SCA/168/1992 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 168 of 1992 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 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? ========================================================= JK MAJMUDAR/DIRECTOR - Petitioner(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ========================================================= Appearance : MR YN OZA for Petitioner(s) : 1, MR KRUNAL D PANDYA, ASST. GOVERNMENT PLEADER for Respondent(s): 1-2. MR MC BHATT for Respondent(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 08/05/2008 ORAL JUDGMENT 1. By of this petition under Article 226 of the Constitution of India, the petitioner who at the relevant time was serving as a Joint Director of SCA/168/1992 2/6 JUDGMENT Education, has prayed for an appropriate writ, direction and/or order quashing and setting aside the orders of promotion passed in favuor of respondent No.2 and 3 (Annexure – C) and to hold that the superssesion of the petitioner is bad, illegal. It is also further prayed to direct the respondents to promote the petitioner to the post of Director of Education and/or equivalent post from the date when his juniors i.e. Respondent Nos.2 and 3 are promoted and to give the petitioner deemed date with all consequential benefits including difference of salary. 2. It is the case on behalf of the petitioner that inspite of the orders passed by the learned Single Judge of this Court in Special Civil Application No.8810 of 1990, adverse entry in the service sheet for the year 1989-90 was considered and if adverse remarks of the relevant year i.e. 1989-90 were not considered in that case there were no adverse remarks and therefore, when juniors to the petitioner were promoted, the petitioner was also required to be promoted to the post of Director of Education and/or equivalent post from the date when SCA/168/1992 3/6 JUDGMENT his juniors i.e. Respondent Nos.2 and 3 are promoted. It is also submitted that the post which is to be filled in by way of promotion has to be done when the post falls vacant and when there is a decision to fill up the said post. It is submitted that when the Government has decided to fill up a particular post, then the actual date which should be considered should be the date on which the post falls vacant. It is submitted that in the present case, in November, 1991 there were three posts, the post which had fallen vacant in February, 1990 when Mr.Pujara retired, another post became vacant in March, 1990 when a new post was created and the third post fell vacant in October, 1990 when Mr.Vora was appointed as Chairman of Secondary Education Board. It is submitted that deliberately the posts were not filled in February and March, even though in March new post was created with a view to show favouratism and nepotism towards the persons of their choice who can be suitably appointed. By making above submission, it is requested to allow the present Special Civil Application and no other submissions have been made. 3. Mr.Krunal D.Pandya, learned AGP relying upon SCA/168/1992 4/6 JUDGMENT the affidavit-in-reply has submitted that the post in question was required to be filled in by promotion on merit cum seniority and the case of the petitioner along with other eligible candidates was considered including adverse remarks of the year 1989-90 against the petitioner in his confidential record. As other persons inclusive respondent Nos.2 and 3 were found to be more meritorious, than the petitioner, therefore, respondent Nos.2 and 3 were promoted and the petitioner was not promoted. It is submitted that to fill up the post by promotion and when two and three months have been taken place, it cannot be said that the said post were not filled up mala- fidely and under the circumstances and relying upon the affidavit-in-reply it is requested to dismiss the present Special Civil Application. 4. Heard the learned Advocates appearing on behalf of the respective parties. 5. It is not in dispute that the petitioner has already retired since long and respondent Nos.2 and 3 have also retired since long. It is also not in dispute that the post in question was required to be SCA/168/1992 5/6 JUDGMENT filled in by way of promotion on merit cum seniority basis. Looking to the affidavit-in-reply it appears that the case of the petitioner was considered along with other eligible candidates for promotion to the post in question. It is also borne out from the affidavit-in-reply that while considering the case of the petitioner, adverse remarks of the year 1989-90 against the petitioner in his confidential report were not considered and confidential report of earlier eight years were taken into consideration. It also bornes out from the affidavit-in-reply that having considered the case of the petitioner along with other persons, respondent Nos.2 and 3 were found to be more meritorious then the petitioner, therefore, respondent Nos.2 and 3 were promoted to the post in question. It also appears that the order dated 13.02.1991 passed by the learned Single Judge of this Court in Special Civil Application No.8810 of 1990 has been strictly compiled with and followed. So far as the allegations of mala-fide are concerned, apart from the fact that they are too vague, even otherwise considering para – 6 of the petition, it has taken only two and/or three months for completing SCA/168/1992 6/6 JUDGMENT the process of promotion and/or initiating process for promotion, therefore, it cannot be said that the action of the respondents is in any way mala-fide. 6. For the reasons stated above and more particularly, when the case of the petitioner has been considered on merits along with other candidates and as respondent Nos.2 and 3 were found to be more meritorious then the petitioner, therefore, they were promoted, it cannot be said that the action of the respondents – authority in promoting respondent Nos.2 and 3 to the post in question was in any way illegal and/or arbitrary. Hence, this petition deserves dismissal and accordingly it is dismissed. Rule discharged. Ad-interim relief, if any, stands vacated forthwith. However, there shall be no order as to costs. [M.R.Shah,J.] satish