{"id":113974,"date":"2011-04-19T00:00:00","date_gmt":"2011-04-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mr-ak-clerk-for-respondents-vs-on-19-april-2011"},"modified":"2019-01-07T06:40:02","modified_gmt":"2019-01-07T01:10:02","slug":"mr-ak-clerk-for-respondents-vs-on-19-april-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mr-ak-clerk-for-respondents-vs-on-19-april-2011","title":{"rendered":"Mr Ak Clerk For Respondent(S) vs ================================================= on 19 April, 2011"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Mr Ak Clerk For Respondent(S) vs ================================================= on 19 April, 2011<\/div>\n
Author: Mr.S.J.Mukhopadhaya,&Nbsp;Mr.Justice J.B.Pardiwala,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nSCA\/7390\/1991\t 8\/ 8\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 7390 of 1991\n \n\nwith\n\n\n \n\nCIVIL\nAPPLICATION NO.9447 OF 2006\n \n\n \n \nFor\nApproval and Signature:\n \n \nHONOURABLE\nTHE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA\n \nHONOURABLE\nMR.JUSTICE J.B.PARDIWALA\n \n \n=================================================\n\n\n \n\t  \n\t \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ? -\n\t\t\tYES\n\t\t\n\t\n\t \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo\n\t\t\tbe referred to the Reporter or not ? - YES\n\t\t\n\t\n\t \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ? - NO\n\t\t\n\t\n\t \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ? - NO\n\t\t\n\t\n\t \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ? - NO\n\t\t\n\t\n\n \n\n \n=================================================\n\n\n \n\nMAHESH\nCHANDRA \n\n \n\nVersus\n \n\nNATIONAL\nDAIRY DEVLOPMENT BOARD \n\n \n\n=================================================\n \nAppearance\n: \nMR\nMUKUL SINHA for Petitioner(s) : 1, \nMR AK CLERK for Respondent(s) :\n1, \n================================================= \n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t:\n\t\t\t\n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tTHE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA\n\t\t\n\t\n\t \n\t\t \n\t\t\t \n\n \n\n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nand\n\t\t\n\t\n\t \n\t\t \n\t\t\t \n\n \n\n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE J.B.PARDIWALA\n\t\t\n\t\n\n \n\nDate\n:    \/04\/2011 \n\n \n\n \nCAV\nJUDGMENT\n<\/pre>\n
(Per
\n: HONOURABLE MR.JUSTICE J.B.PARDIWALA)<\/p>\n
\tBy way of
\n\tthis petition under Article 226 of the Constitution the petitioner
\n\thas prayed for the following reliefs:\n<\/p>\n
“19(A)\tdeclaring
\nthat Regulation 10 of Officers Appointment, Pay and Allowances,
\nRegulations 1988, Section 40 and Section 48(2)(i) of National Dairy
\nDevelopment Board Act, 1987 are volative of Art.14 and 16 of the
\nConstitution of India and are, therefore, unconstituional, null and
\nvoid;\n<\/p>\n
(B)\tdeclaring
\nthat the procedure of promotion followed by the respondent-Board is
\nillegal, unconstitutional and further directing the Board to form a
\nproper committee to consider the claim of the petitioner on
\nSeniority-cum-Fitness with effect from April 1983 and subsequent
\npromotions to the next higher post after four years;\n<\/p>\n
(C)\tdirecting
\nthe respondent – Board to pay arrears of wages based on prayer
\n(B) above with 18 per cent interest;\n<\/p>\n
(D)\tdeclaring
\nthat the order of censure imposed on the petitioner vide Annexure D
\nis illegal, vitiated by non application of mind, contrary to the
\nprinciples of natural justice and ultra vires the Regulations of
\nOfficers CDA Regulations 1988 and is therefore, null and void and
\nfurther directing the Board not to consider this against the
\npetitioner for any purposes whatsoever;\n<\/p>\n
(E)\tdeclaring
\nthat the refusal to forward the application of the petitioner to
\nUnited Nations Volunteers vide Annexuer-J is arbitrary,
\ndiscriminatory, irrational and violative of Article 14 and 16 of the
\nConstitution of India.”\n<\/p>\n
\tWhen the
\n\tmatter was taken up for hearing, learned counsel appearing for the
\n\trespondent – National Dairy Development Board brought to our
\n\tnotice that the petitioner opted for voluntary retirement way back
\n\tin the year 2006, which was accepted by the respondent as per
\n\tRegulation 20 Clause (1) of the Officers (Appointment, Pay and
\n\tAllowances) Regulations 1988.  Counsel for the respondent places an
\n\toffice order dated 10th
\n\tOctober 2006 in this regard for our perusal.  It appears that the
\n\tpetitioner voluntarily retired as Senior Manager, NDDB and at the
\n\ttime of his voluntary retirement he was posted as Principal, RDTC at
\n\tJallandhar.\n<\/p>\n
\tLearned
\n\tcounsel for the petitioner, Mr Mukul Sinha, at the outset, made a
\n\tstatement that he is not pressing for any relief in terms of
\n\tparagraph 19(A) and the first part of paragraph 19(B).   He
\n\tsubmitted that he is confining his case to the second part of
\n\trelevant clause as contained in paragraph 19(B) of the petition.
\n\tAccordingly, the petitioner gave up the prayer so far as the
\n\tconstitutional validity of Regulation 10 of Officers Appointment
\n\t(Pay and Allowances) Regulations 1988 Section 40 and Section
\n\t48(2)(i) of National Dairy Development Act.   At the same time, the
\n\tpetitioner also gave up his challenge so far as procedure of
\n\tpromotion followed by the respondent – Board is concerned.\n<\/p>\n
\tWe are
\n\tonly examining the claim of the petitioner for promotion on
\n\tseniority-cum-fitness basis with effect from April 1983 and
\n\tsubsequent promotion to the next higher post after four years.\n<\/p>\n
\tIt
\n\tdeserves to be noted that this is a petition of 1991.  The
\n\tpetitioner also appears to have lost interest in the matter and that
\n\tis the reason why no steps were taken by the petitioner to get the
\n\tpetition adjudicated at the earliest.  Since the matter relates to
\n\tpromotion and since the petitioner insisted for his claim for
\n\tpromotion with all benefits with retrospective effect, the Division
\n\tBench of this Court way back in the year 2006 had to pass the
\n\tfollowing order, which is reproduced hereinbelow:-\n<\/p>\n
“By
\nthis writ application under Article-226 of the Constitution of India,
\nconstitutional validity\/vires of Regulation-10 of Officers
\nAppointment Pay and Allowances Regulations, 1988 made under the
\nNational Dairy Development Board Act,1987, (37 of 1987) is under
\nchallenge. The petitioner is submitting that the widest powers are
\ngiven to the Managing Director so also to the Chairman to relax the
\nrequirements relating to educational qualifications, experience, age
\netc., and as no guidelines are framed nor Regulation-10 talks of
\npromotion on the question of comparative merits or on the policy of
\nseniority-cum-merit or merit-cum-seniority or merit-cum-suitability,
\nthe policy as contained in Regulation-10 is prima facie arbitrary and
\nadversely affects the promotional right and avenues of the
\npetitioner. Before entering into the question, we required Mr. Sinha
\nto tell us that whether the petitioner wants seniority  from the
\nretrospective date or with future effect. Mr. Sinha submitted that
\nthe petitioner is desirous to get promotion with all the benefits
\nwith retrospective effect. We required Mr. Sinha to tell us that why
\nall others who were junior to the petitioner and were promoted over
\nthe petitioner are not necessary party, because, any grant of relief
\nin favour of the petitioner is likely to adversely affect them. Mr.
\nSinha submits that he be given some time to consider this question.
\nPut up after six weeks.”\n<\/p>\n
\tIt appears
\n\tthat after the above referred order was passed, Civil Application
\n\tNo.9447 of 2006 was preferred by the petitioner for joining officers
\n\twho were in active service and were juniors to the petitioner and
\n\twho would have been likely to be affected if any orders would have
\n\tbeen passed in favour of the petitioner considering the nature of
\n\tthe claim and the facts and circumstances of the case.
\n\tUnfortunately, it appears that no steps were taken even to pursue
\n\tthis application as a result of which none of the officers who were
\n\tlikely to be affected or are likely to be affected are there before
\n\tthe Court as on today.\n<\/p>\n
\tIt is a
\n\tsettled law that in cases of promotion and seniority if any orders
\n\twhich are to be passed are likely to have an effect on officers
\n\tother than such officers who are before the Court, no orders can be
\n\tpassed.  Be that as it may, since we are now examining the matter
\n\tkeeping in mind the relief to which the petitioner has confined we
\n\tare not dealing with this issue.\n<\/p>\n
\tThe
\n\tpetitioner joined services of the respondent as an Apprentice in the
\n\tyear 1973.  In the year 1975 he was confirmed as Assistant Executive
\n\tin what was known as Farmers Organization and Animal Husbandry
\n\tDepartment of the respondent-Board. After four years ie. during
\n\tApril 1979 he was promoted as Project Executive  which post he held
\n\tfor a period of 12 years and which he was holding at the time of
\n\tfiling
\n\tof the petition.   It is his case that his Confidential Reports
\n\tare good and he performed several challenging tasks to the entire
\n\tsatisfaction of his superiors from 1979 onwards and there was
\n\tnothing adverse against the petitioner.   It is his grievance as
\n\traised in the petition that the respondent-Board is following
\n\tabsolutely irrational policies so far as promotions are concerned
\n\twhich is mainly of pick-and-choose nature.  The promotions are being
\n\tgiven without any promotion committee being       constituted.   The
\n\tperformance is being evaluated by the Committee without any expert
\n\tor outside assistance.   He has also raised a grievance that several
\n\temployees who were not interviewed by the Committee have been
\n\tpromoted while in some cases the employees were required to face the
\n\tinterview with the Committee of Two Managing Directors.  It is his
\n\tcase that there is no consistent policy so far as promotions are
\n\tconcerned.  It is his case that the petitioner was overlooked for
\n\tpromotion  since 1983.  He has placed on record chart of other
\n\tsimilarly placed colleagues who have superseded the petitioner.  He
\n\thas tried to demonstrate that at least three colleagues who were
\n\tjuniors have been promoted during the year 1984 while there were
\n\tlarge number of promotions during September 1988.   It is his case
\n\tthat there was no reason for the respondent to deny the promotion to
\n\tthe petitioner.\n<\/p>\n
\tPer
\n\tcontra, learned counsel for the respondent-Board submitted that the
\n\tpetitioner, after joining the Board in the year 1973 as an
\n\tApprentice, rose to the position of Project Executive with effect
\n\tfrom 2nd
\n\tApril 1979 and was subsequently appointed by way of promotion to the
\n\tlevel of Senior Executive with effect from 1.1.1983.  Learned
\n\tcounsel for the Board submitted that the petitioner while
\n\tfunctioning as
\n\tin-charge RDTC, Siliguri, committed certain misconducts\/lapses
\n\twhich were reported to the higher authorities and after giving an
\n\topportunity to show-cause in this regard a charge-sheet was served
\n\tupon the petitioner.   A minor penalty of censure was inflicted upon
\n\tthe petitioner as per the provisions of NDDB Officers (Conduct,
\n\tDiscipline and Appeal) Regulations, 1988.   Learned counsel for the
\n\trespondent-Board submitted that the petitioner himself admitted when
\n\the replied to the charge-sheet dated 8th
\n\tJune 1989 that there has been some procedural lapses on his part.
\n\tIt is also brought to our notice that after the order of imposition
\n\tof minor penalty of censure an appeal was preferred and the
\n\tappellate authority also confirmed the order of imposition of minor
\n\tpenalty vide order dated 29th
\n\tOctober 1991.\n<\/p>\n
\tSo far as
\n\tthe grievance of the petitioner that he was overlooked in the matter
\n\tof his promotion since 1983 is concerned, the respondent has tried
\n\tto explain this aspect by stating as under in the
\n\taffidavit-in-reply:\n<\/p>\n
“Further,
\nit is not true that the case of the petitioner is overlooked since
\n1983 as alleged.  In fact, he was promoted as an Executive in the
\nyear 1979 and thereafter he has been considered for higher positions
\ni.e. as Sr. Executive and he was not found fit for the said higher
\nposition.  He was considered for promotion in 1989 and was not found
\nfit for higher position.  In response to the respondent’s circular
\ndtd. 2.3.1991 for the recruitment of Sr. Executive (Programme
\nDevelopment & Planning) through direct recruitment, the petitione
\nrherein also applied for the said post and he was not selected for
\nthe said post, much less to say he was not even short listed after
\nwritten examination, Group Discussion and interview.  Ultimately, the
\npetitioner was promoted\/appointed to the post of Sr Executive in the
\nscale of Rs.3300-100-3500-EB125-4500 -EB-125-5000 (present scale
\nRs.11200-225-13450-EB-225-16125), w.e.f. 1.6.1993.  Thus, the
\npetitioner after having availed the benefits and being reaping the
\nbenefits of promotions as provided under Regulation 10 of the said
\nRegulations, he is estopped from raising objections to the same.  The
\nallegation that the petitioner is discriminated against others who
\nare favoured without any rhyme or reason is not only untrue but is
\nmade by an oblique purpose to make out a case in his favour.”\n<\/p>\n
\t Having
\n\theard learned counsel for the parties and considering the entire
\n\tfactual background of the matter, we are of the view that the
\n\tpetitioner is not entitled to any relief now at this stage of the
\n\tmatter.  We are examining the matter considering and keeping in mind
\n\tthe aspect that during the pendency of the petition he was promoted
\n\tand he also opted for voluntary retirement.  He is no longer in
\n\tservice since 2006.  Besides, most importantly, the petitioner
\n\tfailed to take appropriate steps to bring on record all those
\n\tpersons who were likely to be affected if any relief would have been
\n\tgranted in favour of the petitioner.    It is a settled law that no
\n\tone has vested right to promotion or a seniority, but an officer has
\n\tan interest to seniority acquired by working out the rules.  Right
\n\tto be considered for promotion is a rule prescribed by conditions of
\n\tservice.  Promotion is always considered
\n\tkeeping in mind the character role of the employee
\n\tas well as confidential reports.  Chances of promotion are not
\n\tconditions of service.\n<\/p>\n
\tKeeping in
\n\tmind the settled position of law, we are of the view that it cannot
\n\tbe said that the petitioner was overlooked so far as his promotion
\n\tis concerned.  The material on record indicates that the petitioner
\n\twas considered for promotion, but was not found fit for the same.
\n\tMaterial on record also indicates that he was visited with a penalty
\n\tof censure for some lapses and the order of penalty was further
\n\tconfirmed by the appellate authority.   We  are satisfied with what
\n\thas been explained by the respondent-Board in this regard. Whenever
\n\tpromotion to a higher post is to be made on the basis of merit no
\n\tofficer can claim such promotion as a matter of right by virtue of
\n\tseniority alone with effect from the date on which his juniors are
\n\tpromoted.  It is not sufficient that in his confidential reports it
\n\tis recorded that his services are satisfactory.   An officer is
\n\tcapable of discharging his duties satisfactorily, but he may not be
\n\tfit for higher post.   It is the duty of the management to consider
\n\tthe case of the officer concerned on the basis of the relevant
\n\tmaterials.  We are of the view that the case of the petitioner was
\n\tconsidered at the relevant point of time and on the basis of the
\n\trelevant materials the management did not deem fit to promote the
\n\tpetitioner.   No illegality can be said to have been committed by
\n\tthe respondent-Board in this regard.\n<\/p>\n
\tIn this
\n\tview of the matter, we do not find any merit in the petition and the
\n\tpetition deserves to be dismissed.  The same is hereby dismissed.
\n\tNo order as to costs.  Rule is discharged.\n<\/p>\n
\tIn view of
\n\tthe order passed in the petition dismissing the same, Civil
\n\tApplication does not survive and the same stands disposed of
\n\taccordingly.\n<\/p>\n
(S.J.\n<\/p>\n
Mukhopadhaya, CJ.)<\/p>\n
(J.B.\n<\/p>\n
Pardiwala, J.)<\/p>\n
*mohd\t\t\t\t\t<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Mr Ak Clerk For Respondent(S) vs ================================================= on 19 April, 2011 Author: Mr.S.J.Mukhopadhaya,&Nbsp;Mr.Justice J.B.Pardiwala,&Nbsp; Gujarat High Court Case Information System Print SCA\/7390\/1991 8\/ 8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 7390 of 1991 with CIVIL APPLICATION NO.9447 OF 2006 For Approval and Signature: HONOURABLE THE […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-113974","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nMr Ak Clerk For Respondent(S) vs ================================================= on 19 April, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/mr-ak-clerk-for-respondents-vs-on-19-april-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mr Ak Clerk For Respondent(S) vs ================================================= on 19 April, 2011 - 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