IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 9050 of 1998 For Approval and Signature:
HONOURABLE MR.JUSTICE C.L. SONI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= IMATKHAN MUBARAKKHAN PATHAN - Petitioner(s) Versus FOOD CORPORATION OF INDIA & 2 - Respondent(s) ========================================================= Appearance :
MR US BRAHMBHATT for Petitioner(s) : 1, MR YF MEHTA for Respondent(s) : 1 - 3. M/S THAKKAR ASSOC. for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE C.L. SONI Date : 11/01/2012 CAV JUDGMENT
1. The petitioner, by way of this petition under Article 226 of the Constitution of India, seeks direction to the respondents to grant the benefit of selection grade on the post of Assistant Grade-II with effect from 1.12.1989 and further prays to quash office order dated 25.5.94 whereby the order dated 22.3.94 where-under the benefit of selection grade granted to the petitioner came to be cancelled. It is the case of the petitioner that the petitioner was already granted the selection grade with effect from 1.12.1989 by order dated 22.3.1994 but subsequently, said order dated 22.3.1994 has been cancelled vide order dated 24.5.1994 on the ground that the petitioner is involved in Vigilance Case and charge sheet dated dated 12.7.1993 and 10.1.1994 were issued to the petitioner. The petitioner has averred in the petition that the charge sheet dated 10.1.1994 is pertaining to the period of June, 1992 and charge sheet dated 12.4.93 was pertaining to the period of April, 1992; May, 1992 and July, 1992 and the third charge sheet dated 12.7.1993 was pertaining to the period of February, 1992 on the ground of occurrence of losses in the storage godown. The petitioner has further averred that he became eligible for the selection grade as on 1.12.1989 and there was no vigilance case or any charge sheet pending against him at that point of time. The petitioner has also stated that one Mr. AM Chunara was also similarly situated with the petitioner, in whose case also, vigilance case was pending and his case was considered for selection grade, still he was given benefit of selection grade with effect from 1.12.1989.
2. The petition was opposed by the respondents by filing affidavit in reply. It is stated in the affidavit in reply that the selection grade granted to the petitioner was cancelled on the ground that on the date on which selection grade was granted, vigilance case was pending against the petitioner. It is further stated that at the time of issuance of order of selection grade, it is to be seen whether any vigilance case is pending or not and in that case, selection grade available to an employee is required to be held back. It is pointed out that in the case of the petitioner, Zonal Promotion Committee held on 18.2.1994 considered the case of the petitioner for placement in selection grade in the post of AG-II(D) and vide order dated 22.3.1994, selection grade was granted to the petitioner subject to vigilance clearance. However, subsequently, it came to the notice that the petitioner was not free from vigilance and, therefore, selection grade granted to the petitioner was cancelled. In the reply, it is stated that the petitioner was already promoted to the post of AG-I (D) on 13.12.1991 and since the petitioner was not complying qualifying service in AG-I(D), the petitioner cannot be given selection grade in the post of AG-I(D). The petitioner has also filed rejoinder and further affidavits. The petitioner has come out with the case that out of three inquiries, he has been already acquitted in one case and in two other cases, he has been awarded penalty of only censure.
3. I have heard the arguments of learned advocates for both sides. Learned Advocate for the petitioner would submit that the petitioner was entitled for selection grade with effect from 1.12.1989 as there was no vigilance case pending against him. He would further submit that simply because his case was considered subsequently, delay in considering his case for selection grade would not come in his way for claiming selection grade with effect from 1.12.1989. He submitted that the petitioner was eligible for selection grade as on 1.12.1989 and when the selection committee met in the year 1994, three cases were pending but in respect of the three cases, except the penalty of censure, no other penalty was imposed. He further submitted that this penalty of censure cannot be taken into consideration for denying benefit of selection grade available to the petitioner as on 1.12.1989 because when he became eligible for selection grade on 1.12.1989, there was no case pending against him. He submitted that the penalty of censure is not required to be considered for denying the benefit of selection grade.
4. Learned Advocate Mr. Mehta, on the other hand, would submit that the relevant date for grant of selection grade benefit is the date of considering the case of an employee for selection grade. Learned Advocate Mr. Mehta submitted that the Zonal Promotion Committee met on 18.2.94 and on that day, case of the petitioner for selection grade was considered. As on 18.2.1994, three vigilance cases were pending against the petitioner but since the zonal promotion committee was not made aware about such vigilance case, benefit of selection grade was granted to the petitioner vide order dated 2.3.94. Learned Advocate Mr. Mehta submitted that however, when it came to the notice of the authority concerned, the selection grade was cancelled vide order dated 24.5.1994. He further submitted that as per the settled practice, selection grade is required to be held back and can be considered for release only when the vigilance case is over. He further submitted that there is no illegality in the order dated 24.5.1994 cancelling the selection grade granted to the petitioner vide order dated 22.3.1994. Learned Advocate Mr. Mehta also submitted that the petitioner has suppressed material fact which should disentitle the petitioner for claiming benefit of selection grade. Learned advocate Mr. Mehta submitted that the petitioner has already been promoted to the post of AG-I in the year 1991 and the petitioner has deliberately not disclosed this material fact because once the petitioner is promoted to the higher post with effect from 13.12.91, the petitioner was not entitled to the selection grade after his promotion to the post of AG-I(D). Learned Advocate Mr. Mehta further submitted that the petitioner is not justified in comparing his case with Mr. AM Chunara. He submitted that the selection grade of Mr. Chunara was also rejected but subsequently he took his grievance before the higher authority and he succeeded there and ultimately he was to be granted the selection grade benefit with effect from 1.12.1987. Learned Advocate Mr. Mehta would further submit that the petitioner has to stand on his own legs and he cannot ask for such benefit by comparing his case with the case of Mr. Chunara. Ultimately, he urged that even otherwise, the petitioner was not entitled to selection grade and prior to grant of selection grade in the year 1994, the petitioner was already promoted to the post of AG-I(D) in the year 1991. Learned Advocate Mr. Mehta would, thus, submit that the respondent authority has not committed any illegality in passing the impugned order dated 24.5.1994 and the selection grade granted to the petitioner was rightly cancelled. Learned Advocate Mr. Mehta would lastly submit that in any circumstances, the petitioner would not be entitled to the benefit of selection grade after 13.12.1991 i.e. the date on which the petitioner was promoted to the post of AG-I(D). Learned Advocate Mr. Brahmbhatt could not dispute the fact that the petitioner was promoted on the post of AG-I(D) on 13.12.1991. Under the circumstances, learned advocate Mr. Mehta is right in submitting that the petitioner was not only guilty of suppressing material fact about his promotion but he would not be entitled to the benefit of selection grade beyond 13.12.1991. Learned Advocate Mr. Mehta has thus urged that since the petitioner has not come with clean hands and since the petitioner was already promoted in the year 1991, the petitioner does not deserve any sympathy and this Court may not exercise the extra ordinary power under Article 226 of the Constitution of India in favour of such a person.
5. I have perused the record. I have also considered the arguments advanced by learned advocates for both sides. The record clearly reveals that the petitioner was promoted to the post of AG- I(D) on 13.12.1991. The selection grade benefit is a kind of incentive given to the employee because of the stagnation in promotion. Since the petitioner is already promoted to the post of AG-I(D) on 13.12.1991, there remains no stagnation after 13.12.1991 and, therefore, the petitioner was not entitled to selection grade on the post of AG-II after 13.12.1991. This brings me to a claim of the petitioner for selection grade with effect from 1.12.1989 till the date of his promotion to the post of AG-I(D). Learned Advocate Mr. Brahmbhatt for the petitioner has submitted that even if he was not entitled to selection grade after he was promoted to the post of AG-I(D), certainly, claim of the petitioner for selection grade prior to 1991 could not have been denied to him as he became eligible for selection grade as on 1.12.1989 and from 1.12.1989 till he was promoted in 1991, there was no vigilance case pending against him. There appears to be substance in the argument advanced by the learned advocate Mr. Brahmbhatt. Learned Advocate Mr. Mehta could not dispute that the petitioner had already become eligible for selection grade with effect from 1.12.1989 and till he was promoted to the post of AG-
I(D) on 13.12.1991, there was no vigilance case pending against him. In fact, it is not known and it is not brought to the notice of this court that though the petitioner was promoted in the year 1991, still, how, his case was put up for consideration of selection grade on the post of AG-II before Zonal Promotion Committee held on 18.2.1994. It is pertinent to note that as stated in the affidavit in reply of the respondents, on 18.2.1994, Zonal Promotion Committee considered the case of the petitioner for selection grade on the post of AG-II. Now, as on 18.2.1994, there was no question of considering the case of the petitioner for selection grade on the post of AG-II because the petitioner was already promoted in the year 1991. However, this Court is not required to delve into this aspect of the matter because indisputably, the petitioner was already promoted on 13.12.1991 to the post of AG- I(D) and the petitioner had already become eligible for selection grade as on 1.12.1989. Under the circumstances, this Court is of the opinion that the petitioner is entitled for selection grade for the post of AG-II with effect from 1.12.1989 till the date of promotion to the post of AG-I. Accordingly, claim of the petitioner for selection grade with effect from 1.12.1989 to 13.12.1991 is required to be accepted. Accordingly, this petition is allowed in part. The petitioner is held entitled for selection grade with effect from 1.12.1989 till the date of his promotion to the post of AG-I i.e. 13.12.1991. The Respondents are directed to confer benefits of selection grade to the petitioner as held above from 1.12.1989 to 13.12.1991 on the post of AG-II within the period of eight weeks from the date of this judgment and order. Rule is made absolute in terms indicated herein above with no order as to costs.
(C.L. Soni,J.) an vyas