The promotion of a government servant under reserved category can be annulled if he is found to belong to the general category: High Court of Chhattisgarh

HIGH COURT OF CHHATTISGARH BILASPUR Writ PetitionNo.56108 Order reserved on: 17 6 2021 Order delivered on: 23 6 2021 Anup Kumar Chaturvedani S o Late Shyamlal Chaturvedani aged about 45 years Caste Schedule Caste Occupation Senior Agriculture Development Officer Block Abhanpur Distt. Raipur C.G.) R o House No.F 2 Vishal Nagar Raipur Behind Chhattisgarh Hotel G.E. Road Telibandha RaipurPetitioner 1. State of Chhattisgarh Through the Secretary of Department of Agriculture D.K.S. Bhawan Raipur2. The CommissionerD.K.S. Bhawan Raipur3. The Director Department of Agriculture Directorate Raipur4. K.C. Vishwas S o Narendra Nath Vishwas aged about 51 years Sub Divisional Agriculture Officer Narayanpur Distt. Jagdalpur C.G.) R o P.V. 14 Pakhanjur(C.G 5. The High Level Scrutiny Committee Adim Jati Anusandhan Prashikshan Sansthan Pt. Ravishankar Shukla University Premises RaipurNo.71510 K.C. Biswas Aged about 52 years S o Late Narendra Nath Biswas Assistant Director Agricultural Kanker Distt. KankerPetitioner 1. State of Chhattisgarh Through the Secretary Agricultural Department D.K.S. Bhawan Raipur2. The CommissionerD.K.S. Bhawan Raipur3. The Director Department of Agricultural Directorate RaipurRespondents For Respondents State: Mr. D.N. Prajapati Advocate. Mr. Sunil Otwani Additional Advocate General Mr. Rajesh Kumar Kesharwani Advocate Hon ble Shri Justice Sanjay K. Agrawal 1. Since common question of law and fact is involved in both the writ petitions they were clubbed together and heard together and are being disposed of by this common order 2. Petitioner K.C. Vishwas {W.P.(S)No.7156 2010) was appointed on the post of Agriculture Development Officer on 26 6 1983 against General category post and he was promoted to the post of Senior Agriculture Officer under General category post on 5 6 1997 and he continued to be shown as officer under General category in the gradation list as on 1 4 1999 and as on 1 4 2003 however in the gradation list published on 1 4 2004 he was shown to be member of Scheduled Castecategory and in the year 2006 his case was considered for promotion against SC category on the post of Assistant Director on which by order dated 30 12 2006 he was selected and appointed on the said post under SC category as SC candidate. Appointment of K.C. Vishwas was questioned by Anup Kumar Chaturvedani {petitioner in W.P.(S No.5615 2008} stating inter alia that K.C. Vishwas does not belong to SC category he is general category candidate and he belongs to SC category and therefore K.C Vishwas is not entitled and eligible to be promoted on the post of Assistant Director and thus his appointment be quashed and hebe appointed on that post and he be given all consequential benefits. Thereafter on 8 7 2008 notice was issued by the State Government to K.C. Vishwas petitioner in W.P.(S)No.7156 2010} that why his promotion on the post of Assistant Directoragainst SC category be not quashed as he is not the member of SC which K.C. Vishwas replied that he had applied for caste certificate and it will be filed and despite the second show cause notice dated 26 7 2010 caste certificate could not be filed and ultimately on 25 11 2010 the appointment of K.C. Vishwas has been cancelled and he has been reverted to his original post which has been called in question by him in W.P.(S)No.7156 2010. 3. Reply and rejoinder have been filed in both the writ petitions W.P.(S)No.7156 2010under SC category has rightly been annulled on 25 11 2010 as such the writ petition deserves to be dismissed W.P.(S)No.5615 2008was entitled to be promoted by order dated 30 12 2006 therefore he is entitled to be appointed from that date and all consequential benefits be also granted to him from that date although he has been granted promotion by order dated 1 10 2013 but for intervening period he be directed to be considered from that date 7. Return has been filed opposing the writ petition 8. Mr. D.N. Prajapati learned counsel appearing for petitioner K.C Vishwas in W.P.(S)No.7156 2010 would submit that while annulling the order of promotion dated 25 11 2010 the petitioner was not given reasonable opportunity of hearing and even the order impugned and the promotion order do not reflect that promotion has been given on reserved category against the reserved category post. He would further submit that even if the order of promotion is erroneous the impugned order dated 25 11 2010 is liable to be set aside in the light of the decision of the Supreme Court in the matter of Balbir Singh v. State of H.P. and others1 and the benefit already granted cannot be taken away on the mistake committed by the State. As such the writ petition deserves to be allowed and the order dated 25 11 2010 deserves to be set aside. 9. Mr. D.N. Prajapati learned counsel appearing for petitioner K.C Vishwas in W.P.(S)No.7156 2010 has also argued before this Court that the petitioner was granted promotion on the post of Assistant Directorby mistaken belief he never claimed promotion under SC category and as such the Department itself has given him promotion on the said promotional post under SC category without his asking and now he retired from service on 31 10 2020 as such his case is covered by the decision rendered by the Supreme Court in Balbir Singh being the case of 10. Mr. Rajesh Kumar Kesharwani learned counsel appearing for petitioner Anup Kumar Chaturvedani in W.P.(S)No.5615 2008 would submit that since K.C. Vishwas does not belong to SC category and has wrongly been granted promotion on the post of Assistant Director with effect from 30 12 2006 and now that has already been cancelled by order dated 25 11 2010 He would further submit that the promotion of K.C. Vishwas has rightly been annulled and as such the present petitioner Anup Kumar Chaturvedani is entitled to be considered for the said promotional post with effect from 30 12 2006 to the date of his promotion now made on 1 10 2013 and he is also entitled for all the consequential benefits. He would rely upon the decisions of this 110 SCC 166 Court in the matters of Krishna Dani Sinha v. State of M.P. and others2 and Chandu Ram Jatwar v. State of Chhattisgarh and others3. 11. Mr. Prajapati learned counsel for petitioner K.C. Vishwas would oppose the submission made by Mr. Kesharwani learned counsel for petitioner Anup Kumar Chaturvedani. 12. Mr. Sunil Otwani learned Additional Advocate General appearing for the State respondents in both the writ petitions would submit that since K.C. Vishwas does not belong to SC category and he was wrongly granted promotion on the post of Assistant Director Agriculture) therefore his promotion has rightly been annulled after giving opportunity of hearing to him on 8 7 2008 and 26 7 2010. He would further submit that two show cause notices have been issued to K.C. Vishwas firstly on 8 7 2008 and secondly on 26 7 2010 which have been replied by him on 23 7 2008 and 29 7 2010 respectively and thereafter detailed and reasoned order has been passed on 25 11 2010 and his promotion on the post of Assistant Director has rightly been cancelled. He would also submit that so far as petitioner K.C. Vishwas is concerned since he was granted promotion to which he was not entitled therefore his promotion has been annulled as such no equity lies in his favour and he cannot reap the benefits of the said post to which he was not entitled for. He would further submit that so far as petitioner Anup Kumar Chaturvedani is concerned now he has already been extended the benefit of promotion by order dated 1 10 2013 therefore he is also not entitled for any benefit as 2 2017(II) MPJR 34 3 2016 LAB.I.C. 889 on the present date. He would rely upon the decision of the Supreme Court in the matter of R.K. Sabharwal and others v. State of Punjab and others4 to buttress his submissions. As such both the writ petitions deserve to be dismissed 13. I have heard learned counsel for the parties and considered their rival submissions made herein above and also went through the records with utmost circumspection. 14. The dispute in both the writ petitions relates to promotion granted to K.C. Vishwas respondent No.4 in W.P.(S)No.5615 2008 and petitioner in W.P.(S)No.7156 2010 on the post of Assistant Director Agriculture) by the order of the State Government dated 30 12 2006 by which he was granted promotion on the said post under the reserved category post of SC and thereafter by order dated 25 11 2010 {Annexure P 1 in W.P.(S)No.7156 2010} the said promotion order has been cancelled by the Department finding that though he was granted promotion on the post of Assistant Director Agriculture) under SC category but he does not belong to that category and he could not produce valid caste certificate that he belongs to SC category. Petitioner Anup Kumar Chaturvedani has questioned the order dated 30 12 2006 in W.P.(S)No.5615 2008 whereas petitioner K.C. Vishwas has challenged the order dated 25 11 2010 finding them to be unsustainable and bad in law. 15. Admittedly and undisputedly on the basis of the material available on record it is clear position on record that K.C. Vishwas was firstly appointed on the post of Agriculture Development Officer on 26 6 42 SCC 745 1983 in General category and on 5 6 1997 he was promoted to the post of Senior Agriculture Officer in General category and in the gradation list of the year 1999 up to 2003 he was shown to be member belonging to General category but in the gradation list published as on 1 4 2004 he was shown to be member of SC category and he was promoted as Assistant Directorunder SC category has rightly been cancelled by order dated 25 11 2010 and he has rightly been reverted to his original post after affording opportunity of hearing which is strictly in accordance with law and no exception can be taken on the said order passed by the State Government. As such the order passed by the State Government on 25 11 2010 is strictly in accordance with law and no exception can be taken to the said order by petitioner K.C. Vishwas 17. Now the question is whether petitioner K.C. Vishwas is entitled for the benefit of the decision rendered by the Supreme Court in Balbir Singh18. In the instant case the petitioner was granted promotion on 30 12 2006 and it was cancelled by order dated 25 11 2010 by reverting the petitioner to his original post and by interim order he continued on the post of Assistant Directorand now he retired from service with effect from 31 10 2020 on attaining the age of superannuation by order dated 23 10 2020. It is the case that on the complaint the Department on its own right in time served show cause notices to the petitioner twice and thereafter reverted him to his original post from the post of Assistant Director Agriculture). The case of Balbir Singhis not applicable to the facts of the present case as in that case the Government itself supported the promotion holding to be erroneous under mistaken belief as such Balbir Singh would not help the present petitioner. However the petitioner is at liberty to make representation to the respondent State for consideration of his case on the post of Assistant Directorin accordance with law from the date on which he was entitled to be promoted on the promotional post of Assistant Director in General category as after granting interim order this petition remained pending before this Court for more than ten years. As such W.P S)No.7156 2010 is dismissed with the aforesaid observation liberty to the petitioner to make representation for consideration of his case on the post of Assistant Director Agriculture) in accordance with law. If such representation is made within 30 days the respondent State would consider the same expeditiously preferably within next sixty days keeping in view the above stated facts noticed herein above. 19. Petitioner Anup Kumar Chaturvedani has called in question the order dated 30 12 2006 promoting K.C. Vishwas on the post of Assistant Directorwhich has already been reverted by the State Government by order dated 25 11 2010 and which has been affirmed by this Court by this order and therefore that part of relief no more survives for consideration. It is the case of the present petitioner that he has already been granted the benefit of promotion on the post of Assistant Directorby order dated 1 10 2013 therefore he is entitled to be considered for consequential benefits from 30 12 2006 to 1 10 2013 on the promotional post of Assistant Director under SC category. The petitioner is at liberty to make representation to the respondent State within 30 days for considering his case for the promotional post of Assistant Directorif he is eligible and entitled to be promoted on the said post on 30 12 2006 the date on which K.C. Vishwas was considered and granted promotion. If such representation is made within 30 days the respondent State would consider the same expeditiously preferably within next sixty days keeping in view the above stated facts noticed herein above. 20. It is made clear that the representations if any filed by both the petitioners will be considered by the State strictly in accordance with law expeditiously. 21. With the aforesaid observation W.P.(S)No.5615 2008 is disposed of whereas W.P.(S)No.7156 2010 is dismissed reserving liberty in favour of the petitioners to file representation for redressal of their grievances. No order as to cost(s). Sd Sanjay K. Agrawal

Summary: When a government servant has been promoted erroneously under a reserved category, despite belonging to general category, the state is empowered to annul the promotion as he is not should not reap benefits that he is not entitled to. This was held by a single member bench of the High Court of Chhattisgarh consisting of Justice Sanjay K. Agrawal in the case of K.C. Biswas v State of Chhattisgarh [Writ Petition (S) No. 7156 of 2010] on 23rd June 2021. The petitioner K.C. Biswas was appointed as Agriculture Development Officer on the 26th of June 1983 and later promoted to the post of Senior Agriculture Officer under General Category and he was shown as a member of the general category throughout his career until in the gradation list published on 1st April 2004 where he was shown to belong to the Scheduled Caste category. In the year 2006, he was considered for promotion under the Scheduled Caste category and hence appointed as Assistant Director of Agriculture under SC category.  The promotion of K.C. Biswas was questioned by one Anup Kumar stating that K.C. Biswas did not belong to the SC category and as a General category candidate, he should not have been eligible for the latest promotion. Upon examination of the records, the state government issued two show cause notices and upon his failure to prove that he belonged to the SC category, his promotion was cancelled. The petitioner’s counsel contended that even if the order of promotion was erroneous, it is not his fault as he did not forge or manipulate any records. Since the he has already retired from office on 31st October 2020, the petitioner contends that he should be entitled to the benefits of the promotion which was granted to him as a benefit already granted cannot be taken away on the mistake committed by the state. Mr Sunil Otwani, the additional advocate general representing the state, submitted that the promotion which was wrongly granted had been rightfully annulled after giving the petitioner due chances to present his side of the case or to prove that he belonged to the SC category, which he failed to do. The was further contended that as the petitioner had been granted a promotion that he was not entitled to, no equity lies in his favour and he should not be allowed to reap benefits that he is not entitled to.