Chattisgarh High Court
Deepak Pandey vs State Of C.G. And Ors on 5 May, 2022
Author: Parth Prateem Sahu
Bench: Parth Prateem Sahu
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Order Reserved on : 01.10.2021
Order Delivered on : 05.05.2022
WPS No. 4842 of 2012
Deepak Pandey, S/o Late Shri B.L. Pandey, aged about
58 years, working as Labour Inspector, in the Office
Assistant Labour Commissioner, Raipur, R/o L-9, Vinoba
Nagar, P.S. Tarbahara, Tahsil & District Bilaspur,
Chhattisgarh.
---- Petitioner
Versus
1. State of Chhattisgarh Through Secretary, Labour
Department, Government of Chhattisgarh, Secretariat,
D.K.S. Bhavan, G.E. Road, P.S. Golbazar, Raipur,
Chhattisgarh.
2. Labour Commissioner, Government of Chhattisgarh,
Nirmal Chhaya Bhavan, Meera Datar Road, Shankar
Nagar, P.S. Civil Lines, Raipur, Chhattisgarh.
3. Devendra Kumar Rajpur, aged about 51 years, S/o Shri
B.N. Rajput, presently posted as Assistant Labour Officer,
in the Office of Assistant Labour Commissioner,
Gariyaband, District Gariyaband, P.S. Gariyaband,
Chhattisgarh.
---- Respondents
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For Petitioner : Mr. Vinod Deshmukh, Advocate For Respondents No.1 & 2/ : Mr. Vimlesh Bajpai, Govt. Advocate State
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Hon'ble Shri Justice Parth Prateem Sahu CAV Order
1. Petitioner, who was posted as Labour Inspector "on the date of filing of the writ petition" has filed this writ petition challenging the order of promotion dated 21.05.2012 of respondent No.3 along with others as also gradation list 2 dated 18.05.2012 to the extent of placing name of petitioner below respondent No.3, with following reliefs :-
"10.1 That, the promotion order dated 21.05.2012 (Annexure P/1), gradation list dated 18.05.2012 to the extent, by which petitioner's name has been placed below than respondent No.3 be kindly quashed and the respondents No.1 & 2 be kindly directed to prepare fresh gradation list giving seniority to the petitioner for the adhoc period as it has been granted earlier to the petitioner since 2001 to 2010.
10.2 That respondents No.1 & 2 be kindly directed to grant promotion to the petitioner on the post of Assistant Labour Officer w.e.f. 21.05.2012 with all consequential benefits.
10.3 That, the order dated 14.05.2012 (Annexure P/3) be kindly quashed and the respondents No.1 & 2 be kindly directed to prepare gradation list of Labour Inspector giving due weightage to petitioner's adhoc period seniority. 10.4 Any other relief which the Hon'ble Court deem fit and proper also be granted."
2. Facts relevant for disposal of this writ petition, are that, petitioner was initially appointed on the post of Labour Sub Inspector on 24.12.1983 under Madhya Pradesh Labour 3 Services (Class-III Non-Gazetted) Recruitment Rules, 1966 (for short 'Rules of 1966'). Petitioner was promoted on adhoc basis vide order dated 30.06.1987 on the post of Labour Inspector. Adhoc promotion was regularized by Department as per recommendation of Departmental Promotion Committee dated 19.01.1990. After re-organization of the State of Madhya Pradesh, petitioner submitted an application for re-fixation of his seniority based on Rule 12 of the Madhya Pradesh Civil Services, General Condition of Service Rules, 1961 (for short 'Rules of 1961'). His application was considered and petitioner was placed at Sl.No.17 in the seniority list as on 01.04.2001. Respondent No.3 filed representation against action of respondents No.1 & 2 granting seniority to petitioner considering the period of adhoc promotion, which came to be dismissed on the ground of delay. Subsequently, respondent-Department issued provisional gradation list on 01.04.2011 considering gradation list of Labour Inspector as on 01.04.1999. Petitioner was placed below respondent No.3 in gradation list as on 01.04.2011. He initially raised an objection against provisional gradation list mentioning that other employees of Department i.e. Assistant Director of Industrial Health and Safety, were granted seniority considering the period of their adhoc appointment and thereafter filed writ petition being WPS No.1348 of 2012 challenging the provisional gradation list. 4
During pendency of writ petition, final gradation list was published hence, the petition was disposed of vide order dated 01.10.2012 reserving liberty to challenge the final gradation list. In final gradation list as on 01.04.2011, name of petitioner has been placed at Sl.No.30, whereas name of respondent No.3 has been placed at Sl.No.8. Based on gradation list, finalized on 18.05.2012, order of promotion dated 21.05.2012 was issued, which made the petitioner to approach this Court by filing this writ petition.
3. Mr. Vinod Deshmukh, learned counsel for the petitioner submits that petitioner was initially appointed on the post of Labour Sub Inspector in the year 1983 under the Rules of 1966. He became eligible for consideration of his promotion on the post of Labour Inspector after completion of three years on the post of Labour Sub Inspector under Rule 6(b) and 14 of the Rules of 1966. According to Rules of 1966, post of Labour Inspector is 100% promotional post, out of which, 67% post is to be filled up from executive and remaining 33% post to be filled up from clerical cadre. Petitioner was promoted on the post of Labour Inspector on adhoc basis on 30.06.1987, he was regularized on the said post on 19.01.1990, therefore, as per Rule 12 of the Rules of 1961, period of service, worked on promoted post on adhoc basis is to be counted for fixation of his seniority. He referred to Rule 5 12(4)(b) of the Rules of 1961 in support of his contention. It is contended that respondent-Department considered the representation of petitioner filed immediately after re- organization of the State of Madhya Pradesh before competent authority at Bilaspur, Chhattisgarh. The said authority while considering representation, granted seniority from the date of his adhoc promotion i.e. 12.10.1987. The order of fixation of seniority dated 21.06.2001 passed by the authority was not challenged or set aside. This was not considered by the authority at the time of directing considering the seniority list as prevailing on 01.04.1999. State Administrative Tribunal considered the issue of period of service on adhoc basis of employees till the date of regularization in T.A. No.1547 of 1988 decided on 30.07.1990. He submits that as the issue was considered by State Administrative Tribunal, Madhya Pradesh directing consideration of period of adhoc service also for fixing seniority, therefore, petitioner is also entitled for similar benefit. It is also argued that seniority of petitioner was re- fixed in the year 2001 and respondent No.3 has raised an objection of re-fixation of seniority only in the year 2010 i.e. after lapse of 9 years. There is inordinate delay in challenging seniority. In support of his contention, he places reliance upon the decisions of Hon'ble Supreme Court in B.S. Bajwa and Another v. State of Punjab and Others reported in 6 (1998) 2 SCC 523, L. Chandrakishore Singh v. State of Manipur and Others reported in (1999) 8 SCC 287, T. Vijayan and Others v. Divisional Railway Manager and Others reported in (2000) 4 SCC 20 and S. Sumnyan and Others v. Limi Niri and Others reported in (2010) 6 SCC
791. He also places reliance upon the judgment of Hon'ble Supreme Court in Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra and Others reported in (1990) 2 SCC 715 to support his contention that period of working as adhoc employee is to be counted for the purpose of fixing seniority of any employee.
4. Per contra, Mr. Vimlesh Bajpai, learned Government Advocate for the State/respondents No.1 & 2 opposes the submission of learned counsel for the petitioner and submits that petitioner was promoted on adhoc basis on 30.06.1987. In the order of his promotion, it is specifically mentioned that petitioner will not be entitled for pay fixation, seniority, etc. as the promotion is adhoc / temporary in nature. Petitioner accepted the order of promotion along with conditions mentioned therein. Petitioner was regularized on the post of promotion only on 19.01.1990. The order of promotion is a time-gap arrangement, hence, no benefit can be granted as claimed by petitioner. The gradation list was prepared in the year 1991, in which, petitioner's seniority was fixed below 7 respondent No.3, which continued and as per gradation list prevailing in the year 1999 before carving out of State of Chhattisgarh, petitioner was placed at Sl.No.206 in gradation list, whereas respondent No.3 was placed at Sl.No.108. Submission of counsel for the petitioner that petitioner is entitled for consideration of period of adhoc promotion as also for fixation of his seniority based on Rule 12 of the Rules of 1961 is not correct. Rule 12 of the Rules of 1961, upon which, petitioner is placing reliance has been brought in only in the year 1998. The rule which was not in the law-book, on the date of fixation of seniority and brought in after lapse of more than 7 years of fixation of seniority of petitioner, it cannot be made applicable retrospectively. Respondent- Department has rightly fixed the seniority of employees based on gradation list as on 01.04.1999. As there was no statutory rules prevailing on the date of adhoc promotion or regularization of the promotion of petitioner, fixing of seniority of employees, it was governed by circular dated 16.08.1983 issued by General Administration Department and circular dated 12.05.1993 wherein it is provided that employees appointed / promoted on adhoc basis would be entitled for seniority of the said post only from the date of regularization of their appointment / promotion. In the aforementioned facts of the case, it is submitted that writ petition is not having any merit and it be dismissed. He places reliance upon the 8 judgment of Hon'ble Supreme Court in Civil Appeal No.10788 of 2016, parties being, Rashi Mani Mishra and Others v. State of Uttar Pradesh and Others decided on 28.07.2021 in support of his contention.
5. I have heard learned counsel for the parties and also perused the documents placed on record.
6. To appreciate the submission of learned counsel for the petitioner that petitioner was promoted on adhoc basis on 30.06.1987 and regularized on 19.01.1990, hence, petitioner is having right and entitlement for consideration of period of his adhoc promotion, I have perused the copy of order of promotion dated 30.06.1987 placed on record as Annexure P/19 along with an application for taking document on record. Perusal of order would show that petitioner was promoted on adhoc / temporary basis. In the order itself, there is specific mention in clear terms that order of promotion is of temporary in nature, employee will not get any benefit of pay fixation, seniority, etc. The order of adhoc / temporary promotion is conditional. Those employees were even not paid pay scale of promotional post, which shows that adhoc / temporary promotion is a time-gap arrangement made by Department. On the date of adhoc promotion of petitioner, i.e. in the year 1987, there was no rule for fixation of seniority of adhoc employees. Fixation of seniority was governed by circular 9 issued by State Government time to time. On the date of adhoc promotion and regularization of promotion of petitioner, circular dated 16.08.1983 was in force, which mentions that till adhoc promotion / appointment is not regularized, general rule of pay fixation and seniority will not apply. State Government issued further circular on 08.01.1993 clarifying the position that if increment is being granted, will not mean that his appointment has been regularized, but his service will be remained temporary / adhoc and for adhoc promotee, it is mentioned that he will not be entitled for any seniority till his promotion is regularized.
7. Admittedly, petitioner was promoted in the year 1987 temporarily, his promotion was regularized only on 19.01.1990. Rule 12 of the Rules of 1961, which is heavily relied upon by learned counsel for the petitioner, was not in existence on the date of regularization of adhoc promotion of petitioner, therefore, service of petitioner for the purpose of fixation of seniority and pay, would be governed by circulars issued by State Government.
8. State Government brought in Rule 12 of the Rules of 1961 by substituting the earlier rules and as per Rule 12(4)(b) of the Rules of 1961, it is mentioned that if the person is appointed on adhoc basis by substantially following the procedure laid down by the Recruitment Rules and the appointee continued 10 on the post uninterruptedly till the regularization of his service, the period of officiating service shall be counted for seniority. Rule 12(4) of the Rules of 1961 is extracted below for ready reference :
"12. Seniority.- The seniority of the members of a service or a distinct branch or group of posts of that service shall be determined in accordance with the following principles, viz,-
* * * * * * (4) Seniority of Adhoc Employees.-(a) A person appointed on adhoc basis shall not get any seniority till the regularization of his services.
(b) If a person is appointed on adhoc basis by substantially following the procedure laid down by the Recruitment Rules and the appointee continues in the post uninterruptedly till the regularization of his service in accordance with the rules, the period of officiating service shall be counted for seniority."
9. This rule was inserted vide notification dated 02.04.1998. The rule which has been brought into the Rule Book long back after fixation of seniority of petitioner, will not apply retrospectively affecting the rights of the employees who 11 were already enjoying the fixation of their seniority as per the circular or rule applicable at that relevant point of time.
10. Submission of learned counsel for the petitioner that based on his representation, proceeding was drawn in the note- sheet and it was ordered for re-fixation of seniority considering Rule 12 of the Rules of 1961, is not set aside, is concerned, perusal of note-sheet (Annexure P/10) would show that proceeding has been recorded considering Rule 12 of the Rules of 1961 substituted vide notification dated 02.04.1998. It is not the case that any order affecting the interest of petitioner is passed in particular, but the Government has taken decision to follow the seniority list prevailing in the year 1999.
11. A bare perusal of Annexure P/8 order dated 19.01.1990, clearly mentions that Labour Inspectors, who have been promoted on adhoc basis were granted regular promotion based on the recommendation of Departmental Promotion Committee, fixing their pay from the date of their taking charge. The language used in order dated 19.01.1990 itself is crystal clear that employees, who were adhoc promotees, have been promoted on regular basis on the post of Labour Inspector on pay scale of Rs.1290-40-1450-50-2050/- on the basis of recommendation of Departmental Promotion Committee.
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12. Case of the petitioner himself is that he was promoted on adhoc. Annexure P/8 mention order of promotion on regular basis on the recommendation of Departmental Promotion Committee, which is a fresh order of promotion. It is not the case that order of promotion or posting is confirmed. Confirmation of employees on the post will be when they were working on the said post, getting pay scale and remuneration of the post, on which, they were subsequently confirmed, whereas in the instant case, petitioner was not being paid pay scale of the post as in the order of adhoc promotion, it was clearly mentioned that petitioner will not be entitled for pay fixation and seniority. As the petitioner's service of adhoc promotion is governed by the circular prevailing at that relevant time, his seniority cannot be re- fixed based on the rule, which has been brought in by way of substituting the Rules of 1966 much after the cause of action arose i.e. year 1990, hence, petitioner will not get any benefit of Rule 12 of the Rules of 1961 in the facts of the case.
13. So far as the argument of learned counsel for the petitioner on the ground of delay is concerned, fixation of seniority on the basis of seniority list of 1999 is not based on the application of respondent No.3, due to which, petitioner got adversely affected. It appears that Government for some reasons have taken a decision that gradation list as 13 prevailing prior to re-organization of State of Madhya Pradesh shall be made basis for preparation of gradation list.
14. In this petition, petitioner has challenged the order of promotion based on gradation list dated 18.05.2012. The gradation list of 18.05.2012 was prepared based on letter dated 20.07.2011 of State Government, Labour Department for preparing gradation list, making base the gradation list dated 19.01.1999. Petitioner has not challenged letter / direction of State Government, which is the basis for fixation of seniority and preparation of gradation list as on 18.05.2012. In the opinion of this Court, as letter / direction of the State Government is not under challenge, no order can be passed interfering the consequential action of preparation of gradation list by respondents No.1 & 2 hence, no relief as prayed for can be granted to the petitioner.
15. The case law relied upon by learned counsel for the petitioner is on different facts. Ruling of Hon'ble Supreme Court in Direct Recruit Class II Engineering Officers' Association (supra) will not come to rescue of the petitioner when he accepted adhoc promotion with a condition mentioned therein and even not put to challenge, if for any reason, he feels it to be arbitrary or illegal. After his regularization also he has not challenged fixation of his seniority.
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16. Ruling of Hon'ble Supreme Court in B.S. Bajwa (supra) and S. Sumnyan (supra) will also of no help of petitioner because seniority of petitioner is not affected or altered based on representation of respondent No.3, but State Government took a decision to make base of seniority of employees as on 01.04.1999. Not only that, the order/decision of State Government is not under challenge.
17. For the foregoing reasons and discussions, I do not find any substance in this writ petition, which is liable to be and is hereby dismissed.
Sd/-
(Parth Prateem Sahu) Judge Yogesh