G B SHEPHARD Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioner is working as a Supervisor Instructor in the Industrial Training Institute at Ankleshwar which is an institute under the administrative control of the Director of Employment and Training respondent No. 2 herein. The next post in the avenue of promotion is that of Foreman which is to be filled in in the ratio of 1:-3 by direct recruitment and promotion respectively. According to the petitioner his confidential remarks upto October 26 1979 were not such as could be considered to be adverse. According to the seniority list published on July 12 1977 for the cadre of the petitioner he was shown at Sr. No. 34 while respondents Nos. 3 to 15 were shown as junior to the petitioner. He was therefore entitled to be considered for promotion as foreman. However the petitioner has not been considered for promotion as a foreman when 16 posts were to be filled in in the said cadre in 1979-80. Respondents Nos. 3 to 15 were promoted to the post of foreman by different orders made in 1979 and 1980. He therefore challenges these promotions as violative of Articles 14 and 16 of the Constitution and prays for appropriate wait order and direction for quashing and setting aside the impugned orders of promotions and enjoining the respondents Nos. 1 and 2 to consider the petitioner for promotion and give promotion to him above respondents Nos. 3 to 15.

(2.) This petition has been resisted by respondents Nos. 1 and 2 and an affidavit of one Shri. S. Dayal Director of Employment and Training has been filed on behalf of the said respondents. Respondents Nos. 4 and 9 to 15 have been served but have not made their appearance while respondents Nos. 3 and 5 to 8 have not been served. It has been contended inter alia in the affidavit in reply that a departmental inquiry has been instituted against the petitioner for the serious act of misconduct of quarrelling with H.G. Gandhi who happened to be Craft Instructor and Electrician on January 19 1979 and for assaulting him in the Chamber of the Principal of the Institute in presence of the Principal as well as other members of the staff. The Director of Employment and Training had issued orders in that behalf on September 24 1979 and since charges against the petitioner are of serious nature and are likely to lean to a major penalty in case they are proved the petitioners promotion is temporarily withheld pending the result of the departmental inquiry in terms of the Government resolution dated December 17 1979 and the Government Circular dated May 24 1966 which prescribe that in a Government servant faces an inquiry of serious charges which is likely to result in major penalty his case should not be considered at the time of preparing select list and such employee should not be placed on the select list even if found proper until the result of the inquiry is declared and even if he is exonerated in such a departmental inquiry it is not necessary to review the decision about the select list drawn earlier and the Government servant or the officer is entitled to be included in the select list prospectively. It is therefore contended in the said affidavit in reply that withholding of promotion in terms of the Government resolution and circular would not amount to penalty as contended by the petitioner.

(3.) At the time of admission of this petition interim relief has been granted by this Court that the promotions to the posts of foreman made on or after February 8 1980 would be expressly subject to the result of the petition.