SHAH VINODKUMAR CHANDULAL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioners have invoked Arts. 14, 16 and 226 of the Constitution and they have sought consideration of their cases for promotion to the post of Senior Environment Engineer from the post of Environment Engineer, which they are holding at present under respondent No. 2. There is no dispute about the fact that the respondent concerned is required to abide by the policy of the State Government contained in the Resolution dated 8-6-2007, according to which, the principle of selectivity is required to be followed in the promotion in question. The guidelines for applying the principle of selectivity are provided by earlier Resolution dated 29-10-2005 of the State Government and the requirement relevant for the present purpose is that the officer in Class-II has to have the remark of "very good" or "outstanding" in five out of last eight years in his ACRs, for the purpose of entering zone of consideration for promotion to the higher post in Class-I.

(2.) The petitions were pressed by learned Senior Advocate, Mr. Nanavati, mainly on the basis that after the judgment of the Apex Court in Dev Dutt v. Union of India, 2008 8 SCC 725 being declared on 12-5-2008, and being widely published immediately thereafter, the respondents were not justified in initiating the process for promotion without following the ratio of the judgment, according to which all ACRs were required to be communicated to the officer concerned. He submitted that admittedly, the ACRs of previous eight years have not been communicated to the petitioners. The remark of 'good', being not communicated on the one hand and depriving the petitioners of consideration for promotion on the other hand, made it important and imperative that the process of promotion should not have been undertaken in the first place before the aforesaid judgment was fully and properly complied with, according to the submission. He further submitted that, factually, even after the aforesaid judgment and the relevant year of 2008-2009 being over, the petitioners were not communicated even the ACRs of the last year and, hence, the petitioners were put to debilitating discrimination and unfair denial of chance to be considered for promotion.

(3.) Learned Additional Advocate General, Mr. Mehta, appearing for the respondent, submitted that the aforesaid judgment of the Supreme Court could not be applied in such manner that no one can be promoted for eight years after the said judgment. On facts, statement was made after verification of the record, which was made available in the Court, that none of the petitioners were falling within the zone of consideration even if their evaluation in the ACR for the year 2008-2009 were "very good" or "excellent". Therefore, the petitioners were unlikely to get any benefit if they were communicated the ACRs for the last year. Thus, the apprehension of the petitioners that if their ACRs in respect of the last year i.e. 2008-2009 were considered, they might have had a chance of consideration is belied on facts.