc. shall also be accordingly revised Necessary orders, as directed by us, shall be passed within a period of 3 (three) werks from the date of recept of the order of this Court.” 8. In light of the undisputed facts and position of law, when criminal proceedings pending against the petitioner were initiated subsequent to DPC, the present petition deserves to be allowed and the same is allowed. The uncommunicated "Good" remarks in the ACRs of the petitioner for the years 2003-2004, 2004-2005, 2005-2006 and 2008-2009, shall stand expunged. The case of the petitioner is directed to be considered on the basis of the “Very Good” remarks in his ACRs for the years 2003-2004, 2004-2005, 2005-2006 and 2008-2009. Accordingly, the petitioner shall be granted all consequential benefits including retirement benefits from the date of meeting of DPC i.e. 19.03.2011. The entire exercise be completed as expeditiously as possible. Rule is made absolute to that extent.