C O KAKKAD Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THIS is a petition filed by one Supervisor in the Roads and Buildings section of the Public Works Department of the State of Gujarat the respondent no. 1 herein. The respondent no. 2 here is the Superintending Engineer and the respondent no. 3 is the Area Development Commissioner one Mr. B. P. Vaghela. The petitioner is occupying serial No. 414 in the senior list and was due for promotion as a Deputy of Engineer in February 1978 pursuant to the select list that was taken on Land to be prepared in the last part of the year 1977. But the order dated 8-2-1978 showed that he was not promoted but persons junior to him had come to be promoted as Deputy Engineers. The petitioner therefore made a representation to the Government complaining of the supersession. The respondent no. 3 who was his Executive Engineer at that time then communicated to him the memos containing adverse remarks of the years 1973-74 1974 1975 and 1976-77 contrary to and in breach of the instructions contained in the Government Resolu- tion dated 8/03/1969 which provides that the adverse remarks are to be communicated in due time with a right of representation to the person concerned to have those remarks expunged or modified. The petitioner complained that there was non-compliance with the Government Resolution of 8/03/1969 ard therefore those remarks were no marks at all. The primary object of communication of remarks is to invite the attention of the concerned officer to the alleged lapses or draw- backs of his so that he may show improvement in future. The petitioner therefore complained that Mr. B.P. Vaghela the Area Development Commissioner who had personal prejudices against him had after his representation arranged to send him the memos based on old alleged adverse remarks and the petitioner therefore filed this petition for the purpose of various reliefs set out in paragraph 13 of his petition. The petitioner wanted that the promotional order of 8/02/1978 and all subsequent orders of promotions as Deputy Engineers should be quashed and the adverse remarks communicated by memos contained in Annexures B/1 to B/4 should be set aside. The petitioner further wanted a direction to be issued to the respondent to treat the petitioner as pro- moted as Deputy Engineer from the date on which his junior Mr. R. B. Shukla was promoted. The petitioner wanted alternatively a direction to consider the claim of the petitioner for promotion with effect from the date on which his immediate junior Mr. R. B. Shukla was promoted and a further direction to give to the petitioner all consequential benefits like rank in the seniority list payment of salary etc.

(2.) BEFORE this petition was admitted and after it was admitted the Under Secretary to the Government of Gujarat filed the affidavit in-reply. The petitioner has made serious allegations against Mr. Vaghela the respon- dent no. 3 herein who had allegedly developed personal prejudices and bias against the petitioner. In his affidavit-in-reply the Under Secretary to the Government said that Mr. Vaghela would file a separate affidavit-in-reply and the Government would rely on it. Though the matter was admitted as back as on 5/04/1979 and the Under Secretarys affidavit-in-reply referred to just now is dated 3/10/1979 the affidavit-in-reply of Mr. Vaghela is set to come. This matter was fixed for final hearing for 12/07/1979. I asked Mr. C. K. Tackwani the learned Assistant Government Pleader for the respondent State as to why the affidavit of Mr. Vaghela was not prepared and produced. Mr. Tackwani had no ex- planation for it but he simply made a prayer that this indifference of the Department be condoned and that fresh time be given to the State to have the affidavit of the respondent no. 3 Mr. Vaghela. It is no doubt true that Mr. Tackwani did not specifically refer to the indifference of the Govern- ment but the tone of his prayer did suggest that. I see no reason to adjourn the hearing of this matter to enable the slack administration one of the greatest litigants in this Court to earn premium on its lethargy and inefficiency and the matter therefore is required to be decided on the facts as they are. The Under Secretarys affidavit-in-reply shows that the petitioner was not considered fit for promotion on three occasions in the years 1977 1978 and 1979 because of his confidential reports. The confidential reports in order to have any value should have been prepared in the manner laid down by the Government itself in its resolution. Nothing of the court appears to have been done. Therefore the Government while considering the case of the petitioner for promotion for the years 1977 1978 and 1979 was clearly in error in taking note of those confidential reports prepared without considering the requirements contained in the Government Resolution of the year 1969 The case of the petitioner therefore is required to be reconsidered and also the confidential reports. The case of the petitioner is directed to be considered at the time the select list of the year 1977 had come to be made which select list ultimately started operating from 8/02/1978 The petitioners case will be examined in the manner said above and he will be accorded promotion if he is otherwise found to be fit. The adverse confidential reports which were not communicated to the petitioner in the manner laid down by the Government Resolution of the year 1969 cannot be taken into account and are directed not to be taken into account while assessing the merits of the petitioner. The petition is accordingly allowed by directing the respondent no. 1 to consider the claim of the petitioner for promotion with effect from the date on which the petitioners junior Mr. R. B. Shukla was promoted and the respondent no 1 is directed to extend to the petitioner all consequential benefits if his case is otherwise fit. Rule is accordingly made absolute with costs with a further direction that this writ is to be complied with within a period of three months from the date of the receipt of this High Courts writ by the Government. Rule made absolute.