Gujarat High Court
P.N.Desai vs State Of Gujarat Thro Principal ... on 1 October, 2025
NEUTRAL CITATION
C/SCA/17718/2011 JUDGMENT DATED: 01/10/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 17718 of 2011
With
R/SPECIAL CIVIL APPLICATION NO. 6040 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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Approved for Reporting Yes No
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P.N.DESAI
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR VAIBHAV A VYAS(2896) for the Petitioner
ME HENIL M SHAH, AGP for Respondents No.1 & 2 - State Authorities
MR PREMAL R JOSHI & MR DEEPAK G SHUKLA, ADVOCATES for the
Respondent No.3 - GPSC
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 01/10/2025
COMMON ORAL JUDGMENT
1.1 Special Civil Application No.17718 of 2011 is preferred by the petitioner with the following main prayers.
"9. The petitioner respectfully prays that on the basis of the facts and circumstances Page 1 of 38 Uploaded by M.H. DAVE(HC00193) on Mon Oct 06 2025 Downloaded on : Tue Oct 07 00:00:46 IST 2025 NEUTRAL CITATION C/SCA/17718/2011 JUDGMENT DATED: 01/10/2025 undefined as mentioned hereinabove and which may be urged at the time of hearing, the Honourable Court may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction to the respondent authorities and may be pleased to :-
(A) quash and set aside the impugned punishment order dated 12.11.2011, Annexure-A to this petition, and (B) pending admission and final disposal of this petition, the Honourable Court may be pleased to grant mandatory injunction against the operation, implementation and execution of the impugned punishment order dated 12.11.2011, and / or (C) pending admission and final disposal of this petition, the Honorable Court may be pleased to restrain the respondent authorities from further superceding the petitioner in the matter of promotion on the post of Joint Registrar, Co-operative Society, only on the ground of impugned punishment order dated 12./11.2011, Annexure-A to this petition,"Page 2 of 38 Uploaded by M.H. DAVE(HC00193) on Mon Oct 06 2025 Downloaded on : Tue Oct 07 00:00:46 IST 2025
NEUTRAL CITATION C/SCA/17718/2011 JUDGMENT DATED: 01/10/2025 undefined 1.2 Special Civil Application No.6040 of 2010 is filed by the very petitioner with the following main prayers.
"7. The petitioner respectfully prays that, on the basis of the facts and circumstances as mentioned hereinabove and which may be urged at the time of hearing, the Honourable Court may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction to the respondent authority and may be pleased to :-
(A) direct the respondent authority to give effect to the recommendations of the Departmental Promotion Committee regarding promotion of the petitioner in the cadre of Gujarat Cooperative Service Class-I (Senior Duty) commonly known as Joint Registrar, Co-operative Society, and (B) further be pleased to direct the respondent authority to grant promotion to the petitioner on the post of Joint Registrar with dimmed date and all consequential benefits including areas of pay with effect from the date on which the person immediately junior to the petitioner was Page 3 of 38 Uploaded by M.H. DAVE(HC00193) on Mon Oct 06 2025 Downloaded on : Tue Oct 07 00:00:46 IST 2025 NEUTRAL CITATION C/SCA/17718/2011 JUDGMENT DATED: 01/10/2025 undefined first promoted on the said post, and (C) direct the respondent authority to drop the departmental inquiry initiated against the petitioner vide charge sheet dated
2.4.2005, and (D) pending admission and final disposal of this petition, the Honourable Court may be pleased to direct the respondent authority to give effect to the recommendations of the Departmental Promotion Committee regarding promotion of the petitioner on the post of Joint Registrar and further be pleased to direct the respondent authority to grant promotion to the petitioner and the post Joint Registrar, and (E) pending admission and final disposal of this petition, the Honorable Court may be pleased to stay the operation of the sokos notice dated 17.4.2008 and further be pleased to restrain the respondent authorities from taking any action pursuant to the said show cause notice."
2. The brief facts, as per the petitioner, are Page 4 of 38 Uploaded by M.H. DAVE(HC00193) on Mon Oct 06 2025 Downloaded on : Tue Oct 07 00:00:46 IST 2025 NEUTRAL CITATION C/SCA/17718/2011 JUDGMENT DATED: 01/10/2025 undefined epitomized as under.
2.1 The petitioner was appointed as direct recruit Assistant District Registrar (Gujarat Co-operative Service Class-II) on 28.04.1978.
2.2 The persons, immediately junior to the petitioner, were promoted on the post of Joint Registrar, however, the name of the petitioner was not included in the promotion order.
2.3 In the year 2004, once again, meeting of the Departmental Promotion Committee was convened on 30.11.2004, however, this time also, the petitioner was not promoted on the said post and the juniors to the petitioner were promoted vide order dated 24.06.2005. 2.4 A charge-sheet was issued to the petitioner on 02.04.2005, just before the issuance of actual promotion orders, for the misconduct alleged to have been committed by the petitioner in the year 1993-94.
2.5 The departmental inquiry was conducted against the petitioner, wherein the enquiry officer has submitted his report holding that the charges levelled against the petitioner are partly proved.
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NEUTRAL CITATION C/SCA/17718/2011 JUDGMENT DATED: 01/10/2025 undefined 2.6 Therefore, a show-cause notice was issued to the petitioner on 17.04.2008.
2.7 The petitioner had submitted his detailed representation to the disciplinary authority on 03.06.2008. 2.8 In the next Departmental Promotion Committee, the case of the petitioner was not considered by the authority due to pendency of the said departmental inquiry. 2.9 The petitioner has therefore preferred a petition being Special Civil Application No.6040 of 2010 inter alia praying as noted hereinabove.
2.10 In the said petition, there is no interim relief granted by this Court in favour of the petitioner. 2.11 On 23.09.2010, the respondent authorities have passed the punishment order.
2.12 Since the petition filed by the petitioner being Special Civil Application No.6040 of 2010 was, in effect, sought to be made infructuous by the authorities, the petitioner has preferred Special Civil Application No.16076 of 2010 before this Court, wherein the punishment order dated 23.09.2010 was quashed and set aside by this Court vide Page 6 of 38 Uploaded by M.H. DAVE(HC00193) on Mon Oct 06 2025 Downloaded on : Tue Oct 07 00:00:46 IST 2025 NEUTRAL CITATION C/SCA/17718/2011 JUDGMENT DATED: 01/10/2025 undefined order dated 27.04.2011 and the disciplinary authority was directed to give an opportunity of hearing to the petitioner and thereafter to pass a fresh order.
2.13 Accordingly, the authority had issued show-cause notice to the petitioner on 20.08.2011 and the petitioner had responded to the said show-cause notice on 8/9.9.2011. 2.14 The respondent authorities has ultimately passed the impugned punishment order dated 12.11.2011, whereby the punishment of reduction in pay by four stages, with future effect, till the retirement of the petitioner, came to be imposed upon the petitioner.
2.15 Therefore, the petitioner has challenged the said impugned order in Special Civil Application No.17718 of 2011. 2.16 In that petition, the Co-ordinate Bench of this Court has, vide order dated 08.12.2011, issued notice to the respondents, by observing as under.
"Heard the learned advocate for the petitioner.
The charges No.7 to 12 have been
established in the Departmental Inquiry,
which appear to be serious and in spite of teh above, the respondent authority has Page 7 of 38 Uploaded by M.H. DAVE(HC00193) on Mon Oct 06 2025 Downloaded on : Tue Oct 07 00:00:46 IST 2025 NEUTRAL CITATION C/SCA/17718/2011 JUDGMENT DATED: 01/10/2025 undefined inflicted a punishment of reducing the pay- scale of teh petitoner only upto four stages with future effect.
Notice returnable on 26.12.2011."
2.17 The said order dated 08.12.2011, the petitioner had preferred an appeal being Letters Patent Appeal No.21 of 2012 before the Division Bench of this Court, wherein the Division Bench has, vide order dated 22.02.2012, passed the following order.
"1. This Letters Patent Appeal is preferred against the following order passed by the learned Single Judge.
"Heard the learned advocate for the petitioner.
The charges No.7 to 12 have been established in the Departmental Inquiry, which appear to be serious and in spite of the above, the respondent authority has inflicted a punishment of reducing the pay-scale of teh petitoner only upto four stages with future effect.
Notice returnable on 26.12.2011."Page 8 of 38 Uploaded by M.H. DAVE(HC00193) on Mon Oct 06 2025 Downloaded on : Tue Oct 07 00:00:46 IST 2025
NEUTRAL CITATION C/SCA/17718/2011 JUDGMENT DATED: 01/10/2025 undefined
2. Heard learned advocate Mr.Vaibhav Vays for the appellant.
3. A plain reading of the order in question makes it clear that it is only an interim order and not final one which would be passed by the learned Single Judge after hearing both the sides. The order is more or less assigning reasons for issuance of notice and under the circumstances, the appeal does not merit acceptance. The appellant can very well canvass the points which he has tried to canvass before us before the learned Single Judge. The appeal, therefore, stands dismissed."
2.18 Thereafter, the petition being Special Civil Application No.17718 of 2011 is admitted by this Court vide order dated 30.01.2015.
2.19 It is noted that during the pendency of these petitions, the petitioner has retired by way of superannuation on 30.09.2012.
2.20 In this background, the petitioner has approached this Court.
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3. Since the petitioner is same in both these petitions, the prayers made, contentions raised, averments made and submissions canvassed by the learned advocates for the respective parties are interwoven, both these petitions are heard and decided together by this Court today, with the consent of the learned advocates for the respective parties.
4. Heard learned advocates.
5. Learned advocate Mr. Vaibhav Vyas for the petitioner has submitted that the vested interests in the Government are bent upon to see that the petitioner is not promoted on the post of Joint Registrar, which they have successfully done from the year 1997; and that the persons, who are much juniors to the petitioner, are promoted on the post of Joint Registrar and few of them have even retired from the said promotional post, whereas the petitioner who is senior employee, is not being promoted in an absolutely illegal and arbitrary manner; and that on the date of meeting of Departmental Promotion Committee ('the DPC' for short), no departmental inquiry was either pending or was under contemplation against the petitioner and therefore, as by the settled position of law, the authorities could not have withheld the promotion of the petitioner on the post of Joint Registrar; and that the subsequent charge-sheet issued to the Page 10 of 38 Uploaded by M.H. DAVE(HC00193) on Mon Oct 06 2025 Downloaded on : Tue Oct 07 00:00:46 IST 2025 NEUTRAL CITATION C/SCA/17718/2011 JUDGMENT DATED: 01/10/2025 undefined petitioner will not change the complexion of the matter so far giving effect to the recommendations of the DPC is concerned; and that it is not even the case of the Government that the petitioner is not suitable for being promoted and therefore, the petitioner is entitled to get promotion on the post of Joint Registrar with deemed date and all consequential benefits; and that in view of the policy decision of the Government, which has now been implemented in case of other officers of the Government, similar treatment ought to have been given to the petitioner; and that the action of the respondents authorities of issuing charge-sheet and conducting departmental inquiry against the petitioner was with the sole purpose of depriving the petitioner for being promoted on the post of Joint Registrar; and that charge-sheet ought not to have been issued to the petitioner for the charges levelled against the petitioner and in any case, no case is made out against the petitioner; and that the authorities have prejudged the issue against the petitioner; and that the authorities have also acted in an absolute pervert manner; and that the pendency of the departmental inquiry is sought to be used against the petitioner for depriving him of being promoted on the post of Joint Registrar; and that the action of the respondents authorities of not promoting the petitioner on the post of Joint Registrar is illegal, arbitrary and unconstitutional; and Page 11 of 38 Uploaded by M.H. DAVE(HC00193) on Mon Oct 06 2025 Downloaded on : Tue Oct 07 00:00:46 IST 2025 NEUTRAL CITATION C/SCA/17718/2011 JUDGMENT DATED: 01/10/2025 undefined that the initiation, continuation and pendency of the departmental inquiry against the petitioner is absolutely illegal, arbitrary and malafide; and that there has been an inordinate and unexplained delay in initiation, continuation and conclusion of the departmental inquiry against the petitioner which has not only prejudiced the defence of the petitioner but has adversely affected the career prospects of the petitioner as well; and that there has been perversity on the part of the enquiry officer as well as the disciplinary authority inasmuch as both the authorities have taken into consideration those material which legally could not have been taken into consideration and have failed to take into consideration those material which ought to have been taken into consideration by the authorities; and that except two departmental witnesses, no other witnesses are examined by the department though they were available; and that the charges levelled against the petitioner cannot be held to be proved, in absence of examination of the witnesses, who were available; and that the departmental inquiry against the petitioner was initiated with the mala fide intention to debar the petitioner from being promoted on the post of Joint Registrar; and that the Gujarat Public Service Commission ('the GPSC' for short) has advised the imposition of enhanced punishment without proper application of mind and the respondent - Government has mechanically accepted the Page 12 of 38 Uploaded by M.H. DAVE(HC00193) on Mon Oct 06 2025 Downloaded on : Tue Oct 07 00:00:46 IST 2025 NEUTRAL CITATION C/SCA/17718/2011 JUDGMENT DATED: 01/10/2025 undefined advice of GPSC, without appreciating the representation made by the petitioner in its true perspective. He has submitted that these petitions may be allowed.
6. Per contra, learned AGP Mr. Henil M. Shah for the State Authorities has vehemently opposed these petitions. He has drawn the attention of this Court towards the affidavits in reply filed by the State and has submitted that the authorities have, after following the due procedure as well as after following the principles of natural justice, as directed earlier by this Court, passed the impugned orders; and that in view of the subsequent development, the cause of Special Civil Application No.6040 of 2010 would not survive rather would be stated to have merged with the final order of punishment, which is impugned in Special Civil Application No.17718 of 2011; and that during the pendency of the proceedings under challenge in Special Civil Application No.6040 of 2010, the petitioner was served with another disciplinary proceeding order of punishment dated 16.03.2012 regarding wrongly claimed travelling allowance, which is the subject matter of challenge under Special Civil Application No.13005 of 2016, which is allowed by this Court vide order dated 10.07.2025 as the petitioner has repaid said amount; and that during pendency of that petition, the petitioner has been served with the punishment order dated 21.09.2015 Page 13 of 38 Uploaded by M.H. DAVE(HC00193) on Mon Oct 06 2025 Downloaded on : Tue Oct 07 00:00:46 IST 2025 NEUTRAL CITATION C/SCA/17718/2011 JUDGMENT DATED: 01/10/2025 undefined which is the subject matter of challenge in Special Civil Application No.16861 or 2015, wherein this Court was pleased to direct the department to issue fresh show-cause notice and further to pass fresh order of punishment in accordance with law; and that pursuant to that order, the punishment order dated 21.09.2015 has been revised vide order dated 29.06.2016; and that during the pendency of the petitions, the petitioner has retired on 30.09.2012; and that only one DPC convened during the tenure between 2010 to 2011; and that since the petitioner retired in the year 2012, the scope of seeking promotion from a retrospective date is not available to the rescue of the petitioner in light of catana of decisions of the Hon'ble Apex Court as well as of this Court; and that the petitioner is paid all the retiral benefits, as eligible; and that since the petitioner has been facing multiple disciplinary inquiries before the date of retirement and has challenged punishment orders by preferring various petitions before this Court, the authority in exercise of powers vested into it through Gujarat Civil Service (Pension) Rules, 2022, more particulalry Rule 23 and 24 thereof, has withheld the proportionate amount of pension as well as gratuity; and that as per Rule 145, until the Court proceedings are concluded for a challenge made to the disciplinary proceedings or on award of punishments, the authorities may withhold the pension and gratuity to the extent as prescribed under the Page 14 of 38 Uploaded by M.H. DAVE(HC00193) on Mon Oct 06 2025 Downloaded on : Tue Oct 07 00:00:46 IST 2025 NEUTRAL CITATION C/SCA/17718/2011 JUDGMENT DATED: 01/10/2025 undefined said Rules; and that as on this date, the petitioner is receiving provisional pension as well as gratuity withholding the limited amount as prescribed in the order dated 21.01.2013 as well as Government Resolution dated 23.06.2000; and that looking to the details of the departmental proceedings against the petitioner, from 1996 to 2010, the authorities have acted in accordance with the procedure as well as rules which is annexed with the reply filed by the authorities in Special Civil Application No.17718 of 2011 with regard to the contention of the petitioner raised, more particularly in para 4.2 of the petition; and that the Registrar, Co-operative Societies, after conducting the preliminary inquiry, found that the charges against the petitioner to be proved; and that similarly, the Director of ACB has also found the charges to be true and those reported were forwarded to the Vigilance Commission; and that the Vigilance Commission recommended major punishment under the Gujarat Civil Service (Discipline and Appeal) Rules, 1971; and that the General Administration Department followed the procedure and confirmed the charge- sheet and in turn, send to the GPSC and the GPSC has recommended higher punishment and therefore, the impugned order is passed. He has submitted that these petitions may be dismissed.
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7. Learned advocates Mr.Premal Joshi and Mr. D.G. Shukla for the respondent No.3 - Gujarat Public Service Commission have jointly submitted that the role of the GPSC is very lesser in the entire procedure. The GPSC has, after considering the various documents sent by the authorities, opined that the punishment is very lesser looking to the proved charges levelled against the petitioner and the authorities have in turn passed the impugned order. They have submitted that appropriate order may be passed.
8. In rejoinder, learned advocate Mr.Vyas for the petitioner has submitted that the proceedings initiated against the petitioner are nothing but gross abuse of the powers by the authorities, whereby the sword of departmental inquiry is kept hanging over the head of the petitioner from the year 1996 to 2010; and that the petitioner is not even in a position to know as to whether the allegations levelled by two witnesses were pertaining to the charges levelled against the petitioner in the departmental inquiry in question or they were in context to some other allegations; and that the authorities have followed the Government Resolution dated 20.07.1993 wherein the procedure is prescribed by the Government regarding speedy disposal of the departmental inquiry. He has submitted that these petitions may be allowed.
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9. I have considered the rival submissions made by the learned advocates for the respective parties. I have perused the documents available on record. From the record, this Court finds that as such, Special Civil Application No.6040 of 2010 with a prayer, by and large, to give promotion to the petitioner, drop the departmental inquiry initiated pursuant to the charge-sheet dated 02.04.2005 and stay the operation of the show-cause noted dated 17.04.2008, would become infructuous :- (i) in view of the fact that the departmental inquiry was over and the punishment order dated 12.11.2011 is passed by the authorities, which is challenged by the petitioner in Special Civil Application No.17718 of 2011, (ii) the petitioner has retired on 30.09.2012 by way of superannuation and (iii) there is no stay or interim order operating against the respondents. Therefore, Special Civil Application No.6040 of 2010 needs to be disposed of as having become infructuous and another petition being Special Civil Application No.17718 of 2011 needs to be decided, on merit.
10. Now, if we consider the prayers of Special Civil Application No.17718 of 2011, by and large, that :- (i) to quash the impugned order dated 12.11.2011 and (ii) to restrain the authorities from superseding the petitioner as per the impugned order dated 12.11.2011. Page 17 of 38 Uploaded by M.H. DAVE(HC00193) on Mon Oct 06 2025 Downloaded on : Tue Oct 07 00:00:46 IST 2025
NEUTRAL CITATION C/SCA/17718/2011 JUDGMENT DATED: 01/10/2025 undefined 10.1 As per the impugned order dated 12.11.2011, the authorities have ordered that the petitioner be reduced by four steps in the existing pay-scale with future effect, for the period till his retirement.
10.2 Indisputably, the petitioner has retired on 30.09.2012 by way of superannuation. 10.3 At this stage, it is required to be noted that, while issuing notice by this Court on 08.12.2011 in Special Civil Application No.17718 of 2011, the Coordinate Bench of this Court has observed as under.
"Heard the learned advocate for the petitioner.
The charges No.7 to 12 have been
established in the Departmental Inquiry,
which appear to be serious and in spite of teh above, the respondent authority has inflicted a punishment of reducing the pay- scale of teh petitoner only upto four stages with future effect.
Notice returnable on 26.12.2011."
10.4 In view of above observation, we cannot overlook the charges levelled against the petitioner. The charges are Page 18 of 38 Uploaded by M.H. DAVE(HC00193) on Mon Oct 06 2025 Downloaded on : Tue Oct 07 00:00:46 IST 2025 NEUTRAL CITATION C/SCA/17718/2011 JUDGMENT DATED: 01/10/2025 undefined that while the petitioner was working as District Registrar, Bhuj, he was given an additional charge of Chairman, Custodian Committee of Kutch District Central Co-operative Bank. While discharging his duties as Chairman of Custodian Committee, the petitioner has committed breach of Government policies, the petitioner had deliberately and with a mala fide intention inducted certain persons as probationary employer from daily wagers and had also passed the order for confirming certain persons which was detrimental to the financial condition of the bank, as the Bank was in financial crunch.
10.5 Further, in the charge-sheet dated 02.04.2005, there were thirteen charges levelled against the petitioner initially. Out of those thirteen charges, the enquiry officer, after detailed inquiry, had come to the conclusion that charges No.1 and 2 are 'not proved' and rest of the charges No.3 to 13 are held 'proved' against the petitioner. 10.6 From the record, it transpires that the authorities have followed the procedure in the departmental inquiry. A report was submitted by the enquiry officer to the authorities and the disciplinary authority has passed the impugned punishment order, which is accepted by the Gujarat Public Service Commission.
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NEUTRAL CITATION C/SCA/17718/2011 JUDGMENT DATED: 01/10/2025 undefined 10.7 In view of above, if we take into consideration the charges, which are established in the departmental inquiry, which are, as such, serious in nature as observed by the Coordinate Bench of this Court vide order dated 08.12.2011 noted above, the authorities have rightly imposed major punishment upon the petitioner and passed the impugned order. Therefore, this petition needs to be dismissed as meritless.
10.8 At this stage, it would be fruitful to refer to the decision of the Hon'ble Apex Court in the case of Union of India versus P. Gunasekaran reported in (2015) 2 SCC 610, more particularly paras : 13 to 16 thereof, which read as under.
"13. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the enquiry officer. The finding on Charge No. 1 was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The Page 20 of 38 Uploaded by M.H. DAVE(HC00193) on Mon Oct 06 2025 Downloaded on : Tue Oct 07 00:00:46 IST 2025 NEUTRAL CITATION C/SCA/17718/2011 JUDGMENT DATED: 01/10/2025 undefined High Court can only see whether:a. the enquiry is held by a competent authority;b. the enquiry is held according to the procedure prescribed in that behalf;c. there is violation of the principles of natural justice in conducting the proceedings;d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;e. the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;g. the disciplinary authority had erroneously failed to admit the admissible and material evidence;h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;i. the finding of fact is based on no evidence. Under Article 226/227 of the Constitution of India, the High Court shall not:
(i) re-appreciate the evidence;
(ii) interfere with the conclusions in the
enquiry, in case the same has been conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which findings can be based.
(vi) correct the error of fact however grave it Page 21 of 38 Uploaded by M.H. DAVE(HC00193) on Mon Oct 06 2025 Downloaded on : Tue Oct 07 00:00:46 IST 2025 NEUTRAL CITATION C/SCA/17718/2011 JUDGMENT DATED: 01/10/2025 undefined may appear to be;
(vii) go into the proportionality of punishment unless it shocks its conscience.
14. In one of the earliest decisions in State of Andhra Pradesh and others v. S. Sree Rama Rao 1, many of the above principles have been discussed and it has been concluded thus:
"7. ... The High Court is not constituted in a proceeding under Article 226 of the Constitution a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. The High Court may Page 22 of 38 Uploaded by M.H. DAVE(HC00193) on Mon Oct 06 2025 Downloaded on : Tue Oct 07 00:00:46 IST 2025 NEUTRAL CITATION C/SCA/17718/2011 JUDGMENT DATED: 01/10/2025 undefined undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds. But the departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226 of the Constitution."
15. In State of Andhra Pradesh and others v. Chitra Venkata Rao 2, the principles have been Page 23 of 38 Uploaded by M.H. DAVE(HC00193) on Mon Oct 06 2025 Downloaded on : Tue Oct 07 00:00:46 IST 2025 NEUTRAL CITATION C/SCA/17718/2011 JUDGMENT DATED: 01/10/2025 undefined further discussed at paragraphs-21 to 24, which read as follows:
"21. The scope of Article 226 in dealing with departmental inquiries has come up before this Court. Two propositions were laid down by this Court in State of A.P. v. S. Sree Rama Rao (AIR 1963 SC 1723). First, there is no warrant for the view that in considering whether a public officer is guilty of misconduct charged against him, the rule followed in criminal trials that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court must be applied. If that rule be not applied by a domestic tribunal of inquiry the High Court in a petition under Article 226 of the Constitution is not competent to declare the order of the authorities holding a departmental enquiry invalid. The High Court is not a court of appeal under Article 226 over the decision of the authorities holding aSCW663 departmental enquiry against a public servant. The Court is concerned to determine whether the enquiry is held by an authority competent in that behalf and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Second, Page 24 of 38 Uploaded by M.H. DAVE(HC00193) on Mon Oct 06 2025 Downloaded on : Tue Oct 07 00:00:46 IST 2025 NEUTRAL CITATION C/SCA/17718/2011 JUDGMENT DATED: 01/10/2025 undefined where there is some evidence which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court to review the evidence and to arrive at an independent finding on the evidence. The High Court may interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion. The departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there is some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a Page 25 of 38 Uploaded by M.H. DAVE(HC00193) on Mon Oct 06 2025 Downloaded on : Tue Oct 07 00:00:46 IST 2025 NEUTRAL CITATION C/SCA/17718/2011 JUDGMENT DATED: 01/10/2025 undefined matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226.
22. Again, this Court in Railway Board, representing the Union of India, New Delhi v. Niranjan Singh (AIR 1969 SC
966) said that the High Court does not interfere with the conclusion of the disciplinary authority unless the finding is not supported by any evidence or it can be said that no reasonable person could have reached such a finding. In Niranjan Singh case this Court held that the High Court exceeded its powers in interfering with the findings of the disciplinary authority on the charge that the respondent was instrumental in compelling the shut-down of an air compressor at about 8.15 a.m. on May 31, 1956. This Court said that the Enquiry Committee felt that the evidence of two persons that the respondent led a group of strikers and compelled them to close down their compressor could not be accepted at its face value. The General Manager did not agree with the Enquiry Committee on that point. The General Manager accepted the evidence. This Court said that it was open to the General Manager to do so Page 26 of 38 Uploaded by M.H. DAVE(HC00193) on Mon Oct 06 2025 Downloaded on : Tue Oct 07 00:00:46 IST 2025 NEUTRAL CITATION C/SCA/17718/2011 JUDGMENT DATED: 01/10/2025 undefined and he was not bound by the conclusion reached by the committee. This Court held that the conclusion reached by the disciplinary authority should prevail and the High Court should not have interfered with the conclusion.
23. The jurisdiction to issue a writ of certiorari under Article 226 is a supervisory jurisdiction. The Court exercises it not as an appellate court. The findings of fact reached by an inferior court or tribunal as a result of the appreciation of evidence are not reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by a tribunal, a writ can be issued if it is shown that in recording the said finding, the tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Again if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. A finding Page 27 of 38 Uploaded by M.H. DAVE(HC00193) on Mon Oct 06 2025 Downloaded on : Tue Oct 07 00:00:46 IST 2025 NEUTRAL CITATION C/SCA/17718/2011 JUDGMENT DATED: 01/10/2025 undefined of fact recorded by the Tribunal cannot be challenged on the ground that the relevant and material evidence adduced before the Tribunal is insufficient or inadequate to sustain a finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal.
See Syed Yakoob v. K. S. Radhakrishnan (AIR 1964 SC 477).
24. The High Court in the present case assessed the entire evidence and came to its own conclusion. The High Court was not justified to do so. Apart from the aspect that the High Court does not correct a finding of fact on the ground that the evidence is not sufficient or adequate, the evidence in the present case which was considered by the Tribunal cannot be scanned by the High Court to justify the conclusion that there is no evidence which would justify the finding of the Tribunal that the respondent did not make the journey. The Tribunal gave reasons for its conclusions. It is not possible for the High Court to say that no reasonable person could have arrived at these conclusions. The High Court Page 28 of 38 Uploaded by M.H. DAVE(HC00193) on Mon Oct 06 2025 Downloaded on : Tue Oct 07 00:00:46 IST 2025 NEUTRAL CITATION C/SCA/17718/2011 JUDGMENT DATED: 01/10/2025 undefined reviewed the evidence, reassessed the evidence and then rejected the evidence as no evidence. That is precisely what the High Court in exercising jurisdiction to issue a writ of certiorari should not do."These principles have been succinctly summed-up by the living legend and centenarian Justice V. R. Krishna Iyer in State of Haryana and another v. Rattan Singh 3. To quote the unparalled and inimitable expressions:"4. .... in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and Administrative Tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case-law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations Page 29 of 38 Uploaded by M.H. DAVE(HC00193) on Mon Oct 06 2025 Downloaded on : Tue Oct 07 00:00:46 IST 2025 NEUTRAL CITATION C/SCA/17718/2011 JUDGMENT DATED: 01/10/2025 undefined and observance of rules of natural justice. Of course, fairplay is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunal, cannot be held good. ..."
16. In all the subsequent decisions of this Court up to the latest in Chennai Water Supply and Sewarage Board v. T. T. Murali Babu 4, these principles have been consistently followed adding practically nothing more or altering anything."
10.9 It would also be fruitful to refer to the decision of the Hon'ble Apex Court in the case of Government of West Bengal versus Dr. Amal Satpathi reported in 2024 INSC 906, more particularly para : 19 to 22 thereof, which read as under.
"19. It is a well settled principle that promotion becomes effective from the date it is granted, rather than from the date a vacancy arises or the post is created. While the Courts have recognized the right to be considered for promotion as not only a statutory right but also a fundamental right, there is no fundamental right to the Page 30 of 38 Uploaded by M.H. DAVE(HC00193) on Mon Oct 06 2025 Downloaded on : Tue Oct 07 00:00:46 IST 2025 NEUTRAL CITATION C/SCA/17718/2011 JUDGMENT DATED: 01/10/2025 undefined promotion itself. In this regard, we may gainfully refer to a recent decision of this Court in the case of Bihar State Electricity Board and Others v. Dharamdeo Das, 2024 SCC OnLine SC 1768 wherein it was observed as follows:
"18. It is no longer res integra that a promotion is effective from the date it is granted and not from the date when a vacancy occurs on the subject post or when the post itself is created. No doubt, a right to be considered for promotion has been treated by courts not just as a statutory right but as a fundamental right, at the same time, there is no fundamental right to promotion itself. In this context, we may profitably cite a recent decision in Ajay Kumar Shukla v. Arvind Rai, (2022) 12 SCC 579 where, citing earlier precedents in Director, Lift Irrigation Corporation Ltd. v. Pravat Kiran Mohanty, (1991) 2 SCC 295 and Ajit Singh v. State of Punjab, (1999) 7 SCC 209 a three-Judge Bench observed thus: "41. This Court, time and again, has laid emphasis on right to be considered for promotion to be a fundamental right, as was held by K. Ramaswamy, J., in Director, Lift Page 31 of 38 Uploaded by M.H. DAVE(HC00193) on Mon Oct 06 2025 Downloaded on : Tue Oct 07 00:00:46 IST 2025 NEUTRAL CITATION C/SCA/17718/2011 JUDGMENT DATED: 01/10/2025 undefined Irrigation Corpn. Ltd. v. Pravat Kiran Mohanty in para 4 of the report which is reproduced below:
"4. There is no fundamental right to promotion, but an employee has only right to be considered for promotion, when it arises, in accordance with relevant rules. From this perspective in our view the conclusion of the High Court that the gradation list prepared by the corporation is in violation of the right of respondent-writ petitioner to equality enshrined under Article 14 read with Article 16 of the Constitution, and the respondent- writ petitioner was unjustly denied of the same is obviously unjustified."
42. A Constitution Bench in Ajit Singh v. State of Punjab, laying emphasis on Article 14 and Article 16(1) of the Constitution of India held that if a person who satisfies the eligibility and the criteria for promotion but still is not considered for promotion, then there will be clear violation of his/hers fundamental right. Jagannadha Rao, J. speaking for himself and Anand, C.J., Venkataswami, Pattanaik, Kurdukar, JJ., observed the same as follows in paras 22 and 27:
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NEUTRAL CITATION C/SCA/17718/2011 JUDGMENT DATED: 01/10/2025 undefined 'Articles 14 and 16(1) : is right to be considered for promotion a fundamental right "22. Article 14 and Article 16(1) are closely connected. They deal with individual rights of the person. Article 14 demands that the State shall not deny to any person equality before the law or the equal protection of the laws.
Article 16(1) issues a positive command that:
'there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.' It has been held repeatedly by this Court that clause (1) of Article 16 is a facet of Article 14 and that it takes its roots from Article 14. The said clause particularises the generality in Article 14 and identifies, in a constitutional sense equality of opportunity in matters of employment and appointment to any office under the State. The word employment being wider, there is no dispute that it takes within its fold, the aspect of promotions to posts above the stage of initial level of recruitment. Article 16 (1) provides to every employee otherwise eligible for promotion or who comes within the zone of consideration, a fundamental right to be considered for promotion. Equal opportunity Page 33 of 38 Uploaded by M.H. DAVE(HC00193) on Mon Oct 06 2025 Downloaded on : Tue Oct 07 00:00:46 IST 2025 NEUTRAL CITATION C/SCA/17718/2011 JUDGMENT DATED: 01/10/2025 undefined here means the right to be considered for promotion. If a person satisfies the eligibility and zone criteria but is not considered for promotion, then there will be a clear infraction of his fundamental right to be considered for promotion, which is his personal right. Promotion based on equal opportunity and seniority attached to such promotion are facets of fundamental right under Article 16(1).
* * *
27. In our opinion, the above view expressed in Ashok Kumar Gupta [ Ashok Kumar Gupta v. State of U.P., (1997) 5 SCC 201 and followed in Jagdish Lal [ Jagdish Lal v.
State of Haryana, (1997) 6 SCC 538 and other cases, if it is intended to lay down that the right guaranteed to employees for being considered for promotion according to relevant rules of recruitment by promotion (i.e. whether on the basis of seniority or merit) is only a statutory right and not a fundamental right, we cannot accept the proposition. We have already stated earlier that the right to equal opportunity in the matter of promotion in the sense of a right to be considered for promotion is indeed a fundamental right Page 34 of 38 Uploaded by M.H. DAVE(HC00193) on Mon Oct 06 2025 Downloaded on : Tue Oct 07 00:00:46 IST 2025 NEUTRAL CITATION C/SCA/17718/2011 JUDGMENT DATED: 01/10/2025 undefined guaranteed under Article 16(1) and this has never been doubted in any other case before Ashok Kumar Gupta [Ashok Kumar Gupta v. State of U.P.], right from 1950."
"20. In State of Bihar v. Akhouri Sachindra Nath, 1991 Supp (1) SCC 334 it was held that retrospective seniority cannot be given to an employee from a date when he was not even borne in the cadre, nor can seniority be given with retrospective effect as that might adversely affect others. The same view was reiterated in Keshav Chandra Joshi v. Union of India, 1992 Supp (1) SCC 272 where it was held that when a quota is provided for, then the seniority of the employee would be reckoned from the date when the vacancy arises in the quota and not from any anterior date of promotion or subsequent date of confirmation. The said view was restated in Uttaranchal Forest Rangers Assn. (Direct Recruit) v. State of U.P., (2006) 10 SCC 346, in the following words:
"37. We are also of the view that no retrospective promotion or seniority can be granted from a date when an employee has not even been borne in the cadre so as to adversely affect the direct recruits appointed Page 35 of 38 Uploaded by M.H. DAVE(HC00193) on Mon Oct 06 2025 Downloaded on : Tue Oct 07 00:00:46 IST 2025 NEUTRAL CITATION C/SCA/17718/2011 JUDGMENT DATED: 01/10/2025 undefined validly in the meantime, as decided by this Court in Keshav Chandra Joshi v. Union of India held that when promotion is outside the quota, seniority would be reckoned from the date of the vacancy within the quota rendering the previous service fortuitous. The previous promotion would be regular only from the date of the vacancy within the quota and seniority shall be counted from that date and not from the date of his earlier promotion or subsequent confirmation. In order to do justice to the promotes, it would not be proper to do injustice to the direct recruits....
38. This Court has consistently held that no retrospective promotion can be granted nor can any seniority be given on retrospective basis from a date when an employee has not even been borne in the cadre particularly when this would adversely affect the direct recruits who have been appointed validity in the meantime. (emphasis supplied)"
20. In the instant case, it is evident that while respondent No. 1 was recommended for promotion before his retirement, he could not assume the duties of the Chief Scientific Page 36 of 38 Uploaded by M.H. DAVE(HC00193) on Mon Oct 06 2025 Downloaded on : Tue Oct 07 00:00:46 IST 2025 NEUTRAL CITATION C/SCA/17718/2011 JUDGMENT DATED: 01/10/2025 undefined Officer. Rule 54(1)(a) of the West Bengal Service Rules, clearly stipulates that an employee must assume the responsibilities of a higher post to draw the corresponding pay, thus, preventing posthumous or retrospective promotions in the absence of an enabling provision.
21. While we recognize respondent No.1s right to be considered for promotion, which is a fundamental right under Articles 14 and 16(1) of the Constitution of India, he does not hold an absolute right to the promotion itself. The legal precedents discussed above establish that promotion only becomes effective upon the assumption of duties on the promotional post and not on the date of occurrence of the vacancy or the date of recommendation. Considering that respondent No. 1 superannuated before his promotion was effectuated, he is not entitled to retrospective financial benefits associated to the promotional post of Chief Scientific Officer, as he did not serve in that capacity.
22. As a result of the above discussion, the judgment dated 1st February, 2023 passed by Page 37 of 38 Uploaded by M.H. DAVE(HC00193) on Mon Oct 06 2025 Downloaded on : Tue Oct 07 00:00:46 IST 2025 NEUTRAL CITATION C/SCA/17718/2011 JUDGMENT DATED: 01/10/2025 undefined the High Court of Calcutta and the judgment dated 26th June, 2019 passed by the Tribunal are unsustainable in the eyes of law and are hereby reversed and set aside."
11. For the reasons recorded above and considering the decisions of the Hon'ble Apex Court noted above, the following order is passed.
11.1 Special Civil Application No.6040 of 2010 is disposed of as having become infructuous. Rule is discharged. 11.2 Special Civil Application No.17718 of 2011 is hereby dismissed. Rule is discharged.
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