Gujarat High Court
P.N.Desai vs State Of Gujarat Thro Principal ... on 1 October, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 17718 of 2011
With
R/SPECIAL CIVIL APPLICATION NO. 6040 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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Approved for Reporting Yes No
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P.N.DESAI
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR VAIBHAV A VYAS(2896) for the Petitioner
ME HENIL M SHAH, AGP for Respondents No.1 & 2 - State Authorities
MR PREMAL R JOSHI & MR DEEPAK G SHUKLA, ADVOCATES for the
Respondent No.3 - GPSC
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 01/10/2025
COMMON ORAL JUDGMENT
1.1 Special Civil Application No.17718 of 2011 is
preferred by the petitioner with the following main prayers.
"9. The petitioner respectfully prays that
on the basis of the facts and circumstances
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as mentioned hereinabove and which may
be urged at the time of hearing, the
Honourable Court may be pleased to issue a
writ of mandamus or any other appropriate
writ, order or direction to the respondent
authorities and may be pleased to :-
(A) quash and set aside the impugned
punishment order dated 12.11.2011,
Annexure-A to this petition, and
(B) pending admission and final disposal
of this petition, the Honourable Court may
be pleased to grant mandatory injunction
against the operation, implementation and
execution of the impugned punishment order
dated 12.11.2011, and / or
(C) pending admission and final disposal
of this petition, the Honorable Court may
be pleased to restrain the respondent
authorities from further superceding the
petitioner in the matter of promotion on the
post of Joint Registrar, Co-operative Society,
only on the ground of impugned punishment
order dated 12./11.2011, Annexure-A to this
petition,"
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1.2 Special Civil Application No.6040 of 2010 is filed
by the very petitioner with the following main prayers.
"7. The petitioner respectfully prays that,
on the basis of the facts and circumstances
as mentioned hereinabove and which may
be urged at the time of hearing, the
Honourable Court may be pleased to issue a
writ of mandamus or any other appropriate
writ, order or direction to the respondent
authority and may be pleased to :-
(A) direct the respondent authority to give
effect to the recommendations of the
Departmental Promotion Committee
regarding promotion of the petitioner in the
cadre of Gujarat Cooperative Service Class-I
(Senior Duty) commonly known as Joint
Registrar, Co-operative Society, and
(B) further be pleased to direct the
respondent authority to grant promotion to
the petitioner on the post of Joint Registrar
with dimmed date and all consequential
benefits including areas of pay with effect
from the date on which the person
immediately junior to the petitioner was
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first promoted on the said post, and
(C) direct the respondent authority to drop
the departmental inquiry initiated against
the petitioner vide charge sheet dated
2.4.2005, and
(D) pending admission and final disposal
of this petition, the Honourable Court may
be pleased to direct the respondent
authority to give effect to the
recommendations of the Departmental
Promotion Committee regarding promotion of
the petitioner on the post of Joint Registrar
and further be pleased to direct the
respondent authority to grant promotion to
the petitioner and the post Joint Registrar,
and
(E) pending admission and final disposal
of this petition, the Honorable Court may
be pleased to stay the operation of the
sokos notice dated 17.4.2008 and further be
pleased to restrain the respondent
authorities from taking any action pursuant
to the said show cause notice."
2. The brief facts, as per the petitioner, are
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epitomized as under.
2.1 The petitioner was appointed as direct recruit
Assistant District Registrar (Gujarat Co-operative Service
Class-II) on 28.04.1978.
2.2 The persons, immediately junior to the petitioner,
were promoted on the post of Joint Registrar, however, the
name of the petitioner was not included in the promotion
order.
2.3 In the year 2004, once again, meeting of the
Departmental Promotion Committee was convened on
30.11.2004, however, this time also, the petitioner was not
promoted on the said post and the juniors to the petitioner
were promoted vide order dated 24.06.2005.
2.4 A charge-sheet was issued to the petitioner on
02.04.2005, just before the issuance of actual promotion
orders, for the misconduct alleged to have been committed by
the petitioner in the year 1993-94.
2.5 The departmental inquiry was conducted against
the petitioner, wherein the enquiry officer has submitted his
report holding that the charges levelled against the petitioner
are partly proved.
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2.6 Therefore, a show-cause notice was issued to the
petitioner on 17.04.2008.
2.7 The petitioner had submitted his detailed
representation to the disciplinary authority on 03.06.2008.
2.8 In the next Departmental Promotion Committee,
the case of the petitioner was not considered by the authority
due to pendency of the said departmental inquiry.
2.9 The petitioner has therefore preferred a petition
being Special Civil Application No.6040 of 2010 inter alia
praying as noted hereinabove.
2.10 In the said petition, there is no interim relief
granted by this Court in favour of the petitioner.
2.11 On 23.09.2010, the respondent authorities have
passed the punishment order.
2.12 Since the petition filed by the petitioner being
Special Civil Application No.6040 of 2010 was, in effect,
sought to be made infructuous by the authorities, the
petitioner has preferred Special Civil Application No.16076 of
2010 before this Court, wherein the punishment order dated
23.09.2010 was quashed and set aside by this Court vide
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order dated 27.04.2011 and the disciplinary authority was
directed to give an opportunity of hearing to the petitioner
and thereafter to pass a fresh order.
2.13 Accordingly, the authority had issued show-cause
notice to the petitioner on 20.08.2011 and the petitioner had
responded to the said show-cause notice on 8/9.9.2011.
2.14 The respondent authorities has ultimately passed
the impugned punishment order dated 12.11.2011, whereby
the punishment of reduction in pay by four stages, with
future effect, till the retirement of the petitioner, came to be
imposed upon the petitioner.
2.15 Therefore, the petitioner has challenged the said
impugned order in Special Civil Application No.17718 of 2011.
2.16 In that petition, the Co-ordinate Bench of this
Court has, vide order dated 08.12.2011, issued notice to the
respondents, by observing as under.
"Heard the learned advocate for the
petitioner.
The charges No.7 to 12 have been
established in the Departmental Inquiry,
which appear to be serious and in spite of
teh above, the respondent authority has
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inflicted a punishment of reducing the pay-
scale of teh petitoner only upto four stages
with future effect.
Notice returnable on 26.12.2011."
2.17 The said order dated 08.12.2011, the petitioner had
preferred an appeal being Letters Patent Appeal No.21 of
2012 before the Division Bench of this Court, wherein the
Division Bench has, vide order dated 22.02.2012, passed the
following order.
"1. This Letters Patent Appeal is preferred
against the following order passed by the
learned Single Judge.
"Heard the learned advocate for
the petitioner.
The charges No.7 to 12 have
been established in the Departmental
Inquiry, which appear to be serious
and in spite of the above, the
respondent authority has inflicted a
punishment of reducing the pay-scale of
teh petitoner only upto four stages
with future effect.
Notice returnable on 26.12.2011."
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2. Heard learned advocate Mr.Vaibhav
Vays for the appellant.
3. A plain reading of the order in
question makes it clear that it is only an
interim order and not final one which would
be passed by the learned Single Judge after
hearing both the sides. The order is more or
less assigning reasons for issuance of notice
and under the circumstances, the appeal
does not merit acceptance. The appellant can
very well canvass the points which he has
tried to canvass before us before the learned
Single Judge. The appeal, therefore, stands
dismissed."
2.18 Thereafter, the petition being Special Civil
Application No.17718 of 2011 is admitted by this Court vide
order dated 30.01.2015.
2.19 It is noted that during the pendency of these
petitions, the petitioner has retired by way of superannuation
on 30.09.2012.
2.20 In this background, the petitioner has approached
this Court.
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3. Since the petitioner is same in both these
petitions, the prayers made, contentions raised, averments
made and submissions canvassed by the learned advocates for
the respective parties are interwoven, both these petitions are
heard and decided together by this Court today, with the
consent of the learned advocates for the respective parties.
4. Heard learned advocates.
5. Learned advocate Mr. Vaibhav Vyas for the
petitioner has submitted that the vested interests in the
Government are bent upon to see that the petitioner is not
promoted on the post of Joint Registrar, which they have
successfully done from the year 1997; and that the persons,
who are much juniors to the petitioner, are promoted on the
post of Joint Registrar and few of them have even retired
from the said promotional post, whereas the petitioner who is
senior employee, is not being promoted in an absolutely
illegal and arbitrary manner; and that on the date of
meeting of Departmental Promotion Committee ('the DPC' for
short), no departmental inquiry was either pending or was
under contemplation against the petitioner and therefore, as
by the settled position of law, the authorities could not have
withheld the promotion of the petitioner on the post of Joint
Registrar; and that the subsequent charge-sheet issued to the
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petitioner will not change the complexion of the matter so far
giving effect to the recommendations of the DPC is
concerned; and that it is not even the case of the
Government that the petitioner is not suitable for being
promoted and therefore, the petitioner is entitled to get
promotion on the post of Joint Registrar with deemed date
and all consequential benefits; and that in view of the policy
decision of the Government, which has now been implemented
in case of other officers of the Government, similar treatment
ought to have been given to the petitioner; and that the
action of the respondents authorities of issuing charge-sheet
and conducting departmental inquiry against the petitioner
was with the sole purpose of depriving the petitioner for
being promoted on the post of Joint Registrar; and that
charge-sheet ought not to have been issued to the petitioner
for the charges levelled against the petitioner and in any
case, no case is made out against the petitioner; and that
the authorities have prejudged the issue against the
petitioner; and that the authorities have also acted in an
absolute pervert manner; and that the pendency of the
departmental inquiry is sought to be used against the
petitioner for depriving him of being promoted on the post of
Joint Registrar; and that the action of the respondents
authorities of not promoting the petitioner on the post of
Joint Registrar is illegal, arbitrary and unconstitutional; and
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that the initiation, continuation and pendency of the
departmental inquiry against the petitioner is absolutely
illegal, arbitrary and malafide; and that there has been an
inordinate and unexplained delay in initiation, continuation
and conclusion of the departmental inquiry against the
petitioner which has not only prejudiced the defence of the
petitioner but has adversely affected the career prospects of
the petitioner as well; and that there has been perversity on
the part of the enquiry officer as well as the disciplinary
authority inasmuch as both the authorities have taken into
consideration those material which legally could not have
been taken into consideration and have failed to take into
consideration those material which ought to have been taken
into consideration by the authorities; and that except two
departmental witnesses, no other witnesses are examined by
the department though they were available; and that the
charges levelled against the petitioner cannot be held to be
proved, in absence of examination of the witnesses, who were
available; and that the departmental inquiry against the
petitioner was initiated with the mala fide intention to debar
the petitioner from being promoted on the post of Joint
Registrar; and that the Gujarat Public Service Commission
('the GPSC' for short) has advised the imposition of enhanced
punishment without proper application of mind and the
respondent - Government has mechanically accepted the
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advice of GPSC, without appreciating the representation made
by the petitioner in its true perspective. He has submitted
that these petitions may be allowed.
6. Per contra, learned AGP Mr. Henil M. Shah for
the State Authorities has vehemently opposed these petitions.
He has drawn the attention of this Court towards the
affidavits in reply filed by the State and has submitted that
the authorities have, after following the due procedure as
well as after following the principles of natural justice, as
directed earlier by this Court, passed the impugned orders;
and that in view of the subsequent development, the cause of
Special Civil Application No.6040 of 2010 would not survive
rather would be stated to have merged with the final order
of punishment, which is impugned in Special Civil Application
No.17718 of 2011; and that during the pendency of the
proceedings under challenge in Special Civil Application
No.6040 of 2010, the petitioner was served with another
disciplinary proceeding order of punishment dated 16.03.2012
regarding wrongly claimed travelling allowance, which is the
subject matter of challenge under Special Civil Application
No.13005 of 2016, which is allowed by this Court vide order
dated 10.07.2025 as the petitioner has repaid said amount;
and that during pendency of that petition, the petitioner has
been served with the punishment order dated 21.09.2015
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which is the subject matter of challenge in Special Civil
Application No.16861 or 2015, wherein this Court was pleased
to direct the department to issue fresh show-cause notice and
further to pass fresh order of punishment in accordance with
law; and that pursuant to that order, the punishment order
dated 21.09.2015 has been revised vide order dated
29.06.2016; and that during the pendency of the petitions, the
petitioner has retired on 30.09.2012; and that only one DPC
convened during the tenure between 2010 to 2011; and that
since the petitioner retired in the year 2012, the scope of
seeking promotion from a retrospective date is not available
to the rescue of the petitioner in light of catana of decisions
of the Hon'ble Apex Court as well as of this Court; and that
the petitioner is paid all the retiral benefits, as eligible; and
that since the petitioner has been facing multiple disciplinary
inquiries before the date of retirement and has challenged
punishment orders by preferring various petitions before this
Court, the authority in exercise of powers vested into it
through Gujarat Civil Service (Pension) Rules, 2022, more
particulalry Rule 23 and 24 thereof, has withheld the
proportionate amount of pension as well as gratuity; and that
as per Rule 145, until the Court proceedings are concluded
for a challenge made to the disciplinary proceedings or on
award of punishments, the authorities may withhold the
pension and gratuity to the extent as prescribed under the
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said Rules; and that as on this date, the petitioner is
receiving provisional pension as well as gratuity withholding
the limited amount as prescribed in the order dated
21.01.2013 as well as Government Resolution dated
23.06.2000; and that looking to the details of the
departmental proceedings against the petitioner, from 1996 to
2010, the authorities have acted in accordance with the
procedure as well as rules which is annexed with the reply
filed by the authorities in Special Civil Application No.17718
of 2011 with regard to the contention of the petitioner raised,
more particularly in para 4.2 of the petition; and that the
Registrar, Co-operative Societies, after conducting the
preliminary inquiry, found that the charges against the
petitioner to be proved; and that similarly, the Director of
ACB has also found the charges to be true and those
reported were forwarded to the Vigilance Commission; and
that the Vigilance Commission recommended major
punishment under the Gujarat Civil Service (Discipline and
Appeal) Rules, 1971; and that the General Administration
Department followed the procedure and confirmed the charge-
sheet and in turn, send to the GPSC and the GPSC has
recommended higher punishment and therefore, the impugned
order is passed. He has submitted that these petitions may
be dismissed.
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7. Learned advocates Mr.Premal Joshi and Mr. D.G.
Shukla for the respondent No.3 - Gujarat Public Service
Commission have jointly submitted that the role of the GPSC
is very lesser in the entire procedure. The GPSC has, after
considering the various documents sent by the authorities,
opined that the punishment is very lesser looking to the
proved charges levelled against the petitioner and the
authorities have in turn passed the impugned order. They
have submitted that appropriate order may be passed.
8. In rejoinder, learned advocate Mr.Vyas for the
petitioner has submitted that the proceedings initiated against
the petitioner are nothing but gross abuse of the powers by
the authorities, whereby the sword of departmental inquiry is
kept hanging over the head of the petitioner from the year
1996 to 2010; and that the petitioner is not even in a
position to know as to whether the allegations levelled by
two witnesses were pertaining to the charges levelled against
the petitioner in the departmental inquiry in question or they
were in context to some other allegations; and that the
authorities have followed the Government Resolution dated
20.07.1993 wherein the procedure is prescribed by the
Government regarding speedy disposal of the departmental
inquiry. He has submitted that these petitions may be
allowed.
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9. 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,
this Court finds that as such, Special Civil Application
No.6040 of 2010 with a prayer, by and large, to give
promotion to the petitioner, drop the departmental inquiry
initiated pursuant to the charge-sheet dated 02.04.2005 and
stay the operation of the show-cause noted dated 17.04.2008,
would become infructuous :- (i) in view of the fact that the
departmental inquiry was over and the punishment order
dated 12.11.2011 is passed by the authorities, which is
challenged by the petitioner in Special Civil Application
No.17718 of 2011, (ii) the petitioner has retired on 30.09.2012
by way of superannuation and (iii) there is no stay or
interim order operating against the respondents. Therefore,
Special Civil Application No.6040 of 2010 needs to be
disposed of as having become infructuous and another petition
being Special Civil Application No.17718 of 2011 needs to be
decided, on merit.
10. Now, if we consider the prayers of Special Civil
Application No.17718 of 2011, by and large, that :- (i) to
quash the impugned order dated 12.11.2011 and (ii) to
restrain the authorities from superseding the petitioner as per
the impugned order dated 12.11.2011.
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10.1 As per the impugned order dated 12.11.2011, the
authorities have ordered that the petitioner be reduced by
four steps in the existing pay-scale with future effect, for the
period till his retirement.
10.2 Indisputably, the petitioner has retired on
30.09.2012 by way of superannuation.
10.3 At this stage, it is required to be noted that,
while issuing notice by this Court on 08.12.2011 in Special
Civil Application No.17718 of 2011, the Coordinate Bench of
this Court has observed as under.
"Heard the learned advocate for the
petitioner.
The charges No.7 to 12 have been
established in the Departmental Inquiry,
which appear to be serious and in spite of
teh above, the respondent authority has
inflicted a punishment of reducing the pay-
scale of teh petitoner only upto four stages
with future effect.
Notice returnable on 26.12.2011."
10.4 In view of above observation, we cannot overlook
the charges levelled against the petitioner. The charges are
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that while the petitioner was working as District Registrar,
Bhuj, he was given an additional charge of Chairman,
Custodian Committee of Kutch District Central Co-operative
Bank. While discharging his duties as Chairman of Custodian
Committee, the petitioner has committed breach of
Government policies, the petitioner had deliberately and with
a mala fide intention inducted certain persons as
probationary employer from daily wagers and had also passed
the order for confirming certain persons which was
detrimental to the financial condition of the bank, as the
Bank was in financial crunch.
10.5 Further, in the charge-sheet dated 02.04.2005,
there were thirteen charges levelled against the petitioner
initially. Out of those thirteen charges, the enquiry officer,
after detailed inquiry, had come to the conclusion that
charges No.1 and 2 are 'not proved' and rest of the charges
No.3 to 13 are held 'proved' against the petitioner.
10.6 From the record, it transpires that the authorities
have followed the procedure in the departmental inquiry. A
report was submitted by the enquiry officer to the authorities
and the disciplinary authority has passed the impugned
punishment order, which is accepted by the Gujarat Public
Service Commission.
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10.7 In view of above, if we take into consideration the
charges, which are established in the departmental inquiry,
which are, as such, serious in nature as observed by the
Coordinate Bench of this Court vide order dated 08.12.2011
noted above, the authorities have rightly imposed major
punishment upon the petitioner and passed the impugned
order. Therefore, this petition needs to be dismissed as
meritless.
10.8 At this stage, it would be fruitful to refer to the
decision of the Hon'ble Apex Court in the case of Union of
India versus P. Gunasekaran reported in (2015) 2 SCC 610,
more particularly paras : 13 to 16 thereof, which read as
under.
"13. Despite the well-settled position, it is
painfully disturbing to note that the High Court
has acted as an appellate authority in the
disciplinary proceedings, re-appreciating even the
evidence before the enquiry officer. The finding on
Charge No. 1 was accepted by the disciplinary
authority and was also endorsed by the Central
Administrative Tribunal. In disciplinary
proceedings, the High Court is not and cannot act
as a second court of first appeal. The High
Court, in exercise of its powers under Article
226/227 of the Constitution of India, shall not
venture into reappreciation of the evidence. The
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High Court can only see whether:a. the enquiry
is held by a competent authority;b. the enquiry is
held according to the procedure prescribed in that
behalf;c. there is violation of the principles of
natural justice in conducting the proceedings;d.
the authorities have disabled themselves from
reaching a fair conclusion by some considerations
extraneous to the evidence and merits of the
case;e. the authorities have allowed themselves to
be influenced by irrelevant or extraneous
considerations;f. the conclusion, on the very face
of it, is so wholly arbitrary and capricious that
no reasonable person could ever have arrived at
such conclusion;g. the disciplinary authority had
erroneously failed to admit the admissible and
material evidence;h. the disciplinary authority had
erroneously admitted inadmissible evidence which
influenced the finding;i. the finding of fact is
based on no evidence. Under Article 226/227 of
the Constitution of India, the High Court shall
not:
(i) re-appreciate the evidence;
(ii) interfere with the conclusions in the
enquiry, in case the same has been conducted in
accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence
on which findings can be based.
(vi) correct the error of fact however grave it
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may appear to be;
(vii) go into the proportionality of punishment
unless it shocks its conscience.
14. In one of the earliest decisions in State
of Andhra Pradesh and others v. S. Sree Rama
Rao 1, many of the above principles have been
discussed and it has been concluded thus:
"7. ... The High Court is not constituted
in a proceeding under Article 226 of the
Constitution a court of appeal over the
decision of the authorities holding a
departmental enquiry against a public
servant: it is concerned to determine
whether the enquiry is held by an
authority competent in that behalf, and
according to the procedure prescribed in
that behalf, and whether the rules of
natural justice are not violated. Where
there is some evidence, which the
authority entrusted with the duty to hold
the enquiry has accepted and which
evidence may reasonably support the
conclusion that the delinquent officer is
guilty of the charge, it is not the function
of the High Court in a petition for a writ
under Article 226 to review the evidence
and to arrive at an independent finding
on the evidence. The High Court may
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undoubtedly interfere where the
departmental authorities have held the
proceedings against the delinquent in a
manner inconsistent with the rules of
natural justice or in violation of the
statutory rules prescribing the mode of
enquiry or where the authorities have
disabled themselves from reaching a fair
decision by some considerations extraneous
to the evidence and the merits of the
case or by allowing themselves to be
influenced by irrelevant considerations or
where the conclusion on the very face of
it is so wholly arbitrary and capricious
that no reasonable person could ever have
arrived at that conclusion, or on similar
grounds. But the departmental authorities
are, if the enquiry is otherwise properly
held, the sole judges of facts and if there
be some legal evidence on which their
findings can be based, the adequacy or
reliability of that evidence is not a matter
which can be permitted to be canvassed
before the High Court in a proceeding for
a writ under Article 226 of the
Constitution."
15. In State of Andhra Pradesh and others v.
Chitra Venkata Rao 2, the principles have been
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further discussed at paragraphs-21 to 24, which
read as follows:
"21. The scope of Article 226 in dealing
with departmental inquiries has come up
before this Court. Two propositions were
laid down by this Court in State of A.P.
v. S. Sree Rama Rao (AIR 1963 SC
1723). First, there is no warrant for the
view that in considering whether a public
officer is guilty of misconduct charged
against him, the rule followed in criminal
trials that an offence is not established
unless proved by evidence beyond
reasonable doubt to the satisfaction of the
Court must be applied. If that rule be
not applied by a domestic tribunal of
inquiry the High Court in a petition
under Article 226 of the Constitution is
not competent to declare the order of the
authorities holding a departmental enquiry
invalid. The High Court is not a court of
appeal under Article 226 over the decision
of the authorities holding aSCW663
departmental enquiry against a public
servant. The Court is concerned to
determine whether the enquiry is held by
an authority competent in that behalf and
according to the procedure prescribed in
that behalf, and whether the rules of
natural justice are not violated. Second,
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where there is some evidence which the
authority entrusted with the duty to hold
the enquiry has accepted and which
evidence may reasonably support the
conclusion that the delinquent officer is
guilty of the charge, it is not the function
of the High Court to review the evidence
and to arrive at an independent finding
on the evidence. The High Court may
interfere where the departmental
authorities have held the proceedings
against the delinquent in a manner
inconsistent with the rules of natural
justice or in violation of the statutory
rules prescribing the mode of enquiry or
where the authorities have disabled
themselves from reaching a fair decision
by some considerations extraneous to the
evidence and the merits of the case or by
allowing themselves to be influenced by
irrelevant considerations or where the
conclusion on the very face of it is so
wholly arbitrary and capricious that no
reasonable person could ever have arrived
at that conclusion. The departmental
authorities are, if the enquiry is otherwise
properly held, the sole judges of facts and
if there is some legal evidence on which
their findings can be based, the adequacy
or reliability of that evidence is not a
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matter which can be permitted to be
canvassed before the High Court in a
proceeding for a writ under Article 226.
22. Again, this Court in Railway Board,
representing the Union of India, New
Delhi v. Niranjan Singh (AIR 1969 SC
966) said that the High Court does not
interfere with the conclusion of the
disciplinary authority unless the finding is
not supported by any evidence or it can
be said that no reasonable person could
have reached such a finding. In Niranjan
Singh case this Court held that the High
Court exceeded its powers in interfering
with the findings of the disciplinary
authority on the charge that the
respondent was instrumental in compelling
the shut-down of an air compressor at
about 8.15 a.m. on May 31, 1956. This
Court said that the Enquiry Committee
felt that the evidence of two persons that
the respondent led a group of strikers
and compelled them to close down their
compressor could not be accepted at its
face value. The General Manager did not
agree with the Enquiry Committee on
that point. The General Manager accepted
the evidence. This Court said that it was
open to the General Manager to do so
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and he was not bound by the conclusion
reached by the committee. This Court
held that the conclusion reached by the
disciplinary authority should prevail and
the High Court should not have interfered
with the conclusion.
23. The jurisdiction to issue a writ of
certiorari under Article 226 is a
supervisory jurisdiction. The Court
exercises it not as an appellate court. The
findings of fact reached by an inferior
court or tribunal as a result of the
appreciation of evidence are not reopened
or questioned in writ proceedings. An
error of law which is apparent on the
face of the record can be corrected by a
writ, but not an error of fact, however
grave it may appear to be. In regard to
a finding of fact recorded by a tribunal, a
writ can be issued if it is shown that in
recording the said finding, the tribunal
had erroneously refused to admit
admissible and material evidence, or had
erroneously admitted inadmissible evidence
which has influenced the impugned
finding. Again if a finding of fact is
based on no evidence, that would be
regarded as an error of law which can be
corrected by a writ of certiorari. A finding
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of fact recorded by the Tribunal cannot
be challenged on the ground that the
relevant and material evidence adduced
before the Tribunal is insufficient or
inadequate to sustain a finding. The
adequacy or sufficiency of evidence led on
a point and the inference of fact to be
drawn from the said finding are within
the exclusive jurisdiction of the Tribunal.
See Syed Yakoob v. K. S. Radhakrishnan
(AIR 1964 SC 477).
24. The High Court in the present case
assessed the entire evidence and came to
its own conclusion. The High Court was
not justified to do so. Apart from the
aspect that the High Court does not
correct a finding of fact on the ground
that the evidence is not sufficient or
adequate, the evidence in the present case
which was considered by the Tribunal
cannot be scanned by the High Court to
justify the conclusion that there is no
evidence which would justify the finding
of the Tribunal that the respondent did
not make the journey. The Tribunal gave
reasons for its conclusions. It is not
possible for the High Court to say that
no reasonable person could have arrived
at these conclusions. The High Court
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reviewed the evidence, reassessed the
evidence and then rejected the evidence
as no evidence. That is precisely what the
High Court in exercising jurisdiction to
issue a writ of certiorari should not
do."These principles have been succinctly
summed-up by the living legend and
centenarian Justice V. R. Krishna Iyer in
State of Haryana and another v. Rattan
Singh 3. To quote the unparalled and
inimitable expressions:"4. .... in a domestic
enquiry the strict and sophisticated rules
of evidence under the Indian Evidence Act
may not apply. All materials which are
logically probative for a prudent mind are
permissible. There is no allergy to
hearsay evidence provided it has
reasonable nexus and credibility. It is
true that departmental authorities and
Administrative Tribunals must be careful
in evaluating such material and should
not glibly swallow what is strictly
speaking not relevant under the Indian
Evidence Act. For this proposition it is
not necessary to cite decisions nor text
books, although we have been taken
through case-law and other authorities by
counsel on both sides. The essence of a
judicial approach is objectivity, exclusion
of extraneous materials or considerations
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and observance of rules of natural justice.
Of course, fairplay is the basis and if
perversity or arbitrariness, bias or
surrender of independence of judgment
vitiate the conclusions reached, such
finding, even though of a domestic
tribunal, cannot be held good. ..."
16. In all the subsequent decisions of this
Court up to the latest in Chennai Water Supply
and Sewarage Board v. T. T. Murali Babu 4,
these principles have been consistently followed
adding practically nothing more or altering
anything."
10.9 It would also be fruitful to refer to the decision of
the Hon'ble Apex Court in the case of Government of West
Bengal versus Dr. Amal Satpathi reported in 2024 INSC 906,
more particularly para : 19 to 22 thereof, which read as
under.
"19. It is a well settled principle that
promotion becomes effective from the date it
is granted, rather than from the date a
vacancy arises or the post is created. While
the Courts have recognized the right to be
considered for promotion as not only a
statutory right but also a fundamental right,
there is no fundamental right to the
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promotion itself. In this regard, we may
gainfully refer to a recent decision of this
Court in the case of Bihar State Electricity
Board and Others v. Dharamdeo Das, 2024
SCC OnLine SC 1768 wherein it was
observed as follows:
"18. It is no longer res integra that a
promotion is effective from the date it is
granted and not from the date when a
vacancy occurs on the subject post or when
the post itself is created. No doubt, a right
to be considered for promotion has been
treated by courts not just as a statutory
right but as a fundamental right, at the
same time, there is no fundamental right to
promotion itself. In this context, we may
profitably cite a recent decision in Ajay
Kumar Shukla v. Arvind Rai, (2022) 12 SCC
579 where, citing earlier precedents in
Director, Lift Irrigation Corporation Ltd. v.
Pravat Kiran Mohanty, (1991) 2 SCC 295 and
Ajit Singh v. State of Punjab, (1999) 7 SCC
209 a three-Judge Bench observed thus:
"41. This Court, time and again, has laid
emphasis on right to be considered for
promotion to be a fundamental right, as was
held by K. Ramaswamy, J., in Director, Lift
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Irrigation Corpn. Ltd. v. Pravat Kiran
Mohanty in para 4 of the report which is
reproduced below:
"4. There is no fundamental right to
promotion, but an employee has only right to
be considered for promotion, when it arises,
in accordance with relevant rules. From this
perspective in our view the conclusion of the
High Court that the gradation list prepared
by the corporation is in violation of the right
of respondent-writ petitioner to equality
enshrined under Article 14 read with Article
16 of the Constitution, and the respondent-
writ petitioner was unjustly denied of the
same is obviously unjustified."
42. A Constitution Bench in Ajit Singh v.
State of Punjab, laying emphasis on Article
14 and Article 16(1) of the Constitution of
India held that if a person who satisfies the
eligibility and the criteria for promotion but
still is not considered for promotion, then
there will be clear violation of his/hers
fundamental right. Jagannadha Rao, J.
speaking for himself and Anand, C.J.,
Venkataswami, Pattanaik, Kurdukar, JJ.,
observed the same as follows in paras 22 and
27:
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'Articles 14 and 16(1) : is right to be
considered for promotion a fundamental right
"22. Article 14 and Article 16(1) are closely
connected. They deal with individual rights of
the person. Article 14 demands that the State
shall not deny to any person equality before
the law or the equal protection of the laws.
Article 16(1) issues a positive command that:
'there shall be equality of opportunity for all
citizens in matters relating to employment or
appointment to any office under the State.'
It has been held repeatedly by this Court
that clause (1) of Article 16 is a facet of
Article 14 and that it takes its roots from
Article 14. The said clause particularises the
generality in Article 14 and identifies, in a
constitutional sense equality of opportunity in
matters of employment and appointment to
any office under the State. The word
employment being wider, there is no dispute
that it takes within its fold, the aspect of
promotions to posts above the stage of initial
level of recruitment. Article 16 (1) provides to
every employee otherwise eligible for
promotion or who comes within the zone of
consideration, a fundamental right to be
considered for promotion. Equal opportunity
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here means the right to be considered for
promotion. If a person satisfies the eligibility
and zone criteria but is not considered for
promotion, then there will be a clear
infraction of his fundamental right to be
considered for promotion, which is his
personal right. Promotion based on equal
opportunity and seniority attached to such
promotion are facets of fundamental right
under Article 16(1).
* * *
27. In our opinion, the above view expressed
in Ashok Kumar Gupta [ Ashok Kumar
Gupta v. State of U.P., (1997) 5 SCC 201
and followed in Jagdish Lal [ Jagdish Lal v.
State of Haryana, (1997) 6 SCC 538 and
other cases, if it is intended to lay down that
the right guaranteed to employees for being
considered for promotion according to relevant
rules of recruitment by promotion (i.e.
whether on the basis of seniority or merit) is
only a statutory right and not a fundamental
right, we cannot accept the proposition. We
have already stated earlier that the right to
equal opportunity in the matter of promotion
in the sense of a right to be considered for
promotion is indeed a fundamental right
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guaranteed under Article 16(1) and this has
never been doubted in any other case before
Ashok Kumar Gupta [Ashok Kumar Gupta v.
State of U.P.], right from 1950."
"20. In State of Bihar v. Akhouri Sachindra
Nath, 1991 Supp (1) SCC 334 it was held
that retrospective seniority cannot be given to
an employee from a date when he was not
even borne in the cadre, nor can seniority be
given with retrospective effect as that might
adversely affect others. The same view was
reiterated in Keshav Chandra Joshi v. Union
of India, 1992 Supp (1) SCC 272 where it
was held that when a quota is provided for,
then the seniority of the employee would be
reckoned from the date when the vacancy
arises in the quota and not from any
anterior date of promotion or subsequent date
of confirmation. The said view was restated
in Uttaranchal Forest Rangers Assn. (Direct
Recruit) v. State of U.P., (2006) 10 SCC 346,
in the following words:
"37. We are also of the view that no
retrospective promotion or seniority can be
granted from a date when an employee has
not even been borne in the cadre so as to
adversely affect the direct recruits appointed
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validly in the meantime, as decided by this
Court in Keshav Chandra Joshi v. Union of
India held that when promotion is outside
the quota, seniority would be reckoned from
the date of the vacancy within the quota
rendering the previous service fortuitous. The
previous promotion would be regular only
from the date of the vacancy within the
quota and seniority shall be counted from
that date and not from the date of his
earlier promotion or subsequent confirmation.
In order to do justice to the promotes, it
would not be proper to do injustice to the
direct recruits....
38. This Court has consistently held that no
retrospective promotion can be granted nor
can any seniority be given on retrospective
basis from a date when an employee has not
even been borne in the cadre particularly
when this would adversely affect the direct
recruits who have been appointed validity in
the meantime. (emphasis supplied)"
20. In the instant case, it is evident that
while respondent No. 1 was recommended for
promotion before his retirement, he could not
assume the duties of the Chief Scientific
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Officer. Rule 54(1)(a) of the West Bengal
Service Rules, clearly stipulates that an
employee must assume the responsibilities of
a higher post to draw the corresponding pay,
thus, preventing posthumous or retrospective
promotions in the absence of an enabling
provision.
21. While we recognize respondent No.1s
right to be considered for promotion, which is
a fundamental right under Articles 14 and
16(1) of the Constitution of India, he does
not hold an absolute right to the promotion
itself. The legal precedents discussed above
establish that promotion only becomes
effective upon the assumption of duties on
the promotional post and not on the date of
occurrence of the vacancy or the date of
recommendation. Considering that respondent
No. 1 superannuated before his promotion
was effectuated, he is not entitled to
retrospective financial benefits associated to
the promotional post of Chief Scientific
Officer, as he did not serve in that capacity.
22. As a result of the above discussion, the
judgment dated 1st February, 2023 passed by
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the High Court of Calcutta and the judgment
dated 26th June, 2019 passed by the
Tribunal are unsustainable in the eyes of law
and are hereby reversed and set aside."
11. For the reasons recorded above and considering
the decisions of the Hon'ble Apex Court noted above, the
following order is passed.
11.1 Special Civil Application No.6040 of 2010 is
disposed of as having become infructuous. Rule is discharged.
11.2 Special Civil Application No.17718 of 2011 is
hereby dismissed. Rule is discharged.
(SANDEEP N. BHATT,J)
M.H. DAVE
