LPA/1183/2005 1/16 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 1183 of 2005 In SPECIAL CIVIL APPLICATION No. 3943 of 2001 With LETTERS PATENT APPEAL No. 1184 of 2005 In SPECIAL CIVIL APPLICATION No. 4246 of 2001 For Approval and Signature: HONOURABLE MS. JUSTICE R.M.DOSHIT Sd/- & HONOURABLE MR.JUSTICE K.M.THAKER Sd/= ========================================================= 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 civil judge ? ========================================================= MOHIBULLAH USMANBHAI SHAIKH - Appellant(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================================= Appearance : PARTY-IN-PERSON for Appellant MS VAIJAYANTI PATHAK, AGP for Respondents ========================================================= CORAM : HONOURABLE MS. JUSTICE R.M.DOSHIT and HONOURABLE MR.JUSTICE K.M. THAKER 17th January, 2008 ORAL JUDGMENT (Per : HONOURABLE MS. JUSTICE R.M.DOSHIT) LPA/1183/2005 2/16 JUDGMENT These two Appeals preferred under Clause 15 of the Letters Patent arise from the common judgment and order dated 28th July, 2005 passed by the learned Single Judge in Special Civil Applications No. 3943 of 2001 and 4246 of 2001, in so far as Special Civil Application No. 3943 of 2001 is rejected and Special Civil Application No. 4246 of 2001 is not allowed in toto. The appellant is a retired servant of the State Government. He was employed as Junior Clerk under the respondent no.2-Director of Employment & Training. On reaching the age of superannuation, he has retired from service as Junior Clerk on 31st January, 1995. While in service, he reached the Efficiency Bar on 1st January, 1978. However, in view of certain adverse entries made in his confidential record, he was not allowed to cross the efficiency bar. By Order dated 20th November, 1986, he was allowed to cross the efficiency bar with effect from 1st January, 1985. Feeling aggrieved, the appellant preferred Special Civil Application No. 59 of 1991. The said writ petition came to be allowed on 6th May, 1996. The learned Single Judge directed to reconsider the LPA/1183/2005 3/16 JUDGMENT question of permission to cross efficiency bar with effect from January, 1978, ignoring the adverse entries made in the service record of the appellant for the years 1974-75 to 1977-78. Pursuant to the said order, by order dated 24th July, 1996 made by the Additional Director, Employment & Training, the appellant was allowed to cross the efficiency bar with effect from 1st January, 1978. His pay was accordingly re-fixed. The appellant had preferred Special Civil Application No. 60 of 1991 to challenge his non-promotion to the higher post of Senior Clerk; for release of the increments due; for grant of selection grade and against the punishment imposed in the departmental inquiry. He preferred Special Civil Application No. 1362 of 1991 for certain monetary claims. By common judgment and order dated 2nd May, 2000 [Coram: Kundan Singh, J.], the above referred Special Civil Application No. 1362 of 1991 was dismissed. The Special Civil Application No. 60 of 1991 was allowed. The impugned order of the Gujarat Civil Services Tribunal, Gandhinagar, and the order made by the authority below were quashed and set-aside. The LPA/1183/2005 4/16 JUDGMENT respondent-authority was directed, “.. to treat the petitioner in continuous service as Office Assistant [Sr. Clerk] with effect from 7-7-1976 and the respondent Director shall give all consequential benefits. The respondent-Director is further directed to calculate difference of pay, allowances and other benefits permissible under the Rules till his retirement date within three months from today and to pay the same within two months thereafter.” Further order was made to pay to the appellant all financial benefits/consequential benefits within the period specified by the Court. Pursuant to the said order, by Order dated 24th August, 2000 made by the respondent no.2, the appellant was given following reliefs :- [1] In partial modification of this Office Order No. EST/D-6/60660 dated 7-7-76, the reversion order of Shri M.U Shaikh, Statistical Assistant, District Employment Office, Bhuj is hereby cancelled, treating him continued as Statistical Assistant. If Shri Shaikh was continued as Statistical LPA/1183/2005 5/16 JUDGMENT Assistant, he would have been given whatsoever benefits accrued from time to time now shall be paid in cash. [2] As narrated hereinabove para-3, in preamble, Shri M.U Shaikh having entitled to promotional post of common cadre of Junior Employment Officer Class-III with effect from 30-10-1986 [in pay scale of Rs. 425- 800, G.C.S. R.O.P-1975] on fixation of his pay under Rule 41-A of the Bombay Civil Services Rules, 1959 from 30-10-86, whatsoever the financial benefits may be accrued be paid in cash. [3] Shri M.U Shaikh having superannuated on 31-1-1995, his pension and all other financial/ consequential benefits shall be canculated and be paid accordingly. Feeling aggrieved by the aforesaid order dated 24th August, 2000, the appellant preferred the above Special Civil Applications No. 3943 of 2001 & 4246 of 2001. In Special Civil Application No. 3943 of 2001, the appellant had claimed right to promotion as LPA/1183/2005 6/16 JUDGMENT Junior Employment Officer [Class-III] with effect from 30th April, 1981 and further promotion as Employment Officer [Class-II] with effect from 27th June, 1983 and all consequential benefits. He had also challenged the validity of clause 3 [a] of the Gujarat Employment Exchange Subordinate Service Departmental Examination Rules, 1978. In Special Civil Application No. 4246 of 2001, the appellant claimed remittance of Rs. 14 lakhs towards interest, compensation and litigation expenses in addition to sum of Rs. 1,39,070/= paid by way of arrears of salary. The learned Single Judge, by impugned judgment and order dismissed Special Civil Application No. 3943 of 2001 in toto. As to the claim made in Special Civil Application No. 4246 of 2001, the learned Single Judge has given partial relief i.e., the respondent is directed to pay to the petitioner, within a period of two months, interest at the rate of 9% on the sum of Rs. 1,39,070/= for the period from 31.1.1995 to 31.1.2000 alongwith costs of the petition quantified at Rs. 3,000/=. Therefore, the present Appeals. The appellant has challenged the impugned order LPA/1183/2005 7/16 JUDGMENT of the learned Single Judge on the grounds that it is a nullity in as much as it is not a speaking order, nor the learned Single Judge has assigned reasons, nor the learned Single Judge has considered the legal submissions made by the appellant. In support thereof, the appellant has relied upon the judgments of the Hon'ble Supreme Court in the matters of Dharampal Arora v. Punjab State Electricity Board & Anr. [AIR 2007 SC 545]; of Anil Kumar v. Presiding Officer & Ors. [AIR 1985 SC 1121]; of Ram Chander v. Union of India & Ors. [AIR 1986 SC 1173]; and of this Court in the matter of Somabhai Mathurbhai Patel v. New Shorrock Mills [1983 GLH 273]. He has submitted that the appellant was denied promotion on the ground that there were adverse entries in his service record and that he had not passed departmental examination. He has submitted that once this Court had directed to ignore the adverse entries made for the years 1974-75 to 1977-78, for the purpose of granting permission to cross Efficiency Bar, the said adverse entries could not have been relied upon for the purpose of considering the appellant's case for further promotion. In view of the direction issued by this LPA/1183/2005 8/16 JUDGMENT Court in Special Civil Application No. 59 of 1991, the said adverse entries became non-est not only for the purpose of permission to cross Efficiency Bar but also for the purpose of consideration for promotion. He has further submitted that the rules of departmental examination were later on modified. By amendment made vide Notification dated 23rd April, 1992, the persons belonging to the Gujarat Employment Exchange Subordinate Services who had attained the age of 45 years as on 1st April, 1986 were exempted from passing the departmental examination. The appellant did cross the age of 45 years prior to 1st April, 1986. He, therefore, could not have been denied further promotions under the guise that he had not passed the departmental examination. He has also submitted that the learned Single Judge has erred in awarding interest @ 9% over the amount of arrears of salary paid to the appellant from the date he retired from service till the date of payment. He has submitted that such interest ought to have been paid not from the date of the retirement of the appellant from service but from the date the said amount had become due. He has also submitted that not only the LPA/1183/2005 9/16 JUDGMENT appellant is required to be granted deemed promotion to the posts of Senior Clerk, Junior Employment Officer and the Employment Officer [Class-II] from the dates his immediate juniors were so promoted, the appellant should also be paid the consequential benefit of re-fixation of pay, arrears of salary, re- computation of retiral benefits, arrears thereof and interest on such amounts and the cost. By Notification dated 16th December, 1978 the State Government has, in exercise of powers conferred by proviso to Article 309 of the Constitution of India, framed the Gujarat Employment Exchange Subordinate Service Departmental Examination Rules, 1978. Rule 3(a) of the said Rules, inter alia, provide for passing of the said examination by all persons belonging to the Employment Exchange Subordinate Services. The explanation thereto, inter alia, provides that, any person who fails to pass the said examination within the specified period and chances shall not be eligible for promotion to higher post and shall lose seniority to persons who have passed the examination earlier than him. Under the heading, “Exemption” it is provided that “every LPA/1183/2005 10/16 JUDGMENT person who has completed 45 years of age on the appointed date shall be exempted for the purpose of confirmation or continuing in the same post but for the purpose of promotion to the post of District/Assistant Employment Officer he shall have to pass the “Employment Exchange Qualifying Examination.” By subsequent amendment made vide Notification dated 23rd April, 1992, the said benefit of exemption was extended to persons who had attained the age of 45 years as on 1st April, 1986. The appellant is right in submitting that on 1st April, 1986 he had completed 45 years of age and was exempt from passing the said Subordinate Service Departmental examination. However, it should be noted that the said exemption was granted only for the purpose of confirmation and continuance on the same post. Pursuant to the above referred amendment to the examination rules, by Order dated 17/18th June, 1992 [page-52 of the paper-book], specific order to exempt the personnel [including the appellant] who had attained the age of 45 years as on 1st April, 1986 was made. It was specifically mentioned that the said persons were exempted from passing the examination LPA/1183/2005 11/16 JUDGMENT for the purpose of permanency/continuity in the post. It was specifically mentioned that exempt employees shall have to pass the examination before they were promoted to higher cadre. For promotion, passing of the Qualifying Examination was and is a pre- requisite. It is not the case of the appellant that at any point of time he had passed the Employment Exchange Qualifying Examination. On the contrary, it is admitted that the appellant did not pass the departmental examination. The appellant having failed to acquire eligibility for further promotion by passing the necessary departmental examination/ qualifying examination, his claim for further promotion is misconceived and is required to be rejected outright. Besides, pursuant to the interim order dated 18th December, 1997 made on Special Civil Application No. 60 of 1991, Departmental Promotion Committee was constituted specifically to reconsider the case of the appellant for further promotion. The said Committee held its meeting on 1st January, 1998. Minutes of the said meeting is placed on the record {page 134 of the paper book}. On perusal of the said minutes, it is apparent that the Committee had LPA/1183/2005 12/16 JUDGMENT considered the case of the appellant for further promotion as on the dates the departmental promotion committee had considered the cases of the other personnel. Such consideration was made in light of the service record of the appellant for the relevant period. It is apparent that apart from the adverse entries made for the year 1974-75 to 1977-78 which were ordered to be ignored, there were adverse entries in the service record of the appellant in other years also. Apart from the adverse entries, the service record of the appellant reflects a poor show. Considering the said confidential record, the fact that the appellant was placed under suspension from 4th April, 1979 to 20th May, 1980 for making false claims of Transfer Travelling Allowance, and that the appellant had not passed the requisite departmental examination/ qualifying examination, the Committee opined that the appellant was not fit for promotion. It, however, appears that while deciding Special Civil Application No. 60 of 1991, the learned Single Judge [Coram : Kundan Singh, J.] had observed that having once promoted the appellant in the year 1986, he could not have been reverted in the year 1988 for LPA/1183/2005 13/16 JUDGMENT want of vacancy. It was observed that, “..once any person is promoted to the higher post he cannot be reverted to the lower post except on the ground of misconduct and after holding departmental inquiry and giving an reasonable opportunity of hearing in the domestic inquiry as there was no domestic inquiry wherein he was held guilty of misconduct. As such, the authorities were not justified or right in reverting the petitioner even in the year 1988 by the order dated 23-9-1988 though the petitioner filed the appeal the petitioner. But the appellate authority wrongly considered the status of the petitioner and dismissed the appeal of the petitioner.” In view of the said observation, the learned Single Judge held that the petitioner was entitled to continue in service as Office Assistant [Senior Clerk] from the date of his reversion. In view of the said direction, by impugned order dated 24th August, 2000, the appellant has been granted reliefs reproduced hereinabove. Appointment to various posts under the Director of Manpower, Employment & Training is governed by the Superintendent, Junior Employment Officer, LPA/1183/2005 14/16 JUDGMENT Superintendent [Divisional Employment Exchange], Head Clerk, Senior Clerk, Assistants, Accountants & Certain other Posts Recruitment Rules, 1972. Rule 3 of the said Rules provides, inter alia, for appointment to the post of Junior Employment Officer by promotion of a person of proved merits and efficiency from amongst persons who are holding the posts mentioned in the said sub-rule, including that of Senior Clerk. When a promotion is governed by the principle of proved merit and efficiency, the claim for promotion as of right or on the basis of seniority cannot be accepted. As disclosed in the above referred minutes of the departmental promotion committee, irrespective of certain adverse entries ordered to be ignored, service record of the appellant was far from satisfactory. In any view of the matter, the appellant having not passed departmental/qualifying examination, he was not eligible for further promotion. Besides, the Court exercising power under Article 226 of the Constitution of India shall not sit in appeal over the decision of the Departmental Promotion Committee. As the appellant was not eligible for promotion; LPA/1183/2005 15/16 JUDGMENT irrespective of his eligibility, as he was not found suitable for further promotion on the test of proved merit and efficiency by the Departmental Promotion Committee, the claim for pre-dating his promotion as a Senior Clerk, and for further promotion as Junior Employment Officer and Employment Officer [Class II], is devoid of any merit. The learned Single Judge has rightly rejected such claim. The Appellant's claim for remittance of interest, compensation, etc also requires to be rejected. Interest @ 9% awarded by the learned Single Judge from the date the appellant retired from service till the date of payment of the amount of arrears of salary is, in our view, adequate relief that could be granted to the appellant. No further relief in this connection deserves to be granted. For the reasons aforesaid, both these Appeals fail and are accordingly dismissed with cost. Registry will maintain copy of this judgment in each of the Appeals. {K.M Thaker, J.} {Ms. R.M Doshit, J.} LPA/1183/2005 16/16 JUDGMENT Prakash*