Jayantibhai Kalabhai Solanki vs State Of Gujarat & 3

1. By this writ application under Article 226 of the Constitution of India, the petitioner serving as Assitant Social Welfare Officer desirous of seeking promotion on the post of Social Welfare Officer, Class-II, has prayed for the following reliefs:-

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" (A) Be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction declaring and holding that the decision of the respondent authorities of not giving promotion to the Page 1 of 4 HC-NIC Page 1 of 4 Created On Fri May 06 02:43:08 IST 2016 C/SCA/4128/2016 ORDER petitioner on the post of Social Welfare Officer, Class-II and not granting benefit of higher pay scale, solely on the ground of pendecy of an acquittal appeal, being Criminal Appeal No.1777 of 2010, is illegal and arbitrary;

B. Be pleased to direct the respondent authorities to grant promotion to the petitioner on the post of Social Welfare Officer, Class-II from the date on which his juniors have been promoted with all other consequential benefits including higher pay scale;

C. Pending admission and final disposal of this petition, the Hon'ble Court may be pleased to restrain the respondent authorities from superseding the petitioner in the promotion, on the post of Social Welfare Officer, Class-II, solely on the ground of pendecy of an acquittal appeal, being Criminal Appeal No.1777 of 2010, is illegal and arbitrary;

D. Be pleased to award the cost of this petition;"

2. It is the case of the petitioner that he has not been considered for the promotion on the post of Social Welfare Officer, Class-II, on account of an acquittal appeal filed by the State of Gujarat which is pending before this Court. It appears that the petitioner was tried by Special Court for the offence under the Prevention of Corruption Act, 1988. The trial resulted in acquittal of the petitioner. However, the State Page 2 of 4 HC-NIC Page 2 of 4 Created On Fri May 06 02:43:08 IST 2016 C/SCA/4128/2016 ORDER thought fit to challenge the judgment and order of acquittal by filing a Criminal Appeal before this Court. I am told that the acquittal appeal is still pending. Since it is an acquittal appeal, it is likely to take considerable long time before it is disposed of finally. The apprehension expressed by the petitioner is that if it takes couple of years before the acquittal appeal is disposed of, then probably he may not be considered for promotion.

3. Reliance is placed on one order passed by the learned Single Judge of this Court dated 30.04.2008 passed in Special Civil Application No. 5675 of 2008 which reads as under:-

"Heard learned counsel for the parties. The grievance of the petitioner is that he is being denied promotion solely on the ground that an appeal against his acquittal in criminal case is pending before this Court. There is no interim order in that case. Thus, no law makes it possible for the respondents to deny the benefits which are due to the petitioner only on the ground that there is an appeal pending against acquittal. Therefore, the respondents are directed to consider the case of the petitioner for promotion. If the petitioner is found otherwise suitable, he will be granted the benefit of promotion.

HC-NIC Page 3 of 4 Created On Fri May 06 02:43:08 IST 2016 C/SCA/4128/2016 ORDER With the aforesaid observations, petition is disposed of.

Direct Service is permitted."

4. To a certain extent, I do agree with the learned advocate for the petitioner that the Criminal Appeal filed by the State of Gujarat will take considerable long time before it is disposed of. In such circumstances, the State Government shall consider the case of the petitioner for promotion in accordance with law and Government Resolution and may also consider the order passed by this Court which has been referred to above. Let appropriate decision in this regard be taken within a period of two months from the date of receipt of copy of this order.

With the above, this writ application is disposed of. Direct service is permitted.

(J.B.PARDIWALA, J.) Girish Page 4 of 4 HC-NIC Page 4 of 4 Created On Fri May 06 02:43:08 IST 2016