Gujarat High Court

Chandrakant Karshanbhai Zala vs State Of Gujarat on 22 July, 2025

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                               C/SCA/105/2020                                         ORDER DATED: 22/07/2025

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                                      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                         R/SPECIAL CIVIL APPLICATION NO. 105 of 2020

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                                                    CHANDRAKANT KARSHANBHAI ZALA
                                                                Versus
                                                       STATE OF GUJARAT & ANR.
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                        Appearance:
                        MR VAIBHAV A VYAS(2896) for the Petitioner(s) No. 1
                        MR PARTH PATEL, AGP for the Respondent(s) No. 1 - State
                        LAW OFFICER BRANCH(420) for the Respondent(s) No. 2
                        MR R.D. KINARIWALA(6146) for the Respondent(s) No. 2
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                          CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                                               Date : 22/07/2025

                                                                ORAL ORDER

1. The present petition under Article 226 of the

Constitution of India is filed by the petitioner with the

following main prayers.

"8(A) Direct the respondent authorities to grant promotion to the petitioner to the post of Deputy Registrar with deemed date of promotion w.e.f. 13.08.2015, i.e. the date on which the persons junior to the petitioner came to be promoted to the said post and grant all consequential benefits including the arrears of pay and allowances, with interest at the rate which the Honourable Court may consider as just and proper;

(B) Direct the respondent authorities to grant the benefit of Shetty Pay Commission to the

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petitioner as per the entitlement of the petitioner and grant the consequential benefits including the arrears of pay and allowances, with interest at the rate which the Honourable Court may consider just and proper;"

2. The brief facts of the case are as under :

2.1 The petitioner came to be appointed as English

Section Writer on 06.12.1983 and was posted at the Court of

Principal Civil Judge, Dhrol - Jamnagar.

2.2 Due to closure of the said Court, the petitioner

was relieved from service on 01.10.1985.

2.3 The petitioner was issued fresh appointment order

on 05.02.1986 and was posted in the Court of Principal Civil Judge, Dwarka.

2.4 Thereafter, the petitioner was promoted as Junior

Clerk in the year 1987.

2.5 A charge-sheet was issued to the petitioner on

17.06.1997 for the alleged misconduct i.e. misappropriation of

money and departmental inquiry was initiated by the

authorities.

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2.7 With regard to the very charges, a criminal case

was constituted against the petitioner being Criminal Appeal

No.876 of 1997, where charges for the offences punishable

under Sections 409, 466, 467 read with 468, 471, 477A and

120B of the IPC were alleged.

2.8 The petitioner was exonerated from the charges

levelled against him vide order dated 31.07.2000 in the

departmental proceeding.

2.9 He was promoted as Senior Clerk (Superintendent)

on 20.09.2006.

2.10 During the pendency of the criminal proceeding,

the persons junior to the petitioner came to be promoted to

the next higher post vide order dated 13.08.2015, wherein it was specifically stated that the said promotions are subject to

seniority of the petitioner as per the outcome of the criminal

case pending against him.

2.11 Since he was not promoted for the post of Deputy

Registrar, he has made a representation to the respondent

authority on 28.10.2015.

2.14 Pursuant to the said representation, the respondent

authorities vide communication dated 08.02.2016 denied the

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promotion to the petitioner on the ground of pendency of

criminal prosecution and his case can be considered after

conclusion of the said criminal case.

2.13 Respondent No.1 - State has issued GR on

29.10.2015 and implemented the recommendations of the

Shetty Pay Commissioner for non-judicial staff of the

subordinate Court of the State w.e.f. 01.04.2003.

2.14 The Advisory Committee of respondent No.2 held

on 29.03.2016 denied the promotion to the petitioner.

2.15 Thereafter, as per the recommendations of the

Shetty Pay Commission, the benefits of revised pay-scales

were granted to all the employees working in the Subordinate

Courts vide order dated 11.04.2016 by the respondent authorities.

2.16 The petitioner was denied the said benefits.

Therefore, he has made a representation to the respondent

authorities on 21.04.2016 for the same, which was filed by

the respondent authorities and accordingly, informed the

petitioner on 19.05.2016.

2.17 The petitioner made a representation to the

respondent authorities on 12.07.2016 relying upon the GR

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dated 14.06.2016.

2.18 The petitioner was acquitted by the competent

Criminal Court vide judgment dated 27.03.2018.

2.19 After that order of acquittal, the petitioner made a

representation to the respondent authorities on 30.03.2018

and thereby requested for promotion to the post of Deputy

Registrar / Head Clerk with deemed date. He has also

requested the respondent authorities that the benefits of

Shetty Pay Commissioner may also be given to him.

2.20 On 06.04.2018, the petitioner has made an

application to the respondent authorities and requested for

the benefits of revised pay-scale as per the recommendations

of the Shetty Pay Commission. By the very application, the petitioner has 'not pressed' his right for promotion which

were given to other employees by the respondent authorities

vide order dated 13.08.2015.

2.21 The meeting of the Advisory Committee of

respondent No.2 was held on 25.04.2018 and reviewed the

application and undertaking of the petitioner.

2.22 Pursuant to the decision of the said Committee,

the petitioner was promoted to the post of Bench Clerk,

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Class-II on 27.04.2018.

2.23 The petitioner has retired from service on

30.04.2018 on attaining the age of superannuation.

2.24 After the retirement, the petitioner has made an

application on 20.09.2018 to the respondent authorities for

giving benefits of revised pay-scale recommended by the

Shetty Pay Commission.

2.25 The petitioner was informed by the respondent

authority vide communication dated 15.02.2019 that his

application dated 20.09.2018 is filed on the ground that he is

granted the benefit as per the Jun-Judicial Staff Recruitment

and Conditions of Services Rules, 2017 framed by the High

Court of Gujarat.

2.26 On 09.04.2019, the petitioner made an application

to provide a copy of the decision taken by the Advisory

Committee.

2.27 The respondent authorities has replied vide

communication dated 22.04.2019 that the said copy need not

be provided to the petitioner.

2.28 In these facts, this petition is heard and decided

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by this Court today, with consent of the learned advocates.

3. Heard learned advocates. Rule returnable forthwith.

4.1 Learned advocate Mr.Vaibhav Vyas for the

petitioner has submitted that the action of the respondent

authorities of not granting the benefit of promotion to the

petitioner to the post of Deputy Registrar with deemed date

of promotion is absolutely illegal, arbitrary and

discriminatory, in view of the clarification made in the

promotion order of the juniors to the petitioner dated

13.08.2015; and that the action of not granting the benefit of

Shetty Pay Commissioner which is granted to the other non-

judicial staff working in the subordinate judicial is arbitrary;

and that in view of the exoneration of the petitioner from

the departmental inquiry as well as in the criminal prosecution, the petitioner is entitled to all the consequential

benefits including the benefit of promotion with deemed date

of promotion as well as the benefit of the recommendations

of the Shetty Pay Commission from the ate of his

entitlement as per the policy of the respondent authorities;

and that even the proceedings of the Advisory Committee, it

is specifically recorded by the Departmental Promotion

Committee that the promotions are granted to the juniors of

the petitioner subject to seniority of the petitioner, as

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criminal proceeding was pending against him and therefore,

upon acquittal, the advice of the Departmental Promotion

Committee is required to be acted upon; and that the benefit

of deemed date of promotion is not granted to the petitioner.

He has submitted that this petition may be allowed.

4.2 In support of his submissions, he has relied upon

the decision of the Hon'ble Apex Court in the case of Union

of India versus K.V. Jankiraman reported in (1991) 4 SCC

109, more particularly paras : 26 and 34 thereof, which read

as under :

5.1 Per contra, learned advocate Mr. R.D. Kinariwala for respondent No.2 has vehemently opposed this petition. He

has drawn the attention of this Court towards the affidavit

in reply filed by respondent No.2 and has submitted that the present petition is filed by the petitioner after executing an

undertaking dated 06.04.2018 as well as after obtaining the

benefits of Shetty Pay Commission as per the order dated

27.04.2018; and that respondent No2 has considered the

application of the petitioner dated 06.04.2018 and thereby

granted the benefits which are available to him; and that

after pocketing the said benefits, the present petition si filed

by the petitioner with such prayers, which would not be

entertained by this Court; and that the State has filed an

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appeal before the higher forum and is still pending for

adjudication; and that the petitioner was given promotion

considering the recommendations of Shetty Pay Commissioner

to the post of Deputy Registrar on 27.04.2018; and that the

promotional post got vacated only on 01.04.2018 and

therefore, the promotion was given to the petitioner in April,

2018; and that since the State has filed an appeal against

the order of acquittal and is pending before the higher

forum, the petitioner is not entitled to all the consequential

benefits including the benefits of promotion with deemed date

of promotion as well as the benefits of recommendation of

Shetty Pay Commissioner from the date of his entitlement.

He has submitted that this petition may be dismissed.

5.2 In support of his submissions, he has relied upon

the decision of the Hon'ble Apex Court in the case of

R.Veerabhadram versus Government of A.P. reported in (1999)

9 SCC 43, more particularly para : 10 thereof.

6. Learned AGP Mr.Patel for the State has submitted

that as such, there is no role of respondent No.1 in the

departmental promotion process as well as departmental

inquiry proceedings qua the petitioner. He has submitted that

the State has played its role by challenging the order of

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acquittal passed by the competent Criminal Court before the

higher forum and is pending for adjudication. He has

submitted that no interference be made by this Court. He

has submitted that this petition may be dismissed.

7.1 I have considered the rival submissions made by

the learned advocates for the respective parties. I have

perused the documents available on record. From the record,

it transpires that the controversy revolves around the : (i)

grant of promotion (ii) with deemed date i.e. w.e.f. 13.08.2015

(iii) grant benefits of Shetty Pay Commission and (iv) grant

all consequential benefits including the arrears of pay and

allowances, with interest.

7.2.1 At this stage, reference needs to be made to the

application dated 06.04.2018 made by the petitioner himself before respondent No.2, more particularly para : 2 thereof,

which is quoted as under.

"2. I hereby undertake to 'not press' my application for getting promotion w.e.f. 13.08.2015 mentioned in reference No.2 above, if my application for Shetty Pay Commission is granted as I am giving priority to my application of Shetty Pay Commission."

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7.2.2 From the above, it transpires that there are two

parts of his request; firstly, he waived his right for promotion

with effect from 13.05.2018 and secondly, he claimed for the

benefits of Shetty Pay Commission with effect from his

entitlement.

7.2.3 Under the circumstances, the petitioner himself has

waived his right for the promotion w.e.f. 13.05.2018 i.e. from

the date of his juniors get promotion, by his own application

dated 06.04.2018 noted above. Considering the same, the

Advisory Committee has taken a decision to give promotion

to the petitioner. Accordingly, the petitioner was promoted on

27.04.2018 to the post of Bench Clerk, Class-II in the pay-

scale of Rs.9300-34800 (Grade Pay Rs.4,200/-) by giving

benefits of Shetty Pay Commission.

7.2.4 It is required to be noted that the petitioner has

reached the age of superannuation on 30.04.2018 and thus,

retired on that date.

7.2.5 Further, the promotional post, on which the

petitioner got promotion, got vacant on 01.04.2018 only. Prior

to that, there was no such post available with the respondent

authorities on which the petitioner could be promoted. The

Committee has considered the Non-Judicial Officers and Staff

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of the Courts (Recruitment and Conditions of Services) Rules,

2017 while considering the case of the petitioner. Such rules

speak for eligibility and entitlement of the employees for

promotion. The respondent authorities has given the benefits

of Shetty Pay Commission to the petitioner.

7.3.1 In view of above, the question of giving promotion

to the petitioner need not be decided as the petitioner was

already promoted on 27.04.2018.

7.3.2 The another questions that it would be 'w.e.f.

13.08.2015' and with deemed date, need not be decided as

the petitioner himself has waived off his right vide his

application dated 06.04.2018. Therefore, the said questions

also need not be decided.

7.3.3 The respondent authorities has extended the

benefits of Shetty Pay Commission while considering his

case for promotion to the post of Bench Clerk, Class-II and

therefore, the same need not be decided any further.

7.3.4 The question of granting all consequential benefits

including the arrears of pay and allowances, with interest

need not be decided as the petitioner himself has waived off

his right and the respondent authorities have considered the

case of the petitioner and granted promotion on 27.04.2018 as

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he would be retiring on 30.04.2018.

7.4 At this stage, it would be fruitful to refer to the

decision of the Hon'ble Apex Court in the case of R.

Veerabhadram versus Government of A.P. reported in (1999)

9 SCC 43, more particularly, para : 10 thereof, which reads

as under.

"10. It is next contended that the appellant should be granted a deemed promotion to the post of Joint Secretary prior to his retirement. The promotion to the post of Joint Secretary is a promotion by selection and not by seniority. The appellant, therefore, cannot claim any promotion from the date on which his junior was promoted, since the basis for promotion is selection and not seniority. The appellant, however, has relied upon a decision of this Court in Sulekh Chand & Salek Chand V/s. Commissioner of Police, reported in 1994 Supp (3) SCC 674. In that case also, the appellant had been charged with an offence under the Prevention of Corruption Act and he was kept under suspension. However, when his turn came for promotion, he was considered for promotion but he was promoted at a later date in view of the criminal proceedings which ultimately ended in his acquittal. The Court held that once there was an acquittal, he was entitled to reinstatement as if there were no blot on his

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service. The material on the basis of which his promotion was denied, did not now subsist and he should be promoted on the basis of the Departmental Promotion Committee's findings. In the present case the appellant was not considered for selection because of the pending criminal proceedings. Since the promotional post is a selection post, there is no basis on which he can now claim that he must be deemed to have been selected and hence he should be granted the promotion. There is no basis on which we can hold that he would have been selected when he was eligible for promotion. The decision, in the above case, has no application here. The only other Judgement on which the appellant relied, in this connection is the Judgement of the Rajasthan High Court in Mohan Singh Bhati V/s. State of Rajasthan, reported in (1998) 1 Serv LR 684, where the Court said that after acquittal, the respondent was entitled to reinstatement and all consequential monetary benefits. We fail to see how this decision will help the appellant in the present case. On the contrary, in the State of Mysore V/s. C.R. Seshadri, reported in (1974) 4 SCC 308 : (AIR 1974 SC 460 : 1974 Lab IC

362), this Court has held that if the Rule of promotion is one of sheer seniority, it may well be that promotion is a matter of course. On the other hand, if merit is the rule, promotion is problematical and it would be hazardous to

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assume that by efflux of time, the petitioner would have got the promotion. The Court cannot speculate in retrospect whether the petitioner would have been selected on merit and on the strength of such "dubious hypothesis" direct retro- active promotion and back pay."

7.5 Additionally, it is required to be noted that the

appeal against the acquittal order preferred by the State is

still pending before the higher forum and is awaiting final

adjudication.

7.6 It is very surprising that on one hand, the

petitioner has waived off his right vide application dated

06.04.2018 and got promotion on 27.04.2018 and on the other

hand, the petitioner has approached this Court by filing the present petition. Be that as it may, this Court finds that the

respondent authorities have rightly granted promotion to the

petitioner considering the recommendations of the Shetty Pay

Commission. There is no substance in this petition. This

petition needs to be dismissed.