IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No 5735 of 1984
Date of decision: 5-5-97
For Approval and Signature
The Hon'ble Mr. Justice S. K. KESHOTE
1. Whether Reporters of Local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether their Lordships wish to see the
fair copy of the judgment?
4. Whether this case involves a substantial
question of law as to the interpretation
of the Constitution of India,1950 or any
order made thereunder?
5. Whether it is to be circulated to the
Civil Judge?
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RAMKISHORE GAURISHANKER DUBE
Versus
STATE OF GUJARAT
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Appearance:
MRS KETTY A MEHTA for Petitioner
Mr. H. L. Jani for Respondent No. 1, 2
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CORAM : MR.JUSTICE S.K.KESHOTE
Date of decision:5-5-97
CAV JUDGEMENT
The petitioner, a Police Inspector of the Police
Department of the State of Gujarat, has filed this
special civil application praying for issue of a writ of
mandamus directing the respondents to give him deemed
date of promotion, and to pay him notional pay from
23-5-1974 on the post of Police Inspector. The
petitioner was given promotion to the post of Police
Inspector under order dated 11th September, 1990 with
effect from 24th April, 1988. Learned counsel for the
petitioner contended that in the year 1974 juniors to the
petitioner were given promotion and, though there was no
positive adversity in his service record, he has been
superseded and as such he should have been given
promotion from the deemed date of 23rd May, 1974.
2.In this case arguments were heard by this Court
on 9th April, 1997. During the course of arguments the
court has specifically put a question to the counsel for
the petitioner whether the petitioner made any grievance
at any stage after his supersession in the year 1974 till
the filing of special civil application. The counsel for
the petitioner made reference to para 4 of the special
civil application and contended that the grievance was
made by the petitioner against his supersession in the
promotion made in the year 1974. After going through the
contents of para 4 of the petition, the court was not
satisfied that any representation was made by the
petitioner. Whatever averments made therein are vague
and incomplete. The counsel for the petitioner prayed
for time to file copy of the representation made to the
Department. That prayer was accepted and the matter was
adjourned to 22nd April,1997. On 22nd April, 1997 also
the counsel for the petitioner has shown her inability to
file any such document. The fact remains that there is
nothing on record of the special civil application to
show that the petitioner had made complaint about his
supersession in the matter of promotion in the year 1974.
It is the modus operandi of the employees of the Police
Department in the State not to make any grievance against
supersession in promotion till they bagged promotion.
After bagging promotion they start claiming deemed date
of promotion, challenging the supersession. Earlier
also, in many cases this court has deprecated this
practice of the employees of the Police Department of the
State. Be that as it may.
3.The petitioner has right of consideration for
promotion, and not right of promotion. The case of the
petitioner was considered for promotion in the year 1974,
but he could not stand to merits in comparison with his
juniors and as such his name was not included in the
select list. The respondents have come up with the case
that the criterion for promotion to the post of Police
Inspector was merit and not seniority cum merit. Though
the counsel for the petitioner has contended that the
criterion for promotion on the post of Police Inspector
at the relevant time was seniority cum merit, she has
failed to produce any rule or regulation or circular or
anything in support of this contention. Contrary to
this, the respondents made reference in the reply
affidavit to rule 53 of the Police Manual wherein it is
given out that promotion to the post of Police Inspector
(unarmed) has to be made on the basis of merits alone.
Therefore it is not the case where the case of the
petitioner was not considered for promotion.
Supersession was made as the petitioner was not found to
be meritorious. Even if the petitioner has average
service record, he may not be given promotion and juniors
can be promoted in a case where criterion for promotion
is merit. Positive adversity is not a thing to be taken
care of, if comparative merit has to be assessed, and
whosoever is found meritorious, irrespective of
seniority, he can be given promotion. Not only in 1974,
but thereafter also, though departmental inquiry was
pending against the petitioner, his case for promotion
was considered in the year 1976 and in 1977. But in
those years also he was not found meritorious and his
name was not included in the select list. His name was
included in the select list for the first time in the
year 1979 and a person immediately junior to him in the
said select list was promoted with effect from 22-4-1980
and accordingly he was given promotion from the said
date. If juniors were promoted on 11-10-1974 and
24-5-1976, the petitioner did not make any grievance
against those promotions. He has made grievance against
his earlier supersession only after his promotion under
order dated 11-9-1980, by approaching this court.
Challenge to the supersession made in the year 1974
otherwise is not tenable and it suffers from unexplained
delay and latches. This writ petition is filed by the
petitioner about four years after his promotion. Taking
into consideration the totality of the facts of this
case, I do not find any justification in the claim of the
petitioner for deemed date of promotion from 23rd May,
1974 on the post of Police Inspector.
4.In the result this special civil application
fails and the same is dismissed. Rule discharged. No
order as to costs.
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csm