A PR Writ Petition No. 947 of 2004 W Avanish Jyotishi Vs. High Crt o Chattisgarh 8: Others ou f h “iy /- ‘ V.K. shrivastava Jdge ORDER maogé I Sd 7 1 ‘ u ,, ‘ V, L. HIGH COURT OF JUDICATURE CHHATTISGARH : BILASPUR Single Bench : Hon’ble Shri Vijay Kumar Shrivastava, J Writ Petition No. 947 of 2004 Avanish Jyotishi, S/o Shri RP. Jyotishi; Aged about 34 years, Rio MIG-7 Chandni ‘ Apartment. Narmada Nagar, Bilaspur (CG). Petitioner : Versus Resgandents: 1 High Court ofv Chhattisgarh, > Through : Registrar GeneralLHigh Court of C.G., Biiaspur (CG). Additional Registrar (D.E.), High Court of Chhattisgarh, Bilaspur (CG)- Shri Gopai Singh, son of not knots/n, Private Secretary, High Court of Chhattisgarh, Biiaspur. Shri A. Annajee Rao, son of not“ known, Private Secretary, High Court of Chhattisgarh, Bilaspur. Shri R. ‘Satyanarayana Raju, son of not known, Private Secretary, High Court of Chhatiisgarh, Biiaspur. Shri M.V.L.N.' Subrahmanyam, son of Shri MV. Kameswara' Rao, Private Secretary. High Court of Chhattisgarh, Bilaspur. Shri Avanish Kumar Pathak, son of Shri PD. Pathak, Private Secretary, High Court of Chhattisgarh, Bilaspur. Present :- Shri P5. Koshy and Shri Vinod Deshmukh, oouhsei for the petitioner. A Registrar General, Chhattisgarh High Court with Dr. N.K. ShuklapSr. dvocate with Shri Diiip Dubey, counsel for respondent No.1. r i r r . \\\ Shri Manindra Shrivastava, Sr. Advocate with Shri Amrito Das and Shri Akhilesh Daipati, counsel for respondent No.2. None for respondent No.3. Shri Manoj Paranjape.‘ counsel for respondents No.4, 5 & 6. Shri Roop Naik, counsel for respondent No.7. ORDER (Derivered on \\ W’December, 2006) This petition under Article 226/227 of the Constitution of lndia has been preferred by the petitioner for fixation of inter se seniority amongst petitioner and respondents No.3 to 7. 2) Petitioner and respondents No.3 to 7 were initially appointed as Stenographers in the erstwhile State of Madhya Pradesh. After reorganization of State of Chhattisgarh in the year 2000 all of them opted for the State of Chhattisgarh and accordingly they were allocated. They joined their services as Stenographers in the High Court of Chhattisgarh on 15‘ November. 2000. Their seniority in the cadre of Stenographer was as below : of Madhya Pradesh, Ofticers and Employees Recruitment and Conditions of Service (Classification, Control, Appeal & Gondd§t) Rules, 1996 (henceforth "Rules") and even after their joining to the State of Chhattisgarh they were governed by it, till the present rules i:e. Chhattisgarh High Court Establishment (Appointment and Conditions of i \‘ i \ i i 1) Shri Avanish Jyotishi 2) Shri Gopal Singh 3) Shri Alena Annaji Rao 4) Shri R. Satyanarayana Raju 5) Shri M.V.L.N. Subramaniyam 6) Shri Avanish Kumar. Pathak 3) Petitioner and respondents No.3 to 7 were governed by High Court Service) Rules, 2003 came into force with effect from 1-1 0-2003. in Rule 8 of Rules, procedure for promotion to the post of Private Secretary has been described. The post of Private Secretary was required to be friled by promotion from amongst the Personal Assistants on merit-cum-seniority and if necessary, by direct recruitment. Ruie 9 prescribes qualification for the post of Private Secretary. According to it the candidate must be a Graduate from any Recognized University and he must also be qualified in English Shorthand from a Recognized Board of Shorthand and Typewriting Examination with a 'speed of 100 words per minute. Graduation in law has been given preference. Rule 21 of Rules reads as below, which authorizes the Chief Justice to relax the rules : "21. Nothing in these Rules shall be construed to limit or abridge the powers of the Chief Justice to deal with Employees of the Court in such manner as may appear to him to be just and reasonable : Provided that where any Rule is applicable to an Employee of the Court, his case shall not be dealt with in the manner less favourable to him than that provided by the said Rules." 4) None of the above employees wasworking in the cadre of Personal Assistant, but considered for promotion to the post of Private secretary by the Departmental Promotion Committee (henceforth “the DPC") constituted by the Chief Justice for promotion to the post of Private Secretary. 5) The DPC considered petitioner and respondents No.3 to 7 for promotion to the post of Private Secretary and resolved as below : “Considered the cases of the following Stenographers :- ‘ 1. Shri Avanish‘ Jyotishi 2. ShriGopEil‘Snahég“ 3. Shri Alena Annaji Rao 4. Shri R. Satyanarayana Raju 5. Shri M.V.L.N. Subramaniyam S. Shri Avanish Kumar Pathak The abave Stenographers from Seriai No.(2) to (6) are recommended for promotion against the vacant permanent posts. Shri Avanish Jyotishi, at‘ Serial No.(1_), has passed English Shonhand examination at the speed of 80 (eighty) wards per minute, whereas far the past of Private secretary, a candidate must have passed Shorthand examination at the speed of 100 (hundred) words per minute from any rec'ognized Board. Looking to records and overal! performance of Shri Avanish Jyotishi, the requisire qualmcation of minimum speed may be relaxed and he may be promoted provisionally with the condiir'on that he must pass English Shorihand examination at the speed of 100 (hundred) words per minute from any recognized Board within a period of two years. After submitting by Shri Avanish Jyotishi the pass certificate of English Shorthand examination at the speed of 100 worde per minute from any recognized Board, he wiii be considered for reuiar promotion.“ § 6) As per recommendation of the DPC, petitioner and respondents No.3 to ? were appointed to the post of Private Secretary, however, not carrying speed of 100 words per minute in petitioner who woo shorthand was promoted on a condition that he must pass English Shorthand examination at the speed of 100 words per minute from any recognized Board and submit the pass certificate within a period of two ’ years from the date he assumes charge of his duties, after submitting the above pass certificate by him he wiii be considered for regular promotion. Thereafter petitioner passed the prescribed examination aridgubmitted his certificate. Again ‘vide order No.22/li-14-1/2001 dated 1-10—2002,’his promotion was regularized with effect from 20-8—2001 i.e. the date on which he passed the examination. Subseghuently confirmation order was passed by order of Chief Justice bearing order No.5(A)/Ii-1 4-1/ 2003 (Part- iV) dated 6-1—2004 wherein seniority of petitioner was placed at the bottom of the list and respondents No. 3 to 7 who were junior to him in the cadre of Stenographer were pieced above him. 7) Feeling aggrieved the petitioner preferred representation dated 14-1—"004 for fixation of his inter se seniority. His representation was rejected by order of Chief Justice dated 16-2-2004 and the same was communicated to him vide memo No.1010/ll-14—1/2004 (Part-N) dated 20- 2—2004, hence this writ petition. 8) Respondents No.1 and 2 contested the claim of the petitioner on the ground that on 18-5-2001 when DPC‘ considered the matter of promotion to the post of Private Secretary, petitioner was lacking requisite qualitication of Engiish Shorthand with a speed of 100 words per‘minute, therefore, he was provisionally and conditionaliy promoted whereas respondents No.3 to 7 havin requisite qualification were promoted on regular basis. Subsequently petitioner obtained the requisite qualitication and, therefore, from the date of acquisition of requisite qualitication his services were regularized. Petitioner is stopped to claim promotion from the date on which he was not having requisite qualification. Respondent No.7 also contested the claim of the petitioner on the ground that the promotion was considered on merit—cum—seniority basis and respondents No.3 to 7 possessed better merit than the petitioner on the date of consideration for promotion because on that date petitioner was holding the qualitication of BO words per minute whereas others were holding the qualification of 100 words per minute, therefore, petitioner, who fulfill thee eligibilty crieria aft repondent N3 to ‘i has no right t be placed in seniority before em. 9) Learned counsl appearing for all he parties were heard at leh. e t nt 0) For fixation of inte e senior the Henle Ape Cout from time to ime ha led law. om f t judgmens Wherein lw relating to inter se seniorit has been considered by the Hon’be Apex Court an law laid h aioe pn e q h on'ble pex Court n t cas Direct Rruit Cla ll Engineering ft'icr’ Associati vs. Stat of Maharashtra and others‘, at para 47 held as under : 1 r s ity ’b x r t s Se o he t a y l d down terein. pplabl to the‘reset cas are uoted below. Te H A . i he e of ec ss 47. To sum up. we hold that : (A) Once an incumbent is appointed to a post according to rule, his' seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the Initial appomtment is only ad hoc and not according to rules and made as a stop-gap arrangement the oft'ciation in such post cannot be taken into account for considering the seniority. (B) if the initiai appointment is not made by following the procedure laid down by ,the rules but the appomtee continues in the post uninterruptedly 'till the reguiarisation of his sewice in accordance With the rules the period of officiating service will. be counted. (C) When appointments are made from more than one source it is permisSible to t'x the ratio for recruitment from the different scarces and if ru es are 1 (1990) 2 soc 715 i t er ss o. o th Oes on e framed in this‘ regard they must ordinarily be followed strictly. lf it becomes impossible to adhere to (D) the existing quota rule. it should be substituted by an appropriate rule to meet the needs of the situation in case, however, the queta rule i5 not followed continuously for a number of years becau‘se it was impossible to do so the inference is irresistible that the quota rule had broken down. Where the quota rule has broken down (E) and the appointments are made from one source in excess of the quota, but are made after following the procedure prescribed by the rules for the appointment, the appointees should not be pushed down below the appointees from the other source inducted in the service at a later date, (F) Where the rules permit the authorities to relax the provisions relating to the quota, ordinarily a presumption should be raised that there was such relaxation when there is a deviation from the quota rule. The quota for recruitment from the different sources may be prescribed by executive instructions, if the rules are silent on the subject. If the quota rule is prescribed by an executive instruction, and is not followed continuously for a number of years, the inference is that the executive instruction has ceased to remain operative. The posts held by the permanent . Deputy Engineers as weil as the officiating Deputy Engineers under the State of Maharashtra belonged to the single cadre of Deputy Eng‘iheers. The decision dealing with important questions concerning a particular service given after careful consideration should be respected rather than scrutinised for hnding out (H) (l) (J) any possibie error. it is not in the interest of Service to unsettie a settied position. With respect to Writ Petition No. 1327 of 1982, we further hoid : (K) That a dispute raised by an appiicatien undel Ariicie 32 of the Constitution must be held to be haired by principles of res judinata inciuding the ruie of eonstructive res judicata if the same has been earlier decided by a competent court by a judgment which became final. in view of the above and the other findings recorded eariier, we do not find any merit in any of the civil appeals, writ petitions and special leave petitions which are accordingiy dismissed There will be. however, no order as tocosts." The Hon’bie Apex Court. in the case of Excise Commissioner, Karnataka and another vs. V. Sreekantaz, held as under : “Service Law — Seniority - Determination 'of - Ad hoc appointment, whether to count for - Ad hoc appointee subsequent to such appointment becoming eligible for appointment only under a new set of rules. appointed thereunder temporarily with prospective effect and placed on probation — in such circumstances, held. seniority would be counted not from the date of the initial ad hcc appointment but from the date of the subsequent appointment or regularisation under the. said rules — Kamataka State Civil Services (Direct Recruitment to Class ill Posts) (Special) Rules. 1970; Rules 6, 3 and 4 - Karnataka Government Servants (Seniority) Rules, 1957, Rule 1—A — Appointment - Ad hoc appointment — Regularisation.” The Hon‘ble Apex Court, in the case of Mohan Lai and others vs. k. ’K state or HP}, herd that z 2 3 (1993) Supp (a) soc 53 (1997) 4 sec 416 "The candidates wha passedthe examinations within two years and were confirmed after passing the tests, would get seniority from the respective dates of their joining the post and the date of passing the departmental test relates back to the date of appointment. Those who passed the examination after two years, i: would get seniority from the date of passing ° and wouid rank junior to those who passed the examination within two years.” The above view was taken by the Hon’ble Apex Court considering the prevalent following rules : "11.(1)Persons appointed to the service ; shall remain on probation for a period of two A; ; years : Provided that --- (a) the incumbents shall within two years of the n appointment. pass the departmental examinahons prescribed by the Government from time to time and; (b) the Government may exempt in exceptional cases any person from passing any or all such departmental examinations : Provided furter that --- h (a) any period, after such appointment, spent on deputation on a corresponding or higher post shat! count towards the period of probation. (b) any period of officiating appointment to the Service shall be reckoned as period spent on probation, but no person who has ofhciated shall, on completion of the prescribed period of probation, be entitled to be oonfrrmed unless he is appointed against a permanent postivaoancy. (2) lf, in the opinion of the appointing authority, the work or conduct of a person during the period of probation is not satisfactory or he fails to pass the prescribed a“ departmental examination within two years of his appointment, it may --— (a) if such person is recruited by direct appointment, dispense with his services and (b) if such otherse -—- t " ‘ - a W wi ‘ _ The Hon'ble Apex Court, rendering judgment in the case of Jagdish Kumar & Ors. vs. State of H.P. & Ores“, at para 17 observed as below : \ “Service Law — Seniority - Determination f seniority — Date of substantive appointment — Reievanee of — Held, seniority is to be reckoned with reference from the dte of subswntive appointment under relevant ries — When the posts to which appointments were o be made were not available or non-estent. there was no appointment to the service. much less substantive appointment and, threfore, such appointees cannot be given seniority fro B a u t xi e m thepurported date of their appointment — ihar Forest Service Rules, 1953, R.3 .“ "1 7. The only other question which needs to be adjudicated is the stand of the respones that the appointment had become reall ay th t of sig w w o dnt y effective on the date of passing the departmental examination. This piea is equll untenable on account of the fact at he appointment itself takes effect from the date appointment and in the event of not pasn the examination the consequences foiiow. But that cannot be a ground to hold that there as no appointment in the eye of la till examination is passed. The Government also recognized this position as is evident frm declaration of the seniority list on 14-10-1977 wherein the appellants were inciuded in the seniority list though they had not cleare he examination by that time as no examnations were held. in the eye of law the appointmen f the appellants was from the date of their nitial appointment which of course was conitioned with the requirement of passing te departmental examination. Undergoing ny training withs the lTl was subsequently departmental examination. A feeble tep was made to show that at no pointof tie th authorities have adduced any materia‘tto show that the lTi had declined to impart training d. therefore, the substitution of lTi trainin by te requirement of passing the deparment bl ' med/I d t i t o i d a h substituted by the requirement of passin t g he atmt m e an g h tal examination is illegal. The stand is untenae. This plea is only to be note to be , 5 2005 SCW 31 AIR 64 6 because of the High Court‘s iinding in cleat terms which is as follows : ‘lt is not in dispute that on the concerned ' Authorities of i.T.Is expressing their inability to provide and other three similarly months situated training persons. to the petitioners the Chief Engineer decided to hold departmental examination by prescribtng syllabus for the said examination vide his office order dated 19- 2-1 980 (Annexure P—3), which the petitioners quaiitied as per Notiiication dated 24-5-1980 and in December, 1980.‘ " The rule does not categorise any promotion in various categories, instead Rule 15 of the Rules prescribes that ail promotions from one post to another upto Class li Cadre, be made on temporary or Ofticiating basis, depending upon the nature of the post by the Chief Justice on the recommendation of the Departmental Promotion Committee constituted by the Chief Justice. Therefore. if one employee gets promotion whatever nomenclature may have been given. yet they will be treated under regular promotion having condition or without condition, either with relaxation or without relaxation. in case there is a condition imposed, on any employee in his promotion order, only requirement of the iaw is that within the stipulated period he should tuitili the condition else department has right to proceed against him in accordance with iaw and ruies, therefore, an employee who was promoted to any cadre is entitied for his inter so seniority according to order of promotion and not fromthe date when he fulfills the condition. 12) Here it is also pertinent to mention that Rule 12 of CM? Services (General Conditions of Sen/ices) Rules, 1961 contempiates that where promotions are made on the basis of seiection by a Departmental Promotion Committee, the seniority of such promotees shall be in the order in which they are recommended for such promotion by the 11) 13 Committee. Here in the instant case petitioner and respondents No.3 to 7 were considered by the DPC. Petitioner was senior most and thereafter seniority of respondents No.3 to 7 comes. Petitioner was recommended for promotion by relaxing his requisite qualincation whereas others without impoSition of any condition were recommended for promotion, therefore, it will be presumed that DPC recommended the promotion according to earlier seniority wherein petitioner was on the top, therefore, in accordance with the above rule, also the seniority of the petitioner was- required to be kept above respondents No.3 to 7. 13) The DPC considered the names of petitioner and respondents No 3 to 7 against regular vacancy and in accordance wrth rules recommended at a stroke the name of petitioner and respondents No. 3 to 7 for promotion, however, for petitioner relaxation .of rules were, recommended and the Chief Justice was pleased to relax the rules for all the candidates so far feeder cadre is concerned, and additional relaxation was allowed to the petitioner towards requisite qualification with a rider that he must’acquire the requisite qualification of English Shorthand with a speed of 100 words per minute within a period of two years. 14) From the law laid down by the Hon’ble Apex Court and rules in force applicable to petitioner and respondents No.3 to 7, neither their promotions Were ad hoc promotions nor those promotions were without any post or against stop-gap arrangement All those promotions were made in accordance With the prevalent rules and against regular vacancies. Therefore, their inter se seniority was to be fixed according to their earlier seniority and petitioner's continuous service, which he .