Chattisgarh High Court
Smt.Pratima Dwivedi vs State Of Chhattisgarh And Ors on 8 March, 2022
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AFR
HIGH COURT of CHHATTISGARH, BILASPUR
WPS No. 3104 of 2012
• Smt. Pratima Dwivedi W/o Shri S.P. Dwivedi, aged about 42
years, Occupation-Service, working as Assistant Account
Officer at Janpad Panchayat, Dongargaon, Dist. Rajnandgaon,
R/o Poonam Colony Opposite Anand Mangal Bhawan,
Rajnandgaon, Chhattisgarh.
------Petitioner
VERSUS
1. State of Chhattisgarh through: the Principal Secretary,
Panchayatand Rural Development Department, Mantralaya,
D.K.S. Bhawan, Raipur, Distt. Raipur, Chhattisgarh
2. The Collector (Panchayat), Rajnandgaon, District
Rajnandgaon, Chhattisgarh
3. Chief Executive Officer, District Panchayat, Rajnandgaon, Dist.
Rajnandgaon Chhattisgarh
4. Chief Executive Officer, Janpad Panchayat, Dongargaon, Dist.
Rajnandgaon, Chhattisgarh
5. Administrator, Janpad Panchayat Dongargaon, Dist.
Rajnandgaon, Chhattisgarh
6. Ramlal Sahu S/o Punaram Sahu, aged about 45 years,
Occupation-Service working as Assistant Grade-II at Janpad
Panchayat, Dongargaon, District Dongargaon, Chhattisgarh
-------Respondents
For Petitioner : Mr. Awadh Tripathi, Advocate
For Respondents 1 & 2 : Ms. Ruchi Nagar, Dy. Govt. Adv.
For Respondents 3 to 5 : Mr. Pankaj Singh, Advocate
For Respondent 6 : None.
Single Bench: Hon'ble Shri Parth Prateem Sahu, Judge
ORDER
08/03/2022
1. By this petition, petitioner has challenged the order dated 26.03.2012 (Annexure P-1), order dated 25.11.2009 (Annexure P-2) and order dated 11.05.1994 (Annexure P-3) passed by Respondent 3, Respondent 4 and Respondent 5 respectively. Petitioner challenging the aforementioned three orders has sought following reliefs:
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"10.1 That, this Hon'ble Court may kindly be pleased to quash the orders impugned dated 26.03.2012 (Annexure P/1), 25.11.2009 (Annexure P/2) and 11.05.1994 (Annexure P/3) and the respondents may kindly be directed to continue the petitioner on the post of Assistant Account Officer at Janpad Panchayat, Dongargaon.
10.2 Any other relief which this Hon'ble Court may deem fit and proper may also be passed in favour of the petitioner together with cost of the petition."
2. Mr. Awadh Tripathi, learned counsel for petitioner submits that the petitioner was initially appointed in the year 1987 as Lower Division Clerk with Respondent 4/ Chief Executive Officer Janpad Panchayat, Dongargaon. She was promoted on the post of Assistant Grade-II (for short 'AG-II') on 13.12.2004. In the year 2008, Respondent 4 has considered eligible employees of the cadre AG-II for promotion on the post of Accountant. Petitioner who was having all the requisite qualifications along with accounts training certificate was found suitable amongst two ie. petitioner and Respondent 6. She was promoted vide order dated 19.09.2008. Since the date of order of promotion, petitioner joined the post and continuously worked till 25.11.2009 which is the date of passing of order of cancellation of her promotion. He submits that the impugned order, Annexure P-2, was passed only on the ground that the petitioner was not having the requisite working experience on the post of AG-II. Under Section 70 of the Panchayat Raj Adhiniyam, 1993 (for short "Adhiniyam, 1993") the competent authority is having powers to relax the requisite qualifications for the appointment on any post under the Adhiniyam, 1993. Respondent 4, exercising the powers under Section 70 of the Adhiniyam, 1993 found petitioner to be eligible and only thereafter order of promotion has been passed, hence, -3- Respondent 4 erred in cancelling the order of promotion of petitioner. He further pointed out that Respondent 6 was initially an employee of Janpad Panchayat, Sahaspur Lohara who came on transfer to Janpad Panchayat, Dongargaon on 05.07.1993. As per Rule 27 of Chhattisgarh Panchayat Services (Recruitment and General Conditions of Service) Rules, 1999 (hereinafter referred to as "Rules of 1999"), any employee coming on transfer from another Janpad Panchayat will be placed at the bottom of seniority list of that cadre but ignoring Rule 27 the Administrator, Janpad Panchayat has promoted Respondent 6 on the post of AG-II on 11.05.1994 superseding the petitioner, hence, the order of promotion dated 11.05.1994 is also erroneous which is liable to be set aside. Lastly, learned counsel contended that the Chief Executive Officer vide order dated 26.03.2012 has cancelled the seniority list of AG-II as on 01.04.2008 which affected the seniority of petitioner adversely. By cancelling of seniority list, petitioner would be placed after Respondent 6 which is contrary to Rule 27 of Rules of 1999. He submits that all the three orders under challenge being contrary to the provisions of law, they be set aside.
3. Mr. Pankaj Singh, learned counsel for Respondents 3 to 5 would submit that the orders under challenge ie. Annexure P-1, P-2 and P-3 are passed by Chief Executive Officer, District Panchayat. Under Section 91 and Rules framed thereunder, all the aforesaid three orders are appeal-able before the Appellate Authority as mentioned under the Chhattisgarh Panchayats (Appeal and Revision) Rules, 1995. In view of the efficacious remedy available to petitioner, petition be dismissed on this count only. With respect to submission of learned counsel for petitioner of -4- cancellation of promotion, learned counsel for Respondents 3 to 5 submits that promotion of petitioner is governed by the Rules of 1999. Under Schedule IV appended to the Rules of 1999, the qualifications prescribed of AG-II for their promotion on the post of Upper Division Clerk-cum-Accountant is 'five years experience in the feeder cadre' ie. AG-II. Petitioner, on the date of her consideration, was not having requisite qualification of having the working experience of five years on the post of AG-II. Petitioner was promoted on the post of AG-II only on 13.12.2004 and on the date of consideration for promotion to Upper Division Clerk ie. in the month of September 2008, petitioner has not completed five years on the post of AG-II, hence, petitioner was not eligible. The error committed by the then Chief Executive Officer, Janpad Panchayat was rectified by passing an order Annexure P-2 dated 25.11.2009 mentioning that the petitioner does not fulfill the qualifications for promotion on the post of Upper Division Clerk- cum-Accountant. He further contended that the submission of learned counsel for petitioner that the order of promotion ought not to have been cancelled in view of Section 70 of the Adhiniyam, 1993 is also not correct. The order of promotion of petitioner was not passed by the competent authority invoking the provisions under Section 70 of the Adhiniyam, 1993 and relaxing any of the qualification required for promotion on the post of Upper Division Clerk but the petitioner was promoted considering Schedule IV of the Rules of 1999. He submits that even when the discrepancy or anomaly came to the knowledge of appointing authority, he did not opt to invoke the provisions of Section 70 of the Adhiniyam, 1993. The challenge to Annexure P-3 is after delay of more than 17 years, hence, the relief of quashment of -5- Annexure P-3 could not be granted to petitioner as that relief suffers from delay and laches. In support of his contentions, learned counsel for Respondents 3 to 5 relied upon the judgment passed by Hon'ble Supreme Court in case of Indian Council of Agricultural Research and another v. T.K. Suryanarayan and others reported in (1997) 6 SCC 766 and Union of India and another v. Narendra Singh reported in (2008) 2 SCC 750.
4. Ms. Ruchi Nagar, learned State counsel adopting the submissions of learned counsel for Respondents 3 to 5, would submit that Respondent 4 has not committed any error as on the date of promotion petitioner was not possessing the requisite qualifications as provided under Schedule IV of Rules of 1999.
5. I have heard learned counsel for the respective parties and also perused the documents placed on record along with petition.
6. Sofar as, the submission of learned counsel for petitioner with respect to cancellation of order of promotion Annexure P-2 is concerned, perusal of order would show that the order of cancellation was passed considering the fact that petitioner was not fulfilling the eligibility criteria as provided under Schedule IV appended under the Rules of 1999, she was not having the requisite working experience in the feeder cadre ie. AG-II. When the eligibility and qualification is provided specifically under the Rules of 1999 for considering the employees for their promotion then contrary to the provisions of Rules, no promotion order can be issued in favour of any employee. Under Schedule IV of the Rules of 1999, the minimum working experience of five years is prescribed on the feeder cadre ie. AG-II for coming into the zone of consideration. Admittedly, in view of pleadings in the petition -6- and factual matrix as available, petitioner was promoted to AG-II only on 13.12.2004, she does not fulfill the requisite eligibility criteria of five-year working experience on the post as prescribed under Schedule IV of Rules of 1999, hence, in the opinion of this Court, Respondent 4 has not committed any error in cancelling the appointment which was granted to petitioner erroneously.
7. Petitioner was promoted on 19.09.2008. Representation in form of appeal against aforementioned order of promotion was submitted on 03.08.2009 and 03.11.2009. First challenge was within one year. On representation, the Collector directed Sub- Divisional Officer (Revenue) ('SDO') to conduct enquiry upon which SDO submitted its report stating that petitioner does not fulfill the eligibility criteria fixed under Schedule IV of Rules of 1999. Collector approved the enquiry report and thereafter Zila Panchayat issued memo with direction to Janpad Panchayat and thereafter CEO, Janpad Panchayat passed order of cancellation of promotion and reversion on 25.11.2009. The order of cancellation was put to challenge by petitioner before the Collector on the ground of not giving opportunity of hearing. Collector vide its order dated 05.12.2009 directed for stay of order dated 25.11.2009 and accordingly respondent 4 stayed the order. Respondent 6 filed writ petition against grant of stay in writ petition No. 1771/2011. Collector transferred the file to Respondent 3. Respondent 3 asked the petitioner to submit reply. Petitioner refused to file reply before Respondent 3 on the ground of writ petition filed by Respondent 6, pending consideration before High Court as appearing in proceedings Annexure P-1. Respondent 3 after considering entirety of facts of case, Rules of promotion and further that the petitioner does not fulfill eligibility -7- criteria of Rules of 1999, cancelled the order of promotion.
8. There is no interim order in favour of petitioner in this case, admittedly, she was not eligible on the date of her consideration for promotion. After stay of order of cancellation of promotion, she was given opportunity to file reply but she refused, hence, in the peculiar facts of the case, it cannot be said that she was not given opportunity of hearing. Hon'ble Supreme Court in the case of Union of India and another v. Narendra Singh reported in (2008) 2 SCC 750 has held as under:
"32. It is true that the mistake was of the Department and the respondent was promoted though he was not eligible and qualified. But, we cannot countenance the submission of the respondent that the mistake cannot be corrected. Mistakes are mistakes and they can always be corrected by following due process of law. In ICAR v. T.K. Suryanarayan, (1997) 6 SCC 766 it was held that if erroneous promotion is given by wrongly interpreting the rules, the employer cannot be prevented from applying the rules rightly and in correcting the mistake. It may cause hardship to the employees but a court of law cannot ignore statutory rules.
"33. As observed by us, statutory rules provide for passing of departmental examination and the authorities were right in not relaxing the said condition and no fault can be found with the authorities in insisting for the requirement of law. In the circumstances, the action of the authorities of correcting the mistake cannot be faulted."
9. Respondents-Authority by cancelling the order of promotion granted to petitioner contrary to rule have only corrected the mistake which is permissible, more so when it was brought to the knowledge within less than a year.
10. Sofar as, the submission of learned counsel for petitioner with regard to application of Section 70 of Adhiniyam, 1993, perusal of provisions of Section 70 of the Adhiniyam, 1993 would show that -8- discretion has been granted to the panchayats to appoint such other Officers and servants as it considered necessary for the efficient discharge of its duties subject to approval of the prescribed authority. Admittedly, Respondent 4, prior to passing an order of promotion, has not taken any approval from the prescribed authority and it is not the case of petitioner as well. Perusal of order Annexure P-6 dated 19.09.2008 would reflect that the petitioner was promoted based on the Rules of 1999.
11. In view of the aforementioned facts of the case, the submission of learned counsel for petitioner that the petitioner was promoted exercising the powers under Section 70 of the Adhiniyam, 1993 is also not sustainable and it is hereby repelled.
12. The last submission of learned counsel for petitioner that Respondent 6 was erroneously granted promotion in the year 1994 overlooking the provisions of Rule 27 of of Rules of 1999 is concerned, order of promotion is dated 11.05.1994, petitioner challenged the order of promotion of the year 1994 by filing petition in the year 2012 ie. after lapse of more than 17 years. Petitioner and Respondent 6 were working in the same office ie. with Respondent 4, Petitioner was well aware with respect to grant of promotion to Respondent 6 in the year 1994 but she did not challenge the same within reasonable time. The claim of petitioner is a stale claim. Even if it is accepted that Respondent 6 was erroneously promoted and petitioner was superseded on the said date ie. in the year 1994, she could have challenged the order of promotion immediately thereafter. The matter already settled should not be disturbed after lapse of long time. Reasonable time to challenge appointment in cases where no specific limitation is prescribed may be 3 or 4 years. Hon'ble -9- Supreme Court in case of K.R. Mudgal & Ors v. R.P. Singh & Ors. reported in (1986) 4 SCC 531 has held as under:
"7. The respondents in the writ petition raised a preliminary objection to the writ petition stating that the writ petition was liable to be dismissed on the ground of laches. Although the learned Single Judge and the Division Bench have not disposed of the above writ petition on the ground of delay, we feel that in the circumstances of this case the writ petition should have been rejected on the ground of delay alone. The first draft seniority list of the Assistants was issued in the year 1958 and it was duly circulated amongst all the concerned officials. In that list the writ petitioners had been shown below the respondents. No objections were received from the petitioners against the seniority list. Subsequently, the seniority lists were again issued in 1961 and 1965 but again no objections were raised by the writ petitioners, to the seniority list of 1961, but only the petitioner No. 6 in the writ petition represented against the seniority list of 1965. We have already mentioned that the 1968 seniority list in which the writ petitioners had been shown above the respondents had been issued on a misunderstanding of the Office Memorandum of 1959 on the assumption that the 1949 Office Memorandum was not applicable to them. The June 1975 seniority list was prepared having regard to the decision in Ravi Varma's case (supra) and the decision of the High Court of Andhra Pradesh in the writ petitions filed by respondent Nos. 7 and 36 and thus the mistake that had crept into the 1968 list was rectified. Thus the list was finalised in January, 1976. The petitioners who filed the writ petition should have in the ordinary course questioned the principle on the basis of which the seniority lists were being issued from time to time from the year 1958 and the promotions which were being made on the basis of the said lists within a reasonable time. For the first time they filed the writ petition in the High Court in the year 1976 nearly 18 years after the first draft seniority list was published in the year 1958. Satisfactory service conditions postulate that there should be no sense of uncertainty amongst the Government servants created by the writ petitions filed after several years as in this case. It is essential that any one who feels aggrieved by the seniority assigned to him should approach the court as early as possible as otherwise in addition to the creation of a sense of insecurity in the minds of the Government servants there would also be administrative complications and difficulties. Unfortunately in this case even after -10- nearly 32 years the dispute regarding the appointment of some of the respondents to the writ petition is still lingering in this Court. In these circumstances we consider that the High Court was wrong in rejecting the preliminary objection raised on behalf of the respondents to the writ petition on the ground of laches. The facts of this case are more or less similar to the facts in R.S. Makashi & Ors.v. I.M. Menon & Ors., [1982] 2 S.C.R. 69. In the said decision this Court observed at page 100 of the Reports thus:
(SCC p. 400, para 30) 'In these circumstances, we consider that the High Court was wrong in over-ruling the preliminary objection raised by the respondents before it, that the writ petition should be dismissed on the preliminary ground of delay and laches, inasmuch as it seeks to disrupt the vested rights regarding the seniority, rank and promotions which had accrued to a large number of respondents during the period of eight years that had intervened between the passing of the impugned Resolution and the institution of the writ petition. We would accordingly hold that the challenge raised by the petitioners against the seniority principles laid down in the Government Resolution of March 22, 1968 ought to have been rejected by the High Court on the ground of delay and laches and the writ petition in so far as it related to the prayer for quashing the said Government Resolution should have been dismissed.'
13. In the case of Bhoop Singh v. Union of India and Ors reported in (1992) 3 SCC 136, Supreme Court while considering the claim after considerable delay has held thus:
"7. It is expected of a Government servant who has a legitimate claim to approach the Court for the relief he seeks within a reasonable period, assuming no fixed period of limitation applies. This is necessary to avoid dislocating the administrative set-up after it has been functioning on a certain basis for years. During the interregnum those who have been working gain more experience and acquire rights which cannot be defeated casually by lateral entry of a person at a higher point without the benefit of actual experience during the period of his absence when he chose to remain silent for years before making the claim. Apart from the consequential benefits -11- of reinstatement without actually working, the impact on the administrative set-up and on other employees is a strong reason to decline consideration of a stale claim unless the delay is satisfactorily explained and is not attributable to the claimant. ...
8. There is another aspect of the matter.
Inordinate and unexplained delay or laches is by itself a ground to refuse relief to the petitioner, irrespective of the merit of his claim. If a person entitled to a relief chooses to remain silent for long, he thereby gives rise to a reasonable belief in the mind of others that he is not interested in claiming that relief. ..."
14. In writ petition which is filed in the year 2012, petitioner has not offered any explanation for delay in challenging the order of promotion of the year 1994. Contrary, in petition, it is mentioned that there is no delay in filing writ petition.
15. In view of the aforementioned facts and circumstances of the case and aforesaid rulings of Hon'ble Supreme Court, challenge of petitioner with regard to Annexure P-3, order of promotion of Respondent 6 in the year 1994 is also not tenable on the ground of delay and laches. The submission of learned counsel for petitioner with respect to fixation of seniority also cannot be considered as no relief is sought in this regard in the writ petition. If the petitioner is aggrieved by fixation of seniority, she may file appropriate proceedings before the appropriate forum, if she so desires.
16. In view of the aforementioned discussion, writ petition being devoid of any substance which is liable to be and is hereby dismissed accordingly. No order as to cost(s).
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(Parth Prateem Sahu) Judge Pawan