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C.O. Kakkad Vs. State and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1981)22GLR794
AppellantC.O. Kakkad
RespondentState and ors.
Excerpt:
- - the petitioner complained that there was non-compliance with the government resolution of 8th march 1969 and therefore those remarks were no remarks at all. the petitioner, therefore, complained that mr. shukla was promoted and a further direction to give to the petitioner all consequential benefits like rank in the seniority list, payment of salary etc. therefore, the government while considering the case of the petitioner for promotion for the years 1977, 1978 and 1979 was clearly in error in taking note of those confidential reports prepared without considering the requirements contained in the government resolution of the year 1969. the case of the petitioner, therefore, is required to be reconsidered and also the confidential reports......was admitted and after it was admitted the under secretary to the government of gujarat filed the affidavit-in-reply. the petitioner has made serious allegations against mr. vaghela, the respondent no. 3 herein, who had allegedly developed personal prejudices and bias against the petitioner. in his affidavit-in-reply the under secretary to the government said that mr. vaghela would file a separate affidavit-in-reply and the government would rely on it. though the matter was admitted as back as on 5th april 1979 and the under secretary's affidavit-in-reply referred to just now is dated 3rd october 1979, the affidavit-in-reply of mr. vaghela is jet to come. this matter was fixed for final hearing for 12th july 1979. i asked mr. c.k. tackwani, the learned assistant government pleader for.....
Judgment:

N.H. Bhatt, J.

1. This is a petition filed by one Supervisor in the Roads and Buildings section of the Public Works Department of the State of Gujarat, the respondent No. 1 herein. The respondent No. 2 here is the Superintending Engineer and the respondent No. 3 is the Area Development Commissioner one Mr. B.P. Vaghela. The petitioner is occupying serial No. 414 in the seniority list and was due for promotion as a Deputy Engineer in February 1978 pursuant to the select list that was taken on hand to be prepared in the last part of the year 1977. But the order dated 8-2-1978 showed that he was not promoted but persons junior to him had come to be promoted as Deputy Engineers. The petitioner, therefore, made a representation to the Government complaining of the supersession. The respondent No. 3 who was his Executive Engineer at that time then communicated to him the memos containing adverse remarks of the years 1973-74, 1974-75, 1975-76 and 1976-77 contrary to and in breach of the instructions contained in the Government Resolution dated 8th March 1969 which provides that the adverse remarks are to be communicated in due time with a right of representation to the person concerned to have those remarks expunged or modified. The petitioner complained that there was non-compliance with the Government Resolution of 8th March 1969 and therefore those remarks were no remarks at all. The primary object of communication of remarks is to invite the attention of the concerned officer to the alleged lapses or drawbacks of his so that he may show improvement in future. The petitioner, therefore, complained that Mr. B.P., Vaghela, the Area Development Commissioner, who had personal prejudices against him, had after his representation, managed to send him the memos, based on old alleged adverse remarks and the petitioner, therefore, filed this petition for the purpose of various reliefs set out in paragraph 13 of his petition. The petitioner wanted that the promotional order of 8th February 1978 and all subsequent orders of promotions as Deputy Engineers should be quashed and the adverse remarks communicated by memos contained in Annexures B/1 to B/4 should be set aside. The petitioner further wanted a direction to be issued to the respondent to treat the petitioner as promoted as Deputy Engineer from the date on which his junior Mr. R.B. Shukla was promoted. The petitioner wanted alternatively a direction to consider the claim of the petitioner for promotion with effect from the date on which his immediate junior Mr. R.B. Shukla was promoted and a further direction to give to the petitioner all consequential benefits like rank in the seniority list, payment of salary etc.

2. Before this petition was admitted and after it was admitted the Under Secretary to the Government of Gujarat filed the affidavit-in-reply. The petitioner has made serious allegations against Mr. Vaghela, the respondent No. 3 herein, who had allegedly developed personal prejudices and bias against the petitioner. In his affidavit-in-reply the Under Secretary to the Government said that Mr. Vaghela would file a separate affidavit-in-reply and the Government would rely on it. Though the matter was admitted as back as on 5th April 1979 and the Under Secretary's affidavit-in-reply referred to just now is dated 3rd October 1979, the affidavit-in-reply of Mr. Vaghela is jet to come. This matter was fixed for final hearing for 12th July 1979. I asked Mr. C.K. Tackwani, the learned Assistant Government Pleader for the respondent State, as to why the affidavit of Mr. Vaghela was not prepared and produced. Mr. Tackwani had no explanation for it but he simply made a prayer that this indifference of the Department be condoned and that fresh time be given to the State to have the affidavit of the respondent No. 3 Mr. Vaghela. It is no doubt true that Mr. Tackwani did not specifically refer to the indifference of the Government but the tone of his prayer did suggest that. I see no reason to adjourn the hearing of this matter to enable the slack administration, one of the greatest litigants in this Court, to earn premium on its lethergy and inefficiency and the matter, therefore, is required to be decided on the fact? as they are. The Under Secretary's affidavit-in-reply shows that the petitioner was not considered fit for promotion on three occasions in the years 1977, 1978 and 1979 because of his confidential reports. The confidential reports, in order to have any value, should have been prepared in the manner laid down by the Government itself in its resolution. Nothing of the sort appears to have been done. Therefore, the Government while considering the case of the petitioner for promotion for the years 1977, 1978 and 1979 was clearly in error in taking note of those confidential reports prepared without considering the requirements contained in the Government Resolution of the year 1969. The case of the petitioner, therefore, is required to be reconsidered and also the confidential reports. The case of the petitioner is directed to be considered at the time the select list of the year 1977 had come to be made which select list ultimately started operating from 8th February 1978. The petitioner's case will be examined in the manner said above and he will be accorded promotion if he is otherwise found to be fit. The adverse confidential reports which were not communicated to the petitioner in the manner laid down by the Government Resolution of the year 1969 cannot be taken into account and are directed not to be taken into account while assessing the merits of the petitioner.

3. The petition is accordingly allowed by directing the respondent No. 1 to consider the claim of the petitioner for promotion with effect from the date on which the petitioner's junior Mr. R.B. Shukla was promoted and the respondent no. 1 is directed to extend to the petitioner all consequential benefits, if his case is otherwise fit. Rule is accordingly made absolute with costs with a further direction that this writ is to be complied with within a period of three monthe from the date of the receipt of this High Court's writ by the Government.


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