LAWS(GJH)-1977-12-14

JITENDRA JAYANTILAL JOSHI Vs. STATE OF GUJARAT

Decided On December 21, 1977
JITENDRA JAYANTILAL JOSHI Appellant
V/S
STATE Respondents

JUDGEMENT

(1.) In 1963 the petitioner was directly recruited as 4 Mamlatdar through Public Service Commission. In or about 1965 he passed the Revenue Qualifying Examination and was confirmed as Mamlatdar on 3 September 1965. In 1974 he was due for promotion to the higher post. Since an enquiry had been pending against him his case was not considered for promotion and he was passed over. In 1977 the two enquiries pending against him have concluded. In both he has been found guilty. In one he was punished with the stoppage of one increment with out future effect and has also been censured. In another enquiry also he has been found guilty and has been punished with withholding of two increments with cumulative effect. Since his case for promotion to the higher post was not considered during the pendency of two the departmental enquiries against him he filed this petition in 1975 in which he wants this Court to direct respondents 1 to 4 to consider him for promotion to the higher post of a Deputy Collector. He also wants this Court to issue a direction that all adverse remarks and the pending and contemplated enquiries be ignored. Next he wants this Court to quash the Government order dated 6th November 1974 (Annexure H) which directed enquiries to be instituted against him.

(2.) The first contention which Mr. Doshi has raised before me is that the petitioner merely on account of the pendency of enquiries against him could not have been denied consideration for promotion to the higher post. According to him denial of consideration to the petitioner for promotion to the higher post was a result of the Government Resolution dated 24th May 1966 which according to him is constitutionally invalid. He has stressed vehemently his contention that since in the eye of 9 law the petitioner was entitled to be considered for promotion to the higher post at the time when he was denied that consideration the result of the two enquiries cannot be taken into account. I am unable to agree with him that the result of the two enquiries which is against him can be overlooked while deciding this petition even though it is a subsequent event. Though this action was instituted during the pendency of an enquiry the final order in this action must be shaped in light of the final result of the enquiry if the enquiry is concluded because to ignore the final result of the enquiry and to make an order will not only mean one sided approach to the case but wilt lead to unworkable orders which will have no value whatsoever. A court of law does not make an order which is unworkable or academic. Therefore while deciding the petition of this type it is necessary to take into account the entire chain of events so as to enable the Court to make a workable order finally. Sometimes a petition which was filed to serve a very good purpose becomes infructuous on account of the happening of a subsequent event. There is no point in deciding such an infructuous petition after ignoring the subsequent event which has rendered it infructuous. Therefore though Mr. Doshi has very strenuously pressed before me that this petition should be decided in light of the circumstances which prevailed when it was instituted and not in light of the totality of circumstances prevailing till the date of its decision his request cannot be acceded to for the reasons which 1 have stated. Firstly there is no point in deciding an infructuous petition and secondly any decision which a Court of Law records must be one which is capable of implementation. The view which I am expressing finds support in the decision of the Supreme Court in Piare Lal v. Union of India and Others A.I.R. 1975 S.C. 650. Mr. Doshi has cited a number of decisions in support of his contention that in spite of the pendency of the enquiries against the petitioner he was entitled to being considered for promotion to the higher post. It is not necessary to refer to any of those decisions because the principle which applies to the case of a pending enquiry does not necessarily apply to a case of a concluded enquiry. In the instant case the two enquiries which have been pending against the petitioner when the petition was filed have been concluded during the pendency of the petition. Therefore reference to several decisions cited by Mr. Doshi is unnecessary. The difference between a pending enquiry and a concluded enquiry in. my opinion; is as follows. In case of a pending enquiry the delinquent has equal chances of being found guilty or innocent. Therefore during the pendency of an enquiry no assumption that he will be found guilty can be made. Therefore his consideration for promotion to a higher post cannot be withheld on any such express or implied assumption. If consideration for promotion to a higher post is denied to a delinquent at the material time gross injustice will be done to him if ultimately he is exonerated of the charges levelled against him. In such a case. can he be made to suffer for no fault of his ? Since we are wedded to the philosophy that an innocent person cannot be made to suffer directly or indirectly he g enquiry is not considered to be a good ground for denial of a the consideration of a delinquent for promotion to the higher post. In such a case what is done is to consider him for promotion to the higher post to record the decision in that behalf and if the decision is in his favour to promote him to the higher post in case he is exonerated from the charges levelled against him and with effect from the date on which he became due for promotion to the higher post. These considerations do not and cannot govern the case of a concluded enquiry in which a delinquent has been found to be guilty and has been punished. Such a situation has already ruled out his chances of exoneration from the charges levelled against him. He has been found positively guilty of something. To ignore this result and to issue a direction which Mr. Doshi on behalf of the petitioner has strenuously asked me to issue is to nullify the result of the depart mental enquiry and to restore the delinquent to the position which obtained before the enquiry was instituted against him. In the instant case even though the petitioner has been found to be guilty in two departmental enquiries if I issue a direction to the Government to consider him for promotion to the higher post and if I do so while ignoring the result of the two enquiries it may lead as well to his promotion If it leads to his promotion he will be entitled to a higher salary with effect from the date on which he became due for promotion. If he gets or becomes entitled to a higher salary I have no doubt in my mind it it will nullify two punishments of withholding two increments with cumulative effect and stoppage of one increment without future effect and will also cut across the punishment which has been accorded to him. It is impossible under these circumstances to accede to the argument which Mr. Doshi has raised before me. To do so is to unduly disturb the public administration by judicial pronouncements to introduce chaos in it to bracket the guilty and the innocent together and to protect the inefficient incompetent and corrupt. A court of law cannot lend its hand to such a situation.

(3.) Therefore so far as the consideration of the petitioner for promotion to the higher post is concerned all that can be said is that the Government after taking into account all the circumstances attending upon his career will record a final decision. If the petitioner is aggrieved by that final decision which would be the outcome of all circumstances attending upon his career it is open to him to challenge it. He cannot ask me to do anything more at this stage.