HIGH COURT OF CHHATTISGARH AT BILASPUR w’ JUDGMENT FOR CONSIDERATION / sdl‘ " . Dhirw‘m guége HON’BLE MR. JUSTICE R.N. CHANDRAKAR Sdl— RN. CW 1 ODM Judge // / mishfa POST FOR JUDGMENT ON 0H-12—2009 \Q‘ \ ' »rV.’ Writ Appeal No.266 of 2008 APPELLANTS: State of Chhattisgarh and another Versus RESPONDENTS: Umesh Chandra Singh and others , vu/wm / HIGH COURT OF CHHATTISGARH AT BILASPUR Writ Appeal No.266 of 2008 ,\,‘3 ' s”a APPELLANTS: 1. State of Chhattisgarh, Through the Secretary, Water Resources Department, D.K.S. Bhawan, Mantralaya, Raipur (CG) —--—Respondent No.1 in the writ petition 2. The Engineer in Chief, Water Resources Department, Raipur (CG) —————Respondent No.2 in the Writ Petition Versus RESPONDENTS: 1. Umesh Chandra Singh, S/o Shri S.B. Singh, Aged about 42 years, Presently working as Select Grade Sub Engineer in the office of the E.E., Barnai Canal Division, Ambikapur —————Petitioner No.1 in the writ petition 2. Vishnukant Pandey, S/o Shri Ramnaresh Pandey, Aged about 41 years, Presently working as Select 'Egz Grade Sub Engineer in the office of the E.E., Water Resources Dn.3, Ambikapur, R/o G—4, Irrigation Colony, Near Main Driver, Ambikapur, —————Petitioner No.2 in the writ petition 3. Suresh Kumar Chadar, S/o Shri Hardas Chadar, Aged about 49 years, Presently working as Select Grade Sub Engineer in the office of the E.E., Water Resources Deptt. Division Marwahi, District Bilaspur, R/o G- , Irrigation Colony, Near Pratappur Naka, Ambikapur, —————Petitioner No.3 in the writ petition 4. RajiV' Deshmukh, S/o K.T. Deshmukh, aged about 43 years, presently working as Select Grade Sub Engineer in the office of the EE W.R.D.No.1, Ambikapur, R/o Behind Pashu Hospital, Bouripara, Ambikapur. -----Petitioner No.4 in the writ petition Baldeu Ram Chandrakar, S/o Shri Gajari Ram Chandrakar, aged about 44 years, presently working as Select Grade Sub Engineer in the office of the E.E. Barnai Canal, Divn., Ambikapur, R/o Village Bhothali, PO. Charmudiya Kurud, District Dhamtari ----- Petitioner No.5 in the writ petition Mohammed Sakir Ali, S/o Shri J. Khan, aged about 43 years, presently working as Select Grade Sub Engineer in the office of the E.E., Water Resources Division No.1, Ambikapur, R/o H-3, Irrigation Colony, Banaras Road, Gandhi Nagar, Ambikapur. -----Petitioner No.6 in the writ petition Arun Kumar Tiwari, S/o ’Shri Ramanuj Pd. Tiwari, aged about 40 years, presently working as Select Grade Sub Engineer in the office of the E.E. Barnai Canal Divn., Ambikapur, R/o H—2, Irrigation Colony, Banaras Road, GandhiNagar -----Petitioner No.7 in the writ petition Pankaj Kumar Vyas, S/o S.R. Vyas, aged about 43 years, presently working as Select Grade Sub Engineer in the office of the E.E., Water Resources Divn.1, Ambikapur, R/o 1-12, Irrigation Colony Banaras Road, Gandhi Nagar, Ambikapur ----- Petitioner No.8 in the writ petition Raghuvir Prasad Vishwakarma, S / 0 Shri Narmada Pd, Vishwakarrna, aged about 44 years, presently working as Assistant Engineer in the office of the E.E., Barnai Canal, Division Ambikapur, R/o—G—l, Irrigation Colony, Near Marin Drive School, Ambikapur. x3 . ' »rg,, 10. —————Petitioner No.9 in the writ petition Bhagwandas Vishwakarma, S/o Shri Har Prasad Vishwakarma, aged about 43 years, presently working as Select Grade Sub Engineer in the office of the E.E., Water Resources, Division No.2 Ambikapur, R/o G—3, Irrigation Colony, Near Marin Drive, Ambikapur ----- Petitioner No.10 in the writ petition Ashok Kumar Nayak, S/o B.D. Nayak, aged about 42 years, presently working as Select Grade Sub Engineer in the office of the E.E., Water Resources Dn. No.2, Ambikapur, R/o Shivdhari Colony, Pratrappur Naka, Ambikapur -----Petitioner No.11 in the writ petition Hemraj Bagade, S/o Shri Natthuji Bagade, aged about 49 years, presently working as Select Grade Sub Engineer in the office of the E.E., Water Resources Dn. No.1, Ambikapur, R/o Nagdone Colony, (Talapara) Byapar Vihar Road, Bilaspur —————Petitioner No.12 in the writ petition Bhajanlal Gupta, S/o Ramprasad Gupta, aged about 56 years, presently working as Select Grade Sub Engineer in the office of the E.E. Barnai Canal Divn. Ambikapur, R/ o-H—4, Banki Project Colony, Gunderdehari, Ambikapur -----Petitioner No.13 in the writ petition Ashok Kumar Trivedi, S/o Shri Ishwardeen Trivedi, aged about 56 years, presently working as Select Grade Sub Engineer in the office of the E.E. Banai Canal Division, Ambikapur R/o Near Chandani Chowk, Kharbar Road, Mayapur, Ambikapur —————Petitioner No.14 in the writ petition \ 1 1”. 12. zm‘ ( 13. l4. '\ d: Ramjee Pateriya, S / o Shri Nanhulal Pateriya, aged about 43 years, presently working as Select Grade Sub Engineer in the offlce of the E.E. Barnai, Canal Divn, Ambikapur, R/o Near Chandani Chowk, Kharbar Road, . Mayapara, Ambikapur -----Petitioner No.15 in the writ petition Gajendra Singh Chandel, S/o Late Shri Dalchand Chandel, aged about 44 years, presently working as Select Grade Sub Engineer in the office of the Water Resources Divn. No.5, Ambikapur, R/o Behind Aman Petrol Pump, Manendragarh Road, Ambikapur —————Petitioner No.16 in the writ petition Jagannath Prasad Namdeo, S/o Late Shri Bhola Prasad Namdeo, aged about 46 years, presently working as Select Grade Sub Engineer in the office of the E.E. Water Resources Division Kota,’ R/o Ameri Road Near Elec Sub Station, bbeside ’Dr. Vaidh Nehru Nagar, Bilaspur -----Petitioner No.17 in the writ petition Rashid Ahmed Khan, S/o F.M. Khan, aged about 43 years, presently working as Select Grade Sub Engineering in the office of the- t E.E. Water Resources Divn. Kota, R/o House of Dr. Datta, Near Taj Masjid, Talapara Road, Jarahabhata, Bilaspur -----Petitioner No.18 in the writ petition State of Madhya Pradesh, Through the Secretary, Watrer Resources Department, Vallabh Bhawan, Bhopal (MP) -----Respondent No.3 in the writ petition 15. l6. 17. 18. \ \ Present- . Shrl K1shore Bhadurl Addlt10nal Advocate General for the State/ appellants Shri Manoj Paranjpe, counsel for respondents No. l,2,4,10,12 8518. Division Bench: Hon’ble Shri Dhirendra Mishra & Hon’ble Shri R.N. Chandrakar, JJ. J U D G M E N T 7 5+ (Delivered on I December, 2009) The following judgment of the Court was delivered by Dhirendra Mishra, J. . Heard on I.A. No.1, application for condonation of delay in filing this writ appeal, as the same has been preferred with a delay of 963 days as per’the office note dated 5-12—2008. . Shri Kishore Bhaduri, learned Additional Advocate General appearing for the State submitted that the Writ petition filed by the respondents was disposed of on 20“] February, 2006 and the State was directed to consider the cases of the petitioners in accordance with the judgment and order dated 15—2—1999 passed by the Madhya Pradesh State Administrative Tribunal, Bhopal Bench {for short ‘the Tribunal’) and it was held that the petitioners were entitled to the same relief with all consequential benefits of promotion etc. on the post according to their seniority pursuant to the order dated 15 2 99 on the higher post With effect from the same date when the Juniors of the petitioners were given promotion and other consequential beneiits The State filed Review Petition No.42/O7 along with an application for condonation of delay in filing the review petition, as there was delay of 378 days and the same was dismissed on- 215‘ October, 2008 with an \ wzw, Méa‘ L: observation that the reasons given by the State are not suffleient for condonation of delay and the application is barred by limitation. Shri Bhaduri, argued that the order passed in review petition merges with the original order and if the limitation is counted from the date of passing of the review order, it is within time. He further argued that the State had assigned sufficient cause for the delay in filing review petition, however, the reasons were not appreciated in its true perspective. . Touching upon the merits of the case, it was submitted that the posts of Overseer and Sub Overseer were re~designated in the Works Department as Sub Engineer and Work Assistant in the year 1974. Sub Engineers were recruited either through promotion from the post of Work Assistant or through direct recruitment. Prior to 1988, seniority list in the cadre of sub Engineer was maintained from the date of candidate’s entry into the cadre. The State Government framed “the M.P./C.G. Subordinate Engineering Class III (Recruitment by promotion of Sub Overseers/Work Assistants to the post of Overseers/Sub Engineers) Service Rules, 1988” (for short ‘the Rules, 1988’). According to this rule, the promotees, who entered into the cadre of Sub Engineers, even after the date of appointment of a direct recruitee, became entitled to a notional seniority above the said recruitee, if he was working on the post of Work Assistant from the date prior to the date of appointment of the direct recruitee in the Sub Engineer Cadre and if he was eligible in the light of the qualification and experience stipulated in Schedule-I of the Rules, 1§88. The direct recruitees challenged the above rules by way of Original Application No.424/ 1990 before the Tribunal and the Tribunal vide its order dated 15—2—99 allowed the Original Application and declared the applicants therein to be senior than the private respondents, who were premotees in the cadre. ’Consequential benefits such as promotion etc. were also ordered. The order .of the Tribunal was w i ' »r. ,, €353 ‘ complied with by the State Government and accordingly, gradation/seniority list was issued and the position with respect to the gradation/seniority as it obtained prior to 1988 was restored. Thereafter, the Sub Engineers not satisfied only by their proper placement in the seniority/gradation list, flled execution cases before the Tribunal and claimed promotion also. The Tribunal directed the State Government to promote the applicants. In this background, the State of Madhya Pradesh filed a Writ Petition (S) No.3102/2004 to get clarilication with respect to the order dated 15-2-99 and accordingly, the DivisionVBench of the High Court of Madhya Pradesh vide order dated 3-5-2005 clarified that the Tribunal’s order dated 15—2—99 would only entitle the direct recruitees to be placed in the seniority/gradation list above the persons Who had superseded them'in View of the Rules of 1988 being the promotee Sub Engineers and eligible under the sa'id Rules and no Sub Engineer would be entitled for any relief of promotion only by his placement in the seniority/gradation list and the promotions would be done strictly as per the norms set by the State Government. 5. Taking into consideration the subsequent clarification and the importance of the issue involved in the subject matter, the delay in filing the review petition deserves to be condoned. ;6. On the other hand, Shri Manoj Paranjpe, vehemently opposing the prayer would argue that the order_dated 20th February, 2006 is a bi-party order. It was passed after recording the submission of learned counsel for the State that the order dated 15—2—99 passed by the Tribunal has attained finality and the Government has decided not to challenge the order in superior v courts. The application for review accompanied by an application for condonation of delay was rejected by the High Court on 21—10—2008 on the ground of delay and the said order has attained finality. After the writ petition filed by the respondents was allowed Vide order dated 20—2-2006, the petitioners therein preferred representations in the month of February and April, 2006 and their representations were rejected 0n 16-6-2006. The Contempt Petition was tiled against the officers on 27—6-2006 and in the said contempt petition, the respondents withdrew their earlier order dated 16-6-2006 whereby representations of the petitioners were rejected and the review petition was filed on 3-4-2007’ The contempt petition is still pending and in the said contempt petition, the contemnors have submitted affidavit that they are ready to comply with the order passed by the High Court. Even otherwise, the merits of the case cannot be considered while dealing with the application for condonation of delay. 7. It was further argued that the right to file writ appeal came into existence only after the Chhattisgarh High Court (Appeal to Division Bench) Act, 2006 (for short ‘the Act, 2006’) came into force i.e. with effect from 6‘11 January, 2007. The right to appeal is a substantive right. Clause—3 of the Chhattisgarh General Clauses Act, 1957 specifically provides that ‘Where any Chhattisgarh Act is not expressed to come into operation on a particular day, then, it shall come into force if it is an Act of the Legislature, on the day on which the assent thereto of the Governor, or the President, as the case may require, is first published in the Official Gazette.’ 8. We have heard learned counsel for the parties. 9. From perusal of the impugned order and the memo of appeal, it appears that the State of Chhattisgarh accepted the order dated 15-2-99 passed by the Tribunal. It also appears that subsequent to the passing of the order dated 15—2-99, the direct, recruitees in the State of Madhya Pradesh f7\.7...\\approached the Tribunal for execution ‘of the Tribunal’s order and accordingly, directions were issued by the Tribunal for promoting such direct recruitees and in these circumstances, the present State of Madhya Pradesh filed a Writ Petition (S) No. 3102/2004 in the High Court of Madhya Pradesh and prayed for clarification of the order dated 15—2-99 and the same was disposed of Vide Annexure—A/8 dated 3-5-2005. However, it appears that the State of Chhattisgarh did not flle any petition for clarification 0f the order dated 15-2-99 in View of the prevailing situation in the State of Chhattisgarh after itsformation. 10.From perusal of the impugned order, which was subsequently sought to be reviewed by the State of Chhattisgarh, it is evident that the same was passed on the basis of submissions made by learned counsel for the respondent/State. We also find force in the submission of learned counsel for the respondents that thereafter the respondents filed their representations in the light of the order passed by this Court; their representations were rejected by the State; the respondents filed contempt petition in which notices were issued and subsequent stand was taken by the contemnors. that they are willing to comply with the order passed by this Court; only after the above development, when the contempt petition was pending, the State filed review petition with an inordinate delay. Learned Single Judge after considering the reasons assigned by the State for delay in filing the review petition held that the State has failed to assign sufficient cause for delay and dismissed the review petition as barred by limitation. 11.Indisputab1y, the Act, 2006 came into force with effect from 6th January, 2007 whereas the impugned order was passed on 20th February, 2006 and g thus, remedy of writ appeal against the impugned order was not available to the State at the time of passing of the order. Barve Single Judge, we are of the opinion that the review petition preferred by the State has been rightly held to be barred by limitation, as the State has failed to assign any convincing cause, much less sufficient cause for preferring‘iirstly the review petition with an inordinate delay of 378 days and further preferring this appeal with a delay of 963 days. "\13.ln the result, the appeal is without any substanoe, the same deserves to be and is hereby dismissed being barred by limitation. / Sd/f _‘ ' h/ sw— ¥/# Dhirendra Mishra RN' CHAND ‘1 Judge ' Judge r a, ,, r r V a ‘//‘ f\5‘