3);&. ^^|^rll|sfo< ^ AMENDED PETITION IN THEHIGILCQURTOF^IUDICATURE AT BILASP^UR (C.G.1 W,^,JS)lto.^328/2007 PETITIONERS 1. 2. ^" 3. RESPONDENTS ^ 2 3 ^- 7 ^ 8 Gopal Singh, son of Shri G.D.Singh, aged 36 years, G- 1/1, Vikas Nagar, 27 Kholi, Bilaspur, Distt. Bilaspur. A. Annaji Rao, son of Shri A. Raghavam, aged 43 years, F-12, Nutan Colony, Sarkanda, Bilaspur, Distt. Bilaspur M.V.L.N. Subrahmanyam, son of Shri M.V. Kameswara Rao, aged about 36 years, H-13, Nutan Colony, Sarkanda, Bilaspur, Distt. Bilaspur Versus High Court of Chhattisgarh, through the Registrar General High Court of Chhattisgarh, Bilaspur (C.G). Registrar General, High Court of Chhattisgarh, Bilaspur (C.G). Chudamani Singh Chouhan, son of Shri B.S. Chouhan, working as Section Officer, High Court of Chhattisgarh, Bilaspur. N.K. Kanungo, son of late Shri S.C. Kanungo, working as Section Officer, High Court of Chhattisgarh, Bilaspur. Ashesh Shrivastava, son of late Shri S.R. Shrivastava, working as Section Officer, High Court of Chhattisgarh, Bilaspur. Himanshu Kumar Sinha, son of Shri Prabhat Kumar Sinha, working as Section Officer, High Court of Chhattisgarh, Bilaspur Kumar Animesh, son of Shri J. Prasad, working as Section Officer, High Court of Chhattisgarh, Bilaspur. Smt. Livleen Sheikh, w/o Shri Tahir Mohmniad, working as Section Officer, High Court of Chhattisgarh, Bilaspur ^— <r WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION QF INDLA FOR ISSUANCE OF APPROPRIATE WRIT(S1 IN THE NATURE OF MANDAMUS. CERTIORARY, DIRECTIONfSl h li^ ^ H I GH C Q_URT OF C HHATT I SGAR H _AT^B ILASP U R DIVISION BENCH: Hon'ble Shri I.M.,Quddusi 8s Hon'ble Sh_n_N. K,_AgarwaL, JJ. 01 Iv -i- Writ Petition (S) No. 3211 of 2007 Avanish Jyotishi 8s others Petitioners Versus Respondents High Court of Chhattisgarh & others AND Writ Petition (S) No. 3328 of 2007 Petitioners Gopal Singh & others Versus Respondents High Court of Chhattisgarh & others ORDER FOR CONSIDERATIQN— s Sdf- I.M.Quddusi Judge 28.09.2011 Q^Y^e. HONT3LE MR. JUSTICE N. K. AGARWAL Sd/- N.K. Agrawal Judge 1%5 •u-y.^vi i POST FO_RORDER_ON ^-3'-' Aa@st, 2011 ^i2-y\CA^A)t^^ iA,_L.^u^s< onii Sd/- I.M. Quddusi Judge -]• '•'^' '^" HIGH CQURT_OF CHHATTLSGARH : BILASPUR Writ Petition CS) No,_321 1 of 2007 Avanish Jyotishi & others Petitioners Versus Respondents High Court of Chhattisgarh & others AND Writ Petition (S) No. 3328 of 2007 Petitioners Gopal Singh SE others Versus Respondents High Court of Chhattisgarh 8s others WRIT PETITIONS UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA DB: Hon'ble Shri I. M. Quddusi SE Hon'ble Shri N. K. Agarwal, JJ. Shri B. P. Sharma and Shri Jitendra Pali, Advocates for the petitioners. Shri Sanjay K. Agarwal, Advocate for the respondents No. 1 & 2. Shri Abhishek Sinha and Shri K. R. Nair, Advocates for the private respondents. ORDER (Passed on this 2.9 day of September, 2011) Per l.JM.. Quddusi, J. 1. The petitioners in both the above writ petitions are mainly aggrieved by the impugned order dated 10.5.2007 (Annexure P/2), whereby the petitioners' order of promotion to the posts of Assistant Registrar vide order No. 181/11-14-1/2006 dated 25.12.2006, was recalled, without notice. 2. As both the writ petitions (W.P.(S) Nos. 3211/2007 8s 3328/2007) involve common question of facts and law, they are being disposed of by this common order. -V vc 3. Brief facts, in nutshell, necessary for disposal of the instant writ petitions, are that the petitioners (Shri Avanish Jyotishi, Shri R. S. N. Raju, Shri Avanish Pathak, Shri Gopal Singh, Shri A. Annaji Rao and Shri M. V. L. N. Subrahmanyam) were initially appointed as Stenographers in the erstwhile High Court of Madhya Pradesh on 5.9.1995, 16.8.1996, 12.5.1997, 21.9.1995, 22.3.1996 and 10.3.1997, respectively. On creation of new State of Chhattisgarh w.e.f. 1.11.2000 the petitioners were allocated and are working since then in the establishment of High Court of Chhattisgarh. By order dated 24.5.2001 (Annexure P/3 in W.P.(S) No. 3328/2007), the petitioners were promoted on the vacant perraanent posts of Private Secretary, which is the feeder cadre for the next promotion to the post of Assistant Registrar. 4. The private respondents namely Shri Chudamani Singh Chouhan, Shri N. K. Kanungo, Shri Ashesh Shrivastava, Shri Himanshu Kumar Sinha and Shri Kumar Animesh were working in the establishment of various other High Courts and were directly recruited in the establishment of High Court of Chhattisgarh vide order dated 5.11.2001 (Annexure R-5/1 in W.P. (S) No. 3328/2007) on probation for a period of two years. The private respondent Smt. Livleen Sheikh was working on the post of Translator in the erstwhile High Court of Madhya Pradesh. After creation of new State of Chhattisgarh, she was allocated to the High Court of Chhattisgarh. On 29.12.2004, Smt. Livleen Sheikh was promoted on the post of Section Officer on officiating basis. The post of Section Officer is also a feeder cadre for the next promotion to the post of Assistant Registrar. 5. The petitioners as well as the private respondents were called for an interview for promotion to the post of Assistant Registrar, which ^7 i°/ y was held on 16.11.2006. As a result of the interview, by order dated 25.12.2006 (Annexure P/4-A), the petitioners (Private Secretaries) as well as one of the private respondents Shri Chudamani Singh Chouhan (Section Officer), were appointed by promotion to the post of Assistant Registrar, in officiating capacity for a period of two years, which was recalled by the impugned order dated 10.5.2007 (Annexure P/2). Hence the petitioners have filed the instant writ petltions. 6. The relieffs) sought for by the petitioners in both the writ petitions are as under : (i) To quash the Notification No. 209, dated 10U1 May, 2007 (Annexure P/l), whereby the amendnient dated 28.3.2006 made in Rule 5(1) of Part -IV of the Rules, 2003 was restored. (ii) To quash the Order No. 211, dated 10.5.2007 by which the promotion order No. 181 on the post of Assistant Registrar and order No. 173, whereby combined seniority list of Private Secretaries and Section Officers was issued, were recalled. (iii) To hold the amendment in existing Rule 5 (1) in Part IV of the Rules, 2003 dated 10.5.2007 as prospective in nature and will not affect the proraotion of the petitioners on the post of Assistant Registrar. (iv) To quash the appointment order No. 4933, dated 5.11.2001 of the private respondents (Shri Chudamani Singh Chouhan, Shri N. K. Kanungo, Shri Ashesh Shrivastava, Shri Himanshu Kumar Sinha and Shri Kumar Animesh ) being void, inoperative and beyond the provisions of law. 7. Shri B. P. Sharma and Shri Jitendra Pali, learned counsel appearing for the petitioners, veheraently argued that without notice the basis of passing of the impugned orders of recalling of I>,-a.r: njr -f r the promotion and seniority order as well as making amendment in Rule 5 (1) of Part IV of the Rules, 2003 is not sustainable. The attack of learned counsel to the impugned action of the respondents is on four counts. 8. Firstly, the whole exercise was undertaken on the report of the Committee, comprising of two sitting Judges, which was constituted to examine the representation dated 10.1.2007 of the Section Officers, but the Committee has exceeded its jurisdiction. It unnecessarily discussed the irrelevant points and made its recommendation for 50:50 ratio taking into consideration the whole strength of the Registry from the cadre of Peon to that of Section Officers (total about 452) as one pool against the Secretarial Staff (55). The Committee has also wrongly drawn inference that the work of Section Officer is more important than the Private Secretary. Learned counsel appearing for the petitioners vehemently urged that the Private Secretaries to the Hon'ble Judges play a veiy important role in taking down dictations and writing judgments and orders. 9. Secondly, the private respondents are much junior to the petitioners in the length of service in one of the feeder cadres for promotion to the post of Assistant Registrar and except Smt. Livleen Sheikh, other private respondents were directly appointed on the post of Section Officer on probation, contrary to the existing Rules. Thus, the private respondents have no right to question the promotion and seniority of the petitioners in any manner. 10. Thirdly, Hon'ble the then Chief Justice on 7.5.2007 passed the order that "Opinion of the brother Judges is accepted. Let the Registry initiate appropriate proceedings in accordance with law , but in a hurried manner, without issuing a show-cause notice and ?"»f ;i ^ 's/ ,,.-fy. y / without affording an opportunity of hearing to the petitioners, in whose favour a substantial right was created by getting promotion and working for about 4Va months on the post of Assistant Registrar, the promotion and seniority orders were recalled. 11. Lastly, by notiflcation dated 10th May, 2007, amendment in the Rule 5(1) of Part IV of the Rules, 2003, could not have been given effect to retrospectively i.e. w.e.f. 25.12.2006, as the law regarding the retrospectivity or retroactive operation regarding the Rules of selection is that where such amended Rules affect the benefit already given, then alone such Rules would not be permissible to the extent of retrospectivity. In this regard, learned counsel heavily relied on a decision of Hon'ble Supreme Court in High Court of Delhi and another Vs. A. K. Mahajan and others1. 12. Learned counsel appearing for the petitioners submitted that indisputably, the petitioners are senior to the Officers, who made the representation, on the basis of length of service in the feeder cadre (Private Secretary) to the post of Assistant Registrar. The criteria fixed for promotion to the post of Assistant Registrar is ment-cum-senionty. 13. Learned counsel for the petitioners next submitted that the service conditions of the petitioners and other employees of respondents 1 8s 2 were governed by the High Court of Madhya Pradesh (Recruitment, Conditions of Service and Conduct) Rules, 1995, framed by Honble the Chief Justice of High Court of Madhya Pradesh. Even after establishment of High Court of Chhattisgarh at Bilaspur, these Rules of 1995 also continued to apply to the employees and officers of establishment of High Court of Chhattisgarh for a period of two years under the provisions of A^ 2009 AIR SCW 4370 / s •-+- .) 14, 15. Section 79 of the Madhya Pradesh Reorganization Act, 2000, which provides that "For the purpose of facilitating the application in relation to the State of Madhya Pradesh or Chhattisgarh of any law made before the appointed day, the appropriate Government may, before the expiration of two years from that day, by order, make such adaptations and modifications of the law, whether by way of repeal or amendment, as may be necessary or expedient, and thereupon every such law shall have effect subject to the adaptations and modifications so made until altered, repealed or amended by a competent legislature or other competent authority". The official respondents in exercise of powers conferred under Clause (2) of the Article 229 of the Constitution of India, framed Chhattisgarh High Court Establishment (Appointment and Conditions of Service) Rules, 2003 (for short 'the Rules, 2003'), which are made applicable with effect from 10.12.2003. Part - IV of the Rules, 2003 provides source and method of appointment to various Class II posts in which seriatim of posts is as follows: No.l Assistant Registrar, No.2 Private Secretary and No.3 Section Officer. In Part-IV First Schedule of the Rules, 2003, the following criteria was fixed for promotion/appointn'ient to the post of Assistant Registrar: 16. Learned counsel referring to the Rules, 2003, which was made applicable with effect from 10.12.2003, submitted that in the column of source and rnethod of appointment for the post of S.No. Name of the Post Source and Method of Appointnient 1. Assistant Registrar By promotion strictly based on merit- cum-seniority from amongst Private Secretaries, Section Officers, Librarian and Assistant Editor (I.L.R.) of the establishment. y 17. Assistant Registrar, the seriatim was Private Secretaries and then Section Officers. He also submitted that in the parent High Court of Madhya Pradesh as well as in various other High Courts, the seriatira of Private Secretary is first then Section Officer. In the High Court of Chhattisgarh Rules, 2007, the post of Private Secretary is included as Officer of the Registry, but the post of Section Officer is not placed therein. Rule 5 of the High Court of Chhattisgarh Rules, 2007 provides that Assistant Registrars and Private Secretaries shall also constitute the Registiy of the Court. Thus, the duties and responsibilities attached to the post of Private Secretary are more important than the post of Section Officer. Learned counsel for the petitioners, heavily relying on Rule 13 of the Rules, 2003, which provides that the relative seniority of promotees and direct recruits shall be determined according to the date of issue of appointment order, submitted that as the petitioners were appoint.ed in the feeder cadre (Private Secretaiy) inuch eariier to the private respondents (Section Officer), they are entitled for the relative seniority according to the date of issue of their appointment orders. However, in March, 2006, the official respondents made an amendment in Rule 5 (1) of Part IV of the Rules, 2003 which came into force w.e.f. 28.3.2006 to the following extent: S.No. Nanie of the Post Source and Method of Appointinent 1. Assistant Registrar By promotion strictly based on rnerit- cum-seniority from amongst incumbents holding the followinj posts: (i) Section Officer (ii) Private Secretary, Librarian, Assistant Editor (ILR). Note: Vacancies in the sanctioned ^"sr" /--'-•<, J'J a,. '•"s^^e' ^.- r ^•' 18. Learned counsel submitted that after the above amendment, two Section Officers ( Shri M.P. Bisoi and Shri Ashok Sharma ) were promoted as Assistant Registrars from Pool (i); whereas Librarian (Shri R.K. Tiwari ) and only one Private Secretary (Shri Pooran Singh Thakur) were promoted to the post of Assistant Registrar from Pool (ii). In the promotion order dated 1.4.2006 of these four persons on the post of Assistant Registrar, the seriatim was first two Section Officers, then Librarian and then, at the last position, Private Secretary, i.e., Shri M. P. Bisoi (Section Officer), Shri Ashok Sharma (Section Officer), Shri R. K. Tiwari (Librarian) and Shri Pooran Singh Thakur (Private Seeretary). However, no opportunity of hearing was given to the petitioners while making such amendinent. 19. Learned counsel submitted that the above amendment was made in the Rules, 2003 w.e.f. 28.3.2006 and the order of seriatim mentioned in the appointment order of Assistant Registrar, in which the Private Secretary was placed at serial No.4, whereas first two seriatim was given to Section Officers, this gave rise to the dispute and created a doubt in the mind of the Secretarial Staff, including the petitioners, about their future prospects. 20. On one hand, in the above amendment, the cadre of Section Officer was placed above the cadre of Private Secretary, without any rhyme and reason, although the cadre of Private Secretary had been always placed above and on the other hand, in spite of making a provision of ratio of 50:50 between two pools, on turn by turn basis, in the promotion order dated 1.4.2006 for the post of Assistant posts of Assistant Registrar shall be filled up in the ratio of 50:50 between (i) and (ii) categories noted above. Registrar, first two positions were assigned to Section Officers, third position to the Librarian and fourth, i.e., last position to the Private Secretary. Had it been the ratio of 50:50, in turn by turn basis, learned counsel for the petitioners submits that the promotion order of Assistant Registrar might have been issued in the following manner viz. Section Officer, Private Secretary, Section Officer and Librarian. 21. Learned counsel appearing for the petitioners submitted that feeling aggrieved, the petitioners submitted a detailed representation dated 10.08.2006 (Annexure P-7 in W.P.3328/2007) narrating the factual position regarding allotment of the petitioners amongst 46 employees by the M.P. High Court in January, 2001 as also narrating the manner in which the private respondents 3 to 7, including two others, joined this establishraent of Chhattisgarh High Court, after creation of the High Court of Chhattisgarh at Bilaspur. It was also submitted that out of 46 employees, who were fmally allowed to stay here by the M.P. High Court in Januaiy, 2001, no Section Officer was there in the final list of 46 employees. Besides this, the petitioners also raised objection to araendment that inclusion of Librarian and Assistant Editor (ILR) in the cadre of Private Secretary has marred the promotional chances of Private Secretaries/Stenographers. It was also mentioned that Shri R.K. Tiwari, Librarian, who finds place at Sl.No.20 in the final allocation list, was drawing a basic pay of Rs.4500/- on the post ofAssistant Librarian, whereas the petitioners, who find'place at S. 11 to 16 of the list, were drawing basic pay of Rs.5500/- on the post of Stenographer and in such a situation the Librarian should have been placed below the last person in the gradation list of P.S. cadre and accordingly promotion of Shri R. K. Tiwari to the post of ./{ /J.\ ~"~~^ 1 ^iSa 0 ^^-y 22. 23, 24. 10 Assistant Registrar be cancelled. The fact regarding sanctioned strength of Private Secretaries and Section Officers was also mentioned in the said rcpresentation as 20 and 14, respectively. It was, therefore, prayed that the amendment dated 28.3.2006 be withdrawn and the petitioners allocated by the parent High Court of Madhya Pradesh be promoted first. Learned counsel for the petitioners next subraitted that Hon'ble the Chief Justice, after taking into consideration the factual matrix, has allowed the representation of the petitioners and by NotiBcation No. 172, dated 25.12.2006 (Annexure P-8 in W.P.3328/07), has withdrawn the amendment dated 28.03.2006 and the Rule 5 (1) of Part IV of the Rules, 2003, which was in existence prior to the said amendment was maintained, which is as below : Learned counsel submitted that after considering the detailed representation of the petitioners, the then Hon'ble the Chief Justice has rightly assigned the relative seniority to the petitioners and the private respondents on the basis of their length of service etc., vide order No. 173, dated 25th December, 2006 (Annexure P/4 in W.P.(S) No. 3328/2007). Learned counsel appearing for the petitioners further submitted that in the meantime, on 16.11.2006, viva voca and interview for the post of Assistant Registrar was held by the competent authority (the then Hon'ble the ChiefJustice), wherein the petitioners as well S.No. Name of the Post Source and Method of Appointnnent 1. Assistant Registrar By promotion strictly based on merit- cum-seniority from amongst Private Secretaries, Section Officers, Librarian and Assistant Editor (I.L.R.) of the establishment. 11 '-*&..„. as the private respondents had appeared in the interview. The basis of selection was 'rnerit-cura-seniority'. 25. Learned counsel for the petitioners submitted that as a result of the viva voca and interview, by order No. 181 dated 25.12.2006 (Annexure P-4A), the petitioners and one of the private respondents namely Shri Chudamani Singh .Chauhan, were appointed to the permanent vacant posts of Assistant Registrar by way of promotion. The petitioners performed their duties on the post of Assistant Registrar till the impugned order dated 10.5.2007 (Annexure P/2) was issued. Hence the petitioners have preferred these writ petitions. 26. The submission of learned counsel appearing for the petitioners was that, indisputably, on 16.11.2006, when the viva voca and interview for the post of Assistant Registrar was held, Rule 5(1) of Part IV of the Rules of 2003, which came into force w.e.f. 28.3.2006, was in existence. However, since the representation of the petitioners questioning the Rule, claiming seniority in accordance with their length of service etc. was rightly considered by the competent authority (the then Hon'ble the Chief Justice), it was appropriate to withdraw the amendment made vide notification dated 28.3.2006 and the Rule 5 (1) in Part-IV of the Rules, 2003, was maintained, as it is, as it was prevailing prior to the said notificatipn dated 28.3.2006. Accordingly, the amendment, which was made effective vide notification dated 28.3.2006, was rightly withdrawn by the competent authority. 27. Learned counsel contended that since the representation claiming seniority was considered by the competent authority, on the basis of length of service, the competent a'uthority rightly assigned the seniority to the petitioners as well as private respondents vide order 12 28. No. 173, dated 25.12.2006. The submission ofthe respondents that one conjoint/combined seniority list of two cadres (Private Secretary and Section Officers) is bad in law, is misconceived as the intention of the competent authority in issuing the seniority list dated 25.12.2006 is clear that the persons placed at serial No. 8 to 12 (belong to the feeder cadre Section Officer) would get promotion on the post of Assistant Registrar in next turn, as after withdrawal of the amendment, which was made effective vide notification dated 28.3.2006, providing ratio of 50:50, was withdrawn. It is apparent that the competent authority was conscious to keep balance in regard to proper representation of the persons of two cadres as well as about the right of the persons of other feeder cadre i.e. Section Officers, to have equal opportunity of promotion on the next higher post i.e. Assistant Registrar. Learned counsel submitted that the wisdom of the competent authority (the then Honlsle the Chief Justice) should not be doubted, as the corapetent authority had simply withdrawn the amendment, which was made vide notification dated 28.3.2006, rightly considering the representation of the petitioners in objective manner. There was no need to give an opportunity of hearing to any of the parties as the conjoint/combined seniority list of Private Secretary and Section Officer was prepared for the first time by the competent authority. It was mentioned by the competent authority (the then Hon'ble Chief Justice) that while proposing the aforesaid amendment in the Rules (creation of two pools), it was not disclosed that some of the Private Secretaries had entered in the feeder post earlier to the appointment of the Section Officers. It is well settled principle that while considering seniority of incumbents for promotion to a particular post, the incumbents who entered in the feeder post first 13 ;>f 29. 30. should get preference over those who entered in the feeder post subsequently. In that view of the matter, the amendment made on 28.03.2006 needs to be deleted and a common gradation list of all the four categories i.e. Private Secretaries, Section Officers, Librarian and Assistant Editor (ILR) is required to be prepared on the basis of their entiy into the feeder cadre. The competent authority had not added or changed anything in Rule 5(1) of Part IV of the Rules, 2003, which was made by the competent authority in the year, 2003. Thus, it cannot be said that the petitioners have been benefited on extraneous consideration. On the other hand, the respondents No. 1 and 2 have not offered any explanation or assigned any basis, as to how the seriatim of Private Secretary was put below the Section Officer in the Rules, 2003 at the time of amendment. Thus, it can be safely said that the amendment which was incorporated in the Rules, 2003 w.e.f. 28.3.2006 could have been issued with an intention to favour the feeder post of Section Officers. Learned counsel appearing for the petitioners further submitted that while amending the Rules, 2003, it was specifically stated in the note-sheet dated 28.3.2006 that although by orders of Hon'ble the ChiefJustice dated 24.12.2004, two pools, one consisting ofthe Section Officer and another consisting of Private Secretaries, Librarian and Assistant Editor (ILR) were created for making promotion to the post of Assistant Registrar, the same has not yet been incorporated by way of amendment. Therefore, Rule 5 (1) of Part IV of the Rules, 2003 is required to be suitably araended. In the instant writ petitions, on 28.1.2009 Hon'ble Court while hearing the raatter specifically directed the Registiy to produce the administrative order dated 24.12.2004. Since the order of HonTile /SF%, 14 N;-alf '^y "'SI^' ^' "VSSs^fvS^S£ .-/ Court was not complied with, the Registrar (Vigilance) was directed to examine and submit a report indicating the fact of missing of the order dated 24.12.2004. Accordingly, the report was submitted by the Registrar (Vigilance) that no