NATVARLAL MOTILAL CHAVDA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioner has invoked Articles 226 and 227 of the Constitution to call into question the order dated 04.02.2005 of the Central Administrative Tribunal ("CAT" for short) in O.A.No.331 of 2004 whereby his application for promotion to IAS cadre with effect from 15.06.2004 with all consequential benefits was, in effect, rejected with the direction to complete the enquiry against him within three months and to pass appropriate order regarding issue of integrity certificate and then take appropriate action in accordance with rules.

(2.) The petitioner was directly recruited as Mamlatdar in 1977 and then promoted as Deputy Collector in 1983 in Class-I cadre of Gujarat Administrative Service (GAS). Thereafter, he was promoted as Additional Collector in 1995 and transferred and posted as Secretary, Slums Clearance Board on 20.02.2003. On 22.09.2003, the State Government sent a proposal to the Union Public Service Commission (UPSC) and the Department of Personnel and Training, Government of India along with the list of prospective candidates for selection and appointment in IAS cadre and that list included at serial No.6 the name of the petitioner. By notification dated 15.06.2004 of the Government of India in its Department of Personnel and Training ("GOI" for short), 10 members of the State Civil Service of Gujarat were appointed in the Indian Administrative Service against the vacancies of the year 2003, on probation with immediate effect, until further orders, under Rule 8 of the Indian Administrative Service (Recruitment) Rules, 1954 read with Sub-Regulation (1) of Regulation 9 of the Indian Administrative Service (Appointment by Promotion) Regulations, 1955 and Rule 3 of the Indian Administrative Service (Probation) Rules, 1954. And that list omitted the name of the petitioner, even though by notification of the same date, i.e. 15.06.2004, the select list of 11 State Civil Service officers, including the petitioner, was notified. That select list was approved by the UPSC and prepared by the Selection Committee in its meeting held on 18.11.2003. Such exclusion of the petitioner from appointment in the cadre of IAS was the grievance of the petitioner before CAT, even as a corrigendum dated 16/19.07.2004 was issued to notify that name of the petitioner in the select list was included as provisional/deemed provisional.

(3.) It was, inter alia, submitted for the petitioner that once the final select list was notified after correspondence and communications between the State Government and the UPSC, his name could not have been omitted from the list of officers to be appointed in the IAS cadre, particularly in view of the fact that no charge-sheet was issued to the petitioner, as on the date of preparation on 18.11.2003 of the list of suitable officers by the Selection Committee. Relying upon the celebrated judgment of UOI v. K.V.Jankiraman, 1991 4 SCC 109, it was submitted that promotion could not be withheld merely because some disciplinary/criminal proceedings were pending against the employee, if, at the relevant time, charge-sheet had not been issued to the employee. Relying upon UOI v. Sangram Keshari Nayak, 2007 6 SCC 7044, it was submitted that suitability or otherwise of the candidate concerned must be left to the hands of Departmental Promotion Committee and when the DPC recommends the case for promotion, when no enquiry was pending and no decision was taken by the employer to initiate departmental proceeding, the candidate was entitled to promotion. It was also submitted for the petitioner that integrity certificate cannot be withheld or withdrawn merely because a preliminary enquiry was instituted or even if a charge-sheet were issued, because, as held in Vijay Singh v. State of U.P., 2012 5 SCC 242, even the disciplinary authority cannot legally impose the punishment of withholding integrity certificate unless such punishment is provided for in the relevant rules. It was, on that basis, submitted that the petitioner was entitled to be appointed in the IAS cadre with effect from 15.06.2004 and having by now crossed the age of superannuation even in the IAS cadre, he was required to be extended all the benefits which he would have obtained had he not been illegally deprived of them, although he had not worked on the higher post. Learned counsel for the petitioner relied upon judgments of the Apex Court in Commissioner, Karnataka Housing Board v. C.Muddaiah, 2007 7 SCC 689 and State of Kerala v. E.K.Bhaskaran Pillai, 2007 6 SCC 524] to submit that the petitioner ought to have been considered as promoted with retrospective effect and granted benefits accordingly.