IN THE HIGH COURT OF JUDICATURE AT BILASPUR (C.G.I W.P. No./..^..';.;..../2006 PETITIONERS: .•r'^ v{'..--'^v>> ^^^ ^^ j.a-' AS? .*'* ^^"^/ 'N3liIS^" 1. ^ Dr. Purnima Mishra, Aged about 41 years W/0 Shri Sailesh Kumar Mishra; Occupation Assistant Professor (Economics) R/0 Qua.no. F-4B, EAC.Colony, Raipur (Chhattisgarh) 2. -" Mrs. Shilpi Bose, Aged about 36 years, W/o Shri Anup Kumar Bose, Occupation Assistant Professor (Public Administration) R/0 . Punjabi Colony, Katora Talab, .Raipur (Chhattisgarh) 3. '' Smt. Sharda Jain, Aged about 48 years, W/o Shri Prakash Chandra Jain, Occupation Assistant Professor (Sociology), R/p Jr. MIG 687, Sector-2, Deendayal Upadhyay Nagar, Raipur (Chhattisgarh) 4. " Dr. Mona Jain, Aged about 39 years, W/o ShriAnilJain Occupation Assistant Professor (Ancient Indian History Cultural), R/0 L-l, Guruteg Bahadur Nagar, New Purena, Raipur (Chhattisgarh) 'ssssiinmtfi •^ !•I 5. VERSUS Mrs. Rajni Yadu, Aged about 42 years, W/o Shri R. N. Yadu, Occupation Assistant Professor (Hindi), R/0 Aamapara, Dhobi Mohalla, Raipur (Chhattisgarh) •: ^' i Is" lis RESPONDENTS: A ^ 1. State of Chhattisgarh Through the Secretary Department of Higher Education, Manta-alaya, D.K.S. Building, Raipur (C.G.) 2. The Commissioner, Higher Education, Directorate of Higher Education, Govt. Science College Premises, Raipur (C.G.) 3. The Principal, Government Chhattisgarh College, Bairan Bazar, Raipur (C.G.) PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTIQN_OF INDIA FOR ISSUANCE OF APPROPRIATE WRITS OF MANDAMUS_AND CERTIORARI AND FOR OTHER SUITABLE WRITS AND DIRECTIONS:- HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION No. 1547 OF 2006 f PETITIONERS RESPONDENTS Dr. Pumima Mishra and others Versus State of Chhattisgarh and ofhers WRIT PETITION No. 1548 OF 2006 PETITIONERS RESPONDENTS Dr. Siilekha Agrawal and another Versus State of Chhattisgarh and others WRIT PETITION No. 1549 OF 2006 PETITIONERS RESPONDENTS Laxmi Kant Bharti Versus State of Chhattisgarh and others WRIT PETITION No, 15S5 OF 2006 PETITIONERS RESPONDENTS Harsh Sharma and others Versus State of Chhattisgarh and others WRIT PETITION No. 2531 OF 2006 PETITIONERS RESPONDENTS Preeti Bala Tank and another Versus State of Chhattisgarh and others DB:- HON'BLE SHRl I.M. QUDDUSI & HON'BLE SHRI N.K. AGARWAL. JJ PRESENT:- Sushri Bharti Soni, Advocate, for the petitioners. Shri G.D. Wasvani, Govt. Advocate for the State. ORAL ORDER (29-6-2010) 1. By this common order, the Writ Petitions No. 1547/2006, 1548/2006, 1549/2006, 1555/2006 and 2531/2006 are disposed of as the facts and issues involved in all these petitions are one and the same. JO 3fBp 3l[l UIOJJ A'lUOTUSS ^unoo o^ jauoppad sip jo ^qSu sq^ AteMB sasfe^ ^i SB 'ssiru: assq^ jspun suosjsd qons jo viava.yimdde ai.p o^ joud sspru i.uauiiirLiosj ^.rreAspj sxp q^ua sotiBpjoooB ui p3vjxo6.de suosjad SI.R Aopq p33v\d sq neqs ssiru sssq^ jspun pszuBinSsj uosjsd avff. pire ^uauqmoddB jBp'iSs-i JO JSpJO' 3Ip JO 3^Bp sq^ mojj ^uo X^uoiuss 05 pappus aq }yav[s sa^ru assip jspun ps^uioddB uosjsd B •VBVQ. sSss ^i SB JBJ 08 Ul 'SOOZ 'ssiny ^usm^uioddv XouaSjsuig jo uop^zuBpnSsy •O-O av^ jo OT sspia spisa ^ss oj, (p •sainH uoisusj pi-re ss^ny pun^ ^uspiAOJd IBJ9U3Q gui^SKS JO SUOISTAOjd 3Vff. japun ^qgu ps^ssA s,jsuoppad aq^ jo uopapiA UT ST ^I S13 fl JO .tsqmsui Aj:os]ridmo3 •B jauop.psd sq^ gupTem 08\B sv jsuopi^ad aq^ o^ -^OOZ -01-^S P3TeP UOI^OTJI^OU Lti psure^uoo ssrny punj uoTsusd Aio^nquiuoo paonpo^ui XIMSU srp §uiA:iddBuioj:j,s^u3puods3g 3Lp ^Tqiqojd oj, (o •uopBZLre^nSsj jpqi jo s^p sq^ LUOJJ viOTysqoid qons uo ^nd uaaq ^ou SAB^ pso'e^d XIJB^IUIIS saaXoiduia -oqio SB -rej os ui Aioi'euiuruosTp si ^T os^e s^ 066 T 'sspig ^uam^TrLiosg (qoirejg 3^'eT§3{po) ssouuag ^uop^onpg "d'W JO UOp^IOIA UT ST fl 'JSp.tO SI.P JO 3;Bp SV^ uio-ij sjesX g joj uopBqojd o^ s'e 'jsuoppad srp o^ psnssi 9QOZ-T"8T P3V3p JSpJO tusui^uiodd'e av^ ui paure^uoo uoi^ipuoo aq^ qs^nb oj, (q •BTpUI jo uopnipsuo^ aqi jo 502 apT^rv J° suoisiAOjd 3Lp S3JTA BJ^p-L SB 'SJSpJO JO S3p-U JSlpO Xire UT AIBJIUOO sLp. 01 paure^uoo guiqiXue Suiprreisq^TM^ou ^osjja SmpujaAO SBq ^T s-e JBJ os UT 'SOOZ 'sapiy ^uauttuioddB AouaS-isuig jo uopBZUBinSsg qjeSsp^qqo^ aqi jo g siny UAvap §up.[L4s japjo jo uoposjip jo ^IJM jatpo Aire jo UBjop-iso jo sjn^u ui ^UA ^ snssi oj, [v -:SJ3T[3J SuiMonoj joj Sm^Bjd panj usaq SA^q suoppad ILIA aAoq'e aqj, •e •jspjo pres sip jo STS-eq aip uo OSYB S3SB3 9S3T.P JO gUTSOdSTp 3JB 3j^ "tJno^ q§TH 'd'tM jo uoispap aq^ jo sis^q aip uo OTOS-fr-T ps^p -lapJO spiA jo pssodsip S^A qoTqAv (sjaipo prre qjB§STWBqq3 jo a^B^g -A- sjSLpo PUB UBAIQ BqSV -lUIg -.tQ) 900S/fr98T •ON "d"M s^^ qoiqA JO 3SBO gUIp'GSl ^jnOQ SILp 3j:oj3q dn sureo qounq B ui sasBO -re^iuits ^ip uoiiuara o: AjBssaoau si fi '^asyio A-OA av^ yf •g \^> her joining the service as it is in violation of the provisions of M.P. Reorganization Act, 2000 which prohibits the Respondents from. altering her service conditions to her disadvantage without the approval of the Central Govemment. e) To issue a writ in the nature of Mandamus or any other wnt or direction or order commanding the respondents to regularize the petitioner in service from the date of her joining the post of Asstt. Professor (English) and extend to her all the consequential benefits of service rendered by her in accordance with the statutory rules, like seniority, prom.otion to the next higher grade and pay scale, continuance ofthe membership in G.P.P., all other post-retirement benefits as are available to other govemment servants similarly situated" 4. Brief facts of the case are that these petitioners have been appointed as Assistant Professors in pursuance of M.P. Educational Service (Collegiate Branch) Recruitment Rules, 1967 (for brevity "the Rules") in Emergency Recruitment process made by the erstwhile M.P. State Government for filling up a large number of vacant posts in its different colleges, as it was not possible to get selected persons from the Madhya Pradesh Public Service Comniission. An advertisement, in accordance with the Rules, was issued inviting applications on all India basis from candidates possessing prescribed qualifications and experience and they were selected by a duly constituted Selection Cominission and appointinent orders thereof were issued to the selected candidates in the month of December, 1987 with certain conditions that the candidates who were selected shall be cleared by Public Service Coinmission. 5. After reorganization of the M.P. State in the year 2000, these petitioners became the einployees of Chhattisgarh State Government. However, some of their colleagues remained in the services of State Government of Madhya Pradesh. This is also a fact that these candidates though appeared before the Public Service Commission for the purpose of regularization of their services as their appointments were against a regular vacant post on IW^ temporary status but they could not succeed whereas certain other candidates who were declared successful by the Public Service Commission, however, the services of those petitioners were not dispensed with in the erstwhile Madhya Pradesh State Government in the year 1992. After reorganization of the State of M.P., the State Government of Chhattisgarh framed Rules namely "The Chhattisgarh Regularization and Emergency Appointment Rules, 2005 (for short «the Rules, 2005") for regularization of these petitioners. 6. The provlsions of Rule 2, Rule 5 and Rule 10 are reproduced hereinbelow:- "Rule 2. Overriding effect:- These rules shall have effect notwithstanding anything to the contrary contained in any other rules or orders on the subject for the time being in force. Rule 5. Date of Regularisatioa:- Assistant Professors appointed on emergency basis shall be regularized from the date of order of regularization. Rule 10. Seaiority:- (1) A person appointed under these rules shall be entitled to seniority only from the date of the order or regular appointment and the person regularized under these rules shall be placed below the persons appointed in accordance with the relevant relevant recruitment rules prior to the appointment of such persons under these rules. (2) To determine the names of the persons in order of seniority in the selection list, separate orders shall be passed after consultation with the General Administration Department of Chhattisgarh 7. It is noticed that in Madhya Pradesh also the question of regularization of similarly situated candidates arose and the matter went up before the High Court of Madhya Pradesh and the learned Single Judge of the High Court of M.P. passed a detailed judgment and order directing the regularization of those candidates. Against the said judgment and order, the State of Madhya Pradesh had filed writ appeals and pleaded the case. One of the writ appeals is W.A. No. 599 of 2008 (State of Madhya l."v- ^l ^\\ Pradesh v. Dr. Smt. Sandhya Prasad and others). While dismissing the writ appeals filed by the State of Madhya Pradesh, the High Court of M.P. issued directions which are as follows: 7. It is not in dispute that advertisement was issued, selection committee was formed which has considered the cases of the employees; they were duly qualified for being appointed; their appointments have continued till theip regularization and they were holding the similar pay scale in which they were regularized. Appointinent was made in the pay scale not on fixed pay and there was no brake, they were not appointed as against any leave vacancy, the appointment was not on purely Adhoc basis without following the procedure, the appointment was made under the aforesaid rule 12(5). 8. In the light of the aforesaid undisputed facts when we consider circular dated 12-2-1992 issued by the State Government which has been relied upon by the Tribunal while rendering decision in case of Seema Raizada and Padma Shrivastava, a close reading of the circular dated 12-2-92 indicates that prior service rendered has to be counted for the purpose of grant of higher pay scale and selection grade pay scale on following conditions: (i) that the post held must be equivalent and carrying the same pay scale; (ii) the qualifications of the post held should not be less than the prescribed qualification by the UGC for the post of lecturer; (iii) at the time of appointment on the earlier post of which service is to be counted an incumbent must possess the minimum qualification prescribed by the UGC; (iv) appointment on the post must have been made by the prescribed selection procedure by the State Governnient; and (v) the appointment should not be purely adhoc or as against lea.ve vacancy for less than one year. When we apply the aforesaid five conditions in the instant case, one by one, it is not disputed that appointment of the employees was on the same post and in the same pay scale. Thus, the first condition stands satisfied. When we come to second condition as to the qualifications prescribed for the post, the post held was the same post and the qualifications possessed by incumbents were not less than that w N. ^ t prescribed by the UGC, it is not the case of the State that qualifications prescribed in advertisement were less. Thus, second condition also stands fulfilled. When we come to IIIrd condition, the incumbent was holding the minimum qualification prescribed by UGC at the time of appointment on emergency basis, they were holding the qualification, has also not been disputed. When we come to under Rule 12(5), the aforesaid IVth condition also stands satisfied. When we examine fifth and last condition, it is apparent that appointment was made on emergency basis not bn purely adhoc basis, it was not against any leave vacancy. For the purpose of appointment prescribed procedure under Rule 12(5) was followed, appointment was made under the Rules. Rules provide for emergency appointment and prescribed the procedure for fhat which was followed and ultimately the services were regularized. The State Government has taken the decision vide circular dated 12-2-92 for counting of such services for the purpose bf higher pay scale and for selection pay scale, the benefit of Which could not have been denied to the employees, thus relief has to be given on the basis of the aforesaid circular dated 12-2-92. Though it is not continuation to the adhoc service without any brake, his services has to be counted for. Thus, they could not have been denied and benefits of counting of their services rendered as emergency appointee and their past services ought to have been counted for the placement in Senior Scale/Selection Grade, we find that decision rendered by the Single Bench to be in accordance with law and we do not find any ground to differ from the view taken by different Division Benches of this Court in several matters dismissing-the writ appeals assailing the order passed by the Single Bench or the writ petition preferred against the order passed by State Administrative Tribunal. < K^. - \^5 9. Shri Deepal Awasthy, learned GA has relied upon Division Bench decision of this Court in Saroj Goswami vs. State of M.P. and others (supra) in which petitioner was appointed on adhoc basis on a fixed pay of Rs. 700/- necessary to go into the DO of the M.P. PSC in view of circular dated 12-3-92, but MP PSC has clearly mentioned in its DO dated 25-23-98 thus:- "The Cominission after seeking legal opinion on clause l(e), has decided to include service rendered in adhoc capacity for counting of past service for placement in Senior Scale/Selection Grade, provided that the following three conditions a.re fulfilled:- "(a) The adhoc service was of more than one year duration: (b) The incumbent was appointed on the recommendation of duly constituted Selection Committee, and (c) The incumbent was selected to the permanent post in continuation to the adhoc service, without any brake." The Commission has taken the above decision. The aforesaid three requirements also stand satisfied in the instant case. The instant case stand on better footing as the service rendered was not purely adhoc, but it was under the rules as an einergency appointee, even adhoc appointee in case has continued for more than one year duration and was selected by duly constituted selection committee and was later on selected to the permanent post in Division Bench of this Court held that fixed pay happened to be equivalent to the initial pay in a time scale, i.e. Rs. 700/- Rs. 1600/- does not.mean that adhoc serviee was on a time scale. It was laid down by Division Bench of this Court that an incumbent is neither entitled for benefit of seniority nor pay scale. In the instant case ratio of the aforesaid decision is not at all attracted as seniority has not been given any of fhe order passed by the Single Bench; the benefit given is that of counting of the past services for the purpose of placement in the Senior Scale/Section Grade and the said benefit is available as per Government circular dt. 12-2-1992. In the aforesaid decision of Saroj Goswami vs. State of M.P. and others (supra) the appointment was inade on adhoc basis which was not under the rules whereas the appointment in the instant cases was under the Rules of 1967 and ultimately incumbents have been regularized. The appointment in the instant case was also on the pay scale, in the aforesaid decision appointment was on fixed pay, thus, decision is distinguishable. Even after following the aforesaid decision in its pith and substance, no dent is caused to the employees of the instant case as the reliefs is totally different, thus ratio of said decision is not attracted. 10. Resultantly, we find no merits in the writ appeals preferred by the State Government. The same are dismissed. They are bound to count the services rendered by the employees as emergency appointee for placement of Senior / Section Grade. W.P. No. 24503/03 stands allowed. No costs." 8. Since the Madhya Pradesh High Court has adjudicated the matter in the cases of similarly situated candidates to the instant writ petitioners, we are of the opinion that we may leave it upon the State Government to take fresh decision taking into consideration the judgment and order of the Madhya Pradesh High Court. However, with regard to seniority, we are of t.he opinion that since these petitioners could not succeed in the examination conducted by the P.S.C., the candidates selected in that particular selection in which the petitioners could not be cleared by the P.S.C. examination, cannot become juniors A< to the petitioners and as such the State Government may also consider to place these petitioners in appropriate place in the seniority list. 9. The whole process, as mentiQned above, be reconsidered as early as possible on or before 31st October, 2010. 10. Needless to mention here that in case the petitioners feel aggrieved by the decision so taken by the State Government pursuant to above directions, it will be open for them to take recourse to law. 11. A copy of this order be supplied to the learned State Counsel for compliance. Sdf- .M. Quddusi Judge Sd/- N-K. Agarawa] Judge