Bhaleshkumar Alkhaji Asari vs State Of Gujarat
2021 Latest Caselaw 17801 Guj

     C/SCA/8256/2021                                   JUDGMENT DATED: 26/11/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 8256 of 2021


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE NIKHIL S. KARIEL                          Sd/-

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1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?                                                YES

2     To be referred to the Reporter or not ?
                                                                            NO
3     Whether their Lordships wish to see the fair copy
      of the judgment ?                                                     NO

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution                   NO
      of India or any order made thereunder ?

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                       BHALESHKUMAR ALKHAJI ASARI
                                  Versus
                            STATE OF GUJARAT
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Appearance:
MR. JIT P PATEL(6994) for the Petitioner(s) No. 1
MR UTKARSH SHARMA, AGP for the Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                                Date : 26/11/2021

                               ORAL JUDGMENT

1. Heard learned Advocate Mr.Jit Patel on behalf of the petitioner and learned AGP Mr.Utkarsh Sharma on behalf of the respondent State.

2. Issue Rule returnable forthwith. Learned AGP Mr.Sharma waives service of notice of Rule on behalf of the respondent State.

C/SCA/8256/2021 JUDGMENT DATED: 26/11/2021

3. A very short issue is raised in the present petition inasmuch as the petitioner who was recommended for promotion by a DPC, which was held on 4.2.2016, raises a grievance that though recommended by DPC concerned, actual promotion has not been given to the petitioner in view of a criminal complaint filed against the petitioner subsequent to the date of DPC i.e. on 19.5.2016. Facts stated briefly are that the petitioner was at the relevant point of time working as a Deputy Collector with the respondent State and whereas case of the petitioner along with other similarly situated persons was considered for promotion to the post of Gujarat Administrative Service (Class-I) (Sr. Scale).

4. Learned Advocate Mr.Patel would draw the attention of this Court to the minutes of DPC dated 4.2.2016 and would submit that the petitioner had been recommended for promotion and whereas before the actual promotion order had been issued, a criminal complaint had been filed against the present petitioner for offences under the provisions of Prevention of Corruption Act on 19.5.2016. That the petitioner had been arrested and he had been released on bail by the learned Sessions Court. It further appears that vide a Notification dated 9.6.2016, candidates whose names were recommended by the DPC for promotion from Class-I (Jr. Scale) to Class-I (Sr. Scale) was passed by the State Government. It further appears that vide an order dated 4.7.2016 a suspension order under Rule 5(1)(a) of the Discipline and Appeal Rules had been passed against the petitioner, placing the petitioner under deemed suspension w.e.f. 24.5.2016. It further appears that the petitioner had been reinstated in service vide an order dated 15.10.2019. The petitioner upon being reinstated in service had requested the respondent to pass appropriate order of promoting the petitioner on adhoc basis. That vide a communication dated 7.8.2021 i.e. as such after filing of this petition, the respondents had rejected the request. In the interregnum, being aggrieved by the inaction on part of the

C/SCA/8256/2021 JUDGMENT DATED: 26/11/2021

respondents of not promoting the petitioner, the petitioner has preferred the present petition.

5. Learned Advocate Mr.Patel appearing on behalf of the petitioner would rely upon the decision of the Hon'ble Apex Court in case of Union of India and Ors. Vs. K. V. Jankiraman, reported in (1991) 4 SCC 109 and would submit that the law laid down in the said judgement being that for denying promotion on the ground of a disciplinary proceeding or a prosecution, the disciplinary proceeding or the criminal trial, as the case may be, should be pending on the date of DPC. Learned Advocate Mr.Patel would further submit that the Hon'ble Apex Court has further held that the disciplinary proceeding or the criminal case can be stated to be pending against the employee upon issuance of charge memo or charge-sheet in either of the circumstances. Learned Advocate would submit that since on the date of DPC there was nothing adverse against the petitioner, the entire issue would relate back to the said particular date and under such circumstances, the petitioner is required to be promoted.

6. This petition is vehemently opposed by learned AGP Mr.Sharma who would submit that a criminal case had been filed against the present petitioner just after the case of the petitioner had been considered and recommended by DPC. Learned AGP would submit that the allegations against the petitioner in the criminal complaint were serious. Learned AGP would further draw the attention of this Court to the Resolution of the State Government dated 23.9.1981 whereby it is inter alia provided that in case of a Government servant whose name is included in the select list but who is subsequently placed under suspension or against whom criminal or disciplinary proceedings have been initiated should not be promoted on the basis of his inclusion in the select list until he is completely exonerated of the charges levelled against him. Learned AGP would further rely upon a Circular of the State Government dated

C/SCA/8256/2021 JUDGMENT DATED: 26/11/2021

5.8.1992 as regards the promotion policy of the State Government, wherein it is clarified that before giving any promotion to any employee, the State is required to conduct a check from vigilance angle of the employee concerned. Learned AGP would further submit that considering the provisions of Rule 5(1)(a) of the Gujarat State Civil Service (Discipline and Appeals) Rules 1971, since the petitioner was kept under deemed suspension immediately after he was released on regular bail, therefore, no case is made out by the petitioner for recommending the petitioner for promotion now at this stage unless the petitioner is completely exonerated in the criminal prosecution.

7. Heard the learned Advocates for the parties. In the considered opinion of this Court, the issue raised in the present petition is no more res integra. The Hon'ble Apex Court in case of Union of India and Ors. Vs. K. V. Jankiraman (supra) has laid down the law in this regard. As per the Hon'ble Apex Court, the departmental proceeding or criminal prosecution is stated to have been initiated against an employee only after the charge-sheet is issued against the employee either in the departmental proceedings or in the criminal prosecution. According to the Hon'ble Apex Court, the relevant consideration is as to whether on the date of DPC the charge-sheet had been issued against the concerned employee either in the criminal case or in the departmental proceedings or not. If the charge-sheet were issued in either of the exigencies, then only the employee's case could not have been considered. In the instant case, the issue is altogether on a different footing. As on the date of DPC there was nothing against the petitioner. Even the criminal complaint registered against the present petitioner was after the date on which the case of the petitioner had been considered by DPC.

8. Having regard to the submissions made by the learned Advocates for the parties, in the considered opinion of this Court, the respondents could not deny promotion to the present petitioner. The Government

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Notification of the year 1991 is even before the decision of the Hon'ble Apex Court in case of Union of India and Ors. Vs. K. V. Jankiraman (supra) and in the considered opinion of this Court, any observation or provisions in the said Resolution, which would be contrary to the findings of the Hon'ble Apex Court could be considered to be impliedly overruled by the said decision.

9. Having regard to the discussion herein above, in the considered opinion of this Court, the petitioner could not have been denied promotion on the ground that after the date of DPC a criminal complaint has been registered against the petitioner. Therefore, the impugned inaction on part of the respondent Authorities deserves to be declared illegal and is accordingly declared illegal. The respondent is directed to accord promotion to the present petitioner on the Gujarat Administrative Service (Class-I) (Sr. Scale) w.e.f. the date on which the persons below the present petitioner as per the recommendation of DPC dated 4.2.2016 had been given promotion. The petitioner while he would be entitled to claim seniority from the date of his promotion, he would not be able to claim for any arrears for such period, more particularly the petitioner having not worked for the same.

10. With the above observations and directions, the petition is allowed. Rule is made absolute accordingly.

Sd/-

(NIKHIL S. KARIEL,J) V.V.P. PODUVAL