1. The petitioner has preferred the present writ petition under Article 226 of the Constitution of India challenging the action of the respondent authorities whereby ignoring the seniority of the petitioner, respondents No. 3 to 5 have been granted promotion.
2. Brief facts of the case, as narrated in the petition, are that the petitioner was appointed as Press Operator on 13.6.1980 with the respondent department on the basic of 246-6-270-10-350 at the office of Dy. Director, Agriculture Bilaspur vide Annexure P/1. Respondent No.3 Ravindra Kumar Mun, respondent No.4 Suresh Kumar Sikya and respondent No.5 AK Bose were appointed as Press Photographer on the basic of 220-5-240-6-270-10-300 EB-10-350-211-350 on 26.7.1993, 16.7.1993 and 5.5.1986 respectively. Copy of the seniority list as on 1.4.2010 of Press Operator and Photographer is filed as Annexure P/2. On 29.12.2010 the petitioner was promoted to the post of Agriculture Development Officer and in this regard, amended order was issued on 14.1.2011 vide Annexure P/3. Respondents No.3 to 5 were promoted on 1.2.2008 to the post of Agriculture Development Officer vide Annexure P/4. In the seniority list as on 1.4.2010 of Agriculture Development Officers, the names of respondents No. 3 to 5 appear at S.No.296, 295 and 294 whereas the name of the petitioner is not mentioned therein. Further, in the seniority list as on 1.4.2011 of the Agriculture Development Officers, names of respondents No. 3 to 5 find place at S.No.191, 190 and 189 whereas the petitioner’s name appear at S.No.592 vide Annexure P/7 & P/8.
The posts of Compositor and Photographer are lower post as compared to the post of Press Operator on which the petitioner was appointed and pay scale of respondents No. 3 to 5 was also lower than the petitioner’s pay scale. Hence the petitioner submitted representation for correction of seniority/gradation list. Upon receiving his representation, the respondent authority issued an order of promotion on 19.2.2014 (Annexure P/9) and promoted respondents No. 3 to 5 to the post of Senior Agriculture Development Officer, which is illegal as the instant petition is pending for adjudication before this Court and as such, the DPC should not have recommended the names of respondents No. 3 to 5 for promotion. Further, the DPC has not followed the CG Public Service (Promotion) Rules while granting promotion to respondents No. 3 to 5 to the post of Senior Agriculture Development Officer. Hence this petition for the following reliefs:
“10.1 This Hon’ble Court may kindly be pleased to call for the entire records concerning the case of the Petitioner from the possession of the official Respondents for its kind perusal.
10.2 This Hon’ble Court may kindly be pleased to quash the gradation list of Agriculture Development Officer as on 01-04-2011.
10.3 This Hon’ble Court may kindly be pleased to direct the Respondents to consider the case of the Petitioner and to place him in the gradation list of Agriculture Development Officer as on 01.04.2011, above Respondent No. 3 to 5 at serial No.189, 190 & 191.
10.4 Any other relief or reliefs which this Hon’ble Court may think proper in view of the facts and circumstances of the case, may also kindly be granted.
10.5 Cost of the Petition be also awarded.
10.6 Hon’ble Court may kindly be pleased to quash the promotion order dt. 19.02.2014 (Annexure P-9) issued by the Respondent.”
3. Learned counsel for the petitioners submits that the petitioner was appointed as Press Operator on 13.6.1980 on the basic of 246-6-270-10-350 at the office of Dy. Director, Agriculture Bilaspur whereas respondents No.3 to 5 were appointed as Press Photographer on the basic of 220-5-240-6-270-10-300 EB-10-350-211-350 on 26.7.1993, 16.7.1993 and 5.5.1986 respectively. Thus, the posts of Compositor and Photographer were lower posts as compared to the post of Press Operator on which the petitioner was appointed and their pay scale was also lower than the petitioner’s pay scale. However, the respondent authorities ignoring the said fact and seniority of the petitioner, placed respondents No. 3 to 5 above the petitioner in the gradation list as on 1.4.2011 of Agriculture Development Officer. Though the petitioner submitted several representations to the respondents for correction of the seniority/gradation list but no heed was paid to it. The action of the respondent authorities is not only illegal, arbitrary, discriminatory in nature but also violative of principle of natural justice and Articles 14, 15 & 21 of the Constitution of India. The petitioner has been superseded by his juniors respondents No. 3 to 5 without there being any fault on his part, due to arbitrary and illegal action of the respondent authorities. Further, during pendency of this petition, respondents No. 3 to 5 have been granted promotion to the post of Senior Agriculture Development Officer on 19.2.2014 (Annexure P/9), which is per se illegal and as such, it is liable to be set aside. The writ petition deserves to be allowed and the petitioner be granted the relief claimed. Reliance has been placed on the decision of the Hon’ble Supreme Court in the matter of Direct Recruit Class II Engineering Officers’ Association Vs. State of Maharashtra and others, (1990) 2 SCC 715 and the order dated 4.12.2015 of this Court in WPS No.5946 of 2011 in the matter of Chandu Ram Jatwar Vs. State of CG and others.
4. On the other hand, learned counsel for respondents/State strongly opposes the contention of the petitioner and submits that the petitioner was appointed as Press Operator on 13.6.1980 in the office of Deputy Director, Agriculture, Bilaspur whereas respondents No. 3 to 5 were appointed as Photographer (wrongly mentioned as Press Photographer by the petitioner). According to Madhya Pradesh Adhinasth Krishi (Alipikiya Vargiya Sewa) Niyam, 1972 the next promotional post of Press Operator is Technical Assistant and the next promotional post of Photographer is Agriculture Assistant (Lower Division). The post of Technical Assistant is non-existent in the set up of the posts in the respondent department. After reorganization, the State of Chhattisgarh formulated its own service rules in the form of CG Adhinasth Krishi (Alipikiya Vargiya Sewa) Niyam, 2010 vide Annexure R/2 and as per Schedule IV, the promotional post of Photographer was altered/modified from Agriculture Assistant to Agriculture Development Officer. The State Government considering the fact that the promotion of Press Operator was stagnant due to non-availability of promotional post of Technical Assistant, duly modified the relevant rules and rephrased the promotional post as Agriculture Development Officer instead of Technical Assistant, in order to extend benefit of promotion to the Press Operators. In furtherance thereto, the petitioner was promoted as Agriculture Development Officer (ADO) vide order dated 14.1.2011 but as respondents No. 3 to 5 were already promoted as Agriculture Assistant, which is equivalent to the post of ADO, much before the promotion of the petitioner and were working on the said post since long, they were placed over and above the petitioner in the seniority list as on 1.4.2010.
The posts of Press Operator and Photographer are different posts having their own separate gradation list. However, after promotion of respondents No. 3 to 5 to the post of Agriculture Assistant, which is equivalent to the post of ADO, in the year 2008 and promotion of the petitioner to the post of ADO in the year 2010, they were placed in the common gradation list. Thus, there is no illegality, infirmity or arbitrariness in the action of the respondent authorities and the petitioner’s placement in the seniority list is in accordance with law. The instant petition being vague and baseless is liable to be dismissed.
5. In his Rejoinder, learned counsel for the petitioner submits that the petitioner was appointed as Press Operator much prior to respondents No. 3 to 5 in the respondent department on higher pay scale and further, CG Adhinasth Krishi (Alipikiya Vargiya Sewa) Niyam, 2010 is not applicable to the case of the petitioner. According to MP Adhinasth Krishi (Alipikiya Vargiya Sewa) Niyam, 1972, the next promotional post of Photographer is Agriculture Assistant (Lower Division) and the second promotional post is Agriculture Assistant (Upper Division) whereas vide promotion order of respondents No.3 to 5, they have been promoted as ADO and not as Agriculture Assistant (Lower Division). Though new CG Adhinasth Krishi (Alipikiya Vargiya Sewa) Niyam, was published on 16th July, 2010 whereby Photographer can be promoted to the post of ADO but 2 years and 6 months prior to coming into force of this rule, they were promoted as ADO.
6. Heard learned counsel for the parties and perused the material available on record.
7. It is not in dispute in this case that the petitioner was initially appointed as Press Operator on 13.6.1980 on the basic of 246-6-270-10-350 vide Annexure P/1 whereas respondent No.3 to 5 were appointed as Photographer on the basic of 220-5-240-6-270-10-300 EB-10-350-211-350 on 26.7.1993, 16.7.1993 and 5.5.1986 respectively. It is also not disputed that the petitioner was promoted to the post of ADO on 29.12.2010 and respondents No. 3 to 5 were promoted to the post of ADO on 1.2.2008 (Annexure P/4).
8. The main thrust of argument of learned counsel for the petitioner is that the petitioner joined services on 13.6.1980 on higher pay scale as compared to respondents No. 3 to 5 who joined services in the year 1986 and 1993 but they were promoted on 1.2.2008 whereas the petitioner was promoted about two years and eight months thereafter on 29.12.2010 to the post of ADO and his seniority was fixed below respondents No. 3 to 5.
9. Learned counsel for the respondents have filed the Gazette Notification vide Annexure R/2. According to the respondents, the petitioner was promoted as ADO in the year 2011 but respondents No. 3 to 5 were already promoted to the post of Agriculture Assistant, which is equivalent to the post of ADO, much prior to the petitioner’s promotion, in the year 2008 and were working on the said post since then, therefore, they were placed over and above the petitioner in the seniority list.
10. The Hon’ble Supreme Court in the matter of Direct Recruit Class II Engineering Officers’ Association (supra) held in para 47 of its judgment as under:
“47. To sum up, we hold that:
(A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation.
The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority.
(B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted.
(C) When appointments are made from more than one source, it is permissible to fix the ratio for recruitment from the different sources, and if rules are framed in this regard they must ordinarily be followed strictly.
(D) If it becomes impossible to adhere to the existing quota rule, it should be substituted by an appropriate rule to meet the needs of the situation. In case, however, the quota rule is not followed continuously for a number of years because it was impossible to do so the inference is irresistible that the quota rule had broken down.
(E) Where the quota rule has broken down and the appointments are made from one source in excess of the quota, but are made after following the procedure prescribed by the rules for the appointment, the appointees should not be pushed down below the appointees from the other source inducted in the service at a later date.
(F) Where the rules permit the authorities to relax the provisions relating to the quota, ordinarily a presumption should be raised that there was such relaxation when there is a deviation from the quota rule.
(G) The quota for recruitment from the different sources may be prescribed by executive instructions, if the rules are silent on the subject.
(H) If the quota rule is prescribed by an executive instruction, and is not followed continuously for a number of years, the inference is that the executive instruction has ceased to remain operative.
(I) The posts held by the permanent Deputy Engineers as well as the officiating Deputy Engineers under the State of Maharashtra belonged to the single cadre of Deputy Engineers.
(J) The decision dealing with important questions concerning a particular service given after careful consideration should be respected rather than scrutinised for finding out any possible error. It is not in the interest of Service to unsettle a settled position.
With respect to Writ Petition No. 1327 of 1982, we further hold:
(K) That a dispute raised by an application under article 32 of the Constitution must be held to be barred by principles of res judicata including the rule of constructive res judicata if the same has been earlier decided by a competent court by a judgment which became final.
In view of the above and the other findings recorded earlier, we do not find any merit in any of the civil appeals, writ petitions and special leave petitions which are accordingly dismissed. There will be, however, no order as to costs.”
11. This Court in the matter of Chandu Ram Jatwar (supra) held in paras 8, 9, 10 & 11 of its order as under:
“8. Recently, the Supreme Court in one of the matters reported in 2007 (6) SCC 524 (State of Kerala & Others v. E.K. Bhaskaran Pillai) following and relying upon the principles laid down in the case of K.V. Jankiraman (supra) and other subsequent judgements, has held that so far as the situation with regard to monetary benefits with retrospective promotion is concerned that depends upon case to case as there are various facets which have to be considered. Particularly, when administration has wrongly denied the employee his due then in that case he should be given full benefits including monetary benefits. Further, in such circumstances, principle of “no work no pay” cannot be accepted as a thumb rule. In the instant case also, in the year 2011, the Petitioner's case was considered and it was found that persons junior to him were promoted ahead of him and he was wrongly denied. Therefore, the State Government promoted the Petitioner from a retrospective date, i.e., from 5.9.1991, i.e., the date on which his juniors were promoted but was only granted notional fixation in the intervening period and he was not paid the benefits of promotion in terms of arrears of salary.
9. Therefore, in the given facts and circumstances of the case, this Court is of the opinion that when the Petitioner is not to be blamed for not getting promotion in time and that the reason for the delayed promotion was attributable on the Respondent-State and that there was no fault of the Petitioner whatsoever. That the persons who had been promoted earlier ahead of the Petitioner have enjoyed the fruits attached to the post and there is no reason why the Petitioner for the fault of the Respondents should be denied the fruits of the posts which he would have otherwise got but for the unjustified delay on the part of the Respondents.
10. The employee cannot be put to loss for the lapse on the part of the State Government as the petitioner was always willing to discharge his duties on the higher post and it was the act on the part of the State Govt. which deprived him firstly from discharging the duties of the higher post and secondly from getting the benefits that were attached with the higher post.
11. Considering the total facts and circumstances of the case and also applying the principle laid down by the Supreme Court in the aforementioned judgments, this Court is of the opinion that it is a fit case where the petitioner is entitled for monetary benefits for the intervening period. Accordingly, it is directed that the State Govt. shall grant proper monetary benefits for the intervening period to the petitioner within a period of four months from today.”
12. In the case in hand, it is undisputed that the petitioner joined services in the respondent department much prior to respondents No. 3 to 5 on the higher pay scale but the respondent authorities promoted respondents No. 3 to 5 to the post of ADO about two years and eight months prior to promotion of the petitioner on the same post i.e. ADO and accordingly, fixed his seniority below them. Therefore, keeping in view the principles of law laid down by the Hon’ble Supreme Court in the aforesaid judgments, the settled legal position that an employee cannot be put to loss for the lapse on the part of the government; in the totality of facts and circumstances of the case; this Court is of the opinion that the respondent authorities were not justified in denying promotion and seniority to the petitioner above respondents No. 3 to 5 since 1.2.2008.
13. For the reasons stated above, the writ petition is allowed. The respondent authorities are directed to treat the promotion of the petitioner to the post of ADO from 1.2.2008 when his juniors i.e. respondents No. 3 to 5 were promoted to the said post, re-fix his seniority above respondents No. 3 to 5 and grant him all the consequential benefits including monetary benefits. All this exercise be completed within a period of four months from the date of receipt/production of copy of this order.
