Gujarat High Court

Kishor Dhirajlal Gajjar vs Secretary, Road And Building ... on 24 November, 2025

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                     R/SPECIAL CIVIL APPLICATION NO. 18854 of 2018

                                                      With
                         CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 2 of 2021
                                In R/SPECIAL CIVIL APPLICATION NO. 18854 of 2018

                      FOR APPROVAL AND SIGNATURE:


                      HONOURABLE MR. JUSTICE MAULIK J.SHELAT
                      ==========================================================

                                   Approved for Reporting                             Yes           No
                                                                                       ✓
                      ==========================================================
                                        KISHOR DHIRAJLAL GAJJAR & ANR.
                                                    Versus
                                SECRETARY, ROAD AND BUILDING DEPARTMENT & ANR.
                      ==========================================================
                      Appearance:
                      DECEASED LITIGANT THROUGH LEGAL HEIRS/ REPRESTENTATIVES
                      for the Petitioner(s) No. 1
                      MR HARDIK H PANDIT(5820) for the Petitioner(s) No. 1.1
                      MR. PARTH PATEL, AGP for the Respondent(s) No. 2-STATE
                      NOTICE SERVED for the Respondent(s) No. 1
                      ==========================================================

                         CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT

                                                             Date : 24/11/2025
                                                             ORAL JUDGMENT

1. The present writ petition is filed by the present

petitioner under Articles 14, 16, and 226 of the

Constitution of India, inter alia, seeking the following

reliefs:

"(A)YOUR LORDSHIP be pleased to admit the special civil application.

                               (B)YOUR           LORDSHIP              be       pleased       to       issue





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                               appropriate         writ      order    or       direction   which         the

Hon'ble Court may deem fit to quash and set aside the order dtd 24/08/2018 rejecting application dtd 19/08/2017 for granting deemed 11/08/2005 and further be pleased to passed an order by directing the Respondent to grant deemed date 11/08/2005 and release all retrial financial benefits with effect from 11/08/2005 in favor of petitioner for the post of Deputy Executive Engineer.

                               (C)YOUR           LORDSHIP             be        pleased      to       issue
                               appropriate         writ      order    or       direction   which         the

Hon'ble Court may deem fit and be pleased to grant all retrial financial benefits of deemed date of 11/08/2005 with effect from 11/08/2005 with 12% from 11/08/2005 till disbursement.

(D) Such other and further relief in the necessary and interest of justice be granted."

2. SUBMISSIONS ON BEHALF OF THE

PETITIONER:

2.1. Mr. Hardik H. Pandit, learned counsel for petitioner

would submit that though petitioner was appointed on

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09.08.1968 as an Additional Assistant Engineer in Roads

and Buildings Department of the State of Gujarat, until

he retired from his service on reaching the age of

superannuation on 31.03.2006, he was not granted any

promotion; thereby, respondents have committed gross

illegality, having denied the legitimate right of petitioner

to secure promotion.

2.2. Learned counsel Mr. Pandit would submit that

during service, petitioner was subjected to different set of

departmental inquiries, thereby denied promotion to

higher post, thus, petitioner victimized due to the act of

the respondents. It is submitted that in the past, when

the case of petitioner required to be considered for promotion, a reason was cited by the respondent that

due to the pendency of a departmental inquiry, and due

to serving charge sheet dated 12.05.2000 upon petitioner,

his candidature was not considered for higher promotion;

thereby he approached this Court by way of Special Civil

Application No. 4160 of 2005, wherein this Court, vide

its order dated 15.03.2005, directed the respondent to

complete the inquiry as expeditiously as possible,

whereby the right of petitioner to be considered for

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promotion may not be jeopardized. It is further

submitted that the Departmental Promotion Committee

(DPC) met on 18.05.2003 and 28.06.2004, and due to the

pendency of the inquiry, the case of petitioner was put

in a sealed cover. It is further submitted that in such

inquiry, penalty order was passed by the respondent vide

its order dated 01.04.2005, whereby one increment of

petitioner with future effect was stopped. It is

respectfully submitted that considering such penalty,

which would be minor in nature, petitioner could have

been promoted thereafter, but the respondents have

deliberately not acted bona fidely, rather not taken into

account its own resolution dated 18.03.1998 (Annexure-J).

2.3. Learned counsel Mr. Pandit would further submit

that petitioner had also preferred one writ petition being

Special Civil Application No. 14230 of 2005, wherein also

this Court, vide its order dated 14.11.2005 while

admitting said writ petition, directed the respondent to

open the sealed cover. It is submitted that even after

the opening of the sealed cover, petitioner was not given

any promotion and thus, on request made by petitioner

before this Court in the very petition, to approach the

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respondent authority to consider the case of petitioner for

deemed promotion, having reached the age of

superannuation, this Court while disposing of the

aforesaid petition, vide its order dated 31.07.2017,

permitted petitioner to approach the respondent authority

to grant deemed promotion.

2.4. Learned counsel Mr. Pandit would state that on

approaching the respondent authority with necessary

application, the impugned order dated 24.08.2018 came to

be passed by the respondent authority, whereby it

wrongly rejected the claim of petitioner, inasmuch as,

despite the aforesaid orders/judgments passed by this

Court, respondents have acted in complete denial of the claim of petitioner to give deemed promotion. It is

submitted that when the aforesaid punishment order

dated 01.04.2005 was inflicted, whereby penalty of one

increment with future effect was imposed upon petitioner,

at that point of time, there was no departmental inquiry

pending against petitioner as no charge sheet served

upon petitioner for any alleged misconduct. It is

submitted that the subsequent departmental inquiry

ought to have been commenced when the charge-sheet

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was issued on 03.09.2005 and 12.09.2005 by the

respondent upon petitioner. It is respectfully submitted

that as per the settled legal proposition of law, when

there was no inquiry pending against petitioner, when

the case of petitioner for deemed promotion was to be

considered, respondents under legal obligation to grant

the relief of deemed promotion to petitioner.

2.5. Learned counsel Mr. Pandit would respectfully

submit that respondents have erroneously observed that

as there was contemplation of an inquiry to be initiated

against petitioner in pursuance to the Vigilance

Commission's report dated 03.01.2005 and 29.03.2005,

such could not have been ground to deny promotion to petitioner.

2.6. Making the above submissions, learned Advocate Mr.

Pandit would request this Court to allow the present

writ application.

2.7. To buttress his arguments, he has placed relied

upon the following judgments:

(a) Coal India Limited Versus Saroj Kumar Mishra

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reported in 2007 (0) AIJEL-SC 39096 (equivalent

citation :- 2007 (9) SCC 625), more particularly,

paragraph 22 thereof is relevant.

(b) Vyomesh Natvarlal Shah versus State of Gujarat

reported in 2016 (0) AIJEL-HC 236553, more

particularly, paragraph 26 thereof is relevant.

3. SUBMISSIONS ON BEHALF OF THE

RESPONDENT:-

3.1. Conversely, learned Assistant Government Pleader

(AGP) Mr. Parth Patel for the respondent-State would

vehemently oppose the present writ petition on the ground that there is no merit in the claim of petitioner

seeking deemed promotion, inasmuch as, petitioner was

correctly denied the benefit of promotion. It is submitted

that when the DPC met on 18.05.2003 and 28.06.2004,

departmental inquiry was undisputedly pending against

petitioner and so, his candidature was correctly kept in

sealed cover as per Government Resolution dated

23.09.1981.

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3.2. Learned AGP Mr. Patel would further submit that

before the punishment order in the previous inquiry

inflicted upon petitioner on 01.04.2005, a vigilance report

against petitioner recommending the initiation of another

departmental inquiry submitted to the respondent

authority on 03.01.2005 and 29.03.2005 respectively, and

in pursuance to such report, charge-sheet came to be

served upon petitioner on 03.09.2005 and 12.09.2005

respectively; thus, when the sealed cover was opened as

per the order passed by this Court, petitioner was

subjected to the pending inquiry report. It is further

submitted that as recorded in the impugned order, on

completion of such inquiries, petitioner was found guilty

of committing serious misconduct whereby, further inflicted with penalty of recovery of a certain amount to

be deducted from his pension, as petitioner retired from

his service. So, learned AGP would respectfully submit

that petitioner is not entitled to claim any relief as

prayed for in the present petition.

3.3. Learned AGP Mr. Patel would further respectfully

submit that as per the Government Resolution dated

02.04.1983 (Annexure-H), as applied to the case on hand,

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even in a case where any departmental proceedings is

proposed to be initiated against an employee, the

candidature of such employee for future promotion

requires to be kept in a sealed cover. It is submitted

that in view of the aforesaid resolution which was

prevailing in the year 2005 as well, it can be gainsaid

that petitioner is not entitled to claim and receive

promotion.

3.4. Learned AGP Mr. Patel would further submit that

as per the settled dictum, when any inquiry is

contemplated against a delinquent and ultimately within

a reasonable time, the employer issued with charge sheet

in this regard, the delinquent cannot claim that his case cannot be put in the sealed cover. It is further

submitted that promotion is not a fundamental right to

be claimed by an employee, but if ultimately, the

employee is found suitable for promotion by the employer

then, he would be entitled to get promotion, otherwise

not.

3.5. Lastly, learned AGP would submit that considering

the entire facts and circumstances of the case and when

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during his service tenure, petitioner was subjected to

several inquiries, wherein he was found guilty thereby,

awarded penalty wherein none is minor penalty, and

having none of such penalty order challenged before a

Court of law, thereby, petitioner cannot claim deemed

promotion.

3.6. Making the above submissions, learned AGP Mr.

Patel would request this Court to dismiss the present

writ application.

3.7. To buttress his arguments, he has placed relied

upon the following judgments:

(a) Union of India versus Kewal Kumar reported

in 1993 LawSuit (SC) 365 (equivalent citation is

1993 (3) SCC 204), more particularly, paragraphs 4

and 5 thereof.

(b) Union of India versus K.V. Jankiraman reported

in 1991 (0) AIJEL-SC 32896 (equivalent citation is

1991 (4) SCC 109), more particularly, paragraph 8

thereof.

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reported in 1993 (2) GLR 1418, more particularly,

paragraphs 13 and 14 thereof.

3.8 No other and further submissions are made.

POINTS FOR DETERMINATION:-

4. The short question falls for my consideration is as

to whether, considering the facts and circumstances of

the case,

(i) whether petitioner is entitled to claim deemed promotion as prayed in the present petition?

(ii) whether the order impugned passed by the respondent dated 24.08.2018 is erroneous, perverse, and contrary to law; or not?.

ANALYSIS:-

5. To decide the aforesaid questions, few facts need

consideration by this Court, which are as follows:

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6. Petitioner was appointed on 09.08.1968 as an

Additional Assistant Engineer in Roads and Buildings

Department at Ahmedabad, and retired from his service

on the very post on 31.03.2006, having not been

promoted by the respondent.

7. The reason for denying promotion to petitioner was

pending inquiries initiated against him which culminated

into penalties which are not minor in nature, it would

discuss in later part of this judgement. As can be seen

from the pleadings of the parties and the documents

made available on the record of this case that when the

DPC met for the promotional exercise on 18.05.2003 and 28.06.2004, undisputedly, there was one inquiry initiated

against petitioner in the year 2000 which was pending;

thus, his case was correctly put in a sealed cover.

8. Before inflicting the punishment of stoppage of one

increment with future effect on 01.04.2005 upon

petitioner by the respondent, as per the Vigilance

Commission's report dated 03.01.2005 and 29.03.2005, it

was recommended to initiate departmental inquiry

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against petitioner. On receiving such vigilance report, and

as can be seen from reading paragraph-7 of the

impugned order dated 24.08.2018 of the respondent that

on 24.01.2005, it was decided to initiate departmental

inquiry proceedings against petitioner.

9. As per Government Resolution dated 02.04.1983

which was prevailing in the year 2005 (no dispute raised

by petitioner in this regard), wherein it has been so

stated that if any departmental proceeding is proposed to

be initiated against an officer, who is considered for

promotion by the Departmental Promotion Committee

(DPC) at the appropriate time, in such a situation, the

findings of the committee are to be kept in a sealed cover and the same shall be opened after the conclusion

of the disciplinary proceeding. Petitioner is unable to

point out any contrary Government Resolution than the

aforesaid.

10. Thus, in view of the aforesaid Government

Resolution, it would be clear like a day that in a case

where any departmental proceeding is proposed to be

initiated against any officer who is required to be

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considered for promotion by the DPC, his case is

required to be kept in a sealed cover.

11. As stated hereinabove, the department concerned

had already accepted the recommendation of the

Vigilance Commission report for initiation of an inquiry

against petitioner as far back as on 24.01.2005, which

followed with charge-sheet issued on 03.09.2005 and

12.09.2005, as the case may be; the case of petitioner

was required to be kept in sealed cover and could have

been re-opened on the conclusion of the inquiry.

12. In light of the aforesaid peculiar facts and

circumstances and in view of the aforesaid Government Resolution dated 02.04.1983, when decision to initiate the

departmental inquiry was taken on 24.01.2005, i.e., prior

to passing punishment order on 01.04.2005, there was no

reason for the respondent to open the sealed cover after

01.04.2005.

13. It is true that as per the order dated 14.11.2005

passed by this Court in Special Civil Application No.

14230 of 2005, the respondents were directed to open the

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sealed cover despite noticing the fact that charge-sheets

dated 03.09.2005 and 12.09.2005 were already issued.

Nonetheless, the order would not remotely suggest that

irrespective of the pendency of such inquiries against

petitioner, any direction was issued by this Court to

grant promotion in favour of petitioner.

14. The sealed cover opened as per the aforesaid order

dated 14.11.2005 of this Court, but due to the pendency

of the inquiry against petitioner, the respondent did not

thought it fit to grant him promotion. According to me,

there cannot be any illegality committed by respondent

having not considered petitioner suitable to grant him

promotion.

15. At this stage, it would be apt to refer to pertinent

and relevant observations of the Hon'ble Apex Court in

the case of K.V. Jankiraman (supra), wherein the Hon'ble

Apex Court has in paragraph 8 observed and held thus:

"8. ... According to us, the Tribunal has erred in holding that when an officer is found guilty in the discharge of his duties, an imposition of penalty is all that is necessary to improve his conduct and to enforce discipline and ensure purity in the administration. In

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the first instance, the penalty short of dismissal will vary from reduction in rank to censure. We are sure that the Tribunal has not intended that the promotion should be given to the officer from the original date even when the penalty imparted is of reduction in rank. On principle, for the same reasons, the officer cannot be rewarded by promotion as a matter of course even if the penalty is other than that of the reduction in rank. An employee has no right to promotion. He has only a right to be considered for promotion. The promotion to a post and more so, to a selection post, depends upon several circum- stances. To qualify for promotion, the least that is expect- ed 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 par with the other employees and his case has to be treated differently. There is, therefore, no discrimi- nation when in the matter of promotion, he is treated dif- ferently. The least that is expected of any administration is that it does not reward an employee with promotion retro- spectively from a date when for his conduct before that date he is penalised in presentii. 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 if a promotion committee takes the penalties imposed upon the employee 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 penal- ties

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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 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."

(emphasis supplied)

16. In view of the aforesaid facts and circumstances

and if the ratio decidenti of the judgment of the Hon'ble

Apex Court in the case of K.V. Jankiraman (supra)

would apply mutatis mutandis to the present proceedings,

I am of the view that no fault can be found with the respondent when not considered the case of petitioner for

promotion.

17. It is also required to be taken note of the fact that

subsequent to the decision of the Hon'ble Apex Court in

the case of K.V. Jankiraman (supra), the Hon'ble Apex

Court has clarified the position so far as to put the

candidature of the delinquent in a sealed cover when

considered for promotion, in a case where the initiation

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of departmental inquiry against the delinquent proposed.

18. It would be profitable to refer and rely upon such

decision which was considered by the Coordinate Bench

of this Court in the case of Shantilal K. Naik (supra),

more particularly, paragraphs 13 and 14 thereof, as

under:

"13. The second part relates to the interim relief with regard to opening of the sealed cover. The facts are not denied. Although the charge-sheet was served after the D.P.C. met, the conscious decision was taken by the Government to initiate disciplinary proceedings before the D.P.C. met. It is not in dispute that the relevant clause in the Government Resolution applicable here also speaks of decision being taken to initiate disciplinary proceeding. Under such circumstances, the sealed cover procedure has been followed in respect of petitioner's promotion to the post of Executive Engineer. The decision that has been followed in this respect consistently by This Court in a single jurisdiction as also in Division Bench jurisdiction is one contained in the case of Union of India Vs. K.V. Jankiraman, etc. etc., , which has been relied upon by Mr. Oza, learned Advocate for petitioner. In reply, Mr. Sompura, learned A.G.P. has relied upon a decision contained in the case of Delhi Development Authority Vs. H.C. Khurana, reported in JT 1993 (2) SC 695 : (1993) 3 SCC 196. Another decision that has been referred to is in the case of

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Union of India Vs. Kewal Kumar, reported in JT 1993 (2) SC 705 : (1993) 3 SCC 204. The clause fur following sealed cover procedure in Jankiraman's case was as under:

"Government servants in respect of whom disciplinary proceedings are pending or a decision has been taken to initiate disciplinary proceedings."

Explaining this clause the Hon'ble Supreme Court also explained the decision in Jankiraman''s case as stated below in the case of H.C. Khurana (supra):

"8. These words clearly indicate that the sealed cover procedure was applicable, in cases where the ''disciplinary proceedings are pending'' in respect of the Government servant, or ''a decision has been taken to initiate disciplinary proceedings''. Thus, on a decision being taken to initiate disciplinary proceedings, the guidelines attract the sealed cover procedure. The reason is obvious-Where a decision has been taken to initiate the disciplinary proceedings against a Government servant, his promotion, even if he is found otherwise suitable, would be incongruous, because a Government servant under such a cloud should not be promoted till he is cleared of the allegations against him, into which an inquiry has to be made according to the decision taken. In such a situation, the correctness of the allegation being dependent on the final outcome of the disciplinary proceedings, it would not be fair to

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exclude him from consideration for promotion till conclusion of the disciplinary proceedings, even though it would be improper to promote him, if found otherwise suitable, unless exonerated. To reconcile these conflicting interests, of the Government servant and public administration, the only fair and just course is, to consider his case for promotion and to determine if he is otherwise suitable for promotion, and keep the result in abeyance in sealed cover to be implemented on conclusion of the disciplinary proceedings, to promote him with all consequential benefits, if found otherwise suitable by the Selection Committee. On the other hand, giving him promotion after taking the decision to initiate disciplinary proceedings, would be incongruous and against public policy and principles of good administration. This is the rationale behind the guideline to follow the sealed cover procedure, to prevent the possibility of any injustice or arbitrariness.

9. The question now, is: What is Stage, when it can be said, that a decision has been taken to initiate disciplinary proceedings? We have no doubt that the decision to initiate disciplinary proceedings cannot be subsequent to the issuance of the charge-sheet, since issue of the charge-sheet is a consequence of the decision to initiate disciplinary proceedings Framing the charge-sheet, is the step taken for holding the inquiry into the allegations, on the decision taken to initiate disciplinary proceedings. The charge-sheet is

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framed on the basis of the allegations made against the Government servant; the charge-sheet is then served on him to enable him to give explanation; if the explanation is satisfactory, the proceedings are closed and the Government servant exonerated, but if the charges are proved, the penalty follows. Thus the service of the charge-sheet on the Government servant follows the decision to initiate disciplinary proceedings, and it does not precede or coincide with that decision. The delay, if any, in service of the charge-sheet to the Government servant after it has been framed and despatched, does not have the effect of delay in initiation of the disciplinary proceedings, inasmuch as information to the Government servant of the charges framed against him, by service of the charge-sheet, is not a part of the decision making process of the authorities for initiating the disciplinary proceedings.

(Emphasis supplied)

In para 11 Jankiraman''s case (supra) has been explained in the following manner:

11. The decision in Jankiraman is based inter alia, on

0.M. dated 12-1-1988. The facts of the cases dealt with in the decision in Jankiraman do not indicate that the Court took the view, that even though the charge-sheet against the Government servant was framed and direction given to despatch the same to

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the Government servant as a result of the decision to initiate disciplinary proceedings taken prior to the meeting of the D.P.C. that was not sufficient to attract the sealed cover procedure merely because service of the charge-sheet was effected subsequent to the meeting of the D.P.C. Moreover, in Jankiraman itself, it was stated thus:

14. To bring the record up to date, it may be pointed out that in view of the decision of This Court in Union of India (UOI) Vs. Tejinder Singh, , decided on September 26, 1986, the Government of India in the Department of Personnel and Training issued another Office Memorandum No. 22011/2/86. Estt. (A) dated January 12, 1988 in supersession of all the earlier instructions on the subject including the Office Memorandum dated January 30, 1982...

A further guideline contained in this Memorandum is that the same sealed cover procedure is to be applied where a Government servant is recommended for promotion be the D.P.C. but before he is actually promoted, he is either placed under suspension or disciplinary proceedings are taken against him or a decision has been taken to initiate the proceedings or criminal prosecution is launched or sanction for such prosecution has been issued or decision to accord such sanction is taken."

(emphasis supplied)

19. It can thus be seen from the aforesaid

pronouncement of law, in a case where a decision to

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initiate any departmental proceeding against a delinquent

is taken by the employer, the guideline of sealed cover

procedure ipso facto attracts.

20. So, the judgments pressed into service by learned

counsel Mr. Pandit for petitioner in support of his

submissions, would not be helpful to the case of

petitioner and even otherwise, considering aforesaid facts

and circumstances, would not apply at all.

21. Lastly, it can be seen from the impugned order that

on completion of the inquiry pursuant to the charge

sheet dated 03.09.2005 concluded by the respondent post-

retirement of petitioner, whereby petitioner was found guilty of misconduct for which he was charged, whereby

penalty was inflicted upon him vide order dated

01.11.2007, which was not a minor penalty as Rs.600/-

p.m. ordered to be deducted from his pension for 18

months. Even otherwise, it would not fall/cover in Rule 6

(1), (2) or, (3) of Gujarat Civil Services (Discipline and

Appeal) Rules, 1971 (herein after referred as "Rules, 1971").

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22. Learned advocate Mr. Pandit during course of his

submission relied upon Government Resolution dated

18.03.1998 (Annexure-J) whereby would contend that in a

case of minor penalty, department should not take this

into account while considering case of petitioner for

promotion. As can be seen from aforesaid penalties

inflicted upon petitioner be it on 01.04.2005 or post

retirement on 01.11.2007, by no stretch of imagination, it

can be considered as minor penalty.

23. The petitioner inflicted penalty of stoppage of one

increment with future effect on 01.04.2005 then as per

settle legal position of law, it would not be considered as

minor penalty and not fall/cover in Rule 6 (2) of Rules, 1971 [See - PUNJAB STATE ELECTRICITY BOARD NOW PUNJAB STATE POWER CORPORATION LIMITED VS. RAJ KUMAR GOEL, (2014) 15 SCC 748, KULWANT SINGH GILL VS. STATE OF PUNJAB AND HARYANA, 1991 Supp1 SCC 504, N K KARANGIA VS. STATE OF GUJARAT AND ORS reported in 2012 (5) GLR 4296, ISHWARLAL C. PATEL VS. DISTRICT COLLECTOR, 1992 (1) GLH 10].

24. So, in view of aforesaid, I am not at all impressed

by any of submissions of learned advocate Mr. Pandit

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and as such, petitioner has not made out any case to

even sought for deemed promotion, rather I am in

complete agreement with the impugned order dated

24.08.2018 passed by respondent as it is neither

erroneous nor perverse, less not even arbitrary. Point No.

(i) & (ii) answered accordingly.

CONCLUSION:-