Chhotubhai Gajibhai Musala vs State Of Gujarat
2021 Latest Caselaw 13269 Guj

     C/SCA/9825/2021                              JUDGMENT DATED: 02/09/2021



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 9825 of 2021


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE A.S. SUPEHIA

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1     Whether Reporters of Local Papers may be allowed                 No
      to see the judgment ?

2     To be referred to the Reporter or not ?                          No

3     Whether their Lordships wish to see the fair copy                No
      of the judgment ?

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

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                       CHHOTUBHAI GAJIBHAI MUSALA
                                 Versus
                           STATE OF GUJARAT
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Appearance:
MR ABHISHEK M MEHTA(3469) for the Petitioner(s) No. 1
MS.DHWANI R. TRIPATHI, AGP for the Respondent(s) No. 1
NOTICE NOT RECD BACK(3) for the Respondent(s) No. 3
NOTICE SERVED BY DS(5) for the Respondent(s) No. 2
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    CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA

                            Date : 02/09/2021
                            ORAL JUDGMENT

Rule. Learned Assistant Government Pleader waives service of Rule on behalf of the respondent-State.

[1] This petition has been filed seeking directions for quashing and setting aside the Communication dated 23.04.2021 and further to

C/SCA/9825/2021 JUDGMENT DATED: 02/09/2021

consider the case of the petitioner for promotion to the post of Police Sub-Inspector from the date of issuance of the Government Resolution dated 28.02.2019.

[2] At the outset, learned Advocate Mr.Param Shah for the learned advocate Mr.Mehta appearing for the petitioner has submitted that the issue is squarely covered by the judgment dated 09.08.2021 passed in Special Civil Application No. 1985 of 2021. He has submitted that similar order may be passed in favour of the petitioner as the issue is identically situated to the case of petitioner in the present writ petition. He has further submitted that if similar directions issued by the Co-ordinate Bench of this Court vide order dated 29.09.2020 passed in Civil Application No. 1 of 2020 in Special Civil Application No. 14902 of 2018 are passed, the interest of the petitioner at this stage would be taken care of.

[2.1] The petitioner is at present serving as an Assistant Sub Inspector of Police, Class- III, State of Gujarat and having Badge No.504 and at present he is working as Assistant Sub- Inspector of Police at Botad Police Station.

[2.2] The petitioner is constrained to challenge the order/ decisions/letters dated

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23.04.2021 and 17.05.2021 issued by the respondent no.2, whereby the request of the petitioner, as contained in the letter dated 18.02.2021 for giving promotion to the post of Sub-Inspector of Police (unarmed) in view of the petitioner having cleared Mode-3 departmental examination, came to be rejected on the ground that proceedings pertaining to FIR being C.R.No.I-19 of 2018 dated 14.12.2018, in ACB Police station, Palanpur were pending against the petitioner.

[2.3] In the year 2018 i.e on 14.12.2018, an FIR being CR No. I-19 of 2018 came to be registered before the ACB Police Station, Palanpur, District Banakskantha for the alleged offences under Sections 7 and 12 of the Prevention of Corruption Act, 1988. The said FIR came to be registered on the allegation that the petitioner had demanded an amount of Rs 11,000/- for securing settlement of the criminal case. Thereafter, the petitioner was placed under suspension on 26.04.2019.

[2.4] In the meanwhile, the petitioner had filled up the form for appearing in the Mode-3 examination in December 2015 and thereafter he appeared for the said examination, for being considered for the post of Police Sub- Inspector (unarmed) and cleared the same. It

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is stated that, the other candidates, who were successful in the Mode-3 examination, have been granted promotion, but the petitioner was not considered and/or granted the promotion, despite having been declared as one of the successful candidates.

[3] Learned Advocate for the petitioner has submitted that the case of the petitioner for promotion has been denied by the respondent authorities for the reason that he is facing a criminal prosecution under the Corruption Act. It is submitted by him that no departmental proceedings have been initiated against the petitioner despite there being lapse of more than five years and the criminal case being Special Case No. 02 of 2019, a charge sheet has been filed on 07.02.2019 i.e after a period of more than one year from the date of registration of the FIR.

[4] It is submitted by the learned advocate that the petitioner was reinstated on duty by way of a communication dated 30.01.2021 after spending 2 years under suspension. It is submitted by him that the impugned communication de hors the Government Resolution dated 14.06.2016 issued by the General Administration Department since as per the Resolution, the case of the employees, who are facing departmental proceedings of the

C/SCA/9825/2021 JUDGMENT DATED: 02/09/2021

criminal prosecution, are required to be considered for grant in promotion on ad hoc basis. In the event of pendency of criminal case or departmental proceedings have remained pending for two years. Learned Advocate Mr. Shah has submitted that in the present case, the criminal proceedings are pending since last more than five years and hence, appropriate directions may be issued in terms of the aforesaid order dated 20.09.2020 passed by the Coordinate Bench of this Court.

[5] Learned Assistant Government Pleader Ms. Dhwani R. Tripathi has submitted that the petitioner would not be entitled to similar prayer as sought in the present petition and the impugned order may not be set aside. She has further submitted that a policy introduced vide Government Resolution dated 14.06.2016 is still in existence and in case the petitioner applies appropriate orders shall be passed by the concerned authority. The court has perused the Government Resolution dated 14.06.2016 declared by the General Administration Department of the State of Gujarat. The same prescribes that in the event of pendency of criminal case or departmental inquiry for more than two years, an employee can be considered for ad hoc promotion. Indubitably, in the present case the criminal prosecution is pending since more than two

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years. The Coordinate Bench while considering the similar issue, vide order dated 29.09.2020 passed in Civil Application No. 1 of 2020 in Special Civil Application No. 14902 of 2018 has directed the authorities to consider the case of the employee in terms of the Government Resolution dated 14.06.2016 since the trial is pending for more than two years.

[6] Under the circumstances, and in the light of the aforesaid Government Resolution dated 14.06.2016, the respondent authorities are directed to consider the case of the petitioner for ad hoc promotion in terms of Government Resolution dated 14.06.2016. The impugned communications are hereby quashed and set aside. The respondents are directed to pass fresh orders. It will be open for the petitioner to file a fresh representation claiming the benefit of the Government Resolution dated 14.06.2016. Necessary orders shall be passed by the respondent authorities within a period of three months from the date of receipt of the writ of this Court.

[7] The petition is allowed accordingly. Rule is made absolute to the aforesaid extent. Direct service is permitted.

(A. S. SUPEHIA, J) NABILA