D N CHATTERJI DR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) A short question which arises in this petition is can a Government servant be refused to be promoted solely on the ground that a preliminary inquiry is pending against him ? The question arises in the following circumstances:-

(2.) On the notice being issued by this Court an appearance was entered into on behalf of the State Government as well as Director of Health Services and the service of the Rule was waived. The State Government has filed an affidavit in reply of one Shri D. K. Patel who is the Under Secretary to the Government in Health and Family Welfare Department. It was inter alia contended in his affidavit in reply that the Selection Committee considered the cases of about 10 officers including that of the petitioner for promotion to the post of Assistant Director (Public Health) on October 10 1979 However in view of two impending departmental inquiries against the petitioner the Committee recommended not to include the petitioners name in the Select List of District Health Officers fit for promotion to the post of Assistant Director (Public Health)/ Zonal Officer and the Gujarat Public Service Commission also agreed to the exclusion of the petitioners name from the Select List in view of the two impending inquiries These inquiries according to the State Government related to recovery of unauthorised surgeon charges in connection with Vasectomy operations performed by the petitioner during the period from May 16 1968 to June 29 197 and irregular purchases of equipment etc. when the petitioner was District Health Officer Bulsar in 1975-76 at prices higher than the prevailing market rate. It is further stated in the affidavit in reply that a preliminary inquiry in the charges was made by the Deputy Director of Health and on the receipt of his preliminary inquiry report the opinion of the Director of Health Services was sought for. Before establishing regular departmental inquiry against the petitioner the Government has to consult Vigilance Commission in that behalf and in case if the petitioner is exonerated on completion of the inquiry his case for promotion would be immediately considered by the Select Committee. It is thereafter contended on behalf of the State Government in the said affidavit as under:-

(3.) At the time of hearing of this petition Mr. N. J. Mehta learned Advocate appearing for the petitioners raised the following three contentions:-