MALAY BABULAL SHAH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioner challenges his supersession by his juniors in pursuance of the recommendations made by the Departmental Promotion Committee (for short, `the DPC') which met on 15.12.1997 for considering the case of persons eligible for promotion to the post of Executive Engineer (Civil). The petitioner was appointed as Junior Engineer, now designated as Assistant Engineer, through GPSC on 16.1.1979 and was initially posted at Capital Project Circle, Gandhinagar. After his appointment petitioner passed the requisite competitive examination for direct recruitment of Class I and Class II officers and in July 1980 petitioner was selected for class II post of Dy. Executive Engineer (Civil) and was appointed and posted as such at Godhra in Irrigation Department. The petitioner worked at various places under Panam Irrigation Project during the period from 1.8.82 to 25.9.84 after being transferred from Panam Project. From September 1994 petitioner was transferred to Narmada Water Resources and Water Supply Department, Gandhinagar, as Deputy Executive Engineer and until the filing of the petition the petitioner was working there. According to the seniority list of Deputy Executive Engineer (Civil) published by State Government on 27.3.1995 the name of the petitioner finds place at Sr.No. 220. In pursuance of the aforesaid recommendation made by the Departmental Promotion Committee persons below in the list have been promoted as Executive Engineer (Civil). The petitioner challenges his supersession on the ground of violation of Article 14 and 16 and contends that while promoting persons junior to him without there being any material on basis of which respondents could act to his detriment in the matter of promotion and not considering the petitioner for promotion while granting promotion to the juniors amounts hostile discrimination against the petitioner violating Articles 14 and 16 of the Constitution of India. The petitioner pointed out in this petition that after the Departmental Promotion Committee met in December 1997, petitioner was served with charge sheet dated 7.1.1998 in respect of alleged acts and omission committed while the petitioner was working at Capital Project Division in 1984. According to the charge sheet the period of alleged incident is spread over between 30.1.1984 to 8.4.1995. It is further contended that initiation of departmental enquiry subsequent to holding of meeting by Departmental Promotion Committee could not permit recourse to sealed cover procedure on the ground of alleged decision to initiate an enquiry against the petitioner in respect of alleged charges. The petitioner relies on a decision of this Court in Special Civil Application NO. 744 of 1998 Valimad Pirbhai Sanesra v. State of Gujarat and another decided on 7.7.1998 in which identical circumstances the adoption of sealed cover process by the very same Departmental Promotion Committee had met on 15.12.1997 for considering the case of persons eligible for promotion to the post of Executive Engineer (Civil) to which petitioner is also a candidate has held against the adoption of sealed cover procedure in the circumstances stated above. Petitioner's case is squarely governed by the decision in Special Civil Application No. 744 of 1998. It is further stated by learned counsel for the petitioner that Letters Patent Appeal No. 1354 of 1998 the aforesaid decision has also been since been dismissed.

(2.) It has also been urged by learned counsel for the petitioner that institution of enquiry by serving charge sheet on 7.1.1998, in respect of acts that has taken place between 30.11.1984 and 8.4.1985, is highly belated and deserves to be quashed on the principle enunciated by Supreme Court in State of Madhya Pradesh v. Bani Sngh AIR 1990 SC 1308 and State of Andhra Pradesh v. N. Radhakishan AIR 1998 SC 1833.

(3.) Learned counsel for the respondent has candidly urged that so far as the stage upto consideration of the petitioner by the DPC and adoption of sealed cover procedure is concerned there is no distinction between the case of the petitioner and the case of Mr. Sonesra, petitioner in SCA 744/98 decided on 7.7.98 and the adoption of the sealed covered procedure in the case of the petitioner when his case was considered by DPC cannot be defended. However, it was further urged by learned counsel that merely because the sealed cover procedure has been adopted in the case of the petitioner wrongly he does not become entitled to ipso facto for mandamus to promotion on the next higher post without considering the fact situation as it really exists on the date when promotion is actually to be accorded. It was urged by learned counsel that even in case where sealed cover procedure is not adopted and a person is included in select list recommended by the DPC, if before the date of considering actual promotion an incumbent is subjected to departmental enquiry he cannot be promoted notwithstanding his name being in the select list. For this purpose reliance was placed on clause (7) of the Government Resolution dated 23.9.81 which provides that where name of an incumbent is included in the select list but he is subsequently placed under suspension against whom criminal proceedings/departmental proceedings have been initiated cannot be promoted on the basis of his inclusion in the select list until he is completely exonerated of the charges against him. If the Government servant is completely exonerated of the charges he is to be promoted on the basis of position in the select list to the post which may have been filled on temporary basis pending disposal of the enquiry against him. If the exoneration is not complete the question of his promotion will have to be examined afresh. As enquiry against the petitioner has been instituted on 7.1.1998 with the furnishing of charge sheet and by that time the promotional exercise has not taken place petitioner could not have been promoted, even if his name is taken to be included in the select list recommended by the DPC. The case of petitioner cannot be higher than that. It was also urged by learned counsel for the petitioner that according to another decision of the Government contained in Resolution No. GAD No. SLT-1080/896/G-2 dated 2nd April 1993 the Government is required to consider the case of an incumbent for promotion on the basis of select list after two years of the initiation of such enquiry sheet if by the time the proceedings are not complete and consider whether to afford him promotion on the basis of inclusion in select list or not. However, that exercise falls within the sphere of discretion of the Government. As two years from the date of institution of charge sheet shall expire only in January 2000 petitioner's case for offering promotion on the basis of recommendation made by the DPC, and the committee in this connection shall be meeting on 15.12.1999, petitioner's shall be considered on the basis of recommendation made in the sealed cover by the DPC, on that date. Apart from this it was pointed out that after the initiation of enquiry in connection with acts and omissions pertaining to period 1984-85 petitioner has been served with another charge sheet dated 1.4.1999 which pertains to further irregularities committed by him between the financial year 1991-92 and a third charge sheet is also in the offing in connection with other irregularities in respect of which a preliminary enquiry is at the stage of finalisation.