lf*l ^w -—/ C^f •ero IN THE HIGH COURT OF JUDICATUREAT BILASPUR W.P.(S)No.63|9 / 2006 Petitioner : , ^ Rajendra Prasad Tripathi, s/o Shri K.P. Tripathi, aged about 39 years, Assistant Grade II, Mantralaya, Water Resources Department, Government of Chhattisgarh, Raipur, [C.G.] Versus -••"^y .C^M^ ^%^--"" ...-••^.•^••"' ^'y' -s"-?' .«°*' ss'- Respondents 1) State of Chhattisgarh through the Secretary General Administration Department, Mantralay, DKS Bhawan Raipur, [C.G.] ^ WRIT PETITION UNDER ARTICLE 226/&? OF THE CONSTITUTION OF INDIA "11 4-^ HiGH COURT OF CHHATTISGARH AT BILASPUR SINQLE BENCH : HON'BLE MR. SATiSH K. AGNIHQTR!. J, WRIT PETITiON (S.) N0.6919 OF 2006 Rajendra Prasad Tripathi versus State of Chhattisgarh V-,..'" Postfor S7-2-2007 Sd/- Satish K. Agnihotri Judge HIGHCOURTOF CHHATTISGARH AT BILASPUR SiNGLE BENCH ^ HQN'BLE MR, SATISH K, AQNIHOTRi. J. ^ Petitioner ResDondent WRtTPETmOi^(A.) N0.6919_QF_200l6 Rajendra Prasad Tripathi veraus State of Chhattisgarh p -. P.K.Bhaduri, counsel for the petitioner. -. Satish Gupta, Deputy Government Advocate for ORDER (Passed on 3~1 Day of Februarv, 2007) i» The petitioner was initially appointed as Lower Division Clerk and Typist on ad hoc basis at fc<ed salary of Rs.870/- per month in the office of the respondent vide order dated 10-8-1988 (P-1). Thereafter, an order dated 19-4-1989 (P-3) was passed, wherein it appears that the nature of the order was changed from acf hoc appointment to temporary appointment on the same fixed pay, i.e., Rs.870/- per month with ailowances. In ttie order dated 19-4-1989 (P- 3), the appointment of ths petltioner on a reguiar pay of Rs.870/- psr month on temoorary basis was subjectto certain conditions. One of the conditions was that during hss probation period, the emptoyee has to pass Shorthand and Typing Test from Madhya Pradesh Shorttiand and Typing Examination Councii and departmental Hindi Shorthand Test ^- ^ through She Secretariat Examination. The employee woutd be entitied to iowest pay till he passes ttie abovs-stated examinations. It was next provided that the employee would be confirmed on compietion of two ysars' training from the seeond day of passlng the above-steted examinations. !t was aiso provsded that in Ihe event, the empioyee faiis to complste his probation within two years, his services can be terminated. The reSevant terms and conditions of the appointmsnt are as under:- "1 / '3^ Piqf^-! ^t ffl^? ^ ^ 'Tf 'aft 3:re& •ar R?T ]<f1yi'!<d'1 f!a1T 'f.S^O'l gft +lRjc!|<'!'t! 3?f fl»il<n;j ffe^xft '1ri?)<s!Ti 3^ 'U'?iyi^ 'dCT?)"? 37?W ^ft i I:ifT Wfe 4 ^a ? t ^w Trtos »j(rf)uf ?f^f ^?WT (ff 7R5 ^T^ ^P^ •¥tHft Rl?1]''?' '<?? ^?l^t?? ^ TTI? ^ ar1'r141M ^T P14^1^1t1 ^FT ci^?? ^'f 1T? ftcT^ XT^ WT '"(^ P'l?)'<1 | 2/ ~c^ t P)E[fRr? WfEt ^ 'd4^tW ffW? "??' fft'-^t 'iridti'l 'a?t 'irftg?ro '^wM 'a?? ^f rjt ''3^ ^HI Vjrrftuf a??A ^ -g^ J^Ff •^ f^BT iBOft R|!tl» •q'? Hsjriw*' ^ Tr? 1R '?t ^ 3?1' Irf^ti5'T 'w? p|<l<m fS?ST yff^IT ! 3/ ~sf^ •ffff ijuJdrf 'tT^telTO piB|fR^ yfs^S. 4 '^rxfr TI^ v^Ht rft •Sflqft ^g^ plijf&ri. q?t f^-TW ^ ^ ^ UBf •g^ W? frff fS?tft gt'ju'cjiR* 3}i^?r ^ WTTCT ?? 2. According to the petitioner, the pettioner has passed Hindi Typlng Examination conducted by the Shorthand and Typing ExaminaSion Counci!, Government of Madhya Pradesh in the year 1994 vide certificate dated 28-10-1 W4 (P-4), it appears that after about five 1 ,f"E"el; W^^^J' c^ years. The petitioner passed departmental T^iing Examinafaon aiso in the year 1997. Thereafter, the petitioner was granted regular pay-scals of Rs.950-1530, vide order dated 18-12-1997 (P-5) with effect from 4- 12-1997. According to the learned counse! appearing for the petitioner, the petitioner compieted his probafion on 15-7-19^. On compleUng the period of probalion by the petitioner, a certjfieate dated 30-9-2000 (P-8) was issued to the effect that as soon as vacant permanent post wil be avajlable, She services of the petitioner wi!! be confirmed. 3. The peffioner approachad this Court by a writ petition, belng Writ Petition No.3196 of 2006, for similar reiief as sought for in this petition. Thls Court, vide order datsd 21-7-2006 (P-10), without expressing any opinion on the merit, directed the petitioner to make a detaiied representation to the concerned authorifies and the concerned auttiorities were accordingiy dlrected to decide ths said rspresentatton within a period of three months from the date of receipt of ttie representation in accordance wsft iaw. The State Government, vide ietter dated 26-10-2006 (P-12), decided the rspresentalaon of the petittoner and rejected frie same aftsr g'ving detailed reasons. !n the said decision, it was cieariy stated that ths petitioner has passed Hindi Typmg Examination through the Councii on 17-7-1994 and Hindi Typing by Departmentat Examination in December, 1997. Accordingiy, the petitioner was granted regular pay-scale with effect from 4-12-1997. Slnce the petitioner could not pass the required test within the probation period of two years, the petitioner was granted seniority and benefit of pay-scale with effect from 4-12-1 %7 after he passed Hindi Typing Test in the Departmental Examination, '{097. Accordingly, it was held that the demand ofthe petifioner to grant seniority with effect from 9-5-1988 / is without any basis. The letter dated 26-10-2006 (P-12), rejecting the representation of the petitioner was further based on Rule 6(2) of the Chhattisgarh Public Services (Promotion) Rules, 2003 (henceforth 'the Rules, 2003'), which reads as under:- '<-')< "6. Promotion on the basis of seniority subject to fitness. - (1) xxx xxx xxx (2) The names of only such public servant shall be considered for promoUon, who have completed the prescribed qualifysng servlce in their feeder cadre/part of the service/pay scale of post according to the Recruitment Rules. It is, however, not necessary to consider a!l the names of public servant who have completed the prescribed minimum length of sen/ice but only such number of cases of public servant shall be considered according to the seniority, wMch sha!i be sufficient to cover the number of exlting and anticipated vacancies due to retirement during the year under each category. tn addition to this, with a view of inciusion, in the select tist, the names of two public servants or 25 pereent ofthe number of the public servants included in select iist whichever is more, the names of the required number of the public servants shail be considered for each category to fiil up the unforeseen vacancies occurring during the course of the aforesaid period. Explanation. - Manner of computation for etigibility for promotion. - Period of quatifying service on 1 * January of ttie re!evant year in which Deoartmental Promotion Committee is convened shatl be counted from the calendar year in which the public servant has Joined the feeding "'-•-SvSSS'S:^-', 1 ~;: cadre/part of the service/pay scale of the post and notfrom the date ofjoining of Ifte cadre/part ofthe sen/ice/pay scaie of post." •^ 4. Reiiance of learnec! counsel appearing for the petitioner on the Secretariat Service Recruitment Rutes.1976 is not applicable to the facts of the present case, as there is no provision for determination of senlority Jn the said ruies. The iearned counsel has not pointed out any rules which govern fixation of seniority of the emptoyees of e Secretariat. Thus, fixalion of the seniority of the petitioner shai! be govemed bv the terms and conditions of the appointment. ^M 5. On perusal of the appointment order dated 19-4-19TO (P- 3), it is ctear that the petitioner would be entitled to regular pay-scale and allowances after passing the requlred test of Hindi T^ing (supra). Thus, grant of regular pay-scale after passfng the test with effect from 4-12-1997 is just and proper. The Govemment, while rejecting the representation ofthe petitioner vide letter dated 26-10-2006 (P-12), has considered ali the facts of fte case as well as law applicable to the facls of the case. There is no infirmity in the said decision. 6. It is well settled that if an employee passes required test within the probation period, the seniority has to be reckoned from the date of initial appointment. Otherwise, the seniority should be reckoned from the date of confirmation. In the facts of the present case, the petitioner couid not pass the required test within the prescrtbed period of two years of probation from the date of his appointment, i.e., 19-4- 1989. Thus, the petitioner cannot claim seniority from the date of initial appointment. 7. Kumar under:- The Hon'bte Supreme Court, in the case of Mahesh vs. Dlrector Genera! of PofSce and anothes9, held as -5 Hindi test is a condition for promotion and since the appeiiant had passed the test on 20-9-1981, he was gwen promotion and seniority was fixed with effect from the passing of the said test. Under these cireumstences, we do not find any illegality in the order passed by the tribunal warranting interference." 8. The Hon'ble Supreme Court, in the case of H.P. ys. Stete ofM.P. and offiers^, held as under:- J. "8. ............... In wew of the admitted position that he did not pass the test, the appointing authority considered that his seniority would be counted w.e.f. the date of his passing the Sest. Rule 12(a)(i9 cleariy empowers the appointing authority to assign, in these circumstances, the seniority in lower levei than the one assigned by the Pubiic Senrice Commission. We do not find any iitegatity committed by the authorities in giving seniority from the date of his passing ths test." 9. The above view has been later on approved by Supreme Court in the case of State ofM.P. vs. Ramldnkar Gupta and ^ offiers3, and also in the case of Om Prakash Shrwastava ys. Stata of M.P. and anaths^. 10. For the reasons stated hereinabove, the writ petition is dismissed. No order as to coste. Sd/- Satish K. Agnihotri Judge ^7-2-2007 1 (1886) 2 SCC 70 2 (1896)11SCC173 3 (2000)10SCC77 4 (2005) 11SCC 488 Sopat