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2024 DIGILAW 2210 (GUJ)

Urmila D. Patel v. State Of Gujarat

2024-12-16

A.S.SUPEHIA, GITA GOPI

body2024
JUDGMENT : (PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA) 1. The present appeal filed under Clause 15 of the Letters Patent, 1865, is directed against the judgment and order dated 24.11.2022 passed by the learned Single Judge rejecting the captioned writ petition filed by the appellant claiming promotion to the post of Gujarat Administrative Service Class-I (Selection Scale) with retrospective effect. 2. The facts, which are established from the pleadings, are that : - 3. The appellant – original petitioner, who was serving on the post of Additional Collector was considered for promotion to the Gujarat Administrative Service (for short, “GAS”) Class-I (Selection Scale) by the Departmental Promotion Committee (for short, “the DPC”), comprising the Chief Secretary and two other senior most Secretaries on 25.10.2011. 4. The DPC prepared a select list of 34 Officers for being promoted from GAS Class-I (Senior Scale) to GAS Class-I (Selection Scale) and placed the appellant at serial No.5. Thereafter, the file was submitted for obtaining the Government’s Order approving the minutes of the DPC on 05.11.2011 and before any further action was taken on such approval, the appellant retired from the service on reaching the age of superannuation on 30.11.2011. 5. It appears that thereafter, she filed a writ petition being Special Civil Application No.15623 of 2013 claiming promotion to the post of GAS Class-I (Selection Scale). The said petition was disposed of vide order dated 10.10.2013 directing the appellant to make representation, which she made on 29.10.2013 and ultimately, vide communication dated 30.01.2014 written by the General Administration Department of State of Gujarat, her representation was rejected, which resulted into filing of the captioned writ petition. SUBMISSION ON BEHALF OF THE APPELLANT: 6. Learned advocate Mr.Parv S. Gupta, appearing for the appellant – original petitioner has submitted that the learned Single Judge has not appreciated the undisputed facts in correct perspective. He has submitted that the learned Single Judge ought to have appreciated that the DPC, which met on 25.10.2011 has considered the case of the appellant along with the other candidates and the approval was thereafter, sought from the State Government, which delayed the entire matter and ultimately, the appellant retired on 30.11.2011. It is submitted that due to delay in processing the file and the elections, which were held during the intervening period, the Notification was issued by the State Government on 22.03.2012 promoting other candidates, except the present appellant. It is submitted that due to delay in processing the file and the elections, which were held during the intervening period, the Notification was issued by the State Government on 22.03.2012 promoting other candidates, except the present appellant. 7. Learned advocate Mr.Parv Gupta, has further submitted that once the DPC has approved the promotion of the appellant to the post of GAS Class-I (Selection Scale), she could not have been denied the promotion due to the fault of the respondents in seeking approval from the State Government. 8. It is further contended by the learned advocate Mr.Gupta, that the reconstruction of the cadre, structure and cadre review of the Gujarat Administrative Service was done on 21.02.2009 and thereafter, the State authority took two years for convening the meeting of the DPC and due to such delay, the appellant has lost her promotion. While placing reliance on the judgment of the Supreme Court in the case of Major General H.M. Singh, VSM vs. Union of India and Anr., (2014) 3 S.C.C. 670 , and on the judgment of the High Court of Jharkhand in the case of State of Jharkhand vs. Radha Krishna Prasad, 2020 S.C.C. OnLine Jhar 1808, it is contended that the appellant is entitled to promotion even after her retirement and her pensionary benefits are required to be fixed accordingly. Thus, it is urged that once the head of the Executive approves the list prepared by the DPC, the rest of the procedure of formality in clearing the documents and publishing the list cannot dilute the decision of the DPC and hence, the appellant is entitled to promotion to the post of GAS Class-I (Selection Scale). Thus, it is urged that the impugned judgment and order passed by the learned Single Judge in the captioned writ petition may be set aside. SUBMISSIONS ON BEHALF OF THE RESPONDENT-STATE : 9. While opposing the submissions advanced by the learned advocate Mr.Parv Gupta, learned Government Pleader Mr. G. H. Virk appearing with learned Assistant Government Pleader Mr.Sahil B. Trivedi, has submitted that the impugned judgement and order passed by the learned Single Judge may not be set aside, as the same is precisely passed after threadbare examination of the facts. While opposing the submissions advanced by the learned advocate Mr.Parv Gupta, learned Government Pleader Mr. G. H. Virk appearing with learned Assistant Government Pleader Mr.Sahil B. Trivedi, has submitted that the impugned judgement and order passed by the learned Single Judge may not be set aside, as the same is precisely passed after threadbare examination of the facts. At the outset, it is submitted that the issue raised in the present Letters Patent Appeal is squarely covered by the recent decision of the Supreme Court in the case of Government of West Bengal and others vs. Dr.Amal Satpathi and Ors., 2024 INSC 906 . It is submitted that the appellant is not entitled to any promotion merely because the DPC has considered her name since the promotion can only be made effective after the State Government approves the decision of the DPC and final notification in this regard is issued. It is submitted that the DPC has merely recommended the case of the appellant for promotion and such recommendation cannot compel the State Government to actually promote the appellant. In support of his submissions, reliance is placed by the learned Government Pleader on the judgment of the Supreme Court in the case of Union of India and others Vs. N.P. Dhamania and Ors., 1995 Supp (1) S.C.C. 1 and in the case of Union of India and another Vs. Manpreet Singh Poonam and Ors., (2022) 6 S.C.C. 105 . 10. While placing reliance on the judgment of the Supreme Court in the case of the State of Uttranchal and another vs. Sunil Kumar Vaish and Ors., (2011) 8 S.C.C. 670 , it is contended by the learned Government Pleader Mr.Virk, that the notings made by the authorities cannot be considered as final opinion of the State Government and only when the State Government issues a Notification promoting the candidates, the same becomes effective on the date it is passed. Thus, it is urged that the impugned judgment and order passed by the learned Single Judge may not be set aside. ANALYSIS AND CONCLUSION : 11. The short issue involved in the present Letters Patent Appeal and also before the learned Single Judge is that whether the appellant is entitled to the promotion to the post of GAS Class-I (Selection Scale) merely on the basis of the recommendation of the DPC or not. 12. ANALYSIS AND CONCLUSION : 11. The short issue involved in the present Letters Patent Appeal and also before the learned Single Judge is that whether the appellant is entitled to the promotion to the post of GAS Class-I (Selection Scale) merely on the basis of the recommendation of the DPC or not. 12. The DPC met on 25.10.2011 and after considering the case of the appellant for promotion, she was placed at serial No.5. 13. The minutes of the DPC was sent for approval on 05.11.2011 and Hon’ble the Chief Minister approved the same on 03.03.2012. Thereafter, the file was submitted for obtaining the Government orders for promotion of the officers of the select list prepared by the DPC on 22.02.2012. The noting on the file of the General Administration Department categorically records that the appellant, who was placed at serial No.5, has retired and her name was not included. The aforesaid decision required the approval of the Finance Department, which was accorded on 22.03.2012. After such procedure was completed, the General Administration Department issued the Notification dated 22.03.2012, by which at least 31 persons were promoted to the Gujarat Administrative Service Class-I (Selection Scale). Meanwhile, as mentioned hereinabove, the appellant retired on attaining the age of superannuation on 30.11.2011. Thus, when the final Notification has been issued, the name of appellant was not included as she retired from the service. 14. The entire claim of the appellant solely hinges on the recommendation of the DPC. 15. At this stage, it would be apposite to refer to the decision of the Supreme Court in the case of Dr. Amal Satpathi and Ors. (supra). The Supreme Court though was examining the provisions of Rule 54(1)(a) of the West Bengal Service Rules (W.B.S.R.), in an analogous facts and issue, it is held that the promotion becomes effective from the date it is granted rather than from the date of a vacancy arises or the post is created. Rule 54(1)(a) of the W.B.S.R. clarifies that unless the officiating appointment involves the assumption of duties and responsibilities, an employee is not entitled to draw higher pay. Though, in the present case, there is no analogous Rule which will govern the promotion of the appellant, however, independent of the said Rule, the Supreme Court, while placing reliance on the judgment in the case of Bihar State Electricity Board and Ors. Though, in the present case, there is no analogous Rule which will govern the promotion of the appellant, however, independent of the said Rule, the Supreme Court, while placing reliance on the judgment in the case of Bihar State Electricity Board and Ors. vs. Dharamdeo Das, 2024 S.C.C. OnLine SC 1768, has reiterated that “the promotion is effective from the date it is granted and the right to be considered for promotion has been treated by the courts not just as a statutory right, but as a fundamental right however, at the same time, there is no fundamental right to promotion itself”. The Supreme Court in the said judgment in paragraph No.21 has held thus: - “21. While we recognize respondent No.1's right to be considered for promotion, which is a fundamental right under Articles 14 and 16(1) of the Constitution of India, he does not hold an absolute right to the promotion itself. The legal precedents discussed above establish that promotion only becomes effective upon the assumption of duties on the promotional post and not on the date of occurrence of the vacancy or the date of recommendation. Considering that respondent No. 1 superannuated before his promotion was effectuated, he is not entitled to retrospective financial benefits associated to the promotional post of Chief Scientific Officer, as he did not serve in that capacity.” 16. Before the Supreme Court, similar contention of delay was raised by the employee since during the period when he was recommended for promotion, and the approval was granted, he had retired from service. In wake of similar facts, the Supreme Court, has held that the promotion only becomes effective upon the assumption of duties on the promotional post and not on the date of occurrence of the vacancy or the date of recommendation and hence, before the promotion was effectuated, the candidate/employee is not entitled to retrospective financial benefits associated to the promotion post. The judgments, on which the reliance is placed by the appellant, cannot come to her rescue and the ratio of the judgments will not apply to the facts of the present case. 17. It is settled legal precedent that the recommendation of the DPC is advisory in nature and such recommendation is not binding on the appointing authority unless the decision to accept the recommendation is absolutely illegal and arbitrary. 17. It is settled legal precedent that the recommendation of the DPC is advisory in nature and such recommendation is not binding on the appointing authority unless the decision to accept the recommendation is absolutely illegal and arbitrary. The recommendation of the DPC can come into effect only on the approval granted by the State Government to the select list by confirming the recommendations of the DPC. Till the final order / Notification is passed by the State Government, confirming the recommendation of the DPC, the candidate whose name is placed in the select list on the recommendation of DPC has no indefeasible right to promotion, from the date of such recommendation. The recommendation of the DPC gets crystallized only after the State Government issues Notification or orders of promotion and till then the names of the candidates, which are recommended by the DPC will remain in fluidic state and such candidates cannot, as a matter of right, claim promotion unless promotion is denied on illegal and arbitrary reasons. 18. In the present case, during the period when the DPC recommended the case of the appellant on 25.10.2011 and the Notification was issued on 22.03.2012, the appellant had retired from the Government service on attaining the age of superannuation on 30.11.2011. There was no officiation of the appellant on the promotional post, at the time of issuance of the Notification hence, she is not entitled to promotion from the retrospective date. There is no mala fide intention alleged by the appellant against the respondents. It is not alleged that respondents have deliberately delayed her promotion. 19. At this stage, we may refer to the Circular dated 02.09.2002, which is issued by the State Government and the communication along with the affidavit-in-reply dated 07.10.2023, wherein specific instructions to the respective departments are issued to refrain from granting retrospective promotions. It is categorically instructed by the State Government that the promotion to the Higher Post is a functional promotion and the same cannot be granted with retrospective effect except in the case of deemed date of promotion. Thus, the right of the appellant for getting promoted on the post of GAS Class-I (Selection Scale) cannot further be extended after she reaches the age of superannuation till the issuance of the Notification by the State Government. 20. Thus, the right of the appellant for getting promoted on the post of GAS Class-I (Selection Scale) cannot further be extended after she reaches the age of superannuation till the issuance of the Notification by the State Government. 20. On an overall appreciation of the facts, and the judgment and order passed by the learned Single Judge, we find the appeal sans merit. Hence, the present appeal fails. The same stands dismissed accordingly.