Gnaneshwary D Shah vs Anju Sharma (Ias)
2022 Latest Caselaw 1373 Guj

     C/MCA/89/2021                               ORDER DATED: 07/02/2022




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/MISC. CIVIL APPLICATION NO. 89 of 2021
                                  In
               R/LETTERS PATENT APPEAL NO. 128 of 2016

==================================================================
                        GNANESHWARY D SHAH
                                Versus
                          ANJU SHARMA (IAS)
==================================================================
Appearance:
MR PA JADEJA(3726) for the Applicant(s) No. 1
MR DHARMESH DEVNANI, ASSISTANT GOVERNMENT PLEADER for the
Opponent(s) No. 1
==================================================================

CORAM: HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR
                       and
       HONOURABLE MR. JUSTICE NIRAL R. MEHTA

                             Date : 07/02/2022
                              ORAL ORDER

(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR)

1. Heard Mr. P.A. Jadeja, learned counsel appearing for the

complainant and Mr. Dharmesh Devnani, learned Assistant Government

Pleader appearing for the respondent. Perused the record.

2. This contempt proceeding has been initiated for suitable and

appropriate action being initiated against the respondent for the alleged

willful disobedience of the order dated 1.12.2015 passed in Special Civil

Application No.9250 of 2013 and order dated 18.2.2020 passed in Letters

Patent Appeal No.128 of 2016.

3. The complainant herein had approached this Court by filing an

C/MCA/89/2021 ORDER DATED: 07/02/2022

application under Article 226 of the Constitution of India seeking for a

writ of mandamus to the respondents to fill up the post of Head of the

Department, Plastic Engineer, Government Polytechnic, Ahmedabad by

promotion and to consider the claim of the petitioner for promotion to the

said post and to appoint him to the said post with the deemed date of

9.8.1998. The learned Single Judge by order dated 1.12.2015 allowed the

petition and directed the respondents to consider the case of the petitioner

for promotion with deemed date of 3.8.1998 and directed the authorities

to complete the exercise expeditiously within a period of four weeks from

the date of receipt of the order. The correctness and legality of the said

order was challenged in Letters Patent Appeal No.128 of 2016 by the

State and three others. The Coordinate Bench by order dated 18.2.2020

allowed the appeal in part and modified the judgment of the learned

Single Judge by holding that period served by the complainant on the

basis of ad hoc appointment is to be excluded at the time of considering

his seniority as well as promotion and allowed the order of the learned

Single Judge for the remaining portion to stand. Pursuant to the same,

Departmental Promotion Committee was convened and by order dated

25.10.2021, the result of the applicant viz. the complainant herein has

been ordered to be kept in a sealed cover and by same order, one

Mr.D.M. Makwana came to be appointed as Head of the Department,

Plastic Engineering, Government Polytechnic, Ahmedabad. The applicant

C/MCA/89/2021 ORDER DATED: 07/02/2022

has challenged initiation of the departmental enquiry in Special Civil

Application No.2414 of 2017. On account of disciplinary proceedings

pending against the complainant as on the date of Departmental

Promotion Committee met and passed the order viz. 25.10.2021, the

proceeding of Departmental Promotion Committee insofar as it relates to

complainant has been kept in a sealed cover. If it were to be so,

Departmental Promotion Committee has rightly proceeded to keep the

result of the Departmental Promotion Committee in a sealed cover.

4. Though Mr. P.A. Jadeja, learned counsel appearing for the

complainant would vehemently contend that pendency of the

departmental proceeding would not come in the way of giving effect to

the order of the learned Single Judge cannot be accepted. If at all

petitioner has been promoted by Departmental Promotion Committee, she

would be entitled to the benefits flowing from such promotion granted to

her. Though in compliance of order of learned Single Judge Departmental

Promotion Committee has been conducted, result could not be declared as

there is a disciplinary proceedings pending against her. On conclusion of

disciplinary proceedings or in the event of complainant succeeding in

Special Civil Application No.2414 of 2017, she would be entitled to seek

for implementation of the order dated 1.12.2015 passed in Special Civil

Application No.9250 of 2013.

C/MCA/89/2021 ORDER DATED: 07/02/2022

5. At this juncture, no opinion can be expressed on the said issue for

the simple reason that as on the date Departmental Promotion Committee

has arrived at a conclusion to give effect to the directions issued by the

learned Single Judge as modified by the Division Bench in Letters Patent

Appeal No.128 of 2016, the departmental enquiry initiated against the

complainant was pending and as such, Departmental Promotion

Committee has rightly proceeded to pass an order on 25.10.2021 and has

kept the result in the sealed cover. Thus, it would be open for the

complainant to seek for appropriate direction in Special Civil Application

No.2414 of 2017 in which the very initiation of the disciplinary

proceeding has been questioned. It is needless to state that the result of

the Departmental Promotion Committee will depend upon the orders /

directions that may be or would be passed / issued in Special Civil

Application No.2414 of 2017. In that view of the matter, continuation of

the contempt proceeding does not arise and it stands dropped subject to

the observations made hereinabove.

(ARAVIND KUMAR,CJ)

(NIRAL R. MEHTA,J) Bharat