IN THE HIGH COURT OF JUDICATURE. CHHATISGARH AT B!LASUR. WRITPETITION N0. / 8.^0 OF 2006 ^i^'^ii F* ^.f^ 6^^ ?F!17a i:'B V.i^^^-yii ^Sfealy^ i^- -I PETITIONER: ^v. ^.--< ^^ ^y' &.. D.K. SINGH, S/0 SHREE K.K. SINGH AGED ABOUT 41YEARS R/0 NARIYAL KOTHI, DAYAL BAND, BILASPUR DISTRICT, C.G.STATE. VERSUS RESPONDENT: ^ 1)STATEOFC.G. THRU SECRETARY HIGHER EDUCATION DEPTARTMENT, DKS BHAWAN, RAIPUR C.G.STATE. ,A 2)DY.SECRETARY, ^ HIGHER EDUCATION DEPTT, DKS BHAWAN, RAIPUR. 3) PRINCIPAL, ^ GOVT GIRLS' P.G. COLLEGE, BILASPUR. C.G STATE. 4) STATEOFM.P. THRU: SECRETARY, HIGHER EDUCATION DEPARTMENT, GOVERNMENT OF M.P. VALLABH BHAWAVAN, BHOPAL. (M.P.) WRIT PETITIQN UNDER ARTICLE 226/227 QF THE CQNSTITUTION OF INDIA FOR ISSUANCE OF APPROPRIATE WRIT (S) / ORDER (S) / DIRECTION (S). ETC. HIGH COURT OF CHHATTISGARH AT BJLASPUR Coram : Hon'ble Shri I. M. Qyddysi and Hon'ble Shri RajeshwarLa! Jhanwar,_JJ. <^.. Petitioners Resoondents Petitioner ResBondents Petitioner Respondents Petitioner Respondents Petitioner Respondents Petitioner Respondents Petitioner Respondents Writ Petition No. 1164 of 2006 Dr. Smt. Asha Diwan & Ors. Versus State of Chhattisgarh and others. Writ Petition No. 1558 of 2006 Shraddha Dubey Versus State of Chhattisgarh and others. Writ Petition No. 1559 of 2006 Smt. Rita Shabnam Luka Versys Sfafe of Chhaftisgarh and others. Writ Petition No. 1560 of 2006 Dr. Smt. Dhaneshwari Dubey Versus State of Chhattisgarh and others. Writ Petition No. 1754 of 2006 Dr. Smt. Namrata Sharma Versus State of Chhattisgarh and others. WritPetition No. 1751 of 2006 Dr. Aditya Narain Singh Versus State of Chhattisgarh and others. Writ Petition No. 1757 of 2006 Smt. Shraddha Das Versus State of Chhattisgarh and others. <s \ ,\ Petitioner Respondents Petitioner Respondents Petitioner Respondents Petitioners Respondents Petitioner Respondents Writ Petition No. 2168 of 2006 Dr.V.M. Dandekar Versus State of Chhattisgarh and others. Writ Petition No. 1868 of 2006 Dr. Anil Kumar Mishra Versus State of Chhattisgarh and others. Writ Petition No. 547 of 2006 Jain Narain Pandey Versus State of Chhattisgarh and others. Writ Petition No. 1057 of 2006 Dr. Sunita Mishra and ors. Versus State of Chhattisgarh and others. Writ Petition No. 1058 of 2006 Dr. (Smt.) Krishna Chatterjee Versus State of Chhattisgarh and others. Petitioner Respondents Writ Petition No.1246 of 2006 Rajnishkant Tiwari and ors. Versus State of Chhattisgarh and others. Petitioner Respondents Writ Petition No. 1557 of 2006 Jay Prakash Dubey Versus State of Chhattisgarh and others. 1 Petitioner Respondents Writ Petition No. 1606 of 2006 Dr. (Ku.) Neeta Gupta Versus State of Chhattisgarh and others. fef Petitioner Respondents Petitioner Respondents Writ Petition No. 1752 of 2006 Dr. Deepak Kumar Shukla Versus State of Chhattisgarh and others, Writ Petition No. 1753 of 2006 Dr. (Smt.) Neeru Agrawat Versus State of Chhattisgarh and others. Petitioner Resoondents Petitioner Respondents Writ Petition No. 1755 of 2006 Prof. P.K.Sinha Versys State of Chhattisgarh and others. Writ Petition No. 1756 of 2006 Smt. Seema Negi Versys State of Chhattisgarh and others. Petitioner Respondents Writ Petition No. 1758 of 2006 Dr.(Smt.) Kalyani Jain Vereus State of Chhattisgarh and others. Petitioner Respondents Writ Petition No. 1759 of 2006 Smt. Susan Udai Versus State of Chhattisgarh and others. Petitioner Respondents Petitioner Respondents Writ Petition No. 1871 of 2006 Kamati Singh Parihar Versus State of Chhattisgarh and others. Writ Petition No. 1872 of 2006 Suneeta Patra Versys State of Chhattisgarh and others. ^ Petitioner Respondents Petitioner Respondents Writ Petition No. 1873of 2006 Alka Verma Versus State of Chhatfisgarh and others. Writ PetitionNo. 1874of 2006 Dr. Premlata Tiwari Versus State of Chhattisgarh and others. Petitioner Respondents Writ Petition No. 1879 of 2006 Venu Gopal Versus State of Chhattisgarh and others. Petitioner Respondents Writ Petition No. 1890 of 2006 D.K.Singh Versus State of Chhattisgarh and others. Petitioner Respondents Writ Petition No. 1891 of 2006 Dr. Smt. Paramjit Pandey Versus State of Chhattisgarh and others. •^ Petitioner Respondents Petitioner Respondents Petitioner Respondents Writ Petition No. 1892 of 2006 Dr. Kalpana Lambey Versus State of Chhattisgarh and others. Writ Petition No. 1893 of 2006 Dr. Toynidhi Vaishnav Versus State of Chhattisgarh and others. WritPetition No. 1894 of 2006 Kavita Das Versus State of Chhattisgarh and others. Petitioner Respondents Writ Petition No. 1950 of 2006 Dr. Pratibha Buxy Versus State of Chhattisgarh and others. Petitioner Respondents Writ Petition No. 1991 of 2006 V.K.Sharma Versus State of Chhattisgarh and others. Petitioner Respondents Writ Petition No. 1995 of 2006 Smt. Seema Manisha Nath Versus State of Chhattisgarh and others. Petitioner Respondents Writ Petition No. 2008 of 2006 Dr. Shipra Banerjee Versus State of Chhattisgarh and others. Petitioner Respondents Writ Petition No. 2010 of 2006 Dr. T.S. Sengar Versus State of Chhattisgarh and others. Petitioner Respondents Writ Petition No. 2011 of 2006 Smt. Ritu Sinha Versus State of Chhattisgarh and others. Petitioner Respondents Writ Petition No. 2033 of 2006 Dr. K. Anand Kowshik Versus State of Chhattisgarh and others. Petitioner Respondents Writ Petition No. 2328 of 2006 Anita Dixit Versus State of Chhattisgarh and others. Petitioner Respondents Writ Petition No. 3207of 2006 Dr. Aruna Sharma Versus State of Chhattisgarh and others. WRIT PETITION 226/227 OF THE CONSTITUTION OF INDIA Present : Shri K.R. Nair, counsel for the petitioner/s. Shri Sanjay K. Agrawal, counsel for the petitioner/s. Shri Sanjeev Banjare appears on behalf of Shri Awadh Triapathi, counsel for the petitioner/s. Shri Rajeev Shrivastava with Shri Malay Shrivastava, counsel for the petitioner. ORAL ORDER ST (Passed on 01°' APRIL, 2010) The following oral Order of the Court was passed by I.M.Quddusi, J. tSi By this common order, the following Writ Petition Nos. 1164/ 2006, 1558/2006, 1559/2006, 1560/2006, 1754/2006, 1751/2006, 1757/2006, 2168/2006, 1868/2006, 547/2006, 1057/2006, 1058/ 2006,. 1246/2006, 1557/2006, 1606/2006, 1752/2006, 1753/2006, 1755/2006, 1756/2006, 1758/2006, 1759/2006, 1871/2006, 1872/ 2006, 1873/2006, 1874/2006, 1879/2006, 1890/2006, 1891/2006, 1892/2006, 1893/2006, 1894/2006, 1950/2006, 1991/2006, 1995/ 2006, 2008/2006, 2010/2006, 2011/2006, 2033/2006, 2328/2006 and 3207/2006 are disposed of as the facts and issues involved in all these petitions are one and the same. 2. The above writ petitions have been filed praying for following reliefs: a) "To issue a Writ in nature of certiorari or any other writ or direction or order striking down Rule 2 of the "Chhattisgarh Regularisation of Emergency appointment Rules, 2005, in so far as it has overriding effect notwithstanding anything contained to the contrary in any other rules or orders, as ultra vires the provisions of Article 309 of the Constitution of India. b) To quash the condition contained in the appointment order dated 18.01.2006 issued to the petitioner, as to probation for 2 years from the date of the order, it is in violation of MP Educational Services (Collegiate Branch) Recmitment Rules, 1990 as also it is discriminatory in so far as other employees similarly placed have not been put on such probation from the date of their regularization. c) To prohibit the Respondents from applying the newly introduced contributory pension fund Rules contained in notification dated 27.10.2004 to the petitioner as also making the petitioner a compulsory member of it as it is in violation of the Petitioner's vested right under the provisions of existing General Provident Fund Rules and Pension Rules. d) To set aside Rule 10 of the C.G.Regularisation of Emergency Appointment Rules, 2005, in so far as it "•->. <- says that a person appointed under these rules shall be entitled to seniority only from the date of the order of regular appointment and the person regularized under these rules shall be pl.aced below the persons appointed in accordance with the relevant recruitment rules prior to the appointment of such persons under these rules, as it takes away the right of the Petitioner to count seniority from the date of her joining the service as it is in violation of the provisions of M.P. Reorganisation Act, 2000 which prohibits the Respondents from altering her service conditions to her disadvantage without the approval of the Central Government. e) To issue a writ in the nature of Mandamus or any other writ or direction or order commanding the respondents to regularize the petitioner in service from the date of her joining the post of Assistant Professor (English) and extend to her all the consequential benefits of service rendered by her in accordance with the statutory rules, like seniority, promotion to the next higher grade and pay scale, continuance of the membership in GPF, all other post-retirement benefits as are available to other government servants similarly situated." 3. Brief facts of the case are that these petitioners have been appointed as Assistant Professors in pursuance of M.P. Educational Service (Collegiate Branch) Recruitment Rules, 1967 (for brevity "the Rules") in Emergency Recruitment process made by the erstwhile M.P. State Government for filling up a large number of vacant posts in its different colleges, as it was not possible to get selected persons from the Madhya Pradesh Public Service Commission. An advertisement, in accordance with the Rules, was issued inviting applications on all India basis from candidates possessing prescribed qualifications and experience and they were selected by a duly constituted Selection Committee and appointment orders thereof were issued to the selected candidates in the month of December, 1987 with certain conditions that the candidates who were selected shall be cleared by Public Service Commission. 4. After reorganization of the M.P. State in the year 2000, these petitioners became the employees of Chhattisgarh State ^. l"-i; Government. However, some of their colleagues remained in the services of State Government of Madhya Pradesh. This is also a fact that these candidates though appeared before the Public Service Commission for the purpose of regularization of their services as their appointments were against a regular vacant post on temporary status but they could not succeed whereas certain other candidates who were declared successful by the Public Service Commission, however, the services of those petitioners were not dispensed with in the erstwhile Madhya Pradesh State Government in the year 1992. After reorganization ofthe State of M.P., the State Government of Chhattisgarh framed Rules namely "The Chhattisgarh Regularisation and Emergency Appointment Rules, 2005 (for short 'the Rules 2005') for regularization of these petitioners. 5. The provisions of Rule 2, Rule 5 and Rule 10 are reproduced hereinbelow: "Rule 2. Overriding effect:-- These rules shall have effect notwithstanding anything to the contrary contained in any other rules or orders on the subject for the time being in force Rule 5. Date of Regularisation :- Assistant Professors appointed on emergency basis shall be regularized from the date of order of regularization. Rule 10. Seniority :-- (1) A person appointed under these rules shall be entitled to seniority only from the date of the order or regular appointment and the person regularized under these rules shall be placed below the persons appointed in accordance with the relevant recruitment rules prior to the appointment of such persons under these rules. (2) To determine the names of the persons in order of seniority in the selection list, separate orders shall be passed after consultation with the General Administration Department of Chhattisgarh." u^ 6. It is noticed that in Madhya Pradesh also the question of regularization of similariy situated candidates arose and the matter \went up before the High Court of Madhya Pradesh and the learned Single Judge of the High Court of M.P. passed a detailed judgment and order directing the regularization of those candidates. Against the said judgment and order, the State of Madhya Pradesh had filed writ appeals and pleaded the case. One of the writ appeals is W.A.No.599 of 2008 (State of Madhya Pradesh v. Dr. Smt. Sandhya Prasad and others). While dismissing the writ appeals filed by the State of Madhya Pradesh, the High Court of M.P. issued directions which are as follows: (-•\. "7. It is not in dispute that advertisement was issued, selection committee was formed which has considered the cases of the employees; they were duly qualified for being appointed; their appointments have continued till their regularization and they were holding the similar pay scale in which they were regularized. Appointment was made in the pay scale not on fixed pay and there was no brake, they were not appointed as against any leave vacancy, the appointment was not on purely adhoc basis without following the procedure, the appointment was made under the aforesaid rule 12 (5). 8. In the light of the aforesaid undisputed facts when we consider circular dated 12.02.1992 issued by the State Government which has been relied upon by the Tribunal while rendering decision in case of Seema Raizada and Padma Shrivastava, a close reading of the circular dated 12.2.92 indicates that prior service rendered has to be counted for the purpose of grant of higher pay scale and selection grade pay scale on following conditions: (i) that the post held must be equivalent and carrying the same pay scale: (ii) the qualifications of the post held should not be less than the prescribed qualification by the UGC for the post of lecturer; (iii) at the time of appointment on the earlier post of which service is to be counted an incumbent must possess the minimum quatification prescribed by the UGC. (iv) appointment on the post must have been made by the prescribed selection procedure by the State Government; and ,.ssste,.. ^._ 9. (v) the appointment should not be purely adhoc or as against leave vacancy for less than one year. When we apply the aforesaid five conditions in the instant case, one by one, it is not disputed that appointment of the employees was on the same post and in the same pay scale. Thus, the first condition stands satisfied. When we. come to second condition as to the qualifications prescribed for the post, the post held was the same post and the qualifications possessed by incumbents were not less than that prescribed by the UGC, it is not the case of State that qualifications prescribed in advertisement were less. Thus, second condition also stands fulfilled. When we come to lllrd condition, the incumbent was holding the minimum qualification prescribed by UGC at the time of appointment on emergency basis, they were holding the qualifications, has aiso not been disputed. When we come to under Rule 12 (5), the aforesaid IVth condition also stands satisfied. When we examine fifth and last condition, it is apparent that appointment was made on emergency basis not on purely adhoc basis, it was not against any leave vacancy. For the purpose of appointment, prescribed procedure under Rule 12 (5) was followed, appointment was made under the Rules. Rules provide for emergency appointment and prescribed the procedure for that which was followed and ultimately the services were regularized. TheState Government has taken the decision vide circular dated 12.2.92 for counting of such services for the purpose of higher pay scale and for selection pay scale, the benefit of which coutd not have been denied to the emptoyees, thus relief has to be given on the basis of the aforesaid circular dated 12.2.92. Though it is not continuation to the adhoc service without any brake, his services has to be counted for. Thus, they could not have been denied and benefrts of counting of their services rendered as emergency appointee and their past services ought to have been counted for the placement in Senior Scale/Selection Grade, we find that decision rendered by the single Bench to be in accordance with law and we do not find any ground to differ from the view taken by different Division Benches of this Court in several matters dismissing the writ appeals assailing the order passed by the single Bench or the writ petition preferred against the order passed by State Administrative Tribunal. Shri Deepat Awasthy, learned GA has relied upon Division Bench decision of this Court in Saroj Goswami *»^ s"-», .<< vs. State of M.P. and others (supra) in which petitioner was appointed on adhoc basis on a fixed pay of Rs.700/- necessary to go into the DO of the MP PSC in view of circular dated 12.3.92, but MP PSC has clearly mentioned in its DO dated 25.23.98 thus:- The Commission after seeking legal opinion on clause 1 (e), has decided to include service rendered in adhoc capacity for counting of past service for placement in Senior Scale/Selection Grade, provided that the following three conditions are fulfilled :- " (a) The adhoc service was of more than one year duration: (b) the incumbent was appointed on the recommendation of duly constituted Selection Committee, and (c) The incumbent was selected to the permanent post in continuation to the adhoc service, without any brake." The Commission has taken the above decision. The aforesaid three requirements also stand satisfied in the instant case. The instant case stand on better footing as the service rendered was not purely adhoc, but it was under the rules as an emergency appointee, even adhoc appointee in case has continued for more than one year duration and was selected by duly constituted selection committee and was later on selected to the permanent post in Division Bench of this Court held that fixed pay happened to be equivalent to the initial pay in a time scale, i.e., Rs.700/- Rs.1600/- does not mean that adhoc service was on a time scale. It was laid down by Division Bench of this Court that an incumbent is neither entitled for benefit of seniority nor pay scale. In the instant case ratio of the aforesaid decision is not at all attracted as seniority has not been given any of the order passed by thesingle Bench; the benefit given is that of counting of the past services for the purpose of placement in the Senior Scale/Section Grade and the said benefit is available as per Government circular dt. 12.2.1992. In the aforesaid decision of Saroj Goswami vs. State of M.P. and others (supra) the appointment was made on adhoc basis which was not under the rules whereas the appointment in the instant cases was under the Rules of 1967 and ultimately incumbents have been regularized. The appointment in the instant case was also on the pay scale, in the aforesaid decision appointment was on fixed pay, thus, decision is distinguishable. Even after following the aforesaid decision in its pith and substance, no dent is caused to the employees of the instant case as the relief is totally different, thus ratio of said decision is not attracted. 10. Resultantly, we find no merits in the writ appeals preferred by the State Government. The same are dismissed. They are bound to count the services rendered by the employees as emergency appointee for placement of Senior Scale/Section Grade. WP No. 24503/03 stands allowed. No costs." 7. Since the Madhya Pradesh High Court has adjudicated the matter in the cases of similarly situated candidates to the instant writ petitioners, we are of the opinion that we may leave it upon the State Government to take fresh decision taking into consideration the judgment and order of the Madhya Pradesh High Court. However, with regard to seniority, we are of the opinion that since these petitioners could not succeed in the examination conducted by the P.S.C., the candidates selected in that particular selection process in which the petitioners could not be cleared by the P.S.C. examination, cannot become juniors to the petitioners and as such the State Government may also consider to place these petitioners in appropriate place in the seniority list. 8. The whole process, as mentioned above, be reconsidered as early as possible on or before 31 October, 2010. 9. Needless to mention here that in case the petitioners feelaggrieved by the decision so taken by the State Government pursuant to above directions, it will be open for them to take recourse to law. 10. A copy of this order be supplied to the learned State Counsel for compliance. —— Sd/- I.IVI. Quddusi Judge Sd/- R.L. Jhanwar Judge ^ \ -