Mahesh Babubhai Brahmbhatt vs Union Of India
2021 Latest Caselaw 4576 Guj

         C/SCA/10622/2020                                         JUDGMENT




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 10622 of 2020

                                 With
             R/SPECIAL CIVIL APPLICATION NO. 10634 of 2020

FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE SONIA GOKANI

and
HONOURABLE MS. JUSTICE GITA GOPI

==========================================================

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 or any
      order made thereunder ?

==========================================================
                       MAHESH BABUBHAI BRAHMBHATT
                                  Versus
                              UNION OF INDIA
==========================================================
Appearance:
RONITH JOY(9560) for the Petitioner(s) No. 1
MRS MAUNA M BHATT(174) for the Respondent(s) No. 4
NOTICE SERVED(4) for the Respondent(s) No. 1,2,3
==========================================================

    CORAM: HONOURABLE MS. JUSTICE SONIA GOKANI
           and
           HONOURABLE MS. JUSTICE GITA GOPI



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  C/SCA/10622/2020                                           JUDGMENT



                         Date : 23/03/2021

                  ORAL JUDGMENT

(PER : HONOURABLE MS. JUSTICE SONIA GOKANI)

1. These are a curiously strange and very peculiar

matters, where the technicality has gained

supremacy over the substantive justice due to the

hyper technical approach of the Tribunal as

detailed hereinafter.

2. These petitions are preferred under Articles 226

and 227 of the Constitution of India, where the

orders of even date i.e. 27.02.2020 passed in

Original Applications being OA No.372 of 2019 and

OA No.371 of 2019 by the Central Administrative

Tribunal, Ahmedabad ("the Tribunal" for short) are

under challenge.

3. The Tribunal has rejected the said Original

Applications summarily on the ground that the

prayers made by the petitioners are contradictory

and, therefore, without issuance of notice and

C/SCA/10622/2020 JUDGMENT

without considering the material on record, the

order of dismissal has been passed.

4. Facts in nutshell are taken from Special Civil

Application No. 10622 of 2020 for adjudication of

these petitions.

4.1. The petitioner was appointed as Wash Boy in the

Income-Tax Department Cooperative Society

Limited on 01.10.1991. It is his case that he was

taken on the roll of the Income Tax Department

and his designation had been changed from Wash

Boy to Bearer. However, his pay-scale was not

changed. He has continued to work as Bearer and

the Department chose not to hold any DPC for

promotion of canteen staff, in violation of the

instructions. It was his case that the Income Tax

Non-Statutory Department Canteen Recruitment

Rules, 2004 were framed in the year 2004. The post

of Bearer was in Group 'D'. Another post in

Tea/Coffee Maker was also in Group 'D'. There

C/SCA/10622/2020 JUDGMENT

were promotions in the Department at Mumbai on

30.11.2004. There were representations made to

the Chief Commissioner of Income-Tax

Department, Ahmedabad on 19.09.2005,

17.11.2005 and 10.11.2006 for grant of promotion

to the canteen employees. It is also noticed that he

was granted second ACP on 24.01.2017. The

Director of Canteen reported on 29.08.2015 and

gave the directions for filling-up the vacant post.

However, nothing happened for convening the DPC.

In the year 2017, qualifying test for promotion as

clerk was conducted where the applicant had

applied and on 13.04.2017, the computer test also

was conducted. Couple of representations were

made by the present petitioner and one another

person seeking declaration of the results of the test.

However, the same were not responded to and

hence, the petitioner had approached the Central

Administrative Tribunal by preferring OA No.372 of

2019 whereby the following reliefs came to be

C/SCA/10622/2020 JUDGMENT

sought:-

"A) declaring the inaction on the part of the respondents Income Tax Department in holding regular DPC as arbitrary, discriminatory, illegal and in violation of Articles 14,16 and 21 of the Constitution of India and quashing and setting the same.

B) directing the respondents department to conduct regular DPC as per the guidelines by DOP&T from time to time.

C) directing the respondents to issue necessary promotion orders promoting the applicant FROM THE POST OF Bearer; Directing the respondent department to declare the result of computer test held on 13.04.2017 and promote the applicant to the post of Clerk; and (E) passing any other appropriate order."

5. On the ground that promotion is not a right and no

person can claim promotion as of right, without

issuance of any notice, holding the OA being devoid

of merits, the same was dismissed.

6. What is particularly catching the attention of the

Court is that by holding the prayers at paragraphs

(A) and (B) sought in the OA application as self-

C/SCA/10622/2020 JUDGMENT

contradictory, the Tribunal held that OA has lost

its sanctity. The query was also put to learned

advocate representing the petitioner, who also

chose not to press the relief sought at Paragraph

(A), if the Tribunal had found the same to be

contradictory to the Prayer (B). However, on the

ground that this being the contrary relief, the Court

held that the sanctity had been lost and,

accordingly, dismissed the matter in limine.

7. We notice that the relief sought at Paragraph (A)

says that "declaring the inaction of the part of the

respondent Income Tax Department in holding the

regular DPC as arbitrary, illegal and in violation of

Articles 14,16 and 21 of the Constitution of India."

Here there was a need of adding "not" between the

words "in" and "holding". Once permitted, relief at

paragraph (A) would not become contradictory to

relief sought at Paragraph (B). Even otherwise, once

the learned advocate having not pressed the relief

C/SCA/10622/2020 JUDGMENT

sought at Paragraph (A) so as to respect what the

Tribunal was indicating, the Tribunal could not

have held that in view of the contrary reliefs, OA

had lost the sanctity. It ought to have been mindful

of the fact that this grammatical error or

inadvertent missing of words cannot decide the

fate of any employee. No adjudicatory authority can

afford to be so very hyper technical, so as to

become oblivious of the real object while performing

the duties of dispensation of justice.

7.1. It would be profitable to mind ourselves the famous

words of wisdom of the Apex Court in this respect,

where the Court has frowned upon giving

unwarranted importance to the technicalities. The

Apex Court in the case of Mumbai International

Airport Private Limited vs. Regency

Convention Centre and Hotels, AIR 2010 SC

3109, held that while doing complete and

substantial justice, technicalities must not be

C/SCA/10622/2020 JUDGMENT

allowed to stand in the way of justice.

8. We notice that the Income Tax Department was not

issued the notice and the OA was dismissed in

limine, whereas the Court here had issued the

notice on 06.01.2021, where Ms. Mauna Bhatt,

learned Standing Counsel has appeared for all the

respondents. She has chosen not to file any

affidavit-in-reply and has fairly submitted that on

technicalities, the respondents would not be

contesting the matters.

9. We appreciate the fairness on the part of the

learned Standing Counsel for the respondents.

Without entering into the merits of the matter and

also quashing and setting aside the findings and

observations made on merits by the Tribunal, we

choose to remand the matter to the Tribunal for it

to adjudicate it by allowing the request of either

incorporating the word "not" in the relief sought at

Paragraph (A) or allowing the deletion of relief

C/SCA/10622/2020 JUDGMENT

sought at Paragraph (A) from the application.

10. Matter shall be independently decided without

being guided by any kind of observations made

earlier or in this order.

11. Petitions stand disposed of accordingly.

(MS. SONIA GOKANI, J. )

(GITA GOPI,J) SUDHIR