M.R. Calla, J.
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 :
'Rule. Having regard to the decision of the Supreme Court in Corporation of the City of Nagpur v. Ramchandra and others 1981 (2) SCC 714, the respondents will reinstate the petitioner in service forthwith, that is to say, from 11.00 a.m. tomorrow and the petitioner will be permitted to report for duty to the second respondent and he will be given appropriate posting upon his reporting for duty. The fact that in acquittal appeal has been admitted, makes no difference on the legal position enunciated in the decision of the Supreme Court referred to above because mere admission of the acquittal appeal does not amount to suspension or revocation of the order of acquittal.
This order has been passed in the presence of Mr. M.S. Shah'.
The order was passed by this Court on 29-12-1982 and, therefore, the petitioner was required to be reinstated by 11.00 a.m. on 30-12-1982. However, the orders were not issued in compliance of the Court's order dated 29-12-1982 and the Government preferred a Letters Patent Appeal No. 473 of 1982 before the Division Bench and on 7-4-1983 the Letters Patent Appeal was dismissed, yet the order with regard to the petitioner's reinstatement was not issued and the petitioner had to file a Contempt Petition being Misc. Civil Application No. 384 of 1983 and only thereupon the Government Resolution dated 3-5-1983 was issued reinstating the petitioner and he was posted at Bhuj on 9-5-1983. It was mentioned in the order dated 3-5-1983, as a remark, that previous suspension period will be regularised afterwards and against this remark, the petitioner filed yet another Contempt Petition, which was admitted. In May 1983 itself the exercise for promotion was to be undertaken and, therefore on 11-5-1983 the petitioner made a representation to the Secretary, Labour and Employment Department, copy of which has been placed on record as Annexure 'B'. According to the petitioner, there were 15 vacancies of Asstt. Labour Commissioners, out of which 3 posts were selection posts and the remaining 12 posts were to be filled by promotion. Petitioner's case is that in the seniority list of Government Labour Officers as on 30-8-1980, i.e., Annexure 'C' with the petition, his name was at Sr. No. 29 with the date of joining as 12-8-1969. The petitioner has stated that no adverse remarks had been conveyed to him and according to the relevant rules, 3 years C. Rs. were to be considered while considering the cases for promotion. Petitioner apprehended that his case will not be considered and if considered, the same would not receive a fair consideration in the matter of promotion to the post of Asst. Labour Commissioner and, therefore, the present Special Civil Application was filed by the petitioner on 19-10-1983.
2. Notice was issued and, therefore, 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 petitioners has been illegally found to be unfit for promotion in June 1983 and he has submitted that the adverse remarks from 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 years 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 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 representation 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 year 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 effect 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.
4. The learned Counsel for the petitioner has submitted that the apprehension of the petitioner that he would be superseded came out to be true and he was superseded by his juniors in the DPCs, which had met in June 1983, June 1987 and May 1991 as has been stated in para 3 of the affidavit-in-reply filed under the signatures of the Under Secretary to the Government in Labour and Employment Department. The learned Counsel for the petitioner has stated that there was no adverse material against the petitioner on the basis of which he could be superseded inasmuch as he had been acquitted from the criminal case, in which he had been placed under suspension on 1-10-1980 and subsequently he was reinstated on the basis of the directions issued by this Court and so far as the adverse remarks for the years 1978-79, which were conveyed on 15-6-1983, are concerned, the same had been expunged by the Government by order dated 8-10-1990 Annexure A-1. Once his adverse remarks had been expunged in October, 1990, the Government was under an obligation to re-consider his case for the DPCs as they met in June 1983 and June 1987 and it cannot be said as to whether the order, by which the adverse remarks were expunged on 8-10-1990, was considered or not at the time when the DPC met in May, 1991. It has been further contended by the learned Counsel for the petitioner that he was allowed to cross Efficiency Bar twice, i.e., by order dated 14-3-1983 with effect from 1-9-1978, which was the due date for crossing Efficiency Bar and again with effect from 1-9-1983 by the order dated 16-1-1991. The learned Counsel for the petitioner contended that thus nothing could be said against his efficiency and his efficiency stands proved as he was allowed to cross the Efficiency Bar both time on due dated and the adverse remarks of the year 1978-79 have also become non-existent in view of the subsequent order passed by the Government in 1990 expunging those remarks. The learned Counsel for the petitioner has also argued with reference to the averments made in paras 1(iii), 16, 19(iv) and 21 of the Special Civil Application that the juniors to the petitioner, who were considered and promoted, are not meritorious and efficient as the petitioner, that those, who are juniors to him, had been considered though they are not in any way superior, efficient and much more meritorious to the petitioner, that he is senior to those, who have been considered for promotion and, therefore, the decision is arbitrary, illegal, null and void and further that only three years C. Rs. are to be considered as per the practice and there were no adverse remarks in the C. Rs. for the years 1979-80 and 1980-81 and it has been argued with reference to the pleadings in the Rejoinder that the then Labour Commissioner, Shri G. Singh, who had to tender an unconditional written apology before the Court in the Contempt Petition filed by him, got annoyed from him and that he gave the adverse C. Rs. for the years 1978-79 in June 1983, after he had to tender the unconditional apology on 28-3-1983 and those adverse remarks were conveyed on 15-6-1983, i.e., the very month in which the DPC met to consider the cases for promotion. It has also been argued that respondents ought to have produced the documents submitted to the DPC so that the conscience of the Court could be satisfied as to whether wrongful material was considered or not.
5. The learned A.G.P. has failed to produce the relevant records relating to the DPCs about which reference has been made in the affidavit-in-reply and, therefore, it is not possible for this Court, in want of the necessary records, to consider or say anything on the question of verification of the averments made by the petitioner in paras 1(iii), 16, 19(iv) and 21 of the petition, although the contents of these paras have not been specifically controvered or denied in the affidavit-in-reply. The Court is, therefore, not in a position to say anything about the relative merit and efficiency of the petitioner vis-a-vis his juniors, who were considered and promoted in preference to the petitioner, in DPCs which met in June 1983, June 1987 and, thereafter, in May 1991. The Court only regrets that such records, which were necessary to decide the correctness of the averments made by the petitioner, have not been produced. The request to produce the records was made by the petitioner, as contained in para 2 of the Rejoinder filed by the petitioner and yesterday, when the matter came up before the Court, Mr. Uraizee, learned A.G.P. had been specifically asked to produce the records and he had also agreed to produce the same, but neither the records have been produced nor any valid justification has been given for non-production of these records. The matter is on Board since 3-7-1995 and it is 27-7-1995 now. It is the duty of the learned A.G.Ps., appearing in such old matters, to keep the Officers as well as the records ready and I do not find any substance in the grievance made by Mr. Uraizee that sufficient time has not been granted to him for the production of the records and very strange objection that the Court had not passed any speaking order for production of the records has been raised, although it was made clear to him when the matter was taken up that the records may be kept ready and he himself had given out that the same shall be kept ready today, i.e., on 27-7-1995. Mr. Uraizee has also submitted that if the records are looked into, it will be a case of fishing inquiry. There is no question of fishing inquiry. The question is only to decide the correctness of the averments made by a particular party in the petition. Since these averments can be tested only with reference to the records, more particularly when there is no specific denial of these submissions in the affidavit-in-reply on behalf of the respondents, the Court can certainly look into such records for the purpose of verification of the correctness and propriety of such averments, which are verifiable only from the records available with the respondents, which cannot be available with the petitioner and such records are in the lawful custody of the respondents alone and no exception whatsoever can be taken to the perusal of such records by the Court and it can hardly be said to be a fishing or proving inquiry. The respondents firstly failed to deal with these averments by making a specific reply in the affidavit-in-reply, which has been filed and now lame excuses, for their total inaction, are being raised at the time of the arguments. It is noted with regrets no less than surprise, that in matters like this where the careers of the Government employees are involved and the matter may leave indelible imprint on the service career of the Government servant, the respondents are acting in such a lighthearted manner and a very sketchy reply in two leaves has been filed on behalf of the respondents and they have not even cared to file a para-wise reply of the petition what to talk of any counter to the rejoinder, despite the pendency of the petition for a period of over twelve years in this Court. Be that as it may, suffice it to say that in absence of the records, it is not possible for the Court to give any definite opinion either way on the averments, which have been made by the petitioner, which could be verified from the records only and hence this question is left undecided.
6. Learned A.G.P. has also submitted that the allegations have been levelled against Shri G. Singh, Labour Commissioner, in the Rejoinder only and there was no allegation of mala fide in the main body of the Special Civil Application not Shri G. Singh has been impleaded as a party by name, so as to deny the allegations made by the petitioner in the Rejoinder that on 28-3-1983 when the petitioner walked out of the Court, he met Shri G. Singh, who threatened him by saying that the petitioner will have to regret for his action. Mr. Uraizee, learned A.G.P. is right in his submissions that Shri G. Singh was not impleaded as a party by name in the petition, nor the allegations of mala fide have been levelled in the body of the Special Civil Application, as it was filed and the allegations, which are directed against Shri G. Singh, can be replied only by him and, therefore, there is no question of going into the allegations of mala fide levelled against Shri G. Singh for the first time in the Rejoinder and it cannot be appropriately said that it is a case of mala fide.
7. Now the only question, which remains for consideration, is as to whether the petitioner's candidature received a fair consideration in accordance with Arts 14 and 16 of the Constitution of India before DPCs, which met in June 1983, July 1987, and May 1991. Attendant and preceding circumstances to the point of time when the DPC met in June 1983 cannot be lost sight of. The petitioner, who had been placed under suspension in the year 1980 on account of his involvement in the criminal case, had been acquitted. Despite this acquittal, the reinstatement order were not issued. Petitioner had to approach this Court by way of filing a Special Civil Application. The Court passed the order, as has been quoted in the earlier part of the judgment, to reinstate the petitioner on the next day by 11.00 a.m. Such direction given by this Court was not complied with on a flimsy pretext that the Government was to file Letters Patents Appeal against that interim relief and Letter Patent Appeal was in fact filed, but the same was dismissed and despite the dismissal of the Letters Patent Appeal, the orders with regard to his reinstatement had not been issued for a period of more than three weeks and as against the order passed by the Division Bench on 7-4-1983, the orders were issued only on 3-5-1983 and the petitioner had to file Contempt Petition for the reinstatement and for certain benefits during the suspension period, not only once but twice. Despite the acquittal, suspension was not revoked on the pretext that Appeal against the acquittal had been preferred by the State, which was not held to be a sufficient ground for withholding the revocation of suspension, as is apparent from the order passed by the Court on 29-12-1982. Adverse remarks for the years 1978-79 were conveyed to the petitioner on 15-6-1983 when the DPC itself met in June 1983, and these adverse remarks were used against the petitioner before the DPCs which met in June 1983 and June 1987 and one is left only to presume whether these adverse remarks for the years 1978-79 were used before the DPCs of 1991 or not and as to whether the order, which was passed in the year 1990, as aforesaid; expunging the adverse remarks, was taken note of or not at the time when the DPC met in May, 1991 because the affidavit-in-reply filed by the respondents is conspicuously silent on this aspect of the matter so much so that in the affidavit-in-reply filed by the respondents, there in no reference, not even a murmur about expunction of the adverse remarks in the year 1990 whereas this affidavit-in-reply was on 7-7-1992 and by this time, the Government had expunged the adverse remarks against the petitioner in the year 1990 and the DPC had met in May 1991. In view of the factual position, that the matter with regard to the suspension of the petitioner, in the year 1990 (sic. 1980) on account of his involvement in criminal case, has become non-existent in view of the acquittal and the adverse remarks for the years 1978-79 had also been expunged in the year 1990; the Government should have readily come with the case that in the light of these facts, when the adverse material had become non-existent, the respondents were willing to re-consider his case as in June 1983, June 1987 and May 1991. Instead of taking such an upright and straight-forward stand, the matter has been sought to be contested on absolutely heper technical grounds.
8. The learned A.G.P. has submitted that per Rule 2 of the Assistant Commissioner of Labour Recruitment Rules, 1973, as has been submitted in the affidavit-in-reply, appointments to the post of the Assistant Commissioner of Labour are required to be made either by direct selection or by promotion of a person of proved merit and efficiency from amongst the Government Labour Officers and, therefore, what is required to be seen is positive good service record and mere absence of adverse remarks would not entitle one to such promotion and that the DPC had found the petitioner to be unfit on the basis of the consideration of his service records. So far as the legal proposition with regard to the selection for promotion, based on the criteria of merit and efficiency, is concerned, there cannot be any quarrel that the mere absence of adverse remarks would not necessarily mean that such government servant, against whom there were no adverse remarks, has the requisite merit and efficiency and no exception can be taken to this proposition of law. Nevertheless, the fact remains that in the case at hand, the adverse remarks were taken into consideration. Those adverse remarks had been later on expunged and, thereafter, whether the effect of expunction of these remarks was taken into consideration or not in the May 1991 DPC is not known. The petitioner's say is that he was allowed to cross Efficiency Bar not once, but twice from due dates i.e., from 1-9-1978 and from 1-9-1983 and orders allowing him to cross such Efficiency Bar were passed on 14-3-1983, which is a date in close proximity with the point of time when the DPC met in June 1983, and on 16-1-1991, which is also a date in close proximity with the point of time when the DPC met in May, 1991. There cannot be any doubt that if any adverse material is taken into consideration against a Government servant at the time when the DPC meets and such material has later on become no existent and if there are certain orders allowing him to cross Efficiency Bar from due date and there is uncertainly about the merit of juniors and as to whether all these facts were kept in view or not, in all fairness, the petitioner, who had suffered supersession, is certainly entitled to re-consideration of his candidature at the point of time when he was superseded. Whether the petitioner possesses the requisite merit and efficiency for the purpose of such promotion is certainly a question, which is to be decided by the DPC and this Court has not to go into that aspect of the matter, but the grievances, which are raised with regard to discrimination, have to be examined and similarly, if the Court finds that the candidature of the petitioner has not received a fair consideration within the meaning of Arts. 14 and 16, the Court has to give appropriate directions so as to undo the injustice meted out to the citizen, who has come to seek protection of the Court against the invasion of his fundamental rights under Art. 16 of the Constitution of India. There can not be any dispute that the consideration within the meaning of Art. 16 of the Constitution of India means a fair consideration, which in the present case, in my considered opinion, has been denied through to the petitioner in the DPCs for the promotion to the post of Assistant Labour Commissioner as and when they have met since June 1983.
9. In the result this Special Civil Application succeeds and the respondents are directed to re-consider the candidature of the petitioner for promotion to the post of Assistant Labour Commissioner in the Departmental Promotion Committees year-wise from June 1983 onwards and in case the petitioner is found to be suitable for such promotion for any year, i.e., 1983 or thereafter, appropriate orders promoting him on the post of Assistant Labour Commissioner from that year may be issued. In case the petitioner is found to be suitable and promoted, he will also be entitled to all consequential benefits including pay, seniority and further promotions, etc. as if he had been promoted as Assistant Labour Commissioner from due date. The directions, as aforesaid, shall be carried out immediately but in no case later that a period of three months from the date the copy of the writ is served upon the respondent. Rule is made absolute accordingly. No order as to costs. Direct service permitted.