AMENDED PETITION sua‘ xya; pwzc/ HE HIGH COURT OF CHHATTISGARH AT BILASPUR w.P. s No.5J—72 2010 PETITIONER Jayant Kumar Dewangan, S/o Shri SR. Dewangan, Aged about 35 years, R/o D—3, Daulat Estate, Near Daganiya Talab, Daganiya, Raipur (CG) VERSUS ‘a‘ RESPONDENNS) 1 1. State of Chhattisgarh, Through the Principal Secretaty, Department of Public Relations, 'Mantralaya, D.K.S. Bhawan, Raipur (CG) Commissioner, Department of Public Relations, Mantralaya, D.K.S. Bhawan‘, Raipur (CG) Shri Dhananjay Rathore Father’s name not known to the petitioner Asstt. Director, Department of Public Relations, / Government of Chhattlsgarh" ‘1 Kabeerdham (CG) ’n’,‘ m— (Kmmj immvw f ‘ . “ Shri Santosh Mourya, Father’s name not known to the petitioner, Asstt. Director, Department of Public Relations, Government of Chhattisgarh, Ambikapur (CG) Shri D.S. Kushran Father’s name not known to the petitioner, Asstt. Director, Department of Public Relations, Government of Chhattisgarh, Directorate, D.K.S. Bhawan, Raipur (CG) Shri Bagwathi Kumar Singh Father’s name not known to the petitioner, Asstt. Director, Department of Public Relations, Government of Chhattisgarh, Directorate, D.K.S. Bhawan, Raipur (CG) Shri Balmukund Tamboli Father’s name not known to the petitioner, Asstt. Director, Department of Public Relations, Government of Chhattisgarh, Korba (CG) Shri Sunil Singh, Father’s name not known to the petitioner, 5'17 Asstt. Director, Department of Public Relations, CK Government of Chhattisgarh, Bilaspur (CG) 9. ‘Ku. Seema Agrawal Father’s name not known to the petitioner, Asstt. Director, Department of Public Relations, Government of Chhattisgarh, Janjgir—Champa (CG) 10. Shri Pawan Gupta, Father’s name not known to the petitioner, Asstt. Director, Department of Public Relations, Government of Chhattisgarh, Dantewada (CG) 11. Ku. Ismat Jahandani Father’s name not known to the petitioner, Asstt. Director, Department of Pliblic Relations, Government of Chhattisgarh, Mahasamund (CG) 12’ Shri Heeralal Dewangan Father’s name not known to the petitioner, Asstt. Director, Department of Public Relations, Government of Chhattisgarh, Raigarh (CG) 13. Shri Jitendra Nagesh Fathetis name not known to the petitioner, Asstt. Director, 1 /J \O Department of Public Relations, Government of Chhattisgarh, Directorate, D.K.S. Bhawan, Raipur (CG) 14. Ku. Usha Kiran Badaik Father’s name not known to the petitioner, Asstt. Director, Department of Public Relations, Government of Chhattisgarh, Directorate, D.K.S. Bhawan, Raipur (CG) 15. Smt. Anju Nayak Father’s name not known to the petitioner, Asstt. Director, Department of Public Relations, Government of Chhattisgarh, Kanker (CG) i WRIT PETITION UNDER ARTICLE 226 OF THE \_ CONSTITUTION OF INDIA HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (S) N0. 5922 of 2010 Jaant Kumar Dewangan. y PETITIONER VERSUS State of Chhattisgarh & Others. RESPONDENTS In! 1 1,“. Post for pronouncement ofjudgment & order on 20....‘3ay of April, 201 1. Sd/— Satish K. Agnihotri Judge WRIT PETITION UNDER ARTICLE. 226 OF THE CONSTITUTION OF INDIA SB: Hon’ble Shri Satish K. Agnihotri, J. Present: (1/ \‘V HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (S) N0. 5922 of 2010 Shri P.S.Koshy, Advocate for the petitioner. Shri Sushil Dubey, Governmont Advocate for the State/ respondent No. 1 and 2. Shri B.P.Sharma, Advocate for the respondent No. 3 to 15. (Delivered on .4973ay ofApril, 201 1) By this petition, the petitioner seeks a direction to hold that the action on the part of the respondents in not granting the seniority to the petitioner from the date 0f joining the services of the respondent No. 1, is bad in law, further, the action on the part of the respondents in granting seniority to the persons who have been subsequently appointed and promoted to the post of Assistant Director, ahead of the petitioner as bad in law and arbitrary, and lastly, to direct the respondent authorities to consider and decide the representation of the petitioner before convening meeting of the Departmental Promotion Committee. Further challenge is to the order dated 04.11.2010 (Annexure P/14) whereby ‘the representation dated 04.03.2010, filed by the petitioner, was rejected. The facts, in nutshell, as projected by the petitioner is that initially, the petitioner was appointed on the post of Assistant Director, Ministry‘of Home Affaiis; Government of India, Raj Bhasha I PETITIONER Jayant Kumar Dewangan. VERSUS RESPONDENTS : State of Chhattisgarh & Others. e w Vibhag, Vide order dated 07.11.1997 (Annexure P/l). After creation of the State of Chhattisgarh, the petitioner applied for the post of Assistant Director in the State of Chhattisgarh on 05.09.2001 (Annexure P/2). No objection was also issued by the ‘Central Government in this regard Vide communication dated 29.09.2003 (Annexure P/3). The petitioner was taken in service on deputatiOn on 7.2.2004 (Annexure P/4). The petitioner, thereafter, requested the respondent No. 1 for absorbing his services Vide his application dated 6.5.2004 (Annexure P/S). As a sequel, the process of absorbing the service of the petitioner started as is evident from the letter issued by the Under Secretary, Government of Chhattisgarh, Department of Public Relations; dated 28.6.2004 (Annexure P/4). The Government of India also issued a No Objection Certificate in respect of absorption of the petitioner on the post of Assistant Director, Vide communication dated 30.09.2004 (Annexure P/7). Finally, the respondent No. 1 absorbed the services of the petitioner Vide order' dated 25.06.2007 (Annexure P/8). On perusal of the seniority list of Assistant Directors, as on 01.04.2008, it was found that his name was at serial No. 27. The petitioner made a representation on 04.03.2010 (Annexure P/lO) to the Principal Secretary, Government of‘\ Chhattisgarh, Public Relations Department, for placing his name suitably on the ground that he had joined the services of respondent No. l on 19.02.2004. Thereafter, another gradation list was published on 03.09.2010 (Annexure P/11) showing the seniority as on 01.04.2009 whdifein the name of the petitioner was placed at serial No. 24. Objections were called by the respondent authorities in case, if there was any discrepancy in the seniority list, pursuant to which, the petitioner immediately filed a representation on 24.09.2010 (Annexure P/12). However, the representation dated 04.03.2010 was decided on 04.1 1.2010, which was challenged subsequently, by amendment, in this petition. Shri Koshy, learned counsel appearing for the petitioner would submit that the petitioner ought to have been granted seniority from the date he joined the services of the respondent No. 1, in ' accordance with ’ Rule 12(2)(c) of the Madhya Pradesh/Chhattisgarh Civil Services (General Conditions of Services) Rules, 1961, (for short ‘the Rules, 1961 ’). Further,vthe Govemment of India had categorically instructed all the Ministries and Departments under the Government of India, State Government and the Union Territories under the Government of India, that an employee shall be granted 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 post granted in his parent department, which ever is later, vide memo dated 27.03.2001 (Annexure P/l3.). Shri Koshy would further submit that the action on the part of the respondent authorities by not giving the petitioner seniority from the date of joining services of the respondent No. 1, is arbitrary, discriminatory and illegal, as it would affect his promotional avenues. Since the respondent No. l has initiated steps for holding a DPC for the post of Deputyr‘Director, the petitioner is holding the "7 feeder post and the petitioner would be deprived of promotion on account of non-consideration of his representations made in regard to correction of his placement in the gradation list. On the other hand, Shri Dubey, learned Government Advocate appearing for the State/respondent No. l and 2 would submit that the representation of the petitioner dated 04.03.2010 was rejected by the State Govemment on 04.11.2010 (Annexure R/1) on the ground that his seniority was decided as per the provisions of Rule 12(2)(b) of the Rules, 1961. There is no rule in regard to absorption of service in the State Government from the Central Government. The petitioner had himself preferred an application before the State Govemment for his absorption when he was posted on deputation. The respondent No. 1, treating the case of the petitioner as special case, decided to absorb his services against the post, which was for direct recruitment. Treating the case of the petitioner as direct appointment, his seniority was counted from the date of his absorption. Shri Dubey would next contend that the there is also inordinate delay on the part of the petitioner as the petitioner was very much aware of the gradation list as on 01.04.2008, but had made a representation only on 04.03.2010, whereas, it should have been made within a period of one montli. Shri Sharma, learned counsel appearing for the respondent No. 3 to 15 would also submit that this petition suffers from delay and laches and deserves to be dismissed on this count alone. .The petitioner was initially appointed for a period of one year on deputation Vide order dated’i07.02.2004 (Annexure P/4) wherein it 1V ‘ was mentioned in the appointment order itself that the term of appointment could be extended as per requirement and further, his deputation could be terminated at any point of time after giving one month’s notice or one month’s salary in lieu of notice. The petitioner could have been continued With the respondent No. 1 for a maximum of two years as he was posted on deputation and he was not appointed on regular basis, thus, he cannot claim benefit of i the provisions ofRules, 1961. Even in the order of absorption, it is clearly mentioned that the petitioner shall be treated as fresh appointee and his seniority shall also be determined from the date of absorption. The petitioner had himself made an application for appointment on deputation, and later on for absorption of his servrces therefore by no stretch of imagination the period of deputation can be counted for the purpose of granting seniority Shri Shanna would further submit that the petitioner had resigned from his original department, and thereafter his services were taken up by the respondent State. There are ’no rules permitting recruitment by absorption of any person on deputation/transfer from the Central Government to the State Government. Heard learned counsel appearing for the paities, perused the pleadings and documents appended thereto. The petitioner was appointed by Government of India, Central Hindi Training Institute, Rajbhasha Department Ministry of Home Affairs on 071 1997 on the post of Assistant Director Hindi (Typing/Stem), on temporary baSis While working With the Government of India, the petitioner made an application on R ’ui were 05.09.2001 (Annexure P/2) to consider him for appointment in the Public Relations Department, Government of Chhattisgarh, on deputation on the post of Assistant Director. The Government of India, by communication dated 29.09.2003 (Annexure P/3) issued no objection, if services of the petitioner on the post of Assistant Director, on deputation is taken, by the respondent No. 1. Thereafter, by order dated 07.02.2004 (Annexure P/4) the petitioner was appointed on the post of Assistant Director, in the office of Director, Public Relations, for a period of one year on deputation, wherein it was clearly stated that the deputation of the petitioner may be terminated at any time on one month’s notice or salary in lieu of notice and the petitioner may be repatriated to the parent department. An application was made by the petitioner on 06.05.2004 (Annexure P/S) to the respondent No. 1 to absorb his services on the post of Assistant Director. The respondent No. 1, by order dated 25.06.2007 absorbed the services of the petitioner on the post of Assistant Director, on the’conditions that the absorption would come into effect on the date of order of the absorption or if the petitioner had not resigned from the parent department, before the date of absorption, from the date resignation of the petitioner is accepted by the Government of India. It was further clearly stated that the petitioner would be entitled to seniority in the cadre w.ef the date of absorption as fresh appointment. Before the order of [absorption was passed, the Government of India granted no objection if the petitioner was absorbed in the service of the Staie Government by communication r 7 dated 10.09.2004 (Annexure P/7). Thus, the appointment of the petitioner was a fresh appointment on resignation from the service of the Government of India, wherein there was a specific condition that his seniority will be counted from the date of absorption/appointment on the ost of Assistant Director. p 8. Shri Koshy, learned counsel appearing for the petitioner relies on provisions of Rule 12(2)(c) of the Rules, 1961. It would be beneficial to quote Rule 12(2)(c)of the Rules, 1961, which reads as under: “12. Seniority. ~ The seniority of the members of a service or a distinct branch or group of posts of that service shall be determined in accordance with the following principles, viz, - (2) Seniority of Transferees. —. (a) xxx XXX XXX (b) xxx XXX XXX (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 holding already (on the date or 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 the post on deputation 0r 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. Explanation. — The fixation of seniority of a transferee in accordance with the above rule will not however affect any regular promotions ‘ to the next higher grade made prior to the date of such absorption. In other words it will be operative only ingfllling up of vacancies in ; n, higher grade 'taking place after such absorption.” Rule 12 of the Rules, 1961 deals with the seniority. Sub-rule (2) of Rule 12 of the Rules, 1961 deals with seniority on transfer. Clause (c) of sub—rule (2) of rule 12 of the Rules, 1961 deals with a case of person who is initially taken on deputation and absorbed later. It is provided that in that case, the seniority in the grade will normally he counted from the date of absorption. If an employee has been holding already the same or equivalent grade in his parent department, such regular service in the grade shall also be'taken into account in fixing his seniority, subj ect to the condition that he will be given seniority from the date he has been holding the post n deputation or the date from which he has been appointed on a regular basis to the same or equivalent grade in his present department. The said provision is applicable to those persons who are initially taken on deputation and absorbed later’in accordance with the relevant recruitment rules which provides for transfer on deputation/transfer. This provision is not applicable to the facts of ‘ the case as the appointment of the petitioner is not in accordance with the rules. ll. The M.P./C.G. Public Relations (Gazetted Service) Recruitment Rules, 1966 (for short ‘the Rules, 1966 ’) provides for appointment on the post of Assistant Director also as the post of Assistant Director, Public Relations is a class II post. Rule 6 of the Rules, 1966 provides for methodtof recruitment. There are three methods 10. {I ‘ o w of recruitment to the service, firstly, by direct recruitment by selection, secondly, by promotion of members of the service, and thirdly, by temporary transfer of person from other service. Sub- rule (4) of Rule 6 ofthe Rules, 1966 provides that if in the opinion of the Government the exigencies of the service so require, the Government may, after concurrence of the General Administration Department, adopt such methods ofrecruitment to the service other than those specified in the said rule, as it may by order issued in this behalf, prescribe. Schedule II under Rule 6 of the Rules, 1966 i.e. method of recruitment provides for 50% appointment by direct recruitment and 50% by way of promotion. There is no method of recruitment by temporary transfer of a person from other service under rule 6(l)(c) of the Rules, 1966. The recruitment by temporary transfer is applicable in case of Director, Public Relations, Accounts Officer, but not in the case of Assistant Director. Thus, in case of recruitment to the case of Assistant Director, there are only two methods, firstly, the direct recruitment and secondly, by promotions of the members of the service. The appointment of the petitioner was neither by way of direct recruitment nor by way of promotion. The instant appointment was not made under sub-rule (4) of Rule 6 of the Rules, 1966 as nothing has been produced to indicate that appointment 0f the petitioner was done in the exigencies of services/so required. Thus, the appointment of the petitioner cannot be held as appointment in accordance with the rules, and as such, provisions of Rule l2(2)(c) of the Rules, 1961 are not applicable to the facts of the case. - 12. It is a trite law that, if the appointment of a candidate is not governed by service conditions, the same shall be governed by the terms of appointment. In the appointment order of the petitioner, it was clearly stated that his seniority will be counted from the date of absorption treating him as a fresh recruitment in the cadre. It cannot also be held that it was continuation of past service, as the first part of the order makes the order of absorption effective, if he had resigned from service of the Government of India, from the date of absorption or from the date of resignation, thereafter. Thus, the impugned order dated 14.1l.2010 (Annexure P/14) does not suffer from any illegality, irregularity warranting interference. 13. In the case on hand, the petitioner has not questioned the terms and conditions of the appointment, at the time of appointment. In such a situation, the Supreme Court, in M.P. Textile Corporation Ltd. 'v. Mahendra & Othersl , held as under: “5 We think that the respondent workmen who have accepted their employment on a contract, the terms of which specified the pay scale ofeach of these workmen, cannot claim the pay scale of the appellant Corporation when their services were retrenched by Indore Textile, Ujjain. In our opinion, since the respondents accepted the pay scale and did not challenge the same for more than a decade, it is not open for them t0 demand the pay scale that may be available to similarly situated workmen in the appellant Corporation. To that extent we are ofthe opinion that the Labour Court has erred.” Reliance of the learned counsel for the petitioners on Sub Inspector Rooplal & Apother v. Lt. Governor through Chief l4. l (2005) 10 scc 67s t, t i " ,;,1 ll'CV Secretary, Delhi & OthersZ, Arun Kumar & Others V. Union of India & Others3, Director, Central Bureau of Investigation & Another v. D.P.Singh4 , are not relevant to the facts of the case as the petitioner was absorbed in the post as fresh appointment after tendering resignation in the parent department. The case of K.Anjaiah & Others v. K. Chandraiah & Otherss and Devdutta & Others v. State of M.P. & Others6, are also not relevant to the facts of the case as this is not a case Where the petitioner is claiming seniority on the basis of his service in the Government of India but the seniority from the date he was holding the post of Assistant Director on deputation/transfer. The provisions of law, as aforestated clearly do not provide for any recruitment/appointment on the basis of absorption on deputation/transfer. Thus, the petitioner is not entitled to any benefit as laid down by the Hon’ble Supreme Court in the above stated decisions. The facts of the instant case are entirely different and has no similarity and the principle of law laid down also, is not applicable to the facts of the case. For the reasons stated hereinabove, the petition is devoid of merit and is accordingly dismissed. There shall be no order asto costs. Satish K. Agnihodi 15. l6. l7. 1' Sci/- Judge 2 (2000) 1 scc 6'44 3 (2007) 5 scc 580 4(2010) 1 scc 647 pi 5 (1998) 3 scc 218 6 1991 Supp (2) scc 553 i