SCA/464/2000 1/19 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 464 of 2000 For Approval and Signature: HONOURABLE MR.JUSTICE ANANT S. DAVE ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= NJ ZALA - Petitioner(s) Versus STATE OF GUAJRAT & 2 - Respondent(s) ========================================================= Appearance : MR GM JOSHI for Petitioner(s) : 1, MS ASMITA PATEL AGP for Respondent(s) : 1 - 3. ========================================================= CORAM : HONOURABLE MR.JUSTICE ANANT S. DAVE Date : 09/05/2008 ORAL JUDGMENT 1) This petition under Article 226 of the Constitution of India is filed by the petitioner with the following main prayer :- “(A) This Hon'ble Court be pleased to issue a writ SCA/464/2000 2/19 JUDGMENT of mandamus or a writ in the nature of mandamus or any other appropriate writ, direction or order quashing and setting aside the recommendations of the Departmental Promotion Committee held in 1985 for promotion to the post of Junior Assistant Manager and directing the respondent to promote the petitioner to the post of Junior Assistant Manager on which date, a less qualified and less meritorious candidate was promoted in the year 1985, by giving the deemed date of promotion to the said post with all consequential benefits flowing therefrom as held by this Hon'ble Court by order delivered in Special Civil Application No.5796 of 1995”. 2) To avoid the repetition of the facts prior to filing this petition, I deem it just and proper to reproduce the order dated 19.12.2001 passed in Civil Application by Hon'ble Mr. Justice H.K.Rathod, which reads as under:- “1. Heard Mr.G.M.Joshi, learned advocate appearing on behalf of the applicant - original petitioner and Ms.Sharaddha Trivedi, learned AGP appearing on behalf of the respondents. 2. The present petitioner has filed Special Civil Application No.5796 / 1985, wherein this Court has passed detailed order on date 15th August, 1999 and accordingly issued directions on the respondents. The relevant directions issued by this Court in the aforesaid decision are quoted as under :- "In the result, this Special Civil Application is disposed of in the terms that the petitioner is declared to be eligible for promotion to the post of Junior Assistant Manager on the date on which the respondent No.4's case was considered for promotion and he was given promotion. The respondents Nos.1,2 and 3 are directed to consider the case of the petitioner for promotion to the post of Junior Assistant Manager with effect from the date on which the respondent No.4 has been promoted. The case of the petitioner has to be considered only after retirement of respondent No.4. In case the petitioner is adjudged suitable for promotion after considering the his case in accordance with Rules 1985 [as amended], he shall be entitled for all consequential benefits following therefrom. However, the promotion of respondent No.4 will not be affected in any manner nor the respondents will pass any order adverse to him of reversion SCA/464/2000 3/19 JUDGMENT or recovery of the difference of salary paid to him. The case of petitioner has to be considered for promotion and finalization thereof within a period of two months of the retirement of the respondent No.4. In case he is found suitable for promotion, all the consequential benefits are to be paid to him within a period of one month next. Rule is made absolute in aforesaid terms with no order as to costs." 3. In pursuance of the order passed by this Court on 15th August, 1999, the case of the petitioner was considered by the respondent authorities but to the utter shock and surprise, come to the conclusion considering the situation on date 12th August, 1985, selection committee has not selected the petitioner and therefore, the case of the petitioner for promotion has been rejected by the Selection Committee and said order dated 6th November, 1999 has been challenged by the petitioner by way of main petition. 4. On behalf of the respondent No.2, one Mr.T.V.Trivedi, Deputy Inspector General of Registration, Gujarat State, Gandhinagar has filed affidavit-in-reply dated 12th September, 2001, the facts and averments mentioned therein in para-5 seems to be in total contravention of the directions of this Court and therefore, the same are reproduced as under :- ".... this Hon'ble Court vide its order dated 15-8-99 has passed an order to that respect on specific mention that as on the date 12th August, 1985, if / whether Mr.Zala was eligible for promotion or not on date 12-8-1985 i.e. the date of promotion of one Shri Gosai who got promotion on this date. This aspect was to be inspected and perused and thereafter decision was ordered to be taken up, accordingly the selection committee for promotion was called upon on 26-10-1999 [ A copy of the same is annexed herewith and marked as Annexure - I ] for taking such decision and accordingly as per notes of the proceedings of the committees as on date 12-8-1985, the last / previous annual secret reports of the proceeding five years were looked into and which were found over all good. Further other aspect in respect of any pending proceedings in respect of disciplinary were inquired into and upon its perusal as on 12-8-85 it was found by the Committee that when petitioner was working as Senior Clerk with Government Photo Litho Press, then as per objection list dated 14-7-77 issued by the Director, Government Printing and Stationery, Ahmedabad in his Internal Audit, the petitioner was issued memorandum dated 13-3-78 by the Manager Government Photo Litho Press, Ahmedabad [ A copy of the same is annexed herewith and marked as Annexure-II to this affidavit in reply ] for commitment of temporary misappropriation during SCA/464/2000 4/19 JUDGMENT performance of his duty for Rs.6482.43 and for which he was issued charge sheet. IN response to which final decision was taken up on 9-9-86 [ A copy of said decision is annexed herewith and marked as Annexure-III to this affidavit in reply ] restraining his two increments on temporary basis in response to which a copy of the said order for execution of it was received by the present respondent department and accordingly it was noticed that disciplinary proceedings in previous department [ Director, Printing and Stationery Department, Ahmedabad ] were pending against him. Thus the situation as on 12-8-85, the disciplinary proceedings were pending against the petitioner and therefore petitioner was not selected as on 12-8-85 by the concerned committee and therefore submissions made by the petitioner are not correct, appropriate, just and proper." 5. Learned advocate Mr.Joshi appearing on behalf of the petitioner has pointed out that against these averments made by the respondent authorities, the petitioner has filed affidavit-in-rejoinder. However, this Court has perused the rejoinder filed by the petitioner and considering the facts pointed out in para-4, 5, 6 and 7 of the rejoinder, in the opinion of this Court, the facts pointed out in para-5 to 7 of the rejoinder require to be reproduced and same are as follow :- "4. But it is may consistent case, that the respondent establishment is some how interested in to honouring the judgment of this Hon'ble Court. It is respectfully submitted that the allegations related to two [2] money receipts issued by me on 25-10-1975 and 28-10-1975. Initially the inquiry was conducted and by order dated 7-3-1986, the punishment of stoppage of two increments was inflicted on me. A copy of the order is produced herewith and marked as Annexure-R-1 to this Rejoinder. 5. By another order dated 12-5-1987, the respondent - Government itself took the Order in review and withdrawn the punishment and restored the benefits of the increments to me, which can be seen from the text of the order and initiated a fresh inquiry on the same charges. On the basis of that inquiry, I was ordered to be compulsorily retired by Order dated 5-6-1990, a copy of which is produced herewith and marked as Annexure -R-II to this Rejoinder. 6. The said order was challenged by me by preferring Special Civil Application No.4244 of 1990 before this Hon'ble Court. This Hon'ble Court [ Coram : A.R.Ravani, J. ] recorded the statement on behalf of the respondent State, stating therein that the order of compulsory retirement was to be withdrawn with a liberty to SCA/464/2000 5/19 JUDGMENT initiate fresh inquiry on the same charges. A copy of the order passed by this Hon'ble Court on 26-6-1990 in Special Civil Application No.4244 / 90 is produced herewith and marked as Annexure R-III to this Rejoinder. 7. It is submitted that at the end of the fresh inquiry which was conducted by the Government, no punishment was imposed on me and only a note of caution is issued to me to be careful in future. In other words, the so called inquiry which related to the incidence of 1975 was culminated in 1999 with no punishment. It is respectfully submitted that therefore while considering my case for promotion in the year 2000, as on 18-3-1985 the Government could not have taken into consideration the factum of pending inquiry which did not result into any punishment. Even if it is assumed that the inquiry is pending, the Respondent - Government ought to have kept my case in a sealed cover, which would be opened on culmination of inquiry. Even in those circumstances, I shall be promoted because there was no other impediment except the requisite experience as observed by this Hon'ble Court. " 6. I have perused the order passed by this Court on 15th August, 1995 so also perused the order of rejection of the claim of the promotion of the petitioner made on 6th November, 1999. This Court has also taken into consideration the averments of the respondents and simultaneously the facts which are pointed out by the petitioner in Affidavit-in-rejoinder. According to my opinion, the averments made in reply to the effect that this Court has passed order to that respect on specific mention that as on the date 12th August, 1985, if / whether Mr.Zala was eligible for promotion or not on date 12-8-1985 i.e. the date of promotion of one Shri Gosai who got promotion on this date. But this averment made in the reply is totally contrary to the directions issued by this Court. However, it is pertinent to note that this Court has passed order, wherein this Court has in terms held that the petitioner is declared to be eligible for promotion to the post of Junior Assistant Manager on the date on which the respondent's case was considered for promotion and he was given promotion. However, it is noted that this Court has not directed the respondents to examine the eligibility of the petitioner but despite this, the respondent has examined eligibility of the petitioner and considered the events of pending inquiry and accordingly, rejected the claim of the petitioner for promotion by communication dated 6th November, 1999. One another aspect which requires to be noted that the respondent authority has taken into account the situation prevailed on 12th August, 1985, the Selection Committee has rejected the case of the petitioner only because of the pendency of the inquiry. Thus, according to the averments of the respondent authority, aspect of pendency of the inquiry was taken into consideration by the SCA/464/2000 6/19 JUDGMENT Selection Committee. However, if the facts pointed out by the petitioner in Affidavit-in-rejoinder is taken into consideration which reveal that the inquiry case against the petitioner was ended by order dated 7th March, 1986 by imposing punishment of stoppage of two increments. It further reveals that the case of the petitioner was reviewed by the respondent authorities and the said punishment of stoppage of two increments has been withdrawn and consequential benefits of increments were restored to the petitioner. It has further come on record that the respondent authority has passed order to initiate fresh inquiry on the same charge and ultimately the order of compulsory retirement has been passed on 5th June, 1990. However, said order was impugned before this Court by way of Special Civil Application No.4244 / 90 and before this Court, the respondent has made statement before this Court stating therein that the order of compulsory retirement was to be withdrawn with a liberty to initiate the fresh inquiry on the same charge. Thereafter, fresh inquiry was conducted against the petitioner by the respondent but no punishment was imposed against the petitioner but only note of caution was issued to the petitioner to be careful in future. 7. Therefore, considering the averments made by the petitioner in Rejoinder, it is apparently clear that the respondent authority has not taken into account the subsequent development in respect of pending inquiry, which was pending at the relevant time in the year 1985 while considering the case of the petitioner. Therefore, this Court notice that the respondent authority has clearly made incorrect statement in affidavit-in-reply. It is further noticed that the respondent authority has not only made some incorrect statement but also not pointed out the complete details and entire facts of the matter pointing out as to what has happened to inquiry which was pending in the year 1985. Therefore, in above background of the facts, considering all the aspects of the matter, according to my opinion, the decision taken by the respondent authority by order dated 6th November, 1999 rejecting the case of the petitioner by Selection Committee for promotion is required to be reconsidered by the respondents in light of the facts discussed herein above. 8. Therefore, it is directed to the respondent No.2 to reconsider the case of the petitioner for promotion to the post of Junior Assistant Manager as per the directions issued in order dated 15th August, 1999 passed in Special Civil Application No.5796 / 1985 without being influenced by earlier order dated 6th November, 1999 passed by the respondent as the petitioner is declared to be eligible for being considered for the post of Junior Assistant Manager. It is further observed that at the time of considering the case of the petitioner for promotion, the respondent authority will take into account the Affidavit-in-rejoinder filed by the petitioner. The respondent No.2 is further directed to pass appropriate orders in accordance with law as per the decision of this Court dated 15th August, 1999 on or SCA/464/2000 7/19 JUDGMENT before 10th January, 2002. The office is directed to send the writ of this order immediately to the respondent No.2. Over and above, direct service of this order is permitted to the petitioner. Lastly, the respondent No.2 is also directed to place on record the copy of the order that may be passed by the respondent No.2 as directed herein above on next adjourned date on 11-1-2002. This Civil Application along with main matter is now adjourned on 11-1-2002.” 3) Thus, the respondent No.2 was directed to reconsider the case of the petitioner for promotion to the post of Junior Assistant Manager as per the directions issued in the order dated 15.8.1999 passed in the Special Civil Application No.5796 of 1985 without being influenced by the earlier order dated 6.9.1999 passed by the respondent in view of the fact that the petitioner was declared to be eligible for being considered for the post of Junior Assistant Manager. The learned Single Judge further directed the respondent No.2 to pass appropriate order in accordance with law on or before 10.8.2002 as per the decision dated 15.8.1999. 4) Later on, by an order dated 28.2.2007 Hon'ble Smt. Justice Abhilasha Kumari directed the concerned learned AGP to seek instructions whether the order dated 19.12.2001 passed in Civil Application No.8733 of 2001 has been complied with or not. 5) When this matter was heard by this Court on 19.3.2008, learned AGP was again directed to seek instructions specifically about the SCA/464/2000 8/19 JUDGMENT compliance of order dated 19.12.2001 passed in Civil Application No.8733 of 2001 and order dated 28.2.2007 passed in this Special Civil Application and the matter was adjourned for further orders. 6) Accordingly, on 1.4.2008 learned counsel for the petitioner was directed to incorporate the amendment which was granted earlier by learned Single Judge of this Court on 3.4.2002 and accordingly the amendment was incorporated in the petition. 7) By way of the above amendment, the learned counsel for the petitioner has produced on record certain relevant facts which are vital for deciding the issue involved in this petition. 8) Mr.Gautam Joshi, learned counsel for the petitioner, submits that on 20.4.2002 respondent authorities have passed an order promoting the petitioner to the post of Junior Assistant Manager with effect from 12.8.2008 and the petitioner has resumed his duties on the post of Junior Assistant Manager accordingly. According to learned counsel for the petitioner, the order of promotion granted to the petitioner on 24.1.2002 is in part-compliance of the order dated 15.8.1999 passed in Special Civil Application No.5796 of 1985 preferred to grant all notional benefits to the petitioner till 30.9.1999 i.e. the date of superannuation of Shri C.S.Gosai, whose promotion was under SCA/464/2000 9/19 JUDGMENT challenge in Special Civil Application No.5796 of 2005 and difference of salary to be paid after 1.10.1999. According to learned counsel for the petitioner, the above decision of the respondent authorities is contrary to the directions contained in the order dated 15.8.1999 passed in Special Civil Application No.5796 of 1985. Learned counsel for the petitioner further submits that the Departmental Promotion Committee (for short, 'the DPC') ought to have confined itself to the assessment of the service record of the petitioner for considering his case for promotion and it was not within its power or purview to recommend particular period and salary to be considered on the basis of notional pay. It is next contended that only rider put forth in the order dated 15.8.1999 in Special Civil Application No.5796 of 1985 was to grant benefits to the petitioner only after the date of superannuation of Mr.C.S.Gosai, whose promotion was under challenge and according to the petitioner the date of superannuation of Mr.C.S.Gosai was 1.10.1999 and, therefore, the operative order of the learned Judge dated 15.8.1999 was unambiguous to the extent that the petitioner was entitled for all consequential benefits following there from. The petitioner, therefore, submitted that in spite of the clear order of this Court, the petitioner is constrained to approach this Court from time to time and stand reiterated by the respondents SCA/464/2000 10/19 JUDGMENT either by filing affidavit or in the submissions resulting into unending agony and harassment to the petitioner, which ultimately amounts to showing disregard to the directions issued by this Court from time to time and, therefore, relief claimed in this petition deserves to be granted. 9) Mr.Joshi, learned counsel for the petitioner, has relied on the decision in the case of Commissioner, Karnataka Housing Board v. C. Muddaiah reported in 2007(7) SCC 689 and submits that once the authority is directed to consider the case of an employee by the Court in no uncertain terms, plea of notional pay or no work no pay cannot be accepted, more particularly, in the case of the petitioner even before the DPC it was found that no adverse remarks were ever entered in the service book of the petitioner or no departmental inquiry was pending or contemplated and the petitioner has fulfilled all the conditions for the promotional post i.e. Junior Assistant Manager, there may not any justification for denying the benefits which were granted to Mr.C.S.Gosai, with only rider that such benefits to be given to the petitioner only after the superannuation of Mr.C.S.Gosai. 10)Considering the above facts and circumstances of the case coupled with legal submissions of the learned counsel for the petitioner, the relief as claimed in this petition is required to be granted with costs. SCA/464/2000 11/19 JUDGMENT 11)Ms.Asmita Patel, learned AGP, appearing for the respondent authorities mainly relied on the affidavit in reply filed by the respondents and submitted that it was open for the DPC to reassess the service record of the petitioner and his conduct as an employee from time to time. Not only that but when the petitioner on earlier occasion was found to have been imposed punishment and more particularly has not worked on the promotional post of Junior Assistant Manager, on the basis of no work no pay, recommendation of the DPC and acceptance thereof by the Competent Authority to consider the period prior to 30.9.1999 as notional pay is just and proper. 12)Learned AGP further submits that the directions issued by the learned Single Judge in order dated 15.8.1999 amounts to permitting two employees on one post simultaneously and grant of monetary benefits for such period is not envisaged under any rule or regulation and, therefore, no monetary benefit, as claimed by the petitioner, can be granted. In support of her arguments, Ms.Asmita Patel, learned AGP, has relied on the judgments in the cases of (1) Union of India v. Arun Jyoti Kundu & Ors. reported in 2007(7) SCC 472 (2) Vijay Singh v. Union of India & Ors. Reported in (2007)9 SCC 63 and (3) Sukhdeo Pandey v. Union of India & Anr. Reported in (2007)7 SCC 455. 13)Having heard learned counsel for the parties SCA/464/2000 12/19 JUDGMENT and carefully going through the material available on record, including the orders passed by the learned Single Judge on 15.8.1999 in Special Civil Application No.5796 of 1985, which remained unchallenged before any appellate forum and accepted by the authority, I am of the opinion that the petitioner deserves all reliefs as claimed in this petition. The relevant directions issued by this Court in the order dated 15.8.1999 passed in Special Civil Application No.5796 of 1985, reads as under:- “In the result, this Special Civil Application is disposed of in the terms that the petitioner is declared to be eligible for promotion to the post of Junior Assistant Manager on the date on which the respondent No.4's case was considered for promotion and he was given promotion. The respondents No.1,2 and 3 are directed to consider the case of the petitioner for promotion to the post of Junior Assistant Manager with effect from the date on which the respondent No.4 has been promoted. The case of petitioner has to be considered only after retirement of respondent No.4. In case the petitioner is adjudged suitable for promotion after considering his case in accordance with Rules 1985 (as amended), he shall be entitled for all consequential benefits following therefrom. However, the promotion of respondent No.4 will not be affected in any manner nor the respondents will pass any order adverse to him of reversion or recovery of the difference of salary paid to him. The case of petitioner has to be considered for promotion and finalization thereof within a period of two months of the retirement of the respondent No.4. In case he is found suitable for promotion, all the consequential benefits are to be to him within a period of one month next. Rule is made absolute in aforesaid terms with no order as to costs.” 14)That in spite of the above clear directions, the Selection Committee had not selected the petitioner and case of the petitioner for promotion came to be rejected, which was SCA/464/2000 13/19 JUDGMENT ultimately challenged and in the affidavit in reply filed by the deponent altogether a different stand was taken. It is to be noted that the petitioner has challenged the order dated 5.6.1990 of compulsorily retiring the petitioner from service, by filing Special Civil Application No.4244 of 1990. During the course of hearing of Special Civil Application No.4244 of 1990, a statement was made