JUDGMENT
S.H. Sheth, J.
1. In 1963 the petitioner was directly recruited as a Mamlatdar through Public. Service Commission. In or about 1965 he passed the Revenue Qualifying Examination and was confirmed as Mamlatdar on 3rd September 1965. In 1974 he was due for promotion to the higher post. Since an enquiry had been pending against him, his case was not considered for promotion and he was passed over. In 1977 the two enquiries pending against him have concluded. In both he has been found guilty. In one he was punished with the stoppage of one increment without future effect and has also been censured. In another enquiry also be has been found guilty and has been punished with withholding of two increments with cumulative effect. Since his case for promotion to the higher post was not considered during the pendency of two the departmental enquiries against him, he filed this petition in 1975 in which he wants this Court to direct respondents 1 to 4 to consider him for promotion to the higher post of a Deputy Collector. He also wants this Court to issue a direction that all adverse remarks and the pending and contemplated enquiries be ignored. Next he wants this Court to quash the Government order dated 6th November 1974 (Annexure ‘H’) which directed enquiries to be instituted against him.
2. The first contention which Mr. Doshi has raised before me is that the petitioner, merely on account of the pendency of enquiries against him, could not have been denied consideration for promotion to her higher post. According to him, denial of consideration to the petitioner for promotion to the higher post was a result of the Government Resolution dated 24th May 1966 which, according to him, is constitutionally invalid. He has stressed vehemently his contention that since in the eye of law the petitioner was entitled to be considered for promotion to the higher post at the time when he was denied that consideration, the result of the two enquiries cannot be taken into account. I am unable to agree with him that the result of the two enquiries which is against him can be overlooked while deciding this petition even though it is a subsequent event. Though this action was instituted during the pendency of an enquiry, the final order in this action must be shaped in light of the final result of the enquiry if the enquiry is concluded because to ignore the final result of the enquiry and to make an order will not only mean one sided approach to the case but will lead to unworkable orders which will have no value whatsoever. A court of law does not make an order which is unworkable or academic. Therefore, while deciding the petition of this type, it is necessary to take into account the entire chain of events so as to enable the Court to make a workable order finally. Sometimes a petition which was filed to serve a very good purpose becomes infructuous on account of the happening of & subsequent event. There is no point in deciding such an infructuous petition after ignoring the subsequent event which has rendered it infructuous. Therefore, though Mr. Doshi has very strenuously pressed before me that this petition should be decided in light of the circumstances which prevailed when it was instituted and not in light of the totality of circumstances prevailing till the date of its decision, his request cannot be acceded to for the reasons which I have stated. Firstly, there is no point in deciding an infructuous petition and secondly, any decision which a Court of Law records must be one which is capable of implementation. The view which I am expressing finds support in the decision of the Supreme Court in Piare Lal v. Union of India and Ors. . Mr. Doshi has cited a number of decisions in support of his contention that in spite of the pendency of the enquiries against the petitioner he was entitled to being considered for promotion to the higher post. It is not necessary to refer to any of those decisions because the principle which applies to the case of a pending inquiry does not necessarily apply to a case of a concluded enquiry. In the instant case the two enquiries which have been pending against the petitioner when the petition was filed have been concluded during, the pendency of the petition. Therefore, reference to several decisions cited by Mr. Doshi unnecessary. The difference between a pending enquiry and a concluded enquiry in my opinion’s as follows. In case of a pending enquiry, the delinquent has equal chances of being found guilty or innocent. Therefore, during the pendency of an enquiry, no assumption that he will be found guilty can be made. Therefore, his consideration for promotion to a higher post cannot be withheld on any such express or implied assumption. If consideration for promotion to a higher post is denied to a delinquent at the material time, gross injustice will be done to him if ultimately he is exonerated of the charges levelled against him. In such a case, can he be made to suffer for no fault of his? Since we are wedded to the philosophy that an innocent person cannot be made to suffer directly or indirectly the pending enquiry is not considered to be a good ground for denial of. The consideration of a delinquent for promotion to the higher post. In such a case, What is done is to consider him for promotion to the higher post, to record the decision in that behalf and if the decision is in his favour, to promote him to the higher post in case he is exonerated from the charges levelled against him and with effect from the date on which he became due for promotion to the higher post. These considerations do not and cannot govern the case of a concluded enquiry in which a delinquent has been found to be guilty and has been punished. Such a situation has already ruled out his chances of exoneration from the charges levelled against him. He has been found positively guilty of something. To ignore this result and to issue a direction which Mr. Doshi on behalf of the petitioner has strenuously asked me to issue is to nullify the result of the departmental enquiry and to restore the delinquent to the position which obtained before the enquiry was instituted against him. In the instant case, even though the petitioner has been found to be guilty in two departmental enquiries, if I issue a direction to the Government to consider him for promotion to the higher post and if I do so while ignoring the result of the two enquiries, it may lead as well to his promotion. If it leads to his promotion, he will be entitled to a higher salary with effect from the date on which he became due for promotion. If he gets or becomes entitled to a higher salary, I have no doubt in my mind that it will nullify two punishments of with holding two increments with cumulative effect and stoppage of one increment without future effect and will also cut across the punishment which has been accorded to him. It is impossible under these circumstances to accede to the argument which Mr. Doshi has raised before me. To do so is to unduly disturb the public administration by judicial pronouncements, to introduce chaos in it, to bracket the guilty and the innocent together and to protect the inefficient, incompetent and corrupt. A court of law cannot lend its hand to such a situation.
3. Therefore, so far as the consideration of the petitioner for promotion to the higher post is concerned all that can be said is that the Government after taking into account all the circumstances attending upon his career will record a final decision, if the petitioner is aggrieved by that final decision which would be the outcome of all circumstances attending upon his career, it is open to him to challenge it. He cannot ask me to do any thing more at this stage.
4. The next contention which has been raisedby Mr. Doshi relates to the constitutional validity of the circular dated 24th May 1966. His challenge is directed against paragraph 4 of that circular which is in Gujarati. When translated into English, the relevant part reads as under:
It is not correct to deny consideration to an employee for being placed on the select list merely because a preliminary or a departmental enquiry is pending against him. If the allegation against the employee relates to gross negligence of his duty or gross dereliction of duty or lack of integrity and if therefore he is liable to a major penalty, his case should not be considered at the time of preparing the select list and such employees should not be placed on the select list, if found proper, until the result of the enquiry is declared.
Mr. Doshi has challenged the validity of this circular on several grounds. Mr. M.B. Shah who appears on behalf of the respondents has brought to my notice the subsequent circular dated 30th March 1970. That circular relates to Government servants who are held to have been wrongfully superseded earlier or whose dismissal or removal having been set aside on appeal or otherwise are reinstated in Government service with full benefits, in relation to such Government servants, this is what that circular lays down:
In the cases in, which suppression of a Government servant for promotion to a higher post is considered by higher authorities to be unjustified and such authorities having powers to set aside the orders of supersessive do so, such Government servant should be deemed to have been promoted to the higher post from the date from which he would have been promoted but for his wrongful suppression, i.e., from the date from which his juniors were promoted. On restoration of his seniority the period from such deemed suppression dale till the date of his actual promotion should count for the purpose of pay fixation on the promotion post but no arrears of pay for that period on that account should be paid to him. He must also earn his increments on the promotion post only after the full incremental period is over, except where B.C.S. Rules provide otherwise or under the specific orders or rules governing pay fixation.
When these two circulares are read together, it becomes quite clear that a Government savant against whom a departmental enquiry, is pending will not be promoted to the higher post, if he is otherwise found suitable, during the penilency of such an enquiry but he would be entitled to promotion to the higher post from the due date if ultimately he comes to be exonerated from the charges levelled against him. It is in this light that I proceed to examine the constitutional validity of the circular of 1966 on the grounds which Mr. Doshi has advanced before me. The first ground which he has advanced before me is that the circular of 1966 was never published and that therefore it could not be used against the petitioner. Mere non-publication of a circular of this type which affects more the “delinquents than the innocent does not render it constitutionally invalid. Whenever it is used against a delinquent, the action taken thereon can always be challenged and the circular itself can be challenged if the action taken on that basis is defended by the Government on the basis of that circular.
5. The next argument which Mr. Doshi has raised is that the circular is ultra vires Rule 6 of the Gujarat Civil Services (Conduct and Appeal) Rules, 1971. The argument which he has advanced is that with holding of promotion is a minor penalty under Rule 6 and ‘if consideration for promotion to the higher post is withheld during the pendeacy of enquiry, it would amount, on the analogy of Rule 6, to a minor penalty. In case a delinquent is found to be guilty, he not only would have suffered the minor penalty of the withholding of his consideration for promotion to the higher post but would also suffer punishment awarded to him in pursuance of the finding recorded against him. Therefore, according to Mr. Doshi, what the circular introduces is a double punishment. I am not impressed by this argument at all. There is no right to promotion. All that a Government servant is entitled to is consideration for promotion to the higher post when he becomes due and eligible for it. It is inconceivable that a Government servant against whom a departmental enquiry is pending can claim to be promoted to a higher post on this ground merely because he is likely to suffer a penalty if he is found guilty. Withholding of consideration for promotion to a higher post during the pendency of an enquiry is, in my opinion, not a punishment at all. It is only an off-shoot of the misdeed which is alleged to have been committed by him. If he is so vigilant about his rights he must equally be vigilant about his duties and not commit a misdeed. Indeed if he is exonerated of the mis-deed alleged against him, he would not suffer at all because the two circulars which I have quoted above cumulatively have the effect restoring him to the position which prevailed before the departmental enquiry was instituted against him. In this off-shoot of the misdeed which he committed and which is bound to follow in the interest of public administration, I do not read any penal element.
6. The third argument which Mr. Doshi has raised in support of his contention is that this circular creates an artificial and unintelligible classification amongst Government servants. According to him, it is undue and hostile discrimination and has no rational and reasonable nexus with the object sought to be achieved. This argument reflects a total misconception. The two-fold classification of Government servants into those against whom no enquiry is pending and others against whoa an enquiry is pending is not only not artificial but natural and is a highly intelligible classification. It does not represent any undue hostility towards those against whom enquiries are pending. In fact, they are grouped into a separate class because the enquiries pending against them tend to indicate their hostility against a clean and efficient administration. It is needless for me to say that every public administration must be clean, honest and efficient. Therefore, if the circular sorts out into one group the black sheep, it is inconceivable for me to think that there is an undue hostility shown against them by putting them into a separate class. Such a classification has a most rational and reasonable nexus with the object sought to be achieved-the object being to ensure a clean, honest and efficient administration after weeding out therefrom dishonest, inefficient and corrupt.
7. The next argument which Mr. Doshi has raised before me is that the impugned paragraph of the circular of 1966 confers upon the Government an unfettered discretion without laying down any guidelines as to the time limit within which an enquiry is to be completed is also devoid of any substance. Enquiries differ from ease to case. No rigid or in flexible time limit can be laid down for completing such enquiries. However, a departmental enquiry, it cannot be gainsaid, must be completed within a reasonable time. Therefore, if an enquiry is unduly prolonged and if thereby the delinquent suffers undue prejudice, it is the undue delay in that enquiry which can be called in question but on that account the circular which classifies black sheep into a class cannot be called in question. Every power which is capable of being duly and reasonably exercised can be abused. It does not, therefore, mean that the conferment of such a power is bad In case of abuse of such a power, it is only the abuse in an individual case which is bad and not the broad factum of conferment of power.
8. The next argument which Mr. Doshi has raised before me is that if an enquiry is unduly prolonged, the impugned paragraph will be hit by Article 16. This is a totally misconceived argument. The validity of the impugned paragraph of 1966 circular cannot be tested on an assumption the connotation of which is likely to vary from case to case. If an assumption is made for examining the constitutional validity of a circular, that assumption must be such as is applicable to all cases or a very large number of cases. It cannot assume that (here will be undue prolongation of all enquiries or a large number of enquiries and proceed to examine the constitutional validity of the impugned circular on the anvil of Article 16.
9. The next argument which Mr. Doshi has raised is that the impugned circular violates the principles of natural justice and therefore is void. No law, rule or circular can be struck down on the ground that it does not provide for the implementation of the principles of natural Justice. When such a challenge’ is raised, the Court reads into the section rule or order the principles of natural justice and does not strike it down on the basis of-unwritten law of natural justice. The constitutional validity of a circular can be challenged only on the ground that it violates a provision of the Constitution, a law or a rule. Constitution does not make any express provision for striking down any circular on the ground that it does not provide for hearing the aggrieved parties.
10. The next argument which Mr. Doshi has raised is that the circular is bad because it provides for double punishment-withholding of promotion for the time being and the actual penalty which may be awarded to a Government servant who is found guilty. I have already dealt with this aspect in the earlier part of this judgment and for the reasons stated therein, lam unable to uphold this contention.
11. The next argument which Mr. Doshi has raised is that the impugned circular suffers from gross unreasonableness. There cannot be a more reasonable circular than one which creates a classification of officers into those against whom no enquiries are pending and those against whom enquiries are pending.
12. These are the only arguments which Mr. Doshi has raised in support of his contention that the impugned circular is unconstitutional. I am unable, to uphold any of them. Therefore, the challenge made by him to the impugned circular fails and is turned down.
13. The last contention which Mr. Doshi has raised on behalf of the petitioner is that the enquiries instituted against the petitioner were not competent. The enquiries have been concluded. The results have been recorded against him. They have not been challenged in this petition. If the petitioner feels aggrieved by the orders made against him, it is open to him to challenge them.
In the result, all the contentions raised by Mr, Doshi fail. Therefore, the petition fails and is dismissed. Rule is discharged with no order as to costs.
