Mayank Bhagwandas Shethwala vs High Court Of Gujarat & 1 Other(s)

N.V. Anjaria, J

In the facts and circumstances of the case and having regard to the request and consent of the parties appearing through their learned advocates,

the petition was taken up for final consideration today.

1.1 Rule, returnable forthwith. Learned advocate Mr.Gautam Joshi waives service of notice of Rule on behalf of respondent No.1 whereas learned

advocate Mr.Hemang Shah waives service of notice of Rule on behalf of respondent No.2.

1.2 Heard learned advocate Mr.Kaushik Pujara for the petitioner and learned advocates for the respondents.

What is prayed in this petition is to direct the respondents to giver to the petitioner notional promotion as Registrar, District Court, with effect from

31st May, 2017. It is further prayed to grant the petitioner all the monetary benefits which may have become due to him by virtue of his promotion as

above to the post of Registrar till the petitioner retired on 30th September, 2017. Petitioner prayed to grant and pay the revised retiral benefits which

may become due to be paid to him.

The petitioner who was appointed as Section Writer (English) in the District Court, Ahmedabad in the year 1982 and promoted as Junior Clerk

immediately thereafter, came to be further promoted as Deputy Registrar with effect from 08th August, 2013. The petitioner reached age of

superannuation with effect from 30th September, 2017. On 04th March, 2017, the Principal District Judge, Valsad, asked for willingness of the

members in the cadre of Deputy Registrar for being promoted as Registrar since the senior most Deputy Registrar had retired on 31st May, 2017. The

petitioner submitted his letter of willingness in pursuance thereof. It was undisputedly stated that other senior person in the cadre had been facing

departmental action. Name of the petitioner therefore came to be recommended for promotion to the post of Registrar.

3.1 It appears that in the meantime, new recruitment rules called The Non-Judicial Officers and Staff of the Courts (Recruitment & Conditions of

Service) Rules, 2017 came into force as published in the Notification dated 10th April, 2017. Rules contemplated holding of oral interview. Petitioner

and other candidates came to be invited for oral interview by letter dated 04th July, 2017. The oral interview took place on 11th July, 2017 before the

Advisory Committee. The petitioner who once again recommended after the interview, for promotion as per the letter of recommendation dated 12th

July, 2017.

3.2 A policy was prevalent of granting six increments, which policy was decided to be discontinued by the High Court acting on its administrative side.

In light of this, a fresh willingness was sought for from the candidates aspiring to be promoted to the post of the Registrar. The petitioner responded

immediately and gave his willingness by letter dated 23rd August, 2017. It was for the third time that the petitioner's name came to be recommended

for the purpose of promotion. The event of the promotion of the petitioner did not take place. The petitioner attained age of superannuation to retire on

30th September, 2017 without promotion. Therefore, the present petition came to be filed with the prayers as above.

On behalf of respondent No.1, affidavit-in-reply came to be filed. The fact was not disputed that as the senior most person in the cadre of Deputy

Registrar was facing departmental inquiry, name of the petitioner was recommended. It was not disputed that even in the interview which were held

pursuant to the new Rules, petitioner was selected to be recommended, which recommendation was forwarded to the High Court on 12th July, 2017.

It was stated also that on the High Court withdrawing policy of six increments to the persons promoted to the post of Registrar, the willingness was

re-ascertained and the petitioner accepted the said position.

4.1 It was thereafter stated that the full court meeting on the administrative side of the High Court held on 12th October, 2017 took a decision to refer

the matter to the Committee of Honourable Judges, which gave its interim report on 21st December, 2017, in which guidelines were issued for the

promotion to the Class-I post. It was stated that the process, though undertaken as expeditiously as possible, witnessed in the meantime retirement of

the petitioner.

The facts and events narrated above which are uncontroverted, makes out a clear position to emerge that the petitioner was qualified and eligible

candidate in the cadre of Deputy Registrar to be promoted to the post of Registrar. Before his case could be considered and the actual promotion

could be granted, new Rules of 2017 came into force with effect from 10th April, 2017. The procedure was required to be followed under the said

Rules which comprised of holding interview for the post. The petitioner was subjected to the said procedure, he appeared in the interview and came to

be recommended for the post. In the third stage, the policy regarding granting of six increments to the incumbent on the post of Registrar underwent a

change by by its discontinuation. Petitioner's willingness qua that was ascertained and the petitioner gave his willingness.

5.1 In other words, on all the occasions, petitioner was qualified for the promotional post of Registrar, was recommended but somehow and anyhow

could not earn the actual promotion. The vacancies was already available at that time to which the petitioner could have been certainly promoted but

for the above events not in control of the petitioner, nor attributable to him. While the promotional post available remained vacant, petitioner stood

retired.

In Major General H.M. Singh, VSM v. Union of India [(2014)3 SCC 670 t]he facts were comparable which was highlighted by the Apex Court in

these words.

“The appellant was promoted to the rank of substantive Major-General with effect from 7-1-2004. It is also not a matter of dispute that the

substantive vacancy in the rank of Lieutenant-General, against which the appellant was eligible for consideration, became available with effect from 1-

1-2007. Even though the appellant had nearly 14 months of military service remaining at the aforesaid juncture, the procedure contemp0lated for

making promotions to the rank of the Lieutenant-General was initiated for the first time just two days before the date of retirement of the appellant, on

27-2-2008. Although it is the contention of the respondents, that the delay in convening the Selection Board and conducting its proceedings was not

deliberate of mala fide, yet there can be no doubt about the fact that the appellant was not responsible for such delay. For all intents and purposes, he

was repeatedly seeking consideration orally as well as in writing. He had been repeatedly informing the authorities about the approaching date of his

retirement. In response, he was always assured that if found suitable, he would be actually promoted prior to the date of his retirement. It was for the

respondents to convene the meeting of the Selection Board. Since the Selection Board came to be convened for the vacancy which had arisen on 1-1-

2007 only on 27-2-2008, the respondents must squarely shoulder the blame and responsibility of the above delay.â€​ (Para 27)

6.1 It was held by the Supreme Court thereafter that when the vacancy was existing and the appellant was in service and it was not the situation as if

the vacancy was created after the appellant before it had reached the age of retirement, the appellant was entitled to be promoted to the post. It was

stated,

“In situations wherein an officer attains the age of retirement without there being a vacancy for his consideration to a higher rank, even though he

is eligible for the same. Such an officer who is granted extension in service, cannot claim consideration for promotion, against a vacancy which has

become available during the period of his extension in service. However, insofar as the present controversy is concerned, there is no doubt

whatsoever, that a clear vacancy against the rank of Lieutenant-General became available with effect from 1-1-2007. At that juncture, the appellant

had 14 months of service remaining. It is not as if the vacancy came into existence after the appellant had reached the age of retirement on

superannuation. The present case is therefore, not covered by the technical plea raised by the State.â€​ (Paras 32 and 33)

6.2 Thus, in the instant case also, promotional right of the petitioner could be said to have been accrued. Petitioner for the aforesaid reasons and for no

fault of anybody stood deprived of being promoted. Had he been promoted, he would have continued on the promotional post till he stood

superannuated from service. The petitioner, therefore, would be entitled not only to the relief regarding promotion, but also would have to be treated as

entitled to all monetary benefits on the same lines as per the decision and directions issued in Major General H.M. Singh, VSM (supra).

Resultantly, the present petition deserves to be allowed. Respondents are directed to give notional promotion to the petitioner as Registrar, District

Court with effect from 31st May, 2017 and to grant him all the monetary benefits which would have been due and payable to him for his promotion to

the post of Registrar with effect from 31st May, 2017 till his retirement on 30th September, 2017. The petitioner shall also be paid the revised

retirement benefits arising by virtue of the aforesaid order. All the above monetary benefits shall be released to the petitioner within three months from

the date of certified copy of this order becomes available to the respondents.

Rule is made absolute in the aforesaid terms. Direct service is permitted.