B.K. Mehta, J.
1. The petitioner is working as a Supervisor Instructor in the Industrial Training Institute at Ankleshwar which is an institute under the administrative control of the Director of Employment and Training-respondent No. 2 herein. The next post in the avenue of promotion is that of Foreman which is to be filled in in the ratio of 1:3 by direct recruitment and promotion respectively. According to the petitioner, his confidential remarks upto October 26, 1979 were not such as could be considered to be adverse. According to the seniority list published on July 12, 1977 for the cadre of the petitioner, he was shown at Sr. No. 34 while respondents Nos. 3 to 15 were shown as junior to the petitioner. He was, therefore, entitled to be considered for promotion as foreman. However, the petitioner has not been considered for promotion as a foreman when 16 posts were to be filled in in the said cadre in 1979-80. Respondents Nos. 3 to 15 were promoted to the post of foreman by different orders made in 1979 and 1980. He, therefore, challenges these promotions as violative of Articles 14 and 16 of the Constitution and prays for appropriate writ, order and direction for quashing and setting aside the impugned orders of promotions and enjoining the respondents Nos. 1 and 2 to consider the petitioner for promotion and give promotion to him above respondents Nos. 3 to 15.
2. This petition has been resisted by respondents Nos. 1 and 2, and an affidavit of one Shri. S. Dayal, Director of Employment and Training, has been filed on behalf of the said respondents. Respondents Nos. 4 and 9 to 15 have been served, but have not made their appearance while respondents Nos. 3 and 5 to 8 have not been served. It has been contended, inter alia, in the affidavit-in-reply that a departmental inquiry has been instituted against the petitioner for the serious act of misconduct of quarrelling with H.G. Gandhi who happened to be Craft Instructor and Electrician on January 19, 1979, and for assaulting him in the Chamber of the Principal of the Institute in presence of the Principal as well as other members of the staff. The Director of Employment and Training had issued orders in that behalf on September 24, 1979 and since charges against the petitioner are of serious nature and are likely to lead to a major penalty in case they are proved, the petitioner's promotion is temporarily withheld pending the result of the departmental inquiry in terms of the Government resolution dated December 17,1979 and the Government Circular dated May 24, 1966, which prescribe that if a Government servant faces an inquiry of serious charges which is likely to result in major penalty his case should not be considered at the time of preparing select list and such employee should not be placed on the select list even if found proper until the result of the inquiry is declared, and even if he is exonerated in such a departmental inquiry, it is not necessary to review the decision about the select list drawn earlier and the Government servant or the officer is entitled to be included in the select list prospectively. It is, therefore, contended in the said affidavit in reply that withholding of promotion in terms of the Government resolution and circular would not amount to penalty as contended by the petitioner.
3. At the time of admission of this petition, interim relief has been granted by this Court that the promotions to the posts of foreman made on or after February 8, 1980 would be expressly subject to the result of the petition.
4. An identical question had arisen in Special Civil Application No. 277 Of 1980 decided on April 23, 1980 (Dr. D.N. Chatterji v. State 1980(2)-XXII(2) G.L.R. 108) where promotion of the petitioner in that case who happened to be a Medical Officer in view of the two inquiries contemplated against him in terms of the aforesaid circular and the Government resolution was challenged on the ground that non-promotion in terms of the aforesaid Government resolution virtually amounted to awarding a minor penalty without following the procedure prescribed in Rule 11 of the Gujarat Civil Services (Discipline & Appeal) Rules, 1971, and the aforesaid two circulars were ultra vires Rule 6 read with Explanation 3 of the Gujarat Civil Services (Discipline & Appeal) Rules, 1971, inasmuch as administrative instructions contained in the said two circulars were clearly inconsistent and contrary to the said rules, and also because the directions contained in the said circulars were arbitrary and unchanalised and without any rational basis or criteria and, therefore, violative of Article 14 of the Constitution of India. This Court, by its order of April 23, 1980 upheld the first two contentions and did not go into the larger question of the said circular and the resolution being violative of Articles 14 and 16 of the Constitution. After considering the Government circular of May 24, 1966 and also the resolution of December 19, 1979, it has been held as under:.. The conjoint affect of these two circulars, namely of May 24, 1966 as clarified by the last circular of December 19, 1979 is that the Government servant concerned, if exonerated in the inquiry, would net be restored to his original position and would be included in the select list prospectively only. The clarificatory circular of December 19, 1979, clearly enjoins that it is not at all necessary to consider the position de novo as if the exonerated Government servant is included in the original list retrospectively. In other words, the exonerated Government servant or officer would not be restored to the status-quo anti prevailing at the time of preparation of the select list
This Court thereafter proceeded to consider the contentions of the petitioner of that case whether non-promotion of the said petitioner on the ground of impending inquiries against him in view of the aforesaid two circulars amounted to awarding a minor penally and whether the directions contained in the said two circulars were ultra vires Rule 6 read with Explanation 3 of the Gujarat Civil Services (Discipline & Appeal) Rules, 1971. It has been held in that case that non-promotion amounted to penalty because it was a case of non-promotion on the ground of two impending inquiries and not on the ground of administrative convenience, and it was, therefore, violative of the said statutory Rules. This is what I have held in terms in the said case.. The clear admission of the State Government in its affidavit-in-reply that the name of the petitioner was not included in the select list though he was found fit for promotion on consideration, because there were two impending inquiries against him, would virtually amount, as rightly contended by the learned Advocate for the petitioner, a penalty; because, it is not the case of non-promotion on the ground of administrative convenience. The non-promotion of the petitioner on the ground of the two impending inquiries against him would, in my opinion, amount to a penalty because it cannot be urged without violence of the language that it was justified or imposed on the ground of any administrative reason or convenience, and it would be violative of Article 16 of the Constitution of India. Same view has been taken by the Andhra Pradesh High Court in Sri G. George v. I.G. of Police and Anr. 1973(2) S.L.R. 131.
Accepting the second contention that the direction contained in the two circulars were ultra vires Rule 6 read with Explanation 3 of the Gujarat Civil Services (Discipline & Appeal) Rules, 1971, I held as under:
The second contention of the learned Advocate for the petitioner is also wellfounded that the impugned circulars in so far as they enjoin the Select Committee or the Appointing Authority from excluding Government servant or officer from being included in the select list or from being promoted on the ground of pending inquiry and even in case of their exoneration at the end of the inquiry, would not entitle them to be restored to all the benefits which would have accrued to them, if they had been included in the select list or for that matter promoted, are clearly violative of Rule 11 of the Discipline and Appeal Rules, 1971 because a penalty is virtually directed to be imposed without following the procedure prescribed for imposition of minor penalty, In the view which I am taking on the first and second contentions urged on behalf of the petitioner, it is not necessary for me to decide the third contention urged by Mr. Mehta that the impugned circulars are violative of Article 14 of the Constitution inasmuch as they provide arbitrary and unchanalised power.
The impugned circulars in so far as they issue administrative instructions in the matter of inclusion or otherwise of the names of the Government servants or officers against whom preliminary or regular disciplinary inquiries are pending, must be eld to be ultra vires Rule 6 read with Explanation (3) and Rule 11 of the Discipline and Appeal Rules, 1971 and, therefore, they are void and ineffective and the name of the petitioner cannot, therefore, be excluded from the select list in view of these two circulars which are non est for all intents and purposes.
5. For the reasons stated in the said decision, the grievance of the present petitioner before me is wellfounded.
6. The result is that the State Government ought to have included the petitioner for being promoted in the list and the decision of the State Government should be kept in a sealed envelope in abeyance till the completion of departmental inquiry pending against him, and in case he is exonerated, he should be promoted as if he was promoted at the time when the orders of promotions were made in case of the respondents, and particularly respondents Nos. 9, 14 to 15 on February 2, 1980. This is precisely the procedure prescribed in Rule 13 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 and the State Government should adopt and apply the procedure prescribed in the said Rule 13 of the aforesaid Rules in future in such cases. It should be recalled that in the decision in Special Civil Application No. 277 of 1980 the aforesaid two circulars have been quashed and set aside in the following terms:.. Therefore, the two circulars of May 24, 1966 in so far as it issued directions in para 4 as to whether names of delinquent Government servants or officers against whom departmental or preliminary inquiries are pending, should be included in the select list or not and the clarifications made in the latest circular of December 19, 1979, Annexures 'G' and 'H' respectively are to that extent quashed and set aside....
It is, therefore, not necessary to grant that relief here again. It should be noted that respondents Nos. 3, and 5 to 8, who are admmedly junior to the petitioner, are not served of the Rule issued in this petition, but that will not affect the result of this petition since this Court had by its order of February 8,1980 issued ad-interim relief directing the respondents Nos. 1 and 2 not to fill in one post of foreman by promotion and rest of the posts to be filled in by promotion will be expressly subject to the result of this petition. The authorities concerned have also, I am told by Mr. Jadeja for respondents Nos. 1 and 2, intimated the respondents that their promotions are subject to the result of this petition. The State Government shall be at liberty to decide the question of inter se seniority in the promoted cadre between the petitioner and the respondents, who are not served viz. Nos. 3 and 5 to 8, if at all that question is raised, according to correct legal principles and in light of the directions given in this judgment.
7. The result is that this petition is allowed accordingly and the rule is made absolute to the aforesaid extent with no order as to costs.