T. S. Tanwar vs State Of Chhattisgarh
2024 Latest Caselaw 112 Chatt

Chattisgarh High Court

T. S. Tanwar vs State Of Chhattisgarh on 24 June, 2024

Author: Narendra Kumar Vyas

Bench: Narendra Kumar Vyas

                                                                           NAFR
          HIGH COURT OF CHHATTISGARH, BILASPUR
                            WPS No. 1856 of 2023
1. T. S. Tanwar S/o Late Chandrabhan Singh Aged About 51 Years Principal
   Government Industrial Training Institute Bhilai, District - Durg Chhattisgarh
2. Parmeshwar Idpache S/o Late Bhiv Ram Idpache Aged About 50 Years
   Principal Government Industrial Training Institute Basta, District Baster
   Chhattisgarh.
3. Premannd Gavel S/o Rampal Singh Gavel Aged About 60 Years Principal
   Government Industrial Training Institure Balodabazar, District- Balodabazar
   Chhattisgarh.
                                                                   ---- Petitioners
                                    Versus
1. State of Chhattisgarh Through Secretary, Skill Development Technical
   Education And Employment Department Chamber No. 52/3, Mantralaya
   Mahanadi Bhawan , New Raipur, District Raipur Chhattisgarh.
2. Secretary, General Administration Department, Mahanadi Bhawan, Nawa
   Raipur Chhattisgarh.
3. Secretary, Public Service Commission Shahid Bhagat Singh Chowk, Shankar
   Nagar Road, Raipur District- Raipur Chhattisgarh
4. Director, Directorate Of Employment And Training, Indravati Bhawan, Block No.
   4 First Floor, Nawa Raipur, District Raipur Chhattisgarh.
5. Shri M.F. Ansari S/o Late Haneef Ansari, Aged About 59 Years Presently
   Posted As Joint Director Regional Office, Ambikapur Chhattisgarh.
                                                                ---- Respondents
                                      &


                            WPS No. 2278 of 2024
•   Tushar Kant Satpute S/o Late Digamber Aged About 59 Years Principal Class-
    I I Mahila Industrial Training Institute Bhilai, District : Durg, Chhattisgarh
                                                                    ---- Petitioner
                                    Versus
1. State of Chhattisgarh Through Secretary, Skill Development Technical
   Education And Employment Department, Chamber No. 52 / 3, Mantralaya
   Mahanadi Bhawan, New Raipur, District : Raipur, Chhattisgarh
2. Secretary General Administration Department, Mahanadi Bhawan, Nawa
   Raipur, Chhattisgarh.
3. Secretary Public Service Commission, Shahid Bhagat Singh Chowk, Shankar
   Nagar Road, Raipur, District : Raipur, Chhattisgarh
4. Director Directorate Of Employment And Training, Indrawati Bhawan, Block No.
   4 First Floor, Nawa Raipur, District : Raipur, Chhattisga
5. Shri M. F. Ansari S/o Late Haneef Ansari Aged About 59 Years Presently
   Posted As Joint Director Regional Office, Ambikapur, Chhattisgarh.
6. Premannd Gavel S/o Rampal Singh Gavel Aged About 60 Years Principal
   Government Industrial Training Institute Balodabazar, District : Balodabazar-
   Bhathapara, Chhattisgarh
                                                   2

    7. Tej Ram Dewangan S/o Late M. R. Dewangan Aged About 63 Years (Now
       Retired) C/o Principal Class- I Govt. Industrial Training Institute Mana,
       Raipur, District : Raipur, Chhattisgarh
                                                                                ---- Respondents


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For petitioners : Mr. Uttam Pandey and Mr. Vikash Kumar Bajpai, Advocates.

For Respondent/State : Mr. Vivek Sharma, Addl. Adv. General.

For respondent CGPSC: Dr. Sudeep Agrawal, Advocate.

Hon'ble Shri Justice Narendra Kumar Vyas.

Order on Board

(24-06-2024)

1. Since an identical issue and common facts of law are involved in both the writ petition, they are heard analogously and are being disposed of by this common order.

2. Learned counsels for the petitioners would submit that the petitioners are eligible for promotion on the post of Principal Grade -1 of Deputy Director, Skill Development Technical Education and Employment Department and they were also found fit for promotion in the earlier Departmental Promotion Committee conducted in the year 2020 and still more than four years, neither case of the petitioners for grant of promotion has been considered nor promotion order has been issued, therefore, the petitioners have filed the present writ petitions with a prayer for issuance of direction to the respondent authority to issue promotion order.

3. In the meanwhile, subsequent development has taken place, promotion rules have been struck down by the Hon'ble Division Bench of this Court in WP(PIL) No 91 of 2019 in case of S. Santosh Kumar vs. State of Chhattisgarh and others, decided on 16-4-2024

wherein the Hon'ble Division Bench of this court has passed the following order which reads as under.

"31. For the foregoing discussions, this Court is of the view that the impugned notification dated 22.10.2019 (Annexue - P/1) is perverse and declared to be ultra vires to the provisions contained under Article 14 and 16 (4A) and (4B) of the Constitution of India and is issued in contravention of orders passed by the Hon'ble Supreme Court M.Nagaraj's case (supra), Jarnail Singh's - I case (supra), B.K. Pavitra's - II case (supra) as well as the order dated 04.02.2019 passed by the Co-ordinate Bench of this Court in W.A.No. 409/2013. Further considering the judgment of the Hon'ble Supreme Court in Jarnail Singh's - II case (supra), the notifications dated 30.10.2019 (Annexure - P/3) and 31.10.2019 (Annexure- P/1) have also losses its efficacy and are hereby quashed. Consequently, WPS No. 9778/2019 is allowed".

4. Learned counsels for the petitioners would further submit that because of non-promotion, the promotional avenues of the petitioners will be adversely affected in future Therefore, they would submit that 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.

5. 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

Others 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 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

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 14 and 16 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 30-5-2008. 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."

6. 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".

7. Considering the act that since the petitioners are already eligible for promotion and no formal order for promotion has been issued, it is directed that the State shall conduct fresh DPC for promotion on the post of Principal Grade -1 of Deputy Director within a period of the 30 days from the date of receipt of a copy of this order and take a final decision and pass an appropriate order.

8. In view the aforesaid observation and direction, both the writ petitions are disposed of.

Sd/-

(Narendra Kumar Vyas) JUDGE

Raju