Gujarat High Court

State Of Gujarat Through ... vs Pratapsinh N Baria on 9 February, 2022

Bench: Hemant M. Prachchhak

     C/LPA/1499/2016                             JUDGMENT DATED: 09/02/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/LETTERS PATENT APPEAL NO. 1499 of 2016
                                    In
               R/SPECIAL CIVIL APPLICATION NO. 9301 of 2011


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE R.M.CHHAYA

and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

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

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 ?

================================================================
          STATE OF GUJARAT THROUGH SECRETARY & 3 other(s)
                              Versus
                   PRATAPSINH N BARIA & 8 other(s)
================================================================
Appearance:
MR TIRTHRAJ PANDYA AGP for the Appellant(s) No. 1,2,3,4
for the Respondent(s) No. 1.1,1.2,1.3,1.4
DELETED for the Respondent(s) No. 3,4,5,6,7,8,9
MR DIPEN DESAI(2481) for the Respondent(s) No. 1
================================================================

    CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
          and
          HONOURABLE MR. JUSTICE HEMANT M.
          PRACHCHHAK

                             Date : 09/02/2022

                            ORAL JUDGMENT

C/LPA/1499/2016 JUDGMENT DATED: 09/02/2022

(PER : HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK)

1. Feeling aggrieved and dissatisfied by the impugned

judgment and order dated 04.08.2016 passed by the learned

Single Judge in Special Civil Application No.9301 of 2011, the

appellants have preferred the present appeal under Clause 15 of

the Letters Patent Act.

2. Brief facts giving rise to the present appeal are as under:-

2.1 The original petitioner - respondent no.1 herein was

working as Principal, Class II in the Government I.T.I., Godhra

under the Direct Control of the office of the Director,

Employment and Training Department. The case of the petitioner

is that the selection procedure for the post of Principal, Class II

was undertaken and the petitioner participated in the said

process and having found suitable, the GPSC appointed the

petitioner as Principal, Class II and, thereafter, the petitioner

came to be promoted as Principal in the cadre of Assistant

Director (Training), Class I on 22.07.1993. The respondent -

Deputy Secretary, Labour and Employment Department had,

vide its letter dated 07.04.2011, recommended to the GPSC for

C/LPA/1499/2016 JUDGMENT DATED: 09/02/2022

grant of promotion to the persons who have been found to be fit

by the departmental promotion committee in its meeting dated

10.02.2011. Being aggrieved and dissatisfied with the impugned

communication dated 07.04.2011 and the proceedings of the

meeting dated 10.02.2011, the petitioner approached this Court

by filing the aforesaid petition seeking the following prayers.

A. This Hon'ble Court be pleased to issue a writ of mandamus or writ in the nature of mandamus or a writ of certiorari or writ in the nature of certiorari or any other appropriate writ, order or direction quashing and setting aside the communication dated 07.04.2011 of the respondent no.2 herein so also the recommendations of Departmental Promotion Committee in its meeting dated 10.02.2011 - at Annexure-A to this petition.

B. This Hon'ble Court be pleased to issue a writ of mandamus or writ in the nature of mandamus or any other appropriate writ, order or direction directing the respondent authorities to consider the petitioner as fit for promotion to be post of Deputy Director (Training), Class - I.

C. Pending hearing and final disposal of the petition, the Hon'ble Court be pleased to restrain the respondent authorities from finalizing the process of promotion to the post of Deputy Director (Training) Class I.

D. Be pleased to grant such other and further relief in the interest of justice.

2.2 The learned Single Judge vide order dated 04.08.2016 has

allowed petition and directed respondent - State to consider the

uncommunicated entries of "good" in the ACR's of the petitioner

C/LPA/1499/2016 JUDGMENT DATED: 09/02/2022

for the period under consideration and to consider the case of

the petitioner for promotion to the post of Deputy Director

(Training), Class - I, with effect from 03.01.2012, as expeditiously

as possible. It is further directed the authority to grant all the

consequential benefits flowing from such promotion, whether

financial, pensionary or otherwise, as expeditiously as possible

and without avoidable delay.

3. The said judgment and order is under challenge in this

appeal.

4. Heard Mr.Tirthraj Pandya, learned Assistant Government

Pleader for the appellants and Mr.Dipen Desai, learned counsel

for the respondent - original petitioner.

5. We have perused the materials placed on record and the

decisions cited at the Bar and the Gujarat Civil Services

Classification and Recruitment (General) Rules, 1967. At the

outset it is required to be noted that similarly situated issue is

decided by the Coordinate Bench of this Court vide orders dated

08.03.2019 and 09.08.2017 respectively passed in Letters Patent

Appeal No.599 of 2019 and Letters Patent Appeal No.1290 of

C/LPA/1499/2016 JUDGMENT DATED: 09/02/2022

2017.

6. The paragraphs no.4 and 5 of the order dated 08.03.2019

passed in Letters Patent Appeal No.599 of 2019 reads as under:-

"4. Having heard learned counsels for the parties, considering the facts and circumstances of the case, and on perusal of the record, the facts with regard to assessment of ACRs and service record of the petitioner for the relevant years remained undisputed, however, the question remains about communicating "Good" entries made in the remark column to the petitioner by the authority. The learned Single Judge extensively relied on the decisions in the cases of Dev Dutt [supra], Sukhdev Singh [supra], Abhijit Gosh Dastidar [supra], and Prabhu Dayal Khandelwal [supra], wherein the Apex Court held that fairness and transparency in public administration requires that all entries whether poor, fair, average, good or in the Annual Confidential Report of a public servant are required to be communicated so that proper representation can be addressed by such public servant. In para 7 of the impugned judgment, the learned Single Judge reproduced important quotations of various decisions of the Apex Court. Para 19 of the judgment in the case of Prabhu Dayal Khandelwal [supra] is very important, therefore, we are reproducing the same in the order, which read as under:

"19. In light of the above principles of law enunciated by the Supreme Court, it is clear that in the present case, though the benchmark 'Very Good' is required for being considered by the DPC for promotion to the next higher post, the entries of 'Good', due to which the petitioner was ignored for promotion, were never communicated to him at any point of time. In view of the amendment in the Rules and the enhancement of the benchmark from 'Good' to 'Very Good' for promotion to a Class I post, the remark 'Good' would be considered as negative and adverse to the promotional chances of the petitioner. It is settled law that all remarks that are detrimental to the chances of promotion of an employee are required to be communicated to him, so that he is in a position to make a representation against them......"

5. In our considered view, un-communicated "Good" remarks for the respective years expunged by learned Single Judge and further direction to consider the

C/LPA/1499/2016 JUDGMENT DATED: 09/02/2022

petitioner for promotion to the post of Joint Registrar, Cooperative Societies on the basis of "Very Good" remarks in his ACR for the remaining years with effect from the DPC meeting convened on 19.03.2011 do not require any interference and accordingly the appeal is dismissed.

7. The paragraphs no.6 and 7 of the order dated 09.08.2017

passed in Letters Patent Appeal No.1290 of 2017 reads as

under:-

"6. Apart from the fact that whether entry of "Good" made for the years 2002-03; 2004-05 and 2007-08 [for first eight months] which were uncommunicated, could have been considered while considering the case of the original petitioner for promotion, it appears and does not seem to be any dispute that even as per the relevant rules for promotion to the next higher post, out of last eight years' ACRs, there shall be five "Very Good". Therefore, when the DPC last met, out of last eight years' remarks/ACRs, the original petitioner was having five "Very Good" ie., from the years 2001 to 2008-2009. Therefore also, the original petitioner was eligible for the next promotional post of Joint Director [Accounts]. Therefore, even if the adverse entires of "Good" for the years 2002-03; 2004-05 and for the first eight months of 2007-08 which were uncommunicated are considered, in that case also, as out of the last eight ACRs, the original petitioner has got "Very Good" in five years. As observed hereinabove, the original petitioner was otherwise entitled for promotion to the next higher post. The aforesaid does not seem to be an undisputed fact. Under the circumstances, it cannot be said that the learned Single Judge has committed any error in granting the aforesaid relief.

7. We are in agreement with the ultimate conclusion arrived at by the learned Single Judge and the reliefs granted to the original petitioner. We see no reason to interfere with the impugned order passed by the learned Single Judge and the ultimate conclusion arrived at by the learned Single Judge."

8. Being aggrieved and dissatisfied by the order dated

C/LPA/1499/2016 JUDGMENT DATED: 09/02/2022

09.08.2017 passed by the Coordinate Bench of this Court in

Letters Patent Appeal No.1290 of 2017, the State Authority

preferred Special Leave Petition (C) (Diary) No.11268 of 2018

before the Hon'ble Supreme Court. The Hon'ble Supreme Court

vide order dated 20.04.2018 dismissed said Special Leave

Petition and confirmed the order dated 09.08.2017 passed in the

said Letters Patent Appeal.

9. Similar appeals being Letters Patent Appeal No.1498 of

2016 along with allied Letters Patent Appeal came to be filed by

the State Authority before this Court on the same subject, which

also came to be disposed of by the Coordinate Bench of this

Court vide order dated 21.07.2017.

10. Against the said order dated 21.07.2017, the State

Authority has preferred Special Leave Petition (C) No.9524 of

2018 before the Hon'ble Supreme Court. The Hon'ble Supreme

Court vide order dated 23.08.2019 dismissed said writ petition/s

and confirmed the order dated 21.07.2017 passed by the

Coordinate Bench of this Court in the said Letters Patent

Appeals.

C/LPA/1499/2016 JUDGMENT DATED: 09/02/2022

11. It is worthwhile to refer to Rule 11, Sub-Rule (3) of Clause

(a) of the Gujarat Civil Services Classification and Recruitment

(General) Rules, 1967 which reads as under:

"(a) Notwithstanding anything contained in any rules as in force relating to the promotion to a Class-I post, barring the posts of first two lowest levels of Class-I in a hierarchy, the appointment by promotion to such posts shall be made on the principles of "Selectivity" irrespective of the seniority. The Selection Committee shall classify the eligible officers, within the zone of consideration as "Outstanding", "Very good", "Good" of "Unfit" as the case may be on an overall relative assessment of their service records. The Select List shall be prepared by including the required number of Officers, first from amongst the officers finally classified as 'Outstanding' and then from amongst those similarly classified as "Very good", and the order of names inter-se within each category shall be in the order of their seniority. The promotion of such officers shall be considered in order of rank in the Select List so prepared. The officers who are graded as "Good" or "Unfit" shall not be included in the select list."

12. Considering the facts and circumstances of the case and

the said decisions and the Rules, it clearly reveals that the issue

involved in the present appeal is squarely covered by the

aforesaid orders passed by the Hon'ble Supreme Court and,

therefore, no interference is required to be called for in the

present appeal.

13. In view of the above, the present appeal is dismissed. The

impugned judgment and order dated 04.08.2016 passed by the

C/LPA/1499/2016 JUDGMENT DATED: 09/02/2022

learned Single Judge in Special Civil Application No.9301 of 2011

is hereby confirmed. The State Authority is directed to comply

with the direction issued by the learned Single Judge without