Lavish Kumar vs Chhattisgarh State Power Holding ...
2022 Latest Caselaw 4469 Chatt

                 HIGH COURT OF CHHATTISGARH, BILASPUR

                                Order Sheet
                             WPS No. 738 of 2019
    Lavish Kumar Versus Chhattisgarh State Power Holding Company Limited

            7-




14-7-2022         Mr. Vaibhav Shukla, Advocate with Mr. Chandradeep Prasad,
            Mr. Himanshu Yadu and Mr. Uttwal Choubey, Advocates,.
                  Mr. Abhishek Sinha, Sr. Advocate with Mr. Ghanshyam
            Patel,GA for the respondents No. 1 to 6.

Mr. Sachin Tamrakar, counsel for respondents No. 7 & 8. Mr. Mateen Siddiqui and Mr. Ghanshyam Kashyap, counsel for respondents No. 9 & 10.

Heard on I.A.No. 7 of 2022, which is an application for vacating the stay order passed by this Court on 5-2-2019.

On 5-2-2019, this court has passed interim order on the following manner.

"Meanwhile, any further promotion of the respondents No. 7 to 10 in the accounts cadre shall only be with the leave of this court."

Thereafter, the case was listed on 20-6-2022 for orders on I.A.No.5 of 2022, which is an application for modification of interim order granted by this Court on 5-12-2019. The relevant portion of the order passed by this court on 20-6-2022 reads as under:-

"Considering the submissions, contentions and the pleadings that is as I.A.No.05/2022, this court is of the opinion that no case for modification of the order dated 5-12-2019 as such has been made out. If at all, the respondents are aggrieved of the said order they may move an appropriate application for getting the stay vacated by pressing upon their application for vacating the stay rather than seeking for modification on the said order. Shri Sinha, appearing for the respondents No 1 to 6 submits that he may not press on the term modification as is referred in I.A.No.01.

Let the matter be placed before the concerned bench having roaster for further adjudication of the case.

It is made clear that this court has only made observation nor expressed any opinion on the merits of the application filed by the contesting and private respondents so far as the application for vacating stay and also so far as the prayer for seeking leave of this court is concerned".

In pursuance of the aforesaid order passed by this court, the matter was listed before this court for vacating the stay order.

Learned counsel for the petitioner would submit that by the impugned order dated 16-12-2017 (Annexure P/1), respondents No. 7 & 10 have been merged with Finance Department of Chhattisgarh State Power Holding Company Limited whereas the petitioners are working as Assistant Manager (Finance), now Senior Manager (Finance) in the Finance Department from 2013 itself.

Learned counsel for the petitioner would submit that the petitioners were appointed as Assistant Manager (Finance) in the year 2013, whereas respondents No. 7 to 10 have been merged in the Finance Department in the year 2017, as such, their seniority for further promotion should have not been counted from their initial appointment, which is in the year 2009. Due to merger, the future aspect of the petitioners for promotion on the post of Dy. General Manager (Finance) is adversely affected, therefore, the interim order does not warrant any interference and it may be made absolute till the final disposal of the petition.

He would further submit that the merger of cadre is against the judgment passed by Hon'ble the Supreme Court in State of Maharashtra Vs. Chandrakant Anant Kulkarni [1981 (4) SCC 130] and would refer to paragraph 10 of the judgment. He would further submit that while merging the cadre, the respondents have not examined the factors, such as, nature and duties of the posts, power exercised by the officers holding a post, the minimum qualification and salary of the post. He would further submit that these principles are statutory post. He would further referred to the judgment rendered by Hon'ble the Supreme Court in S.P. Shivprasad Pipal Vs. Union of India [1998 (4) SCC 598]. He would further submit that by merger retrospective seniority cannot be granted in view of judgment passed by Hon'ble the Supreme Court in Ganga Vishan Gujrarti & others Vs. State of Rajasthan [2019 SCC (16) 68] and would refer to paragraph 28, wherein it has been held that retrospective seniority cannot be granted to the employee from the date when the employee was not born in the cadre. Lastly he would refer to the judgment rendered by Hon'ble the Supreme in Gopal Singh Vs. State Cadre Forest Officer Association [2007 SCC (9) 367].

On the other hand, learned Sr. Advocate- Mr. Abhishek Sinha assisted by Mr. Ghanshyam Patel, Advocate would submit that there was anomaly with regard to maintaining the gradation list of respondents No. 7 to 10 and their seniority was maintained as Assistant Manager equivalent to Assistant Engineer in the gradation list of Assistant Engineer of the company whereas there is no cadre post of Assistant Manager equivalent to Assistant Engineer in the cadre of Assistant Engineer, as they belong to separate cadre. Learned counsel for the respondents would draw attention of this Court towards the advertisement and the minutes of meeting dated 24.12.2005 by which it has been resolved to filing up of the posts in accounts wing/commercial section and personal section of the Board. As per the Minutes of Meeting, 4 posts were sanctioned for Assistant Engineer designated as Assistant Manager with the qualification B.A. Electrical with M.B.A. (Finance), M.B.A. (Finance)/ C.A./I.C.W.A., M.B.A. (H.R)-2 posts. In pursuance of the policy decision, advertisement was issued for the posts of Assistant Engineer with M.B.A. (Finance), Assistant Manager (Finance) and Assistant Manager (HR). Respondents No. 7 to 10 after due selection process were appointed in the year 2009 and gradation list of Assistant Engineer was issued on 16.02.2012 wherein against the name of respondent No. 7 & 8, the note was annexed Assistant Manager equivalent of Assistant Engineer. Thereafter, respondents No. 7 & 8 have filed writ petition before this Court which was registered as WPS No. 3704/2014. During pendency of the said writ petition, respondents No. 7 & 8 have made representation, which has been examined by the Chhattisgarh State Power Holding Company and application for dismissal of the petition was filed contending that the petition has become infructuous as grievances of the respondents have already been resolved and order dated 06.12.2017 has been issued granting them seniority in the finance department from their date of appointment.

He would further submit that there is no illegality in the order dated 06.12.2017 and the petitioners have not been promoted as Senior Manager in the year 2019 and the petitioners will be eligible for consideration of promotion to the post of Dy. General Manager in the year 2024 whereas, respondents No. 7 & 8 who are senior to them are eligible to be considered for promotion in the year 2022 itself and in fact DPC has already been conducted and result thereof has been withheld in pursuance of the interim order passed by this Court, therefore, he would submit that the interim order passed by this Court, be kindly vacated.

I have examined the rival submissions made by the parties at length, perused the records appended with the writ petition and return.

It is not in dispute that the petitioners are juniors to respondents No. 7 to 8 and they are eligible for consideration in the year 2024 whereas respondents No. 7 & 8 are eligible for consideration in the year 2022 itself and also examined the Minutes of the Meeting held on 24-12-2015 (Annexure P/2) which is resolution of the Company wherein procedure for appointment on the various posts in Accounts wing/Commercial Section and Personnel Section of the Company with professionals was resolved in its 52nd meeting held on 24-12-2005 and decided to recruit following 10 posts of Graduate Professionals in the pay scales of Assistant Engineers but designated as Assistant Manager or equivalent based on their wing for Accounts Wing/Commercial Section and Personnel Section and considering the fact that there is no post of Assistant Engineer equivalent to Assistant Manager in the cadre of Assistant Engineer, as such, prima facie, it is a separate cadre of Assistant Manager (Finance), therefore, their seniority has to be maintained in the finance department of the Company. The submission of learned counsel for the petitioners that respondents No. 7 to 10 belong to separate cadre, therefore, if they merge with the finance department, they should be placed below the petitioners, this submission cannot be accepted at this juncture, as the petitioners have to establish that Assistant Manager equivalent to Assistant Engineer is a cadre post of Assistant Engineer. The petitioners have not annexed the department setup of the Company to demonstrate that Assistant Manager equivalent to Assistant Engineer is cadre post of Assistant Engineer. In absence of any departmental setup merely on the submission of the counsel, it cannot be said that respondents No. 7 & 8 belong to separate cadre and have been merged in the finance wing granting seniority prior to their entry into the finance cadre and also considering the fact that the petitioners are eligible to be considered for the promotion in the year 2024, I am not inclined to continue the interim order passed by this Court, accordingly, the interim order passed by this Court on 05.02.2019 stands modified with a direction that the respondents No. 1 to 6 are free to conduct Departmental Promotion Committee and if they have already conducted DPC, then they will declare the result thereof and any appointment including the appointment of respondents No. 7 to 10 will be subject to final outcome of this writ petition.

List this case for final hearing in the week commencing on 26- 9-2022 in the motion hearing itself.

The observation made by this Court is only confined to the application for vacating the interim order and the parties are at liberty to make their submissions without being influenced from any of the observations made by this Court by modifying the interim order. The observation made by this Court will not have any effect while considering the case on merits.

Sd/-

(Narendra Kumar Vyas) Judge

Raju