1. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs :
"(A) Directing the Respondents to modify the order dt. 13.7.2010 granting the higher grade scale to the petitioner from 25.10.1998, and instead to grant the same from 25.10.1997 and pay the arrears with 10% interest.
(B) Quashing and setting aside the adverse remarks communicated to the petitioner by the letters dt. 27.4.1993 and to direct the respondents to grant the higher grade scale from 25.10.97.
(C)Quashing and setting aside the order dt. 30.9.2011.
(D)During the pendency and final disposal of this petition, the Respondents may be directed to substitute the date 25.10.97 for the date 25.10.1998 in the order dt. 13.7.2010.
(E)To grant such and further relief as may be deemed fit and proper".
2. The facts arising out of this petition can be summarized as under.
3. The petitioner was serving as Supervisor Instructor in I.T.I, Maninagar, Ahmedabad and was appointed on 25.10.1988. It transpires that vide order dated 13.7.2010 the petitioner was granted the first higher grade scale with effect from 25.10.1998 instead from 25.10.1997, the date on which according to the petitioner, he had completed nine years service as per Government Resolution dated 16.8.1994.
4. The said action of the respondent was challenged by the present petitioner by way of filing Special Civil Application No. 15791 of 2010, wherein this Hon'ble Court vide order dated 19.7.2011 passed the following order :
"Heard learned advocates appearing on behalf of respective parties.
In present petition, prayer is made by petitioner in paragraph 12 to direct respondents to modify order dated 13th July, 2010 granting higher grade scale to petitioner from 25th October, 1998 and instead of granting same from 25th October, 1997 and further prayer is made to set aside adverse remarks communicated to petitioner by letter dated 27th April, 1993.
Learned advocate Mr. Supehia submitted that adverse remarks which has been made by order dated 27th April, 1993 at page 25, it is made clear by respondent in paragraph 2 that this adverse remarks cannot be considered as adverse against petitioner in respect of service condition (benefits), but, it is issued for improvement of work of petitioner. Therefore, it has been brought to notice of petitioner by order dated 27th April, 1993. The representation against aforesaid adverse remarks dated 27th April, 1993 is also not permissible, since it is not considered as adverse note which may come in way of petitioner for getting any service benefits. Therefore, learned advocate Mr. Supehia submitted that order which has been passed on 27th April, 1993 has been considered by respondent, at page 9 in order dated 13th July, 2010 at Item No.4, where name of petitioner is there. Because of adverse note or remarks in year of 1992-93 dated 27th April, 1993 made against petitioner, benefit of higher grade has been made available w.e.f. 25th October, 1998 instead of 25th October, 1997. Learned advocate Mr. Supehia also submitted that representation has been made by petitioner which has been rejected on 30th July, 1993, page 26.
In light of this background, when adverse remark is not considered as adverse against petitioner or having no adverse consequences in service benefits then, it should not have to be considered against petitioner while considering case of petitioner for higher grade benefits. Let this aspect be re-examined by respondent and reconsider order dated 13th July, 2010 in view of Item No.2 of order dated 27th April, 1993 and thereafter to pass appropriate reasoned order in accordance with aforesaid order dated 27th April, 1993 and also to consider one important fact that if adverse remark which has been communicated to petitioner as per Item No.2 of letter dated 27th April, 1993 if it is not operating against petitioner for getting service benefits, then, why it has been considered against him for granting higher grade benefit. Let this aspect may be reconsidered and re-examined by respondents within a period of three months from date of receiving copy of present order and communicate decision to petitioner immediately.
In view of above observation and direction, present petition is disposed of by this Court without expressing any opinion on merits.
Direct service is permitted."
5. It further transpires that as per the direction issued by this Court (Coram : H.K.Rathod, J, [as His Lordship then was]), the State Government vide order dated 30.09.2011 maintained the same order whereby the first higher grade scale was given with effect from 25.10.1998. Being aggrieved by the said order the present petition is filed.
6. Heard Mr. I.S. Supehia for the petitioner and Ms. Hansa Punani, learned Assistant Government Pleader for the respondent on advance copy.
7. Mr.
Supehia has taken this Court through impugned order and has submitted that as per Resolution dated 16.8.1994, the petitioner was entitled to first higher grade scale on completion of nine years service. However, because of the adverse remarks made on 27.4.1993 the petitioner has been denied the said benefit for a period of one year. Mr. Supehia further submitted that the representation made as per order passed by this Court in Special Civil Application No.15791 of 2010 is not properly considered. Mr. Supehia further relying upon the judgment of this Court in case of K.M.Parmar Vs. State of Gujarat being Special Civil Application No. 6955 of 1997 dated June 29,1999 has submitted that the petitioner can challenge the adverse remarks as and when the petitioner is affected by it and therefore submitted that the said decision taken by the impugned order dated 30.9.2011 is erroneous and the petition deserves to be accepted and the petitioner should be given benefit of first higher grade scale from completion of nine years from 25.10.1997 and the above remarks communicated to the petitioner vide communication dated 27.4.1993 also deserves to be quashed and set aside by this Court.
8. Per contra Ms. Punani, learned Assistant Government Pleader, appearing for the respondent has supported the order made in the petition.
9. As per order dated 30.9.2011 the respondent authority has taken into consideration the submissions made before it and has come to the conclusion that the petitioner is entitled to first higher grade scale from 25.10.1998. It is worthwhile to note that vide communication dated 27.4.1993 the petitioner was communicated as regards adverse remarks. It is an admitted position that the petitioner made submissions against the said adverse remarks vide communication dated 19.5.1993 and by order/decision dated 31.3.1993 the competent authority decided the said objection raised by the petitioner and maintained adverse remarks. The authority below has further recorded in the order impugned in the present petition that thereafter again the petitioner approached the competent authority by further application dated 14.10.1994 and 15.11.1994 and even those two applications filed by the petitioner were considered by the respondent authority and the petitioner was informed on 21.1.1995 that the adverse remarks are maintained.
10. From the above facts it is crystal clear that the petitioner has not challenged the said decision dated 30.7.1993 as well as 21.1.1995 whereby the authorities twice considered the adverse remarks made. It is for the first time that by way of filing Special Civil Application No. 15791 of 2010 the petitioner challenged the same. The authority below as per the order passed by this Court vide order dated 19.7.2011 passed in Special Civil Application No. 15791 of 2010 has considered the case of the petitioner and it has been re-examined. Only because the petitioner has right to challenge the adverse remarks at any point would not take the case of the petitioner any further. From the above facts, it transpires that the petitioner did make further applications and those applications were also considered and ultimately the adverse remarks are maintained and therefore the decision taken by the authority at the first instance itself is legal and proper. The authority below has committed no error which requires any interference of this Court in its extraordinary jurisdiction under Articles 226 of the Constitution of India. The petition therefore devoid of any merits and the same is hereby rejected. The parties to bear their own costs.
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(R.M. Chhaya, J.) M.M.BHATT Top