Gujarat High Court

Gamit Vechyabhai Lallubhai vs State Of Gujarat on 1 August, 2025

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                             C/SCA/15510/2020                               ORDER DATED: 01/08/2025

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                      R/SPECIAL CIVIL APPLICATION NO. 15510 of 2020

                                                          With
                                      R/SPECIAL CIVIL APPLICATION NO. 15067 of 2020
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                                             GAMIT VECHYABHAI LALLUBHAI & ORS.
                                                           Versus
                                                  STATE OF GUJARAT & ORS.
                       ==========================================================
                       Appearance:
                       ADITI S RAOL(8128) for the Petitioner(s) No. 1,2,3,4,5
                       MR PARTH PATEL, AGP for the Respondent(s) No. 1
                       NOTICE SERVED BY DS for the Respondent(s) No. 1,2,3,4,5,6
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                            CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                                        Date : 01/08/2025

                                                      COMMON ORAL ORDER

1. As common questions of facts and law are involved

in these petitions, both these petitions are disposed of by this

common order.

For the sake of convenience, the facts and prayers

of Special Civil Application No.15510 of 2020 are taken into

consideration:

"18(A) Your Lordships may be pleased to issue a writ of certiorari or any other appropriate writ, order or direction declaring the supersession of the petitioners in the matter of promotion to the next higher posts of Range Forest Officer, vide Adhisoochana dated 22.09.2020 issued by the Forests and Environment Department, Government of Gujarat as bad

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in law, arbitrary and thus violative of Articles 14, 16 and 21 of the Constitution of India.

(B) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction directing or commanding the respondent authorities to reconsider the case of the petitioner for being promoted to the next higher posts of Range Forest Officer and promote them to the next higher post from the date their juniors are promoted with all the consequential benefits, including arrears of pay and allowances;

(C) Pending admission and final hearing of the present petition, Your Lordships may be pleased to direct the respondent authorities to reconsider the cases of the petitioners for promotion to the next higher posts of Range Forest Officer by convening a review Departmental Promotion Committee; and

(D) xxxx"

2. The petitioners filed these petitions on the basis of

the facts that the petitioners are presently working as

Foresters in the Surat Circle of the Forest Department and

they have put in 12 years of service in the posts of Forester;

the next higher promotional post is Range Forest Officer

Class II in the Gujarat Forest Service and the said

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promotion is to be made on the basis of seniority-cum-fitness;

that the petitioners have fulfilled the requisite standards

prescribed for being found fit for being promoted to the next

higher promotional posts of Range Forest Officer i.e. they

have completed 12 years of service without any adverse

remarks in their Confidential Reports, they have also passed

in the prescribed departmental examination and qualifying

examination for computer knowledge in accordance with the

provisions of the Gujarat Civil Services Computer Competency

Training and Examination Rules, 2006; that the Departmental

Promotion Committee (DPC) met on 27.5.2020 to consider the

fitness of Foresters within the zone of consideration for being

promoted to the posts of Range Forest Officer, Class II in

Gujarat Forest Service and names of the petitioners were

placed in the said list of foresters who were found `FIT' by the committee; however, by notification dated 22.9.2020 issued

by the Forests and Environments. Department, 118 foresters

were promoted to the posts of Range Forest Officer, Class II,

Gujarat Forest Service, however, the names of the petitioners

were excluded from the aforesaid list and they were

superseded by the said selected persons; that the petitioners

made a representation to the Additional Chief Secretary,

Forests and Environment Department on 24.9.2020 bringing

to his notice their grievance of superseding them in the

matter of promotion, but as no positive response was

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received, these petitions are filed.

3. Heard learned advocates for the parties.

3.1 Learned advocate for the petitioners has submitted

that though the petitioners were found `FIT' by the

committee for promotion, they were not promoted and 118

other similarly placed foresters were promoted including

juniors vide order dated 22.9.2020; that no separate order or

reasons were ever supplied for excluding the petitioners; that

there was no pending departmental proceeding, no subsisting

penalty of the present petitioners when the said promotion

order was issued and the status of `fit' was already granted;

the petitioners were granted promotion vide notification dated

28.9.2022 though they were entitled for promotion from 22.9.2020; that the petitioners had submitted CCC certificates

(basic computer literacy) from institutes that were later

declared unrecognized and the petitioners were already

penalised for this though minor punishments of withholding

of one increment without future effect and subsequently, valid

CCC certificates were submitted and accepted by the

department; and the petitioners were again penalised by

denial of promotion for the same incident and this is the

ground that is taken by the respondent authorities to deny

them promotion with effect from 22.9.2020.

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3.2 Learned advocate for the petitioners further

submits that double jeopardy in disciplinary matters is

impermissible; once punished, an employee cannot be

punished again indirectly through administrative exclusion

from promotion; that the promotion to the post of Range

Forest Officer is governed by Recruitment Rules and the

rules do not bar consideration on the ground that a minor

penalty is imposed in the past and when the DPC sat in

2020 after the penalty order was accepted and served by the

petitioners, there is no reason to exclude the petitioners for

consideration to the post of Range Forest Officer with effect

from 22.9.2020; that the petitioners are seeking promotion

from the date when their juniors were promoted i.e. 22.9.2020

with all consequential benefits, such as seniority and notional

fixation of pay. She, therefore, prayed to allow these petitions.

4. Per contra, learned AGP for the respondents-

authorities, at the outset, submitted that since some

developments have taken place during the pendency of these

petitions and therefore these petitions would not survive. He

submitted that the DPC meeting was held on 27.5.2020 and

were considered `FIT' for promotion and the names of the

petitioners were sent for recommendation by the Gujarat

Public Service Commission and as the departmental

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proceedings had been initiated and finally culminated into

penalty orders, certain clarifications were sought by the

Commission and five petitioners were recommended fit for

promotion and Smt.Anitaben Baria's case was kept in sealed

cover owing to charge sheet against her by police in case of

fake CCC certificate, while concurrence between the

department and commission was going on, another DPC met

on 22.11.2021 and it has recommended adhoc promotion to

Smt.Antaben Baria owing to chargesheet against her by police

in case of fake CCC certificate; after concurrence between

department and commission, five petitioners were

recommended fit for promotion and Smt.Anitaben Baria was

recommended for adhoc promotion by the commission; they

were promoted to the post of Range Forest Officer, Class II

vide notification dated 28.9.2022 issued by the Forest and Environment Department, Government of Gujarat. He,

therefore, submitted that as the grievance of the petitioners

has been redressed to a great extent, these petitions are

required to be disposed of.

4.1 Learned AGP has relied on the decision in the

case of Union of India V/s K.V.Jankiraman reported in 1991(0) AIJEL-SC 32896, more particularly, paragraph 8 in support of his submissions.

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5. I have heard learned advocates for the parties and

perused the material on record.

6. The only grievance of the petitioners in these

petitions is that the petitioners were not promoted vide order

dated 22.9.2020 though they were found `FIT' by the DPC

which met on 27.5.2020. There is no base or document

expressively on the record in support of the submission of

the learned advocate for the petitioners that they were not

promoted on the ground that earlier the petitioners had

submitted CCC examination certificates from institutes that

were later declared unrecognized, though they were already

penalised for this through minor punishments of withholding

of one increment without future effect. Further, from the

documents produced on the record, after the DPC of 27.5.2020, the letter was written to the Additional Chief

Secretary on 3.7.2020 by the Joint Secretary, Gujarat Public

Service Commission to consider the confidential reports from

the year 2015-16 to 2019-20 instead of 2014-15 to 2018-2019

as is done by the DPC and after reconsideration, the final

list was published.

7. At this stage, the reference to the judgment cited

by learned AGP in the case of K.V.Jankiraman (supra),

would be fruitful at this stage. In paragraph 8 of the said

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judgment, the Hon'ble Apex Court has observed as under:

"......To qualify for promotion, the least that is expected of an employee is to have an unblemished record. That is the minimum expected to ensure a clean and efficient administration and to protect the public interests. An employee found guilty of a misconduct cannot be placed on bar with the other employees and his case has to be treated differently. There is, therefore, no discrimination when in the matter of promotion, he is treated differently. The least that is expected of any administration is that it does not reward an employee with promotion retrospectively from a date when for his conduct before that date he is penalised in praesenti. When an employee is held guilty and penalised and is, therefore, not promoted at least till the date on which he is penalised, he cannot be said to have been subjected to a further penalty on that account. A denial of promotion in such circumstances is not a penalty but a necessary consequence of his conduct. In fact, while considering an employee for promotion his whole record has to be taken into consideration and denies him the promotion, such denial is not illegal and unjustified. If further, the promoting authority can take into consideration the penalty or penalties awarded to an employee in the past while considering his promotion and deny him promotion on that ground, it will be irrational to hold that it cannot take the penalty into consideration when it is imposed at a later date

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because of the pendency of the proceedings, although it is for conduct prior to the date the authority considers the promotion. For these reasons, we are of the view that the Tribunal is not right in striking down the said portion of the second sub-paragraph after clause (iii) of "paragraph 3 of the said Memorandum. We, therefore, set aside the said findings of the Tribunal."

8. In view of the above, even if it is believed that

the promotion was not granted because of the penalty levied

for misconduct earlier, then also, on revised scrutiny by the

DPC for considering the confidential reports from the year

2015-16 and 2019-20, then also the denial of promotion in

such circumstances is not a penalty but a necessary

consequence of their conduct and it is irrational to hold that

it cannot take the penalty into consideration. Further, the subsequent development during the pendency of this petition,

the petitioners were promoted vide order dated 28.9.2022 on

being found fit for the same.

9. Considering the totality of facts and circumstances

of the case, these petitions are required to be dismissed and