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2024 DIGILAW 971 (GUJ)

Sheth Mahesh Kanchanlal v. State Of Gujarat

2024-04-22

BIREN VAISHNAV, PRANAV TRIVEDI

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ORDER : Pranav Trivedi, J. 1. The present Letters Patent Appeal under Clause 15 of the Letters Patent is filed by the appellant - party appearing in person challenging the correctness of the judgment and order dated 27.09.2016 passed in Special Civil Application No. 5648 of 2002. 2. The prayers that were made in the writ petition were to issue directions to pass necessary writ and also to issue direction to consider the case of the appellant - original petitioner, who is appearing as party-in-person, to be promoted to all such posts on the day when his fellow batch-mate Shri S.S. Rathore is promoted to such posts. It was further prayed to quash and set aside all the charge sheets and adverse remarks against the original petitioner and to consider his case for promotion to all such posts which were available to him. It was also prayed to quash and set aside the consequential orders of penalty passed by the respondent authority and further to consider the case of the petitioner for equal wages and perks to that given to the “Engineer’s Representative” of Gujarat State Highway Project. Thus, the petitioner had preferred the writ petition with such manifold prayers. 3. The learned Single Judge after considering the submissions canvassed by the respective parties was pleased to dismiss the petition. However, insofar as prayer with regard to deemed promotion is concerned, it was directed by the learned Single Judge to the concerned authority to look into once again and after considering the material on record directed to the authorities to take appropriate decision and as such, with the said observations, the petition was disposed of. 4. The factual matrix that led to filing of the writ petition was that the petitioner was appointed as Executive Engineer on 08.12.1980 through the Gujarat Public Service Commission. It is the case of the petitioner that after being appointed in the year 1980, he was given regular charge of ‘Executive Engineer’ in the year 1984. It is further the case of the petitioner that initially he was posted on a cadre post of ‘Executive Engineer’ and was posted as Engineer with the Valsad Jilla Panchayat at Valsad. Thereafter, he was appointed on a non-cadre post of “Engineer’s Representative” by the Roads & Buildings Department, Government of Gujarat. It is further the case of the petitioner that initially he was posted on a cadre post of ‘Executive Engineer’ and was posted as Engineer with the Valsad Jilla Panchayat at Valsad. Thereafter, he was appointed on a non-cadre post of “Engineer’s Representative” by the Roads & Buildings Department, Government of Gujarat. The said appointment order was issued on 09.06.1988 and by such appointment order, the petitioner was appointed to act as “Engineer” for Expressway Road to be constructed between Ahmedabad and Baroda. Pursuant thereto, the petitioner was promoted to the post of Superintending Engineer on 25.10.1993. In the interregnum period, there were certain remarks in his Confidential Reports. Thereafter he was promoted as Chief Engineer on 24.03.2014 and retired as a Chief Engineer on 30.05.2014. Being aggrieved by various orders, the petitioner has preferred the writ petition in the year 2002. During the pendency of the writ petition, he attained the age of superannuation and retired as Chief Engineer. Further during the pendency of the writ petition, the learned Single Judge of this Court in Civil Application No. 6226 of 2014 had passed an order dated 24.07.2014, wherein, it was observed that the Competency Certificate issued under Section 31A of the Gujarat High Court Rules, 1993 with regard to the petitioner was referred back to the Committee for further consideration. The said order was carried by the petitioner before the Division Bench of this Court in Letters Patent Appeal No.1026 of 2016. The Division bench of this Court, vide order dated 08.10.2014 modified the order to that effect that the Certificate issued by the Committee earlier allowing the petitioner to represent his case stands maintained, but on condition that the appellant shall make his submission in writing before the Court and shall not make any oral submissions. Therefore, during the pendency of the present writ petition, the petitioner has tendered his written submissions and after considering the written submissions tendered by the petitioner, the learned Single Judge passed an order which is impugned in the present appeal. 5. We have heard appellant as party appearing in person and Mr. Sanjay Udhwani, learned Assistant Government Pleader appearing for the respondent – State and also considered the written submissions tendered by the appellant. 6. It is contended by the appellant that he was appointed as Executive Engineer and working on Expressway Division-1, Ahmedabad. 5. We have heard appellant as party appearing in person and Mr. Sanjay Udhwani, learned Assistant Government Pleader appearing for the respondent – State and also considered the written submissions tendered by the appellant. 6. It is contended by the appellant that he was appointed as Executive Engineer and working on Expressway Division-1, Ahmedabad. Such project was in collaboration with the World Bank Aided Project. It is contended by the appellant that the other two Engineer’s Representatives namely Shri B.D. Moore and Mr. Manachi were also appointed in the project and were being paid Euro 16,800 per month, whereas the petitioner was drawing a meager salary of Rs.5,585/- per month and other allowances as per the norms of the State Government. This being a huge disparity, the petitioner ought to have received the same amount as other Engineer’s Representatives were receiving. It was contended by the petitioner that he ought not to have been subjected to such huge disparity when the work was same. 6.1. It was further contended by the appellant that he was in the same cadre as his colleague Shri S.S. Rathod, who retired as Additional Chief Secretary to the Government of Gujarat. However, the petitioner and Shri S.S. Rathod being on the same cadre, the petitioner ought to have been given what was given to Shri Rathod. The other contention raised by the appellant is with regard to Public Interest Litigation and as the same goes beyond the scope of the writ petition, we therefore, propose not to consider the same. 7. On the other hand, Mr. Sanjay Udhwani, learned Assistant Government Pleader appearing for the respondent – State has contended that pursuant to the direction given by this Court, the case of the petitioner was considered by the concerned authority by way of order dated 02.01.2017, whereby, the concerned authority has given proper reason for not considering the case of the petitioner for promotion as prayed for in the writ petition. The said order dated 02.01.2017 is placed on record and forming part of the present Letters Patent Appeal. 7.1. The said order dated 02.01.2017 is placed on record and forming part of the present Letters Patent Appeal. 7.1. It has been further contended by learned Assistant Government Pleader that the learned Single Judge had kept it open for the petitioner to challenge any subsequent adverse order and that being not done, the order dated 02.01.2017 has attained finality and as per the reasons recorded therein, there is no case with regard to the deemed date of promotion. Insofar as contention with regard to the equal pay as an “Engineer’s Representative” for constructing Ahmedabad-Baroda Expressway is concerned, it is contended by learned Assistant Government Pleader that the appointment of the petitioner was different and that Mr. Moore and Mr. Manachi were appointed on a contractual basis on the fixed remuneration after considering their abilities and technical expertization. The appellant was serving as a Engineer’s Representative and employed by the State Government and as per his appointment order, he was bound by the conditions stipulated therein. Thus, there was no similarity in the case of Mr. Moore and Mr. Manachi as they were appointed on contractual basis for specific purpose and therefore, the contention of the appellant that he should be equally considered as the nature of service rendered by the petitioner is equal to that with Mr. Moore and Mr. Manachi, is not proper and he cannot be given any parity with the persons who are appointed on contractual basis for specific purpose. Hence, learned Assistant Government Pleader has requested not to grant the reliefs as prayed for by the appellant and the appeal be dismissed. 8. We have heard appellant - party-in-person and Mr. Sanjay Udhwani, learned Assistant Government Pleader and perused the written submissions given by respective parties. 9. Before going into the observations on merits of the mater, it would be pertinent to note that this Court had given option to the appellant that if he is dissatisfied with the decision that may be taken by the State Government, he may file fresh writ application. Though he was made to understand that order dated 02.01.2017 is never under challenge before this Court, an option was given to the appellant to challenge the said order dated 02.01.2017, if he is desirous to do so. Though he was made to understand that order dated 02.01.2017 is never under challenge before this Court, an option was given to the appellant to challenge the said order dated 02.01.2017, if he is desirous to do so. However, the appellant has specifically contended that he would like to go with the adjudication of the present Letters Patent Appeal and as such, we have gone with the hearing, adjudicating the present Letters Patent Appeal. 10. The first and foremost contention of the appellant is that he should have been given same remuneration as given to Mr. Moore and Mr. Manachi as they were working as “Executive Representatives’ on the Ahmedabad – Baroda Expressway from 1991-1993. For awarding equal pay for equal work, the equation of work and determination of the pay-scale is primary function of the executive and not the judiciary. Therefore, the Court is not supposed to enter into the job task evaluation. In the instant case, it may been seen that Mr. Moore and Mr. Manachi were having contractual obligation to give their services to experts like Federation International Des Ingenieurs Conseils, Switzerland and they were paid remuneration according to the terms of contract in Euro, whereas, the present appellant was given appointment by order dated 09.06.1988 which was accepted by the appellant along with the conditions stipulated therein and as such, could not have any comparison with the contractual posts as well as Executive posts. Merely the nature of work involved in two posts may sometime appears to be similar, the same cannot be a ground to apply the principle of ‘equal pay for equal work’. Therefore, it would not confer any legal right on the appellant to claim remuneration at par with Mr. Moore and Mr. Manachi. Thus, we concur with the observations made by the learned Single Judge on this aspect and qua the said aspect, we dismiss the appeal. 11. As far as the case of deemed date of promotion is concerned, the respondent has given a category of chart with regard to his appointment and his adverse remarks in the Confidential Report. The said chart is reproduced by the learned Single Judge in paragraph 10, which reads as under :- “10. So far as this part of the relief is concerned, the writ applicant has filed his written submissions in details trying to justify the deemed promotion. The said chart is reproduced by the learned Single Judge in paragraph 10, which reads as under :- “10. So far as this part of the relief is concerned, the writ applicant has filed his written submissions in details trying to justify the deemed promotion. He has raised manifold contentions including malice and mala fide. He has also tried in his way to explain how the adverse remarks were made in his Confidential Record and why they should have been ignored for the purpose of promotion at the relevant point of time. On the other hand, the State Government has prepared a chart which indicates the position as under: ‘08.12.1980 Appointed as Executive Engineer ‘31.05.2014 Retired as Chief Engineer Prayer for the promotion for the post Supdtd. Engineer with deemed date 27.07.1989. ‘30.06.1988 (First DPC) here were adverse remarks in Confidential Report of 1985-86 and 1986-87. ‘30.06.1989 (Second DPC) There were adverse remarks in Confidential Report of 1986-87 and 1988-89. ‘30.06.1991 (Third DPC) There are adverse remarks in Confidential Report of 1985- 86, and 1986-87; 1988-89 and corrective note in C.R. of 1990-91. GPSC recommended to drop the petitioner, but Government did not accept the recommendation of GPSC and granted him promotion. ‘20.10.1993 Promoted to Supdt. Engineer DPC for Chief Engineer ‘30,06.1997 (First DPC) Not fulfilling minimum criteria for promotion to Chief Engineer ‘30.06.1998 (Second DCP) Departmental Enquiry against the petitioner and his C.R. w as good. He was not in a very good category. Other officers of very good category were available, therefore, the petitioner was dropped because of departmental inquiry and good remarks in C.R. ‘30.06.2000 (Third DPC) Same position. Departmental Enquiry against the petitioner and his C.R. was good. He was not in very good category. Other Ofiicers of very good category were available, therefore, the petitioner was dropped because of departmental inquiry and good remarks in C.R. ‘05.04.2002 (Fourth DPC) Departmental inquiry was in process, therefore, he was considered to be kept in sealed cover. Afterwards DPC was not met till 03.02.2014 ‘03.03.2014 (next DPC) He was considered fit. ‘24.03.2014 Promoted to Chief Engineer. ‘30.05.2014 Retired as Chief Engineer. 12. While going through the same, the learned Single Judge had granted opportunity to the petitioner by directing the authority to consider his case and also kept the window open for the appellant to challenge if the order is adverse. ‘24.03.2014 Promoted to Chief Engineer. ‘30.05.2014 Retired as Chief Engineer. 12. While going through the same, the learned Single Judge had granted opportunity to the petitioner by directing the authority to consider his case and also kept the window open for the appellant to challenge if the order is adverse. However, during the pendency of the writ petition, such order is passed on 02.01.2017. After such order was passed on 02.01.2017, there was an opportunity for the appellant to challenge the said order by way of a separate proceedings as directed by the learned Single Judge. However, the appellant has not done so. Even during the course of hearing of the present appeal, an option was given to the appellant that if he desires, he can challenge the said order, however, he has answered in negative and submitted that he wants to go ahead with the argument of the present appeal. Therefore, the question for consideration would be whether he may be granted the relief with regard to placing him in the same cadre as his colleague Shri S.S. Rathod who retired as Additional Chief Secretary. Thus, the order passed by the authority on 02.01.2017 is a detailed order and since the appellant having accepted the same, the said order had attained finality and as such, this Court would not be in a position to assail the correctness and validity of such order. That being the contention and the factual aspect of negating the Confidential Reports and other ancillary aspects being considered for his non promotion, then in such a scenario to promote him for such post with his fellow batch-mate Shri S.S. Rathod cannot be considered and the relief prayed for in the appeal also fails. 13. In view of the above, we do not find any justifiable ground to interfere with the impugned order passed by the learned Single Judge and the appeal being devoid of merits, the same deserves to be dismissed. 14. Accordingly, the appeal is dismissed. No order as to costs. Consequently, the connected civil application also stands disposed of.