Awadhram vs State of Chhattisgarh and Others

Satish K. Agnihotri, J.—By this petition, the petitioner seeks a direction to the respondents to grant him seniority with all consequential promotional benefits, as per the appointment order date 25.01.1993 (Annexure P-1) The brief facts, in nutshell, are that the petitioner was selected for the post of Assistant Superintendent Land Records (for short "ASLR") and appointed by the appointment order dated 25.01.1993 (Annexure P-1), through the proper selection conducted by the Public Service Commission (for short "the PSC") in the year 1989. The petitioner, belongs to the reserved category of Scheduled Caste. Some junior persons were promoted after granting the seniority, which is contrary to the terms and conditions of the appointment, wherein, it was clearly provided that the seniority of the candidates shall be reckoned and counted on the basis of the select list irrespective of the fact of joining the post.

The petitioner submitted a representation to the Sate Government of Chhattisgarh after creation of the State of Chhattisgarh on 22.12.2003, 14.01.2004 and 12.02.2004 (Annexure P-5, P-6 & P-7 respectively). Other juniors as on the post of ASLR namely Shri Tarachand Soni, Shri Sarjiram Sahare, Shri Gulab Singh Ahirwar, Shri Lakhanlal Diwan, Shri Rameshwar Singh Sidar, Shri Jiotsingh Kushram, Shri Dolishing Paraste, Shri Barshan Beg and Shri Jaipal Nikunj, who were juniors in the list were promoted by order dated 30.10.1998 (Annexure P-3)

On the other hand, Shri Sao, learned State counsel submits that admittedly the joining letter clearly stated that the seniority of the candidates would be fixed as per the select list, irrespective of the date of joining in the service. However, the same should have been done in accordance with rules and regulations, though no rules governing terms and conditions of ASLR was produced despite the opportunity granted to the State in support of the above-stated submission. It is made clear that the petitioner is claiming refixation of seniority as well as promotion from the date other juniors were promoted without impleading them as party respondents.

Shri Sao, further submits that the petitioner was initially appointed on probation for the period of two years and his seniority ought to have was to be counted from confirmation. Shri Sao, next submits that the petition deserves to be dismissed as the seniority list was published on 01.01.1997 and the instant petition has been filed after seven years without explaining the inordinate delay and laches and also without impleading other affected candidates as party respondents.

On perusal of the appointment order dated 25.01.1993 (Annexure P-1), it is evident that the petitioner''s appointment was for a period of two years, wherein, it was provided that during the probation period of two years, the candidate has to pass certain departmental test, failing which, their services may be terminated. Clause 3 to the other terms and conditions (mentioned at page 16) clearly stated that the seniority of the candidates appointed on the post of ASLR shall be determined in accordance with the merit list, irrespective of the date of joining on the post. Needless to mention that the petitioner was selected through PSC in the combined civil services examination held in June-July, 1990, but in the appointment order on the post of ASLR, he was placed at serial No. 9 According to the petitioner, other persons who were junior on the post of ASLR were promoted. However, they are not impleaded as party respondents.

The submission of learned State counsel that the petitioner was appointed on probation for the period of two year sand thereafter, after confirmation, he became member of the service is not disputed on the facts of the case. However, in the said clause, it is nowhere provided that the seniority shall be determined after completion of the probation period either of two years or of any extended period. There seems to be no provision for extension of probation period. It was provided that if the candidates failed to pass the departmental test, their services may be terminated, but there is no mention with regard to fixation of seniority in the said clause. At the same time, there is a specific mention in clause 3 that the seniority has to be determined on the basis of merit list, irrespective of the date of joining of the service or confirmation of the probation period. Clause 1 & 3 reads as under

The Chhattisgarh Civil Services (General Conditions of Services) Rules 1961 (hereafter referred to "Rules, 1961") is applicable to a service of group of posts in connection with the affairs of the State, no other rules have been pointed out or brought into the notice of this Court, which governs the service condition of ASLR Rule 12 of the Rules, 1961 deals with the seniority and Rule 12 (1) provides that the seniority of persons directly appointed to a post according to rules shall be determined on the basis of the order of merit in which they are recommended for appointment irrespective of the date of joining. It appears that the terms of the appointment letter provides for seniority is not in derogation of the rules, while fixing the seniority as aforestated. The contention of the State Government that it is contrary to rules, is misplaced and misconceived.

Rule 12 (1) (f) provides that, if the period of probation any direct recruit or the testing period of any promote is extended, the appointing authority shall determine whether he should be assigned the same seniority as would have been assigned to him if he had completed the normal period of probation testing period successfully, or whether he should be assigned a lower seniority. In this case, no material has been produced for any decision, which might have been taken by the authorities though on the basis of clause 1 of the appointment order, there was no scope for extension of probation period.

The Supreme Court of Om Prakash Shrivastava Vs. State of M.P. and Another, while considering the identical provision held as under :

A bare reading of sub-clause (ii) of clause (a) of Rule 12 makes the position clear that the appointing authority has to decide as to from what date the direct recruit is to be assigned. It has to be decide whether seniority as assigned to him if he had been confirmed on the expiry of the normal period of probation or whether he should be assigned a lower seniority. The original probation period is two year. Therefore, a combined reading of Rules 8, 12 and Rule 13 of the Executive Rules makes the position clear that seniority can be assigned by taking the relevant date to be the date of expiry of normal period of probation.

In the case on hand, all the facts have not been brought to the notice of this Court. Thus, it is difficult to decide asto what the decision taken by the authorities while granting the seniority of the petitioner, not on the basis of merit list of the PSC.

This is a claim, which has been raised after a delay of seven years and the petitioner has not filed any affidavit explaining inordinate laches and delay, that is also one of the ground for not entertaining the petition; secondly, the petitioner has not impleaded other employees who may be affected by change of seniority as well as his claim for promotion. On this count also, the petition may be dismissed for want of impeading necessary parties.

The Supreme Court in Girjesh Shrivastava and Others Vs. State of M.P. and Others, observed as under:

The next point urged by the appellants, that they has never been impleaded in the two petitions, even as orders passed by the High Court has a direct effect on their livelihood, also goes to the root of the matter as it violates the principle of audi alteram partem.

This Court in Prabodh Verma v. State of U.P. 6 held : (SCC p. 273, para 28)

28....A High Court ought not to decide a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondents....

Similarly, this Court in Ramrao v. All India Backward Class Bank Employees Welfare Assn. 7, SCC at pp. 86-87 said (SCC para 27)

27.....An order issued against a person without impleading him as a party and, thus, without giving him an opportunity of hearing must be held to be bad in law. The appellants herein, keeping in view the fact that by reason of the impugned direction, the orders of promotion effected in their favour had been directed to be withdrawn, indisputably, were necessary parties. In their absence, therefore, the writ petition could not have been effectively adjudicated upon.

Also in B. Ramanjini v. State of A.P. 8, where selection of certain teachers was challenged without impleading them, this Court held :(SCC pp. 542-43, para 19)

Selection process had commenced long back as early as in 1998 and it had been completed. The persons selected were appointed pursuant to the selections made and had been performing their duties. However, the selected candidates had not been impleaded as parties to the proceedings either in their individual capacity or in any representative capacity. In that view of the matter, the High Court ought not to have examined any of the questions raised before it in the proceedings initiated before it. The writ petitions filed by the respondents concerned ought to have been dismissed which are more or less in the nature of a public interest litigation.

Applying the well settled principles of law to the facts of the present case and for the reasons mentioned hereinabove, the petition is dismissed.

No order asto cost.