B C DWIVEDI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) . The petitioner has come with the case that he was appointed as Junior Labour Investigator in December, 1959 and in the year 1969 he was selected for the post of Government Labour Officer through Gujarat Public Service Commission and was appointed as such with posting at Mehsana and since 1969 he is working as a Government Labour Officer. It has also been stated by the petitioner that in August, 1980 he was caught involved in a criminal case on the basis of a frivolous criminal complaint on the allegation of accepting illegal gratification and on 1-10-1980 he was placed under suspension. In the aforesaid criminal case, the petitioner was acquitted and yet his suspension was not revoked. The petitioner, therefore, filed Special Civil Application No. 5214 of 1982. In this petition, an order was passed on 29-12-1982 and the respondents were directed to reinstate the petitioner forthwith i.e. to say from 11.00 A.M. of the next day. The order is reproduced as under :

(2.) . Notice was issued and, thereafter, Rule was also issued on 14-12-1983 and, thereafter, an affidavit-in reply has been filed by the Under Secretary concerned Shri D. V. Solanki on 8-7-1992 wherein it has been stated that the petitioner's apprehension was not well founded. His case had been considered by the Departmental Promotion Committee (hereinafter referred to as "the DPC") in June 1983, June 1987 and May 1991, but the petitioner was not found to be fit for promotion in any of these three DPCs and, therefore, there is no question of his promotion as Asstt. Labour Commissioner. It has also been submitted that the appointments to the post of Asstt. Labour Commissioner are governed by Assistant Commissioner of Labour Recruitment Rules, 1973 and according to Rule 2 of the said Rules, the appointments on the post of Asstt. Commissioner of Labour are required to be made by direct selection or by promotion of a person of proved merit and efficiency from amongst the Government Labour Officers and it has been stated that the mere absence of adverse remarks does not create any entitlement for promotion and, there must be positive good service record and, therefore, petitioner's grievance was unreal, imaginary and unwarranted and he was not entitled to any relief.

(3.) . A rejoinder to the affidavit-in-reply dated 25-8-1992 was filed by the petitioner stating that the petitioner has been illegally found to be unfit for promotion in June 1983 and he has submitted that the adverse remarks for the years 1978- 79 was conveyed to him on 15-6-1983, i.e., after a period of nearly five years and such adverse remarks was conveyed only before 15 days of the date of the DPC, only to deprive the petitioner of his due promotion and so as to make the petitioner's candidature suffer prejudice before the DPC. Although Mr. G. Singh, Labour Commissioner, has not been impleaded as a party by name, it has been alleged in the rejoinder against Shri G. Singh that he acted with ulterior and extraneous considerations, the petitioner had not been paid appropriate subsistence allowance during the period of suspension as was ordered in the year 1980, although a statement was made before this Court that the due subsistence allowance shall be paid. The petitioner had, therefore, filed contempt proceedings against Shri G. Singh, Labour Commissioner and he had to tender an unconditional written apology before the Court and the petitioner thus incurred the wrath of the then Labour Commissioner Shri G. Singh, who according to the petitioner, threatened him by saying that the petitioner will have to regret for this action and it is on account of this threat and wrath that adverse remarks of years 1978-79 were conveyed in June 1983 to mar the prospects of petitioner's promotion in an unlawful manner. However, the petitioner's adverse remarks for the years 1978-79 were expunged as late as in the year 1990 by the order dated 8-10-1990, the copy of which is at Annexure I. Thus, during the period between 1983-90 the consideration of petitioner's candidature, even if made, suffered the prejudice on account of the adverse remarks for the years 1978-79, which were expunged only in the year 1990, as stated above, and, therefore, the petitioner was wrongly denied the promotion during the years 1983-87, although the petitioner maintains that his promotion has become due in the year 1983 and on the basis of the C.Rs. for immediately preceding three years, he was to be promoted as Asstt. Labour Commissioner. It has also been submitted that the petitioner's representations against the C.Rs. were pending at the time when his candidature was considered by the DPC in June 1983 and June 1987 because the adverse remarks were expunged only in the year 1990, i.e., on 8-10-1990 and the petitioner is only left to speculate as to whether even in the year 1991, the year by which the adverse remarks for the years 1978-79 were expunged, his case was taken into consideration in his favour or not. It is, therefore, petitioner's grievance that during the period between 1983 and 1990, the adverse remarks had been illegally considered against the petitioner, resulting in a wrongful denial of promotion during the intervening period; otherwise the petitioner was due for promotion in the year 1983 and in view of the expunction of remarks, there was no adverse material whatsoever against the petitioner in the C. Rs. of three years preceding to the year in which the exercise to consider the cases of promotion was taken up, i.e, in the year 1983. It has been specifically stated that there was no adverse remarks for the years 1979-80 and 1980-81 and no C. Rs. were written between 1981 and 1983 because the petitioner was under suspension and if at all there is any adverse material against the petitioner after 1983, it was because of the contempt proceedings and thus, there was no basis for not selecting the petitioner in the DPC, which met in 1983. The petitioner has submitted that the respondent be called upon to produce the documents submitted to DPC. It has been then submitted that the petitioner was due to cross Efficiency Bar in the year 1978-79 and in fact, he was allowed to cross Efficiency Bar with from 1-9-1978 by order dated 14-3-1983 and similarly by an order dated 16-1-1991 he was allowed to cross Efficiency Bar with effect from 1- 9-1983, i.e., the date when he was due to cross such Efficiency Bar. Petitioner's contention is that so-called adverse C.Rs., prior to the crossing of the Efficiency Bar, loses its significance and could not be considered against the petitioner and the same has been unlawfully considered against him. The copies of the orders, by which the petitioner was permitted to cross Efficiency Bar, have also been enclosed with the Rejoinder. On these facts, the petitioner maintains that he could not be denied the promotion in June 1983 when he first became due for promotion and he was also entitled to further promotions, as were given to his juniors, in the year 1987 or thereafter.