Chattisgarh High Court

Ashish Kumar Bhattacharya vs State Of Chhattisgarh on 26 June, 2024

Author:
Narendra Kumar Vyas

Bench:
Narendra Kumar Vyas

Neutral Citation
2024:CGHC:22309

Page 1 of 53

NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR

WPS No. 1441 of 2020

Reserved on : 24.04.2024

Delivered on : 26.06.2024

1. Ku. Ritu Khare D/o Shri Bhagwat Prasad Khare Aged About 37
Years R/o Ekta Nagar, Gudiyari , Raipur, District Raipur
Chhattisgarh., District : Raipur, Chhattisgarh
2. R.D. Tambrey S/o Late Shri P.R. Tambrey Aged About 48 Years
R/o A1- Vinayak Vihar , D.D.U. Nagar, Raipur , District Raipur
Chhattisgarh., District : Raipur, Chhattisgarh
3. Bhavesh Kumar Singh S/o Late Bhushanlal Aged About 49 Years
R/o Near Shweta Floor Mill , Maulipara, Telibanda , Raipur
District Raipur Chhattisgarh., District : Raipur, Chhattisgarh
4. Ku. Mary Divya Gulab Kerketta D/o Late Nikolus Kerketta Aged
About 44 Years R/o Village Kunkuri , Jamtali (Raimte Road) ,
Kunkuri District Jashpur Chhattisgarh, District : Jashpur,
Chhattisgarh
---- Petitioners
Versus
1. State of Chhattisgarh Through The Secretary, Public Works
Department, Mahanadi Bhawan, Mantralaya , Atal Nagar,
Raipur, District Raipur Chhattisgarh, District : Raipur,
Chhattisgarh
2. The Engineer - In - Chief Public Works Department
(Chhattisgarh), Raipur , District Raipur Chhattisgarh, District :
Raipur, Chhattisgarh
3. The Chief Engineer Public Works Department , Raipur , District
Raipur Chhattisgarh, District : Raipur, Chhattisgarh
4. The Chief Engineer Public Works Department , Jagdalpur,
District Bastar Chhattisgarh, District : Bastar(Jagdalpur),
Chhattisgarh
5. The Chief Engineer Public Works Department, Rajnandgaon,
District Rajnandgaon Chhattisgarh, District : Rajnandgaon,
Chhattisgarh
6. The Chief Engineer Public Works Department, Ambikapur,
District Surguja Chhattisgarh, District : Surguja (Ambikapur),
Chhattisgarh
---- Respondents
Neutral Citation
2024:CGHC:22309

Page 2 of 53

WPS No. 5422 of 2023
1. Anuj Sharma S/o Late P. L. Sharma Aged About 57 Years
Presently Working In Office Of Executive Engineer, Pwd,
Gariyaband, District Gariyaband, Chhattisgarh.
2. Prabhat Kumar Saxena, S/o Late B.L. Saxena, Aged About 53
Years Presently Working In Office Of Sub Divisinal Office, Pwd.
Raipur, District Raipur Chhattisgarh.
3. Devnarayan Verma, S/o Late B.L. Saxena, Aged About 59 Years
Presently Working In Office Of Sub Divisional Officer, Pwd
(Building And Roads), Raipur, District Raipur Chhattisgarh.
4. Pradeep Kumar Gupta, S/o. Late Dr. Vishwanath Prasad Gupta,
Aged About 59 Years Presently Working As Assistant Engineer
Office Of Project Manager Adb Project Chhattisgarh State Road
Sector Project Pwd Campus, Sikola Bhata, Durg, District Durg
Chhattisgarh.
---- Petitioners
Versus
1. State of Chhattisgarh Through The Secretary, Public Works
Department, Mantralaya, Nawa Raipur, District Raipur
Chhattisgarh, Himachal Pradesh
2. Engineer In Chief, Public Works Department, Nirman Bhawan,
Atal Nagar, Raipur, District Raipur Chhattisgarh.
3. Mamta Patel W/o Shri Bajrang Patel R/o A-107, Shiddh Shikhar
Vistar, New Nagar, Bilaspur, District Bilaspur Chhattisgarh.
4. Priyanka Mehta W/o Shri Amit Pandey Aged About 35 Years R/o
H. No. 202/a-3, Shivam Residency, Shanti Nagar, Bilaspur,
District Bilaspur Chhattisgarh.
5. Ramesh Kumar Verma S/o P.L. Verma Aged About 45 Years R/o
F-4 Irrigation Colony Jagdalla, Champa, District Janjgir Champa
Chahttisgarh.
6. Amit Kashyap S/o Shri R. N. Kashyap Aged About 44 Years R/o
Near Nandu Garage, Telipara, Bilaspur, District Bilaspur
Chhattisgarh.
7. Rajendra Kumar Sonkar S/o Shri S.R. Sonkar Aged About 44
Years R/o Village Kolyari, District Dhamtari Chhattisgarh.
8. Vishal Trivedi S/o Satya Narayan Trivedi Aged About 36 Years
R/o F-3 P.W.D. Colony, Katora Talab Raipur District Raipur
Chhattisgarh.
9. Abhinav Shrivastava S/o Shri K.K. Shrivastava Aged About 41
Years R/o G13, P.W.D. Colony, Byron Bazar, Raipur District
Raipur Chhattisgarh.
10. Neeta Ramteke W/o Ramchandra Ramteke Aged About 39
Years R/o Happy Homes Colony, Mahavir Nagar, Raipur District
Raipur Chhattisgarh.
Neutral Citation
2024:CGHC:22309

Page 3 of 53

11. Santosh Kumar Gupta S/o Late Shri S.P. Gupta Aged About 45
Years Incharge Executive Engineer, Pwd (B/r) Division
Raman8ujganj, District Balrampur Chhattisgarh.
12. Shraddha Singh W/o Shishir Kumar Singh Aged About 45 Years
R/o House No. -170, Floral City, Dunda, Raipur District Raipur
Chhattisgarh.
13. Nitya Thakur, W/o Shri D.P. Thakur, Aged About 46 Years R/o.
Sadar Deep Enclave, Uslapur District Bilaspur Chhattisgarh.
14. Keshav Prasad Lahre, S/o R.R. Lahre Aged About 51 Years
Ramalife City, Sakri District Bilaspur Chhattisgarh.
15. Nitesh Tiwari, S/o G.P. Tiwari Aged About 42 Years R/o. Flat No.
108, Vashudhara Heights Apartment, Chopdapara Ambikapur,
District Sarguja Chhattisgarh.
16. Rashmi Vaishya, W/o. Nilay Gupta Aged About 38 Years R/o.
Techers Colony Ambedkar Ward Mungeli, District Mungeli
Chhattisgarh.
17. Nand Kishor Dadsena, S/o. Shri T.K. Dadsena Aged About 46
Years Presently Working As Deputy Project Manager, Office Of
The Managing Director Cgridcl Sirpur Bhawan Raipur Behind
Akashwani Kendra Raipur, District Raipur Chahttisgarh.
18. B.K. Gothi, S/o. Late Shri Siyaram Gothi, Aged About 44 Years
Presently Working As Pwd Office Chainganj, Gunderdehi,
District Balod Chhattisgarh.
19. Brijesh Chatuwedi, Aged About 44 Years Presently Working As
Sdo Pwd (B/r), Sub Division Manendrgarh, District
Manendragarh Chirmiri Bharatpur, Chhattisgarh.
20. Santosh Kumar Netam, Aged About 44 Years Presently Working
As Assistant Engineer Nh Division Jagdalpur, District Baster,
Chhattisgarh.
21. Ashish Kuymar Dubey, Aged About 50 Years Presently Working
As Assistant Engineer Office Of The Chief Engineer Nh None
Raipur District Raipur Raipur Chhattisgasrh.
22. Mahavir Prasad Dadsena, Aged About 50 Years Presently
Working As Sdo Pwd (B/r) Sub Division Kurud, District Dhamtari,
Chhattisgarh.
23. Virendra Chaudhary, Aged About 46 Years Presently Working As
In Charge Executive Engineer Pwd (B/r) Divisional Jashpur
District Jashpur Chhattisgarh.
24. Amit Kasyap, S/o R.N. Kasyap, Aged About 47 Years Project
Manager, Office Of The Managing Director Cgridcl Sirpur
Bhawan, Raipur Behind Akashwani Kendra Raipur, District
Raipur Chhattisgarh.
25. Ramadhar Tamre, Aged About 51 Years Assistant Engineer
Office Of The Project Manager Adb Divsion, Jashpur, District
Jashpur, Chhattisgarh.
Neutral Citation
2024:CGHC:22309

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26. Rameshwar Prasad Singh, Aged About 39 Years Assitant
Engineer Office Office Of The Engineer In Chief Nirman Bhawan
Nawa Raipur, District Raipur Chhattisgarh.
27. Sunil Kumar Chaurasia, Aged About 52 Years Sdo Pwd (B/r) Sub
Division Kawardha, District Kawrdha - Kabirdham, Chhattisgarh.
28. Bhawesh Kumar Singh, Aged About 51 Years Sdo Pwd (B/r) Sub
Division Bemetara District Bemetara, Chhattisgarh.
29. Pragya Nand, Aged About 45 Years Incharges Executive
Engineer Pwd Nh Division Jagdalpur, District Bastar
Chhattisgarh.
30. Divya Gulab Kerketta, Aged About 47 Years Assistant Engineer
Pwd Bridge Circle Ambikapur, District Sarguja , Chhattisgarh.
31. Neeta Baidh, Aged About 42 Years Sdo Pwd(B/r) Sub Division
Pithaura, District Mahasamund, Chhattisgarh.
32. Ritu Khare, Aged About 40 Years Sdo Pwd(B/r) Sub Divsion
Khairagarh, District Chhuikhadan Gandai Chhattisgarh.
33. Kumari Asha Mandawi, Aged About 47 Years Presently Working
As Sdo Pwd(B/r) Sub Division Antagarh, District Kanker,
Chhattisgarh.
34. Kumari Purnima Kaushik Aged About 40 Years Presently
Working As Sdo Pwd (B/r) Sub Divisional No. 2 Kondagaon,
District Kondagaon, Chhattsgarh.
35. Agamdas Banjara, Aged About 47 Years Presently Working As
Office Of The Project Manager Adb Division Rajnandgaon,
District Rajnandgaon, Chhattisgarh.
36. Shradha Singh, Aged About 48 Years Presently Working As
Assistant Engineer Pwd Nh Circle Raipur District Raipur,
Chhattisgarh.
37. S. Barua, Aged About 60 Years Presently Working As Assistant
Engineer Sdo (Pwd), Building And Roads, Sub - Division-
Dharamjaygarh, District Raigarh, Chhattisgarh.
38. Mohan Ram Bhagat, Aged About 58 Years Presently Working As
Assistant Engineer Pwd Building And Roads, Ambikpaur, District
Sarguja, Chhattisgarh.
---- Respondents

WPS No. 4524 of 2020
1. Smt. Mamta Patel W/o Shri Bajrang Patel Aged About 43 Years
R/o A-107, Shiddh Shikhar Vistar, New Shanti Nagar, Bilaspur,
District Bilaspur, Chhattisgarh., District : Bilaspur, Chhattisgarh
2. Smt. Priyanka Mehta W/o Shri Amit Pandey Aged About 35
Years H.No.-202,/a-3 Shivam Residency, Shanti Nagar, Bilaspur,
District Bilaspur, Chhattisgarh., District : Bilaspur, Chhattisgarh
3. Ramesh Kumar Verma S/o P.L Verma Aged About 45 Years R/o
Neutral Citation
2024:CGHC:22309

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F-4 Irrigation Colony, Jagdalla, Champa, District Janjgir-
Champa, Chhattisgarh., District : Janjgir-Champa, Chhattisgarh
4. Amit Kashyap S/o Shri R.N. Kashyap Aged About 44 Years R/o
Near Nandu Garage, Telipara, Bilaspur, District Bilaspur,
Chhattisgarh., District : Bilaspur, Chhattisgarh
5. Rajendra Kumar Sonkar S/o Shri S.R. Sonkar Aged About 44
Years R/o Village Kolyari, District Dhamtari, Chhattisgarh.,
District : Dhamtari, Chhattisgarh
6. Vishal Trivedi S/o Satya Narayan Trivedi Aged About 36 Years
R/o F-3, P.W.D. Colony, Katora Talab, Raipur, District Raipur,
Chhattisgarh., District : Raipur, Chhattisgarh
7. Abhinav Shrivastava S/o Shri K.K. Shrivastava Aged About 41
Years R/o G-13, P.W.D. Colony, Byron Bazaar, Raipur, District
Raipur, Chhattisgarh., District : Raipur, Chhattisgarh
8. Smt. Neeta Ramteke W/o Ramchandra Ramteke Aged About 39
Years R/o Happy Homes Colony, Mahavir Nagar, Raipur, District
Raipur, Chhattisgarh., District : Raipur, Chhattisgarh
9. Santosh Kumar Gupta S/o Late Shri S.P. Gupta Aged About 45
Years R/o B-47, Madhuban Colony, Amlidih, Raipur, District
Raipur, Chhattisgarh., District : Raipur, Chhattisgarh
10. Smt. Shraddha Singh W/o Shishir Kumar Singh Aged About 45
Years R/o House No-170, Floral City, Dunda, Raipur, District
Raipur, Chhattisgarh., District : Raipur, Chhattisgarh
---- Petitioners
Versus
1. The State of Chhattisgarh Through The Secretary, Public Works
Department, Mahanadi Bhawan, Mantralaya, Naya Raipur,
Police Station Rakhi, Tahsil And District Raipur, Chhattisgarh,
District : Raipur, Chhattisgarh
2. The Engineer-In-Chief Public Work Department (Chhattisgarh),
Raipur, District Raipur, Chhattisgarh., District : Raipur,
Chhattisgarh
3. The Chief Engineer Public Work Department (Chhattisgarh),
Raipur, District Raipur, Chhattisgarh., District : Raipur,
Chhattisgarh
4. Chhattisgarh Public Service Commission Through Its Chairman,
Chhattisgarh Public Service Commission Shankar Nagar Road,
Bhagat Singh Square Raipur, Chhattisgarh Pin - 492001.,
District : Raipur, Chhattisgarh
5. Shri Hemant Kumar Arora Aged About 54 Years Presently
Working As Chief In Charge Engineer Division - 2 Raipur, Tahsil
Ad District Raipur Chhattisgarh., District : Raipur, Chhattisgarh
6. Shri D.K. Khandelwal Aged About 59 Years Presently Working As
Chief In Charge Engineer A.D. B. Raipur, Tahsil And District
Neutral Citation
2024:CGHC:22309

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Raipur Chhattisgarh., District : Raipur, Chhattisgarh
7. Shri A.K. Shrivas Aged About 57 Years Presently Working As
Chief In Charge Engineer Division Durg, Tahsil And District Durg
Chhattisgarh., District : Durg, Chhattisgarh
8. Shri S.R. Chandrakar Aged About 58 Years Presently Working
As Sub Division No. 1, Mahasamund, District Mahasamund
Chhattisgarh., District : Mahasamund, Chhattisgarh
9. Shri Prafull Kumar Chawda Aged About 58 Years Presently
Working As Office Of Chief Engineer Nava Raipur, Tahsil And
District Raipur Chhattisgarh., District : Raipur, Chhattisgarh
10. Shri Vikash Shrivastava Aged About 58 Years Presently Working
As Chief In - Charge Engineer Division Sukma, District Bastar
Chhattisgarh., District : Bastar(Jagdalpur), Chhattisgarh
11. Shri K.K. Pal Aged About 58 Years Presently Working As Bridge
Sub Division Rajnandgaon, District Rajnandgaon Chhattisgarh.,
District : Rajnandgaon, Chhattisgarh
12. Shri D.K. Chandel Aged About 55 Years Presently Working As
Sub Division No. 3, Nava Raipur, Tahsil And District Raipur
Chhattisgarh., District : Raipur, Chhattisgarh
13. Shri Rajeev Nashine Aged About 55 Years Presently Working As
Sub Division No. 1, Raipur, Tahsil And District Raipur
Chhattisgarh., District : Raipur, Chhattisgarh
14. Shri Vivek Kumar Shukla Aged About 51 Years Presently
Working As Sub Division No. 2, Rajnandgaon, District
Rajnandgaon Chhattisgarh., District : Rajnandgaon,
Chhattisgarh
15. Shri Mahadev Sahu Aged About 56 Years Presently Working As
Bridge Division Raipur, Tahsil And District Raipur Chhattisgarh.,
District : Raipur, Chhattisgarh
16. Shri Rajesh Kumar Verma Aged About 56 Years Presently
Working As Sub Division No. 3, Jagdalpur, District Kanker
Chhattisgarh., District : Kanker, Chhattisgarh
17. Shri Nishesh Datt Bhatt Aged About 56 Years Presently Working
As Chief Engineer Nava Raipur, Tahsil And District Raipur
Chhattisgarh., District : Raipur, Chhattisgarh
18. Shri R.P. Sharaf Aged About 58 Years Presently Working As
Bridge Sub Division Durg, District Durg Chhattisgarh., District :
Durg, Chhattisgarh
19. Shri R.K. Guru Aged About 57 Years Presently Working As Chief
In- Charge Engineer National Highway Division Raipur, Tahsil
And District Raipur Chhattisgarh., District : Raipur, Chhattisgarh
20. Shri Jiyamusbir Khan Aged About 57 Years Presently Working As
Chief Engineer Nava Raipur, Tahsil And District Raipur
Chhattisgarh., District : Raipur, Chhattisgarh
Neutral Citation
2024:CGHC:22309

Page 7 of 53

21. Shri Umendra Singh Verma Aged About 58 Years Presently
Working As Chief Engineer National Highway Circle Raipur,
Tahsil And District Raipur Chhattisgarh., District : Raipur,
Chhattisgarh
22. Shri Lalit Kumar Bhoi Aged About 53 Years Presently Working As
Chief Engineer Surguja Circle, Ambikapur, District Surguja
Chhattisgarh., District : Surguja (Ambikapur), Chhattisgarh
23. Shri S.K. Satpanthi Aged About 54 Years Presently Working As
Project Manager C.G.R.D.C. Bilaspur, District Bilaspur
Chhattisgarh., District : Bilaspur, Chhattisgarh
24. Shri Anuj Sharma Aged About 54 Years Presently Working As
Sub Division Tilda, District Raipur Chhattisgarh., District : Raipur,
Chhattisgarh
25. Shri Ashish Kumar Bhattacharya Aged About 53 Years Presently
Working As Construction Department, Sub Division No. 1, Nava
Raipur, Tahsil And District Raipur Chhattisgarh., District : Raipur,
Chhattisgarh
26. Shri Devnarayan Sharma Aged About 56 Years Presently
Working As Construction Department, Sub Division - 2 Raipur,
Tahsil And District Raipur Chhattisgarh., District : Raipur,
Chhattisgarh
27. Shri Chandrakishore Pandey Aged About 53 Years Presently
Working As Bridge Sub Division - 1, Raipur,tahsil And District
Raipur Chhattisgarh., District : Raipur, Chhattisgarh
28. Shri Gregribasant Khakha Aged About 52 Years Presently
Working As Sub Division - 2, Ambikapur, District Surguja
Chhattisgarh., District : Surguja (Ambikapur), Chhattisgarh
29. Ramratan Dhruw Aged About 55 Years Presently Working As
Sub Division - 1, Gariyaband, District Gariyaband Chhattisgarh.,
District : Gariyabandh, Chhattisgarh
30. Shri Jawahar Lal Mankar Aged About 56 Years Presently
Working As Sub Division -1, Narayanpur, District Bastar
Chhattisgarh., District : Bastar(Jagdalpur), Chhattisgarh
31. Shri Ramesh Ekka Aged About 58 Years Presently Working As
Bijapur Division Bijapur, District Bastar Chhattisgarh., District :
Bijapur, Chhattisgarh
32. Shri Pradeep K. Gupta Aged About 56 Years Presently Working
As Executive Project Manager A.D.B. Division, Rajnandgaon
District Rajnandgaon Chhattisgarh., District : Rajnandgaon,
Chhattisgarh
33. Shri Shivlal Thakur Aged About 54 Years Presently Working As
Bridge Sub Division Dantewada, District Dantewada
Chhattisgarh., District : Dantewada, Chhattisgarh
34. Shri Prabhat Kumar Saxena Aged About 51 Years Presently
Working As Sub Division - 4, Arang, District Raipur
Neutral Citation
2024:CGHC:22309

Page 8 of 53

Chhattisgarh., District : Raipur, Chhattisgarh
35. Shri Chandrashekhar Chandrakar Aged About 53 Years
Presently Working As Division Officer Sub Division Raipur, Tahsil
And District Raipur Chhattisgarh., District : Raipur, Chhattisgarh
36. Shri B.N.K. Shashri Aged About 57 Years Presently Working As
High Court Sub Division 2 Bilaspur Tahsil And District Bilaspur
Chhattisgarh., District : Bilaspur, Chhattisgarh
37. Shri Toran Lal Thakur Aged About 59 Years Presently Working
As Sub Division Kusmi, District Sukma Chhattisgarh., District :
Sukuma, Chhattisgarh
38. Shri Sanjay G. Chauhan Aged About 53 Years Presently Working
As Sub Division Chhuikhadan Bilaspur, Tahsil And District
Bilaspur Chhattisgarh., District : Bilaspur, Chhattisgarh
39. Shri C.S. Vindhyaraj Aged About 51 Years Presently Working As
Sub Division 2, Bilaspur, Tahsil And District Bilaspur
Chhattisgarh., District : Bilaspur, Chhattisgarh
40. Shri P.K. Baghade Aged About 56 Years Presently Working As
Chief Engineer Nava Raipur, District Raipur Chhattisgarh.,
District : Raipur, Chhattisgarh
41. Shri Govind Kumar Ahirwar Aged About 46 Years Presently
Working As National Highway Project Sub Division Raipur,
District Raipur Chhattisgarh., District : Raipur, Chhattisgarh
42. Shri K.K. Saral Aged About 49 Years Presently Working As Sub
Division Champa, District Janjgir Champa Chhattisgarh.,
District : Janjgir-Champa, Chhattisgarh
---- Respondents
WPS No. 4895 of 2020
1. Santosh Kumar Netam S/o Late Shri A.R. Netam Aged About 41
Years R/o Village Bhairamgarh, District Bijapur Chhattisgarh.,
District : Bijapur, Chhattisgarh
2. Nitesh Tiwari S/o Shri G.P. Tiwari Aged About 39 Years R/o Near
Shiv Mandir, Vidhya Nagar, Bilaspur.
---- Petitioners
Versus
1. State of C.G. Through The Secretary, Public Works Department,
Mahanadi Bhawan, Mantralaya, Atal Nagar, Raipur, District
Raipur Chhattisgarh., District : Raipur, Chhattisgarh
2. The Engineer In Chief Public Works Department Chhattisgarh,
Raipur District Raipur Chhattisgarh., District : Raipur,
Chhattisgarh
3. The Chief Engineer Public Works Department, Raipur, District
Raipur Chhattisgarh., District : Raipur, Chhattisgarh
4. The Committee (Constituted By Order Dated 10.07.2020 For
Neutral Citation
2024:CGHC:22309

Page 9 of 53

Deciding The Representation Of Asst. Engineers), Public Works
Department, Mahanadi Bhawan, Atal Nagar, Naya Raipur,
District Raipur Chhattisgarh., District : Raipur, Chhattisgarh
5. The Chairman / President Departmental Promotion Committee
Office Of Chief Engineer, Public Works Department, Nirman
Bhawan North Block, Sector 19 Naya Raipur, Atal Nagar, District
Raipur Chhattisgarh., District : Raipur, Chhattisgarh
---- Respondents
WPS No. 8716 of 2023
Sanjay Gopal Chauhan S/o Shri Gopal Devram Chouhan
Aged About 56 Years R/o A-41, Vinoba Nagar, Bilaspur,
District Bilaspur (C.G.) Pin Code 495004. Holding The
Substantive Post Of Assistant Engineer, Public Works
Department.
---- Petitioner
Versus
1. State of Chhattisgarh Through The Secretary, Public Works
Department, Government of Chhattisgarh, Mantralaya,
Mahanadi Bhawan, Nava Raipur, Atal Nagar, Raipur, District
Raipur (C.G.) Pin Code 492002
2. Under Secretary Public Works Department, Government Of
Chhattisgarh, Mantralaya, Mahanadi Bhawan, Nava Raipur, Atal
Nagar, Raipur, District Raipur (C.G.)
3. Engineer-In-Chief, Public Works Department, Nirman Bhawan,
Nava Raipur, Atal Nagar, Raipur, District Raipur (C.G.), Pin Code
492002.
4. Mamta Patel W/o Shri Bajrang Patel Aged About 43 Years R/o A-
107, Siddh Shikhar Vistar, New Nagar, Bilaspur, District Bilaspur
(C.G.)
5. Priyanka Mehta W/o Shri Amit Pandey Aged About 35 Years R/o
House No. 202/a-3, Shivam Residency, Shanti Nagar, Bilaspur,
District Bilaspur (C.G.)
6. Ramesh Kumar Verma S/o Shri P.L. Verma Aged About 45 Years
R/o F-4, Irrigation Colony, Jagdalla, Champa, District Janjgir-
Champa (C.G.)
7. Amit Kashyap S/o Shri R.N. Kashyap Aged About 44 Years R/o
Near Nandu Garage, Telipara, Bilaspur, District Bilaspur (C.G.)
8. Rajendra Kumar Sonkar S/o Shri S.R. Sonkar Aged About 44
Years R/o Village Kolyari, District Dhamtari (C.G.)
9. Vishal Trivedi S/o Shri Satya Narayan Trivedi Aged About 36
Years R/o F-3, P.W.D. Colony, Katora Talab, Raipur, District
Raipur (C.G.)
10. Abhinav Shrivastava S/o Shri K.K. Shrivastava Aged About 41
Years R/o G-13, P.W.D. Colony, Byron Bazar, Raipur, District
Neutral Citation
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Page 10 of 53

Raipur (C.G.)
11. Neeta Ramteke W/o Shri Ramchandra Ramteke Aged About 39
Years R/o Happy Homes Colony, Mahavir Nagar, Raipur, District
Raipur (C.G.)
12. Santosh Kumar Gupta S/o Late Shri S.P. Gupta Aged About 45
Years In-Charge Executive Engineer, Public Works Department
(B/r), Division Ramanujganj, District Balrampur-Ramanujganj
(C.G.)
13. Shraddha Singh W/o Shishir Kumar Singh Aged About 45 Years
R/o House No. 170, Floral City, Dunda, Raipur, District Raipur
(C.G.)
14. Nitya Thakur W/o Shri D.P. Thakur Aged About 46 Years R/o
Sadar Deep Enclave, Uslapur, District Bilaspur (C.G.)
15. Keshav Prasad Lahre S/o Shri R.R. Lahre Aged About 51 Years
R/o D-119, Rama Life City, Sakri, District Bilaspur (C.G.)
16. Nitesh Tiwari S/o Shri G.P. Tiwari Aged About 42 Years R/o Flat
No. 108, Vashudhara Heights Apartment, Chopdapara,
Ambikapur, District Surguja (C.G.)
17. Rashmi Vaishya W/o Shri Nilay Gupta Aged About 38 Years R/o
Teacher Colony, Ambedkar Ward, Mungeli, District Mungeli
(C.G.)
18. Nand Kishor Dadsena S/o Shri T.K. Dadsena Aged About 46
Years Presently Working As Deputy Project Manager, Office Of
The Managing Director, Cgridcl, Sirpur Bhawan, Raipur, Behind
Akashwani Kendra, Raipur, District Raipur (C.G.)
19. B.K. Gothi S/o Late Shri Siyaram Gothi Aged About 44 Years
Presently Working In Public Works Department Office,
Chainganj, Gunderdehi, District Balod (C.G.)
20. Brijesh Chaturvedi Aged About 44 Years Presently Working As
Sub Divisional Officer, Public Works Department (B/r), Sub
Division Manendragarh, District Manendragarh-Chirmiri-
Bharatpur.
21. Santosh Kumar Netam Aged About 44 Years Presently Working
As Assistant Engineer, Nh Division Jagdalpur, District Baster
(C.G.)
22. Ashish Kumar Dubey Aged About 50 Years Presently Working As
Assistant Engineer, Office Of The Chief Engineer, Nh Zone,
Raipur, District Raipur (C.G.)
23. Mahavir Prasad Dadsena Aged About 50 Years Presently
Working As Sub Divisional Officer, Public Works Department
(B/r), Sub Division Kurud, District Dhamtari (C.G.)
24. Virendra Chaudhary Aged About 46 Years Presently Working As
In-Charge Executive Engineer Public Works Department (B/r),
Division Jashpur, District Jashpur (C.G.)
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25. Amit Kasyap S/o Shri R.N. Kasyap Aged About 47 Years Project
Manager, Office Of The Managing Director, Cgridcl, Sirpur
Bhawan, Raipur, Behind Akashwani Kendra, Raipur, District
Raipur (C.G.)
26. Ramadhar Tamre Aged About 51 Years Assistant Engineer,
Office of The Project Manager, Adb Division, Jashpur, District
Jashpur (C.G.)
27. Rameshwar Prasad Singh Aged About 39 Years Assistant
Engineer, Office of The Engineer-In-Chief, Nirman Bhawan,
Nava Raipur, Atal Nagar, Raipur, District Raipur (C.G.)
28. Sunil Kumar Chaurasia Aged About 52 Years Sub Divisional
Officer, Public Works Department (B/r) Sub Division Kawardha,
District Kawardha-Kabirdham (C.G.)
29. Bhawesh Kumar Singh Aged About 51 Years Sub Divisional
Officer, Public Works Department (B/r) Sub Division Bemetara,
District Bemetara (C.G.)
30. Pragya Nand Aged About 45 Years In-Charges Executive
Engineer, Public Works Department, NH Division, Jagdalpur,
District Baster (C.G.)
31. Divya Gulab Kerketta Aged About 47 Years Assistant Engineer,
Public Works Department, Bridge Circle, Ambikapur, District
Sarguja (C.G.)
32. Neeta Baidh Aged About 42 Years Sub Divisional Officer, Public
Works Department (B/r), Sub Division Pithaura, District
Mahasamund (C.G.)
33. Ritu Khare Aged About 40 Years Presently Working As Sub
Divisional Officer, Public Works Department (B/r), Sub Division
Khairagarh, District Khairagarh Chhuikhadan Gandai (C.G.)
34. Kumari Asha Mandawi Aged About 47 Years Presently Working
As Sub Division Officer, Public Works Department (B/r), Sub
Division Antagarh, District Kanker (C.G.)
35. Kumari Purnima Kaushik Aged About 40 Years Presently
Working As Sub Divisional Officer, Public Works Department
(B/r), Sub Division No. 2, Kondagaon, District Kondagaon (C.G.)
36. Agamdas Banjara Aged About 47 Years Presently Working In
Office Of Project Manager, ADB Division, Rajnandgaon, District
Rajnandgaon (C.G.)
37. Shraddha Singh Aged About 48 Years Presently Working As
Assistant Engineer, Public Works Department, NH Circle, Raipur,
District Raipur (C.G.)
38. S. Barua Aged About 60 Years Presently Working As Sub
Divisional Officer (Pwd), Building and Roads, Sub Division
Dharamjaygarh, District Raigarh (C.G.)
39. Mohan Ram Bhagat Aged About 58 Years Presently Working As
Assistant Engineer, Public Works Departmen, Building And
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Roads, Ambikapur, District Sarguja (C.G.)
---- Respondents
and
WPS No. 9062 of 2023
Ashish Kumar Bhattacharya S/o Late Ajit Kuar Bhattachrya
Aged About 56 Years R/o A-75, Sapphire Green, Ps- Vidhan
Sabha, Raipur, District- Rapur, Chhattisgarh.
---- Petitioner
Versus
1. State of Chhattisgarh Through The Secretary, Public Works
Department, Mantralaya, Nawa Raipur, District- Raipur,
Chhattisgarh.
2. Engineer In Chief Public Works Department, Nirman Bhawan,
Atal Nagar, Rapur, District- Raipur, Chhattisgarh.
3. Deputy Secretary Public Works Department, Mantralaya, Nawa
Raipur, District- Raipur, Chhattisgarh.
---- Respondents
________________________________________________________

For respective Petitioners : Mr. S. C. Verma, Sr. Advocate with
Mr. Manharan Lal Sahu, Mr. Sunil
Otwani with Mr. Shobhit Koshta, Mr.
K. Rohan, Mr. Anoop Majumdar, Mr.
Mayank Chandrakar, Advocates
For State : Mr. Gary Mukhopadhyay, Govt. Adv.
For CGPSC : Mr. Anuroop Panda, Advocate
For respective Respondents : Mr. Prafull N. Bharat, Sr. Advocate
with Mr. Shashank Thakur, Mr.
Manoj Paranjpe with Mr. Arpan
Verma, Mr. C. J. K. Rao, Mr.
Saurabh Dangi, Mr. Mahesh Kumar
Mishra and Mr. V. K. Pandey on
behalf of Mr. U.K.S. Chandel,
Advocates
For Intervenors : Mr. Anand Dadariya & Mr.
Harshwardhan Agrawal, Advocates
________________________________________________________

Hon'ble Shri Narendra Kumar Vyas, J.

CAV ORDER

1. Since an identical issue and common question of facts are
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involved in bunch of these writ petitions, they are heard

analogously and are being decided by this common order.

Brief facts of WPS No. 5422 of 2023 & WPS No. 9062 of 2023

are:-

2. The instant writ petitions have been preferred by the petitioners

against legality, validity and propriety of the order dated

26.07.2023 (Annexure P/1) passed by respondent No. 2

whereby the long-standing seniority of the petitioners has been

disturbed without any cogent reason and accordingly seniority

list prevailing since 2009-2020 has been modified. The

petitioners have also prayed that seniority list which was in

existence from 2010-2020 shall be restored.

3. The brief facts as reflected from records are that the petitioners

were initially appointed on the post of Sub-Engineer in the Public

Works Department and they were promoted on the post of

Assistant Engineer as per departmental promotion committee

convened on 24.07.2008 but promotion orders were not issued,

in the meanwhile the private respondents were appointed on

02.08.2008 on the post of Assistant Engineer (Civil). The

petitioners were granted seniority over the private respondents

vide order dated 31.07.2008. The seniority granted to the

petitioners was continued but all of a sudden the impugned order

dated 26.07.2023 (Annexure P/1) has been passed disturbing

the long-standing seniority granted to the petitioner. This order is

being assailed by the petitioners.

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Brief facts of WPS No. 1441 of 2020, WPS No. 4895 of 2020 &

WPS No. 4524 of 2020 are:-

4. The instant petitions have been preferred by the petitioners

against inaction on the part of the respondents in not considering

the degree holder Assistant Engineer for promotion on the post

of Executive Engineer as the respondent State is only

considering for promotion on the post of Executive Engineer to

those candidates who are promoted from the post of Sub-

Engineer/Overseers. The contention of the petitioners in brief is

that the petitioners are degree holder Assistant Engineer

appointed on 02.08.2008 (Annexure P/1) and as per Rule 13 &

14 as well as Schedule-IV of Chhattisgarh Public Works

Engineering (Gazetted) Service Rules, 1969 (for short "the

Rules, 1969"), 92% posts are filled up from direct recruitment

Assistant Engineer and remaining 8% have to be filled up by

Assistant Engineers who have been promoted from the post of

Sub-Engineers/Overseers and would submit that in the set up of

department, 76 posts of Executive Engineer is sanctioned and

41 posts have already been filled up and out of 41 posts, 19

posts have been occupied by Assistant Engineers directly

recruited and 22 posts have been occupied by the persons who

are promoted from the post of Sub-Engineers/Overseers and 25

posts are lying vacant still the case of the petitioners for

promotion is not being considered and thus, on the above factual

foundation, they have prayed for following reliefs:-

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(1) To issue an appropriate writ or order and direct the
respondents to consider the case of the petitioners for
promotion to the post of Executive Engineer Class I in
terms of 'Recruitment Rules of 1969'.

(2) To issue an appropriate writ or order and direct the
respondents to fill up the vacant post of Executive engineer
Class I in Public Works Department in terms of
'Recruitment Rules of 1969'.

(3) To issue an appropriate writ or order and hold that the
action of respondents of giving charge to the promotee
Assistant Engineers is contrary to the prescriptions and
bad in law.

In WPS No. 4985/2020, the petitioners have prayed for

quashing of the decision taken by the committee vide Annexure

P/10 wherein the direct recruited Assistant Engineers in the year

2008 have moved the representation and respondent authority

has rejected the representation of the petitioners for correction in

the seniority list and prayer for promotion. The decision of the

authority rejecting the representation of the petitioner is per se

illegal and bad as Rule 12 of the Chhattisgarh Civil Services

(General Condition of Service) Rules, 1961 (for short "the Rules,

1961") specifically provides that the seniority of a direct recruited

government servant appointed on probation shall be counted

during his probation from the date of his appointment, Rule 12

(a)(ii) of the Rules, 1961 is applicable in a case where the

probation has been extended by the appointing authority

admittedly in the case of the petitioners the probation was never

extended thus the conclusion drawn by the said committee is per
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se illegal and contrary to the provisions contained in the Rules,

1961. It has also been contended that respondents No. 1 & 2 are

proceeding with the DPC on the basis of gradation list of the year

2019-20 which was issued on 28.10.2020 without giving any

opportunity to submit their objection, is in violation of principle of

natural justice and would pray for quashing of the decision

(Annexure P/10) taken by the committee and also prayed for

promotion on the post of Assistant Engineers strictly in

accordance with the Rules, 1961.

In WPS No. 4524/2020 the petitioners have prayed for quashing

of the decision taken by the committee by which their

representation has been rejected. The petitioners have reiterated

the same factual matrix which has already been reiterated in

WPS No. 1441 of 2020, WPS No. 4895 of 2020.

Brief facts of WPS No. 8716 of 2023 are:-

5. Apart from the facts mentioned in aforesaid writ petitions, it has

also been contended in the writ petition that in the year 2008,

257 sanctioned posts of Assistant Engineers was sanctioned in

the department and only 47 officers were posted as such 210

posts are lying vacant and 340 additional posts were anticipated

to become vacant. Accordingly, a proposal for making promotion

to the post of Assistant Engineer (Civil) for the year 2005-07 was

already sent to the Chhattisgarh Public Service Commission who

convened the DPC on 24.07.2008 and all the Sub-Engineers

were recommended to be promoted by the CGPSC on
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30.07.2008 and their promotion orders were issued on

19.09.2008. It has also been contended that some of the private

respondents have filed WPS No. 3208/2020 wherein this Court

while passing the order on 18.08.2020 and has observed in

paragraph 5 that since the petitioners have already preferred

representation and the State Government has constituted a

committee on 10.07.2020, it is directed that the said committee

shall consider the representation and pass a detailed order. In

view of the above factual matrix, the petitioner has also prayed

for same relief for quashing of the order dated 26.07.2023

(Annexure P/1).

6. Some of the the intervenors are in support of the petitioners and

some of the intervenors are against the petitioners. Learned

counsel for the interveners who supports the case of the

petitioners would submit that the intervenors are posted as

Assistant Engineer were promoted to the post of Assistant

Engineer vide order dated 19.09.2008. The Seniority of the

intervenor along with other promoted Assistant Engineers has

been decided as per Rule 12 of the Rules, 1961. The private

respondents have objected the seniority granted to the

intervenor and other promoted assistant engineer although they

have been promoted under a separate quota. As such, any order

passed by this Court in these petitions, will have adverse affect

in the service carrier of the intervenor, therefore, they would pray

for allowing the intervention applications. Learned counsel for
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the intervenors would submit that the impugned order dated

26.07.2023 (Annexure P/1) is bad in law as long-standing

seniority has been adversely affected by the impugned order,

thus, they would pray for quashing of the impugned order dated

26.07.2023 (Annexure P/1).

7. Considering the submission, the intervention applications filed by

the intervenors are allowed as their interest are being adversely

affected in ongoing litigation between the parties. Accordingly,

the intervenors are allowed to make their submissions.

Return of the State:-

8. In WPS No. 5422 of 2023, WPS No. 9062 of 2023, WPS No.

8716 of 2023 the State has filed their return mainly contending

that the petitioners were earlier appointed as Sub-Engineers and

then promoted to the post of Assistant Engineer as per the DPC

convened on 24.07.2008 for 188 posts but the promotion orders

were issued on 19.09.2008 & 31.07.2008. As such, their date of

promotion will be 19.09.2008 & 31.07.2008. It has also been

contended that the petitioners whose names were not found

place in the list of 31.07.2008, cannot claim seniority from

31.07.2008 and candidature of the petitioners were found

eligible and kept in the list of 30 posts of anticipated candidates

and in the meantime, on 19.09.2008, 26 posts of Assistant

Engineer got vacant due to the promotion of Assistant Engineer

to Executive Engineer, therefore, to fulfill these 26 posts, the

candidature from the list of anticipated candidates who were
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found eligible in the DPC convened on 24.07.2008, was

considered and new list of promotion was published on

19.09.2008 giving the promotion to the petitioners, from Sub-

Engineers to Assistant Engineer. Thus, it is quite vivid that the

petitioners were promoted on 19.09.2008 and they borne in the

cadre of the Assistant Engineer w.e.f. 19.09.2008 and not from

31.07.2008, therefore, as per Rule 12(1)(e) of the Rules, 1961,

the seniority of the petitioners were to be counted from

19.09.2008 not from 31.07.2008. The list of the candidates given

promotion on 31.07.2008 along with the list of the candidates

whose names were later on considered during circulation w.e.f.

31.07.2008 is also filed with the return as Annexure R/3 & R/4. It

is also pertinent to mention here that all the 158 vacant posts

were fulfilled on 31.07.2008 itself and during the DPC Convened

on 24.07.2008, the candidatures of the petitioners were found

eligible and kept in the list of 30 posts of anticipated candidates.

9. It has also been contended that writ petition bearing WP(S) No.

3208 of 2020 was filed before this Court and disposed off on

18.08.2020, wherein it has been held as under:-

"5. Reading of the order dated 10.07.2020 (Annexure P-2)
would show that the State Government has already formed
a Committee to decide the seniority amongst the Assistant
Engineer (Civil) and invited for objection and
representation. Since it appears that the representation
has already been preferred by the petitioners to the
Secretary, Public Works Department, the Committee shall
consider the representation of the petitioners and pass a
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detail order. It is further made clear, at this stage, the Court
has not observed any right of the intervener or in respect of
the merit of this case."

10. In pursuance of the order passed by this Court in WPS No. 3208

of 2020, a committee was constituted by the State Government

for looking towards the objections raised by various promotees

as well as direct recruitees in case of seniority and the

Committee has submitted its report to the Secretary, Public Work

Department, State of Chhattisgarh, on 13.10.2020 wherein it

was recommended that the inter-se seniority between the direct

recruitment as well as promotees, shall be decided on the basis

of Rule 12(1)(e) of the Rules, 1961. It has been further

contended that the he Secretary, General Administration

Department on 27.03.2021 has given an opinion on 21.05.2021

for determining the seniority as per Rule 12(1)(c) of the Rules,

1961.

11. It has been further contended that another writ petition bearing

WPS No. 1607 of 2023 was filed by the petitioner-Umendra

Verma (who was promoted as Assistant Engineer from Sub-

Engineer on 31.07.2008, serial No. 109), wherein he has

challenged non-consideration of his candidature for promotion

on the post of Executive Engineer, which was disposed off by

this Hon'ble Court on 02.03.2023, directing the respondent

authorities to convene the DPC within four months and take

necessary actions in accordance with law, therefore, to comply

the order of the Hon'ble Court, the necessity arose to prepare
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the gradation list, and the same was done on the basis of the

opinion of the General Administration Department.

12. It has been further contended that the seniority list published

from 01.04.2009 to 01.04.2020 was revised on the

recommendation of the General Administration Department of

State of Chhattisgarh and the revised list was prepared relying

upon Rule 12 (1)(e) of the Rules, 1961. As a result of which,

petitioners were placed below the private respondents. It has

been further contended that the petitioners are junior to the

private respondents as evident from their date of appointment

mentioned in Annexure R/1.

13. It has been further contended that various representations were

made by the private respondents before the Government

authorities for revising the seniority list as the same seniority list

was not in accordance with Rule 12(1) (e) of the Rules, 1961,

which has been considered by the State vide order dated

26.07.2023 (Annexure P/1) modifying the seniority of Assistant

Engineers of the department.

14. The respondents/ State has also enclosed the note-sheet of the

file which has decided to apply Rule 12 (1)(e) of the Rules, 1961

for fixing the inter se seniority between direct recruited or

promoted Assistant Engineers. It has been further contended

that while considering the issue of promotion and dispute

pertains to the seniority. the State Government has taken the

final decision on 26.07.2023 and after considering all the facts
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and circumstances and the Rules, 1961 have decided that the

respondents who were appointed on 02.08.2008 will be placed

above the Assistant (Civil) Engineers who were promoted on

19.09.2008 against the vacancies occurred on 19.09.2008. It

has been further contended that from bare perusal of the

aforesaid chronological dates and events, it is quite vivid that

the dispute pertains to only seniority amongst the Assistant

Engineers (Civil) directly appointed on 02.08.2008 and Assistant

Engineers (Civil) was promoted on 19.09.2008. It is also clear

that, the petitioner was considered for promotion for the future

vacancies (if no vacancy occurred, the petitioners have no right

to claim promotion). Admittedly the future vacancies occurred on

19.09.2008 itself and therefore, the petitioner was promoted

against the said vacant post.

15. In WPS No. 1441/2020, the State has further contended that the

instant petition has been preferred jointly by the petitioners

seeking promotion to the higher post. According to the

petitioners, they were appointed on the post of Assistant

Engineer (Civil) in Public Works Department and their services

are governed by the Recruitment Rules of 1969 under which

Rule 14 deals with appointment by promotion and Schedule IV

prescribes that for promotion to the post of Executive Engineer

Class I, a candidate must have an experience of 6 years. It has

also been contended that a meeting was convened on

18.07.2011 by the Chhattisgarh Public Service Commission,
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Raipur regarding promotion to the post of Executive Engineer

(Civil) from the post of Assistant Engineer for the promotion year

2010. It has been further contended that one Pradeep Kumar

Janvade had preferred WPS No 1679/2012 before the Hon'ble

High Court against the promotion order dated 27.06.2011, which

was passed after the review DPC for promotion to the post of

Executive Engineer from the post of Assistant Engineer (Civil) for

the promotion year 1991. In the aforesaid petition, the Hon'ble

Court has passed stay order on 03.10.2013. Thereafter, in

pursuance of the order dated 03.10.2013, the seniority list for the

post of Executive Engineer and higher posts could not be issued

nor the proceeding for promotion to the post of Executive

Engineer, Superintending Engineer, Chief Engineer and

Engineer-in-Chief has been initiated. Subsequently, this Court

has vacated the order of stay granted on 03.10.2013 as modified

on 12.08.2014 and granted liberty to the State of Chhattisgarh to

re-draw the seniority if so advised independent of decision of this

Court in Rajeev Sharma's case (supra) in accordance with law.

However. any promotion to any member of the cadre shall be

subject to the final decision of the writ petition. It has been

further contended that the department initiated proceeding

regarding grant of promotion to the post of Superintending

Engineer and Executive Engineer, which is under process. After

considering the records and relevant aspects, it is clear if the

petitioners found fit for promotion to the higher post, the
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promotion would be granted in accordance with law. It has been

further contended that the petitioners cannot claim promotion on

the higher post as a matter of right.

16. In WPS No. 4895 of 2020 & WPS No. 4524 of 2020, the State

has filed their return mainly contending that a detailed

representation was made by many of the direct recruitees to

correct the aforesaid anomaly. It has been further contended that

that the present petition itself is not maintainable and liable to be

dismissed on the ground of delay and latches. It is settled

position of law that the dispute with respect to the seniority or

promotion is to be raised at the earliest point of time and not

belatedly. As in the instant case the seniority of the Assistant

Engineers have already been finalized in the year 2011 and the

gradation list dated 29.03.2011. Subsequently finding the

discrepancy in the promotion of Sub Engineers to the post of

Assistant Engineers, wherein certain seniors have been left from

being promoted and juniors have got promotion contrary to law,

a Review D.P.C. was convened on 05.06.2010 and the order

dated 31/07/2008 was amended giving seniority to all the Sub

Engineers who got promoted to the post of Assistant Engineers

from 31/07/2008 itself and fresh orders were issued on

28/08/2010 promoting and demoting the officers in accordance

with law.

17. It has been further contended that after conducting review DPC,

the gradation list was prepared and published as per Rules of
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1961 maintaining the seniority of promoted Assistant Engineers

and directly appointed Assistant Engineer. The petitioners

neither have challenged the order of review DPC and the

decision taken thereupon, nor the gradation list issued in the

year 2011 at the relevant point of time which became final. It is

settled position of law that mere filing of representation with

respect to stale claim does not give any fresh cause of action

nor the delay and laches are wiped out. Hon'ble the Supreme

Court in case of
Union of India Vs. C. Girija & others
reported

in (2019) 15 SCC 633 and would pray for dismissal of the writ

petitions.

18. It has been further contended that the petitioners are not

governed presently as per Rules 1969, since in the year 2015

new Rules have already been notified namely Chhattisgarh

Public Works Engineering (Gazetted) Service Recruitment Rules

2015 (for short "the Rules, 2015") and as such the petitioners

are governed by the same. It has been further contended that

neither review DPC was ever challenged nor the decision dated

28/08/2010 was put to challenge by the petitioners at any point

of time which became final. The posts were lying vacant and the

DPC was duly convened and recommended for promotion to all

the Sub Engineers to the post of Assistant Engineers and mainly

for the reason, few orders of promotion were issued subsequent

to the appointment of the petitioners does not entitle them to

claim benefit over and above, the promotee Assistant Engineers
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whose candidature was under consideration for promotion of the

year 2005, 2006 & 2007. It is further respectfully submitted that

the entire action on the part of the answering respondents is

accordance with law and no benefit was given to any person

illegally and the seniority list / gradation list which was published

is in accordance with law. The promotee Assistant Engineers

were entitled to the seniority as on 31.07.2008, since on that

date already candidature of all the Sub Engineers was duly

considered and recommended in accordance with law which

was duly considered at the time of Review DPC and accordingly

the seniority list was published in the year 2011 wherein the

petitioners were kept below the Assistant Engineers who were

promoted.

19. It has been further contended that all the facts have been duly

considered by the Committee and by a detailed speaking order

their representations were rejected which cannot be faulted with

the seniority as determined by the Committee, after considering

Rule 12 of the Rules, 1961. The petitioners themselves are not

entitled for any relief in view of the settled position of law as held

by various High Courts and the Hon'ble Supreme Court, holding

that the dispute regarding seniority or promotion cannot be

raised at a belated stage as the same is having cascading effect

and the courts cannot interfere to unsettle, the settled position

and the petitioners should have to be vigilant in order to make

any challenge to the seniority. It has been further contended that
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the order impugned does not suffer from any infirmity and

legality, petitioners are not entitled for any relief as prayed for

and the petition filed by the petitioners being devoid of merits

without substance is liable to be dismissed.

20. The private respondents have also filed their return mainly

contending that on 24.07.2008 a Departmental Promotion

Committee (DPC) was held for grant of promotion on the post of

assistant engineers from the feeder cadre of sub engineers for

188 vacant posts and 135 Sub Engineers were promoted vide

order dated 31.07.2008 and some posts were kept under

circulation. It has been further contended that after the issuance

of promotion order for 135 Sub-Engineers 30 anticipated

vacancies of Assistant Engineers were left out which were to be

filled by promotion of Sub Engineers. These anticipated

vacancies have arisen due to promotion of Assistant Engineer

on the post of Executive Engineer. The petitioners were granted

promotion against these 30 anticipated vacancies vide order

dated 19.09.2008 only when the anticipated vacancies became

actual available. They would further submit that the submission

made by the petitioners that all the 155 Sub Engineers were

promoted to the post of Assistant Engineer and postings were

given to them on 31.07.2008, is incorrect submission of facts as

first promotion order was issued on 31.07.2008 in which 135

Sub-Engineers were granted promotion on the post of Assistant

Engineer and second promotion order was issued on 19.09.2008
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in which petitioners were granted promotion. It has been further

contened that it is settled principle of law that an employee takes

birth in the cadre either on the date of appointment or from the

date of its promotion. It is immaterial that when the DPC was

held, whether some of the recommended candidates were

promoted earlier, therefore, the submission made by the

petitioners that all 155 Sub-Engineers were posted vide order

dated 31.07.2008, is illegal and bad in law as on date of DPC.

21. It has been further contended that the anticipated vacancies

were not even actual vacancies. It has been further submitted

that to conduct direct recruitment on the post of Assistant

Engineer (Civil), an advertisement was issued on 28.12.2006.

The private respondents were participated in the said

recruitment process and being successful in the selection

process, appointments were granted against 42 posts of

Assistant Engineer (direct recruitment quota) to them vide order

dated 02.08.2008. They would further submit that the petitioners

were placed above the private respondents in seniority list

wrongfully for the reason that respondent No. 26 along with

other private respondents were appointed in the cadre of

Assistant Engineer before the petitioners. They would further

submit that a bare perusal of the order dated 18.08.2020 passed

by this Hon'ble Court in WPS No. 3208 of 2020 reflects that no

adjudication on merits have been done by this Court and only a

direction was issued for deciding the claim of the private
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respondents herein by constituting a Committee vide the order

dated 10.07.2020.

22. It has been further contended that the Committee has rejected

the claim of the direct recruit vide recommendation dated

13.10.2020 and the said recommendation was never culminated

in any final order. It has been further contended that the claim of

the petitioners that they were having a long-standing seniority as

they were placed above the direct recruits from 2009 till the

issuance of the impugned order is a baseless contention for the

reason that seniority can only be granted in accordance with the

rules. It has been further contended that Rule 12 (1) (e) of the

Rules, 1961 clearly provides that 'the relative seniority between

direct recruitees and promotees shall be determined according

to the date of issuance of appointment/promotion order. These

rules are binding for fixing seniority and the petitioners were

borne in the cadre of Assistant Engineer after the private

respondents. It has been further contended that when the

authorities realized their mistake, they corrected the same by

way of issuing impugned order dated 26.07.2023 which is under

challenge by the petitioners.

23. It has been further contended that as per Rule 12(1)(b) of the

Rules, 1961, the seniority of promotees will be determined in the

order in which they were recommended for such promotion and

Rule 12(1)(e) of the Rules, 1961 clearly provides that, relative

seniority amongst direct recruitees and promotees shall be
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determined according to the date of issue of appointment/

promotion order. Admittedly, in the instant case, the appointment

orders of private respondents were issued on 02.08.2008 and

they have joined the posts and thereafter on 19.09.2008 the

promotion orders of the petitioners were issued and therefore,

the decision dated 26.07.2023 is in accordance with Rule 12(1)

(e) of the Rules, 1961. It has been further contended that it is

totally wrong on the part of the petitioners to contend that the

gradation list of the Assistant Engineers for the year 2009 issued

on 29.03.2011 wherein they were placed above the private

respondents and the same was followed upto 2023 and thus has

attained finality.

Submissions made by the counsel for the petitioners

24. Learned counsel for the petitioners would submit that it is

essential that any one who feels aggrieved by the seniority

assigned to him, should approach the Court as early as possible

as otherwise in addition to the creation of a sense of insecurity in

the minds of the Government servants there would also be

administrative complications and difficulties. He would further

submit that in the instant case, the private respondents have

approached the concerned authorities and Hon'ble Court after a

span of about 11-12 years and such belated claim of the private

respondents could not be allowed to entertain as being barred

by delay and laches and long-standing seniority of the

petitioners could not be disturbed after such a long span of time.
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He would further submit that the respondents No. 37 and 38

though they were also initially appointed on the post of Sub-

Engineer and in the Year 2011 they were promoted as Assistant

Engineer. So far as the petitioners are concerned they were

promoted in the Year 2009 meaning thereby the respondents

No. 37 and 38 were found place in cadre of Assistant Engineer

in the Year 2011, a bare perusal of the impugned gradation list

would show that those who were promoted in the year 2011 are

placed above to the petitioners in the gradation list of Year 2023.

The aforesaid facts and circumstance patently made in evident

that the entire gradation list is being prepared in heist without

any due application of mind and in order to serve the interest of

private respondents. Further contention of the petitioners is that

Hon'ble the Supreme Court in case of
K.R. Mudgal and Others

Vs. R.P. Singh & Others
reported in (1986) 4 SCC 531 has held

that a government servant who is appointed to any post

ordinarily should at least after a period of 3 or 4 years of his

appointment be allowed to attend the duties attached to his post

peacefully and without any sense of insecurity. Satisfactory

service conditions postulate that there should be no sense of

uncertainty amongst the Government servants. On the above

factual matrix, the petitioners have prayed for quashing of the

impugned order dated 26.07.2023 (Annexure P/1) passed by

respondent No. 2.

25. They would further submit that the respondent authorities have
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arbitrarily issued the impugned gradation list without issuing the

provisional list calling for objections from the petitioners and

other concerned persons which they were obliged to do as per

the relevant rules. They would further submit that the impugned

order will cause great prejudice to the petitioners as they shall

loose their seniority from the date of direct appointment of

service and thereafter the promotional avenues will not be

available to the petitioners. To substantiate their submission,

they would rely upon the following judgments of the Hon'ble

Supreme Court in case of
Shiba Shankar Mohapatra & Ors. V.

State of Orissa & Ors.
reported in (2010) 12 SCC 471, HS

Vankani and Others Vs. State of Gujarat and Others reported

in (2010) 4 SCC 301, the Hon'ble Madhya Pradesh in case of

Suresh Singh Bhandari Vs. State of Madhya Pradesh

reported in (2016) 4 MPLJ 180, the Hon'ble Supreme Court in

case of
State of Uttaranchal Vs. Shiv Charan Singh Bhandari

reported in (2013) 12 SCC 179, in case of
S. S. Balu Vs. State

of Kerala
reported in (2009) 2 SCC 479 & in case of
Keshav

Deo & Anr. Vs. State of U.P. & Ors.
reported in 1991 (1) SCC

280.

Submissions of the State and Private respondents

26. Learned counsel of the State as well as the private respondents

would submit that there is no ambiguity in the decision dated

26.07.2023 or in decision making process and submission made

by the petitioner that the seniority of the petitioners cannot be
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challenged or disturbed after near about 12 years (After

appointment of respondents on 02.08.2008 and promotion of the

petitioners on 19.09.2008, the first gradation list was issued on

29.03.2011), is misconception of facts as illegality cannot be

allowed to be continued. It has been further contended that

objections were invited by the State Government and the direct

recruitees raised the objection then and there and it was kept

under consideration, which has been decided finally on

26.07.2023 and would pray for dismissal of the writ petitions.

27. To substantiate these submissions, they would rely upon the

judgment rendered by Hon'ble the Apex Court in case of
State

of Bihar v. Akhouri Sachindra Nath
reported in 1991 Supp (1)

SCC 334, Vinodanand Yadav v. State of Bihar reported in

1994 Supp (2) SCC 44 and State of Uttaranchal Vs. Dinesh

Kumar Sharma (
2007) 1 SCC 683, Uttaranchal Forest

Rangers Association (Direct Recruit) & Ors. Vs. State of U.P.

& Ors.
reported in 2006 (
9) Scale 577, K. C. Joshi Vs. Union of

India
reported in 1992 Suppl (1) SCC 272, Vinodanand Yadav

& Ors. V. State of Bihar & Ors. reported in 1994 Suppl.

(
2)

SCC 44 and Jagdish Ch. Patnaik & Ors. Vs. State of Orissa &

Ors.
reported in 1998 (4) SCC 456.

28. I have heard learned counsel for the parties and perused the

records of DPC held in the year 2008 as well as the records

pertaining to the issuance of impugned order dated 26.07.2023.

29. From submission made by learned counsel for the parties
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including intervenors supporting/opposing case of the

petitioners, the points required to be determined by this Court

are:-

"(1) Whether the petitioners who were considered for

promotion for the cadre post of Assistant Engineers in the

departmental promotion committee held on 24.07.2008

against 30 anticipated vacancies of Assistant Engineers

when there were no cadre post was vacant can claim

seniority from the date of recommendation i.e. 24.07.2008

or from the date when other Sub-Engineers were

promoted vide order dated 31.07.2008 whereas they were

promoted on 19.09.2008 by the State on that day only the

post were vacated due to promotion of 26 Assistant

Engineer (Civil) to Executive Engineer (Civil).

(2) Whether relative seniority between direct recruited

Assistant Engineer and promotee Assistant Engineer shall

be governed by Rule 12(1)(e) of the Rules, 1961.

(3) Whether the petitioners are entitled to get seniority on the

count of principle of long-standing of their seniority from

2011 till the impugned order dated 26.07.2023 was

passed by the State.

30. Since the above points emerges for determination by this Court

are inter connected, dependable upon each other, co-relates

with each other, they are being decided analogously.
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31. To appreciate the above points, it is expedient for this Court to

extract the record of DPC which was held in the year 2008 for

promotion of Sub-Engineer to the post of Assistant Engineer and

the Rules known as Chhattisgarh Public Works Engineering

(Gazetted) Service Recruitment Rules, 1969 (for short "the

Rules, 1969"). Rule 14 of the Rules, 1969 provides conditions for

eligibility of promotion. This rule further provides that the

committee shall consider the case of the person (whether

officiating or substantive) in the service mentioned in Column 2

of Schedule IV or any other post or posts declared equivalent

there to by the Government. The Schedule IV of the said rule

provides that promotion from the post of Junior Engineer/Sub-

Engineer to promotion on the post of Assistant Engineer Class-II,

8 years service for overseers promotion to the post of Assistant

Engineer, 12 years and graduate Sub-Engineers, 8 years

service. Accordingly, a DPC was held on 24.07.2008 for

promotion of Sub-Engineer/Draftsman on the post of Assistant

Engineer in which 107 Sub-Engineers which consists of 66

diploma holder in unreserved category, 24 ST and 17 SC

category Sub-Engineer were included. 30 candidates out of

unreserved graduate category, 9 ST and 3 SC graduate Sub-

Engineers were included for promotion. Since the candidates in

the zone of consideration of this category were not available,

therefore, 3 candidates of SC category were also included. In

the draftsman cadre, 7 officers were included from unreserved
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category, 2 candidates from ST and 3 candidates were not

included in the zone of consideration.

32. The record of the DPC also reflects that the DPC will consider

25% of anticipated vacancies as per Rule 6(2) of Chhattisgsarh

Public Services (Promotion) Rules, 2003 (for short "the Rules,

2003") of the public servant who have fulfilled the requisite

length of service. Accordingly, DPC was held on 24.07.2008. The

records of DPC reflects that there are 257 posts in the cadre out

of which 125 posts have to be filled up from diploma holder in

unreserved, ST & SC candidates, 51 for graduate engineers and

12 for draftsman. Thus, total 181 posts have to be filled up.

33. Thereafter, after getting approval and proposal for posting, the

file was sent on 30.07.2008 to the Government and promotion

order of 119 Sub-Engineer/Draftsman on the post of Assistant

Engineer was issued. The committee has kept the names of 23

Sub-Engineers in circulation as certain ACRs were not available

at the time of conducting DPC. Thereafter, the petitioners namely

Anuj Sharma, Ashish Kumar Bhattacharya and others Sub-

Engineers were promoted and posted on the post of Assistant

Engineer (Civil) on 19.09.2008. The records of the case would

further demonstrate that on 19.09.2008, 24 Assistant Engineers

were promoted on the post of Executive Engineers, therefore,

the vacancy was available, accordingly, the candidates of DPC

dated 24.07.2008 who could not be promoted on account of

filling of the post of Assistant Engineer, the Sub-Engineer were
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promoted on 19.09.2008 as Assistant Engineer. Thus, it is quite

vivid that the petitioners were not promoted on 24.07.2008 but

they were found fit for promotion and since the vacancies were

not available till 19.09.2008, they were not promoted. As soon

as, the vacancies were available, they were promoted. Though

as per Rule 6(2) of the Rules, 2003, the DPC has to conduct for

anticipated vacancies also. Rule 6(2) of the Rules, 2003 is

produced below:-

"6. Promotion on the basis of seniority subject to
fitness.- (2) The names of only such public servant shall
be considered for promotion, who have completed the
prescribed qualifying service in their feeder cadre/part of
the service/pay scale of post according to the Recruitment
Rules. It is, however, not necessary to consider all the
names of public servants who have completed the
prescribed minimum length of service but only such
number of cases of public servant shall be considered
according to the seniority, which shall be sufficient to cover
the number of existing and anticipated vacancies due to
retirement during the year under each category. In addition
to this, with a view of inclusion, in the select list, the names
of two public servants or 25 percent of the number of the
public servants included in select list whichever is more,
the names of the required number of the public servants
shall be considered for each category to fill up the
unforeseen vacancies occurring during the course of the
aforesaid period.

Explanation. - Manner of computation for eligibility for
promotion. - Period of qualifying service on 1st January of
the relevant year in which Departmental Promotion
Committee is convened shall be counted from the calender
year in which the public servant has joined the feeding
cadre/part of the service/pay scale of the post and not from
the date of joining of the cadre/part of the service/pay
scale of post."

34. Thus, from perusal of Rule 6(2) of the Rules, 2003, it is quite
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vivid that the select list should consist of 25% of number of

public servant for considering their case for anticipated

vacancies. The petitioners have not disputed that they were

promoted against anticipate vacancies arises on account of

promotion of Assistant Engineers to Executive Engineers on

19.09.2008, which clearly establishes that the petitioners were

subsequently promoted and not promoted when the private

respondents were promoted on 02.08.2008.

35. It is well settled position of law that the promotion is not

fundamental right but right to consider, is fundamental right,

therefore, the Government servant unless and until promoted,

they cannot claim the benefit arising out of the promotional posts

including seniority as they will born in the cadre of Assistant

Engineer when they are actually promoted.

36. Hon'ble the Supreme Court in case of
Ajay Kumar Shukla &

others Vs. Arvind Rai & others
reported in (2022) 12 SCC 579,

has held as under:-

"41. This Court, time and again, has laid emphasis on right
to be considered for promotion to be a fundamental right,
as was held by K. Ramaswamy, J., in the case of
Director,
Lift Irrigation Corporation Ltd. and Others vs. Pravat Kiran
Mohanty and Others6
in paragraph 4 of the report which is
reproduced below:

"4... There is no fundamental right to promotion, but an
employee has only right to be considered for promotion,
when it arises, in accordance with relevant rules. From this
perspective in our view the conclusion of the High Court
that the gradation list prepared by the
corporation is in violation of the right of respondent/writ
petitioner to equality enshrined under
Article 14
read with
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Article 16
of the Constitution, and the respondent/writ
petitioner was unjustly denied of the same is obviously
unjustified."

42. A Constitution Bench in case of
Ajit Singh vs. State of
Punjab7
, laying emphasis on
Article 14
and
Article 16(1)
of
the Constitution of India held that if a person who satisfies
the eligibility and the criteria for promotion but still is not
considered for promotion, then there will be clear violation
of his/her's fundamental right. Jagannadha Rao,J.
speaking for himself and Anand, CJI., Venkataswami,
Pattanaik, Kurdukar, JJ., observed the same as follows in
paragraphs 21 and 22 and 27:

"21:
Articles 14
and
16(1):
is right to be considered for
promotion a fundamental right 22:
Article 14
and
Article
16(1)
are closely connected. They deal with individual
rights of the person.
Article 14
demands that the "State
shall not deny to any person equality before the law or the
equal protection of the laws".
Article 16(1)
issues a
positive command that "there shall be equality of
opportunity for all citizens in matters relating to
employment or appointment to any office under the State".

It has been held repeatedly by this Court that clause (1) of

Article 16
is a facet of
Article 14
and that it takes its roots
from
Article 14.
The said clause particularises the
generality in
Article 14
and identifies, in a constitutional
sense "equality of opportunity in matters of employment
and appointment to any office under the
State. The word "employment" being wider, there is no
dispute that it takes within its fold, the aspect of
promotions to posts above the stage of initial level of
recruitment.
Article 16(1)
provides to every employee
otherwise eligible for promotion or who comes within the
zone of consideration, a fundamental right to be
"considered" for promotion. Equal opportunity here means
the right to be "considered" for promotion. If a person
satisfies the eligibility and zone criteria but
is not considered for promotion, then there will be a clear
infraction of his fundamental right to be "considered" for
promotion, which is his personal right.

"Promotion based on equal opportunity and seniority
attached to such promotion are facets of fundamental right
under
Article 16(1).

xxxx xxxx xxxx xxxx xxxx
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27. In our opinion, the above view expressed in Ashok
Kumar Gupta and followed in Jagdish Lal and other cases,
if it is intended to lay down that the right guarantee to
employees for being "considered" for promotion according
to relevant rules of recruitment by promotion (i.e. whether
on the basis of seniority or merit) is only a statutory right
and not a fundamental right, we cannot accept the
proposition. We have already stated earlier that the right to
equal opportunity in the matter of promotion in the sense
of a right to be "considered" for promotion is indeed a
fundamental right guaranteed under
Article 16(1)
and this
has never been doubted in any other case before Ashok
Kumar Gupta right from 1950."

43. This Court in
Major General H.M. Singh, VSM vs. UOI
and Another
, again reiterated the legal position, i.e. right to
be considered for promotion as a fundamental right
enshrined under
Article 14
and
Article 16
of the
Constitution of India. The relevant extract from paragraph
28 is reproduced below:

"28. The question that arises for consideration is, whether
the non-consideration of the claim of the appellant would
violate the fundamental rights vested in him under
Articles
and
of the Constitution of India. The answer to the
aforesaid query would be in the affirmative, subject to the
condition that the respondents were desirous of filling the
vacancy of Lieutenant-General, when it became available
on 1-1-2007. The factual position depicted in the counter-
affidavit reveals that the respondents indeed were
desirous of filling up the said vacancy. In the above view of
the matter, if the appellant was the senior most serving
Major-General eligible for consideration (which he
undoubtedly was), he most definitely had the fundamental
right of being considered against the above vacancy, and
also the fundamental right of being promoted if he was
adjudged suitable. Failing which, he would be deprived of
his fundamental right of equality before the law, and equal
protection of the laws, extended by
Article 14
of the
Constitution of India. We are of the view that it was in
order to extend the benefit of the fundamental right
enshrined under
Article 14
of the Constitution of India, that
he was allowed extension in service on two occasions,
firstly by the Presidential Order dated 29-2-2008, and
thereafter, by a further Presidential Order dated 30-5-
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2008. The above orders clearly depict that the aforesaid
extension in service was granted to the appellant for a
period of three months (and for a further period of one
month), or till the approval of the ACC, whichever is
earlier. By the aforesaid orders, the respondents desired
to treat the appellant justly, so as to enable him to acquire
the honour of promotion to the rank of Lieutenant-General
(in case the recommendation made in his favour by the
Selection Board was approved by the Appointments
Committee of the Cabinet, stands affirmed). The action of
the authorities in depriving the appellant due consideration
for promotion to the rank of the Lieutenant-General would
have resulted in violation of his fundamental right under

Article 14
of the Constitution of India. Such an action at
the hands of the respondents would unquestionably have
been arbitrary."

37. Hon'ble the Supreme Court in latest judgment in case of

Ravikumar Dhansukhlal Maheta & another [WPC No.

432/2023, decided on 17.05.2024], has held that:-

"........in India, no government servant can claim
promotion as their right because the Constitution does not
prescribe criteria for filling seats in promotional posts. The
Legislature or the executive may decide the method for
filling vacancies to promotional posts based on the nature
of employment and the functions that the candidate will be
expected to discharge.The courts cannot sit in review to
decide whether the policy adopted for promotion is suited
to select the 'best candidates', unless on the limited
ground where it violates the principle of equal opportunity
under
Article 16
of the Constitution".

38. Thus, the submission that the petitioners are also entitled to get

seniority from 02.08.2008 and they should be kept above the

private respondents, is misconceived and deserves to be

rejected. The further submission of the petitioner that the

petitioners were granted seniority since 2011, which should not

be disturbed vide impugned order on account of long-standing
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and to substantiate this submission, the petitioner has referred to

the judgment of Hon'ble the Supreme Court in case of
Shiv

Charan Singh Bhandari
(supra), which is distinguishable on

the facts as
in that case
the respondents have challenged the

Tribunal only after two decades when benefits of notional

promotion from the date their juniors were granted promoted,

which was not challenged within six years till regular promotion

was ordered whereas in the present case, the promotion from

the post of Assistant Engineer to further promotion has not taken

place and the petitioners and the respondents are still working

on the substantive post of Assistant Engineer.

39. The record of the case by which the representation of the private

respondents has been considered, clearly demonstrates that the

various representations raising objection were made and

accordingly, a committee was constituted on 10.07.2020 and this

Court in WPS No. 3208/2020 has already recognized

constitution of committee and directed the committee to proceed

in the matter. The committee so constituted after examining the

facts has passed the impugned order. The submission of learned

counsel for the petitioners that there was delay and the private

respondents by accepting the seniority list from 2011 till passing

of the impugned order, have accepted the same which should

have not been alter disadvantaged the petitioners cannot be

considered.

40. The petitioners were promoted on the cadre post of Assistant
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Engineer on 19.09.2008, therefore, as per Rule 12(1)(e) of the

Rules, 1961, the relative seniority between direct recruitees and

promotees shall be determined according to the date of issuance

of appointment/promotion order. It is undisputed facts that the

petitioners were promoted on 19.09.2008 and the private

respondents who were directly appointee Assistant Engineers

were appointed on 02.08.2008, thus their seniority will be placed

above the petitioners. Even otherwise, it is not the case of the

petitioners that they should be granted seniority as per Rule

12(1)(d) of the Rules, 1961 as it is not their case that due to lack

of any annual character role or for any other reasons, their

promotion was delayed and subsequently they were found fit. In

fact, the petitioners were promoted against the anticipated

vacancies which has been made available on account of

promotion of Assistant Engineer to the post of Executive

Engineer on 19.09.2008. Thus, while granting seniority to the

petitioners from 02.08.2008, the rules were wrongly applied,

which has been corrected by the impugned order dated

26.07.2023. As such, the impugned order does not warrant any

interference by this Court.

41. Further submission of the petitioners that the long-standing

seniority from 2011 should not be disturbed by the respondents.

To substantiate this submission, they have referred to the

judgment rendered by Hon'ble the Supreme Court in case of

Shiva Shankar Mahapatra
(supra), which has been considered
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by Hon'ble the Supreme Court in case of
Ajay Kumar Shukla

(supra) wherein Hon'ble the Supreme Court in paragraph 23,

24, 25 & 26 has held as under:-

"23. The Appointing Authority, in fact, committed an error in
the manner in which the seniority list was prepared by
placing the three select lists forwarded by the Commission
on different dates one after the other en bloc as per the
date of receipt of three select lists. It is not the case either
of the private respondents, State or the Commission that
appointment letters have been issued separately as and
when the select lists were received. In fact, the
appointment letters of all the three streams were issued in
October 2001, after about 10 to 11 months of the receipt of
the third list i.e. of the Civil stream in November 2000.
Apparently by an oversight, the Appointing Authority failed
to prepare the combined seniority list as required under
1991 Seniority Rules, be it Rule 5 or Rule 8 with respect to
the selection of the appellants and private-respondents.

24. We may now discuss the law on the point regarding
delay in approaching the court and in particular challenge
to a seniority list. The learned Single Judge had placed
reliance on a judgment of this Court in the case of
Shiba
Shankar Mohapatra vs. State of Orissa
(supra). Dr. B.S.
Chauhan, J., after considering the question of entertaining
the petition despite long standing seniority filed at a belated
stage discussed more than a dozen cases
on the point including Constitution Bench judgments and
ultimately in paragraph 30 observed that a seniority list
which remains in existence for more than three to four
years unchallenged should not be disturbed. It is also
recorded in paragraph 30 that in case someone agitates
the issue of seniority beyond period of three to four years
he has to explain the delay and laches in approaching the
adjudicatory forum by furnishing satisfactory explanation.
Paragraph 30 is reproduced below: -

"30. Thus in view of the above, the settled legal
proposition that emerges is that once the seniority had
been fixed and it remains in existence for a reasonable
period, any challenge to the same should not be
entertained.
In K.R. Mudgal, this Court has
laid down,
in
crystal clear words that a seniority list which remains
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in existence for 3 to 4 years unchallenged, should not
be disturbed. Thus, 3-4 years is a reasonable period for
challenging the seniority and in case someone agitates
the issue of seniority beyond this period, he has to
explain the delay and laches in approaching the
adjudicatory forum, by furnishing satisfactory
explanation."

25. On the other hand, the Division Bench while shutting
out the appellants on the ground of delay relied upon
following judgments of this Court.

(
i) Dayaram Asanand Gursahani vs. State of Maharashtra
and others

(
ii) B.S. Bajwa and another vs. State of Punjab and
others

(
iii) Malcom Lawrence Cecil D'Souza vs. Union of India
and others

(
iv) R.S. Makashi and others vs. I.M. Menon and others

26.
In the case of
Dayaram Asanand Gursahani
(supra),
there was a delay of 9 years.

In the case of
B.S. Bajwa

(supra), there was a delay of more than a decade.

In

Malcom Lawrence Cecil D'Souza
(supra), the delay was of
15 years and in
R.S. Makashi
(supra) there was a delay of 8
years. In all these cases, this court has recorded that the
delay has not been explained.

Shiba Shankar Mohapatra

(Supra) is a judgment of 2010, which has laid down that,
three to four years would be a reasonable period to
challenge a seniority list and also that any challenge
beyond the aforesaid period would require satisfactory
explanation."

42. The seniority was granted to the petitioners de-hors the Rules,

1961, which have been framed by the State under
Article 309
of

the Constitution of India and has binding effect, therefore, it is

illegality and it is well settled position of law that the illegality

cannot be allowed to perpetuate and the petitioners cannot take

benefits illegally on the count of long-standing seniority. This

issue has come up for consideration before Hon'ble the
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Supreme Court in case of
Pankjeshwar Sharma & others Vs.

State of Jammu & Kashmir & others
reported in (2021) 2 SCC

188 wherein it has been held in paragraph 24, 35, 36 & 40 as

under:-

"24. It is a settled principle of service jurisprudence and
has been consistently followed by this Court that the rules
of recruitment to various services under the State or to a
class of posts under the State, the State is bound to follow
the same and to have the selection of the candidates to be
made as per the scheme of recruitment rules and
appointments shall be made accordingly. At the same time,
all the efforts shall be made for strict adherence to the
procedure prescribed under the recruitment rules. On the
contrary, if any appointments are made bypassing the
recruitment procedure known to law, will resulted in
violation of
Article 14
and
of the Constitution. This Court
in
State of U.P. and Others vs. Rajkumar Sharma and
Others2
and later in
Arup Das and Others vs. State of
Assam and Others3
considered the question of filling up of
vacancies over and above the number of vacancies
advertised and held that the filling up of vacancies over
and above the number of vacancies advertised would be
violative of fundamental rights guaranteed under
Article 14

and
of the Constitution and the selectees could not
claim appointments as a matter of right. This
Court further
held
that even if in some cases appointments had been
made erroneously or by mistake, that did not confer any
right of appointment to another person as
Article 14
of the
Constitution does not envisage negative equality and if the
State or its authority had committed a mistake at any given
stage, it cannot be forced to perpetuate the said mistake
under the writ jurisdiction of the High Court under
Article
of the Constitution.

In a situation where the posts in
excess of those advertised had been filled up in
extraordinary circumstances, instead of invalidating the
excess appointments, the relief could be moulded in such
a manner so as to strike a just balance keeping the
interest of the State and the interest of the person 2
State
of U.P. and Others vs. Rajkumar Sharma and Others

(2006) 3 SCC 330 3 Arup Das and Others vs. State of
Assam and Others (2012) 5 SCC 559 seeking public
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employment depends upon the facts of each case for
which no set standard can be laid down.

35. This Court in
Union of India and Another vs. Kartick
Chandra Mondal and Others5
observed that if something
is being done or acted upon erroneously that cannot
become the foundation for perpetuating further illegality. If
an appointment is made illegally or irregularly, the same
cannot be made the basis of further appointment and
erroneous decision cannot be permitted to perpetuate
further error to the detriment of the general welfare of the
public or a considerable section. This has been the
consistent approach of this Court.

36.
In
Arup Das and Others vs. State of Assam and Others

6, this Court observed that:

"19........even if in some cases appointments had been
made by mistake or wrongly, that did not confer any right
of appointment to another person, as
Article 14
of the
Constitution does not envisage negative equality and if the
State had committed a mistake, it cannot be forced to
perpetuate the said mistake."

40. We are also of the view that the appointments of 22
candidates made by the 2nd respondent vide orders dated
23rd February, 2008 and 11th March, 2008 which has
given rise to a further litigation are irregular appointments
and not in conformity to the recruitment rules, still what
being prayed by the appellants if accepted by this Court
that will perpetuate the illegality which has been committed
by the Staterespondent and negative equality cannot be
claimed to perpetuate further illegality under
Article 226
of
the Constitution of India."

43. The petitioners have further submitted that without giving any

opportunity of hearing, the impugned order has been passed, as

such, it is violation of principle of natural justice and on this count

also, the same deserves to be quashed. This submission is

incorrect submission as the facts regarding their promotion on

the post of Assistant Engineer, is known to them and issuance of

notice will be merely a formality and thus, the non-issuance of
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notice to the petitioners does not vitiate the impugned order.

Hon'ble the Supreme Court has considered the issue where the

issuance of notice is formality, it does not vitiate the action taken

by the authorities. Hon'ble the Supreme Court in case of

Dharampal Satyapal Limited Vs. Deputy Commissioner of

Central Excise, Gauhati & others
, reported in (2015) 8 SCC

519 wherein it has been held in paragraph 39 to 41 as under:-

"39. We are not concerned with these aspects in the
present case as the issue relates to giving of notice before
taking action. While emphasizing that the principles of
natural justice cannot be applied in straight-jacket formula,
the aforesaid instances are given. We have highlighted the
jurisprudential basis of adhering to the principles of natural
justice which are grounded on the doctrine of procedural
fairness, accuracy of outcome leading to general social
goals, etc. Nevertheless, there may be situations wherein
for some reason - perhaps because the evidence against
the individual is thought to be utterly compelling - it is felt
that a fair hearing 'would make no difference' - meaning
that a hearing would not change the ultimate conclusion
reached by the decision-maker - then no legal duty to
supply a hearing arises. Such an approach was endorsed
by Lord Wilberforce in Malloch v. Aberdeen
Corporation[20], who said that:

"...... A 'breach of procedure...cannot give (rise to) a
remedy in the courts, unless behind it there is something of
substance which has been lost by the failure. The court
dos not act in vain'.

Relying on these comments, Brandon LJ opined in
Cinnamond v. British Airports Authority that
".....no one can complain of not being given an opportunity
to make representations if such an opportunity would have
availed him nothing'. In such situations, fair procedures
appear to serve no purpose since 'right' result can be
secured without according such treatment to the individual.

40. In this behalf, we need to notice one other exception
which has been carved out to the aforesaid principle by the
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Courts. Even if it is found by the Court that there is a
violation of principles of natural justice, the Courts have
held that it may not be necessary to strike down the action
and refer the matter back to the authorities to take fresh
decision after complying with the procedural requirement in
those cases where non-grant of hearing has not caused
any prejudice to the person against whom the action is
taken. Therefore, every violation of a facet of natural
justice may not lead to the conclusion that order passed is
always null and void. The validity of the order has to be
decided on the touchstone of 'prejudice'. The ultimate test
is always the same, viz., the test of prejudice or the test of
fair hearing.

41. In ECIL (supra), the majority opinion, penned down by
Sawant, J., while summing up the discussion and
answering the various questions posed, had to say as
under qua the prejudice principle:

"30. Hence the incidental questions raised above may be
answered as follows:

xx xx xx

(v) The next question to be answered is what is the effect
on the order of punishment when the report of the enquiry
officer is not furnished to the employee and what relief
should be granted to him in such cases. The answer to this
question has to be relative to the punishment awarded.

When the employee is dismissed or removed from service
and the inquiry is set aside because the report is not
furnished to him, in some cases the non-furnishing of the
report may have prejudiced him gravely while in other
cases it may have made no difference to the ultimate
punishment awarded to him. Hence to direct reinstatement
of the employee with back-wages in all cases is to reduce
the rules of justice to a mechanical ritual. The theory of
reasonable opportunity and the principles of natural justice
have been evolved to uphold the rule of law and to assist
the individual to vindicate his just rights. They are not
incantations to be invoked nor rites to be performed on all
and sundry occasions. Whether in fact, prejudice has been
caused to the employee or not on account of the denial to
him of the report, has to be considered on the facts and
circumstances of each case. Where, therefore, even after
the furnishing of the report, no different consequence
would have followed, it would be a perversion of justice to
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permit the employee to resume duty and to get all the
consequential benefits. It amounts to rewarding the
dishonest and the guilty and thus to stretching the concept
of justice to illogical and exasperating limits. It amounts to
an "unnatural expansion of natural justice" which in itself is
antithetical to justice."

44. Thus, from the above discussions, considering the factual, legal

matrix of the case, it is quite vivid that the petitioners were taken

birth in the cadre of Assistant Engineer on 19.09.2008 whereas

the respondents have taken birth in the cadre on 02.08.2008

after having appointed as Assistant Engineer as such the

petitioners prior to take born in the cadre, they cannot claim

seniority over the private respondents. The word cadre has been

come up for consideration before Hon'ble the Supreme Court in

case of
Ran Singh Malik Vs. State of Haryana and others
,

reported in (2002) 3 SCC 182 wherein it has been held as

under:-

"The aforesaid Rule nowhere defined the cadre or
indicated as to which post would be borne in the cadre. In
the absence of such definition of cadre in the Rule, the
normal connotation would apply, and therefore, a cadre
would ordinarily mean the strength of a service or a part of
the service so determined by the Government constituting
the post therein".

45. Again Hon'ble the Supreme Court has examined the definition of

cadre in case of Union of India and others vs. Rubi

Mazumdar, reported in 2008 (9) SCC 242 wherein it has been

held in para 22 to 26 as under:-

"22. A conjoint reading of paragraph 103(7) of the Code,
103(iii) of the Railway Establishment Manual and Circular
R.B.E. No.113/97 makes it clear that in the railways, the
term `cadre' generally denotes the strength of a service or
a part of a service sanctioned as a separate unit.
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However, for the purpose of roster, a wider meaning has
been given to the said term so as to take within its fold the
posts sanctioned in different grades. The reason for giving
this enlarged meaning to the term "cadre" is that posts in
the railway establishment are sanctioned with reference to
grades. Even temporary, work charged, supernumerary
and shadow posts created in different grades can
constitute part of the cadre.

23. In the service jurisprudence which has developed in
our country, no fixed meaning has been ascribed to the
term "cadre". In different service rules framed under
proviso to
Article 309
of the Constitution as also rules
framed in exercise of the powers of delegated legislation,
the word "cadre" has been given different meaning.

24.
In
A.K. Subraman and Others vs. Union of India and
Others
[1975 (1) SCC 319], a three Judges Bench of this
Court while interpreting the provisions contained in
Central Engineering Service, Class I, Recruitment Rules,
1954, observed as under

"20."The word "grade" has various shades of meaning in
the service jurisprudence. It is sometimes used to denote
a pay scale and sometimes a cadre. Here it is obviously
used in the sense of cadre. A cadre may consist only of
permanent posts or sometimes, as is quite common these
days, also of temporary posts."

25.
In
Dr. Chakradhar Paswan vs. State of Bihar and
Others
[1988 (2) SCC 214] it was observed as under:-

"In service jurisprudence, the term `cadre' has a definite
legal connotation. It is not synonymous with `service'. It is
open to the Government to constitute as many cadres in
any particular service as it may choose according to the
administrative convenience and expediency and it cannot
be said that the establishment of the Directorate
constituted the formation of a joint cadre of the Director
and the Deputy Directors because the posts are not
interchangeable and the incumbents do not perform the
same duties, carry the same responsibilities or draw the
same pay. The posts of the Director and those of the
Deputy Directors constitute different cadres of the Service.
The first vacancy in the cadre of Deputy Directors was that
of the Deputy Director (Homoeopathic) and it had to be
treated as unreserved, the second reserved and the third
unreserved. Therefore, for the first vacancy of the Deputy
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Director (Homeopathic), a candidate belonging to the
Scheduled Caste had therefore to compete with others.

26.
In
State of Maharashtra vs. Purshottam and Others

[1996 (9) SCC 266], it was held that the "cadre" means
unit of strength of a service or a part of it as determined by
the employer"

46. Thereafter Hon'ble the Supreme Court has again examined the

word "Cadre" in case of
Jarnail Singh and others Vs.

Lachhmi Narain Gupta and others
, reported in (2022) 10 SCC

595 has held in para 30 and 31 as under:-

"30. It would be relevant to refer to the judgments of this
Court which have dealt with the scope of the expression
"cadre". Rule 4(2) of the Central Engineering Service,
Class I, Recruitment Rules, 1954 provided that 75% of the
vacancies in the grade of Executive Engineer, Class I
shall be filled by promotion from Assistant Executive
Engineers, Class I. Interpreting the words "vacancies in
the grade of Executive Engineer", this Court in
A.K.
Subraman & Ors. v. Union of India & Ors.
13 held that the
word "grade" is used in the sense of cadre.

31. The dispute that arose for consideration of this Court
in
Dr Chakradhar Paswan v. State of Bihar & Ors.
relates to the posts of Director and three Deputy Directors
in the Directorate of Indigenous Medicines, Department of
Health, State of Bihar being grouped together for the
purpose of implementing the 13 (1975) 1 SCC 319 14
(1988) 2 SCC 214 34 | P a g e policy of reservation under

Article 16(4)
of the Constitution of India. This Court was of
the opinion that though the Director and three Deputy
Directors are Class I posts, the posts of Director and
Deputy Directors do not constitute one 'cadre'. It was held
that the term "cadre" has a definite legal connotation in
service jurisprudence. This Court referred to Fundamental
Rule 9(4) which defines the word "cadre" to mean the
strength of a service or part of a service sanctioned as a
separate unit. It was observed that as the post of Director
is the highest post in the Directorate of Indigenous
Medicines for which a higher pay scale is prescribed in
comparison to Deputy Directors, who are entitled to a
lower scale of pay, they constitute two distinct cadres or
grades. This Court further expressed its view that it is
open to the Government to constitute as many cadres in
any particular service as it may choose, according to
administrative convenience and expediency. This Court
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concluded that the post of Director and Deputy Directors
constitute different cadres in the service".

47. In view of the above finding, it is quite vivid that the petitioners

were granted seniority over the private respondents wrongly,

which have been rightly corrected by the respondent/State vide

order dated 26.07.2023, which does not warrant any interference

by this Court.

48. Accordingly, the Points emerged for determination, are answered

against the petitioners and in favour of the State/private

respondents by recording its finding that the petitioners are not

entitled to get seniority over private respondents and the

impugned order dated 26.07.2023 does not suffer from

perversity or illegality, which warrants any interference from this

Court.

49. The writ petitions sans merit are liable to be dismissed.

Accordingly, they are dismissed. The interim order passed by

this Court stands vacated.

50. The interlocutory application, if any, stands disposed of.

Sd/-

(Narendra Kumar Vyas)
Judge

Bhumika / Arun