- (1.) By Way Of The Present Petition Under Articles226 and 227 of the Constitution of India, the petitionerState of Gujarat has challenged the order dated 09.03.2010, passed by the Gujarat Civil Services Tribunal ("the Tribunal", for short), which has been arrayed as respondent No.2, whereby the Tribunal has allowed the appeal preferred by the first respondent and directed the petitioner to take necessary action and issue orders of promotion in respect of respondent No.1, with effect from April, 1990, within three months from the date of the order.
(2.) Briefly Stated, The Relevant Factual Aspects Of the matter may be noted as under. 2.1 The first respondent was recruited and appointed as an Inspector in the Social Welfare Department, in the payscale of Rs.425700, in the year 1986. Persons junior to the first respondent were promoted as Office Superintendents in the year 1990, in the payscale of Rs.16402900. However, the first respondent was not promoted. He, therefore, filed an appeal before the Tribunal, being Appeal No.140/1990, which was subsequently withdrawn. On 28.04.1989, a chargesheet was issued against the first respondent and a departmental inquiry was initiated. For this reason, he was not considered for promotion. Subsequently, the first respondent stood exonerated in the departmental inquiry and the chargesheet against him was withdrawn/filed in the year 1992. Thereafter, the first respondent was promoted as Office Superintendent on 05.04.1993. However, it is the case of the petitioner that the aforesaid promotion order was issued by mistake, therefore, it was cancelled by an order dated 07.08.1993. Against the above order of reversion, the first respondent preferred an appeal before the Tribunal, being Appeal No.99/1996, with a prayer to quash and set aside the order of reversion and for the grant of the deemed date of promotion as Office Superintendent, from April, 1990. It was the case of the petitioner before the Tribunal that his Annual Confidential Report (ACR) for the year 198889 was not good, therefore, the promotion which was granted by a clerical mistake, was rightly cancelled. The Tribunal accepted the contention of the petitioner and dismissed the appeal. Subsequently, however, the adverse entries in the ACR of the first respondent for the year 198889, stood expunged by the concerned Department of the petitioner, in the year 2005. The first respondent, thereafter, represented to the petitioner to grant him the deemed date of promotion from April, 1990, on 28.05.2005, 16.06.2006 and 20.06.2006, along with the benefit of arrears. As no action was taken by the petitioner upon this plea, the first respondent approached the Tribunal by filing Appeal No.189/2006. 2.2 The Tribunal allowed the above appeal of the first respondent, as already indicated hereinabove. Aggrieved by the said order of the Tribunal, the petitionerState of Gujarat, has approached this Court.
(3.) Mr.Janak Raval, learned Assistant Government Pleader, has submitted that the impugned order passed by the Tribunal is contrary to the provisions of law, proved facts and the evidence on record, hence, it deserves to be quashed and set aside. 3.1 It is next submitted that while passing the said order, the Tribunal has not appreciated the serious allegations against the first respondent, the departmental inquiry, as well as three criminal cases that were pending against him. The petitioner has rightly rejected the plea of the first respondent for promotion, from the deemed date of April, 1990. 3.2 That the Tribunal ought to have considered the fact that though the adverse remarks were expunged in the year 2005, the criminal cases were still pending and a fresh inquiry had been ordered to be initiated against the first respondent, on 03.12.2009. Due to the above reasons, the petitioner is within its rights in not considering the case of the first respondent for promotion, from the deemed date of April, 1990. 3.3 That the Tribunal has not considered the aspect that on the deemed date of April, 1990, claimed by the first respondent, the adverse remarks were still in existence and the departmental inquiry was pending. As important facts and legal aspects have not been considered by the Tribunal, while passing the impugned order, the petition may be allowed and the said order be quashed and set aside.;