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SA/80/1993 12/ 12 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND
APPEAL No. 80 of 1993
With
SECOND
APPEAL No. 81 of 1993
With
SECOND
APPEAL No. 79 of 1993
With
SECOND
APPEAL No. 74 of
1993
=========================================================
STATE
OF GUJARAT & 1 - Appellant(s)
Versus
ANVAR
SULEMAN KANIYA - Defendant(s)
=========================================================
Appearance
:
Ms
Mathur for
Appellant(s) : 1 - 2.
MR PM THAKKAR for Defendant(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 23/12/2010
ORAL
ORDER
Being
an identical matter, papers of Second Appeal No.74 of 1993 has been
called from Registry as mentioned by learned advocate
Mr.D.M.Thakkar.
Heard
learned A.G.P. Ms.Mathur appearing on behalf of appellants and
learned advocate Mr.D.M.Thakkar on behalf of respondents in all four
matters. Employee – original plaintiff – present
respondent in each case had filed Civil Suit before Joint Civil
Judge(S.D.), Jamnagar against State of Gujarat and Deputy
Conservator Forests, Jamnagar, which was allowed and Civil Court had
declared that act of present appellant in not giving promotion to
respondent was illegal, unconstitutional and against principles of
natural justice and directed to give promotion with effect from
01.07.1981 with consequential benefits in post of Forester. Trial
Court has passed aforesaid judgment and decree on 24.04.1987 against
which appeal was preferred by State of Gujarat before Assistant
Judge, Jamnagar. Lower Appellate Court dismissed said appeal and
confirmed judgment and decree passed by Lower Court on 31.12.1991.
Thereafter, present Second Appeal is preferred by State of Gujarat.
Substantial
question of law involved in present appeal was formulated by this
Court while exercising powers under Section 100 of Code of Civil
Procedure was, whether on interpretation of Rule-2 of Forester
(Subordinate Forest Service) Recruitment Rules, 1969, criteria for
promotion to Forester from Forest Guard is Seniority-cum-merit,
seniority or proved merit and efficiency prevail? Page ‘D’.
Learned
advocate Mr.D.M.Thakkar submitted that in Civil Application No.7778
of 2006 to Civil Application No.7780 of 2006, this Court has passed
an order on 16.03.2007 (Coram: Hon’ble Mr.Justice R.S.Garg), which
is quoted as under:-
“1. On
26th
August, 1992, this Court granted stay against the execution on the
following conditions:
(1) The
applicant-State shall carry out the direction of the trial Court with
respect to giving of promotion to the original plaintiff with effect
from 1st July, 1981 within a period of six weeks from
today.
(2) The
promotion order will be subject to the outcome of the appeal and the
applicant-State so shall state in the promotion order itself.
It
was also observed: “it is clarified that the consequential
order granting monetary benefits granted to the original plaintiff is
stayed until further orders”.
2. It
appears that in accordance with the directions of this Court, the
promotion has been effected in favour of the applicants effective
from 1st July, 1981, however, they are still being paid
the salary of the Forest Guard. Shri Pujari, learned Assistant
Government Pleader, says that certain further benefits are also being
given to the opponents because the promotional avenues are blocked.
3. From
the order passed by this Court, it clearly appears that the monetary
benefits with effect from 1st July, 1981 upto 26th
August, 1992 were to remain stayed. The High Court did not intend to
say that even after the order, the respondent would not be entitled
to any benefits attached to the promotional post. The Conservator of
Forest, in his affidavits dated 15th March, 2007, has
submitted that the respondents would be entitled for higher
pay-scale and if are taken to be promoted with effect from 1st
July, 1981, their salary/total emoluments would be Rs.16,220/-, but,
the respondents are being paid a sum of Rs.11,480/- only. Shri Pujari
learned Counsel for the opponents, submits that the figures are
tentative and not final.
4. The
present applications for early hearing have been filed on the ground
that despite orders in favour of the respondents, the present
appellants are not paying the salary in accordance with law and the
directions of this Court.
5. Let
the Conservator of Forest look into the matter and observe the
earlier order, as explained by today’s order, and pass necessary
and appropriate orders latest by 30th
March, 2007. It shall be his duty to place the matters before the
Audit Committee or the Higher Officials and obtain their approvals
and orders. It shall be his duty to inform the other authorities
that the High Court has directed that the matter should be
concluded by 30th
March, 2007 and if it is not, accordingly, done, then, it will be
taken to be a serious lapse on the part of the Conservator of
Forest and other authorities. The matters be taken up for
consideration on 3rd
April, 2007.”
Learned
advocate Mr.Thakkar submitted that in light of interim relief, which
has been granted by this Court, present respondents –
employees have been promoted in post of Forester by order of
Conservator of Forest, Jamnagar dated 14.12.1992 and thereafter,
salary of promoted post was also given. Deemed date for promotion
was also granted in favour of present respondent by order of
Conservator of Forest, Junagadh dated 02.09.1995. Thereafter, by
order of Principle Chief Conservator of Forest dated 08.04.2009,
first higher pay-scale was also made available to respondents and by
that order higher pay-scale benefits in post of Forester were
granted in favour of respondents with effect from 11.11.1991, but,
arrears between the date when actually post was held by respondent
and deemed date is to be given.
As
against that learned A.G.P. Ms.Mathur produced on record letter
received from Deputy Conservator of Forest, Marin National Park,
Jamnagar dated 18.12.2010, where according to accountant, a
difference from the year 1982 to 1987 for respondent –
Mr.A.S.Kania comes to Rs.12,313.10, for respondent –
Mr.E.H.Solanki comes to Rs.12989.40 and for respondent –
Mr.M.M.Joshi comes to Rs.15935.10 and as per letter of Deputy
Conservator of Forest, Jamnagar Forest Division, Jamnagar dated
22.12.2010, a difference from the date 11.11.1982 to 30.05.1987 for
respondent – Mr.Chudamal Gala Patil comes to Rs.9,787/-, which
requires to be paid after disposal of present appeal. Learned
advocate Mr.D.M.Thakkar submitted that this calculation given by
appellants is not accepted by respondents.
In
light of this background of all four Second Appeals and considering
substantial question of law formulated by this Court on 19.04.1993
for interpretation of Rule – 2 of Forester (Subordinate Forest
Service) Recruitment Rules, I have considered submissions made by
both learned advocates and I have also perused judgment and decree
passed by Trial Court as well as judgment and decree passed by Lower
Appellate Court. Both parties lead their oral as well as documentary
evidence on record and thereafter, Trial Court has come to
conclusion that in seniority list dated 01.01.1980, though
plaintiffs were senior to some of juniors, even though, juniors were
promoted in post of Forester. Promotion had been denied and this is
how it has been challenged before Trial Court that juniors were
promoted to higher post, ignoring plaintiff’s seniority. This
question has been examined by Trial Court, after considering
relevant Rule – 2 as referred above and come to conclusion
that promotion of a person to higher post is to be given to a person
of proved merit and efficiency from amongst Forest Guards meaning
thereby merits can be considered, but, seniority should not be
ignored. This principle has been considered by this Court in case of
K.L.Gadhvi Vs. Chief Conservator of Forest and Others
reported in 1985(2) GLR Page No.1106. It has been held that
while considering case of promotion to higher post on
seniority-cum-merit basis, seniority cannot be ignored. There must
be positive demerits and vague adverse remark is not sufficient.
Relevant para of said judgment is quoted as under:-
“3. Mr.M.B.Gandhi,
the learned A.G.P. has urged even when the criterion for promotion
is seniority-cum-merit, a person has to show that he has sufficient
merit to be promoted. In this case according to him, the petitioner
has been found to be weak in performance and therefore he could only
be promoted when his efficiency improves. It is well laid down
principle that when the criterion for promotion is
seniority-cum-merit, the seniority prevails in absence of a clear
finding that the person concerned is positively unfit to be
promoted. In this case, there is nothing on the record to show that
petitioner was positively unfit for promotion. A mere vague
allegation of inefficiency or irregularity without any facts to
substantiate such an allegation cannot be regarded as positive
unfitness. There has to be something quite substantial against the
person to show that he is not fit to be promoted. That requires much
greater demerit than the mere allegation of inefficiency or
irregularity in attendance, Moreover, it does not seem to have any
basis for making such allegation. This Court has held in the case of
Dr.B.R.Kulkarni V. Government of Gujarat and others, XIX G.L.R.
1021, that an ephemeral roll should be maintained to show the day to
day performance of the employee which could provide material for
coming to the conclusion that his performance is not good and that
the adverse remarks entered in the confidential reports can be based
on the material contained in the ephemeral roll. It is therefore,
clear that the respondents have wrongly denied the petitioner the
promotion he was entitled to from the post of Forest Guard to that
of the Forester when it was due to him on the basis of his
seniority. The petitioner therefore will have to be given promotion
from Forest Guard to Forester with effect from the date on which he
was due for such a promotion on the basis of his seniority. It will
have to be from the date on which the person immediately next to
him in the seniority was promoted from Forest Guard to Forester ”
Trial
Court has come to conclusion that there is no demerits or adverse
remarks about respondents for granting promotion to higher post.
Therefore, Trial Court has rightly come to conclusion, after
considering decision of Hon’ble Apex Court in case of Amarkant
Chaudhary Vs. State of Bihar reported in AIR 1994 SC Page
No.531 , wherein it was held that if adverse remarks are
not communicated, his case requires to be considered for promotion.
So long case of concerned employee is not found for demerits for
giving promotion to higher post, therefore, seniority cannot be
ignored. Trial Court has considered undisputed fact that most of
juniors have promoted, ignoring seniority of plaintiffs.
This
aspect is also examined in detail by Lower Appellate Court while
interpreting Rule – 2 as referred above. Lower Appellate Court
has also considered aforesaid decision, reported in 1985(2) GLR
Page No.1106. Relevant discussion made by Lower Appellate Court
in his judgment in Para – 7 to 11 are quoted as under:-
“7. I
have heard the learned advocate Shri H.G.Joshi for the respondent or
and the Learned A.G.P. Shri M.J.Parekh for the appellant and have
also considered the documents and evidence on record. Now, it
appears from the evidence or record that the plaintiff is serving as
a forest guard in the State of Gujarat. Now, looking to the
seniority list produced by the parties apparently it is clear that
several junior to the plaintiffs are promoted in the cadre of
forester by superseding the plaintiff. The plaintiff has deposed on
oath that he was fit to be promoted as forester and no any adverse
remars were ever passed against his nor any such adverse adverse
remarks were ever communicated to him and the criterion for the
promotion seniority cum Merits and therefore, he was entitled to
promotion with retrospective effect with all other benefits as
provided under the rules. As against that the defendants have
examined witness Kiritkant Pratapray who is serving in the office of
Conservator of Foreast at Junagadh. He has deposed that the
plaintiff is not entitled to get promotion as promotions are
released on the ground of proved merits and efficiency. He has
denied the fact that the plaintiff is entitled to yet promotion as
per seniority list. He has further deposed that the Selection
Commission prepares list for the candidates to be promoted as
forester. But, at the same time he has not been able to show any
such rules wherein provisions for the selecti committee has been
made. He has further deposed that the basis for the promotion are
confidential reports of the candidates. But, looking to the record,
it appears that nothing is shown against the name of the candidates
those who were juniors to the plaintiff and those who were promoted.
It further appears from the documents on record that the alleged
adverse remarks are vague and there is nothing on record to
substantiating such adverse remarks. The defendants have been unable
to show when suhc remarks were passed, upon what basis same were
passed and whensuch remarks were communicated to the plaintiff
2. The
learned advocate Shri. Joshi has invited my attention towards rule 2
of the Forester (Subordinate Forest Service) Recruitment Rules, which
reads as under:-
Appointment
to the post of Forester in the lower subordinate forest service shall
be made either by promotion of (e) person of proved merit and
efficiency from amongst the guards, or (b) by direct selection.
Now,
looking to this provision, it is very clear that the criterion for
the promotion is seniority cum merits. No any special knowledge,
efficiency or training is required for the promotion of the Guard as
a Forester.
9.
Shri Joshi cited 26 CLR 1106, K.I.Gadhavi V. Chief Conservator of
Forests, wherein the Hon’ble Gujarat High Court has held that it is
a well laid down principle that when the criterion for promotion is
seniority cum merit, the seniority prevails in absence of a clear
finding that the person concerned is found or positively unfit to be
promoted. In this case, there is nothing on the record to show that
the petitioner was positively unfit for promotion. A mere vague
allegation of inefficiency or irregularity without any facts, it
substantiate such an allegation cannot be recorded as positive
unfitness. There has to be something quite substantial against the
person to show that he is not fit to be promoted. That requires much
greater demerit than the mere allegation of inefficiency or
irregularity in attendance. Shri Joshi also cited 1984 GLH OJ 26,
Thakorlal M. Khambholja V. State of Gujarat, wherein the Hon’ble
Gujarat High Court has held that unless the employee found to be
positively unfit he ould not be denice promotion his juniors cannot
be promoted overlooking his claim. Shri Joshi has also cited 1985
GLH OJ 60 Smt. Jyotsana Mati V. Y.M.Desai, wherein it was held by
the Hon’ble Gujarat High Court that in case of Adverse remarks made
in the confidential report without any basis , promotion of the
employee cannot be denied Shri Joshi has also cited 25(1) GLR 264,
T.C. Bhargav V. State of Gujarat, wherein it was held by the Hon’ble
High Court of Gujarat that in case where confidential remarks were
not communicated to the petitioner, such remarks cannot be
considered for assessing his performance at the time of crossing
efficiency bar. Shri Joshi also cited AIR 1984 SC 531, Amar Kant
Chaudhary V. State of Bihar, wherein it was observed by the Supreme
Court that were the case of employee was not considered by Selection
Committee for promotion and his name not included in the selection
list due to adverse remarks in his confidential roll which were
either not communicated to him or against which the representation
made by him remained undisposed of any though those adverse remarks
had been expunged by the State Govervnemnt there were not removed
from the confidential roll and subsequent confidential roll which
contained entries favourable to the employee were not placed before
the Selection Committee in the next meeting. It was held that the
decision of the Selection Committee was vitiated. Shri Joshi has
also cited 1986(3)SLR 283, Hari Singh Verma V. Union of India,
wherein the Hon’ble Bombay High Court has held that denial of
promotion to the petitioner on the basis of uncommunicated adverse
remarks are illegal. Shri Joshi has also cited 1986(1)SLR 500,
Arunkumar Chatterjee V. South Eastern Railway wherein the Hon’ble
Supreme Court has held that in case where the promotion of the
employee was illegally denied, in that case the employee is entitled
to promotion from due date with all consequential benefits.
10. Thus,
looking to the above proposition of law, it is apparently clear that
the denial of the promotion to the plaintiff can only be justified
if he is positively found unfit to be promoted. Here in the present
suit, there is nothing on record to show that looking to the
services of the plaintiff, he was ground positively unfit to be
promoted as forester and further when the Hon’ble Gujarat High Court
has positively held in case of K.I.Saghed V. Chief Conservator of
Forest (Supra) which was the similar case to the present one and Mr.
Gadhvi was serving as a Forest Guard in case of which the Hon’ble
Gujarat High Court has held that the criterion for promotion being
seniority cum mertis, seniority cannot be ignored on the basis of
bague remarks. Thus, considering the fact that the juniors to the
plaintiff were promoted overlooking the seniority of the plaintiff
was the act in itself illegal, unconstitutional and against the
principles of natural justice.
11. The
learned Trial Judge has well discussed the documents and evidence on
record and has also well discussed the law points and the ratio laid
down in the said authorities cited before him in his judgment and it
is found that the judgment of the Learned Trial Judge is based on
the sound legal principles and therefore, I am completely in
agreement with the findings arrived at by the Learned Trial Judge.
For the above stated reasons, I answer point Nos. 1 & 2 in the
negative. In the result the appeal deserves to be dismissed.”
Both
Lower Courts have concurrent findings on question of law, while
deciding matter as per principle laid down in judgment in case of
K.L.Gadhvi Vs. Chief Conservator of Forest and Others
reported in 1985(2) GLR Page No.1106. According to my
opinion, both Court has rightly interpreted Rule – 2 of
Forester (Subordinate Forest Service) Recruitment Rules and
considered case of each respondent that each respondent are entitle
for post of Forester being a promotion post because positive
demerits has not been established against respondents by Appellant
before Trial Court as well as Lower Appellate Court. Therefore,
contention raised by learned AGP Ms. Mathur cannot be accepted. In
all Second Appeals, there is no substance, since question of law
formulated by this Court has been answered by both Courts below, as
discussed above. Therefore, all Second Appeals are dismissed.
Interim-relief, if any, stands vacated.
Learned
advocate Mr.D.M.Thakkar appearing on behalf of respondents submitted
that these being an old matters and one or two respondents are
already retired, whatever service benefits are available in
pursuance to judgment and decree passed by Trial Court, let it be
paid within some reasonable time. Considering submission made by
learned advocate Mr.Thakkar, it is directed to appellants to
implement judgment and decree passed by Trial Court and confirmed by
Lower Appellate Court and this Court, within a period 2(Two) months
from the date of receiving a copy of present order and to pay
monetary benefits arising out of that.
[H.K.RATHOD,
J.]
..mitesh..
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