BHARGDEV NARHARIPRASAD BHATT Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Heard learned Counsels for the parties. The petitioner by filing this Special Civil Application challenged the action of the respondent not to give him promotion to the post of Section Officer. His juniors were promoted under the order dated 26th June, 1981. The copy of that order has not been produced on the record nor any of the junior who has been promoted to the post of Section Officer under the aforesaid order has been impleaded as a party to this Special Civil Application. The petitioner has made a further prayer that the direction be given to the respondent of giving him the promotion from deemed date on which his juniors were promoted with all incidental benefits. The petitioner before approaching to this Court had made a representation to the respondent against his supersession in promotion and the respondent under the letter dated 13th August, 1981 has given the reply to the same. The respondent has come up with a case that the Selection Committee met on 6th July, 1981 to prepare the select list of Assistant eligible for promotion to the post of Section Officers and also to review the previous recommendations, while his (petitioner's) case was also considered, but the Committee has not found him suitable for the provisional selection. Why the petitioner was not found suitable for selection, three reasons had been given. The first reason has been given that there are adverse remarks in his Annual appraisal performance reports in respect of the following periods : From To 23-9-1974 31-3-1975 1-4-1976 31-3-1977 1-4-1977 31-3-1978 1-4-1978 1-3-1979 1-4-1979 31-3-1980 The second reason has been given that he was given penalty of censure and the reason was given that his increment had been withheld for a period of six months without future effect under the order of the department dated 26th June, 1979.

(2.) The Counsel for the petitioner made two-fold submissions. The first contention was made that the adverse remarks for the period from 3rd September, 1974 to 31st March, 1979 were not communicated to the petitioner. The adverse remarks for the year 1979-80 had only been communicated to him in August, 1981 vide memo dated 28th August, 1981. Against that adverse remarks, the petitioner filed a representation and it is the case of the petitioner that the adverse remarks have been deleted. It has next been contended that as per the Government circular the minor penalties of censure and warning could not have been taken into consideration for denying the promotion to the petitioner. The penalty of the censure and withholding of the increment are the minor penalties, and as such, these could not have been taken into consideration. The learned Counsel for the petitioner further contended that it is a case where the petitioner has been adjudged unsuitable on the basis of irrelevant considerations. On the other hand, learned Counsel for the respondent, Shri N. N. Pandya has contended that the criteria for promotion to the post of Section Officer is proved merit and efficiency. The circular dated 23rd September, 1981 provides that only censure or warning awarded or proposed to be awarded to the Government servant need not be taken into account while considering his case for promotion. The circular nowhere provides that the penalty of withholding of increment, may be a minor penalty, need not be taken into account while considering the case for promotion. Shri Pandya further contended that it is a case of promotion to be given on the criteria of proved merit and efficiency. Even if the adverse remarks and the penalty of censure is excluded then to the rejection of the petitioner for promotion was justified as he was having the adversity of withholding of grade increment. Shri Pandya carrying his arguments further contended that even if the irrelevant considerations are excluded then to the decision of the Selection Committee wherein the petitioner was adjudged unsuitable could have been there as the penalty of withholding of the grade increment still remains.

(3.) I have given my thoughtful consideration to the submissions made by the learned Counsels for the parties. The criteria for the promotion is proved merit and efficiency, and in case, the service record of the petitioner is not satisfactory and the adversity of the minor penalty is there, the Selection Committee was justified to adjudge him unsuitable for promotion to the post of Section Officer. The adverse remarks for the period from 23rd September, 1974 to 31st March, 1979 may not have been communicated and the adverse remarks communicated for the year 1979- 80 have been expunged, and further the penalty of censure could not have been taken into consideration, how that penalty of withholding of the grade increment could be excluded ? I have gone through the resolution of the Government dated 23rd September, 1981 and I do not find anything therein which provides for exclusion of the penalty of withholding of the grade increment while considering the case of an employee for promotion. The resolution is very specific and it excludes only the penalty of censure and/or warning awarded or proposed to be awarded to the Government servant while considering his case for promotion. In the presence of the adversity of withholding of grade increment, it cannot be said that the petitioner has illegally been superseded. A person who has to his credit the penalty of withholding of the grade increment which falls within the zone of consideration of the record for promotion was rightly not given promotion to the post of Section Officer where the criteria for promotion was proved merit and efficiency. No interference is called for by this Court sitting under Art. 226 of the Constitution of India. It is a case where even if the two other things the adverse remarks and the censured penalty are excluded, even then the Departmental Promotion Committee could have reached to the conclusion of adjudging the petitioner unsuitable for promotion to the post of Section Officer on the basis of adversity of withholding of the grade increment. In the result, this Special Civil Application fails and the same is dismissed. Rule discharged. Interim relief granted by this Court stands vacated.