High Court of Gujarat
BHARATKUMAR PRAVINDAS MODversusGUJARAT STATE ELECTRICITY CORPN. LTD.
- Disposal
- 39-RULE DISCHARGED/DISMISSED @ FH
- Bench
- MAULIK SHELAT
Holding
The petition is dismissed; the respondent's decision to deny promotion based on the adverse 2003 ACR remark is upheld as a reasonable administrative policy.
Summary
The petitioner, a Fire Supervisor with Gujarat State Electricity Corporation Ltd., sought a mandamus directing the employer to consider him for promotion to Station Officer, alleging that he was denied the opportunity due to an adverse remark in his 2003 Annual Confidential Report (ACR) and that the employer had ignored the 1999 advertisement for the post. The respondent argued that the petitioner lacked the requisite qualifications and that the adverse remark justified his exclusion, and that the employer’s practice of examining the last five years of ACRs, though not mandated by a specific rule, was a reasonable administrative policy. The Court examined whether the employer could rely on the 2003 adverse remark and the five‑year ACR review in the absence of a statutory provision, and whether this practice violated any constitutional or legal rights. It held that the employer was within its rights to deny promotion based on the adverse remark and that the practice, though not expressly prescribed, was a reasonable policy and not illegal or unconstitutional. Consequently, the petition was dismissed and the related civil application was disposed.
Issues considered
- Whether an adverse remark in the 2003 Annual Confidential Report can be validly used to deny promotion to the petitioner.
- Whether the employer's practice of considering the last five years of ACRs, without a specific rule, is lawful.
- Whether the petitioner is entitled to promotion under the 1999 advertisement for the Station Officer post.
- Whether the employer's policy violates any constitutional provision or statutory right of the petitioner.
- Whether the High Court can issue a writ under Article 226 of the Constitution in this matter.
Subjects
promotionannual confidential reportadverse remarksdepartmental recruitmentstanding ordersemployment lawconstitutional lawArticle 226
Judgment
C/SCA/11048/2008 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 11048 of 2008
With
CIVIL APPLICATION NO. 9619 of 2013
In
SPECIAL CIVIL APPLICATION NO. 11048 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE G.R.UDHWANI
================================================================
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 ?
================================================================
BHARATKUMAR PRAVINDAS MOD....Petitioner
Versus
GUJARAT STATE ELECTRICITY CORPN. LTD.....Respondent
================================================================
Appearance:
MR TR MISHRA, ADVOCATE for the Petitioner.
MS LILU K BHAYA, ADVOCATE for the Respondent.
RULE SERVED for the Respondent(s) No. 1
================================================================
CORAM: HONOURABLE MR.JUSTICE G.R.UDHWANI
Page 1 of 8
C/SCA/11048/2008 JUDGMENT
Date : 24/09/2014
ORAL JUDGMENT
The petitioner, a Fire Supervisor working
with respondent–Gujarat State Electricity Corporation
Ltd., having been denied promotion to the post of
Station Officer on account of an adverse remarks in
his annual confidential report (for short ACR) for the
year 2003, is before this Court seeking a a mandamus
to consider his case for such promotion. The
petitioner also calls in question the non
consideration of his case in pursuance to the
advertisement dated 03/07/1999.
2. The petitioner came to be appointed as Fire
Supervisor with the respondent on 07/12/1995. He had
passed course of the post of Sub Officer from National
Service College, Nagpur in the year 1991.
2.1 On 26/08/2008, he applied for appointment to
the post of Station Officer alongwith other
candidates. While they were called for interview, the
petitioner was not.
2.2. It is his case that on 03/07/1999 also
advertisement for filling up for the post of Station
Officer was issued. The requisite qualifications were
the passing of Fire Officer post course with an
experience of five years as Sub Officer or in the
alternative the passing of National Fire Service
Course or equivalent course from any government
Page 2 of 8
C/SCA/11048/2008 JUDGMENT
recognized institute. He unsuccessfully made
applications and representation for prosecuting
further studies to qualify for the post of Station
Officer. The last representation dated 16/10/2006 in
that regard has remained unheaded as such.
2.3 According to the petitioner, many persons
junior to him have been issued call letters and none
of the 12 candidates called for an interview possessed
a degree of Station Officer from Nagpur National Fire
Service post. He apprehends the filling up the Station
Officer's post without insisting for requisite
qualifications by respondent. The petitioner's
apprehension is based upon the appointments of Fire
Supervisor without requisite qualifications in the
year 1994 by respondent. In the said recruitment
process, the Fire Supervisor were given an opportunity
to acquire requisite qualifications within 04 years
from the date of their appointment. The petitioner
relies upon the cases of Mr.K M Parmar and Mr.S S
Mudaliya, and contends that though they have not
passed Sub Officer course from Nagpur Fire Service
College within prescribed period, still they have been
called for interview.
2.4 According to the petitioner, he is better
placed than the other ineligible candidates, having
passed the examination of Supervisor post conducted by
National Fire Service College, Nagpur as against the
unqualified candidates who have been given a chance to
the post of Station Officer (Fire). According to him,
Page 3 of 8
C/SCA/11048/2008 JUDGMENT
in the year 1999, when the advertisement was issued,
the post in question was reserved only for OBC
candidates, which was not filled up owing to the lack
of requisite qualifications. It is his case that since
1999, the post of Station Officer from OBC candidate
has not been filled up.
2.5 To substantiate his case, various documents
have been placed on record of the petition.
3. Respondent has filed affidavitinreply
opposing the petition, according to which, the
petitioner was not called for interview for want of
requisite qualifications. That 11 of 12 Supervisors
called for interview had joined the services with the
respondent before the petitioner joined. To reiterate
that the candidates called for possessed requisite
eligibility; certificate in case of one Mr.Parmar and
Mr.Mudaliya issued by Central Industrial Security
Force of Government of India are placed on record.
3.1 It is contended that while considering the
ACRs for last five years of the candidates including
the petitioner, adverse remarks as to his doubtful
integrity, poor punctuality and indifferent relations
with colleagues and staff for the year 2003 were
noticed and thus he was not called for the interview.
4. To reiterate that, even juniors to the
petitioner were given chance, the petitioner in
rejoinder has cited the case of Mr.R K Kumpavat who
Page 4 of 8
C/SCA/11048/2008 JUDGMENT
according to him did not even complete one year
service as Fire Supervisor. It is contended that
certificates in respect of Mr.Parmar and Mr.Mudaliya
relied upon by the respondent to reiterate their
possession of requisite qualifications are contrary to
the circular and regulations of the respondent.
According to the petitioner, none of the incumbents
called for interview possessed certificate of Fire
Supervisor Course from National Fire Service College,
Nagpur, which is the only college issuing such
certificates in the country.
4.1 It is the petitioner's case that in absence
of provision authorizing the respondent to consider
the confidential report for the entire service
rendered by the incumbent, it could not have gone
beyond three years for such consideration in view of
clause–IV of standing order No.334. The said standing
order provides for consideration of 9, 10 and 11 years
confidential report / working report as the case may
be of which at least three years should be clean for
the purpose of acquiring higher grade on completion of
09, 10 and 11 years of service by classIII grade or
by an incumbent aspiring for higher grade within
classIV. It is thus contended that ACRs only of the
year 200506, 200607 and 200708 were required to be
considered and that during the said years, the
petitioner's record being clean, is eligible to be
considered for the post of Station Officer.
5. Respondent has also filed affidavit dated
Page 5 of 8
C/SCA/11048/2008 JUDGMENT
23/12/2008 and further affidavit dated 09/07/2014 and
the rejoinder to further affidavitinreply has been
filed by the petitioner.
6. Having considered the rival contentions, the
main grievance of the petitioner appears to be
consideration of ineligible candidates by respondent
for the post of Station Officer and the consideration
of five years ACRs for denying the petitioner an
opportunity of promotion to the post of Station
Officer.
7. It appears that applications from the
departmental candidates were also called for. It
appears that for the purpose of short listing the
candidates, one of the consideration which is being
consistently followed by the respondent is examination
of last five years' ACRs. It is, however, true that
the aforesaid practice is being consistently followed
in absence of the rules or standing orders, as stated
by the respondent in its affidavit.
8. In compliance of the oral direction, learned
Counsel for the respondent has substantiated the said
practice by placing on record a copy of the office
note dated 19/10/2013 requiring the departmental
candidates even in past to come clean for the last
five years in the confidential reports. It is thus
misconceived to rely upon standing order No.334 afore
stated for the simple reason that it is applicable
only in case of classIII and the persons aspiring for
Page 6 of 8
C/SCA/11048/2008 JUDGMENT
a higher grade within classIV. The post of Fire
Supervisor is above classIII.
9. Having regard to the documents placed on
record, it cannot be disputed that there were adverse
remarks in the petitioner's ACRs for the year 2003 and
therefore the respondent is well within its right to
deprive the departmental candidates to promotion on
the strength of the adverse remarks in ACRs. In
absence of the rules, it is for the employer to
prescribe requisite procedure and in absence of
demonstrable vulnerability in the practice so adopted,
it cannot be regarded as illegal or unconstitutional
practice.
10. Under the above circumstances, on the mere
contention of the petitioner being on better footing
than other departmental candidates, the petitioner
himself being ineligible, no right for consideration
of the promotion can be said to have been acquired by
the petitioner.
11. In above view of the matter, non
consideration of the petitioner for promotion to the
post of Station Officer by respondent is based upon
the reasonable policy and therefore this Court under
Article 226 of the Constitution of India would not
issue a writ in absence of the duty cast upon the
respondent for considering the case of the petitioner
in the face of adverse remarks in his ACRs.
Page 7 of 8
C/SCA/11048/2008 JUDGMENT
12. The petition therefore fails and is
dismissed with no order as to costs. Rule is
discharged. Interimrelief, if any, stands vacated.
13. In view of dismissal of main petition, Civil
Application does not survive and is accordingly
disposed of.
(G.R.UDHWANI, J.)
sompura
Page 8 of 8
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