IMPORTANT POINT
Promotion to administrative posts requires formal approval from the State Government; mere recommendations by the DPC do not confer an indefeasible right to promotion, especially post-retirement.

JUDGMENT :

(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)

1. The present appeal filed under Clause 15 of the Letters Patent, 1865, is directed against the judgment and order dated 24.11.2022 passed by the learned Single Judge rejecting the captioned writ petition filed by the appellant claiming promotion to the post of Gujarat Administrative Service Class-I (Selection Scale) with retrospective effect.

2. The facts, which are established from the pleadings, are that : -

3. The appellant – original petitioner, who was serving on the post of Additional Collector was considered for promotion to the Gujarat Administrative Service (for short, “GAS”) Class-I (Selection Scale) by the Departmental Promotion Committee (for short, “the DPC”), comprising the Chief Secretary and two other senior most Secretaries on 25.10.2011.

4. The DPC prepared a select list of 34 Officers for being promoted from GAS Class-I (Senior Scale) to GAS Class-I (Selection Scale) and placed the appellant at serial No.5. Thereafter, the file was submitted for obtaining the Government’s Order approving the minutes of the DPC on 05.11.2011 and before any further action was taken on such approval, the appellant retired from the service on reaching the age of superannuation on 30.11.2011.

5. It appears that thereafter, she filed a writ petition being Special Civil Application No.15623 of 2013 claiming promotion to the post of GAS Class-I (Selection Scale). The said petition was disposed of vide order dated 10.10.2013 directing the appellant to make representation, which she made on 29.10.2013 and ultimately, vide communication dated 30.01.2014 written by the General Administration Department of State of Gujarat, her representation was rejected, which resulted into filing of the captioned writ petition.

SUBMISSION ON BEHALF OF THE APPELLANT:

6. Learned advocate Mr.Parv S. Gupta, appearing for the appellant – original petitioner has submitted that the learned Single Judge has not appreciated the undisputed facts in correct perspective. He has submitted that the learned Single Judge ought to have appreciated that the DPC, which met on 25.10.2011 has considered the case of the appellant along with the other candidates and the approval was thereafter, sought from the State Government, which delayed the entire matter and ultimately, the appellant retired on 30.11.2011. It is submitted that due to delay in processing the file and the elections, which were held during the intervening period, the Notification was issued by the State Government on 22.03.2012 promoting other candidates, except the present appellant.

7. Learned advocate Mr.Parv Gupta, has further submitted that once the DPC has approved the promotion of the appellant to the post of GAS Class-I (Selection Scale), she could not have been denied the promotion due to the fault of the respondents in seeking approval from the State Government.

8. It is further contended by the learned advocate Mr.Gupta, that the reconstruction of the cadre, structure and cadre review of the Gujarat Administrative Service was done on 21.02.2009 and thereafter, the State authority took two years for convening the meeting of the DPC and due to such delay, the appellant has lost her promotion. While placing reliance on the judgment of the Supreme Court in the case of Major General H.M. Singh, VSM vs. Union of India and Anr., (2014) 3 S.C.C. 670, and on the judgment of the High Court of Jharkhand in the case of State of Jharkhand vs. Radha Krishna Prasad, 2020 S.C.C. OnLine Jhar 1808, it is contended that the appellant is entitled to promotion even after her retirement and her pensionary benefits are required to be fixed accordingly. Thus, it is urged that once the head of the Executive approves the list prepared by the DPC, the rest of the procedure of formality in clearing the documents and publishing the list cannot dilute the decision of the DPC and hence, the appellant is entitled to promotion to the post of GAS Class-I (Selection Scale). Thus, it