Deepak Pandey vs State Of C.G. And Ors
2022 Latest Caselaw 3253 Chatt

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                                                                                 NAFR
                  HIGH COURT OF CHHATTISGARH, BILASPUR

                            Order Reserved on : 01.10.2021
                            Order Delivered on : 05.05.2022

                                   WPS No. 4842 of 2012

             Deepak Pandey, S/o Late Shri B.L. Pandey, aged about
             58 years, working as Labour Inspector, in the Office
             Assistant Labour Commissioner, Raipur, R/o L-9, Vinoba
             Nagar, P.S. Tarbahara, Tahsil & District Bilaspur,
             Chhattisgarh.
                                                                       ---- Petitioner
                                          Versus
     1.      State of Chhattisgarh Through Secretary, Labour
             Department, Government of Chhattisgarh, Secretariat,
             D.K.S. Bhavan, G.E. Road, P.S. Golbazar, Raipur,
             Chhattisgarh.
     2.      Labour Commissioner, Government of Chhattisgarh,
             Nirmal Chhaya Bhavan, Meera Datar Road, Shankar
             Nagar, P.S. Civil Lines, Raipur, Chhattisgarh.
     3.      Devendra Kumar Rajpur, aged about 51 years, S/o Shri
             B.N. Rajput, presently posted as Assistant Labour Officer,
             in the Office of Assistant Labour Commissioner,
             Gariyaband, District Gariyaband, P.S. Gariyaband,
             Chhattisgarh.
                                                                  ---- Respondents

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For Petitioner : Mr. Vinod Deshmukh, Advocate For Respondents No.1 & 2/ : Mr. Vimlesh Bajpai, Govt. Advocate State

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Hon'ble Shri Justice Parth Prateem Sahu

CAV Order

1. Petitioner, who was posted as Labour Inspector "on the date

of filing of the writ petition" has filed this writ petition

challenging the order of promotion dated 21.05.2012 of

respondent No.3 along with others as also gradation list

dated 18.05.2012 to the extent of placing name of petitioner

below respondent No.3, with following reliefs :-

"10.1 That, the promotion order dated 21.05.2012 (Annexure P/1), gradation list dated 18.05.2012 to the extent, by which petitioner's name has been placed below than respondent No.3 be kindly

be kindly directed to prepare fresh gradation list giving seniority to the petitioner for the adhoc period as it has been granted earlier to the petitioner since 2001 to 2010.

10.2 That respondents No.1 & 2 be kindly directed to grant promotion to the petitioner on the post of Assistant Labour Officer w.e.f. 21.05.2012 with all consequential benefits.

10.3 That, the order dated 14.05.2012 (Annexure P/3) be kindly quashed and the respondents No.1 & 2 be kindly directed to prepare gradation list of Labour Inspector giving due weightage to petitioner's adhoc period seniority.

10.4 Any other relief which the Hon'ble Court deem fit and proper also be granted."

2. Facts relevant for disposal of this writ petition, are that,

petitioner was initially appointed on the post of Labour Sub

Inspector on 24.12.1983 under Madhya Pradesh Labour

Services (Class-III Non-Gazetted) Recruitment Rules, 1966

(for short 'Rules of 1966'). Petitioner was promoted on adhoc

basis vide order dated 30.06.1987 on the post of Labour

Inspector. Adhoc promotion was regularized by Department

as per recommendation of Departmental Promotion

Committee dated 19.01.1990. After re-organization of the

State of Madhya Pradesh, petitioner submitted an application

for re-fixation of his seniority based on Rule 12 of the Madhya

Pradesh Civil Services, General Condition of Service Rules,

1961 (for short 'Rules of 1961'). His application was

considered and petitioner was placed at Sl.No.17 in the

seniority list as on 01.04.2001. Respondent No.3 filed

representation against action of respondents No.1 & 2

granting seniority to petitioner considering the period of

adhoc promotion, which came to be dismissed on the ground

of delay. Subsequently, respondent-Department issued

provisional gradation list on 01.04.2011 considering gradation

list of Labour Inspector as on 01.04.1999. Petitioner was

placed below respondent No.3 in gradation list as on

01.04.2011. He initially raised an objection against provisional

gradation list mentioning that other employees of Department

i.e. Assistant Director of Industrial Health and Safety, were

granted seniority considering the period of their adhoc

appointment and thereafter filed writ petition being WPS

No.1348 of 2012 challenging the provisional gradation list.

During pendency of writ petition, final gradation list was

published hence, the petition was disposed of vide order

dated 01.10.2012 reserving liberty to challenge the final

gradation list. In final gradation list as on 01.04.2011, name of

petitioner has been placed at Sl.No.30, whereas name of

respondent No.3 has been placed at Sl.No.8. Based on

gradation list, finalized on 18.05.2012, order of promotion

dated 21.05.2012 was issued, which made the petitioner to

approach this Court by filing this writ petition.

3. Mr. Vinod Deshmukh, learned counsel for the petitioner

submits that petitioner was initially appointed on the post of

Labour Sub Inspector in the year 1983 under the Rules of

1966. He became eligible for consideration of his promotion

on the post of Labour Inspector after completion of three

years on the post of Labour Sub Inspector under Rule 6(b)

and 14 of the Rules of 1966. According to Rules of 1966, post

of Labour Inspector is 100% promotional post, out of which,

67% post is to be filled up from executive and remaining 33%

post to be filled up from clerical cadre. Petitioner was

promoted on the post of Labour Inspector on adhoc basis on

30.06.1987, he was regularized on the said post on

19.01.1990, therefore, as per Rule 12 of the Rules of 1961,

period of service, worked on promoted post on adhoc basis is

to be counted for fixation of his seniority. He referred to Rule

12(4)(b) of the Rules of 1961 in support of his contention. It is

contended that respondent-Department considered the

representation of petitioner filed immediately after re-

organization of the State of Madhya Pradesh before

competent authority at Bilaspur, Chhattisgarh. The said

authority while considering representation, granted seniority

from the date of his adhoc promotion i.e. 12.10.1987. The

order of fixation of seniority dated 21.06.2001 passed by the

authority was not challenged or set aside. This was not

considered by the authority at the time of directing

considering the seniority list as prevailing on 01.04.1999.

State Administrative Tribunal considered the issue of period

of service on adhoc basis of employees till the date of

regularization in T.A. No.1547 of 1988 decided on

30.07.1990. He submits that as the issue was considered by

State Administrative Tribunal, Madhya Pradesh directing

consideration of period of adhoc service also for fixing

seniority, therefore, petitioner is also entitled for similar

benefit. It is also argued that seniority of petitioner was re-

fixed in the year 2001 and respondent No.3 has raised an

objection of re-fixation of seniority only in the year 2010 i.e.

after lapse of 9 years. There is inordinate delay in challenging

seniority. In support of his contention, he places reliance

upon the decisions of Hon'ble Supreme Court in B.S. Bajwa

and Another v. State of Punjab and Others reported in

(1998) 2 SCC 523, L. Chandrakishore Singh v. State of

Manipur and Others reported in (1999) 8 SCC 287, T.

Vijayan and Others v. Divisional Railway Manager and

Others reported in (2000) 4 SCC 20 and S. Sumnyan and

Others v. Limi Niri and Others reported in (2010) 6 SCC

791. He also places reliance upon the judgment of Hon'ble

Supreme Court in Direct Recruit Class II Engineering

Officers' Association v. State of Maharashtra and Others

reported in (1990) 2 SCC 715 to support his contention that

period of working as adhoc employee is to be counted for the

purpose of fixing seniority of any employee.

4. Per contra, Mr. Vimlesh Bajpai, learned Government

Advocate for the State/respondents No.1 & 2 opposes the

submission of learned counsel for the petitioner and submits

that petitioner was promoted on adhoc basis on 30.06.1987.

In the order of his promotion, it is specifically mentioned that

petitioner will not be entitled for pay fixation, seniority, etc. as

the promotion is adhoc / temporary in nature. Petitioner

accepted the order of promotion along with conditions

mentioned therein. Petitioner was regularized on the post of

promotion only on 19.01.1990. The order of promotion is a

time-gap arrangement, hence, no benefit can be granted as

claimed by petitioner. The gradation list was prepared in the

year 1991, in which, petitioner's seniority was fixed below

respondent No.3, which continued and as per gradation list

prevailing in the year 1999 before carving out of State of

Chhattisgarh, petitioner was placed at Sl.No.206 in gradation

list, whereas respondent No.3 was placed at Sl.No.108.

Submission of counsel for the petitioner that petitioner is

entitled for consideration of period of adhoc promotion as

also for fixation of his seniority based on Rule 12 of the Rules

of 1961 is not correct. Rule 12 of the Rules of 1961, upon

which, petitioner is placing reliance has been brought in only

in the year 1998. The rule which was not in the law-book, on

the date of fixation of seniority and brought in after lapse of

more than 7 years of fixation of seniority of petitioner, it

cannot be made applicable retrospectively. Respondent-

Department has rightly fixed the seniority of employees

based on gradation list as on 01.04.1999. As there was no

statutory rules prevailing on the date of adhoc promotion or

regularization of the promotion of petitioner, fixing of seniority

of employees, it was governed by circular dated 16.08.1983

issued by General Administration Department and circular

dated 12.05.1993 wherein it is provided that employees

appointed / promoted on adhoc basis would be entitled for

seniority of the said post only from the date of regularization

of their appointment / promotion. In the aforementioned facts

of the case, it is submitted that writ petition is not having any

merit and it be dismissed. He places reliance upon the

judgment of Hon'ble Supreme Court in Civil Appeal

No.10788 of 2016, parties being, Rashi Mani Mishra and

Others v. State of Uttar Pradesh and Others decided on

28.07.2021 in support of his contention.

5. I have heard learned counsel for the parties and also perused

the documents placed on record.

6. To appreciate the submission of learned counsel for the

petitioner that petitioner was promoted on adhoc basis on

30.06.1987 and regularized on 19.01.1990, hence, petitioner

is having right and entitlement for consideration of period of

his adhoc promotion, I have perused the copy of order of

promotion dated 30.06.1987 placed on record as Annexure

P/19 along with an application for taking document on record.

Perusal of order would show that petitioner was promoted on

adhoc / temporary basis. In the order itself, there is specific

mention in clear terms that order of promotion is of temporary

in nature, employee will not get any benefit of pay fixation,

seniority, etc. The order of adhoc / temporary promotion is

conditional. Those employees were even not paid pay scale

of promotional post, which shows that adhoc / temporary

promotion is a time-gap arrangement made by Department.

On the date of adhoc promotion of petitioner, i.e. in the year

1987, there was no rule for fixation of seniority of adhoc

employees. Fixation of seniority was governed by circular

issued by State Government time to time. On the date of

adhoc promotion and regularization of promotion of petitioner,

circular dated 16.08.1983 was in force, which mentions that

till adhoc promotion / appointment is not regularized, general

rule of pay fixation and seniority will not apply. State

Government issued further circular on 08.01.1993 clarifying

the position that if increment is being granted, will not mean

that his appointment has been regularized, but his service will

be remained temporary / adhoc and for adhoc promotee, it is

mentioned that he will not be entitled for any seniority till his

promotion is regularized.

7. Admittedly, petitioner was promoted in the year 1987

temporarily, his promotion was regularized only on

19.01.1990. Rule 12 of the Rules of 1961, which is heavily

relied upon by learned counsel for the petitioner, was not in

existence on the date of regularization of adhoc promotion of

petitioner, therefore, service of petitioner for the purpose of

fixation of seniority and pay, would be governed by circulars

issued by State Government.

8. State Government brought in Rule 12 of the Rules of 1961 by

substituting the earlier rules and as per Rule 12(4)(b) of the

Rules of 1961, it is mentioned that if the person is appointed

on adhoc basis by substantially following the procedure laid

down by the Recruitment Rules and the appointee continued

on the post uninterruptedly till the regularization of his

service, the period of officiating service shall be counted for

seniority. Rule 12(4) of the Rules of 1961 is extracted below

for ready reference :

"12. Seniority.- The seniority of the members of a service or a distinct branch or group of posts of that service shall be determined in accordance with the following principles, viz,-

* * *

* * *

(4) Seniority of Adhoc Employees.-(a) A person appointed on adhoc basis shall not get any seniority till the regularization of his services.

(b) If a person is appointed on adhoc basis by substantially following the procedure laid down by the Recruitment Rules and the appointee continues in the post uninterruptedly till the regularization of his service in accordance with the rules, the period of officiating service shall be counted for seniority."

9. This rule was inserted vide notification dated 02.04.1998. The

rule which has been brought into the Rule Book long back

after fixation of seniority of petitioner, will not apply

retrospectively affecting the rights of the employees who

were already enjoying the fixation of their seniority as per the

circular or rule applicable at that relevant point of time.

10. Submission of learned counsel for the petitioner that based

on his representation, proceeding was drawn in the note-

sheet and it was ordered for re-fixation of seniority

considering Rule 12 of the Rules of 1961, is not set aside, is

concerned, perusal of note-sheet (Annexure P/10) would

show that proceeding has been recorded considering Rule 12

of the Rules of 1961 substituted vide notification dated

02.04.1998. It is not the case that any order affecting the

interest of petitioner is passed in particular, but the

Government has taken decision to follow the seniority list

prevailing in the year 1999.

11. A bare perusal of Annexure P/8 order dated 19.01.1990,

clearly mentions that Labour Inspectors, who have been

promoted on adhoc basis were granted regular promotion

based on the recommendation of Departmental Promotion

Committee, fixing their pay from the date of their taking

charge. The language used in order dated 19.01.1990 itself is

crystal clear that employees, who were adhoc promotees,

have been promoted on regular basis on the post of Labour

Inspector on pay scale of Rs.1290-40-1450-50-2050/- on the

basis of recommendation of Departmental Promotion

Committee.

12. Case of the petitioner himself is that he was promoted on

adhoc. Annexure P/8 mention order of promotion on regular

basis on the recommendation of Departmental Promotion

Committee, which is a fresh order of promotion. It is not the

case that order of promotion or posting is confirmed.

Confirmation of employees on the post will be when they

were working on the said post, getting pay scale and

remuneration of the post, on which, they were subsequently

confirmed, whereas in the instant case, petitioner was not

being paid pay scale of the post as in the order of adhoc

promotion, it was clearly mentioned that petitioner will not be

entitled for pay fixation and seniority. As the petitioner's

service of adhoc promotion is governed by the circular

prevailing at that relevant time, his seniority cannot be re-

fixed based on the rule, which has been brought in by way of

substituting the Rules of 1966 much after the cause of action

arose i.e. year 1990, hence, petitioner will not get any benefit

of Rule 12 of the Rules of 1961 in the facts of the case.

13. So far as the argument of learned counsel for the petitioner

on the ground of delay is concerned, fixation of seniority on

the basis of seniority list of 1999 is not based on the

application of respondent No.3, due to which, petitioner got

adversely affected. It appears that Government for some

reasons have taken a decision that gradation list as

prevailing prior to re-organization of State of Madhya

Pradesh shall be made basis for preparation of gradation list.

14. In this petition, petitioner has challenged the order of

promotion based on gradation list dated 18.05.2012. The

gradation list of 18.05.2012 was prepared based on letter

dated 20.07.2011 of State Government, Labour Department

for preparing gradation list, making base the gradation list

dated 19.01.1999. Petitioner has not challenged letter /

direction of State Government, which is the basis for fixation

of seniority and preparation of gradation list as on

18.05.2012. In the opinion of this Court, as letter / direction of

the State Government is not under challenge, no order can

be passed interfering the consequential action of preparation

of gradation list by respondents No.1 & 2 hence, no relief as

prayed for can be granted to the petitioner.

15. The case law relied upon by learned counsel for the petitioner

is on different facts. Ruling of Hon'ble Supreme Court in

Direct Recruit Class II Engineering Officers' Association

(supra) will not come to rescue of the petitioner when he

accepted adhoc promotion with a condition mentioned therein

and even not put to challenge, if for any reason, he feels it to

be arbitrary or illegal. After his regularization also he has not

challenged fixation of his seniority.

16. Ruling of Hon'ble Supreme Court in B.S. Bajwa (supra) and

S. Sumnyan (supra) will also of no help of petitioner because

seniority of petitioner is not affected or altered based on

representation of respondent No.3, but State Government

took a decision to make base of seniority of employees as on

01.04.1999. Not only that, the order/decision of State

Government is not under challenge.

17. For the foregoing reasons and discussions, I do not find any

substance in this writ petition, which is liable to be and is

hereby dismissed.

Sd/-

(Parth Prateem Sahu) Judge Yogesh