Decided on August 20,1982

R M Agravat Appellant
District Judge Jamnagar Respondents


G.T.NANAVATI - (1.)First contention raised on behalf of the petitioners in both the petitions was that the notices issued by the High Court calling upon petitioner Agravat to show cause why the order of penalty of withholding an increment for a period of one year and petitioner Makwana to show cause why the order exonerating him should not be reviewed must be regarded as issued under Rule 23 which is specific and not under Rule 22 which is general. It was pointed out that the notices do not refer to any rule under which they were issued. It was merely stated therein that the High Court had come to the conclusion that the matter should be taken up in review under the Gujarat Civil Service (Discipline and Appeal) Rules 1971 read with the provisions of Article 235 of the Constitution of India The occasion for exercising powers of review had arisen because of the orders passed in disciplinary proceedings. Because the orders passed were found to be unjust that the High Court had issued the said notices. The High Court in both the cases was the appellate authority and therefore it should be presumed that it was acting in that capacity. The purpose of raising this contention was to take advantage of the time limit prescribed in Rule 23 as the action in both the cases was taken beyond that period. In support of this contention reliance was placed on the maxim Generalia Specialibus Non Derogant and the following observations made by the Full Bench of this Court in R. M. GAJJAR V. STATE 18 G.L.R. 738:
Therefore the authority to whom the appeal lies over the District Judge would be both in view of the administrative or disciplinary control under Articles 225 227 and 235 as per the settled legal position only the High Court which alone can exercise this jurisdiction under Rule 23 to enhance the penalty imposed by the District Judge upon a member of the ministerial staff of the subordinate Courts in exercise of powers of review under that rule under Rule 23. This review power in disciplinary cases is to be exercised by the authority to which the appeal against the order on any of the penalties of Rule 6 lies.

(2.)In order to appreciate this contention it will be necessary to refer to Rules 22 and 23 of the Rules- Relevant parts of Rules 22 and 23 are as under:
22 Governments power to review :- Notwithstanding anything contained in these rules the Government may on its own motion or otherwise after calling for the record of the case review any order passed by any authority which is made or is appealable or which is deemed to have been made or to be appealable under these rules and...

(3.)Review of orders in disciplinary cases. The authority to which an appeal against an order imposing any of the penalties specified in rule 6 lies may of its own motion or otherwise call for the record of any proceeding under these rules and review any order passed in such a case and may after consulation with the Commission where such consultation is necessary pass such orders as it deem fit as if the Government servant had preferred an appeal against such order:
Provided that no action under this rule shall be taken after the expiry of a period of more than six months from the date of such order.


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