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LPAST/1746/2005 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL (STAMP NUMBER) No. 1746 of 2005
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S.M.KHARADI
? Appellant(s)
Versus
STATE
OF GUJARAT & 2 - Defendant(s)
=========================================================
Appearance :
MR
MB GANDHI for Appellant(s) : 1,MR SUNIL M
AGRAWAL for Appellant(s) : 1,
None for Defendant(s) : 1 -
3.
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CORAM
:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
and
HONOURABLE
MR.JUSTICE A.S.DAVE
Date
: 12/04/2006
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE A.S.DAVE)
This
Letters Patent Appeal is filed under Clause 15 of the letters
Patent.
In
view of the reasons given in earlier Letters Patent Appeal No. 613
of 2006, challenging the orders impugned dated 12.7.2005, 18.7.2005
and finally 19.7.2005, it is to be noted that Special Civil
Application No. 13512 of 2005, lateron was heard by the learned
Single Judge and the same is disposed of on 1.2.2006 by following
observation:
?S7.Under
the above circumstances, it appears that in the adverse remarks,
which were now restored to the file, on account of the decision by
the State Government through the Minister of Finance, the petitioner
may ventilate grievance as may be permissible in law before the LPA
Bench and as the LPA Bench is seized with the matter, direction
cannot be given at this stage in the present proceedings leaving
liberty to the petitioner to resort to appropriate application in
the pending LPA, if otherwise permissible in law. However, so far
as the period after 2001 is concerned, the matter can be considered
by DPC on the basis of the confidential remarks as prevailing after
2001 onwards.
8. Therefore,
the petition is disposed of with the direction that the DPC in the
next meeting shall consider the case of the petitioner together with
the other eligible officers for promotion by taking into
consideration the confidential remarks of the petitioner after 2001
onwards. So far as the confidential remarks of 2000 is concerned,
the petitioner may resort to appropriate proceedings in the pending
LPA. Disposed of accordingly.??
In
view of the above directions given by the learned Single Judge to
consider the case of the petitioner along with other eligible
officers for promotion, and the reasons given by us in the order we
have passed in LPA 613 of 2006, we do not find any reason to
interfere with the order passed on 12.7.1987 and 19.7.2005, which
was a subject matter of grievance raised by the present petitioner,
which has been finally disposed of. Even the contention of Shri
M.B.Gandhi, learned advocate for the petitioner that the learned
Single Judge, while exercising powers under Article 226 of the
Constitution of India, no jurisdiction to issue the notice of
contempt and to hear the same, it is to be noted that the present
Appellant was very much present and participated in the said
proceedings. Not only that but it was a matter between the Court
and alleged contemner, who had lateron realised and withdrew the
order, by which the decision of August 2003 of Special Civil
Application was tempered with.
Considering
the above aspect, no grievances were raised during the pendency of
the proceedings by the present Appellant about the exercise of power
and issuance of the show cause notice to the then Hon’ble Finance
Minister, we do not find any substance to interfere in the Appeal
proceedings, which have arisen out of the interlocutory orders
passed and particularly now the matter is set at rest by the final
order of 1.2.2006.
It
is to noted that very basis of prayer made in Special Civil
Application No. 13512 of 2005, seeking direction to the respondents
to reconstitute the Departmental Promotion Committee and to consider
the case of the petitioner, is erroneous, since by an order dated
18.8.2003, Special Civil Application No. 12057 of 2003 came to be
rejected and against which even LPA (Stamp) No. 91 of 2005 was also
dismissed. Therefore, once this Court had given final verdict with
regard to adverse remarks, communicated to the petitioner, any
prayer based on subsequent acceptance of representation of the
petitioner against the very same adverse remarks cannot be
entertained and therefore also resurrection of the whole issue and
to adjudicate the same on merit, as submitted by Shri M.B.Gandhi,
learned advocate for the appellant do not require any interference
and the learned single Judge has rightly rejected the same, which do
not require any interference at our end.
Shri
M.B.Gandhi, learned advocate for the Appellant has produced a copy
of the final order dated 1.2.2006 passed in Special Civil
Application No. 13512 of 2005. The same is ordered to be taken on
record.
(A.M.Kapadia,J)
(A.S.Dave,J)
Jayanti*
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