H B THAKKAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Heard learned advocate Mr. Paresh Upadhyay for petitioner and learned AGP Mr. N.D.Gohil appearing on behalf of respondent.

(2.) At the time of hearing Mr. I.S.Parmar, Section Officer from the respondent Department is also remained present to assist learned AGP Mr. N.D.Gohil. The brief facts of the present petition are as under.

(3.) Affidavit-in-reply has been filed by one Mr. Hasmukhbhai R. Patel, Deputy Secretary, Finance Department against the present petition. Three contentions have been raised by the respondent in the affidavit-in-reply. First is that, in 1985 seniority list, the petitioner was junior in comparison to Mr. Gor and when Mr. Gor was promoted, the principle of selectivity was taken into account and therefore, considering Mr. Gor being senior, the case of the petitioner was not considered by the department. A detailed affidavit-in-reply including the contention of delay in challenging the action of the department was also raised by the respondent. The relevant averments made in the reply relates to the facts of this case are narrated at page 56. According to the respondent, out of five seniormost officers as per seniority list dated 16.1.1985 whose performance was assessed, one Mr. J.M.Gor was recommended by the Departmental Promotion Committee (top level) in their meeting held on 15.1.1990. Accordingly, Mr. Gor was promoted to the post of Director w.e.f. 12.3.1990. It is also made clear by the respondent in further averments that seniority of Accounts Officer Class-I and Class-II which was fixed as per the directives of the Court and persons who were in service as on 31.12.1964 and who had completed five years service as on that date were to be considered for initial composition and, on that basis, the seniority list of 16.1.1985 was prepared by the department. Due to these persons from Class-II who had completed 5 years were considered and thereby Class-II officers were appointed as Class-II in 1968 (Mr. Gor was one of them) were getting seniority over Class-I direct recruitee (the petitioner was one of them). So far as seniority list dated 16.1.1985 is concerned, the petitioner was shown at S.No. 41 and the person who was stated to have promoted earlier (Mr. Gor) on the post of Joint Director and Director was at S.No.31. Therefore,it was made further clear by the respondent that his consideration was on account of his zone of consideration top among all the five considered for promotion as on 15.1.1990. The further averment made that the action taken by the respondent for determining the issue of promotion in light of the seniority list dated 16.1.1985 which was in force as on March' 1990 and by application of principle of selectivity while considering the promotion to Shri Gor was in order. The further averment is also made that the Departmental Promotion Committee met for the said purpose on 25.3.1992 for selection to the post of Director, suggested to adopt the new seniority list of Accounts cadre which was to be published in place of the then seniority list dated 16.1.1985. The Committee further recommended to make a fresh selection of an officer for the another post of Director (Director of Pension and Provident Fund) in place of an officer earlier selected on the basis of seniority list dated 16.1.1985 and in light of the seniority list which was to be published after the provisional seniority list which was published on 29.5.1992. The Departmental Promotion Committee again held their meeting to consider selection two posts of Heard of Department, eight names were required to be considered for selection of the above two posts, as per instructions issued by the Government. The name of the petitioner was also included in the said name and the Committee had considered all the eight names of the seniormost officers of the level of Joint Director (Accounts cadre) from the then newly published seniority list dated 29.5.1992 (the list in which the petitioner became senior to Mr. Gor). All the eight were considered for inclusion and performance were assessed and the Committee in their minutes dated 18.4.1994 has specifically noted that the Committee had assessed the overall performance of the said eight officers and categorized them in light of the instructions contained in the Government Resolution, General Administration Department dated 20.5.1978 (instructing the Secretariat Departments to follow the principle of selectivity) and, keeping in view the selection criteria for such posts, the Committee had recommended the following two names for their inclusion in the panel for promotions to the post of two Director: