Dakshin Gujarat Vij Company Ltd vs Gulabbhai B. Patel
2021 Latest Caselaw 16476 Guj

     C/LPA/609/2021                                      ORDER DATED: 21/10/2021


           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/LETTERS PATENT APPEAL NO. 609 of 2021

          In R/SPECIAL CIVIL APPLICATION NO. 16426 of 2007

                                  With
               CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
              In R/LETTERS PATENT APPEAL NO. 609 of 2021
==========================================================
                      DAKSHIN GUJARAT VIJ COMPANY LTD.
                                   Versus
                             GULABBHAI B. PATEL
==========================================================
Appearance:
MR DIPAK R DAVE(1232) for the Appellant(s) No. 1,2,3
MR AMIT V THAKKAR(3073) for the Respondent(s) No. 1
==========================================================

 CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
       and
       HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE

                              Date : 21/10/2021

                        ORAL ORDER

(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)

Heard learned advocate Mr.D.R. Dave for the appellants and learned advocate Mr.Amit Thakkar for the respondent.

2. In this Letters Patent Appeal, the appellant electricity company has challenged judgment and order dated 15th April, 2019 of learned Single Judge, whereby the learned Single Judge, while allowing the Special Civil Application, held that denial of promotion to the petitioner was illegal. As the promotional right was grossly denied, learned Single Judge reasoned that principle of no-work-no-pay would not be attracted. It was noticed that it was due to the conduct of the respondents that the petitioner was prevented from working on the promotional post.

C/LPA/609/2021 ORDER DATED: 21/10/2021

2.1 Resultantly, the respondents have been directed to pay the arrears of pay and allowances to the petitioner from the date when his juniors were promoted. The order of promotion dated 25th April, 2006 was directed to be modified to treat the petitioner eligible for promotion to the post of Superintending Engineer with effect from 15th November, 2001.

2.2 In the petition filed by the respondent- original petitioner, what he prayed was to set aside order dated 30th September, 2005 passed by the competent authority of Gujarat Urja Vikas Nigam Limited-respondent No.3, whereby the request of the petitioner to promote him to the post of Superintending Engineer was regretted and denied. Also was the prayer to set aside order dated 21st November, 2006, which was an office order, whereby the representation of the petitioner for promotion was again declined. The petitioner prayed for directing the respondents to grant the promotion and accord monetary and other consequential benefits with effect from November, 2001 till the petitioner was actually promoted in April, 2006.

3. Noticing the facts in brief, the petitioner joined services under the respondent-Gujarat Electricity Board as Junior Engineer in the year 1989, whereafter in the year 2001 he came to be promoted as Executive Engineer. The name of the petitioner was at Serial no.55 in the seniority list as on 01st April, 2000 for further promotion. It is

C/LPA/609/2021 ORDER DATED: 21/10/2021

the case that in the month of November, 2001, as many as 17 Executive Engineers figuring in the list at Serial Nos.52 to 72 came to be promoted to the post of Superintending Engineer, however petitioner's case, though he was placed at Serial No.55, was excluded and he was bypassed. The representation of the petitioner failed to yield any result.

3.1 It appears that the authorities issued other orders also promoting the Executive Engineers to the post of Superintending Engineer in the year 2002. This time also, though the petitioner's name stood at Serial No.9 in the list, he was not promoted. It is stated by the petitioner that he was not even informed that he was not to be promoted. This made the petitioner to submit another representation dated 24th March, 2003. It appears that the Chief Engineer, South Zone, Surat, forwarded petitioner's representation along with recommendation letter dated 02nd April, 2003 to the respondent-Board specifically recommending the petitioner's case for promotion to the higher post with due date.

3.2 Petitioner averred that even further promotions were made by the authorities to the post of Superintending Engineer to the denial and discrimination of the petitioner. It is stated that in the aforesaid recommendation made earlier, it was specifically mentioned that the petitioner was hard working and deserved to earn the promotion. It appears that the petitioner had an occasion to file Special Civil Application No.10629 of 2005 raising

C/LPA/609/2021 ORDER DATED: 21/10/2021

grievance about his non-promotion, which petition came to be disposed of by the Court as per order dated 05th August, 2005. The Court directed that the petition itself be treated as representation directing the respondent-Board to take appropriate decision on or before 30th September, 2005.

3.3 It is stated by the petitioner that it was after the said order passed in the petition that the respondent authorities came out with a ground that the rating in the Confidential Reports of the petitioner was below 55% marks for the years 1996 to 2000 and disciplinary action was also contemplated against the petitioner. It appears that thereafter the petitioner was served with the order of promotion dated 25th April, 2006, whereby he was promoted as Superintending Engineer. The petitioner made a representation that he was entitled to be promoted with effect from 15th November, 2001 as on that date the juniors were promoted and the petitioner was denied the promotion though he had fulfilled at that time all the requisite qualification. It is also the case that consequential benefits calculated from the said date of promotion claimed is required to be granted to the petitioner.

3.4 On yet another occasion, for the very kind of grievance the petitioner preferred Special Civil Application No.20477 of 2006. This Court disposed of the said petition requiring the respondent authorities to decide the representation of the petitioner dated 26th November, 2006 and to pass a

C/LPA/609/2021 ORDER DATED: 21/10/2021

reason order. On 21st November, 2006 the representation of the petitioner came to be rejected. Therein it was stated that the petitioner did not fulfill the requisite criteria of merit-cum-seniority because the petitioner had rating below 55% in Confidential Reports for the years 1996, 1997, 1998, 1999 and 2000.

4. Before the learned Single Judge, the submission on behalf of the petitioner was inter alia that he was denied promotion at repeated juncture though promotion was due. As regards the rejection of the representation lastly made by the authorities on the ground of Confidential Reports, it was submitted that the Confidential Reports were never communicated to the petitioner. Relying on the decision of the Supreme Court in Sukhdev Singh v. Union of India [(2013) 9 SCC 566] it was submitted that the petitioner ought to have promoted in November, 2001 only but was considered and promoted only on 25th April, 2006.

4.1 As against that, the case of the respondents was that it was a policy followed that out of seven Annual Confidential Reports to be considered for determining the merits for promotion, the candidate who have five Confidential Reports with 55% marks and above, and secondly that no disciplinary action should have been pending or enforced against the candidate officer. It was sought to be harped that the rating of the Confidential Reports of the petitioner was less than 55% which rendered him

C/LPA/609/2021 ORDER DATED: 21/10/2021

ineligible. It was further submitted that the requirement of appearing at the interview to clear the suitability was to be fulfilled.

5. The consideration canvassed on behalf of the respondents that pendency of disciplinary proceedings was the factor relevant for denial of promotion, stands to be rejected outright inasmuch as it is not in dispute that though show-cause notice dated 11th July, 2003 was issued to the petitioner, nothing further was done by the authorities pursuant to the said show-cause notice and no disciplinary proceedings were initiated at all. Learned Single Judge noticed this aspect to observe in paragraph No.7 that show-cause notice could have been considered for denying the promotion to the petitioner to the post of Superintending Engineer when they were promoted in the year 2001. The assertion of the petitioner that Confidential Reports were never communicated to him remained unrebutted.

5.1 As the factum become undisputed that no adverse remarks/memo were sent to the petitioner during entire career of the petitioner as Executive Engineer, the authorities could not have banked upon and rely on such uncommunicated remarks. Adverse remarks since uncommunicated, could not have been utilised for any purpose and could be said to have lost its efficacy to be utilised against the petitioner, the criteria of fixing 55% marks for judging the merit-cum-seniority which was based on and referable to the adverse remarks, could not have

C/LPA/609/2021 ORDER DATED: 21/10/2021

been applied. There was no basis for such yardstick to be applied, for want of communication.

5.2 The criteria for selection to the post of Superintending Engineer were relied on from the contents of the meeting of the Board dated 01st July, 2004. It was stated that selection to the post of Superintending Engineer was made till 2004 on the basis of merit-cum-seniority criteria and that the following criteria are observed - (i) The concerned Engineer should have 7 clear Crs in the preceding 7 years and out of which he should have earned at least 55% and above marks in 5 or more CRs, (ii) There should not be any disciplinary action pending and

(iii) There should not be any punishment in force.

5.3 As noticed above, in the facts of the case of the petitioner, there was no debility which could have impeded his promotional avenue existed. The first criteria about requirement of minimum 55% and above marks in five or more Confidential Reports was required to be discarded for the very reason that the respondents could not have relied upon the Confidential Reports themselves as they were uncommunicated Confidential Reports. There was no disciplinary action pending. The third condition was also not operative as there was no punishment enforced.

5.4 In the above circumstances, repeated denial of promotion to the petitioner since 2001 when the promotion become due was rightly held to be

C/LPA/609/2021 ORDER DATED: 21/10/2021

unjustified by learned Single Judge. Action on part of the respondents in not promoting the petitioner thus stand arbitrary, illegal, discriminatory and in violation of Articles 14 and 16 of the Constitution.

5.5 It is also to be noted that the aforesaid criteria sought to be applied by the respondents in support of denial of promotion to the petitioner were reflected in the Board meeting held on 01st July, 2004 stating that those criteria were being observed until then. However, any Resolution of the Board which may have been passed earlier or any competent decision taken to fix the said criteria could not be produced by the respondents. Be as it may.

5.6 In the aforesaid Board meeting of 01st July, 2004 the criteria were deliberated and new criteria were framed to be applied from the year 2004 onward. It was recorded that the Board deliberated new criteria for the promotion including to the post of Superintending Engineer. The new criteria sought to be adopted were that - (i) 50% weightage shall be assigned to CR marks of last seven years, (ii) 40% weightage shall be assigned to personal interview to decide suitability for such posts and (iii) 10% weightage shall be assigned to additional qualification acquired subsequent to joining the Board.

5.7 In course of hearing of the present Letters Patent Appeal, learned advocate for the appellants tried to argue that petitioner has not faced personal interview provided in the criteria as above to decide

C/LPA/609/2021 ORDER DATED: 21/10/2021

the suitability for such post. This submission is liable to be immediately rejected inasmuch as the said criteria regarding personal interview was introduced in the year 2004 as decided in the Board Meeting No.354 dated 01st July, 2004. The case for promotion of the petitioner was related to the year 2001, therefore criteria for promotion prevalent at that time could only apply. Once the petitioner was found to be within the eligibility zone to be considered for promotion, his promotion could not be denied or withheld on the ground that he needs to be subjected to personal interview and suitability adjudgment for the post, for the simple reason that the said criteria is only prospectively introduced from the year 2004.

6. Learned Single Judge observed that rating of the petitioner below 55 could not have been treated as adverse since the remarks were not communicated.

"9. In the present case, unquestionably, the petitioner is never communicated that his rating as per confidential report are below 55% marks. The rating of the petitioner below 55% is treated as adverse and hence he was not promoted . Moreover, he is never informed about the decision of the Committee dated 10.1.1991 (Annexure'R3'), that his rating will be decided as per the same. Hence, as per the law enunciated by the Apex Court, every Entry in the confidential report has to be communicated to the employee since such entry in the ACR brings transparency in recording the remarks relating to a public servant and the system becomes more conforming to the principles of natural justice.

10. Thus, the impugned orders are required to be quashed and set aside on two counts, a) the ratings of the petitioner below 55% for the period of 5 years were never communicated which proved fatal for his promotion, and b) No General standing

C/LPA/609/2021 ORDER DATED: 21/10/2021

Order/Service Regulation prescribing such ratings has been revealed to this Court."

6.1 For the reasons supplied by the learned Single Judge and those further discussed hereinabove, we do not find that learned Single Judge has committed any error in granting relief to the petitioner. No interference in the impugned order is called for in the present Letters Patent Appeal.

6.2 The promotion to the petitioner is to be guided by the criteria as were prevalent in the year 2001. Thereafter, as discussed above, new eligibility has been introduced from 2004 for granting promotion to the post. In the future cases, the above criteria as is applicable to earn promotion to the petitioner would not apply in future for any future promotion.

6.3 Therefore, in any view, the promotion to the petitioner would rest limited to the case of the petitioner. Learned advocate for the appellants was fair to submit the calculation of total amount due, and payable to the petitioner pursuant to the direction of the learned Single Judge, which comes to Rs.81,246/- approximately.

7. for all the above considerations, we do not find any reason to interfere with the impugned order of the learned Single Judge. The Letters Patent Appeal is accordingly dismissed.

ORDER IN CIVIL APPLICATION

No order is required to be passed in the present Civil Application in view of order of even

C/LPA/609/2021 ORDER DATED: 21/10/2021

date dismissing the main Letters Patent Appeal. Civil application stands disposed of accordingly.

(N.V.ANJARIA, J)

(ANIRUDDHA P. MAYEE,J) ANUP