w / \ AMENDED PETITION IN_THE_HIGH_CP_URTQF_CHHATTISGARH AT BILASPUR W.P. N0. 3926 OF 2005 t'ill PETITIONER ~y _RESPONDENTS : (1) (1) Devshran Dilliwar, S/o. Shri Chote Lal Dilliwar, aged about 37 years, Assistant Gra.de - III, Establishment, Chhattisgarh High Court, Bilaspur residing at LIG - 98, Deorikhurd Colony, Bilaspur (C.G.) (2) Promod Kumar Pathak, S/o. Shri Rajendra Pathak, aged about 34 years, Assistant Grade - III, Establishment, Chhattisgarh High Court, Bilaspur residing at LIG - 157, Deorikhurd Colony, Bilaspur (C.G.) (3) Narrottam Kumar Sahu, S/o. Shri Pusaw Ram Sahu, aged about 31 years, Assistant Grade - III, Establishment, Chhattisgarh High Court, Bilaspur residing at LIG - 160, Deorikhurd Colony, Bilaspur (C.G.) VERS.US High Court of Chhattisgarh, Through the Registrar General, Bilaspur (C.G.) ^4- (2) State of Chhattisgarh, Through, Principal Secretary, General Administration, Department, D.K.S. Bhawan, Raipur (C.G.) , ra u (3) Smt. Mini Rajan, Pather's Name - not known,AG-2, High Court of Chhattisgarh, Bilaspur. . (4) Shri Sita Ram Rathore, Father's Narae - 'not known, AG-2, High Court of Chhattisgarh, Bilaspur. (5) Shri Ashbk Mahipal, Father's Name - not known, AG-2, High Court of Chhattisgarh, Bilaspur. (6) Shri Vinod Kumar Ukey, Father's Name - not .known, AG-2, High Court of Chhattisgarh, Bilaspur. (7) Shri Ajay Singh Thakur, Father's Name - not known, AG-2, High Court of Chhattisgarh, Bilaspur. (8) Shri Jaiprakash Shukla, Father's Name - nbt known AG-2, High Court of Chhattisgarh, Bilaspur. (9) Shri Anil Kumar Gupta, Father's, Narae - not known AG-2, High Court of Chhatdsgarh, Bilaspur. (10) Shri Lavelesh Kumar Chandravanshi, Father's Name - not known AG-2, High Court of Chhattisgarh, Bilaspur. (11) Shri.Gyan Prakash Giri Goswami , Father's Name - not known AG-2, High Court of Chhattisgarl Bilaspur. (12) Shri Jot Kumar Sinha, Father's Name - not known AG-2, High Court of Chhattisgarh, Bilaspur. (13) Shri Virat Kumar , Father's Name - not known AG-2, High Court of Chhattisgarh, Bilaspur. (14) Shri Kishore Kumar Kashyap , Father's Name - not known AG-2, High Court of Chhattisgarh, Bilaspur. (15) Shri Farhan Ahmad Khan , Father's Name - not known AG-2, High Court of Chhattisgarh, Bilaspur. (16) Ku. Dev Prabha sinha, Father's Name - not known AG-2, High Court of Chhattisgarh, Bilaspur. (17) Shri Yugal Kishor Nirmalkar, Father's Name - not known AG-2, High Court of Chhattisgarh, Bilaspur. (18) Shri Purushottam Chand Verma, Father's Name - not known AG^-2, High Court of Chhattisgarh, Bilaspur. (19) Ku. Sangeeta Chandani, Father's Name - not known AG-2, High Court of Chhattisgarh, Bilaspur. (20) Shri Bhupendra Kumar Sao , Father's Name - not known AG-2, High Court of Chhattisgarh, Bilaspur. .^"- ^^^i^i" (21) Shri Raj Kumar Chandra, Father's Name -' not known AG-2, High Court of Chhattisgarh, Bilaspur. .(22) Shri Subhash Dhmw, Father's Name - not known AG-2, High Court of Chhattisgarh, Bilaspur. (23) Shri.Mohan Lal Yadav, Father's Name - ' not knownAG-2, High Court of Chhattisgarh, Bilaspur. (24) Shri Vishal Rao Khushal Rao Atulkar, Father's Name - not known AG-2, High Court of Chhattisgarh, Bilaspur. (25) Shri Asit Kumar, Father's Name - not known AG-2, High Gourt of Ch.hattisgarh, Bilaspur. (26) Shri Praveen Kum.ar Hirulkar, Father's, Name - not known AG-2, High Court of Chhattisgarh, Bilaspur. (27) Shri Banshilal Dewangan, Father's Naine - not known AG-2, High Court of Chhattisgarh, Bilaspur. (28) Shri Avinash Murab, Father's Name - not known AG-2, High Court of Chhattisgarh, Bilaspur. (29) Ku Manju Vinodia, Father's Name - not known AG-2, High Courf of Chhattisgarh, Bilaspur. (30) Shri Satish Dagore, Father's Name - not known AG-2, High Court of Chhattisgarh, Bilaspur. (31) Shri Prashant Jambhulkar, Father's Name - npt known AG-2, High Court of C.hhattisgarh, Bilaspur. (32) Smt. Ashalata Angare, Father's Name - not known AG-2, High Court of Chhattisgarh, Bilaspur. (33) Shri Gulab Chandra Jainoriya, Father's Name - not known AG-2, High Court of Chhattisgarh, Bilaspur. (34) Shri Christ Dular Ekka, Father's Narae - not known AG-2, High Court of Chhattisgarh, Bilaspur. (35) Shri Kesbbo Ram Baghel, Father's Name - not known AG-2, High Court of Chhattisgarh, Bilaspur. (36) Ku. Nilima Singh, Father's Name - not known AG-2, High Court of Chhattisgarh, Bilaspur. (37) Shri Anil Dharmik, Father's Name - not known AG-2, High Court of Chhattisgarh, Bilaspur. ^_^' Shri lyiahendf-a Kuifiar Kashyap, S, Fa'yier's\Name\ not K»?own AG-2, Higt\ Cixprt oY ChBattisgarh, /•^ ®p\ R<^^5^ Shri -Rakesh ^%@B""pur- a;l<; Kumar Alendra, Pather's Name - not known AG^-2, High Court of Chhattisgarh, BS' w^: 1^1 (40) Shri Ranjit Xabco, Father's Name - ; not known AG-2, High Court of Chhattisgarh, Bilaspur. (41) Shri Prashant Bhat, Father's Name - not knownAG-l, High Court of Chhattisgarh, Bilaspur. -PETITIQN.UNElBK^R'njCLES 226 AND 227 OF THE CON'STITUTION OF INDIA : ^.J^ DIVISION BENCH: HON'BLE MR. JUSTTCE I.M. QUDDUSI & HON'BLE MR. JUSTICE N.K. A6ARWAL W.P. No.3926/2005 (Petition under Article 226/227 of Constitution of Ihdia) PETITIONERS RESPONbENTS Vs Devsharan Dilliwar & others High Court of Chhattisgarh <& others tyi Order for consideration Sd/- I.M. Quddusi Judge ^^ Hon'b!e Shr i Justice Nawal Kishore Aaarwal Sd/- N.K. Agrawal Judge Post for Order on_L?_/10/2Qll SdA I.M.Quddusi -; Judge \^ '1t..:l. ^^ •^it^SS; t- MVISION BENCH: HON'BLE MR. JUSTICE I.M. QUDDUSI & HON^B1..E MR, JUSTICE N.K. A6ARWAL W.P. NQ.39Z6/20Q5 (Petition under Article 226/227 of Constitution of India) PETITIONERS Devsharan Oilliwar & others Vs RESPONDENTS High Court of Chhattisgarh &others Present; Mr. P.S. Koshy, Advocate with Mr~. Vaibhav Shukla, Advocate for the 'T-K- petltioners. Mr. Sanjay K Agarwal, Advocate for the respondent No.l. Mr. Vinay Har'it, Deputy Advocate Sener'al for the respondent No.2. Mr. B.P. Sharma, Advocate for the respondents No.3 to 41. O R D E R (Passed on J9_.IO.2011) Per I.M. Quddusi. J; 1. By way of the present petition the petitioners, who first came on deputation in the establishment of respondent No.l from different District Courts of the State of Chhattisgar-h and later on, absj'''bed by the respondent No.l, have sought following substantia! reiiefs:- • That, the Hon'ble Court be pleased to quash that portion of the orders of appointments (Annexure P-7, P-8 and P-9) which tnake it as an order of deputation and that too for a period of only 2 years only. • That, the Sradation List of A6-III published on 1.5.2004 and 27.12.2004 (Annexure P/21) and P/26) bealso quashed. • That, the respondent No.l be directed not only to cbmpute the seniority of the petitioners in the estabiishment of the respondent No.l from the date of their taking overon the post of AG-III as from the date the petitioners have joined duty in the establishment of the respondent No.l buf in the matter' of promotion as AG-II and A6-I, the services rendered by these petitioners in the t)istrict Courts be also taken into consideration. »» /t.f"ws^^ '\ l'" •;&.».-', 1 "lii:fe<":»?i, E l' ''*<-il 1 ^ ^ s. ••-^*: !\ • That, the respondent No.l be also directed to give promotion to the petitioners on the post of A6-II and A6-I from a retrospective effect i.e. prior to the date when the juniors of the petitioners were promoted. • That, the Hon'ble Court be further pleased to give all the consequential benefits accruing to the petitioners on refixation of their seniority taking into account the services rendered by them in the Oistrict Courts. • That, the Hon'ble Court be further pleased to declare Rule 12 (2) (c) of the Chhattisgarh Civil Services (Seneral Conditions of Service) Rules, 1961 being arbitrary, discriminatory and unjust and therefore ultra virus of the provisions of Article 21 of the Constitution of India." 2. Briefly stated, facts of the case are that the petitioners were initiaily appointed in the different Djstrict Courts of the then State of Madhya Pradesh on different posts. After formation of new State of Chhattisgarh and establishment of new High Court of Chhattisgarh at Bilaspur, it was felt necessary to fill up the required posts in the establishment of respondent No.l within the shortest possible time, but considering the fact that in normal course the recruitment would take a longer time, a decision was taken by the rsspondent No.l to take suitable persons on deputation and accordingly, a letter' dated 17.1.2001 was issued by the respondent No.l to all the District Courts of the State to send list of Class-III employees desirous of joining the respondent No.l on deputation. Pursuant to said letter, the concer'ned bistrict Estabiishments forwarded names of the petitioners herein, as they had shown their willingness to serve in the establishment of respondent No.l. Accordingly, vide orders of Annexure P-7, P-8 <& P-9 the petitioners we.re. appointed in the establishment of respondent No.l as Assistant 6ro.de- III, that is to say, the grade equivalent to the post on which the petitioners were already working in the bistrict Establishment. The appoijitment order of the petitioners further states that the petitioners '"i^ ''&SS?: "y^ [S ;iJ .'...,.•;>-^£'E'' '•-T«-t* •^VI \. will be on deputation for a period of two years and they were directed to join on 26 February, 2001. In compliance of the appointment orders, the petitioners joined their services in the establishment of respondent No.l on 26.2.2001 <& 5.2.2001, respectively. On 06.11.2003 the respondent No.l, after extending deputation period of the petitioners from time to time, invited options from all the employees, including the petitioners, appointed on deputation for their absor'ption in the establishment of respondent No.l and the petitioners have consented for the same. Pursuant to the options submitted by the petitioners, vide order dated 28.04.2004 (Annexure P-20) their services were absorbed in the establishment of respondent No.l on the post of Assistant Srade-III. After absorption of the petitioners, the respondent No.l published a provisional gradation list of the Assistant (Srade-III on 01.05.2004 inviting objections from the employees. The petitioners finding that in the provisional list of Assistant Srade-III their names have been shown below the employees who »vere appointed in the establishment of respondent No.l much after them i.e. respondents No.3 to 41 herein, they immediately submitted their objections and prayed for fixation of their' seniority from the dafe of their joining in the establishment of respondent No.l and proper placement in the final gradation list in the cadre of Assistant 6rade-III, that is to say, above the names of respondent No.3 herein. However, the respondent No.l, igwring the objections raised by the petitioners ond without making any correction regarding placement of the pstitioners in the graddtion list, published the final gradation list on 27.12.2004 in which also nameS of the petitioners have been shown below the names of respondent No.3 to 41 herein, Aggrieved therewith the petitioners have submitted various representatiqns before the respondent No.l but when no favourbale resporise on their representatiohs was received by the petitioners, they filed the present uvrit petition. -^ I- r- '.r^ ~^Si \- 3. Learned counsel for the petitioners would argue that seniority of the petitioners in the cadre of Assistant grande-III must be counted from the date of their initial appointment on deputation basis in the establishment of respondent No.l i.e. from 22.2.2001 <& 2.2.2001 respectively and grant of seniority to the petitioners as per provisions of Rule 12 (2) (c) of the Rules of 1961 i.e. from the date of their absorption, is arbitrary as the same would take away the service rendered by the petitioners as 'deputationist' with the respondent No.l and therefore, the Rule 12 (2) (c) of the Rules of 1961 is liable to be struck down being ultra vires to the Constitution of India. It has further been submitted by the learned counsel for the petitioners that the State of Madhya Pradesh i.e. the parent body which had originally enacted the Rules of 1961 and which was adapted by the State of Chhattisgarh after its creation, on realizing the err-or in the provision of lav^ had amended the clause (c) of sub-rule (2) of Rule 12 of the Rules of 1961 by way of Notification dated 16.02.2005 and in place of 'present depar-tment' the words 'parent department' have been substituted and in place of the words 'whichever is later', the words 'whichever is earlier' have been substituted. Reliance is placed on the judgment of the Hon'ble Supreme Court in the matter of S.I. Rooplal and another Vs. Lt. Sovernor through Chief Secretary, Oelhi <& others reported in (2000) 1 SCC 644. 4. Learned counsel for the respondent No.l would argue that the petitioners were appointed on deputation for a period of two years and the said period was extended from time to time. Thereafter, vide memo dated 06.11.2003 options were invited from all the employees, who came on deputation, for their absorption and iri the said memo it was made clear to all of them that in case they opt for absorption, their seniority witi be counted as per Rule 12 (2) (c) of the Rules of 1961 read with Notification dated 02.04.1998 issued by the &eneral Administration Department. The petitioners herein opted for their absorption and therefore vide order dated 28.4.2004 (Annexure P-20) the petitioners' services were absor'bed in the establishment of respondent No.l and ther-eafter final gradation list of ^Assistant Srade-III was published by the r&spondent No.l giving \.! ....f1 appropriate position to the petitioners i.e. from the date of their absorption. Therefore, the petitioners now cannot take u-turn and challenge their absorption, which they have accepted with the open eyes. He has further submitted that the petitioners we.re. not holding the equivalent post i.e. Assistant 6rade III cadre post, in the District Court establishment on regular- basis prior to their appointment on deputation to the respondent No.l establishment and therefore they cannot claim seniority from the date of appointment on deputation in the establishment of respondent No.l, particularly in view of the option submitted by them pursuant to memo dated 06.11.2003. 5. Learned counsel for respondents No.3 to 41 has submitted that the petitioners after accepting their absorption without any demur or protest have challenged the constitutional validity of the Rules of 1961, which is not permissible under the law. He has further submitted that safest criteria for counting the seniority is the date of substantive appointment and in the present case date of appointment of the petitioners in the establishment of respondent No.l is 28.4.2004 and therefore, the seniority fixed by the respondent No.l vide gradgtion list dated 27.12.2004 is appropriate. He has further submitted that prior to appointment on deputation in the establishment of respondent No.l, the petitioners we.re either unconfirmed or- temporary employees of the District Courts concerned and therefore they are not entitled for grant of seniority from the date of their appointment on deputation in the establishment of respondent No.l. Reliance is placed on the judgment of the Hon'ble Supreme Court in the matter of Ihdy Shekhar Singh Vs. State of U.P. reported in (Z006) 8 SCC 129. 6. We have heard learned counsel appearing for the respective parties. We have also carefully perused the record. 7. From the pleadings made by the petitioners in the writ petition and the arguments advanced by learned counsel for the petitioners, we observe that dispute in this case is confined to the constitutional validity of the RulelZ (2) (c) of the Rules of 1961, as amended upto 1998, as the main I" < '•0.. fy <(••• grievance of the petitioners is that use of expressions 'present depar'tment' and 'whichever is later' in clause (c) of sub-rule (2) of Rule 12 the Rules of 1961 has the effect of takingaway the services rendered by the petitioners in an equivalent cadre in the parent department or atleast the service rendered by them as deputationists in the establishment of respondent No.l and therefore, the same is arbitrary, unreasonable and ultrd vires to Articles 14 & 16 of the Constitution of India. 8. Since the whole controversy centers around this clause (c) of sub-rule (2) of Rule 12 of the Rules of 1961, which was in force at the time uvhen the petitioners were appointed on deputation in the establishment of respondent No.l as at that time the State of Chhattisgarh and the High Court of Chhattisgarh had not framed the rules with regard to absorption of a deputationist and the Rules of 1961 were made applicable, we deem it appropriate to reproduce it as it is:- "(c) In the case of a person who is initially taken on deputation and absorbed later (i.e. where the relevant recruitment rules provide for transfer on deputation / transfer") his seniority in the grade in which he is absorbed will normally be counted from the date of absorption. If he has however been holdin9 already (on the date of absorption) the same or equivalent grade on regular basis, in his parent department, such regular service in the grade shall also be taken into account in fixing his seniority, subject to the condition that he *ill be given seniority, from the date he has been holding the post on deputation or the date from which he has been appointed on a regular basis to the same or equivalent ~ grade in his present department whichever is later-." 9. At. this stage, it would be useful to mention that the State Sovernment of Madhya Pradesh by (Sazette Notification dated 16.2.2005 made foliowin9 further amendments in clause (c) of Rule 12 (2), which reads as under;- ^ '^ "(l) for the words "present depar-tment" the words "parent department" shall be substituted. This amendment shall be deemed to have come into force with effect from 2nd April, 1998; (2) for the words "whichever is later" the words "whichever' is earlier" shall be substituted. This amendment shall be deemed to have come into force with effect from 14th December, 1999" Though the gazette notification regarding above amendment was issued in the year 2005 but the amendments have been deemed to be effective much prior to the date of reorganization of the State of Madhya Pradesh. It may be noticed here that the State of Madhya Pradesh was reorganized on 1.11.2000 and the State of Chhattisgarh was formed, but in any case that amendment cannot be made effective in the State of Chhattisgarh unless the same is adopted by the State of Chhattisgarh or the State makes its own amendment as has been notified by the State of Madhya Pradesh in the year 2005. 10. It is settled preposition of law that giving a plain meaning to the words used in the statute wou'd not be resorted to when there is a sense of possible injustice. In such a case, simple application of the words in their primary and unqualified sense is not always sufficient and will sometimes fail to carry out the manifest intention of lawgiver as collected from the statute itself and the nature of subject-matter and the mischiefs to be remedied. If the plain words lead apparently to do some injustice or absurdity and at variance with, or not required by, the scope and object of the legislation, it would be necessary to examine further and to test, by certain settled rules of interpretation, what was the real and true intention of the legislature and thereafter apply the words if they are capable of being so applied so as to give effect to that intention. Where the plain literal interprefation of statutory provision were to manifestly result in injustice never intended by the legislature, the court i's entitled to modify the language used by the legislature so as to achieve the intention of the legislature and to produce a rational construction. 11. In the matter of H.S. Vankani Vs. State of Gujarat reported in (2010) 4 SCC 301 the Hon'ble Supreme Court has held thus:- "43. It is a well-known rule of construction that the provisions of a statute must be construed so as to give them a sensible meaning. The legislature expects the court to observe the maxim ut res magis valeat quam pereat (it is better for a thing to have effect than to be made void). The principle also means that if the obvious intention of the statute gives rise to obstacles in implementation, the court must do its best to find ways of overcoming those obstacles, so as to avoid absurd results. It is a well-settled principle of interpretation of statutes that a construction should not be put on a statutory provision which would lead to manifest absurdity, futility, palpable injustice and absurd inconvenience or anomaly." 12.In the matter of Shamrao Vs. District Magistrate, Thana reported in AIR 1952 SC 324 the Hon'ble Supreme Court has held that "fhe object of construction of a statute being to ascertain the will of the Legislature, it may be presumed that neither injustice nor absurdity was intended. If, therefore literal interpretation would produce such a result, and the language admits of an interpretation which would avoid it, then such an interpretation may be adopted'. 13. In the above connection reference may also be made to following maxims:- "Ut res ma9is valeat, quam pereat; That an act may avail, rather than perish. This is a rule of construction underlying that rule which directs such a construction to be put upon an ambiguous document (or ambiguous words therein) as that the document shall be and remain valid, and not be or become invalid from uncertainty, or illegality or other like cause. Beni"9nae faciendae sunt interpretations, propter simplicitatem laicorum, ut res magis valeat, quam pereat; et verba intentiona) non ^-.. <r ''<, e contra debent inservire.;- Construction are to be made liberally on account of the ignorance of the unprofessional, so that the thing may rather avail than perish; and words ought to be made subservient to the intention, not contrary to it. The judges will rather apply the words of the document to fulfill its lawful intent, than destroy such intent because of insufficient language, for to the intention, when once discovered, all technical forms of expression must give way. But it should be borne in mind, in applying this maxim, that the intention is not to be gathered from anything outside the instrument... Benignior sentential, in verbis generalibus vel dubiis, est praeferenda:- Where words are general or doubtful, that construction which is more liberal, shall be followed. 14. In the matter of Sub Inspector" Rooplal (supra), in somewhat similar circumstances, the Hon'ble Supreme Court has held thus;- "ZO.The relevant part of the memorandum impugned in the writ petition referred to above, reads thus: "Even in the type of cases mentioned above, that is, where an officer initially comes on deputation and is subsequently absorbed, the normal principles that the seniority should be counted from the date of such absorption, should mainly apply. Where, however, the officer has already been holding on the date of absorption in the same or equivalent grade on regular basis in his parent department, it would be equitable and appropriate that such regular service in the grade should also be taken into account in determining his seniority subject only to the condition that at the most it would be only from the date of deputation to the grade in which absorption is being made, It has also to be ensured that the fixation of seniority of a transferee in accor'dance with the above principle will not effect any regular promotions made prior to the date of absorption. Accordingly it has been decided to add the following sub-para (/V) to para 7 of general principles communicated vide OM dated 22-12-1959: '(/i/) In the case of a person who is initially taken on deputation and absorbed later (i.e. where the relevant recruitment rules provide for "transfer on deputation/transfer ), his seniority in the grade in which he is absorbed will normally be counted from the date of absorption. If he has so ever been holding alrggdy (on the ^s"^'' f^».^ S. ^.. 1 :;fes;g»"» 1 ,^^^'"' '^ ^ '":li'- -S / t? '• ,^-^^ .^' ;;'.^ 10 date of absorption) the same or equivalent grade on regular basis in his parent department, such regular service in the grade shall also be taken into account in fixing his seniority, subject to the condition that he will be given seniority from— • the date he has been holding