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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Bhargav D. Karia, J.
K.M. Patel – Appellant
Versus
State Of Gujarat – Respondent
Special Civil Application No. 2087 of 2005; 19803 of 2005
Decided On : 10-06-2022
Constitution of India, 1950 – Article 12, 14, 226 – Water (Prevention and Control of Pollution) Act, 1974 – Section 11A, 12 (3A), 15 – Gujarat Water (Prevention and Control of Pollution) Rules, 1976 – Rule 15 – State Government, Gujarat Pollution Control Board (Recruitment) Regulations, 1999 – Power of High court to issue certain writs – Whether post of Chief Administrative Officer cease to exit on expiry in view of Government Resolutions so as to nullify appointment made by respondent – Whether regulations framed in year 1999 would be invoked to justify reversion of petitioner after eight years of his promotion – Whether petitioner had manipulated by not making available files relating to his promotion –Held, Who was Member-Secretary at relevant time was aware about the missing files since 1994 and it is petitioner who provided all other relevant documents to reconstruct file P-225(2) and after considering relevant documents as well as service record of petitioner, allegations made by respondents against petitioner for misrepresentation or fraud is also not tenable in facts of case and in view of preliminary inquiry report submitted coupled with fact that no further inquiry is held by respondent No.2- Board thereafter – In view of court finding that reversion of petitioner was illegal, question of applicability of pay scale of claimed by petitioner for post of Administrative Officer in Special Civil Application would become academic and therefore same is not dealt with – Petitioner has provided calculation of difference of arrears payable to him. However, petitioner is also directed to submit such calculation before respondent No.2 within a period of two weeks from date of receipt of this order along with representation to pay arrears as per directions issued by this Court – Allowed.
JUDGMENT :
(1.) Heard learned Senior Advocate Mr. Gautam Joshi for learned advocate Mr. Vyom H. Shah for the petitioner, learned Assistant Government Pleader Mr. K.M.Antani for the respondent-State and learned advocate Mr. Vaibhav A Vyas for respondent No.2.
(2.) Issues involved in both the petitions are similar. Therefore, they have been heard together and would be disposed of by this common judgement.
(3.) The petitioner has filed Special Civil Application No. 2087 of 2005 challenging the order dated 16.08.2004 by which the petitioner was reverted from the post of Chief Administrative Officer [CAO] to that of Administrative Officer by cancelling the promotion given by the respondent No.2-Gujarat Pollution Control Board ['GPCB' for short] in the year 1996. The petitioner has also challenged letter dated 01.11.1999 issued by the Deputy Secretary, Forest and Environment Department of the State for initiating proceedings against the petitioner for reversion from the post of Chief Administrative Officer to Administrative Officer. The petitioner has challenged the order dated 13.08.2004 by which, the State Government found that promotion given to the petitioner as Chief Administrative Officer by the respondent No.2-GPCB was not in order as the creation and continuation of the post of Chief Administrative Officer was irregular. The petitioner has also challenged order dated 11.09.2004 passed by the GPCB whereby the pay-scale of the petitioner was corrected pursuant to his reversion on the lower post of Administrative Officer w.e.f. 1996.
(4.) In Special Civil Application No. 19803 of 2005 the petitioner has challenged the order dated 12.09.2005 whereby the payscale fixed in the lower post of Administrative Officer was revised to Rs. 8000-275-14050 instead of Rs. 8500-275- 14050 pursuant to the Government Resolution dated 06.09.2000.
(5.) For the sake of convenience, facts are recorded from Special Civil Application No. 2087 of 2005 treating it as a lead matter.
5.2 On 09.08.1989, the petitioner was appointed on permanent basis on completion of probation of one year period in the pay scale of Rs. 2500-4200.
5.3 The petitioner made an application for promotion to the post of Chief Administrative Officer in the year 1994 which was considered and the petitioner was promoted as Chief Administrative Officer w.e.f. 24.06.1996.
5.4 Respondent No.2-GPCB passed an order dated 16.08.2004 cancelling the order of promotion ab initio and reverted the petitioner to his original post of Administrative Officer.
5.5 The petitioner challenged the order of reversion dated 16.08.2004 by preferring Special Civil Application No. 10393 of 2004 before this Court. However, the petitioner sought permission to withdraw the said petition as he was not in possession of the relevant material with a view to file fresh petition. The petitioner has thereafter preferred Special Civil Application No. 2087 of 2005.
5.6 This Court [Coram: Hon'ble Mr. Justice Akil Kureshi, As His Lordship was then] by order dated 24.03.2005 dismissed Special Civil Application No. 2087 of 2005 holding as under:
"8. Having considered the rival submissions, it is apparent that by communication dated 13th August, 2004, the government directed the Board to discontinue the petitioner on the promotion post. It was noted in the said communication that the Board had breached the provisions of the government circulars and continued in Class-I post and granted promotion on the post without proper permission from the government. It is recorded that the post was created on 4.10.1990, the same had remained vacant for the period of 5 years and 8 months and, therefore, in view of the government r
The main legal point established in the judgment is that the withdrawal of benefits without providing an opportunity for the petitioner to be heard was unjust and improper, and the petitioner's entit....
The method of appointment, whether by promotion or transfer, is crucial in determining the entitlement to a higher scale of pay as Time Bound Higher Grade, as stipulated in the Pay Revision Order.
The main legal point established in the judgment is that the withdrawal of benefits without a hearing and the refusal to grant the petitioner the entitled higher pay scale was unjust and improper.
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