Anuj Sharma vs State Of Chhattisgarh on 26 June, 2024

[Cites 35, Cited by 0]

Chattisgarh High Court

Anuj Sharma vs State Of Chhattisgarh on 26 June, 2024

1. Since an identical issue and common question of facts are Neutral Citation 2024:CGHC:22309 Page 13 of 53 involved in bunch of these writ petitions, they are heard analogously and are being decided by this common order. Brief facts of WPS No. 5422 of 2023 & WPS No. 9062 of 2023 are:-

2. The instant writ petitions have been preferred by the petitioners against legality, validity and propriety of the order dated 26.07.2023 (Annexure P/1) passed by respondent No. 2 whereby the long-standing seniority of the petitioners has been disturbed without any cogent reason and accordingly seniority list prevailing since 2009-2020 has been modified. The petitioners have also prayed that seniority list which was in existence from 2010-2020 shall be restored.

3. The brief facts as reflected from records are that the petitioners were initially appointed on the post of Sub-Engineer in the Public Works Department and they were promoted on the post of Assistant Engineer as per departmental promotion committee convened on 24.07.2008 but promotion orders were not issued, in the meanwhile the private respondents were appointed on 02.08.2008 on the post of Assistant Engineer (Civil). The petitioners were granted seniority over the private respondents vide order dated 31.07.2008. The seniority granted to the petitioners was continued but all of a sudden the impugned order dated 26.07.2023 (Annexure P/1) has been passed disturbing the long-standing seniority granted to the petitioner. This order is being assailed by the petitioners.

Neutral Citation 2024:CGHC:22309 Page 14 of 53 Brief facts of WPS No. 1441 of 2020, WPS No. 4895 of 2020 & WPS No. 4524 of 2020 are:-

4. The instant petitions have been preferred by the petitioners against inaction on the part of the respondents in not considering the degree holder Assistant Engineer for promotion on the post of Executive Engineer as the respondent State is only considering for promotion on the post of Executive Engineer to those candidates who are promoted from the post of Sub-

Engineer/Overseers. The contention of the petitioners in brief is that the petitioners are degree holder Assistant Engineer appointed on 02.08.2008 (Annexure P/1) and as per Rule 13 & 14 as well as Schedule-IV of Chhattisgarh Public Works Engineering (Gazetted) Service Rules, 1969 (for short "the Rules, 1969"), 92% posts are filled up from direct recruitment Assistant Engineer and remaining 8% have to be filled up by Assistant Engineers who have been promoted from the post of Sub-Engineers/Overseers and would submit that in the set up of department, 76 posts of Executive Engineer is sanctioned and 41 posts have already been filled up and out of 41 posts, 19 posts have been occupied by Assistant Engineers directly recruited and 22 posts have been occupied by the persons who are promoted from the post of Sub-Engineers/Overseers and 25 posts are lying vacant still the case of the petitioners for promotion is not being considered and thus, on the above factual foundation, they have prayed for following reliefs:-

Neutral Citation 2024:CGHC:22309 Page 15 of 53 (1) To issue an appropriate writ or order and direct the respondents to consider the case of the petitioners for promotion to the post of Executive Engineer Class I in terms of 'Recruitment Rules of 1969'.

(2) To issue an appropriate writ or order and direct the respondents to fill up the vacant post of Executive engineer Class I in Public Works Department in terms of 'Recruitment Rules of 1969'.

(3) To issue an appropriate writ or order and hold that the action of respondents of giving charge to the promotee Assistant Engineers is contrary to the prescriptions and bad in law.

In WPS No. 4985/2020, the petitioners have prayed for quashing of the decision taken by the committee vide Annexure P/10 wherein the direct recruited Assistant Engineers in the year 2008 have moved the representation and respondent authority has rejected the representation of the petitioners for correction in the seniority list and prayer for promotion. The decision of the authority rejecting the representation of the petitioner is per se illegal and bad as Rule 12 of the Chhattisgarh Civil Services (General Condition of Service) Rules, 1961 (for short "the Rules, 1961") specifically provides that the seniority of a direct recruited government servant appointed on probation shall be counted during his probation from the date of his appointment, Rule 12

(a)(ii) of the Rules, 1961 is applicable in a case where the probation has been extended by the appointing authority admittedly in the case of the petitioners the probation was never extended thus the conclusion drawn by the said committee is per Neutral Citation 2024:CGHC:22309 Page 16 of 53 se illegal and contrary to the provisions contained in the Rules, 1961. It has also been contended that respondents No. 1 & 2 are proceeding with the DPC on the basis of gradation list of the year 2019-20 which was issued on 28.10.2020 without giving any opportunity to submit their objection, is in violation of principle of natural justice and would pray for quashing of the decision (Annexure P/10) taken by the committee and also prayed for promotion on the post of Assistant Engineers strictly in accordance with the Rules, 1961.

In WPS No. 4524/2020 the petitioners have prayed for quashing of the decision taken by the committee by which their representation has been rejected. The petitioners have reiterated the same factual matrix which has already been reiterated in WPS No. 1441 of 2020, WPS No. 4895 of 2020.

Brief facts of WPS No. 8716 of 2023 are:-

5. Apart from the facts mentioned in aforesaid writ petitions, it has also been contended in the writ petition that in the year 2008, 257 sanctioned posts of Assistant Engineers was sanctioned in the department and only 47 officers were posted as such 210 posts are lying vacant and 340 additional posts were anticipated to become vacant. Accordingly, a proposal for making promotion to the post of Assistant Engineer (Civil) for the year 2005-07 was already sent to the Chhattisgarh Public Service Commission who convened the DPC on 24.07.2008 and all the Sub-Engineers were recommended to be promoted by the CGPSC on Neutral Citation 2024:CGHC:22309 Page 17 of 53 30.07.2008 and their promotion orders were issued on 19.09.2008. It has also been contended that some of the private respondents have filed WPS No. 3208/2020 wherein this Court while passing the order on 18.08.2020 and has observed in paragraph 5 that since the petitioners have already preferred representation and the State Government has constituted a committee on 10.07.2020, it is directed that the said committee shall consider the representation and pass a detailed order. In view of the above factual matrix, the petitioner has also prayed for same relief for quashing of the order dated 26.07.2023 (Annexure P/1).

6. Some of the the intervenors are in support of the petitioners and some of the intervenors are against the petitioners. Learned counsel for the interveners who supports the case of the petitioners would submit that the intervenors are posted as Assistant Engineer were promoted to the post of Assistant Engineer vide order dated 19.09.2008. The Seniority of the intervenor along with other promoted Assistant Engineers has been decided as per Rule 12 of the Rules, 1961. The private respondents have objected the seniority granted to the intervenor and other promoted assistant engineer although they have been promoted under a separate quota. As such, any order passed by this Court in these petitions, will have adverse affect in the service carrier of the intervenor, therefore, they would pray for allowing the intervention applications. Learned counsel for Neutral Citation 2024:CGHC:22309 Page 18 of 53 the intervenors would submit that the impugned order dated 26.07.2023 (Annexure P/1) is bad in law as long-standing seniority has been adversely affected by the impugned order, thus, they would pray for quashing of the impugned order dated 26.07.2023 (Annexure P/1).

7. Considering the submission, the intervention applications filed by the intervenors are allowed as their interest are being adversely affected in ongoing litigation between the parties. Accordingly, the intervenors are allowed to make their submissions.

Return of the State:-

8. In WPS No. 5422 of 2023, WPS No. 9062 of 2023, WPS No. 8716 of 2023 the State has filed their return mainly contending that the petitioners were earlier appointed as Sub-Engineers and then promoted to the post of Assistant Engineer as per the DPC convened on 24.07.2008 for 188 posts but the promotion orders were issued on 19.09.2008 & 31.07.2008. As such, their date of promotion will be 19.09.2008 & 31.07.2008. It has also been contended that the petitioners whose names were not found place in the list of 31.07.2008, cannot claim seniority from 31.07.2008 and candidature of the petitioners were found eligible and kept in the list of 30 posts of anticipated candidates and in the meantime, on 19.09.2008, 26 posts of Assistant Engineer got vacant due to the promotion of Assistant Engineer to Executive Engineer, therefore, to fulfill these 26 posts, the candidature from the list of anticipated candidates who were Neutral Citation 2024:CGHC:22309 Page 19 of 53 found eligible in the DPC convened on 24.07.2008, was considered and new list of promotion was published on 19.09.2008 giving the promotion to the petitioners, from Sub-

Engineers to Assistant Engineer. Thus, it is quite vivid that the petitioners were promoted on 19.09.2008 and they borne in the cadre of the Assistant Engineer w.e.f. 19.09.2008 and not from 31.07.2008, therefore, as per Rule 12(1)(e) of the Rules, 1961, the seniority of the petitioners were to be counted from 19.09.2008 not from 31.07.2008. The list of the candidates given promotion on 31.07.2008 along with the list of the candidates whose names were later on considered during circulation w.e.f. 31.07.2008 is also filed with the return as Annexure R/3 & R/4. It is also pertinent to mention here that all the 158 vacant posts were fulfilled on 31.07.2008 itself and during the DPC Convened on 24.07.2008, the candidatures of the petitioners were found eligible and kept in the list of 30 posts of anticipated candidates.

9. It has also been contended that writ petition bearing WP(S) No. 3208 of 2020 was filed before this Court and disposed off on 18.08.2020, wherein it has been held as under:-

"5. Reading of the order dated 10.07.2020 (Annexure P-2) would show that the State Government has already formed a Committee to decide the seniority amongst the Assistant Engineer (Civil) and invited for objection and representation. Since it appears that the representation has already been preferred by the petitioners to the Secretary, Public Works Department, the Committee shall consider the representation of the petitioners and pass a Neutral Citation 2024:CGHC:22309 Page 20 of 53 detail order. It is further made clear, at this stage, the Court has not observed any right of the intervener or in respect of the merit of this case."

10. In pursuance of the order passed by this Court in WPS No. 3208 of 2020, a committee was constituted by the State Government for looking towards the objections raised by various promotees as well as direct recruitees in case of seniority and the Committee has submitted its report to the Secretary, Public Work Department, State of Chhattisgarh, on 13.10.2020 wherein it was recommended that the inter-se seniority between the direct recruitment as well as promotees, shall be decided on the basis of Rule 12(1)(e) of the Rules, 1961. It has been further contended that the he Secretary, General Administration Department on 27.03.2021 has given an opinion on 21.05.2021 for determining the seniority as per Rule 12(1)(c) of the Rules, 1961.

11. It has been further contended that another writ petition bearing WPS No. 1607 of 2023 was filed by the petitioner-Umendra Verma (who was promoted as Assistant Engineer from Sub- Engineer on 31.07.2008, serial No. 109), wherein he has challenged non-consideration of his candidature for promotion on the post of Executive Engineer, which was disposed off by this Hon'ble Court on 02.03.2023, directing the respondent authorities to convene the DPC within four months and take necessary actions in accordance with law, therefore, to comply the order of the Hon'ble Court, the necessity arose to prepare Neutral Citation 2024:CGHC:22309 Page 21 of 53 the gradation list, and the same was done on the basis of the opinion of the General Administration Department.

12. It has been further contended that the seniority list published from 01.04.2009 to 01.04.2020 was revised on the recommendation of the General Administration Department of State of Chhattisgarh and the revised list was prepared relying upon Rule 12 (1)(e) of the Rules, 1961. As a result of which, petitioners were placed below the private respondents. It has been further contended that the petitioners are junior to the private respondents as evident from their date of appointment mentioned in Annexure R/1.

13. It has been further contended that various representations were made by the private respondents before the Government authorities for revising the seniority list as the same seniority list was not in accordance with Rule 12(1) (e) of the Rules, 1961, which has been considered by the State vide order dated 26.07.2023 (Annexure P/1) modifying the seniority of Assistant Engineers of the department.

14. The respondents/ State has also enclosed the note-sheet of the file which has decided to apply Rule 12 (1)(e) of the Rules, 1961 for fixing the inter se seniority between direct recruited or promoted Assistant Engineers. It has been further contended that while considering the issue of promotion and dispute pertains to the seniority. the State Government has taken the final decision on 26.07.2023 and after considering all the facts Neutral Citation 2024:CGHC:22309 Page 22 of 53 and circumstances and the Rules, 1961 have decided that the respondents who were appointed on 02.08.2008 will be placed above the Assistant (Civil) Engineers who were promoted on 19.09.2008 against the vacancies occurred on 19.09.2008. It has been further contended that from bare perusal of the aforesaid chronological dates and events, it is quite vivid that the dispute pertains to only seniority amongst the Assistant Engineers (Civil) directly appointed on 02.08.2008 and Assistant Engineers (Civil) was promoted on 19.09.2008. It is also clear that, the petitioner was considered for promotion for the future vacancies (if no vacancy occurred, the petitioners have no right to claim promotion). Admittedly the future vacancies occurred on 19.09.2008 itself and therefore, the petitioner was promoted against the said vacant post.

15. In WPS No. 1441/2020, the State has further contended that the instant petition has been preferred jointly by the petitioners seeking promotion to the higher post. According to the petitioners, they were appointed on the post of Assistant Engineer (Civil) in Public Works Department and their services are governed by the Recruitment Rules of 1969 under which Rule 14 deals with appointment by promotion and Schedule IV prescribes that for promotion to the post of Executive Engineer Class I, a candidate must have an experience of 6 years. It has also been contended that a meeting was convened on 18.07.2011 by the Chhattisgarh Public Service Commission, Neutral Citation 2024:CGHC:22309 Page 23 of 53 Raipur regarding promotion to the post of Executive Engineer (Civil) from the post of Assistant Engineer for the promotion year 2010. It has been further contended that one Pradeep Kumar Janvade had preferred WPS No 1679/2012 before the Hon'ble High Court against the promotion order dated 27.06.2011, which was passed after the review DPC for promotion to the post of Executive Engineer from the post of Assistant Engineer (Civil) for the promotion year 1991. In the aforesaid petition, the Hon'ble Court has passed stay order on 03.10.2013. Thereafter, in pursuance of the order dated 03.10.2013, the seniority list for the post of Executive Engineer and higher posts could not be issued nor the proceeding for promotion to the post of Executive Engineer, Superintending Engineer, Chief Engineer and Engineer-in-Chief has been initiated. Subsequently, this Court has vacated the order of stay granted on 03.10.2013 as modified on 12.08.2014 and granted liberty to the State of Chhattisgarh to re-draw the seniority if so advised independent of decision of this Court in Rajeev Sharma's case (supra) in accordance with law. However. any promotion to any member of the cadre shall be subject to the final decision of the writ petition. It has been further contended that the department initiated proceeding regarding grant of promotion to the post of Superintending Engineer and Executive Engineer, which is under process. After considering the records and relevant aspects, it is clear if the petitioners found fit for promotion to the higher post, the Neutral Citation 2024:CGHC:22309 Page 24 of 53 promotion would be granted in accordance with law. It has been further contended that the petitioners cannot claim promotion on the higher post as a matter of right.

16. In WPS No. 4895 of 2020 & WPS No. 4524 of 2020, the State has filed their return mainly contending that a detailed representation was made by many of the direct recruitees to correct the aforesaid anomaly. It has been further contended that that the present petition itself is not maintainable and liable to be dismissed on the ground of delay and latches. It is settled position of law that the dispute with respect to the seniority or promotion is to be raised at the earliest point of time and not belatedly. As in the instant case the seniority of the Assistant Engineers have already been finalized in the year 2011 and the gradation list dated 29.03.2011. Subsequently finding the discrepancy in the promotion of Sub Engineers to the post of Assistant Engineers, wherein certain seniors have been left from being promoted and juniors have got promotion contrary to law, a Review D.P.C. was convened on 05.06.2010 and the order dated 31/07/2008 was amended giving seniority to all the Sub Engineers who got promoted to the post of Assistant Engineers from 31/07/2008 itself and fresh orders were issued on 28/08/2010 promoting and demoting the officers in accordance with law.

17. It has been further contended that after conducting review DPC, the gradation list was prepared and published as per Rules of Neutral Citation 2024:CGHC:22309 Page 25 of 53 1961 maintaining the seniority of promoted Assistant Engineers and directly appointed Assistant Engineer. The petitioners neither have challenged the order of review DPC and the decision taken thereupon, nor the gradation list issued in the year 2011 at the relevant point of time which became final. It is settled position of law that mere filing of representation with respect to stale claim does not give any fresh cause of action nor the delay and laches are wiped out. Hon'ble the Supreme Court in case of Union of India Vs. C. Girija & others reported in (2019) 15 SCC 633 and would pray for dismissal of the writ petitions.

18. It has been further contended that the petitioners are not governed presently as per Rules 1969, since in the year 2015 new Rules have already been notified namely Chhattisgarh Public Works Engineering (Gazetted) Service Recruitment Rules 2015 (for short "the Rules, 2015") and as such the petitioners are governed by the same. It has been further contended that neither review DPC was ever challenged nor the decision dated 28/08/2010 was put to challenge by the petitioners at any point of time which became final. The posts were lying vacant and the DPC was duly convened and recommended for promotion to all the Sub Engineers to the post of Assistant Engineers and mainly for the reason, few orders of promotion were issued subsequent to the appointment of the petitioners does not entitle them to claim benefit over and above, the promotee Assistant Engineers Neutral Citation 2024:CGHC:22309 Page 26 of 53 whose candidature was under consideration for promotion of the year 2005, 2006 & 2007. It is further respectfully submitted that the entire action on the part of the answering respondents is accordance with law and no benefit was given to any person illegally and the seniority list / gradation list which was published is in accordance with law. The promotee Assistant Engineers were entitled to the seniority as on 31.07.2008, since on that date already candidature of all the Sub Engineers was duly considered and recommended in accordance with law which was duly considered at the time of Review DPC and accordingly the seniority list was published in the year 2011 wherein the petitioners were kept below the Assistant Engineers who were promoted.

19. It has been further contended that all the facts have been duly considered by the Committee and by a detailed speaking order their representations were rejected which cannot be faulted with the seniority as determined by the Committee, after considering Rule 12 of the Rules, 1961. The petitioners themselves are not entitled for any relief in view of the settled position of law as held by various High Courts and the Hon'ble Supreme Court, holding that the dispute regarding seniority or promotion cannot be raised at a belated stage as the same is having cascading effect and the courts cannot interfere to unsettle, the settled position and the petitioners should have to be vigilant in order to make any challenge to the seniority. It has been further contended that Neutral Citation 2024:CGHC:22309 Page 27 of 53 the order impugned does not suffer from any infirmity and legality, petitioners are not entitled for any relief as prayed for and the petition filed by the petitioners being devoid of merits without substance is liable to be dismissed.

20. The private respondents have also filed their return mainly contending that on 24.07.2008 a Departmental Promotion Committee (DPC) was held for grant of promotion on the post of assistant engineers from the feeder cadre of sub engineers for 188 vacant posts and 135 Sub Engineers were promoted vide order dated 31.07.2008 and some posts were kept under circulation. It has been further contended that after the issuance of promotion order for 135 Sub-Engineers 30 anticipated vacancies of Assistant Engineers were left out which were to be filled by promotion of Sub Engineers. These anticipated vacancies have arisen due to promotion of Assistant Engineer on the post of Executive Engineer. The petitioners were granted promotion against these 30 anticipated vacancies vide order dated 19.09.2008 only when the anticipated vacancies became actual available. They would further submit that the submission made by the petitioners that all the 155 Sub Engineers were promoted to the post of Assistant Engineer and postings were given to them on 31.07.2008, is incorrect submission of facts as first promotion order was issued on 31.07.2008 in which 135 Sub-Engineers were granted promotion on the post of Assistant Engineer and second promotion order was issued on 19.09.2008 Neutral Citation 2024:CGHC:22309 Page 28 of 53 in which petitioners were granted promotion. It has been further contened that it is settled principle of law that an employee takes birth in the cadre either on the date of appointment or from the date of its promotion. It is immaterial that when the DPC was held, whether some of the recommended candidates were promoted earlier, therefore, the submission made by the petitioners that all 155 Sub-Engineers were posted vide order dated 31.07.2008, is illegal and bad in law as on date of DPC.

21. It has been further contended that the anticipated vacancies were not even actual vacancies. It has been further submitted that to conduct direct recruitment on the post of Assistant Engineer (Civil), an advertisement was issued on 28.12.2006. The private respondents were participated in the said recruitment process and being successful in the selection process, appointments were granted against 42 posts of Assistant Engineer (direct recruitment quota) to them vide order dated 02.08.2008. They would further submit that the petitioners were placed above the private respondents in seniority list wrongfully for the reason that respondent No. 26 along with other private respondents were appointed in the cadre of Assistant Engineer before the petitioners. They would further submit that a bare perusal of the order dated 18.08.2020 passed by this Hon'ble Court in WPS No. 3208 of 2020 reflects that no adjudication on merits have been done by this Court and only a direction was issued for deciding the claim of the private Neutral Citation 2024:CGHC:22309 Page 29 of 53 respondents herein by constituting a Committee vide the order dated 10.07.2020.

22. It has been further contended that the Committee has rejected the claim of the direct recruit vide recommendation dated 13.10.2020 and the said recommendation was never culminated in any final order. It has been further contended that the claim of the petitioners that they were having a long-standing seniority as they were placed above the direct recruits from 2009 till the issuance of the impugned order is a baseless contention for the reason that seniority can only be granted in accordance with the rules. It has been further contended that Rule 12 (1) (e) of the Rules, 1961 clearly provides that 'the relative seniority between direct recruitees and promotees shall be determined according to the date of issuance of appointment/promotion order. These rules are binding for fixing seniority and the petitioners were borne in the cadre of Assistant Engineer after the private respondents. It has been further contended that when the authorities realized their mistake, they corrected the same by way of issuing impugned order dated 26.07.2023 which is under challenge by the petitioners.

23. It has been further contended that as per Rule 12(1)(b) of the Rules, 1961, the seniority of promotees will be determined in the order in which they were recommended for such promotion and Rule 12(1)(e) of the Rules, 1961 clearly provides that, relative seniority amongst direct recruitees and promotees shall be Neutral Citation 2024:CGHC:22309 Page 30 of 53 determined according to the date of issue of appointment/ promotion order. Admittedly, in the instant case, the appointment orders of private respondents were issued on 02.08.2008 and they have joined the posts and thereafter on 19.09.2008 the promotion orders of the petitioners were issued and therefore, the decision dated 26.07.2023 is in accordance with Rule 12(1)

(e) of the Rules, 1961. It has been further contended that it is totally wrong on the part of the petitioners to contend that the gradation list of the Assistant Engineers for the year 2009 issued on 29.03.2011 wherein they were placed above the private respondents and the same was followed upto 2023 and thus has attained finality.

Submissions made by the counsel for the petitioners

24. Learned counsel for the petitioners would submit that 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. He would further submit that in the instant case, the private respondents have approached the concerned authorities and Hon'ble Court after a span of about 11-12 years and such belated claim of the private respondents could not be allowed to entertain as being barred by delay and laches and long-standing seniority of the petitioners could not be disturbed after such a long span of time. Neutral Citation 2024:CGHC:22309 Page 31 of 53 He would further submit that the respondents No. 37 and 38 though they were also initially appointed on the post of Sub- Engineer and in the Year 2011 they were promoted as Assistant Engineer. So far as the petitioners are concerned they were promoted in the Year 2009 meaning thereby the respondents No. 37 and 38 were found place in cadre of Assistant Engineer in the Year 2011, a bare perusal of the impugned gradation list would show that those who were promoted in the year 2011 are placed above to the petitioners in the gradation list of Year 2023. The aforesaid facts and circumstance patently made in evident that the entire gradation list is being prepared in heist without any due application of mind and in order to serve the interest of private respondents. Further contention of the petitioners is that Hon'ble the Supreme Court in case of K.R. Mudgal and Others Vs. R.P. Singh & Others reported in (1986) 4 SCC 531 has held that a government servant who is appointed to any post ordinarily should at least after a period of 3 or 4 years of his appointment be allowed to attend the duties attached to his post peacefully and without any sense of insecurity. Satisfactory service conditions postulate that there should be no sense of uncertainty amongst the Government servants. On the above factual matrix, the petitioners have prayed for quashing of the impugned order dated 26.07.2023 (Annexure P/1) passed by respondent No. 2.

25. They would further submit that the respondent authorities have Neutral Citation 2024:CGHC:22309 Page 32 of 53 arbitrarily issued the impugned gradation list without issuing the provisional list calling for objections from the petitioners and other concerned persons which they were obliged to do as per the relevant rules. They would further submit that the impugned order will cause great prejudice to the petitioners as they shall loose their seniority from the date of direct appointment of service and thereafter the promotional avenues will not be available to the petitioners. To substantiate their submission, they would rely upon the following judgments of the Hon'ble Supreme Court in case of Shiba Shankar Mohapatra & Ors. V. State of Orissa & Ors. reported in (2010) 12 SCC 471, HS Vankani and Others Vs. State of Gujarat and Others reported in (2010) 4 SCC 301, the Hon'ble Madhya Pradesh in case of Suresh Singh Bhandari Vs. State of Madhya Pradesh reported in (2016) 4 MPLJ 180, the Hon'ble Supreme Court in case of State of Uttaranchal Vs. Shiv Charan Singh Bhandari reported in (2013) 12 SCC 179, in case of S. S. Balu Vs. State of Kerala reported in (2009) 2 SCC 479 & in case of Keshav Deo & Anr. Vs. State of U.P. & Ors. reported in 1991 (1) SCC

280. Submissions of the State and Private respondents

26. Learned counsel of the State as well as the private respondents would submit that there is no ambiguity in the decision dated 26.07.2023 or in decision making process and submission made by the petitioner that the seniority of the petitioners cannot be Neutral Citation 2024:CGHC:22309 Page 33 of 53 challenged or disturbed after near about 12 years (After appointment of respondents on 02.08.2008 and promotion of the petitioners on 19.09.2008, the first gradation list was issued on 29.03.2011), is misconception of facts as illegality cannot be allowed to be continued. It has been further contended that objections were invited by the State Government and the direct recruitees raised the objection then and there and it was kept under consideration, which has been decided finally on 26.07.2023 and would pray for dismissal of the writ petitions.

27. To substantiate these submissions, they would rely upon the judgment rendered by Hon'ble the Apex Court in case of State of Bihar v. Akhouri Sachindra Nath reported in 1991 Supp (1) SCC 334, Vinodanand Yadav v. State of Bihar reported in 1994 Supp (2) SCC 44 and State of Uttaranchal Vs. Dinesh Kumar Sharma (2007) 1 SCC 683, Uttaranchal Forest Rangers Association (Direct Recruit) & Ors. Vs. State of U.P. & Ors. reported in 2006 (9) Scale 577, K. C. Joshi Vs. Union of India reported in 1992 Suppl (1) SCC 272, Vinodanand Yadav & Ors. V. State of Bihar & Ors. reported in 1994 Suppl. (2) SCC 44 and Jagdish Ch. Patnaik & Ors. Vs. State of Orissa & Ors. reported in 1998 (4) SCC 456.

28. I have heard learned counsel for the parties and perused the records of DPC held in the year 2008 as well as the records pertaining to the issuance of impugned order dated 26.07.2023.

29. From submission made by learned counsel for the parties Neutral Citation 2024:CGHC:22309 Page 34 of 53 including intervenors supporting/opposing case of the petitioners, the points required to be determined by this Court are:-

"(1) Whether the petitioners who were considered for promotion for the cadre post of Assistant Engineers in the departmental promotion committee held on 24.07.2008 against 30 anticipated vacancies of Assistant Engineers when there were no cadre post was vacant can claim seniority from the date of recommendation i.e. 24.07.2008 or from the date when other Sub-Engineers were promoted vide order dated 31.07.2008 whereas they were promoted on 19.09.2008 by the State on that day only the post were vacated due to promotion of 26 Assistant Engineer (Civil) to Executive Engineer (Civil).

(2) Whether relative seniority between direct recruited Assistant Engineer and promotee Assistant Engineer shall be governed by Rule 12(1)(e) of the Rules, 1961.

(3) Whether the petitioners are entitled to get seniority on the count of principle of long-standing of their seniority from 2011 till the impugned order dated 26.07.2023 was passed by the State.

30. Since the above points emerges for determination by this Court are inter connected, dependable upon each other, co-relates with each other, they are being decided analogously. Neutral Citation 2024:CGHC:22309 Page 35 of 53

31. To appreciate the above points, it is expedient for this Court to extract the record of DPC which was held in the year 2008 for promotion of Sub-Engineer to the post of Assistant Engineer and the Rules known as Chhattisgarh Public Works Engineering (Gazetted) Service Recruitment Rules, 1969 (for short "the Rules, 1969"). Rule 14 of the Rules, 1969 provides conditions for eligibility of promotion. This rule further provides that the committee shall consider the case of the person (whether officiating or substantive) in the service mentioned in Column 2 of Schedule IV or any other post or posts declared equivalent there to by the Government. The Schedule IV of the said rule provides that promotion from the post of Junior Engineer/Sub- Engineer to promotion on the post of Assistant Engineer Class-II, 8 years service for overseers promotion to the post of Assistant Engineer, 12 years and graduate Sub-Engineers, 8 years service. Accordingly, a DPC was held on 24.07.2008 for promotion of Sub-Engineer/Draftsman on the post of Assistant Engineer in which 107 Sub-Engineers which consists of 66 diploma holder in unreserved category, 24 ST and 17 SC category Sub-Engineer were included. 30 candidates out of unreserved graduate category, 9 ST and 3 SC graduate Sub- Engineers were included for promotion. Since the candidates in the zone of consideration of this category were not available, therefore, 3 candidates of SC category were also included. In the draftsman cadre, 7 officers were included from unreserved Neutral Citation 2024:CGHC:22309 Page 36 of 53 category, 2 candidates from ST and 3 candidates were not included in the zone of consideration.

32. The record of the DPC also reflects that the DPC will consider 25% of anticipated vacancies as per Rule 6(2) of Chhattisgsarh Public Services (Promotion) Rules, 2003 (for short "the Rules, 2003") of the public servant who have fulfilled the requisite length of service. Accordingly, DPC was held on 24.07.2008. The records of DPC reflects that there are 257 posts in the cadre out of which 125 posts have to be filled up from diploma holder in unreserved, ST & SC candidates, 51 for graduate engineers and 12 for draftsman. Thus, total 181 posts have to be filled up.

33. Thereafter, after getting approval and proposal for posting, the file was sent on 30.07.2008 to the Government and promotion order of 119 Sub-Engineer/Draftsman on the post of Assistant Engineer was issued. The committee has kept the names of 23 Sub-Engineers in circulation as certain ACRs were not available at the time of conducting DPC. Thereafter, the petitioners namely Anuj Sharma, Ashish Kumar Bhattacharya and others Sub- Engineers were promoted and posted on the post of Assistant Engineer (Civil) on 19.09.2008. The records of the case would further demonstrate that on 19.09.2008, 24 Assistant Engineers were promoted on the post of Executive Engineers, therefore, the vacancy was available, accordingly, the candidates of DPC dated 24.07.2008 who could not be promoted on account of filling of the post of Assistant Engineer, the Sub-Engineer were Neutral Citation 2024:CGHC:22309 Page 37 of 53 promoted on 19.09.2008 as Assistant Engineer. Thus, it is quite vivid that the petitioners were not promoted on 24.07.2008 but they were found fit for promotion and since the vacancies were not available till 19.09.2008, they were not promoted. As soon as, the vacancies were available, they were promoted. Though as per Rule 6(2) of the Rules, 2003, the DPC has to conduct for anticipated vacancies also. Rule 6(2) of the Rules, 2003 is produced below:-

"6. Promotion on the basis of seniority subject to fitness.- (2) The names of only such public servant shall be considered for promotion, who have completed the prescribed qualifying service in their feeder cadre/part of the service/pay scale of post according to the Recruitment Rules. It is, however, not necessary to consider all the names of public servants who have completed the prescribed minimum length of service but only such number of cases of public servant shall be considered according to the seniority, which shall be sufficient to cover the number of existing and anticipated vacancies due to retirement during the year under each category. In addition to this, with a view of inclusion, in the select list, the names of two public servants or 25 percent of the number of the public servants included in select list whichever is more, the names of the required number of the public servants shall be considered for each category to fill up the unforeseen vacancies occurring during the course of the aforesaid period.

Explanation. - Manner of computation for eligibility for promotion. - Period of qualifying service on 1st January of the relevant year in which Departmental Promotion Committee is convened shall be counted from the calender year in which the public servant has joined the feeding cadre/part of the service/pay scale of the post and not from the date of joining of the cadre/part of the service/pay scale of post."

34. Thus, from perusal of Rule 6(2) of the Rules, 2003, it is quite Neutral Citation 2024:CGHC:22309 Page 38 of 53 vivid that the select list should consist of 25% of number of public servant for considering their case for anticipated vacancies. The petitioners have not disputed that they were promoted against anticipate vacancies arises on account of promotion of Assistant Engineers to Executive Engineers on 19.09.2008, which clearly establishes that the petitioners were subsequently promoted and not promoted when the private respondents were promoted on 02.08.2008.

35. It is well settled position of law that the promotion is not fundamental right but right to consider, is fundamental right, therefore, the Government servant unless and until promoted, they cannot claim the benefit arising out of the promotional posts including seniority as they will born in the cadre of Assistant Engineer when they are actually promoted.

36. Hon'ble the Supreme Court in case of Ajay Kumar Shukla & others Vs. Arvind Rai & others reported in (2022) 12 SCC 579, has held as under:-

"41. This Court, time and again, has laid emphasis on right to be considered for promotion to be a fundamental right, as was held by K. Ramaswamy, J., in the case of Director, Lift Irrigation Corporation Ltd. and Others vs. Pravat Kiran Mohanty and Others6 in paragraph 4 of the report which is reproduced below:

"4... There is no fundamental right to promotion, but an employee has only right to be considered for promotion, when it arises, in accordance with relevant rules. From this perspective in our view the conclusion of the High Court that the gradation list prepared by the corporation is in violation of the right of respondent/writ petitioner to equality enshrined under Article 14 read with Neutral Citation 2024:CGHC:22309 Page 39 of 53 Article 16 of the Constitution, and the respondent/writ petitioner was unjustly denied of the same is obviously unjustified."

42. A Constitution Bench in case of Ajit Singh vs. State of Punjab7, laying emphasis on Article 14 and Article 16(1) of the Constitution of India held that if a person who satisfies the eligibility and the criteria for promotion but still is not considered for promotion, then there will be clear violation of his/her's fundamental right. Jagannadha Rao,J. speaking for himself and Anand, CJI., Venkataswami, Pattanaik, Kurdukar, JJ., observed the same as follows in paragraphs 21 and 22 and 27:

"21: Articles 14 and 16(1): is right to be considered for promotion a fundamental right 22: Article 14 and Article 16(1) are closely connected. They deal with individual rights of the person. Article 14 demands that the "State shall not deny to any person equality before the law or the equal protection of the laws". Article 16(1) issues a positive command that "there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State".

It has been held repeatedly by this Court that clause (1) of Article 16 is a facet of Article 14 and that it takes its roots from Article 14. The said clause particularises the generality in Article 14 and identifies, in a constitutional sense "equality of opportunity in matters of employment and appointment to any office under the State. The word "employment" being wider, there is no dispute that it takes within its fold, the aspect of promotions to posts above the stage of initial level of recruitment. Article 16(1) provides to every employee otherwise eligible for promotion or who comes within the zone of consideration, a fundamental right to be "considered" for promotion. Equal opportunity here means the right to be "considered" for promotion. If a person satisfies the eligibility and zone criteria but is not considered for promotion, then there will be a clear infraction of his fundamental right to be "considered" for promotion, which is his personal right.

"Promotion based on equal opportunity and seniority attached to such promotion are facets of fundamental right under Article 16(1).

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                                                           Page 40 of 53

27. In our opinion, the above view expressed in Ashok Kumar Gupta and followed in Jagdish Lal and other cases, if it is intended to lay down that the right guarantee to employees for being "considered" for promotion according to relevant rules of recruitment by promotion (i.e. whether on the basis of seniority or merit) is only a statutory right and not a fundamental right, we cannot accept the proposition. We have already stated earlier that the right to equal opportunity in the matter of promotion in the sense of a right to be "considered" for promotion is indeed a fundamental right guaranteed under Article 16(1) and this has never been doubted in any other case before Ashok Kumar Gupta right from 1950."

43. This Court in Major General H.M. Singh, VSM vs. UOI and Another, again reiterated the legal position, i.e. right to be considered for promotion as a fundamental right enshrined under Article 14 and Article 16 of the Constitution of India. The relevant extract from paragraph 28 is reproduced below:

"28. The question that arises for consideration is, whether the non-consideration of the claim of the appellant would violate the fundamental rights vested in him under Articles 14 and 16 of the Constitution of India. The answer to the aforesaid query would be in the affirmative, subject to the condition that the respondents were desirous of filling the vacancy of Lieutenant-General, when it became available on 1-1-2007. The factual position depicted in the counter- affidavit reveals that the respondents indeed were desirous of filling up the said vacancy. In the above view of the matter, if the appellant was the senior most serving Major-General eligible for consideration (which he undoubtedly was), he most definitely had the fundamental right of being considered against the above vacancy, and also the fundamental right of being promoted if he was adjudged suitable. Failing which, he would be deprived of his fundamental right of equality before the law, and equal protection of the laws, extended by Article 14 of the Constitution of India. We are of the view that it was in order to extend the benefit of the fundamental right enshrined under Article 14 of the Constitution of India, that he was allowed extension in service on two occasions, firstly by the Presidential Order dated 29-2-2008, and thereafter, by a further Presidential Order dated 30-5- Neutral Citation 2024:CGHC:22309 Page 41 of 53 2008. The above orders clearly depict that the aforesaid extension in service was granted to the appellant for a period of three months (and for a further period of one month), or till the approval of the ACC, whichever is earlier. By the aforesaid orders, the respondents desired to treat the appellant justly, so as to enable him to acquire the honour of promotion to the rank of Lieutenant-General (in case the recommendation made in his favour by the Selection Board was approved by the Appointments Committee of the Cabinet, stands affirmed). The action of the authorities in depriving the appellant due consideration for promotion to the rank of the Lieutenant-General would have resulted in violation of his fundamental right under Article 14 of the Constitution of India. Such an action at the hands of the respondents would unquestionably have been arbitrary."

37. Hon'ble the Supreme Court in latest judgment in case of Ravikumar Dhansukhlal Maheta & another [WPC No. 432/2023, decided on 17.05.2024], has held that:-

"........in India, no government servant can claim promotion as their right because the Constitution does not prescribe criteria for filling seats in promotional posts. The Legislature or the executive may decide the method for filling vacancies to promotional posts based on the nature of employment and the functions that the candidate will be expected to discharge.The courts cannot sit in review to decide whether the policy adopted for promotion is suited to select the 'best candidates', unless on the limited ground where it violates the principle of equal opportunity under Article 16 of the Constitution".

38. Thus, the submission that the petitioners are also entitled to get seniority from 02.08.2008 and they should be kept above the private respondents, is misconceived and deserves to be rejected. The further submission of the petitioner that the petitioners were granted seniority since 2011, which should not be disturbed vide impugned order on account of long-standing Neutral Citation 2024:CGHC:22309 Page 42 of 53 and to substantiate this submission, the petitioner has referred to the judgment of Hon'ble the Supreme Court in case of Shiv Charan Singh Bhandari (supra), which is distinguishable on the facts as in that case the respondents have challenged the Tribunal only after two decades when benefits of notional promotion from the date their juniors were granted promoted, which was not challenged within six years till regular promotion was ordered whereas in the present case, the promotion from the post of Assistant Engineer to further promotion has not taken place and the petitioners and the respondents are still working on the substantive post of Assistant Engineer.

39. The record of the case by which the representation of the private respondents has been considered, clearly demonstrates that the various representations raising objection were made and accordingly, a committee was constituted on 10.07.2020 and this Court in WPS No. 3208/2020 has already recognized constitution of committee and directed the committee to proceed in the matter. The committee so constituted after examining the facts has passed the impugned order. The submission of learned counsel for the petitioners that there was delay and the private respondents by accepting the seniority list from 2011 till passing of the impugned order, have accepted the same which should have not been alter disadvantaged the petitioners cannot be considered.

40. The petitioners were promoted on the cadre post of Assistant Neutral Citation 2024:CGHC:22309 Page 43 of 53 Engineer on 19.09.2008, therefore, as per Rule 12(1)(e) of the Rules, 1961, the relative seniority between direct recruitees and promotees shall be determined according to the date of issuance of appointment/promotion order. It is undisputed facts that the petitioners were promoted on 19.09.2008 and the private respondents who were directly appointee Assistant Engineers were appointed on 02.08.2008, thus their seniority will be placed above the petitioners. Even otherwise, it is not the case of the petitioners that they should be granted seniority as per Rule 12(1)(d) of the Rules, 1961 as it is not their case that due to lack of any annual character role or for any other reasons, their promotion was delayed and subsequently they were found fit. In fact, the petitioners were promoted against the anticipated vacancies which has been made available on account of promotion of Assistant Engineer to the post of Executive Engineer on 19.09.2008. Thus, while granting seniority to the petitioners from 02.08.2008, the rules were wrongly applied, which has been corrected by the impugned order dated 26.07.2023. As such, the impugned order does not warrant any interference by this Court.

41. Further submission of the petitioners that the long-standing seniority from 2011 should not be disturbed by the respondents. To substantiate this submission, they have referred to the judgment rendered by Hon'ble the Supreme Court in case of Shiva Shankar Mahapatra (supra), which has been considered Neutral Citation 2024:CGHC:22309 Page 44 of 53 by Hon'ble the Supreme Court in case of Ajay Kumar Shukla (supra) wherein Hon'ble the Supreme Court in paragraph 23, 24, 25 & 26 has held as under:-

"23. The Appointing Authority, in fact, committed an error in the manner in which the seniority list was prepared by placing the three select lists forwarded by the Commission on different dates one after the other en bloc as per the date of receipt of three select lists. It is not the case either of the private respondents, State or the Commission that appointment letters have been issued separately as and when the select lists were received. In fact, the appointment letters of all the three streams were issued in October 2001, after about 10 to 11 months of the receipt of the third list i.e. of the Civil stream in November 2000. Apparently by an oversight, the Appointing Authority failed to prepare the combined seniority list as required under 1991 Seniority Rules, be it Rule 5 or Rule 8 with respect to the selection of the appellants and private-respondents.

24. We may now discuss the law on the point regarding delay in approaching the court and in particular challenge to a seniority list. The learned Single Judge had placed reliance on a judgment of this Court in the case of Shiba Shankar Mohapatra vs. State of Orissa (supra). Dr. B.S. Chauhan, J., after considering the question of entertaining the petition despite long standing seniority filed at a belated stage discussed more than a dozen cases on the point including Constitution Bench judgments and ultimately in paragraph 30 observed that a seniority list which remains in existence for more than three to four years unchallenged should not be disturbed. It is also recorded in paragraph 30 that in case someone agitates the issue of seniority beyond period of three to four years he has to explain the delay and laches in approaching the adjudicatory forum by furnishing satisfactory explanation. Paragraph 30 is reproduced below: -

"30. Thus in view of the above, the settled legal proposition that emerges is that once the seniority had been fixed and it remains in existence for a reasonable period, any challenge to the same should not be entertained. In K.R. Mudgal, this Court has laid down, in crystal clear words that a seniority list which remains Neutral Citation 2024:CGHC:22309 Page 45 of 53 in existence for 3 to 4 years unchallenged, should not be disturbed. Thus, 3-4 years is a reasonable period for challenging the seniority and in case someone agitates the issue of seniority beyond this period, he has to explain the delay and laches in approaching the adjudicatory forum, by furnishing satisfactory explanation."

25. On the other hand, the Division Bench while shutting out the appellants on the ground of delay relied upon following judgments of this Court.

(i) Dayaram Asanand Gursahani vs. State of Maharashtra and others

(ii) B.S. Bajwa and another vs. State of Punjab and others

(iii) Malcom Lawrence Cecil D'Souza vs. Union of India and others

(iv) R.S. Makashi and others vs. I.M. Menon and others

26. In the case of Dayaram Asanand Gursahani (supra), there was a delay of 9 years. In the case of B.S. Bajwa (supra), there was a delay of more than a decade. In Malcom Lawrence Cecil D'Souza(supra), the delay was of 15 years and in R.S. Makashi(supra) there was a delay of 8 years. In all these cases, this court has recorded that the delay has not been explained. Shiba Shankar Mohapatra (Supra) is a judgment of 2010, which has laid down that, three to four years would be a reasonable period to challenge a seniority list and also that any challenge beyond the aforesaid period would require satisfactory explanation."

42. The seniority was granted to the petitioners de-hors the Rules, 1961, which have been framed by the State under Article 309 of the Constitution of India and has binding effect, therefore, it is illegality and it is well settled position of law that the illegality cannot be allowed to perpetuate and the petitioners cannot take benefits illegally on the count of long-standing seniority. This issue has come up for consideration before Hon'ble the Neutral Citation 2024:CGHC:22309 Page 46 of 53 Supreme Court in case of Pankjeshwar Sharma & others Vs. State of Jammu & Kashmir & others reported in (2021) 2 SCC 188 wherein it has been held in paragraph 24, 35, 36 & 40 as under:-

"24. It is a settled principle of service jurisprudence and has been consistently followed by this Court that the rules of recruitment to various services under the State or to a class of posts under the State, the State is bound to follow the same and to have the selection of the candidates to be made as per the scheme of recruitment rules and appointments shall be made accordingly. At the same time, all the efforts shall be made for strict adherence to the procedure prescribed under the recruitment rules. On the contrary, if any appointments are made bypassing the recruitment procedure known to law, will resulted in violation of Article 14 and 16 of the Constitution. This Court in State of U.P. and Others vs. Rajkumar Sharma and Others2 and later in Arup Das and Others vs. State of Assam and Others3 considered the question of filling up of vacancies over and above the number of vacancies advertised and held that the filling up of vacancies over and above the number of vacancies advertised would be violative of fundamental rights guaranteed under Article 14 and 16 of the Constitution and the selectees could not claim appointments as a matter of right. This Court further held that even if in some cases appointments had been made erroneously or by mistake, that did not confer any right of appointment to another person as Article 14 of the Constitution does not envisage negative equality and if the State or its authority had committed a mistake at any given stage, it cannot be forced to perpetuate the said mistake under the writ jurisdiction of the High Court under Article 226 of the Constitution. In a situation where the posts in excess of those advertised had been filled up in extraordinary circumstances, instead of invalidating the excess appointments, the relief could be moulded in such a manner so as to strike a just balance keeping the interest of the State and the interest of the person 2 State of U.P. and Others vs. Rajkumar Sharma and Others (2006) 3 SCC 330 3 Arup Das and Others vs. State of Assam and Others (2012) 5 SCC 559 seeking public Neutral Citation 2024:CGHC:22309 Page 47 of 53 employment depends upon the facts of each case for which no set standard can be laid down.

35. This Court in Union of India and Another vs. Kartick Chandra Mondal and Others5 observed that if something is being done or acted upon erroneously that cannot become the foundation for perpetuating further illegality. If an appointment is made illegally or irregularly, the same cannot be made the basis of further appointment and erroneous decision cannot be permitted to perpetuate further error to the detriment of the general welfare of the public or a considerable section. This has been the consistent approach of this Court.

36. In Arup Das and Others vs. State of Assam and Others 6, this Court observed that:

"19........even if in some cases appointments had been made by mistake or wrongly, that did not confer any right of appointment to another person, as Article 14 of the Constitution does not envisage negative equality and if the State had committed a mistake, it cannot be forced to perpetuate the said mistake."

40. We are also of the view that the appointments of 22 candidates made by the 2nd respondent vide orders dated 23rd February, 2008 and 11th March, 2008 which has given rise to a further litigation are irregular appointments and not in conformity to the recruitment rules, still what being prayed by the appellants if accepted by this Court that will perpetuate the illegality which has been committed by the Staterespondent and negative equality cannot be claimed to perpetuate further illegality under Article 226 of the Constitution of India."

43. The petitioners have further submitted that without giving any opportunity of hearing, the impugned order has been passed, as such, it is violation of principle of natural justice and on this count also, the same deserves to be quashed. This submission is incorrect submission as the facts regarding their promotion on the post of Assistant Engineer, is known to them and issuance of notice will be merely a formality and thus, the non-issuance of Neutral Citation 2024:CGHC:22309 Page 48 of 53 notice to the petitioners does not vitiate the impugned order. Hon'ble the Supreme Court has considered the issue where the issuance of notice is formality, it does not vitiate the action taken by the authorities. Hon'ble the Supreme Court in case of Dharampal Satyapal Limited Vs. Deputy Commissioner of Central Excise, Gauhati & others, reported in (2015) 8 SCC 519 wherein it has been held in paragraph 39 to 41 as under:-

"39. We are not concerned with these aspects in the present case as the issue relates to giving of notice before taking action. While emphasizing that the principles of natural justice cannot be applied in straight-jacket formula, the aforesaid instances are given. We have highlighted the jurisprudential basis of adhering to the principles of natural justice which are grounded on the doctrine of procedural fairness, accuracy of outcome leading to general social goals, etc. Nevertheless, there may be situations wherein for some reason - perhaps because the evidence against the individual is thought to be utterly compelling - it is felt that a fair hearing 'would make no difference' - meaning that a hearing would not change the ultimate conclusion reached by the decision-maker - then no legal duty to supply a hearing arises. Such an approach was endorsed by Lord Wilberforce in Malloch v. Aberdeen Corporation[20], who said that:

"...... A 'breach of procedure...cannot give (rise to) a remedy in the courts, unless behind it there is something of substance which has been lost by the failure. The court dos not act in vain'.

Relying on these comments, Brandon LJ opined in Cinnamond v. British Airports Authority that ".....no one can complain of not being given an opportunity to make representations if such an opportunity would have availed him nothing'. In such situations, fair procedures appear to serve no purpose since 'right' result can be secured without according such treatment to the individual.

40. In this behalf, we need to notice one other exception which has been carved out to the aforesaid principle by the Neutral Citation 2024:CGHC:22309 Page 49 of 53 Courts. Even if it is found by the Court that there is a violation of principles of natural justice, the Courts have held that it may not be necessary to strike down the action and refer the matter back to the authorities to take fresh decision after complying with the procedural requirement in those cases where non-grant of hearing has not caused any prejudice to the person against whom the action is taken. Therefore, every violation of a facet of natural justice may not lead to the conclusion that order passed is always null and void. The validity of the order has to be decided on the touchstone of 'prejudice'. The ultimate test is always the same, viz., the test of prejudice or the test of fair hearing.

41. In ECIL (supra), the majority opinion, penned down by Sawant, J., while summing up the discussion and answering the various questions posed, had to say as under qua the prejudice principle:

"30. Hence the incidental questions raised above may be answered as follows:

xx xx xx

(v) The next question to be answered is what is the effect on the order of punishment when the report of the enquiry officer is not furnished to the employee and what relief should be granted to him in such cases. The answer to this question has to be relative to the punishment awarded.

When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non-furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with back-wages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to Neutral Citation 2024:CGHC:22309 Page 50 of 53 permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to an "unnatural expansion of natural justice" which in itself is antithetical to justice."

44. Thus, from the above discussions, considering the factual, legal matrix of the case, it is quite vivid that the petitioners were taken birth in the cadre of Assistant Engineer on 19.09.2008 whereas the respondents have taken birth in the cadre on 02.08.2008 after having appointed as Assistant Engineer as such the petitioners prior to take born in the cadre, they cannot claim seniority over the private respondents. The word cadre has been come up for consideration before Hon'ble the Supreme Court in case of Ran Singh Malik Vs. State of Haryana and others, reported in (2002) 3 SCC 182 wherein it has been held as under:-

"The aforesaid Rule nowhere defined the cadre or indicated as to which post would be borne in the cadre. In the absence of such definition of cadre in the Rule, the normal connotation would apply, and therefore, a cadre would ordinarily mean the strength of a service or a part of the service so determined by the Government constituting the post therein".

45. Again Hon'ble the Supreme Court has examined the definition of cadre in case of Union of India and others vs. Rubi Mazumdar, reported in 2008 (9) SCC 242 wherein it has been held in para 22 to 26 as under:-

"22. A conjoint reading of paragraph 103(7) of the Code, 103(iii) of the Railway Establishment Manual and Circular R.B.E. No.113/97 makes it clear that in the railways, the term `cadre' generally denotes the strength of a service or a part of a service sanctioned as a separate unit. Neutral Citation 2024:CGHC:22309 Page 51 of 53 However, for the purpose of roster, a wider meaning has been given to the said term so as to take within its fold the posts sanctioned in different grades. The reason for giving this enlarged meaning to the term "cadre" is that posts in the railway establishment are sanctioned with reference to grades. Even temporary, work charged, supernumerary and shadow posts created in different grades can constitute part of the cadre.

23. In the service jurisprudence which has developed in our country, no fixed meaning has been ascribed to the term "cadre". In different service rules framed under proviso to Article 309 of the Constitution as also rules framed in exercise of the powers of delegated legislation, the word "cadre" has been given different meaning.

24. In A.K. Subraman and Others vs. Union of India and Others [1975 (1) SCC 319], a three Judges Bench of this Court while interpreting the provisions contained in Central Engineering Service, Class I, Recruitment Rules, 1954, observed as under

"20."The word "grade" has various shades of meaning in the service jurisprudence. It is sometimes used to denote a pay scale and sometimes a cadre. Here it is obviously used in the sense of cadre. A cadre may consist only of permanent posts or sometimes, as is quite common these days, also of temporary posts."

25. In Dr. Chakradhar Paswan vs. State of Bihar and Others [1988 (2) SCC 214] it was observed as under:-

"In service jurisprudence, the term `cadre' has a definite legal connotation. It is not synonymous with `service'. It is open to the Government to constitute as many cadres in any particular service as it may choose according to the administrative convenience and expediency and it cannot be said that the establishment of the Directorate constituted the formation of a joint cadre of the Director and the Deputy Directors because the posts are not interchangeable and the incumbents do not perform the same duties, carry the same responsibilities or draw the same pay. The posts of the Director and those of the Deputy Directors constitute different cadres of the Service. The first vacancy in the cadre of Deputy Directors was that of the Deputy Director (Homoeopathic) and it had to be treated as unreserved, the second reserved and the third unreserved. Therefore, for the first vacancy of the Deputy Neutral Citation 2024:CGHC:22309 Page 52 of 53 Director (Homeopathic), a candidate belonging to the Scheduled Caste had therefore to compete with others.

26. In State of Maharashtra vs. Purshottam and Others [1996 (9) SCC 266], it was held that the "cadre" means unit of strength of a service or a part of it as determined by the employer"

46. Thereafter Hon'ble the Supreme Court has again examined the word "Cadre" in case of Jarnail Singh and others Vs. Lachhmi Narain Gupta and others, reported in (2022) 10 SCC 595 has held in para 30 and 31 as under:-

"30. It would be relevant to refer to the judgments of this Court which have dealt with the scope of the expression "cadre". Rule 4(2) of the Central Engineering Service, Class I, Recruitment Rules, 1954 provided that 75% of the vacancies in the grade of Executive Engineer, Class I shall be filled by promotion from Assistant Executive Engineers, Class I. Interpreting the words "vacancies in the grade of Executive Engineer", this Court in A.K. Subraman & Ors. v. Union of India & Ors. 13 held that the word "grade" is used in the sense of cadre.

31. The dispute that arose for consideration of this Court in Dr Chakradhar Paswan v. State of Bihar & Ors. 14 relates to the posts of Director and three Deputy Directors in the Directorate of Indigenous Medicines, Department of Health, State of Bihar being grouped together for the purpose of implementing the 13 (1975) 1 SCC 319 14 (1988) 2 SCC 214 34 | P a g e policy of reservation under Article 16(4) of the Constitution of India. This Court was of the opinion that though the Director and three Deputy Directors are Class I posts, the posts of Director and Deputy Directors do not constitute one 'cadre'. It was held that the term "cadre" has a definite legal connotation in service jurisprudence. This Court referred to Fundamental Rule 9(4) which defines the word "cadre" to mean the strength of a service or part of a service sanctioned as a separate unit. It was observed that as the post of Director is the highest post in the Directorate of Indigenous Medicines for which a higher pay scale is prescribed in comparison to Deputy Directors, who are entitled to a lower scale of pay, they constitute two distinct cadres or grades. This Court further expressed its view that it is open to the Government to constitute as many cadres in any particular service as it may choose, according to administrative convenience and expediency. This Court Neutral Citation 2024:CGHC:22309 Page 53 of 53 concluded that the post of Director and Deputy Directors constitute different cadres in the service".

47. In view of the above finding, it is quite vivid that the petitioners were granted seniority over the private respondents wrongly, which have been rightly corrected by the respondent/State vide order dated 26.07.2023, which does not warrant any interference by this Court.

48. Accordingly, the Points emerged for determination, are answered against the petitioners and in favour of the State/private respondents by recording its finding that the petitioners are not entitled to get seniority over private respondents and the impugned order dated 26.07.2023 does not suffer from perversity or illegality, which warrants any interference from this Court.

49. The writ petitions sans merit are liable to be dismissed.

Accordingly, they are dismissed. The interim order passed by this Court stands vacated.

50. The interlocutory application, if any, stands disposed of.

Sd/-

(Narendra Kumar Vyas) Judge Bhumika / Arun

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