Y V THATTE Vs. STATE AND MAHARASHTRA

JUDGEMENT

(1.) This petition has been placed before this Full Bench because the Division Bench which heard this petition took the view that there is a conflict between the decision of the Division Bench in Shankar Atram v. Chief Conservator of Forest (1977 Mh LJ 536), and the other decision of the Division Bench in Nathu v. Commissioner, Nagpur Division (1983 Mh LJ 1108), and that this conflict needs to be resolved in the light of the three decisions of the Supreme Court in Gurdial Singh v. State of Punjab (AIR 1979 SC 1622), Union of India v. N. E. Reddy [1980-I L.L.J. 7] and Brij Biharilal v. High Court of M.P. (AIR 1981 SC 594). In Shankar's case (supra) the Division Bench took the view that the absence of communication of adverse remarks to a public servant does not prevent the authorities from taking the confidential reports into consideration while determining the suitability or otherwise of the Government servant for promotion and that when a person has been provisionally promoted subject to obtaining the opinion of Public Service Commission and then on proper scrutiny he has been found unfit and the order of reversion is passed on consideration of confidential reports, it must be presumed that the order of reversion is passed in due course and is not arbitrary unless the said order is shown to have been made mala fide.

(2.) In Nathu's case (supra) a Division Bench consisting of two of us (Mohta and Dhabe, JJ) following the decision in Gurdial Singh's case, (supra) and Brij Biharilal's case (supra) has taken the view that if adverse remarks are not communicated then the claim for promotion cannot be rejected by taking into account such adverse remarks. Before we refer to what has been described as a conflict and to the relevant decisions of the Supreme Court and other cases cited before us, it is necessary briefly to set out relevant facts leading to the filing of this petition.

(3.) The petitioner who holds a Master of Arts Degree in Economics and stood First Class in Nagpur University, held substantively a Class II Gazetted post having been confirmed on 8th April, 1976 with retrospective effect from 14the January, 1974. He was promoted to Class I post by an order dated 14th January, 1974 as a stop-gap arrangement, but it appears that he requested the Government for his being continued in Class II cadre and therefore at his own request, the promotion order was treated as cancelled by Government Resolution dated 21st October, 1975 and he was allowed to continue in Class II post. The petitioner was again promoted by an order dated 15the April, 1976 to Class I post and this was also by way of stop-gap arrangement until further orders. The order dated 26th May, 1976 specifies that the petitioner was on trial for a period of one year from the date he takes over the charge of the post of Deputy Director. The petitioner joined his Class I post on 9th August, 1976, but immediately he went on leave and was in fact on leave from 16th August, 1976 to 2nd January, 1977. The petitioner's promotion on the trial basis was on the basis of the minutes of the meeting of the Departmental Promotion Committee held on 13th January, 1976. The Departmental Promotion Committee took the view that the petitioner and one another person S. B. Yasin should be on trial for a period of one year from the date of their promotions "as their records are not fully satisfactory". The minute which is filed along with the return as a part of Annexure - 9 reads as follows : "Special report on the performance of these two officers should be obtained to consider their further continuance in Class I posts." The Departmental Promotion Committee also indicated that the petitioner had been in Poona for over 4 years and should be transferred on his promotion out of Poona and posted in the Director's Office. Probably the Departmental Promotion Committed had an inkling that the petitioner would not accept the promotion and mentioned that even if he does not accept the promotion, he should be transferred from Poona District to other district.