State Of Gujarat vs S R Thosani (Shri Hitesh Ramniklal ...
2022 Latest Caselaw 98 Guj

      C/SCA/863/2016                             JUDGMENT DATED: 04/01/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 863 of 2016


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
                               Versus
       S R THOSANI (SHRI HITESH RAMNIKLAL THOSANI) & 1 other(s)
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Appearance:
MR ROHAN SHAH, AGP for the Petitioner(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. By way of this petition, the petitioner-State has challenged the

judgment and order dated 02.07.2015 passed in Appeal No.80 of 2012 by

the Gujarat Civil Services Tribunal, wherein and whereby the Tribunal

has directed the petitioner-State to grant deemed date of promotion to the

respondent to the post of Superintendent.

C/SCA/863/2016 JUDGMENT DATED: 04/01/2022

2. Learned AGP Mr.Rohan Shah has submitted that the respondent

filed the appeal claiming the deemed date of promotion in view of the

subsequent publication of the seniority list dated 22.10.2009 of the Head

Clerk, wherein the respondent has been shown senior to his juniors, who

were granted promotion, which constrained in filing of appeal claiming

deemed date of promotion from 01.01.1997, which was granted to his

juniors, who were seniors prior to the publication of the seniority list of

2009. It is submitted by the learned AGP that the respondent was

conveyed the adverse remarks in the confidential report for the year 1992

to 1993 i.e. from 07.12.1992 to 31.03.1993, however, the Tribunal has

ignored the entries by observing that since the same are for the period of

less than 4 months, such entries are required to be ignored.

3. In response to the aforesaid submissions, learned advocate

Mr.Vicky Mehta has submitted that in view of the seniority list dated

22.10.2009, the respondent was placed senior to his juniors, who were

granted promotion to the post of Superintendent with effect from

01.09.1997 and hence, the respondent filed the aforesaid appeal. It is

submitted that the order of the Tribunal may not be interfered with.

5. I have heard the learned advocates appearing for the respective

parties.

C/SCA/863/2016 JUDGMENT DATED: 04/01/2022

6. The facts, as narrated hereinabove, are not in dispute. It appears

that the respondent was placed senior to the other employees in the

revised seniority list, which was prepared on 05.09.2005. Prior to that the

juniors to the petitioners were shown senior to the present respondents in

the seniority list and accordingly they were 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 01.09.1997.

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 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 indicated 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 less than 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, is not permissible while exercising powers of judicial review.

C/SCA/863/2016 JUDGMENT DATED: 04/01/2022

9. It is also noticed by this Court that the Tribunal without examining

any rules or 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 finding with regard to

any provision of law, which would suggest that the adverse entries in the

confidential report for the period less than 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 02.07.2015

passed in Appeal No.80 of 2012 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 is 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 provision of 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