IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR W.P.(S)NO. ^115 /2007 \^ ^Sss PETIT10NER ^fe J€S^> ..•^'.^'I--"" .••''';,..^''<s ^.••"'" .^^'\^-" ^y <"<"' ^••\^~.> '>'•"' ^- RESPONDENTCS) I^S^^ ^ 1 ^'s.vl\,^' !'Ssf^?'rfO' [anish Hande s/o Shri N.A. Hande aged 38 years, r/o F-1/1, Meena Bazar, Mungeli Naka, Bilaspur (CG). VERSUS High Court of Chhattisgarh Through the Registrar General, High Court ofChhattisgarh, Bilaspur (CG). Registrar General, High Chhattisgarh, Bilaspur (CG). Court of • c^^*:'^s?u PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA FOR ISSUANCE OF APPROPR1ATE WRIT/WRITS, DIRECTION/DIRECTIONS i //^ \ \ '<'isa&s-"'| .? ^xy ^- •^ HIGH CQURTQF CHHATTISGARH : BILASPUR Writ Petition (S) No. 3115 of 2007 Petitioner Manish Hande Versus Respondents High Court of Chhattisgarh &, another AND Writ Petition (Sl No. 3114 of 2007 Petitioner Brajesh Mishra Versus Respondents High Court of Chhattisgarh Ss, others WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA DB: HonTsle Shri I. M. Quddusi 85 Hon'ble N. K. Agarwal, JJ. Shri P. S. Koshy, Advocate for the petitioners. Shri Sanjay K. Agarwal, Advocate for the respondents/High Court of Chhattisgarh. Shri Abhishek Sinha, Advocate for the private respondent No.3 in W.P.(S) No. 3114/2007. O RDER (Passed on this -^9 day of September, 2011) Per I. M. Quddusi, J. 1. The petitioner (Shri Manish Hande) has filed W.P.(S) No. 3115/2007 challenging the order dated 10.5.2007 (Annexure , P/1) whereby his order of promotion to the post of Additional Registrar vide order No. 179/11-14-1/2006 dated 25.12.2006, was recalled and the petitioner (Shri Brajesh Mishra) has filed W.P.(S) No. 3114/2007 challenging the .order dated 10.5.2007 (Annexure P/ 1) whereby his order of promotion to the post of Budget Officer vide order No. 180/11-14-1/2006 dated 25.12.2006, was recalled. 2. Brief facts, in nutshell, necessary for disposal of the instant writ petition, are that both the petitioners were initially appointed as Personal Assistant in the erstwhile High Court of Madhya Pradesh on 2.11.1989. Subsequently, they were promoted to the post of ./?•'• '<a;-K:^-~'"::""%i Vs .0»^ (- Private Secretary on 12.11.1994. 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 6.1.2004 (Annexure P/2) the petitioners were confirmed on the post of Private Secretaiy w.e.f. 11.11.1996. By order dated 24.12.2004 (Annexure P/3) the petitioners were promoted on the post of Assistant Registrar. Thereafter, by order dated 30.10.2005 and 20.2.2006 (Annexure P/5), respectively, the petitioners were promoted on the post of Deputy Registrar. 3. By call letters dated 2.12.2006 and 11.12.2006 (Annexure P/8) the petitioners were called for viva voce and interview for promotion to the post of Budget Officer and Additional Registrar (M), which was to be held on 11.12.2006. As a result of the viva voce and interview, by order dated 25.12.2006(Annexure P/9) the petitioners were appointed by promotion to the post of Additional Registrar (M) and Budget Officer, respectively, which was recalled by the impugned order dated 10.5.2007 (Annexure P/l). Hence the petitioners have filed the instant writ petitions. 4. Learned counsel appearing for the petitioners vehemently argued that the very basis of passing of the impugned order is not sustainable. For the sake of convenience in making his submissions, learned counsel divided the impugned order in three parts, i.e. : (i) The interview for the post of Additional Registrar/Budget Officer were taken on 11.12.2006 on the basis of the seniority list issued vide order No. 135/11-14-1/2004 dated 24.12.2004 ofDeputy Registrars; \.^ ..^"^ €•'•• ;-,- (ii) Whereas after revising the seniority of the Deputy Registrars, vide order No. 174/11-14-1/2006 dated 25.12.2006, the promotion orders to the post of Additional Registrar/Budget Officer were passed, based on the revised seniority list issued vide Order No. 175/11-14-1/2006 dated 25.12.2006. (iii) After consideration of the representation of the Officer of the Registry, Hon'ble the Chief Justice has been pleased to recall the orders with immediate effect. and submitted that there was no seniority list of Deputy Registrars, issued vide order dated 24.12.2004. On 24.12.2004 the promotion order was issued for the post of Assistant Registrar and not the Deputy Registrar, on the basis of this so-called seniority list, the interview could not have been made for the post of Additional Registrar (M) or Budget Officer and this so-called seniority list can only be the basis for promotion to the post of Deputy Registrar. He further submitted that in this so-called seniority list the name of four persons were mentioned, whereas the interview of five available Deputy Registrars was held. The promotion order dated 24.12.2004 was issued by creating pools i.e. technical and non-technical cadre and not by taking interview or by way of any assessment of merit. He further submitted that during the course of pendency of this matter in W.P.(S) No. 3328/2007 (Gopal Singh SE others Vs. High Court of Chhattisgarh) on 28.2.2009 the respondents had submitted that the original file No. 11-14-1/2004 (Part-III), regardin^ promotion of the Assistant Registrar is not traceable. Therefore, the Registrar (Vigilance) was directed to examine and submit a report. That document was never filed since then. Thus, the respondents do not have the original &le on the basis of which the pools were \^ 6. created and promotion order of Assistant Registrar dated 24.12.2004 was issued. He further ^ submitted that the seniority of the Deputy Registrars was not revised as there was no previous seniority list and no revised seniority list was issued on 25.12.2006. He also submitted that the officer (Shri Diwakar Prasad Singh), on whose representation the whole exercise was undertaken, was considerably junior to the petitioners and he did not raise any finger in regard to the entitlement of promotion of Shri Manish Hande on the post ofAdditional Registrar (M), over the concerned officer. Learned counsel appearing for the petitioners submitted that indisputably, the petitioners have been senior most on the basis of length of service in the feeder cadre (Private Secretaiy) to the post of Assistant Registrar as well as on the post of Deputy Registrar. The criteria for promotion to the post of Additional Registrar (M) / Budget Officer are merit-cum-seniority. The petitioners stand first and second, respectively, on both counts. Learned counsel next submitted that the feeder cadres for promotion to the post of Assistant Registrar were Private Secretary and Section Officer. At the time of promotion to the post of Assistant Registrar the petitioners were senior as they were confirnied on the post of Private Secretary w.e.f. 11.11.1996 and the other persons (Shri S. K. Rao and Shri Diwakar Prasad Singh, Section Officers) were promoted on the post of Section Officer, itself in the year 2001. The petitioners were surprised to know that in spite of their seniority in one of the feeder cadres, their names were placed at serial No.2 & 4, respectively, in the promotion order dated 24.12.2004 (Annexure P/3) on the post of Assistant Registrar. Accordingly, the petitioners made a representation on 3.1.2005 •\^ (Annexure P/4) for clarification of position of their seniority on the post of Assistant Registrar. 7. Without clarification of the position of seniority- of the Assistant Registrars, by order dated 30.10.2005 and 20.2.2006 (Annexure P/5), respectively, the petitioners were promoted to the next higher post of Deputy Registrar. In this promotion order again the name of the petitioners were placed at serial No.2 and name of other officers (Shri S. K. Rao and Shri Diwakar Prasad Singh) were placed at serial No.l. Feeling aggrieved by the seriatim mentioned in the promotion order, the petitioners again made a representation on 20.4.2006 for considering their earlier representation dated 3.1.2005, referring to the Rules, 2003 wherein the post of Private Secretary is described above the post of Section Officer. The submission of learned counsel appearing for the petitioners was that as the representation of the petitioners for clarification of the position of seniority on the post of Assistant Registrar was pending, considering that representation vide order No. 174 dated 25.12.2006 the seniority of Assistant Registrars was fixed, wherein the petitioners were rightly given seniority at serial No.l 8s 2, respectively. Likewise, vide order No. 175 dated 25.12.2006 the position of seniority of the Deputy Registrars was fixed wherein, the petitioners were also placed at serial No.l 85 2, respectively. 8. The main contention of petitioner Shri Manish Hande is that even if Shri S. K. Rao, Deputy Registrar was to have been considered as senior to the petitioner on the post of Deputy Registrar, his case could have been considered for the post of Budget OfHcer and the petitioner's (Shri Manish Hande) case could have been considered for the post of Additional Registrar (M) as per the call letters for interview issued on 2.12.2006 and 11.12.2006, respectively. It was \ further contended on behalf of petitioner Shri Manish Hande that said Shri S. K. Rao has never moved any representation objectinj the order Nos. 174 (assigning seniority on the post of Assistant Registrar), 175 (Assigning seniority on the post of Deputy Registrar) and 179 (granting promotion to the petitioner on the post of Additional Registrar (M) dated 25.12.2006. The officer (Shri Diwakar Prasad Singh), on whose representation the entire exercise was undertaken, had himself mentioned in paragraph - 5 of his representation that if Shri Manish Hande is promoted, he would have no grievance. The main contention of petitioner Shri Brajesh Mishra is that the officer (Shri Diwakar Prasad Singh), on whose representation the entire exercise was undertaken, is junior to the petitioner and the selection of the petitioner on the post of Budget Officer was made considering his 'merit and 'seniority'. Thus, there was no basis for the respondents to scrutinize the ability and suitability of the candidature of the petitioners, which was well considered by the competent authority (Hon'ble the then Chief Justice) and to issue the impugned order of recalling of the promotion of the petitioners. Even copy of the representation was not supplied to the petitioners, calling their explanation/objection. 9. Learned counsel next submitted that pursuant to the order dated 26.4.2007, on the representation made by Shri Diwakar Prasad Singh, the Committee of two Hon'ble Judges submitted its report, which was accepted by the then Hon'ble the Chief Justice on 7.5.2007. He vehemently argued that the Committee has exceeded its jurisdiction. The Committee has incorrectly opined that the serial of officers mentioned in the order dated 24th December, 2004 (Annexure P/3) regarding promotion to the post of Assistant Registrars was in accordance with the seniority. In fact no seniority fff f': \ 1 j v^'f'r'^3s!> t! '^^^.^ V-:533,ZSSS-S' \^ ^' was fixed while issuing the order of promotion of Assistant Registrars dated 24A December, 2004. 10. The services of the petitioners are governed by the Chhattisgarh High Court Establishment (Appointment and Conditions of Service) Rules, 2003 (for short 'the Rules, 20031. The source and method of appointment/promotion to the post of Additional Registrar (Ministerial) is "By promotion from amongst Deputy Registrars and Accounts Officer of the establishment strictly on merit-cum- seniority basis or by any suitable person , and for Budget Officer "By promotion froin amongst Deputy Registrars and Accounts Officer of the establishment strictly on merit-cum-seniority basis, or by deputation from the Office of Accountant General or Directorate of Treasuries", whereas the Committee has recommended that the post of Additional Registrar (M) must be filled up on the basis of the seniority, which was fixed in the year 2004 and the post of Budget Officer must be filled up by an officer, strictly on seniority basis, who has sufficient experience in the field of accounts and budget. The Committee, doubting the wisdom of the then Hon'ble Chief Justice has also exceeded in its jurisdiction in discussing that if all the senior posts are occupied by technical cadre, who are not conversant with the practice and procedure of the Court, the same is bound to affect the functioning of the Registry and in turn functioning of the Court. 11. It was submitted on behalf of petitioner Shri Manish Hande that the Committee has unnecessarily made a recommendation that one post of Additional Registrar from Ministerial Staff be reserved for a person who has experience and is having sufficient knowledge of Library Science. \ ' ~ ,'/' ,.-• -.^ \, f/ i'4 - _ Y ",i 'f-''^-^"- ""x :: "^ ''^•-'•cy '•^... \i ^''y ^ \^y 12. It was submitted on behalf of petitioner Shri Brajesh Mishra that the Comniittee has virtually cast & stigma on the origin of the petitioner i.e. stenography, while mentioning that filling the post of Budget Officer from the cadre of Private Secretary is detrimental for the reason that if an officer of the Stenographic line is posted on this post, he will not be able to discharge his duty effectively, , efficiently and he will remain idle. The Comraittee was of the opinion that the post of Budget Officer must be filed up by a person, who has sufficient knowledge in the raatter of accounts. The petitioner has completed his graduation in B.Com. The studies of B.Com are related to accounts. The respondents have also taken work from the petitioner in various sections. During the working as Budget Officer for about 4'/2 raonths, the respondents did not find any fault in the efficiency and ability of the petitioner in discharge of his duties. The petitioner had dealt with various files of accounts section veiy efficiently. 13. Thus, the considerations offacts mentioned in the representation of the officer Shri Diwakar Prasad Singh by the Committee as well as the recommendations made by the Committee are contrary to the ,. sound principles of law and in contravention of the Rules, 2003. 14. Learned counsel submitted that the officer (Shri Diwakar Prasad Singh), whose representation was considered, is very junior to the petitioner. Said officer started his career as Translator in the year 1995 in the pay scale of Rs. 4500/-, whereas the petitioners got promotion on the post of Private Secretary in the year 1994 in the pay scale ofRs. 6500/-. The petitioners have 17 years experience of working in the Courts. They have been dealing with the judicial files efficiently. Even if, the ratio of 50:50 amongst technical and non- technical cadre is only applied in the case of proraotion to the post of Assistant Registrar. Thus, the concern shown by the Committee about ratio in respect of promotion to the post of Additional Registrar (M) and Budget Officer is not sustainable. 15. Learned counsel next submitted that the petitioners were promoted on the posts of Additional Registrar (M) and Budget Officer vide orders dated 25.12.2006 with immediate effect. The petitioners performed their duties on the said posts till 10.5.2007, when the impugned order was passed. The report of the Committee was accepted by Hon'ble the Chief Justice on 7.5.2007 with a direction that the Registiy to initiate appropriate proceedings in accordance with law and treat the matter as urgent. Before passing the impugned order neither a show cause notice was issued nor an opportunity of hearing was afforded to the petitioners. It is apparent that just after acceptance of the report of the Committee the order of recalling of promotion orders was issued. By getting promotion and performing duties on the post of Additional Registrar (M)/Budget Officer for a considerable period of about 4l/a months, a right was created in favour of the petitioners which could not have been taken away without issuing even a show cause notice and ., granting an opportunity to the petitioners to put forward their case. By getting promotion and performing duties for a period of about 4Va months, the petitioners got higher status and entitlement of facilities attached to the posts. There was no fault on the part of the petitioners that they have got promotion by doing any wrong. The candidature of the petitioners was well considered by the competent authority along with all the five available Deputy Registrars and on the basis of merit as well as seniority, the petitioners were found suitable for promotion on the post of Additional Registrar (M) and Budget Officer, respectively. / ^^•-2-» -^ S ^-^^"s^^ a 'v^y ~tjy 10 ^^ '%. ^' \ ^l^'- ^SgS^^ .} 16. It is not a case of the respondents that the whole procedure adopted by the competent authority on 11.12.2006 while conducting the interview and on 25.12.2006 while issuing the promotion order was not in accordance with law and the rules governing service condition of the officers of the establishment of the High Court of Chhattisgarh because on 11.12.2006 the competent authority had also interviewed for the post of Accounts Officer and one of the Assistant Registrar was also given promotion vide order dated 25.12.2006 on the post of Accounts Officer on the basis of merit-cum-seniority. It is also not the case of the respondents that the case of Shri S. K. Rao and Shri Diwakar Prasad Singh were not considered for promotion to the post of Additional Registrar (M) and Budget Officer. 17. Learned counsel also submitted that the respondents are right in saying that it is for the competent authority to take decision regarding suitability of an officer for promotion and thaf is why the then Hon'ble the Chief Justice found the petitioners as suitable to be promoted on the posts of Additional Registrar (M)/Budget Officer. The respondents are also right in saying that it is for the competent authority to consider the cases of all eligible officers on correct seniority position as seniority is relevant in cases of promotion based on merit-cum-seniority. 18. Learned counsel appearing for the petitioners referring to the document dated 25.12.2006 { Annexure R-3/2) submitted that the competent authority had rightly given promotion to the petitioners on the posts of Additional Registrar (M) and Budget Officer, respectively, considering their merit as well as seniority. The competent authority has mentioned that the petitioners have put in 17 years of service, out ofwhich they worked as Private Secretary to ^-' /"'^. '^\ */''-'-'"<> ';' 11 \^^ HonTsle Judge of the High Court for ten years. They are senior most amongst the Deputy Registrars. Having considered their seryice record and experience the then Hon'ble the Chief Justice found Shri Manish Hande suitable for promotion to the post of Additional Registrar and Shri Brajesh Mishra for the post of Budget Officer. Learned counsel also submitted that the competent authority had considered and found Shri Manish Hande at the first position in respect of 'merit' as well as in 'seniority' and Shri Brajesh Mishra at the first position in respect of 'merit' and at the second position in respect of 'seniority. 19. Learned counsel appearing for the petitioner next submitted that the submission of the respondents is misplaced that since the petitioners were promoted on the post of Additional Registrar (Mj/Budget Officer on officiating basis for a period of two years, they have no substantial right to hold the respective posts. In this regard he referred to Rule 10 (1) (b) of Part - VIII of the Rules, 2003 which provides that "A person appointed to a post by promotion shall, from the date on which he joins his duties, be appointed in officiating capacity for & period of two years" and submitted that , according to the Rules, 2003 eveiy officer and employee appointed to a post by promotion shall only be appointed in officiating capacity. Thus, the petitioners have substantial right to the promoted posts. 20. Learned counsel for the petitioners lastly subinitted that the sole ground raised by the respondents in their return for recalling the promodon order of the petitioners was firstly the representation by Shri Diwakar Prasad Singh and secondly the report of the Committee constituted on the representation of Shri Diwakar 12 v ^ •»1 Prasad Singh wherein the seniority has been questioned and both these grounds are not available to the respondents. 21. Learned counsel appearing for the petitioners, while referring to the citations in Ram Ujare Vs. Union of India1, Shekhar Ghosh Vs, Union of India2, H. L. Trehan Vs. UOI3 and Prakash Ratan Sinha Vs. State of Bihar4 submitted that Hon'ble Supreme Court in a catena of decisions has held that not providing opportunity of hearing amounts to suffering of civil consequences and a post decisional hearing was not called for as the disciplinaiy authority had already tnade up its mind before giving an opportunity of hearing and that is why they did not give monetaiy benefits to the petitioners for 4'/2 months that were attached to the posts of Additional Registrar (M) and Budget Officer. 22. Learned counsel further submitted that the concerned officer had submitted the representation claiming recall of proraotion order on the ground of seniority over one of the Deputy Registrars namely petitioner Shri Brajesh Mishra, who was promoted on the post of Budget Officer. The well settled law in the cases of merit-cum- seniorily is that it lays greater emphasis on merit and ability. Nobody can claim promotion as a matter of right by virtue of seniority. To substantiate his submission learned counsel relied on decisions in B.V.Sivaiah Vs. K. Addanki Babu5, Bhagwan Das Vs. Dewas Shajapur Kshetriya Bank6 and Union of India (UOI) Vs. Mohan Lal Capoor and Ors7. ' {(1999) 1 SCC 685 }, 2 {(2007) 1 SCC331 j 3 (1989 1 SCC 764} 4 {(2009) 14 SCC 690; 5{ (1998)63cc 720} ' {AIR 2007 SC 94} 7 (AIR 1974 SC 87} 13 \^ r- 23. Learned counsel submitted that the respondents are wrong in saying that the present is not a .case of imposition of penalty, whereas the impact of the impugned order is that the petitioners have been reduced to one rank. In Rooplal Nayak Vs. State of C.G.8 it has been held that reduction of rank is a major penalty. 24. Learned counsel also submitted that the respondents cannot take the advantage of their own wrong of not providing opportunity of hearing to Shri S. K. Rao and Shri Diwakar Prasad Singh, as the representation of the petitioners for fixing the seniority on the post of Assistant Registrar remained pending for about two years. During the interview on the post of Additional Registrar(M)/Budget Officer, the petitioners also prayed before the competent authority (HonTile the then Chief Justice) for deciding the seniority before holding the interview and accordingly the petitioners were assured that before passing the promotion order their representation would be decided. It is well settled principle that a wrong decision by the authority does not give a right to enforce the wrong order and claim parity or equality. Two wrongs can never make a right. In this regard learned counsel placed reliance on various decisions of , Hon'ble Apex Court viz. State of Haryana Vs. Ram Kumar Mann9, Union of India Vs. International Trading Company10 and National Institute of Technology, Janashedpur Vs. Chandra Shekhar Chaudhary11. 25. Relying on a decision in Central Council of Research in Ayurved and Siddha Vs. Dr. K. Shantha Kumari12 learned counsel for the petitioners submitted that a candidate cannot challenge the select 8 {(2006) 4 MPHT 99 ! 9 {(1997)38cc 321; 10 ! (2003) 5 SCC 437; " {(2007) 1 SCC 93 j 121(2001) 5 SCC60} X ^. I. 14 \T\ list on the ground that his juniors were placed above without following seniority-cum-fitness. 26. Learned counsel for the petitioners placing reliance on a decision in K. Sainantaray Vs. National Insurance Co. Ltd.13 submitted that no one has a right to be promoted but only a right to be considered for promotin. Since the case of all the five available Deputy Registrars was considered by the then Hon'ble the Chief Justice and His Lordship had found the petitioners as suitable for promotion on the posts of Additional Registrar (M)/Budget Officer, no grievance survives for the other Deputy Registrars who could not get promotion. 27. Learned counsel for the petitioners citing decisions in Dr.R. K. S. Chouhan Vs. State of UP14, B. S. N. Joshy Vs. Nair Coal Services Ltd.15, K. Vasudevan Vs. Mohan N. Mali16 and Rajkumar Soni Vs. State of UP17 submitted that the