IN THE HIGH COURT OF JUDICATURE AT BILASPUR (C.G.t 253] PETITIONERS: /.^ /y; ^). ^;:s>-y ^^^f/ ^^/ r.t' ^'^y/ ^y ^- A"\/' 2. W.P.No......^.T..^J........./2006 Preeti Bala Tank , /^Aged about 41 years, W/o Shri Pradeep Kumar Tank, Occupation Assistant Professor (Physics), R/0 Ward No.l9, R.K. Nagar , District Rajnandgaon (Chhattisgarh) Dr. Shailendra Singh, Aged about 44 years, ^-S/o Dr. T. H. Singh, Occupation Assistant Professor (Histoiy), R/0 Qr.No. P.C. - 7, Digvijay College Campus, District Rajnandgaon (Chhattisgarh) ">\s n "^ VERSUS RESPONDENTS: 1. State of Chhattisgarh Through the Secretary Department of Higher Education, Mantralaya, 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 Digvijay College District Rajnandgaon , (C.G.) P@TITK)N_UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA FOR ISSUANCE OF APPROPRIATE WRITS OF MANDAMUS AND CERTIORARI AND FOR OTHER SUITABLE WRITS AND DIRECTIONS:- XI-HC—78 sn^i vf h-u* wnw^iwih; ^/ ^°T "4I<<I01^, »Tll<-l'l6, fstCliy^-': U? J? • <N&. 2-J- ^> 1/06 SII^T'tRq;' (1clf^'!f<ET) T^nw^Hteran^i HON'BLE SHRI I.M. QUDD^SI & HQN'BLE SHRI N.K. A6ARWAL. JJ 29-6-2010 01 This petition has been passed in W.P. No. 1547/2004 W.P. No. 1547/2006 be placec| Sd/- •M. Quddusi Judge "^isik'f^^ ^R^ ^ ti^ ^^i^ ^3iRpT3n*?i sposed of by a common order A copy of the order passed in in this file of this case also. Sd/- N.K. Agarwal Judge L HIGH COURT OF CHHATTISGARH AT BILASPUR / WRIT PETITION No. 1547 OF 2006 PETITIONERS RESPONDENTS Dr. Purnima Mishra and others Versus State of Chhattisgarh and others WRIT PETITION No. 1548 OF 2006 PETITIONERS RESpONDENTS Dr. Sulekha Agrawal and atiother 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. 1555 OF 2006 PETITIONERS RESPONDENTS Harsh Sharma and others Versus State of Chhattisgarh and others WRIT PETITION No. 253J, QF 2006 PETITIONERS RESPONDENTS Preeti Bala Tank and another Versus State of Chhattisgarh and others DB:- HON'BLE SHRI I.M. OUDDUSI & HON'BLB SHM 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. 2. At the very outset, it is necessary to mention that similar cases in a bunch came up before this Court leading case of which was W.P. No. 1864/2006 (Dr. Smt. Asha Diwan and others -v- State of Chhattisgarh and others) which was disposed of vide order dated 1-4-2010 on the basis of the decision of M.P. High Coiirt. We are disposing of these cases also on the basis of the said order. 3. The above writ petitions have been filed praying for following reliefs:- ^ .f a) To issue a writ in nature of certiorari or any other writ or direction or order striking down Rule 2 of the "Chhattisgarh Regularization of Emergency appointment Rules, 2005, in so far as it has overriding effect notwithstanding anything contained to the contrary in any other rules or orders, as ultra vires the provisions of Article 309 of the Constitution of India. b) To quash fhe condition contained in the appointa-nent order dated 18-1-2006 issued to the petitioner, as to probation for 2 years from the date of the order, it is in violation of M.P. Educational Services (Collegiate Branch) Recruitment Rules, 1990 as also it is discriminatory in so far as ofher employees similarly placed have not been put on such probation froni fhe date of their regularization. c) To prohibit the Respondents from applying the newly introduced contributory pension fund Rules contained in notification dated 27-10- 2004 to the petitioner as also making the petitioner a compulsoiy member of it as it is in violation of the petitioner's vested right under the provisions of existing General Provident Fund Rules and Pension Rules. d) To set aside Rules 10 of the C.G. Regularization of Emergency Appointment Rules, 2005, in so far as it says that a person appointed under these rules shall be entitled to seniority only from the date of the order of regular appointment and the person regularized under these rules shall be placed below the persons appointed in accordance with the relevant recruitment rules prior to the appointment of such persons under these rules, as it takes away the right of the petitioner to count seniority from the date of S3flrm ^"'^"-'^s'"-'-*| \,/• her joining the service as it is in violation of the provisions of M.P. Reorganization Act, 2000 wbich prohibits the Respondents from altering her service condidons to her disadvantage without the approval of the Central Govemment. e) To issue a writ in the nature of Mandamus or any other writ 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 fhe consequential benefits of service rendered by her in accordance with the statutoiy rules, like seniority, promotiori to the next higher grade and pay scale, continuance offhe membership in G.P.F., all other ppst-retirement beneiits asj, are available to other govemment sersantsj similariy situated" ti 4. Brief facts of the case are that these petitioners ?l].a%g| been appointed as Assistant Professors in pursuaKeeg^tfi M.P. Educational Service (Collegiate Branch) ReGruitntenfe^ Rules, 1967 (for brevity "the Rules") in .^mssgeitc-y^ Recruitment process made by the erstwhile ,M»PsK§1?atiei Government for Hlling up a large nuniber of vacanfctiiostsl in its different colleges, as it was not possible tp get; selected persons from the Madhya Pradesh Public Service Commission. An advertisement, in accordance with the Rules, was issued inviting applications on all India basis froin candidates possessing preseribed qualifications and experience and they were selected by a duly constituted Selection Conimission and appointment orders thereof were issued to the selected candidates in the month of Deceniber, 1987 with certain conditions that the' candidates who were selected shall be cleared by Public Service Cornmission. i 5. After reorganization of the M.P. State in the year 2000,! these petitiQBeTs^toec^ins the employees of Chhattisgarlii State GoverrLmenK; yiciwFeyer, some of their colleagues^i reniained in ^&t;sei;saeegj|of Stsa.te Government of Madhi'al Pradesh. This iSliBi.tsBl^yactthat these candidates though;j appeared?beioT®|l|l:li.es|g'H|BlicService Comraission for th«i( pyrpose of regularizafion of their services as their appointmentS ^weredagainst a regular vacant post on L \ -T 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 provisions 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 Regularisation:- Assistant Professors appointed on emergency basis shall be regularized from the date of order of regularization. Rule 10. Seniority:- (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 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: y" "7. It is not in dispute that advertisement was issued, selection committee was formed which has considered the cases of the einployees; they were duly qualified for being appointed; their appointments have continued till their regularization and they were holding the similar pay scale in which they were regularized. Appointment 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 tiine of appointment on the earlier post of which service is to be counted an incumbent inust 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 Government; and (v) the appointment should not be purely adhoc or as against leave 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 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 againsf 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 that which was foilowed and ultimately the services were regularized. The State Governinent 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. m: 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 Commission 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 are 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. 7001- Rs. 1600/- does not mean that adhoc service 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 8 attracted as seniority has not been given any of the 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 made on adhoc basis which was not under the rules whereas the appointment in the instant cases was under the Rules of 1967 and ultimately incunibents have been regularized. The appointment in the instant case was also on the pay scale, in the aforesaid decision apppintment 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 the 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 ^3 ^0^ 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 mentioned above, be reconsidered as earlyas 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 learnedState Counsel for compliance. Sd/- 1.1M. Quddusi Judge Sd/- N.K. Agarwal Judge