Goverdhan Yadav vs State Of Chhattisgarh

The present writ petition has been filed by the petitioner with the following relief(s):-

“10.2 That, this Hon’ble Court may kindly be pleased to call for the entire records with respect to the case of petitioner and after its perusal allow this petition.

10.2 That, the Hon’ble Court may kindly be pleased to issue a writ in the nature of mandamus directing the respondents, particularly the Respondent No. 3 to consider the seniority of petitioner with back wages and nature of work as Class-III employee and not as Class-IV and modify the order to that extent or issue fresh appointment order looking to his seniority and working post.

10.3 That any other relief(s) which this Hon'ble Court may think fit and proper in the facts and circumstances of the case be granted to the petitioner.”

Brief facts of the case, as projected by the petitioner, are that prior to appointment of the petitioner on the post of Casual Driver, vide order dated 31.03.1989 (Annexure P/2), a post of Driver for vehicle No. CPZ-6659 was crated by the then Assistant Director, Bastar Aadivasi Vikas Pradhikaran, Jagdalpur and vide order dated 06.04.1989, the petitioner was appointed on the clear vacant post. On 29.03.1996, a gradation list (Annexure P/3) of the Drivers as on 01.04.1995 was published in which, out of 27 drivers, name of the petitioner was at Sl. No.14. Thereafter, vide order dated 25.03.1997 (Annexure P/4), as many as 13 daily wages Drivers, who were junior to the petitioner, had been regularized in the pay scale of Rs.950-25-1000-30-1250-35-1530, however, the petitioner was not regularized. On 09.09.2008, the Respondent No.5, with reference to his earlier letter dated 12.05.2008, sent a letter (Annexure P/6) to the Respondent No.3 requesting him to regularize the services of three daily wages employees including the petitioner, however, no action was taken by Respondent No.3 on the said letter. Being aggrieved by the inaction on the part of the respondent authorities, the petitioner filed a writ petition bearing W.P.(S) No.383/2013 before this Hon'ble Court, which was vide order dated 05.03.2013 (Annexure P/7) disposed of by this Court directing the petitioner to file representation in respect of the claim. It was further directed that the respondents to consider and take decision on the representation of the petitioner strictly in accordance with law and the laid down by Hon'ble Supreme Court in the matter of Uma Devi.

In compliance of the aforesaid order of this High Court, the petitioner filed a representation before the respondent authorities and the respondent authorities, vide order dated 14.08.2013 (Annexure P/1), appointed the petitioner on the post of Chhattisgarh Class-IV Service (Non Technical) Driver on contract basis on the pay scale of Rs.4750-7440 Grade Pay of Rs.1400/-. According to the petitioner, the said order of appointment issued by Respondent No.3 is against the letter and spirit of the order of this Court, temporary in nature, against the law laid down by Hon'ble Supreme Court in the case of Uma Devi, against the circular dated 05.03.2008 issued by the Respondent/State and against the sanctioned set-up of the Government Industrial Training Institute/Respondent No.5, according to which, the working of the petitioner comes under Grade-III in which the petitioner has been working for last 18 years, whereas the Respondent No.3 appointed the petitioner in Grade-IV service (non-technical) Driver by creating new post from the date of joining the post, which grossly affect the seniority of the petitioner.

Being aggrieved by the said appointment order (Annexure P/1), the petitioner moved a representation on 30.08.2013 (Annexure P/8) before Respondent No.3 raising his all grievances, however, the said representation of the petitioner fallen to deaf ear of the respondent authorities. Hence, this petition.

Learned counsel for the petitioner submits that the petitioner is working since 31.03.1989 on the post of Driver (Class-III) and after creating of new post of Driver, the petitioner was appointed on the clear vacant post vide order dated 06.04.1989, as such, being in continuous service for 23 years the petitioner obtained the status of permanent employees but the respondent authorities regularized the serviced of 12 Drivers who are junior to him.

Learned counsel further submits that according to the sanctioned set-up of Respondent No.5, the petitioner is working in the Government Industrial Training Institute, Jagdalpur since 01.01.1989, without any break of more than one month on the same post of Driver, therefore, the impugned order (Annexure P/1) mentioning that the calculation of seniority of the petitioner would be considered from the date of joining is totally illegal, bad, against the law laid down by the Hon'ble Apex Court in the case of Uma Devi as also against the regularization policy (circular) dated 05.03.2008, as such, the impugned order deserved to be amended suitably else the petitioner would suffer irreparable injury in the form of his seniority and pay.

Learned counsel also submits that according to the Regularisation Policy (Circular) dated 05.03.2008, the petitioner was to be regularised in the year 2008 itself, however, the Respondent No.3, referring to that circular, has appointed the petitioner in the year 2013 even after order of this Court loosing the seniority and grade of Class-III of petitioner, as such, the impugned order deserves to be modified to that extent.

Learned State counsel strongly opposed the prayer of the petitioner and submits that in the light of guidelines contained in the Circular dated 05.03.2008 issued by the General Administration Department, Govt. of C.G., a Scrutiny Committee was constituted by the respondent/State and meeting (Annexure R/1) of that Scrutiny Committee was held on 19.09.2008 for regularisation of daily wages employee working prior to 31.12.1997, wherein the petitioner was not found eligible for regularisation due to non fulfilling the requisite qualification. Learned State counsel also submits that at the time of convening the said meeting of Scrutiny Committee, the petitioner had cleared class 5th examination, however, for the above said post of Class IVth Vehicle Driver, the minimum requisite qualification of 8th class pass has been prescribed along with driving license for light/heavy vehicles, hence, the petitioner’s name was not considered for regularisation at that relevant point of time because of non fulfillment of the requisite criteria of qualification. It has been also submitted by the learned State counsel that the petitioner cleared class 8th examination in the year 2009 and subsequently submitted an application (Annexure R/3) before the Respondent No.5 on 28.10.2009 for taking entry of the said qualification in his service book. Thereafter, again a meeting of Scrutiny Committee was convened on 10.07.2013 and 11.07.2013, wherein considering the fulfillment of requisite criteria of Class 8th examination by the petitioner and looking to the continuance service of the petitioner, the Scrutiny Committee recommended the name of the petitioner for regularization in service vide Annexure R/4. and on the basis aforesaid recommendation of the Scrutiny Committee and in compliance of this Hon’ble Court’s order dated 05.03.2013 (Annexure P/7), the Respondent No.3 issued order dated 14.08.2013 (Annexure P/1), whereby the petitioner has been granted regular appointment on the post of Class-IV Vehicle Driver on the pay scale of Rs.4750-7440 Grade Pay Rs.1400/- & posted at Industrial Training Institute at Bastar. Thus, the respondent authorities, after observing guidelines of the State Government and qualification of the petitioner, passed the impugned order (Annexure P/1), which is just and proper in the facts and circumstances of the case and does not suffer from any illegality and infirmity.

Learned State counsel also submits that it is well settled in law that the seniority of the employee will be counted from the date of his regularization and not from any back date as claimed by the present petitioner. Since the petitioner has been appointed as Class-IV, he cannot be treated as Class-III employees as per the notification dated 15.04.2010 (Annexure R/5). The qualification for post of Class-III Vehicle Driver has been prescribed as High School passed or its equivalent which the petitioner is not having, therefore, the relief as prayed by the petitioner for considering him to be Class-III employee is not tenable and liable to be rejected.

Learned State counsel also submits that the regularisation will be given only prospective effect i.e. from the date of order of regularisation and therefore, the relief sought for by the petitioner that seniority should be given from the back date is contrary to the provisions of law and therefore, relief sought for by the petitioner is arbitrary, illegal and the same is non-est in the eyes of law.

I have heard learned counsel for the parties and perused the material available on record.

Admittedly, the petitioner is working in the respondent/Department since 06.04.1989 as is evident from his appointment order (Annexure P/2), according to which, the petitioner was appointed on daily wages against the permanent post of Vehicle Driver sanctioned for Vehicle No. C.P.Z 6659 at Industrial Training Institute, Bastar . Further, according to the gradation list (Annexure P/3) of Driver, “temporary daily wage” has been written/mentioned against the name of the petitioner, which makes it clear that the petitioner’s posting is temporary as daily wage employee.

The respondent authorities have filed a copy of minutes of meeting (Annexure R/1) dated 09.09.2008 and 19.09.2008, according to which, the name of the petitioner had also been considered by the Committee, however, due to non fulfillment of the educational criteria, his name was not considered for regularisation. It also transpires from application (Annexure R/3) of the petitioner that he passed the exam of Class 8th in the year 2009 and submitted his mark sheet on 21.10.2009 for taking entry of the same in the service book & the Committee in its meeting dated 10.07.2013 and 11.07.2013 (Annexure R/4) considered the name of the petitioner for promotion and accordingly impugned order (Annexure P/1) has been passed by the respondent authorities, whereby the services of the petitioner has regularised on 14.08.2013.

It is well settled principle of law that any regularisation will be given only prospective effect i.e. from the date of order of regularisation and seniority of an employee will be counted from the date of his/her regularisation and not from any back date. Thus, the relief claimed by the petitioner is not in accordance with the service jurisprudence and the impugned order (Annexure P/1) is in accordance with the circular and guideline of the competent authority i.e. the General Administration Department and the same cannot be termed as illegal or arbitrary.

However, looking to the fact that the petitioner’s services has been regularised by order dated 14.08.2013 and by now he has completed 10 years of service, he is directed to file a fresh representation before the competent/respondent authorities, who in turn, shall consider and decide the representation of the petitioner, in accordance with prevalent service and promotion rules.

With the aforesaid direction, the instant petition stands disposed of.