Gujarat High Court
State Of Gujarat vs Gelabhai V Meer (Jograna) on 4 January, 2022
Bench: A.S. Supehia
C/SCA/16007/2015 JUDGMENT DATED: 04/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16007 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? NO
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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STATE OF GUJARAT & 1 other(s)
Versus
GELABHAI V MEER (JOGRANA) & 1 other(s)
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Appearance:
MR ROHAN SHAH, AGP for the Petitioner(s) No. 1,2
MR BIPIN I MEHTA(456) for the Respondent(s) No. 1
MR VICKY B MEHTA(5422) for the Respondent(s) No. 1
RULE SERVED(64) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 04/01/2022
ORAL JUDGMENT
1. In the present writ petition, the petitioner-State has challenged the
order dated 08.01.2015 passed by the Gujarat Civil Services Tribunal,
Gandhinagar, wherein and whereby Appeal No.98 of 2011 filed by the
respondent-employee claiming deemed date promotion to the post of
Superintendent has been allowed.
C/SCA/16007/2015 JUDGMENT DATED: 04/01/2022
2. Learned AGP Mr.Rohan Shah has submitted that the Tribunal has
committed grave illegality and has travelled beyond its jurisdiction in
allowing the appeal filed by the respondent-employee. It is submitted that
the case of the respondent was not considered for grant of deemed date
promotion to the post of Superintendent since there were adverse entries
in the Confidential Report of the respondent from 07.12.1992 to
31.03.1993 and the Tribunal has ignored such adverse entries without
there being any material produced by the present respondent employee.
He has submitted that the respondent has claimed deemed date promotion
on the basis of his junior Shri A.V.Chauhan, who was in fact senior in the
earlier seniority list prepared on 03.08.1997 and was promoted. He has
submitted that the seniority list dated 03.08.1997 was subsequently
revised and on 21.02.2007, wherein the respondent was placed at serial
no.25, whereas Shri A.V.Chauhan was placed at serial no.28, which
constrained the respondent to file the appeal before the Tribunal claiming
the deemed date promotion with effect from 1997.
3. Learned AGP Mr.Rohan Shah has submitted that it is an admitted
fact that there were adverse entries in the confidential report for the
period from 07.12.1992 to 31.03.1993, which was confirmed on
03.02.1996 and was not challenged by the respondent and hence, the
respondent is not entitled for deemed date of promotion. In support of his
C/SCA/16007/2015 JUDGMENT DATED: 04/01/2022
submissions, he has placed reliance on the Government Resolution dated
07.02.1995 issued by the General Administration Department, which
stipulates on considering 5 years adverse remarks of an employee at the
time of preparing select list. Thus, he has submitted that the impugned
order of the Tribunal is required to be quashed and set aside and the
matter is required to be remanded.
4. In response to the aforesaid submissions, learned advocate
Mr.Vicky Mehta appearing for the respondent no.1-employee has
submitted that the impugned order of the Tribunal does not require any
interference since admittedly the respondent was placed senior to one
Shri A.V.Chauhan in the revised seniority list, which was prepared on
21.02.2007, which gave rise to the cause of action claiming the deemed
date of promotion by the respondent prior to 1997 since Mr.A.V.Chauhan
was promoted to the post of Superintendent in the year 1997. He has
submitted that the Tribunal has precisely held that since the confidential
reports, which were only adverse for the period of four months, the same
are required to be ignored. Thus, he has submitted that the order of the
Tribunal may not be interfered.
5. I have heard the learned advocates appearing for the respective
parties.
6. The facts, as narrated hereinabove, are not in dispute. It appears
C/SCA/16007/2015 JUDGMENT DATED: 04/01/2022
that the petitioner was placed senior to Shri A.V.Chauhan in the revised
seniority list, which was prepared on 21.02.2007. Prior to that Shri
A.V.Chauhan was shown senior to the present respondent in the seniority
list dated 03.08.1997 and Shri A.V.Chauhan was also accordingly
promoted to the post of Superintendent from the post of Head Clerk and
accordingly, the respondent filed the appeal before the Tribunal claiming
the deemed date of promotion to the post of Superintendent with effect
from 02.09.1997.
7. It is the case of the petitioner that since the respondent was
communicated adverse entries in the Confidential Report from
07.12.1992 to 31.03.1993, he is not entitled for the deemed date of
promotion. Such contention was raised before the Tribunal.
8. This Court has perused the order of the Tribunal. The findings
recorded by the Tribunal indicate that the issue with regard to
communication of the adverse entries in the confidential report from the
period from 07.12.1992 to 31.03.1993 has been very cursorily dealt with
and it is observed by the Tribunal that such entries since are only for the
period of four months are required to be ignored. The Tribunal has also
examined the nature of such entries, which in the considered opinion of
this Court, are not permissible while exercising powers of judicial review.
9. It is also noticed by this Court that the Tribunal, without examining
C/SCA/16007/2015 JUDGMENT DATED: 04/01/2022
any rules and regulations for the promotional post, has allowed the appeal
of the respondent only for the reason that the adverse entries are confined
to only for the period of four months. There is no discussion with regard
to any provision of law, which would suggest that the adverse entries in
the confidential report for the period of four months is required to be
ignored for the purpose of promotion to the post of Superintendent.
10. Under the circumstances, the impugned order dated 08.01.2015
passed in Appeal No.98 of 2011 by the Tribunal is hereby quashed and
set aside. The matter is remanded to the Tribunal to decide it a fresh.
Since the respondent-employee has already retired, the appeal of the
respondent shall be decided within a period of six months, after giving
appropriate opportunity to all the parties.
11. It is clarified that, any observations of this Court may not be
construed adverse to either of the parties and the matter may be decided a
fresh by considering the rules/regulation/or administrative instructions,
governing the issue raised in the appeal of the respondent.
12. With the aforesaid direction, the present petition is allowed. Rule is
made absolute.
Sd/-
(A. S. SUPEHIA, J)
ABHISHEK
