R M AGRAVAT Vs. DISTRICT JUDGE JAMNAGAR

JUDGEMENT

(1.) First contention raised on behalf of the petitioners in both the petitions was that the notices issued by the High Court calling upon petitioner Agravat to show cause why the order of penalty of withholding an increment for a period of one year and petitioner Makwana to show cause why the order exonerating him should not be reviewed must be regarded as issued under Rule 23 which is specific and not under Rule 22 which is general. It was pointed out that the notices do not refer to any rule under which they were issued. It was merely stated therein that the High Court had come to the conclusion that the matter should be taken up in review under the Gujarat Civil Service (Discipline and Appeal) Rules 1971 read with the provisions of Article 235 of the Constitution of India The occasion for exercising powers of review had arisen because of the orders passed in disciplinary proceedings. Because the orders passed were found to be unjust that the High Court had issued the said notices. The High Court in both the cases was the appellate authority and therefore it should be presumed that it was acting in that capacity. The purpose of raising this contention was to take advantage of the time limit prescribed in Rule 23 as the action in both the cases was taken beyond that period. In support of this contention reliance was placed on the maxim Generalia Specialibus Non Derogant and the following observations made by the Full Bench of this Court in R. M. GAJJAR V. STATE 18 G.L.R. 738:

(2.) In order to appreciate this contention it will be necessary to refer to Rules 22 and 23 of the Rules- Relevant parts of Rules 22 and 23 are as under:

(3.) Review of orders in disciplinary cases. The authority to which an appeal against an order imposing any of the penalties specified in rule 6 lies may of its own motion or otherwise call for the record of any proceeding under these rules and review any order passed in such a case and may after consulation with the Commission where such consultation is necessary pass such orders as it deem fit as if the Government servant had preferred an appeal against such order: