Gujarat High Court: Right of Eligible Employee to be Considered for Promotion is Part of Fundamental Rights under Article 16

Gujarat High Court: Right of Eligible Employee to be Considered for Promotion is Part of Fundamental Rights under Article 16

The Gujarat High Court by its single judge Justice Hasmukh D. Suthar has observed that the right of eligible employee is to be considered for promotion is virtually part of their fundamental rights guaranteed under Article 16 of the Constitution of India.

The factual matrix of the case was that the petitioner- Janak Natavarbhai Suthar was working as an Assistant Executive Engineer with the respondent in the Panam Irrigation Project and was looking after various works regarding the construction of the check dams in the department. He was due for promotion to the post of Deputy Engineer.

He was one of the Senior most Assistant Executive Engineers to be placed in the list of employees being considered for promotion and his name was also recommended for promotion even by the GPSC. It was further the case of the petitioner that he was informed that his name was cleared by the Departmental Promotion Committee (DPC) as well as by the GPSC and, therefore, he ought to have been given promotion to the post of Deputy Engineer. However, to the prejudice of the petitioner he was not given the promotion, thereby violating his fundamental rights.

In the year 2010, a charge-sheet came to be issued to the petitioner along with many other employees for the alleged irregularity in the construction work of various check dams and on the basis of the said charge-sheet, the petitioner was not given promotion to the post of Deputy Engineer and his juniors were given promotion.

The higher officer found that the charges proved against the petitioner were administrative lapses only. The petitioner, on attaining the age of superannuation, retired from service.

He approached before the High Court with the petition claiming promotion to the post of Deputy Engineer pursuant to the first Departmental Promotion Committee meetings convened on in the years 2009 and 2010 as subsequently his name was even cleared by the GPSC too.

The only question that fell for consideration before the Judge was, whether the petitioner was entitled for promotion to the post of Deputy Engineer, and from which date, whether from the date of holding of the Departmental Promotion Committee or the date of issuance of the charge-sheet.

The Court while going through the record, prima facie, found that prior to the issuance of the charge-sheet on 6 October, 2010, there was nothing adverse against the petitioner when the meetings of the first Departmental Promotion Committee were convened.

Therefore, there was no question of following the sealed cover procedure of the circular issued by the General Administration Department, State of Gujarat, dated 23 September, 1981, as already the name of the petitioner was cleared by the Departmental Promotion Committee and subsequently by the GPSC and no charge-sheet was issued prior to that, the Court held.

The Court referred to the circular issued by the General Administration Department dated 5 January, 1999, wherein it was resolved that the promotion of an employee cannot be withheld merely because a criminal proceeding is pending against him, hence the judge opined that the sealed cover procedure should be adopted only after the charge-sheet was issued to the employee and not before it.

According to the judge, the act on the part of the respondent to keep the name of the petitioner in a sealed cover was bad in law, illegal, unfair and lacked bona fides.

The Court while referring to the decision passed by the Supreme Court in the case of Union of India vs. Hemrajsingh (2010), and Ajaykumar Shukla vs. Arvind Raj, reported in (2022) observed, “the right of eligible employee is to be considered for promotion is virtually part of their fundamental rights guaranteed under Article 16 of the Constitution of India. The guarantee of fair consideration in matter of promotion virtually flows from the guarantee of equality under Article 14 of the Constitution.”

The judge also noted that in the present case the date of the DPC meeting and the date of consideration of the name of the petitioner for promotion, no departmental proceedings came to be initiated against the petitioner. Therefore, the question to follow any proceedings qua pending the name of the petitioner for consideration of giving promotion or to keep his name in a sealed cover does not arise, the Court held.

Noting that the relevant date for the purpose of deciding the case on hand was the date on which the first Departmental Promotion Committee meeting convened, the Court discerned that the order of punishment remained as it is and the punishment of Rs 200 pension cut for three months was inflicted to the petitioner only for his administrative lapses.

Thus, the Court observed that, “neither any departmental inquiry was pending nor any departmental proceedings were initiated against the petitioner when his name was placed for consideration before the Departmental Promotion Committee and cleared by the Departmental Promotion Committee as well as by the GPSC.”

The Court remarked that the charge-sheet, which was issued practically immediately after the DPC had considered the name of petitioner, which showed an ulterior motive.

Therefore, allowing the petition, the Court held that since the petitioner had been superannuated, he could be granted only the notional benefit of promotion to the post of Deputy Engineer with effect the date on which his juniors were promoted or his actual date of promotion to the post of Deputy Engineer, on the basis of the recommendations made by the Departmental Promotion Committee.

The Court directed the respondents to calculate and pay the pensionary and other retiral benefits to the petitioner accordingly, within three weeks.