^<3?}A^-. .^"M^" ^ '.,.-^";'n^>"" Q) v^f'!:' ^' ^"'.A ....••"-"" A^-" :-'-'% -Y" »;>. S«"^l Bl^^ c^\^-, IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (S) N0. ^l Q^ OF 2008 PETITIONER ^.T> ^° o^ RESPONDENTS Ashok Kumar Tiwari, aged about 50 years, S/o Late Shri B.P. Tiwari, Presently working as Assistant Engineer, Water Resources Department, Marwahi, District Bilaspur (C.G.). VERSUS \Y 1. State of Chhattisgarh through Secretary, Water Resources Department, Raipur (C.G.) 2. Engineer -in-Chief, Water Resources Department, Government of Chhattisgarh, Raipur (C.G.) WmT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA FOR ISSUANCE OF APPROPRIATE 1R^ir/WRITS. ORDER/ORDERS, DIRECTION/ DIRECTIONS ETC. ___^-^—.-_-.-_——- HIGH COURT OF CHHATTISGARH : BILASPUR WRIT PETITION (S) N0.7109 OF 2008 PETITIONER Ashok Kumar Tiwari RESPONDENTS Versus State of Chhattisgarh & Another •H\ AF^ Post for pronouncement of the orders on the _ltfday of January, 2011 Sd/- Satish K. Agnihotri Judge a. ^- & HIGH COURT OF CHHATTISGARH : BILASPUR WRIT PETITION (S) N0.7109 OF 2008 PETITIONER Ashok Kumar Tiwari RESPONDENTS Versus State of Chhattisgarh & Another (Writ petitions underArticle 226 ofthe Constitution of India) Single Bench : Hon'ble Shri Satish K. Agnihotri, J. Present:- Shri K.M. Ansari, Advocate for the petitioner. Shri P.K. Bhaduri, Panel Lawyerforthe State. ^ (Delivered on this ^Lt day of January, 2011) 1. By this petition, the petitioner mainly seeks following reliefs : "10 (i) That, this Hon'ble Court may kindly be pleased to direct the respondent to prepare the gradation list according to the merit list of Public Service Commission of old Madhya-Pradesh and also in accordance with the directions of the Hon'ble High Court of Madhya Pradesh and amend the gradation list according to the above provisions of law. 10 (ii) That, this Hon'ble Court may kindly be pleased to issue a writ in the nature of mandamus directing the respondents to provide proper placement to the petitioner in the gradation list issued on 04.04.07 and also future gradation list be prepared keeping in view the law in this connection." 2. The facts, in nutshell, as projected by the petitioner, for disposal of the case, are that initially the petitioner was appointed on ad hoc basis on 12-2-1982. Thereafter, he appeared before the Madhya Pradesh Public Semce Commission (for short "the MP PSC") and . merged his services as Assistant Engineer (Civil) w.e.f. 14-5-1987. In the gradation list published by the Department of Water •^ r- y. ^ !r:y% i •'-"""- yj •ss^yy "%'•'"" ^;" sc' ...^ f':»~....... .^f^ @) Resources, Government of Madhya Pradesh, the name of the petitioner finds place at S.No.1826. Subsequently, after formation of the State of Chhatfisgarh, the services of the petitioner was allocated to the State of Madhya Pradesh. However, on the basis of mutual transfer/allocation, the petitioner remained in the State of Chhattisgarh on his own request. According to the petitioner on 4-4-2007 a gradation list was published by the respondent authorities, which was incorrect. Against the said gradation list, the petitioner submitted a representation dated 17-3-2008 before the Engineer-in-Chief, Water Resources Department and requested for placement of his name in the gradation list on the basis of merit and as per the seniority list prepared by the MP PSC. Pursuant to the representation made by the petitioner, the respondent No.2 published the gradation list mentioning the name of the petitioner at the bottom of the gradation list in spite of the fact that the petitioner is working in the respondent Department since last more than 21/2 decades. Again on 23-1-2008 gradation list of Assistant Engineer (Civil) working in the State of Chhattisgarh was published by the respondent Department. In the said gradation list, the name of the petitioner did not find place. Accordingly, the petitioner made a representation before the authorities on 28-2-2008 and requested for proper placement of his name in the gradation list in view of the decision of the Division Bench of the High Court of Madhya Pradesh in M.P. Public Sen/ice Commission v. Dashrath So. Singh and Ors. . However, the respondent authorities without considering the well settled principles of law and the seniority of the petitioner, published the gradation list by mentioning the name of the petitioner at the bottom of the gradation list. Thus, this petition. Shri Ansari, learned counsel appearing for the petitioner, would submit that the gradation list published by the authorities is against the provisions of Article 320 of the Constitution of India. The respondent authorities published the gradation list as per their whims & fancies and without following the legal provisions. While publishing the gradation list the respondent authorities have not at all appreciated the fact that the petitioner is working since last more than 21/2decades. On the other hand, Shri Bhaduri, learned Panel Lawyer appearing for the State, would submit that in fact no gradation list was published by the respondent authorities on 4-4-2007. The gradation list dated 23-1-2008 was published in view of the decision of the High Court of Madhya Pradesh on 2-2-2006. The services of the petitioner was mutually allocated to the State of Chhattisgarh on the basis of circular dated 20-5-2005. Thus, the petitioner is not entitled to any relief and the petition deserves to be dismissed. " 1 have learned counsel appearing for the parties, perused the pleadings and the documents appended thereto. It is indisputable that the petitjoner was appointed through proper selection by the 1 WP (S) No. 1878 of 2004 (decided on 2-2-2006) /n.^., <^ MP PSC in the year 1983 and his name appeared at S.No.151in the merit list dated 10-7-1984. 8. Under the provisions of the Act, 2000, (appointed day' has been defined, which reads as under: "2. Definitions.— (a) 'appointed day> means the day which the Central Government may, by notification in the Official Gazette, appoint;" The 1st November, 2000, was fixed as appointed day. The first allocation, which was done before the appointing day, protected the seniority of the petitioner and that was in accordance with the select list at the time of his/her entry into service. 10. The Madhya Pradesh Reorganisation Act, 2000 (for short "the Act, 2000") came into force w.e.f. 1-11-2000 whereunder new State of Chhattisgarh was carved out from the then State of Madhya Pradesh. In exercise of the powers under Section 68 of the Act, 2000 services of all the employees were allocated. The petitioner was allocated to the present State of Madhya Pradesh. Subsequently, on the basis of representation made in the year 2003, by the petitioner and one Shri V.S. Awasthi, the mutual allocation order dated 28-7-2005 (Annexure R/1) was passed. Accordingly, the services of Shri Awasthi was allocated to the State of Madhya Pradesh from the State of Chhattisgarh and the services of the petitioner was allocated to the State of Chhattisgarh from the State of Madhya Pradesh. The petitioner claims his placement in the gradation list as per the merit list issued by the MP PSC when he was appointed and entered into the service. --•A^. 'i H^.,.,... •vie":^ ^^y "'^^;.?.i^'y" 11. The allocation under the provisions of Section 68 of the Act, 2000 was complete when the petitioner was allocated to the State of Madhya Pradesh, though he continued in the State of Chhattisgarh on account of one or other reason. The Central Government, which is fully empowered under the provisions of the Act, 2000, exercising its power under Section 68 (3) of the Act, 2000, constituted the State Re-organisation Cell and instructions were issued for consideration of applications of the employees for mutual allocation. ' 12. Section 68 of the Act, 2000 reads as under: "68. Provision relating to services in Madhya Pradesh and Chhattisgarh."(1) Every person who immediately before the appointed day is serving in connection with the affairs of the existing State of Madhya Pradesh shall, on and from that day provisionally continue to sen/e in connection with the affairs of the State of Madhya Pradesh unless he is required, by general or special order of the Central Government to serve provisionally in connection with the affairs of the State of Chhattisgarh; Provided that no direction shall be issued under this section after the expiry of a period of one year from the appointed day. (2) As soon as may be after the appointed day, the Central Government shall, by general or special order, determine the successor State to which every person referred to in sub-section (1) shall be finally allotted for service and the date with effect from whichsuch allotment shall take effect or be deemed to have taken affect. (3) Every person who is finally allotted under the provisions of sub-section (2) to a successor State shatl, if he is not already serving therein be made available for sen/ing in the successor State from such date as may be agreed upon between the Governments concerned or in lw^^.^-2 ^'^^;^'-"';^^: ;^ •'^.'•^^••••^ default of such agreement, as may be determined bythe Central Government." A notification under Section 68(3) of the Act, 2000 was issued on 29-4-2005. 13. Relevant portion of the notification dated 29-4-2005 reads as under: "tp.^-1-17-2004-4(2)-^ff.-T^- ^^ra^ ^4^-i ^Tf^rf^FT, 2000 .^F?t m^T 68(3) ^ ^T^T ^TT^T ^FR^R s^KT \3^lN'c|rT| Yp3zjT ^ ^FT W^ ^ WsTf^T ^1|NH4?1^ ^crcfTT c^ 3TTq^r WKf^ft^T HI^^Rcr? ^TT-TKRUT. ^T^ZT^^ y-l4c5-l 3{N^H 2000 -4?t m^T 68(2) ^ ^T^T ^TRPT ^R^N ^JT ?F^ ^T^I r/ch4-^iR^i' ^ ^ff^FT 'aro^ ^ orra^r •^ 3TT^? ^TP?t f^T TR, ^T^ 4^1d ^PrTt '^T^tf ^ ^K^r ^4)iR^/cr)4-^iR^f ^ HiRciiRc^' chf^-ll^^' ^ ^KUT 3:1TCRft ^^TFTRT;?UT ^ 3TT^=r/"?R<Tra" Rf^lT-) ^FfT^FTT ^ WcT l^ cb4^lR^' 'cf?T 4|Rc||Rch chfS-II^^D' ^t ^fe^RT ^^ ^, ^TR^T WW^ IR ^TT^T ^RcfTR 0^^ 3ft^ ^RSTUT f^TPT, cprf^cF) ^TTcp RcDiqa '^cT ^q^ ^ f^wft ^ TT^r ^j-i 14-279/2002-1l^T.3TR.(tTH), f^TTcp 1 ^2003 ^ f^ ^r f^r^r ^ T^T^T ^r ^FJT '^T'^rr ^KT f^^n^ f^Tr^ cF^- c^ q^-c||d. ^R^T ^^cpi^ ^RT ^tf^m' ^q~ ^ vSNf^T ^T^T W^ ^chlR^l'/clT'FhTR^t c^- ^mT?ft ^?Trf^T ^ 4lNi^R*> '?STRTcRT3T ^ ^R^T H PIMIJ^IN! 'f^T^' ^rrf^T f^? ^f t:- XXX XXX XXX XXX XXX XXX XXX XXX XXX ^ l ^ (9) HI^^Rc^ ^TPTfnY°T Lr><vi^-ci^^ \5ai1<cial ^T^T TT ^T^ Tr^DT ^?^' 'cTTc^ ^11^4?1<4 %e c^i ^R)^|^|-| ^r ^ ^'Tcm' ^TCTST 3TR?oT ^l^dt^ R-lRd ^cTT^fr c^ '^frf^ ^f '?t^Tf ^ "^Tc^ p|^fch^/qc;1^Ri| zpf ^ 3Tg^TR' W^T ^T f^T^fRpT ^t '^JTTcpft TTSTT ^||^c^<L] ^[-cT^ -c^T ^^- ^cpf ^T ^Tqf^T/'q^rf^ ?rf^ cf^ 1994 cf?r f pTt ^I^^RcD ^rpTraYUT ^R 3^ ^ll^ct?)^ •^^ c|yj- ~r^ ^K^T ^t ^ cT^ 1994 c^ -v^FT 1?tcFf ^ pi^cin/qc^-ia ^E? 3Tf^Ff ';=rm '^ar ^TCTTTI ^ ^ii^cf?!^ ^TcTcpT ^ \5<?^lRC<a Tft^r n^n" "^ 1995 ^ ^II^Hct?!^ ^cichl' c^ x^ -^ ^q-^ (10) W?CT "TR^R gM f^ TT^ ^rf^FT ^j^ orN^r ^ R^rf^ 1 ^ra^R 2000 ^ ^TK ^IIM-IC^^I ~^cf) ^r \5ai^^al ^T^T H zrf^ ^^^[^ ^r^ t 3fk ^ T^wf^. -<-&n^RTT^'t)i cF^rr w^f t ^fr ^ HI^^R^ '^TFn~:r<RI1T ^ ^TT? v3a1^c|<fl ^-^r TJ- 3Tf^FT WsR^T ^ ^TTO- ml^T TT? TR Ll<|c|^d ^? '^?ft '?ra7f Tt'' "frt^f^R f^rr L 4lNi^Rch ^HT^R^T ^ ^oT^cR^T '^JaT'^t '^T^T ^ cF)l4^N TT^OT c^ c^- •6[K ^f^RT 3Tf^cm^/cr?4-^ i^l c^ ^icpf ^ zrf^ ^- •q^p-Tf^ ig 'qi^mT '^3^ t Ht ^?T ^R f^K f^qT ^iT W^TT 3ft? ^ 3Tf^Tff/ch4^1^ ^t 'OT^ST qf^cT 3Tf^r i:rrdN ^crTsfr cf$t ^.TT^ ^r ^cFJ- ^ ^-.T^' r/4^"tR'l c^ c^ 3Tg^R 3^T TJ- f^STff^l' ^T ^T^ft'. ^TTT f^ \5^^1<W ?FFTT^ 9 ^ \3cy^Rctd f^TI' ^TTt. Pursuant thereto, the State of Chhattisgarh issued instructions for mutual transfer vide its circular dated 20-5-2005. It is informed, at the bar, that no rules have been framed pursuant to clause 11 of ,^.;^w%^^ ^'^ fC?"S I.' .?/%t J 't^cy ^5. the notification dated 29-4-2005, thus the mutual allocation of the employees is governed by the terms and conditions of the abovestated notification. 14. Learned counsel appearing for the petitioner relies on a decision of the hligh Court of Madhya Pradesh rendered in Dashrath Singh (supra) wherein without going into the seniority of the employees who were allocated on mutual transfer; it was held that the seniority of the employees shall be maintained in accordance with the select list prepared on 10-7-1984. The dispute involved in the said case was different and the same is not applicable to the facts of the present case. 15. The subsequent allocation on mutual basis between the two officers was done by the Central Government in accordance with the terms and conditions of the notification dated 29-4-2005 as aforestated. The petitioner was initially allocated to the State of Madhya Pradesh and thereafter on mutual basis his services was allocated to the State of Chhattisgarh, thus he shall be governed by the terms and conditions ofthe notification dated 29-4-2005 16. Clause 9 of the notification dated 29-4-2005 clearly provides that on the basis of mutual allocation, if a person is appointed/promoted in 1984, a person who come on mutual allocation thereafter, would be placed either at the bottom of 1984 in the gradation list or just above beginning ofthe 1995 employees, in the instant case. 17. Placingof the petitioner at the bottom of the officers of his batch i.e. of 1984 on the basis of select list issued by the MP PSC in accordance with the abovestated notification is not bad or illegal. The petitioner cannot claim his placement on the basis of his .^ %... .;sy '^•^w^ Gowri 18. 19. selection and as per the entry into service. Clauses (9) & (10) of the notification dated 29-4-2005 clearly provide for placement in the seniority list of the employees, who have been subsequently allocated on mutual basis. The employee would be piaced at the bottom of his batch employees/officers or at the top of the next year. The contention of the petitioner that the impugned action of the respondent authorities is violative of Article 320 of the Constitution of India is not relevant in the present dispute involved in the matter and, as such, the same is rejected. For the foregoing reasons, the writ petition fails and is hereby dismissed. 20. There shall be no order asto costs. Sd/- Satish K. Agnihotri Judge