Chattisgarh High Court
Akash Dubey vs State Of Chhattisgarh And Ors on 25 August, 2021
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Writ Petition (S) No.6604 of 2011
Akash Dubey, son of Late Shri C.L. Dubey, aged about 30
years, presently posted as Assistant Grade III,
Directorate of Higher Education, Government Science
College Compound, Raipur, Chhattisgarh
Petitioner
Versus
1. State of Chhattisgarh through
(a) The Secretary, Department of Higher Education, D.K.S.
Bhawan, Mantralaya, Raipur, Chhattisgarh
(b) The Secretary, General Administration Department,
D.K.S. Bhawan, Mantralaya, Raipur, Chhattisgarh
2. Director, Directorate of Higher Education, Government
Science College Compound, Raipur, Chhattisgarh
3. Joint Director, Directorate of Higher Education,
Government Science College Compound, Raipur, Chhattisgarh
4. Smt.Priya Diwan, wife of not known to the petitioner, aged
not known to the petitioner, Accountant Grade II,
Directorate of Higher Education, Government Science
College Compound, Raipur, Chhattisgarh
5. Shri Suryabhan Kurmi, son of not known to the petitioner,
age not known to the petitioner Assistant Grade II,
Directorate of Higher Education, Government Science
College Compound, Raipur, Chhattisgarh
6. Shri Jagdamba Prasad Tiwari, son of not known to the
petitioner, age not known to the petitioner Assistant
Grade II, Directorate of Higher Education, Government
Science College Compound, Raipur, Chhattisgarh
7. Shri Satyanarayan Shukla, son of not known to the
petitioner, age not known to the petitioner Assistant
Grade II, Directorate of Higher Education, Government
Science College Compound, Raipur, Chhattisgarh
Respondents
For Petitioner : Mr.K.Rohan, Advocate
For Respondents No.1 to 3: Mr.Animesh Tiwri, Dy.G.A.
For Respondents No.4 to 7: Mr.Vaibhav Shukla, Advocate
Hon'ble Shri Justice Sanjay K. Agrawal
Order on Board (Through Video Conferencing)
25.8.2021
1. The petitioner herein calls in question the order dated
26.8.2011 (Annexure P1) by which his representation has
been rejected and his seniority has been directed to be
reckoned from 23.4.2005 and he also eventually calls in
question the order dated 7.8.2004 (Annexure P2) by which
the order dated 29.6.2004 has been withdrawn and also
questions the order dated 23.4.2005 (Annexure P3).
2. The petitioner was appointed on the post of Assistant
Grade III by erstwhile State of Madhya Pradesh, Department
of Higher Education (collegiate branch) and upon
reorganization of the State of Chhattisgarh, he was
allocated to the State of Chhattisgarh on 30.10.2000 and
he was relieved from the concerned College on 2.11.2000
and he joined on 4.11.2000 in the State of Chhattisgarh.
The petitioner made an application on 23.12.2002 (Annexure
P8) for inclusion of his name in seniority list of
Directorate, Higher Education as he was collegiate
employee, on which the order dated 29.6.2004 (Annexure P
11) was passed by respondent No.2 adjusting the petitioner
in the Directorate Services with the date of joining or on
the date of availability of the post, but order dated
29.6.2004 (Annexure P11) was withdrawn by order dated
7.8.2004 vide Annexure P2 and thereafter the order dated
23.4.2005 (Annexure P3) was passed adjusting the
petitioner in the Directorate Services placing the name of
the petitioner in number 3 below the names of Kamlesh
Sharma and Sarojani Baghel upon the undertaking given by
the petitioner vide Annexure P10 dated 30.1.2004.
Thereafter, the petitioner made a representation on
4.7.2011 that he be given seniority w.e.f.4.11.2000, which
has been rejected by the impugned order dated 26.8.2011
(Annexure P1), which has been sought to be challenged
along with two orders dated 7.8.2004 (Annexure P2) and
23.4.2005 (Annexure P3) by which the petitioner's name
has been placed in number 3 below the names of Kamlesh
Sharma and Sarojani Baghel stating interalia that it is
contrary to the rules and he is entitled for seniority
w.e.f. 4.11.2000 i.e. from the date of joining in the
State of Chhattisgarh.
3. Return has been filed by the State stating interalia that
the petitioner is entitled to get seniority from the date
of absorption of his service in Directorate of Higher
Education in accordance with Rule 12(2)(c) of the
Chhattisgarh Civil Services (General Conditions of
Service) Rules, 1961 (hereinafter called as 'the Act of
1961') as he was working in the collegiate service in the
State of Madhya Pradesh and upon his request, his services
have been absorbed into the Directorate and upon his
written consent he joined the Directorate Services, as
such, the petitioner is not entitled for any relief.
Similar return has been filed by respondents No.4 to 7.
Rejoinder has been filed supporting the averments made in
the writ petition.
4. Mr.K.Rohan, learned counsel for the petitioner, would
submit that though the respondentsauthorities are
unjustified in rejecting the representation vide Annexure
P1 and further unjustified in recalling the order dated
29.6.2004 vide order dated 7.8.2004 (Annexure P2) and
also unjustified in giving seniority to the petitioner
w.e.f. 23.4.2005 (Annexure P3) as the petitioner has
joined the services of the State of Chhattisgarh w.e.f.
4.11.2000 and therefore, he would be entitled for
seniority w.e.f. 4.11.2000. He would further submit that
Rule 12(2)(c) of the Act of 1961 has been declared ultra
virus by this Court in the matter of Devsharan Dilliwar &
others v. High Court of Chhattisgarh & others
(W.P.No.3926/2005), decided on 19.10.2011, as such, the
impugned orders are liable to be set aside and the
respondentsauthorities be directed to record seniority of
the petitioner w.e.f. 4.11.2000.
5. On the other hand, Mr.Animesh Tiwari, learned Deputy
Advocate General for respondents No.1 to 3/State, would
submit that the petitioner having submitted his
application for absorption in the Directorate Services,
his willingness was sought by memo dated 30.1.2004 clearly
indicating that his seniority position will be below
Kamlesh Sharma and Sarojani Baghel, which he accepted on
the same day by submitting memo and acting upon that the
order dated 23.4.2005 has been passed and on that basis,
his representation has rightly been rejected by the State
Government.
6. Mr.Vaibhav Shukla, learned counsel for respondents No.4 to
7, would support the impugned order. He would rely upon
the judgment of the Supreme Court in the matter of Govinda
Chandra Tiria v. Sibaji Charan Panda and others1.
7. I have heard learned counsel for the parties and
considered their rival submissions made hereinabove and
also went through the records with utmost circumspection.
8. It is correct to say that the petitioner was working in
the Collegiate Branch of Higher Education in the State of
Madhya Pradesh and he was allocated under the provisions
of the Madhya Pradesh Reorganization Act, 2000 to the
State of Chhattisgarh and after allocation he applied that
his services be absorbed in the Directorate of Higher
Education and his seniority be fixed in the Directorate
itself by letter dated 23.12.2004 stating that he is a
member of Collegiate Branch and his name be included in
the Directorate, in which the order dated 29.6.2004 was
passed by the State Government holding that he is adjusted
in the Directorate Services from the date of assuming
office or on the date of availability of the post,
however, the order dated 29.6.2004 was withdrawn by order
dated 7.8.2004 (Annexure P2). In the meanwhile, by memo
dated 30.1.2004, the Joint Director, Directorate Higher
Education has sought consent of the petitioner for his
absorption/seniority which state as under:
dk;kZy;&lapkyd] mPp f'k{kk lapkyuky;
¼'kkldh; foKku egkfo|ky; ifjlj] jk;iqj½
dzekad 581&[email protected]'[email protected]@4] jk;iqj fnukad [email protected]@04
1 (2020) 3 SCC 803
izfr]
586 1- Jherh y{eh Hkxr lgk-xzsM AA
585- 2- Jh ,p ,l uSuokuh lgk-xzsM AAA
584- 3- Jherh deys'k 'kekZ lgk-xzsM AAA
583 4- Jhefr ljksftuh c?ksy lgk-xzsM AAA
582 5- Jh vkdk'k nqcs lgk-xzsM AAA
581 6- Jh vks ih frokjh lgk-xzsM AAA
587 7- Jh ds'ko flag AAA
fo"k;& mPp f'k{kk lapkyuky; jk;iqj ¼N-x-½ esa inLFk r`rh; Js.kh
deZpkfj;ksa dh ofj"Brk dh lwph esa uke lfEefyr djus ckcr~A
mijksDr fo"k; esa lwfpr fd;k tkrk gS fd vkidh lsok,a lapkyuky; esa lek;ksftr
dh tkrh gS rks lapkyuky; esa dk;Zjr Jherh Hkxr] Jh uSuokuh] Jhefr 'kekZ] Jherh c?ksy]
Jh nqcs] Jh frokjh ,oa -ds'ko flag ds deZpkfj;ksa ls Bhd uhps vkidh ofj"Brk ekU;
gksxh ;fn vki lger gSa rks viuh fyf[kr lgefr ls dk;kZy; lapkyd] mPp f'k{kk
lapkyuky; jk;iqj dks voxr djkoasA
[email protected]
la;qDr lapkyd ¼,l½
mPp f'k{kk lapkyuky; jk;iqj
9. Memo dated 30.1.2004 was replied by the petitioner vide
Annexure P10 on 30.1.2004 which states as under:
izfr]
la;qDr lapkyd ¼,l½
mPp f'k{kk lapkyuky;]
jk;iqj ¼N-x-½
fo"k;& mPp f'k{kk lapkyuky;] jk;iqj ¼N-x-½ esa inLFk r`rh; Js.kh deZpkfj;ksa
dk ojh"Brk lwph esa uke lfEefyr djus ckcr~A
lanHkZ&vkidk i= dzekad [email protected]'[email protected]@04] fnukad 30-01-04
egksn;]
mijksDr fo"k;karxZr fuosnu gS fd vkids lanfHkZr i= ds ifjikyu esa eSa viuh
lsok,a mPp f'k{kk lapkyuky; esa lek;ksftr djuk pkgrk gwaA d`i;k eq>s dfu"B
ekudj esjk ojh"Brk lwph esa uke lfEefyr djus dk d"V djsaA
Hkonh;
¼vkdk'k nqcs½
lgk-xzsM&3
mPp f'k{kk lapkyuky;] jk;iqj
10. Thereafter the order dated 23.4.2005 (Annexure P3)
was passed by the respondentState and placed the
petitioner in seniority list below Kamlesh Sharma and
Sarojani Baghel. Conditions No.2 and 3 of the absorption
order dated 23.4.2005 state as under:
2. lafofy;u fd;s x;s leLr deZpkfj;ksa dh ofj"Brk lapky;hu laoxZ ds iwoZ ls
fu;qDr vafre dfu"B lgk;d xzsM&[email protected]`R; ds i'pk~r fu/kkZfjr dh tkosxhA
3. lafofy;u fd;s x;s deZpkfj;ksa dh vkilh ofj"Brk NRrhlx<+
vjktif=r r`rh;@prqFkZ oxZ lsok ¼egkfo|ky;hu 'kk[kk½ HkrhZ rFkk inksUufr
fu;e 1974 rFkk lafofy;u ds fy;s cuk;h xbZ ^^dk;Z ;kstuk^^ esa fufgr izko/kkuksa
ds vUrxZr i`Fkd ls fu/kkZfjr dh tkosxhA
11. A careful perusal of the aforesaid condition NO.2
would show that respondent No.2 has clearly indicated in
his memo dated 30.1.2004 that the petitioner is adjusted /
absorbed in the Directorate and he will be placed below
Kamlesh Sharma and Sarojani Baghel, to which the
petitioner has accepted without protest or demur clearly
indicating that his seniority as junior one will be
acceptable to him and thereafter on the assurance and
undertaken given by the petitioner, the order dated
23.4.2005 was passed and condition No.2 of the absorption
order dated 23.4.2005 as noticed hereinabove clearly
indicates that the absorbed employees seniority will be at
the bottom seniority after the seniority of the
Directorate Branch of the employees, as such, the
petitioner himself has agreed for bottom seniority in the
Directorate Branch and did not ever challenge condition
No.2 of the absorption order dated 23.4.2005 till filing
of this writ petition on 8.11.2011 as pursuant to the
absorption order dated 23.4.2005, he is said to have
joined the services and continuously working on the said
post and only made a representation dated 4.7.2011 which
has been rejected by the Director, Directorate Higher
Education by the impugned order dated 26.8.2011 (Annexure
P1) holding that the petitioner is entitled for seniority
from 23.4.2005.
12. The Supreme Court in the matter of Govinda Chandra
Tiria (supra) laid down the principles for determination
of seniority in case of conditional absorption and when
concerned employee had accepted it without protest and
demur and held the seniority list prepared in accordance
with terms and conditions of absorption, cannot be faulted
with. It was held as under:
"15. The facts of the present case are completely
to the contrary. Despite departmental
communications wanting Respondent 1 to go back to
the parent cadre it is Respondent 1's insistence
and persuasion which prevailed, with the
department absorbing Respondent 1 with the terms
and conditions aforementioned. One of the terms
and conditions was that seniority would be counted
from the date of absorption and Respondent 1
accepted the same. That absorption was never
challenged in any proceeding, nor the terms
thereof, when he was treated as a fresh appointee.
It is only when the seniority list was circulated
that the challenge was sought to be made to the
seniority list, in an oblique manner, and the
terms and conditions of the absorption were sought
to be assailed. This is not permissible.
16. Learned counsel for the appellant has also
drawn our attention to the judgment of this Court
in Mrigank Johri v. Union of India2, wherein it has
been held that benefit of past service rendered in
a cadre is usually reckoned for the purpose of
seniority. In the instant case, where the
conditions were categorically stated that the
absorption would be "deemed to be new recruitment"
and the previous service would be counted for all
purposes "except his or her seniority in the
cadre", the appellant having accepted it without
2 (2017) 8 SCC 256
any demur, the seniority list prepared as a
sequitur to the terms and conditions of the
absorption could not be faulted with.
17. This principle applies on all fores to the
facts of the present case. The learned counsel for
the appellant has also rightly contended that the
plea based on the fact that the appointment of
Respondent 1 was with a provision for transfer
would not assist the said respondent as the
present case is not one of transfer but of
deputation, in pursuance to an OM and thus, the
principle of a person moving to another cadre
would squarely apply. Such depute would also,
thus, have to be governed by the terms and
conditions of such absorption."
13. Reverting to the facts of the present case in light
of the principle of law laid down by the Supreme Court in
Govinda Chandra Tiria (supra), it is quite vivid that in
this case, the petitioner himself made a request for
absorption in the Directorate Services and not only agreed
but also gave his willingness on specifically being asked
by the Department to be absorbed with bottom seniority in
the Directorate Services and accepting his consent and
willingness given to the Department, the order of
absorption dated 23.4.2005 was issued in which condition
No.2 was incorporated that he will have bottom seniority
after the employees of the Directorate Services and as
such, the petitioner has taken a informed choice to be
absorbed in the Directorate Services with bottom seniority
and condition of the absorption as noticed hereinabove was
never challenged by the petitioner except making
representation, as such, rejection of the petitioner's
representation on the part of the official respondents
that the petitioner will be entitled for seniority w.e.f.
23.4.2005 cannot be said to be erroneous by the
respondentState. In that view of the matter, the impugned
order dated 26.8.2011 (Annexure P1) rejecting the
petitioner's representation is strictly in accordance with
law. Even otherwise, the petitioner cannot be allowed to
question the order dated 23.4.2005 in the writ petition
filed on 8.11.2011 which suffers from delay and laches and
on that count also, the writ petition cannot be
entertained.
14. In view of abovestated legal analysis and finding
reached hereinabove, the judgment of this Court in the
matter of Devsharan Dilliwar (supra) is distinguishable
and not in any way helpful to the petitioner.
15. As a fallout and consequence of the aforesaid
discussion, the writ petition deserves to be and is hereby
dismissed dismissed leaving the parties to bear their own
cost(s).
Sd/-
(Sanjay K.Agrawal)
Judge
B/
