Gujarat High Court Case Information System
Print
SCA/2056/2007 23/ 23 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 2056 of 2007
With
CIVIL
APPLICATION No. 9943 of 2007
In
SPECIAL
CIVIL APPLICATION No. 2056 of 2007
With
CIVIL
APPLICATION No. 2171 of 2009
In
CIVIL
APPLICATION No. 9943 of 2007
With
SPECIAL
CIVIL APPLICATION No. 6338 of 1995
For
Approval and Signature:
HONOURABLE
MR.JUSTICE J.B.PARDIWALA Sd/-
=========================================================
1.
Whether
Reporters of Local Papers may be allowed to see the judgment ?
YES
2.
To
be referred to the Reporter or not ?
YES
3.
Whether
their Lordships wish to see the fair copy of the judgment ?
NO
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 ?
NO
5.
Whether
it is to be circulated to the civil judge ?
NO
=========================================================
M.M.LAHORI
- Petitioner(s)
Versus
K.C.ABRAHAM
& 2 - Respondent(s)
=========================================================
Appearance
:
NOTICE
SERVED for
Petitioner(s) : 1,PARTY-IN-PERSON for Petitioner(s) : 1,
RULE
SERVED for Respondent(s) : 1,
RULE SERVED BY DS for Respondent(s)
: 1, 3,
MS KRINA CALLA ASST.GOVERNMENT PLEADER for Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
Date
: 14/10/2011
CAV
JUDGMENT
1.0 As
common questions of law and fact are involved in both the petitions
and civil applications, they were all heard together and are being
disposed of by this common judgment and order.
2.0 This
litigation has a chequered history. Record reveals that the
petitioner appearing as a party-in-person is litigating since 1986
and as on today also he does not appear to be tired despite the fact
that he has retired from service some time in the year 1996. Number
of petitions have been preferred since 1986 till this date along with
various civil applications for one relief or the other relating to
promotion. The facts are so inextricably mixed up and the pleadings
are also so poor as a result of which it is very difficult to
understand as to exactly what the petitioner- party-in-person is
seeking from this Court. However, I have tried my best to gather the
facts from the record which reveal one thing that the petitioner was
denied promotion to which according to him, he was entitled in the
year 1988 as he was senior most person as Assistant Director,
Forensic Science Laboratory Department, State of Gujarat and he ought
to have been promoted to the post of Deputy Director. His grievance
so far has been that his colleagues junior to him who were working as
Assistant Director were promoted whereas he has been denied promotion
on various grounds not tenable in the eyes of law.
3.0
Facts which could be gathered from a very bulky record running in
about thousand pages can be summarized as under:
3.1
The petitioner vide Notification dated 19.10.1977 was appointed as
Toxicologist (Class-I) post through G.P.S.C. at Regional Forensic
Science Laboratory, Junagadh. Vide resolution dated 12.11.1981, the
post of Toxicologist was redesignated to the equivalent post of
Assistant Director (Class-I). Vide Home Department Notification dated
25.09.1996 and FSL order dated 30.09.1996, the petitioner retired as
senior most Assistant Director on 30th September 1996. It
appears that the petitioner had preferred Special Civil Application
No.8322 of 1988 in connection with the dispute in question. In the
said Special Civil Application No.8322 of 1988, he preferred Civil
Application No.9025 of 2005 with the following prayers;
“(i)
confirm the seniority of the applicant as given number 1 in the
tentative and in the final seniority list;
(ii)
quash and set aside the inquiry commission report given in inquiry
report of Case No.44 of 1993 and 49 of 1994;
(iii)
to direct the respondent No.2 State Government to return the
applicant Rs.2400/- recovered as Cut in pension in case of Inquiry
Report No. 49 of 1994;
(iv)
Pass the order of promotion of the post of Deputy Director with
retrospective effect i.e from the date given to the original
petitioner of Special Civil Application No. 457 of 1989;
(v) issue
orders that promotion of Deputy Director given to No.2 and No.3 in
the seniority list of Assistant Director is illegal;
(vi) issue
orders to the State Government i.e. No.2 and the Director, FSL,
respondent No.3 to revise his pay and promote him to the post of
Deputy Director with retrospective effect and pay him the arrears due
and also revise the pension and pay him the arrears due to revision
in pension with retrospective effect within time limit; and
(vii)
to pay him the interest due on above arrears as per the Government
Rules”
4.0 When
Civil Application No.9025 of 2005 along with Special Civil
Application No.8322 of 1988 was taken up for hearing by learned
Single Judge, the learned Single Judge took notice of the fact that
prayers made in Civil Application No.9025 of 2005 were not the
subject matter of Special Civil Application No.8322 of 1988 and
learned Single Judge also took notice of the fact that the petitioner
herein subsequently for the first time made such prayers in Civil
Application No.9025 of 2005. Learned Single Judge also took notice of
the fact that during the period from 1988 to 2005 the petitioner
retired and the respondent Nos. 1 and 4 in the said application also
retired. With this set of facts the learned Single Judge disposed of
Civil Application No.9025 of 2005 and Special Civil Application
No.8322 of 1988 observing as under:
“12.
Mr. N.M Lahori appearing as party in person has invited attention
of the Court to certain documents, judgments inquiry reports etc.
expressed which are annexed with Civil Application No. 9025/05. He
has vehemently argued before the Court that the petitioner was
denied promotion to which he was entitled in the year 1988 and that
he was senior most person as Assistant Director and promotion of
Deputy Director should have been given to him. Out of the four
records he has been exonerated in two reports, whereas in other two
reports, charges were proved against him. He has also challenged the
findings given by the inquiry officer in the said matter. The Court
has repeatedly informed Mr. Lahori that all the subsequent events
which he has narrated in this Civil Application have nothing to do
with the issue involved in the original petition and hence the same
cannot be considered by this Court in the present petition. In
Special Civil Application No. 8322/88 his grievance against the
inquiry officer’s finding or denial of promotion or revised pay
scale etc. cannot be considered. For claiming such reliefs he has
to file separate substantive petition before this Court as
admittedly the documents placed along with the Civil Application
were not forming part of the Special Civil Application 8322/98. The
court therefore does not entertain this Civil Application nor it
looks into the documents filed along with it. The petitioner must
file substantive petition and produce all relevant documents with
it. The Court will consider the same on its own merits. The Court,
therefore disposes of Civil Application No. 9025 of 2005 without
going into merits and reserving liberty to the petitioner to
file substantive petition if he so chooses. As far as the main
petition i.e Special Civil Application 8322/88 converted from Civil
Application No. 2127 of 1988 is concerned the same remained pending
only because while disposing of Civil Application No. 1731 of 1988
the Court has vacated interim relief and directed the State
Government to make promotion to the post of Deputy Director in
accordance with the applicable rules and it would be subject to
the result of petition.
13. Subsequently,
promotions made to the person on the said post were also retired.
The petitioner has also retired and hence there is no question of
granting promotion to the petitioner as Deputy Director. The
petitioner at the most can claim the difference in salary as
according to the petitioner, he should have been given the
seniority and should have been promoted to the post of Deputy
Director prior to the promotion given to Shri Abraham as he was
standing at Sr. No 1 first in the provisional seniority list,
however, the reply was filed before the Court that the seniority list
was not finalised. Mr. Abraham was given promotion on the basis of
merit cum efficiency. It was also pointed out that substantive
inquiry was pending against the petitioner. It was only because of
that the petitioners case was not considered for promotion at the
relevant point of time. If one looks at the prayer made by the
petitioner seeking direction to the State Government to take
suitable action for finalising seniority list of the Assistant
Director and for completion of the procedure for finalising of the
said seniority list, the same becomes infructous and by efflux of
time, the Special Civil Application no longer survives. It is
however, open to the petitioner to raise his grievance by filing
substantive petition before this Court claiming all the reliefs
which he has claimed in Civil Application No. 9025/05 and it is made
clear that the Court has not expressed any opinion so far as the
issue raised in this Civil Application are concerned.
14. Subject
to the aforesaid directions and observation Special Civil
Application No. 8322 of 1988 as well as Civil Application 9025 of
2005 are disposed of without any order as to costs.”
5.0
It appears that thereafter Special Civil Application No.2056 of 2007
came to be preferred. All the matters were being heard together time
to time. I have noticed one order passed by learned Single Judge
dated 01.12.2010 which makes it clear that many of the reliefs were
given up by the petitioner and he confined his challenge only so far
as promotion to the post of Deputy Director with retrospective effect
and consequential benefits is concerned and prayers no.1 and 2 in
Special Civil Application No.6338 of 1995 which are connected. It
would be expedient to quote the order dated 01.12.2010 passed by
learned Single Judge in Special Civil Application No.2056 of 2007 and
connected matters.
” When
the matter is taken up today, the Party-in- Person Shri M.M.Lahori,
who is appearing as petitioner in Special Civil Application No.2056
of 2007 and Special Civil Application No.6338 of 1995 has, drawn the
attention of the Court to the prayer clauses in both the petitions.
Prayer No.1 on page 34 of Special Civil Application No.2056 of 2007
has been deleted. Prayer No.2 is the same as prayer No.3 on page 16
of Special Civil Application No.6338 of 1995. Prayer No.3 in
Special Civil Application No.2056 of 2007 is exclusive to that
petition and does not find mention in the prayer clause of Special
Civil Application No.6338 of 1995. Prayer No.4 in Special Civil
Application No.2056 of 2007 is the same as prayers Nos.1 and 2 of
Special Civil Application No.6338 of 1995, which contains only three
prayers.
It
is stated by Mr.M.M.Lahori, Party-in-Person that he does not press
prayer No.2 in Special Civil Application No.2056 of 2007 regarding
Departmental Inquiry No.44 of 1993 as the said prayer no longer
survives since the Censure given by the Government in the said
Inquiry has been deleted by Government Notification dated 16-5-1996,
which is mentioned in a copy of the Gujarat Civil Services
(Discipline and Appeal) Rules, 1971,under Part III DISCIPLINE, on
page 239 in Special Civil Application No.2056 of 2007.
Further,
the Party-in-Person submits that prayer No.3 in Special Civil
Application No.2056 of 2007 regarding Departmental Inquiry Case No.49
of 1994 also does not survive in view of order dated 10-7-2008 passed
in Special Civil Application No.2056 of 2007.
Therefore,
as stated by the Party-in-Person, prayer No.4 in Special Civil
Application No.2056 of 2007 regarding direction to the State
Government to promote the Party-in-Person as Deputy Director with
retrospective effect and consequential benefits and prayer Nos.1 and
2 in Special Civil Application No.6338 of 1995, which are
connected,are the only prayers that survive in both the petitions.
Mr.M.M.Lahori,
Party-in-Person has conceded this factual position.
Since
the working time of the Court is over, the matter is adjourned to
24-12-2010.”
6.0 I
have heard the petitioner,- party-in-person at length and to his
heart’s content. I have also heard learned Assistant Government
Pleader Ms.Vayjanti Pathak appearing for the State. I have also
perused the record.
7.0 Petitioner
vehemently contended that the authorities have acted in a very biased
and highhanded manner in refusing promotion to the post of Deputy
Director, Forensic Science Laboratory. He submitted that he is
knocking the doors of this Court for justice from 1986 onwards. He
retired in the year 1996 but even thereafter the Competent Authority
did not pay any heed and all his colleagues who were junior to him
were promoted. The colleagues have also retired. He submitted that
two departmental inquiries against him were initiated bearing No.7 of
1992 and 8 of 1992 and by order dated 29.01.1994 and 19.10.1993, the
petitioner was not found guilty and exonerated. He also submitted
that inquiry No.3 i.e. 44 of 1993 for which charge sheet was issued
on 05.06.1990 came to be terminated into punishment of written
censure by order dated 20.06.1996. He submitted that all these facts
were brought to the notice of the learned Single Judge on 16.05.2008
and the learned Single Judge (Coram: Anant S. Dave, J.) passed an
oral order which reads as under.
“1.
Pursuant to the order passed on 12.5.2008, today learned AGP Ms.
Asmita Patel has produced two sealed covers with regard to the
departmental inquiries initiated against the petitioner.
2. So
far as inquiry Nos.7/1992 and 8/1992 are concerned, by order dated
29.1.1994 and 19.10.1993, the petitioner was not found guilty and
exonerated.
3. That,
inquiry No.3 i.e. 44/1993 for which charge sheet was issued to the
petitioner on 5.6.1990 which came to be ultimately terminated into
punishment of written censure by order dated 20th June,
1996.
4. The
two sealed covers dated 5.12.1990 and 29.8.1992 by two D.P.C. are
pertaining to three different inquiries namely 7/1992, 8/1992 and
44/1993, out of which for inquiry Nos. 7/1992 and 8/1992, the
petitioner is already exonerated as noted above.
4.1. So
far as inquiry No.4 i..e 49/1994 is concerned, charge sheet was
issued on 12.3.1993 and punishment by order dated 15.9.1998, a cut
from pension was ordered for Rs.200 p.m. for 12 months only.
5. Mean
while on third occasion Departmental Promotion Committee (DPC) was
convened on 2.9.1995 which was ultimately adjourned to 12.10.1995.
It was recommended by the DPC to continue and to keep the name of the
petitioner in sealed cover.
5.1. Therefore,
when the petitioner is already exonerated qua inquiry Nos. 7 and
8/1992 and punishment of censure dated 20th June, 1996 is
deleted by notification dated 16.5.1996 from the list of punishment
under Rule 6 of Gujarat Civil Services (Discipline and Appeal) Rules,
1971, decision dated 20th June, 1996 becomes vulnerable
and illegal. Of course, the above punishment was again reinserted by
notification dated 1.12.2000. the learned AGP is unable to dispute
above fact about non-existence of punishment in the Rule Book.
5.2. Therefore,
the order dated 20th June, 1996 impugned in this petition
by imposing penalty of censure is contrary to rule and no punishment
of censure exist as on 20th June, 1996. The disciplinary
authority could not have been inflicted such punishment and,
therefore, being illegal, deserves to be quashed and set aside.
6. However
for final order and on the question about punishment imposed upon the
petitioner vide order dated 15.9.1998 by ordering cut from pension of
Rs.200 p.m. for a period of 12 months inquiry No.49/1994 initiated
pursuant to the charge sheet dated 12.3.1993 and recommendation of
Departmental Promotion Committee which was convened initially on
2.9.1995 and ultimately adjourned to 12.10.1995 of continuing the
name of the petitioner in sealed cover remain to be decided by this
Court and consequential relief of considering the case of the
petitioner for promotion to the post of Dy. Director, FSL from the
date when his immediate junior came to be promoted on such post will
be considered by this Court on 19th June, 2008.
7. With
the joint request of both the parties, the matter is treated as
part-heard.”
8.0 He
further submitted that the matter was further taken up for hearing by
learned Single Judge (Coram: Anant S. Dave, J.) on 10.07.2008 and the
oral order recorded by learned Single Judge is important which reads
as under:
” Today
when the matter was argued further, party-in-person has placed
reliance on the decision of the Division Bench in the case of
M.N.Mevada vs. State of Gujarat reported in 1976 (2) SLR page 666
and submitted that embargo imposed in sub-clause (ii) of clause (b)
of Rule 189-A is equally applicable in case of an employee governed
by clause (a) of Rule 189-A and even in that case also institution of
departmental proceedings for any event which took place more than 4
years before, such institution is bad and in case of the petitioner,
for the incident of 2.1.1988, departmental proceedings commenced on
12.3.1993 i.e. about after 5 years 2 months and 10 days and,
therefore, the case of the petitioner is covered by the above ratio
laid down by this Court.
Next,
it was submitted by party-in-person that still recovery procedure can
be followed by the authority in view of the Government Resolution
dated 23rd September, 1981 and as per law laid down in the
case of Union of India vs. K.V.Jankiraman reported in (1991) 4 SCC
109.
Considering
the above submissions, the case of the petitioner prima facie appears
to be acceptable, subject to clarification by the learned AGP, for
which she requests for time.
Hence,
adjourned to 17th July, 2008.”
9.0 It
appears that thereafter another learned Single Judge (Coram: K. S.
Jhaveri, J.) took cognizance of the two orders dated 16th
May 2008 and 10th July 2008 passed by learned Single Judge
and vide order dated 12.12.2008 recorded as under:
” This
matter is heard at length. There are two orders dated 16th
May, 2008 and 10th July, 2008, which are crucial in this
matter, read as under :-
1. Pursuant
to the order passed on 12.5.2008, today learned AGP Ms. Asmita Patel
has produced two sealed covers with regard to the departmental
inquiries initiated against the petitioner.
2. So
far as inquiry Nos.7/1992 and 8/1992 are concerned, by order dated
29.1.1994 and 19.10.1993, the petitioner was not found guilty and
exonerated.
3. That,
inquiry No.3 i.e. 44/1993 for which charge sheet was issued to the
petitioner on 5.6.1990 which came to be ultimately terminated into
punishment of written censure by order dated 20th June,
1996.
4. The
two sealed covers dated 5.12.1990 and 29.8.1992 by two D.P.C. are
pertaining to three different inquiries namely 7/1992, 8/1992 and
44/1993, out of which for inquiry Nos. 7/1992 and 8/1992, the
petitioner is already exonerated as noted above.
4.1. So
far as inquiry No.4 i..e 49/1994 is concerned, charge sheet was
issued on 12.3.1993 and punishment by order dated 15.9.1998, a cut
from pension was ordered for Rs.200 p.m. for 12 months only.
5. Mean
while on third occasion Departmental Promotion Committee (DPC) was
convened on 2.9.1995 which was ultimately adjourned to 12.10.1995.
It was recommended by the DPC to continue and to keep the name of the
petitioner in sealed cover.
5.1. Therefore,
when the petitioner is already exonerated qua inquiry Nos. 7 and
8/1992 and punishment of censure dated 20th June, 1996 is
deleted by notification dated 16.5.1996 from the list of punishment
under Rule 6 of Gujarat Civil Services (Discipline and Appeal) Rules,
1971, decision dated 20th June, 1996 becomes vulnerable
and illegal. Of course, the above punishment was again reinserted by
notification dated 1.12.2000. the learned AGP is unable to dispute
above fact about non-existence of punishment in the Rule Book.
5.2. Therefore,
the order dated 20th June, 1996 impugned in this petition
by imposing penalty of censure is contrary to rule and no punishment
of censure exist as on 20th June, 1996. The disciplinary
authority could not have been inflicted such punishment and,
therefore, being illegal, deserves to be quashed and set aside.
6. However
for final order and on the question about punishment imposed upon the
petitioner vide order dated 15.9.1998 by ordering cut from pension of
Rs.200 p.m. for a period of 12 months inquiry No.49/1994 initiated
pursuant to the charge sheet dated 12.3.1993 and recommendation of
Departmental Promotion Committee which was convened initially on
2.9.1995 and ultimately adjourned to 12.10.1995 of continuing the
name of the petitioner in sealed cover remain to be decided by this
Court and consequential relief of considering the case of the
petitioner for promotion to the post of Dy. Director, FSL from the
date when his immediate junior came to be promoted on such post will
be considered by this Court on 19th June, 2008.
7. With
the joint request of both the parties, the matter is treated as
part-heard.
Today
when the matter was argued further, party-in-person has placed
reliance on the decision of the Division Bench in the case of
M.N.Mevada vs. State of Gujarat reported in 1976 (2) SLR page 666
and submitted that embargo imposed in sub-clause (ii) of clause (b)
of Rule 189-A is equally applicable in case of an employee governed
by clause (a) of Rule 189-A and even in that case also institution of
departmental proceedings for any event which took place more than 4
years before, such institution is bad and in case of the petitioner,
for the incident of 2.1.1988, departmental proceedings commenced on
12.3.1993 i.e. about after 5 years 2 months and 10 days and,
therefore, the case of the petitioner is covered by the above ratio
laid down by this Court.
Next,
it was submitted by party-in-person that still recovery procedure can
be followed by the authority in view of the Government Resolution
dated 23rd September, 1981 and as per law laid down in the
case of Union of India vs. K.V.Jankiraman reported in (1991) 4 SCC
109.
Considering
the above submissions, the case of the petitioner prima facie appears
to be acceptable, subject to clarification by the learned AGP, for
which she requests for time.
Hence,
adjourned to 17th July, 2008.”
In
view of the aforesaid orders, the learned counsel for the respondents
is directed to produce the sealed cover, if it is lying with the
department on the next date of hearing.
S.O.
to 23rd December, 2008.”
10.0
Thereafter on 16.01.2009, two sealed covers in respect of the
proceedings of Departmental Promotion Committee were placed before
the learned Single Judge. Both the sealed covers were opened and on
perusal, learned Single Judge thought fit to pass following order.
” 1. Two
different sealed covers in respect of the proceedings of the
Departmental Promotion Committee [DPC] held on 05.12.1990 and
29.08.1992 respectively, wherein, the issue regarding promotion of
Officers to the grade of Dy. Director in the Forensic Science
Laboratory was considered and which are on record of this Court are
to be opened.
2. Initially,
the petitioner, party-in-person, who is present in the Court, raised
serious objection about the genuineness of the said two sealed covers
by stating that the same were tampered with. However, subsequently,
he withdrew his objection and requested the Court to open the said
two sealed covers.
3. Heard
party-in-person and Mr. H. H. Parikh, learned AGP, appearing on
behalf of the respondent – State. With the consent of the
petitioner, party-in-person, both the sealed covers are opened at
03.42 PM. The remarks are as under;
Remarks
of 5-12-90 DPC
“Proceedings
of the Departmental Promotion Committee held on 5-12-90 in the
chamber of Principal Secretary (Home).
A
meeting of the DPC was held on 5-12-90 to consider promotion of
officers to the grade of Dy. Director in the Forensic Science
Laboratory. The following were present :
(1)
Shri R. Balakrishnan
Principal
Secretary, Home Department.
(2) Dr.
M.M. Singh
Director,
Forensic Science Laboratory,
Ahmedabad.
(3) Shri
J.P. Mehta
Dy.
Secy. To Govt., Home Department.
The
Committee considered the CR file of Shri M.M. Lahori and it was noted
that his CR for the year 88-89 contained adverse remarks against
which he had represented, but the representation had been rejected.
It was also noted that he had been issued written warning in 89-90.
The Committee, therefore, considered him ‘Not Fit’ for promotion.”
Remarks
of 29-8-1992 DPC
“In
a departmental promotion Committee’s meeting held on 29-8-92, Shri
M.M. Lahori, Assistant Director, Forensic Science Laboratory was not
considered fit for promotion to the post of Deputy Director, Forensic
Science Laboratory, in view of the three departmental proceedings
pending against him. Also, his case was not justifiable and
considered in view of his consistently bad confidential records.”
4. Both
the sealed covers are taken on record. Registry is directed to keep
both the sealed covers, duly taped and separately tagged, along with
the record of the file.
5. Office
is directed to give the xerox copies of the documents kept in each of
the sealed covers to the petitioner, party-in-person, during the
course of the day. S. O. to 29.01.2009. It shall be
open to the petitioner, party-in-person, to challenge the genuineness
or otherwise of the contents of the DPC report by way of separate
proceedings.
11.0
It appears that in the year 1990, Departmental Promotion Committee
considered the Confidential Report of the petitioner and found that
there were adverse remarks against which he represented but his
representation has been rejected. The Departmental Promotion
Committee did consider the case of the petitioner for promotion but
they came to the conclusion that the petitioner was not fit for
promotion. Once again after two years in the year 1992, the
Departmental Promotion Committee considered the case of the
petitioner for promotion and the Committee came to the conclusion
that the petitioner was not fit for promotion to the post of Deputy
Director in view of departmental proceedings pending against him. The
Departmental Promotion Committee also recorded that the Confidential
Reports were consistently bad. In 1995 also DPC recommended to keep
the name of the petitioner in sealed cover.
12.0
The respondent No.2, Under Secretary, Home Department, Government of
Gujarat, has filed an affidavit so far as dispute is concerned. The
affidavit reads as under:
“4.
I state that, by filing this
Civil Application the applicant raised an objection against the
report of D.P.C. (Departmental Promotion Committee) which was held on
05.12.1990 and 29.08.1992 and the report was opened on 10.01.2009.
5.
I state that, D.P. C. has not
found the petitioner fit for promotion and if the applicant is
aggrieved against that order the same is required to be challenged
separately and the same is different cause of action and therefore,
the Civil Application is not maintainable.
6.
I state that, in 1988-89 the
case of the applicant was considered as Deputy Director, Class-I from
Assistant Director, Class-I but the applicant’s confidential report
had adverse remarks therefore, he was declared unfit for the
promotion. I state that, thereafter the adverse remarks and
non-consideration of the case of promotion on that ground was
communicated to the applicant and the applicant had made a
representation on 07.08.1989 and defense/representation of the
applicant was not accepted. The copies of the representation of the
applicant and rejection of representation are annexed herewith and
marked as Annexure-R-I
(colly.)
7.
I
state that, in the D. P. C. meeting which was held on 05.12.1990 it
was recommended to put the result of the applicant in seal cover as
it was found that there were 3 departmental inquiries pending against
the applicant. I state that inquiry vide charge sheet dated 05-0690
against the petitioner resulted in a penalty of ‘censure’. It is a
fact that the decision to stop increment
was taken but as the petitioner reached the maximum of pay and it was
not possible to stop his increment and therefore a ‘censure’ was
awarded and thus it is clear that he is found guilty in this inquiry,
such guilty officers should not be promoted and therefore the
petitioner’s demand for promotion is not acceptable. I state that,
the applicant has tried to rely upon the case of Dr. K. C. Abraham
but in fact, the nature of work of the applicant and Dr. K. C.
Abraham are different and both are from different departments and
therefore, the work of the applicant cannot be equated with the work
of Dr. K. C. Abraham.
8.
I
state that, when the applicant was working as a Divisional Head,
Class-I, he was irregular in attendance. Therefore, adverse remarks
were drawn on 16.08.1989 and against those adverse remarks an
opportunity was given to the applicant to put forward his case and
the applicant had made a representation on 07.08.1989. The same was
considered by the Director and was not accepted by letter dated
27.06.1990 and adverse remarks were kept as it is and considering the
adverse remarks for the year 1988-89 the D.P.C. who met on 05.12.1990
hold that the applicant is not entitled to the promotion of Deputy
Director and therefore the same is a different cause of action and
therefore, the Civil Application lodging objections against the
report/ contents is separate cause of action and therefore, the Civil
Application is required to be dismissed.”
13.0
Normally, the High Court does not enter into question of the
correctness of assessment made by Departmental Promotion Committees
unless there is a strong case for applying the Wednesbury doctrine or
there are mala fides. The High Court cannot interfere with
assessments made by DPCs in regard to merit or fitness for promotion.
But in rare cases, if the assessment is either proved to be mala fide
or is found based on inadmissible or irrelevant or insignificant and
trivial material and if an attitude of ignoring or not giving weight
to the positive aspects of one’s career is strongly displayed, or if
the inferences drawn are such that no reasonable person can reach
such conclusions, or if there is illegality attached to the decision,
then the powers of judicial review under Article 226 of the
Constitution are not foreclosed. As held by Supreme Court in catena
of decisions undue inference by the Court or Tribunal will result in
paralysing recommendations of Departmental Committees and promotions.
It is settled that every officer has a right to be considered for
promotion under Article 16 to a higher post subject to eligibility,
provided he is within the zone of consideration. But the manner in
which his case is to be considered is a matter of considerable
importance in service jurisprudence as it deals with “fairness”
in the matter of consideration for promotion under Article 16. In
this connection, the Supreme Court in case of Badrinath vs.
State Government of Tamil Nadu, reported
in (2000) 8 SCC 395
has
laid down the following principles.
“(1)
Under Article 16 of the Constitution, right to be “considered”
for promotion is a fundamental right. It is not the mere
“consideration” for promotion that is important but the
“consideration” must be “fair” according to
established principles governing service jurisprudence.
(2)
Courts will not interfere with assessment made by DPCs unless the
aggrieved officer establishes that the non-promotion was bad
according to Wednesbury principles or was mala fides.
(3)
Adverse remarks of an officer for the entire period of service can
be taken into consideration while promoting an officer or while
passing an order of compulsory retirement. But the weight which must
be attached to the adverse remarks depends upon certain sound
principles of fairness.
(4)
If the adverse remarks relate to a distant past and relate to
remarks such as his not putting his maximum effort or so on, then
those remarks cannot be given weight after a long distance of time,
particularly if there are no such remarks during the period before
his promotion. This is the position even in cases of compulsory
retirement.
(5)
If the adverse remarks relate to a period prior to an earlier
promotion they must be treated as having lost their sting and as weak
material, subject however to the rider that if they related to
dishonesty or lack of integrity they can be considered to have not
lost their strength fully so as to be ignored altogether.
(6)
Uncommunicated adverse remarks could be relied upon even if no
opportunity was given to represent against them before an order of
compulsory retirement is passed.”
14.0
I have given my anxious thoughts and considerations to the dispute
in question. No doubt for two times the Departmental Promotion
Committee did consider the case of the petitioner for promotion. For
the first time in 1990 and for the second time in the year 1992. In
the year 1992, when the Departmental Promotion Committee took up the
case of the petitioner. The Departmental Promotion Committee observed
as under:
“Proceedings
of the Departmental Committee held on 29-8-92 in chamber of
Additional Chief Secretary, (Home).
2.
A meeting of D. P. C. was held on 29-8-’92 to consider promotion
of officers to the post of Deputy Director in the Forensic Science
Laboratory. The following were present.
(1)
Shri V. Krishnamurty, Addl.Chief Secretary, Home
(2)
Shri K. Chakravarty, Director, Forensic Science Laboratory
(3)
Shri Y. M. Joshi, Deputy Secretary, Home Department
As
per seniority list of Assistant Directors published under Home
Department Resolution No. FSL/ 1084/ 2451-A dated 13-1-’89, the
Senior most two Officers were considered as shown below.
(1)
Shri M. M. Lahori, Assistant Director
(2)
Dr. K. C. Abraham, Assistant Director
Committee
took note of the fact that there was only one vacancy of the post of
Deputy Director and therefore two officers as mentioned above were
considered.
3. Shri
M. M. Lahori was not considered because there are three departmental
proceedings pending against him. His C.Rs. are also not good to
justify this consideration for promotion. As per General
Administration Department’s instructions, Committee’s recommendation
in respect of Shri Lahori has been kept in a sealed cover.
4. With
regards to Dr. K. C. Abraham Committee noted that his C.R. S are
consistently good. There was no departmental proceedings pending
against him. Committee therefore considered him fit for the post of
Deputy Director, Forensic Science Laboratory.”
15.0
Now so far as three departmental proceedings are concerned, it
appears that petitioner came to be exonerated from Inquiry Case Nos.7
and 8 of 1992, whereas in Inquiry Case No.4 i.e. 49 of 1994, charge
sheet was issued on 12.03.1993 and punishment by order dated
15.09.1998 in the form of a ‘cut’ from pension was imposed for
Rs.2,000/- for 12 months only. However, I noticed that in the
meanwhile on the third occasion Departmental Promotion Committee was
convened on 02.09.1995 which was ultimately adjourned to 12.09.1995.
At that point of time DPC recommended to continue the name of the
petitioner in a sealed cover inspite of the fact that so far as
inquiries were concerned, the petitioner appears to have been
exonerated but the Departmental Promotion Committee was not satisfied
with the overall performance. Committee also took into consideration
the consistently bad confidential report of the petitioner. In this
view of the matter, whether the petitioner is entitled to any relief
from this Hon’ble Court under
Article 226 of the Constitution is the moot question.
16.0
The main thrust of the submissions is to the effect that the
confidential report more particularly the remarks of the reporting
officers would go to show that till April, 1992 the remarks are to
the effect that the knowledge of subject matter is poor, capacity for
interpretation for result and scientific data is poor etc. However,
from April, 1992 onwards all of a sudden the remarks in the
confidential reports till the time the petitioner retired from
services are found to be satisfactory. Relying on this petitioner
vehemently submitted that all of a sudden knowledge of subject matter
would not become good if earlier the reporting officer has certified
it to be poor. He submitted that this itself goes to show that his
case for promotion has not been considered in the right perspective
and the decisions so far have been actuated by bias and mala fides.
On perusal of the the entire confidential record it is evident that
till 1992 the overall assessment of the petitioner was found to be
very poor whereas from 1992 onwards till the time he retired it is
found to be satisfactory. At some places I have noticed that the
reporting officer has assessed knowledge of subject matter so far the
petitioner is concerned as good.
17.0
Whenever promotion to a higher post is to be made on the basis of
merit no officer can claim promotion to the higher post as a matter
of right by virtue of seniority alone with effect from the date on
which his juniors are promoted. It is not sufficient that in his
confidential report, it is recorded that his services are
“satisfactory”. An officer may be capable of discharging
his duties of the post held by him satisfactorily but he may not be
fit for the higher post. Before any such promotion can be effected,
it is a duty of the management to consider the case of the officer
concerned on the basis of the relevant material. If promotion has
been denied arbitrarily or without any reason ordinarily the Court
can issue a direction
to the management to consider the case of the officer concerned for
promotion. But it cannot issue a direction to promote the officer
concerned to the higher post without giving an opportunity to the
management to consider the question of promotion.
18.0
It is a settled law that the Court is not by its very nature
competent to appreciate the abilities, qualities or attributes
necessary for the task, office or duty of every kind of post in the
modern world and it would be hazardous for it to undertake the
responsibility of assessing whether a person is fit for being
promoted to a higher post which is to be filled up by selection. The
duties of such posts may need skills of different kinds – scientific,
technical, financial, industrial, commercial, administrative,
educational etc. As held by the Supreme Court in State
Bank of India and Ors. vs. Mohd. Mynuddin reported
in AIR 1987 SC
1889, the
method of evaluation of the abilities or the competence of person to
be selected for such posts have also become now-a-days very much
refined and sophisticated and such evaluation should, therefore, in
the public interest ordinarily be left to be done by the individual
or a committee consisting of persons who have the knowledge of the
requirements of a given post to be nominated by the employer. Supreme
Court has also further held that the process of selection adopted by
them should always be honest and fair. It is only when the process of
selection is vitiated on the ground of bias, mala fides or any other
similar vitiating circumstance other considerations will arise. The
Departmental Promotion Committee did not find the petitioner fit for
promotion on three occasions. I also do not find any substance in the
allegations of bias or mala fides urged against the members of the
Departmental Promotion Committee.
19.0
I may also quote the judgment of the Supreme Court in case of Smt.
Nutan Arvind vs. Union of India and Anr. reported
in AIR 1996 SC 3352
wherein
Supreme Court has observed as under:
5.
The DPC which is a high level committee, considered the merits of the
respective candidates and the appellant, though considered, was not
promoted. It is contended by learned counsel for the appellant that
one K.S. Rao was the officer at the relevant time to review the
performance of the appellant whereas in fact one Menon had reviewed
it. The latter was not competent to review the performance of the
appellant and to write the confidentials. We are afraid we cannot go
into that question. It is for the DPC to consider at the time when
the assessments of the respective candidates is made. When a high
level committee had considered the respective merits of the
candidates assessed the grading and considered their cases for
promotion, this Court cannot sit over the assessment made by the DPC
as an appellate authority. The DPC would come to its own conclusion
on the basis of review by an officer and whether he is or is not
competent to write the confidentials is for them to decide and call
for report from the proper officer. It had done that exercise and
found the appellant not fit for promotion. Thus we do not find any
manifest error of law for interference.
20.0
I may also quote Apex Court’s judgment in the case of
Mir Ghulam Hussan and others vs. The Union of India and others,
reported
in AIR 1973 SC
1138, wherein
Supreme Court has held in para:8 as under:
“8.
… The suggestion obviously sought to be made out at that stage was
this that since there was nothing adverse against them, the
petitioners were entitled to be selected. This claim is, of course,
completely misconceived for the simple reason that promotion is not
made on the basis of absence of complaint but on the basis of
positive merit. Absence of adverse remarks is no crieterion of the
quality of an officer.
21.0
I
may also quote Apex Court decision in case of Union
of India and others vs. Lt. General Rajendra Singh Kadyan reported
in AIR 2000 SC 2513
wherein
in para:26 Supreme Court has held as under:
“26.
The ACR for the period 1-10-1997 to 31-1-1998 is to the effect that
he considered him fit in every way to hold his present rank and also
to the next higher rank. On this basis, it is contended that the
Chief of the Army Staff having recommended his case in the ACR as fit
for promotion could not alter the same subsequently and give a
finding that such a recommendation in ACR will have a limited effect.
The position in law is that appraisal report or an annual
confidential report is not the sole factor to be considered by the
selection authority but one of the matters to be taken note of by
such authority. We may advert to two decisions of this Court in this
regard, namely, AVM S. L. Chhabra v. Union of India, 1993 Supp (4)
SCC 441 and Union of India v. Samar Singh, (1996) 10 SCC 555.
Therefore, we are of the view that heavy reliance placed by the High
Court on the ACRs to reach the conclusion otherwise is not justified.
In deciding whether a post is a selection post or not, one of the
criteria to be considered is if it involves a comparative assessment
of officers necessarily the element of selection is involved and,
therefore, the post with which we are concerned is indeed a selection
post although not totally ignoring a senior.
22.0
Having considered the matter threadbare more particularly keeping in
mind that the petitioner has appeared as a party-in-person and would
obviously have limitations in presenting the case, I do not find any
good ground or reason to direct the authorities to once again
consider the case of the petitioner for promotion to the post of
Deputy Director, Forensic Science Laboratory Department, State of
Gujarat, with retrospective effect. In this view of the matter, no
relief can be granted in favour of the petitioner, and, therefore,
both the petitions fail and are hereby rejected.
23.0
In view of the order passed in the writ petitions, Civil Applications
also stand disposed of.
Sd/-
[J.B.Pardiwala,
J.]
Amit
Top