L M SHAH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellant in this Letters Patent Appeal is the petitioner in Special Civil Application No. 7495 of 1993. The respondent in this Letters Patent Appeal is the respondent in the Special Civil Application. We shall refer to the appellant as the petitioner in this judgment of ours for the sake of convenience. The petitioner who is in the cadre of an Executive Engineer is being denied promotion to the post of Superintending Engineer on the ground that departmental proceedings have been initiated against him. The facts which have come to our knowledge as per the expositions in the pleadings and as per the records on the side of the respondent made available to us can be traced as follows: 23.6 An application was received by the Government requesting to probe into the allegations of corruption and favouritism in the services of Gujarat Engineering Research Institute in which the petitioner was serving at the relevant point of time. The Government entrusted the preliminary inquiry to the concerned Chief Engineer and the Joint Secretary. The inquiry was prosecuted. 14.1 The concerned authority submitted the inquiry report implicating 30 officers including the petitioner for alleged irregularities. 18.4 Explanations of the concerned officers including the petitioner were called for. 15.1 The petitioner submitted his explanation. 22.5 The matter was referred to the independent auhority who we are told is the Vigilance Commissioner for his opinion. 13.11 The independent authority- Vigilance Commissioner gave his opinion recommending departmental proceedings against the petitioner. 3.4 On these dates the papers were having movement 19.7 13.9 27.11 through various sections of the 3.7 7.8 17.8 administrations for processing. 22.8 The Chief Secretary to the Government of Gujarat gave his approval. 30.9 The Minister of State Water Resources gave his approval. 6.1 The Minister of Home and Water Resources gave his approval. 16.1 The Chief Minister gave his approval. 2.2 The charge-sheet was framed and was issued to the petitioner and was served on the petitioner on 4.2 2 With regard to the consideration of the promotion question what transpired as come out from the pleadings and records exposed before us runs as follows: 26.5 The Departmental Promotion Committee met. The select list was prepared by the Departmental Promotion Committee and which select list look in the petitioner. 30.8 The Government approved the select list. 25.9 The matter was referred to the Gujarat Public Service Commission. 24.5 The Gujarat Public Service Commissions gave its approval for the concerned selectees. 21.7 The select list was operated upon. It is stated that three Government servants other than the petitioner having been served with the charge-sheets were also not given promotion. The promotion of the petitioner was withheld in view of the provisions contained in para 7 of the Government Resolution No.SLT-1080-895-G.2 General Administration Department Government of Gujarat; dated 23.9.1981 hereinafter referred to as the Government Resolution. We are obliged to extract as follows the entirety of the Government Resolution because we may have to advert to the implications of the paragraphs therein for the purpose of evaluating the grievances of the petitioner vis-a-vis what happened in the present case: "Confidential Procedure to be followed by DPC in the case of Government servants under suspension and Government servants against whom inquiries are pending or to be initiated. Government of Gujarat General Administration Department Resolution No. SLT- 1080-895-G2 Sachivalaya Gandhinagar. Dated the 23rd September 1981 Read: 1. GC. GAD No. 42/41 1065-G dated 24.5.1966. 2 GC. GAD No. SLT-1079-UO-2337-G2 dated 17.12.1979. RESOLUTION The High Court of Gujarat has in the SCA No.277 of 1980 set aside the orders contained in para 4 of the Government Circular G.A.D. No. 42/41 1065 dated 24.5.1966 as also the instructions issued under the GC. GAD No. SLT-1079-UO- 70 dated 19.12.79 regarding the consideration of the cases of Government servants for promotion to higher posts against whom departmental inquiries are pending and has suggested that the State Government should adopt and apply the procedure followed by the Government of India in this regard. In this context Government has reviewed the existing policy applicable to such cases and in supersession of the orders contained in para 4 of the GC GAD dated 24.5.1966 and in the GC GAD dated 19.12 is pleased to issue the following instructions:

(2.) The cases of Government servants who are facing Departmental Inquiries or whose conduct is under investigation could broadly be classified as under: i) Those who are under suspension; or ii) those against whom disciplinary proceedings are initiated i.e. where a charge sheet and the statement of allegations have been issued; or iii) those against whom disciplinary proceedings are proposed to be initiated i.e. on the basis of a preliminary enquiry or otherwise a decision has been taken by the competent authority to initiate disciplinary proceedings against them but where a charge sheet and the statement of allegations have not been issued. At the outset it is clarified that in the case of Government servants whose conduct is under investigation i.e. the complaints are being looked into departmentally or otherwise but no conclusion has been reached about the prima facie misconduct it should not W a ground for treating the said Government servant as one whose conduct is under investigation. It is further clarified that in respect of Government servants whose conduct is under investigation the procedure prescribed hereafter should be followed only after the conclusion of the investigation and when the competent authority on consideration of the results of the investigation by any agency departmental or otherwise including the ACB or the Vigilance Commissioner and after obtaining the Vigilance Commissions advice wherever necessary has formed an opinion that a charge sheet may be issued on specific imputations where departmental action is contemplated or that sanction for prosecution may be accorded where prosecution is proposed. Until the competent authority arrives at such a conclusion the Government servant should be treated on par with others.

(3.) In respect of Government servants covered under categories (i) to (iii) of para 2 above the following procedure shall be followed while preparing select lists for promotion or considering cases for promotion where select lists are not be prepared: (i) The Government servants suitability for promotion should be assessed at the relevant time by the Departmental Promotion Committee or other authorities in the case may be and a finding reached whether if the Government servant had not been suspended or his conduct had not been under investigation he would have been recommended/selected for promotion. Where a select list is prepared the competent authority should also take a view as to what the Government Servants position in the list would have been but for his suspension. (ii) The findings as to the suitability and the place in the select list of the Government servant should be recorded separately and attached to the proceedings in a sealed envelope superscribed Findings regarding suitability for promotion to (service/grade/post) in respect of Shri (Name of the Government servant) and Not to be opened till after the termination of the suspension of/disciplinary proceedings against Shri (Name of the Government servant). The proceedings of the Departmental Promotion Committee etc. need only contain the note The findings are contained in the attached sealed envelope. (iii) The vacancy that could have gone to the Government servant but for his suspension or the departmental proceedings against him should be filled only on an officiating basis by the next person in the approved list. If the Government servant concerned is completely exonerated and it is held that the suspension was wholly unjustified he should be promoted thereafter to the post filled on an officiating basis the arrangements made previously being reversed. Where however the post which could have gone to the Government servant but for his suspension or the departmental proceedings against him ceases to exist before the conclusion of the Departmental proceedings he can only be promoted to the first vacancy that may be available in future and the Government servant concerned is found fit for promotion at that time.