^i\ y|t»|£lOCQ^^1' c^,je^ BEFORE THE HON'BLE HIGH COURT QF CHHATTISGARH AT BILASPUR WRIT APPEALNo. . f^L^ / 2008 ^' Y:>: [/• ^i APPELLANT/ SalimKhan, Petitioner in Writ Petition S/o Shri Najir Khan Aged about 49 years , R/o Purana Bus Stand, Balod District Durg, (C.G) VERSUS RESPONDENTS : ^l. Stateof Chhattisgarh Respondent in Writ Petition Through the Secretary, Department of Agriculture (Fisheries ) Mantralaya, D.K.S. Bhawan , Raipur (C.G.) 2, The Director, Directorate of Fisheries, Raipur, District Raipur, C.G. 3. Fish Farmer Development Agency, Durg, Through President, Durg, C.G. n ^ ^' .^^ WRIT APPEAL UNDER SECTION 2. CLAUSE 1 OF THE: £HHATTISGARH HIGH COURT fAPPEAL TO DIVISION BENCHJ ACT 2006 II ^ HIGH COURT OF CHHATTISGARH AT BILASPUR bIVISION BENCH: HON'BLE SHRI I.M.QUDDUSI& HON'BLE NAWAL KISHORE AGARWAL. JJ. ADpellant/ Petitioner Respondents Appellant/ Petitioner Re.ipondents ADpellant/ Petitioner Respondents ApDellant/ Petitioner Respondents ADpellant/ Petitioner Respondents ADDellant/ Petitioner Respondents W./\.No.l96 OF 2008 Vs B.R. Meshram State of C.G. <& others W.A.No.197 OF 2008 Vs V.K.Vaidya State of C.G. <& others W. A,No .198 OF 2008 Vs A.K. Kaneria State of C.Q. <& others W.A.No.199 QF^LOQS Vs Salim Khan State of C.&. & others W.A.No.200 OF 2008 Vs G.P. beshmukh State of C.G. <& others W.A.No.201 OF 2008 Vs Shrikant Dewangan State of C.Q. <& others W^AJSLo. 21 lOF 2008 ApDellants/ Kaushalendra Mishrc & ors p^s Petitioners Respondents ADpeilant/ Petitioner Respondents ADpellants/ Petitioners ResDondents Appellant/ Petitioner Respondents Appellant/ Petitioner Respondents ApDellants/ Petitioners RtssDondents ADpellants/ Petitioneps Respondents Vs State of C.G. <& others W.A.No.212 OF 2008 Vs Kaushalendra Mishra State of C.Q. <& others W.A. No.215 OF 2008 Pooran Singh Patel & ors Vs State of C.G. <& others W.A.No.216 OF 2008 b.P. Bhargawan Vs State of C.G. & others WL.A.No. 228 OF 2008 Anil Kumar Tiwari Vs State of C.G. <& others W.A.No.229 OF 2008 Haribabu Ahirwar <& ors Vs Union of India <& others W.A.No.230 OF 2008 Vs Deepak Kumar Shrivastava <& anr Union of India <& others \K( ADDellant/ Petitioner ResDondents W.A.No.249 OF 2008 Vs Anil Kumar Hazari State of C.Q. & others W.A.No.252 OF 2008 .f ^pDellant/ Petitioner ResDondents Appellant/ Petitioner Respondents Vs Anil Kumar Tiwari State of C.G. <& others <& W.A.No.265 OF 2008 Vs Anil Kumar Hazari State of C.G. <& others l^ Judoment for consideration Sd/- J U DG E 0?_/10/2010 Mon'ble Shri Justice Nawal Kishore Aaarwal 9 ^' Sd/- N. K. Agarwal Judge Post for iudament on o 8/10/2010 Sd/- I.M. Quddusi Judge '^^^-K^^^^^^ ^- HIGH COURT OF CHHATTISGARH AT BILASPUR bIVISION BENCH: HON'BLE SHRI I.M.QUbDUSI <& HON'BLE NAWAL KISHORE AGARWAL. JJ. ADDellant/ Petitioner Respondents 1 ADpellant/ Y Petitioner ResDondents ADpellant/ Petitioner Respondents ADDellant/ Petitioner Respondents ADpellant/ Petitioner Resoondents ADpellant/ Petitioner Resoondents W.A.No.196 OF 2008 Vs B.R. Meshram State of C.G. & others W.A.No.197 OF 2008 Vs V.K.Vaidya State of C.Q. <& others W.A.No.198 OF 2008 Vs A.K. Kaneria State of C.Q. <& others W.A.No.199 OF 2008 Vs Salim Khan State of C.Q. <& others W.A.No.200 OF 2008 Vs G.P. Deshmukh State of C.G. & others W.A.No.201 OF 2008 Vs Shrikant Dewan9an State of C.&. <& others ..^^-*^^..,^^..^^.^^..^, W. A, No.211 OF 2008 Appellants/ Petitioners Respondents ApDellant/ Petitioner Resoondents Appellants/ Petitioners Resoondents ApDellant/ Petitioner Resoondents ADpellant/ Petitioner Resoondents Appellants/ Petitioners Respondents Appellants/ Petitioners ResDondents Vs Kaushatendra Mishra <& ors State of C.G. <& others W.A.No.212 OF 2008 Vs Kaushalendra Mishra State of C.G. &. others W.A. No.215 OF 2008 Pooran Singh Patel <& ors Vs State of C.G. <& others W.A.No.216 OF 2008 D.P. Bhargawan Vs State of C.G. <& others W.A.No.228 OF 2008 Anil Kumar Tiwari Vs State of C.G. & others W.A.No.229 OF 2008 Haribdbu Ahirwar <& ors Vs Union of India <& others W.A.No.230 OF 2008 Vs beepak Kumar Shrivastava <& anr Union of India <& others \ [/{f ADpellant/ Petitioner ResDondents ApDellant/ Petitioner Respondents ADpellant/ Petitioner Respondents W.A.No.249 OF 2008 Vs Anil Kumar Hazari State of C.O. <& others W.A.No.252 OF 2008 Vs Anil Kumar Tiwari State of C.G. <& others <& W.A.No.265 OF 2008 Vs Anil Kumar Hazari Stateof C.G.& others Present: Mr. U.N. Awasthi, Sr. Advocate with Mr. M.K. Sinha, /\dvocate, Mr. N.K. Vyas, Mr. Satyendra Sahu, Mr. Anup Mazumdar, Mr. Mateen Siddiqui, Advocates for the appellants in the above writ appeals. Mr. Kishore Bhaduri, Additionat Advocate ^eneral for the respondent-State of Chhattisgarh in all the writ appeals. Mrs. Fouzia Mirza, Asst. Solicitor General for respondent Union of India in all the writ appeals. JUDGMENT (belivered on 0^/10/2010) I.M. Quddusi. J; 1. The above writappeals are being disposed of by this common judgment as all these writ appeals are arising out of the common order dated 04.08.2008 passed by the learned Single Judge, in a batch of writ petitions leading caseof whieh was W.P. (s) No.224/05, dismissmg the writ petitions filed by the petitioners/writ appellants seeking seniority from the date of their initial appointments with promotion and pay scale of the State Government. f^ 2. Brief facts of the case are that vide order dated 8.9.1982 the petitioners/writ appellants along with other candidates were selected for training to the post of Assistant Fisheries Officer in the erstwhile State of Madhya Pradesh. The appellants successfully completed their training in the month of July, 1983. Thereafter a merit list of thesuccessful candidates was published on 7.10.1983 by the Directorate, Fisheries bepartment, &ovt. of M.P. and out of the said merit list, some of the candidates have been appointed as 'Fisheries Inspectors' (for short 'FI') and names of some of the candidates including the petitioners/writ appellants herein were sent to the Fish Farmers bevelopment Agencies (for short 'the FFDA'), which is a society registered under the relevant provisions of the Societies Registrikaran Adhiniyam, 1973 (for short 'Adhikaran, 1973') for appointment on the post of 'Fisheries Extension Workers'(for short 'FEO'). Vide order dated 26.12.1983 atl the Collectors of the Oistricts concerned were directed to appoint the selected candidates including the writ appellants as 'Fisheries Extension Officer. It was clarified that seniority shall be according to the merit list of the training examination conducted in the year 1983. The writ appeltants were accordingly appointed as FEO vide order date.d 20.6.1984 & other orders and thereafter they continued to work on the same post and even after the reorganization of the State of M.P., all the writ appellants continued to serve in thenew State of Chhattisgarh. 3.0n 11.5.2006 a policy decision was taken by the State Government to absorb services of the employees including the writ appellants working in the FFbA in the Government department with a condition that pay scale of the j^T employees would be determined on the basis of their date of initial appointment, but the same wouldbe paid from the date of their absorption. The employees would not be entitled to arrears of salary. The pensionary benefits would be computed from the date of their initial appointment. Further, their seniority would be determined from the date of their absorption as government employee under the provisions of C.&. Civil Services (Oeneral Conditions of Services) Rules, 1961. Thereafter, their seniority was determined and a list was published on 16.5.2006. The appellants aggrieved with the saidaction of the respondent State have filed various writ petitions before the learned Single Judge. 4. The learned Single Judge/after considering the facts and circumstances of the case and after applying the settled prjnciples of law tothe facts of the case, has reached to the conclusion that the I'ssue raised by the writ appellants herein regarding common gradation list and grant of promotion accordingly is without any basis and unsustainable and therefore,dismissed the writ petitions. 5. Mr. Awashty/learned Senior Counsel appearing for the writ appellants would argue that there was a merit list prepared after the selection and completion of training and the birector. Fisheries bepartment, adopted pick and choose method as some candidates were sent to FFDS and some were taken into the government service in the fisheries department ignoring the rights of the meritorious persons who were sent to the FFbA. He further argued that though the FFDA is a society registered 'under the Adhiniyam, 1973 but it is the instrumentality of the State and it cannot be disputed that the service under the FFbA is not a government W8 service. There is a separate governing body of the FFbA, th©President of which is the District Collector and other gov^rnment officials are its members. Two fish farmers are also members of the governing body, which are nomlnated by the Collector. The appellants, who were wor|<in9 by virtue of appointment in the FFDA, were decjded to be absorbed in the government department vide policy decision dated 11.5.20060n the basis of proposal dated 22.3.2005/however, it has been decided that their seniority would be determined from the date of their absorption as government employee and not from the date of their initial appointment in the FFOA. Whereas, they ought to have been given according to their initial date of apppintment in the government service and thosewho are appointed after the writ appellants in the government seryice should be kept below them in seniority irrespective of the fact that their absorption in the government service was made in the year 2006. 6. He further submits that in fact the appellants understood that they were appointed in the fisheries department of the State but the mistake was detected later after several years when they were surprised to see that in the gradation lists of the FEO published on 8.10.1986, 26.10.1988 <& 14.6.1989 as on 1.4.1986, 1.4.1988 <& 1.4.1989 respectively, names of their juniors, who were selected along with the appellants, were included in the gradation list in the order of the merit excluding the appellants and others who were appointed in FFOA despite their several representations dated 19.12.1986, 17.3.1988, 31.12.1988, 12.1.1990. The Collector, Rajnandgaon, who was Ex-Officio President of the FFbA, recommended to the birector, Fisheries bepartment for regularization vide letter dated w 24.3.1988, reply of which was given by the Director, Fisheries bepartment, MP, Bhopal vide bO letter dated 7.4.1988 in which it was mentioned that the then Secretary, Fisheries bepartment had sent a proposal on 4.3.1987 to the State Government when the matter was raised by the departmental officers in meeting hetd in November, 1986 but the State Government ignored the same and did nothing till 11.5.2006 when order regarding absorption was passed imposing certain conditions including denial of benefit of seniority from the date of initial app'ointment in the FFDA. In support of his submissions, Mr. Awasthy has cited some cases which will be discussed later. 7. Mr. Bhaduri/learned Additional Advocate General for the State has submitted that once the appellants accepted their appointments in the FFDA without any protest, it should be deemed that they have abandoned their claim for appointment in the government department. Further, the seniority list which was published for the first time on 8.10.1986 was related to the officers of the fisheries department and not the officers/employees of the FF&A, Rajnandgaon and therefore there was no question of keeping their names in that seniority list. Thereafter about 2 years another seniority list was published on 2.10.1988 and thereafter another seniority list was published on 14.6.1989. In case the appellants had moved the representation against the seniority list dated 8.10.1986 for their absorption in the government department, they should have approached the local foru m when the second seniority was published and their representation was pot considered for absorption. According to the appellants themselves, the last ^s, l^ representation was made by them on 12.1.1990 and thereafter they kept mum and after eight years from the date of last representation, they filed originalapplication bearing O.A. No.3372/98 before the M.P. State Administrative Tribunal/ which was subsequently transferred to this Court, which was a time barred petition. Now the Government has absorbed all of them in the government service and treating them as government servants from the date of their initial appointment and only seniority has been given to them from the date of their absorption. He further submits that it is not within the scope of judicial review of the Court to allow the appellants to be government servants from the initial date of their appointment in the FFbA, which was accepted by them, meaning thereby that they had abandoned their right in governm^nt service accepting the appointment in FFbA which must have been more convenient to them as that was a bistrict Fisheries Farmers Development Agency whose Chairman was the Collector of the bistrict Rajnandgaon and theirservices were not transferable out of the district of Rajnandgaon throughout. Whereas, servicesof'the fisheries department were transferable throughout the State. Fur'ther all the appointments were made before the reorganization of the State of Madhya Pradesh and after the reorganization and formation of new State of C.G. W.e.f. 01.11.2000, the State Government of Chhattisgarh decided to absorb their services in government department vide government order dated 1.5.2006. 8. We have heard learned counsel for the parties, perused the impugned order and the records of the case. ($-/ 9. Mr. Awasthy, tearned Senior Counsel for the writ appellants has relied upon the judgment of the Hon'ble Supreme Court delivered in the matter of Balwant Singh Narwal Vs. State of Haryana1, wherein the Hon'ble Supreme Court in Para 9 <& 10 held thus: "9. There is no dispyte about these general principles. But the question here is in regard to seniority of Respondents 4 to 16 selected on 1.10.1993 against certain vacancies of 1992-1993 who were not appointed due to litigation, and those who were selected against subsequent vacancies. All others from the same merit list declared on 1-10-1993 were appointed on 2-6-1994. Considering the similar situation, this Court in Surendra Narain Singh Vs State of Bihar held that candidates who were selected against earlier vacancies but who could not be appointed along with others of the same batch due to certain technical difficulties, when appointed subsequently, will have to be placed above those who were appointed against subsequent vacancies. 10. This Court while allowing the appeals by respondents 4 to 16 by order dated 6-12-1999 made it clear that all the 30 persons recommended by the Commission as per merit list dated 1-10-1993, including respondents 4 to 16 are entitled to be appointed. The State Government submitted that but for the order dated 4-4-1994 of the High Court. ;"?:•• 1(2008)7SCC728. 10 l^ Respondents 4 to 16 would have been appointed on 2-6-1994 itself. The order dated 4-4-1994 was ultimately set aside by this Court and respondent 4 to 16 who were consequently appointed should not be denied the benefit of seniority. Therefore, the State Government was justified in giving them only notional seniority and place them immediately below the other 16 candidates selected in the common merit list (published on 1-10-1993) and appointed on 2-6-1994. Respondents 4 to 16 have been given retrospective seniority not from the date of their selection as wrongly assumed by the appellants, but from 2.6.1994 when other selected candidates in their merit list were appointed" 10. A perusal of the above quoted paragraphs shows that there was question of appointment from the same merit list of the persons who were not given appointment and later on they were given appointments against the subsequent vacancies as they could not be appointed against the earlier vacancies due to litigation. The instant case is different from that case on facts as in the instant case the persons appointed from the same merit list and they were given appointment on the basis of same merit list in the fisheries department and the FFbA,which was accepted by them and they atl joined in their respective departments. Later on, the appellants moved representation when the seniority list in fisheries department was published, as mentioned above, and thereafter on subsequent occasions also they moved 11 />-? representations years together but did not approach the Court and they also did not protest about their appointment in the FFDA instead of fisheries department. Therefore, for all the purposes when they happily joined in FFDA, it cannot be presumed that they abounded their right of appointment in fisheries department. The appellants were very well knew that FFbA is a registered society where they were given appointments and their names cannot be shown in the seniority list of the employees who belonged to fisheries department and are government servants. 11. Mr. Awasthy, learned Senior Counsel for the writ appellants has also relied upon the judgment of the Hon'ble Supreme Court delivered in the matter of State of West Bengal <& others Vs. Kaberi Khastagir <& others2 wherein the Hon'ble Apex Court has held that plea of supervis'ors appointed under the Integrated Child Development Scheme that 75% of the post of Child Development Project Officer and Assistant Child Development Project Officer should be filled by way of promotion from the female candidates working under the project, as per provisions of the scheme, and they were not amenable to the conditions of service of State employees, is not tenable. This case is quite different to the case of the appellants herein and as such, we could not understand as to how the principle laid down in the afore- cited case is applicable in the present case. 12. Mr. Bhaduri has placed reliance on the decision of the Hon'ble Supreme Court delivered in the matter of Satya Nardin & another Vs. Satish Kumar <& others3 in which •^- 2 2009 AIR SCW 905 3 (2001) 9 SCC 758 12 ir- the Hon'ble Apex Court has held that the Clerk recruited under the scheme called DRbA and later on, were absorbed as Clerk in the Forest Department must be held to be juniors to the persons already appointed in the Forest Department. 13. He also relied upon the judgment of the Hon'ble Supreme Court in the matter of State of Punjab & another Vs. Balkaran Singh4 in which the Hon'ble Supreme Court has inter alia held that the prayer in the suit filed in 1993 was to set at naught the seniority lists published in the year 1980 and in the year 1984. On the face of it, the prayer for declaration is barred by limitation. The suit is also barred by acquiescence and estoppel. No one in a service can sleep over the question of seniority for more than 12 yearsand then come to court seeking a relief which will upset the seniority of a number of persons who had been shownas seniors in the respective seniority lists. 14. It is not in dispute that the appellants were appointed in the year 1983 in FFbA, which was a registered society, and thus these appellants were not the government servants but were servants of the society. They have been absorbed in the government service vide order dated 11.5.2006 with certain conditions. It is the functionof the executive to decide the absorption and imposition of conditions for absorption. It is well settled principle of law that scope of judicial review is limited to the deficiency in decision-making process not the decision. For this view, we are fortified with the view taken by the Hon'ble Supreme Court in the matter of Jayarajbhai 4 (2006)125cc 709 u.^^,^^^^.^....^,.^^^^.,^.^^..^.^^^..^.^^^^.,, 13 l^ Jayatibhai Patel Vs. Anilbhai Nathubhai Patel and others5 as under:- "IS.Having regard to it all, it is manifest that the power of judicial review may not be exercised unless the administrative decision is illogical or suffers from procedural impropriety or it shocks the conscience of the court in the sense that it is in defiance of logic or moral standards but no standardized formula, universally applicable to alt cases, can be evolved. Each case has to be considered on its own facts, depending uponthe authority that exercises the power, the source, the nature or scope of power and the indelible effects it generates in the operation of law or affects the individual or society........" 15. In the matter of Indian Railway Construction Co. Ltd. Vs. <Ajay Kumar the Hon'ble Apex Court has held as under:- "17. Before summarizing the substance of the principles laid down therein we shall refer to the passage from the judgment of Lord Greene in Associated Provincial Picture Houses Ltd. \f. Wednesbury Corpn. (KB at P.229: All ER pp. 682 H-683 A). It reads as follows: WIt is true that discretion must be exercised reasonably. Now what does that mean? Lawyers familiaF with the phraseology used in relation to exercise of statutory discretions often use the word 'unreasonable' in a rather comprehensive sense.It has frequently been used and is frequently used as a 5 (2006) 8 SCC 200 6 (2003) 4 SCC 579 14 p^' general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting 'unreasonably'. Similarly, there may be something so absurd that no sensible person could even dream that itlay within the powers of the authority. ... In another, it is taking into consideration extraneous matters. It is unreasonable that it might almost be described as being done in bad faith; and in fact, all these things run into one another." Lord Greene also observed: (KB p. 230 : All ER p. 683 F-G) n... it must be proved to be unreasonable in the sense that the court considers it to be a decision that no reasonable body can come to. It is not what the court considers unreasonable. ... The effect of the legislation is not to set up the court as an arbiter of the correct'ness of one view over another." (emphasis supplied) 19. The principles of judicial review of administrativeaction were further summarized in 1985 by Lord Diplock in CCSU case2 as illegality, procedural impropriety and irrationality. He said more grounds could in future become available, including the doctrine of proportionality which was a principle followed by. certain other members of the European Economic Community. Lord Diplock observed in that case as follows: (All ER p. 950/7-/) "Judicial review has I think, developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judiciaF review. The first ground I wouldcall 'illegality', 15 l^ the second 'irrationality' and the third 'procedural impropriety'. That is not to say that further development on a case-by-case basis may not in course of time add further grounds. I have in mind partiQularly the possible adoption in the future of the principle of 'proportionality' which is recognized in the administrative law of several of our fellow members of the European EconomicCommunity;". Lord Diplock explained "irrationality" as follows: (All ER p. 951a-b) "By 'irrationality' I mean what can by now be succinctly referred to as 'Wednesbury unreasonableness'. It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it." 20. In other words, to characterize a decision of the administrator as "irrational" the court has to hold, on material, that it is a decision nso outrageous"as to be in total defiance of logic or moral standards. Adoption of "proportionality" into administrative law was left for the future. 21. These principles have been noted in the aforesaid terms in Union of India v. G. Ganayutham. In essence, the test is to see whether there is any infirmity in the decision-making process and not in the decision itself." 16. In the matter of Ganesh Bank of Kurundwad Ltd.A others Vs. Union of India and others7 the Hon'ble Apex Court has held as under:- "50. There should be judicial restraint while making judicial review in administrative