Rupesh Gurudiwan vs State Of Chhattisgarh

This petition under Article 226 of the Constitution of India has been filed by the petitioner seeking for the following reliefs:

“(i) That, this Hon'ble Court may kindly be pleased to set-aside the impugned order dated 24.06.2015 (Annexure P/1) issued by the respondent State to the extent of granting reservation to the women and disabled person category candidates, including promotion of respondent no. 3 to 5 and further be pleased to direct the respondent State to promote the petitioner in the post of Naib Tahsildar according to his merit, with all consequential benefits, in accordance with law.

(ii) Grant any other relief(s)/ order(s)/ direction(s) in favour of petitioner, which may deem fit and proper in the facts and circumstances of the case, in the interest of justice.

(iii) Cost of the petition.”

Brief facts of the case as projected by the petitioner are that, the respondent issued an advertisement on 07.03.2014, for promotion through limited competitive examination from the In-Service candidates including Patwari, Revenue Officer & Clerk, with certain conditions, for promotion in the post of total 57 posts of Naib Tehsildar, in accordance with C.G. Junior Administrative Service Recruitment Rules 1980. The written examination was conducted on 20.07.2014. The selection process is for promotion in the post of Naib Tehsildar through limited departmental competitive examination, therefore no horizontal reservation was provided or applied in the aforementioned posts, according to the Rules 1980, however changing the game of rule after the written examination and before issuance of final result, the horizontal reservation was provided to women and disabled persons. Apart from above there is no other document revealing the fact of applying women reservation is available in the knowledge of the candidates.

As per the selection process after written examination Departmental Promotion Committee has to assess the annual service report of the candidates and decide the suitability of the candidate, then only the promotion on the basis of merit was to be given, which clearly reveals that the process is for promotion, which is otherwise evident from the schedule-II of the Rules 1980 amended from time to time and annexed herewith, clearly prescribing in the column no. (5) of Schedule II, under heading percentage of posts to be filled by way of promotion and the instant selection is conducted for the posts falls in that category. The petitioner being duly eligible applied for promotion and after participation obtained 10th position in the final result, whereas the respondent no. 3 obtained 12th, respondent no. 4 obtained 14th and respondent no. 5 obtained 16th position in final merit list and are placed below petitioner in unreserved category. Out of total 57 posts, total 28 posts are to be filled by way of promotion from the post of Patwari/Revenue Inspector, which is further bifurcated into 12 unreserved posts, 9 Scheduled Tribes, 4 Schedule Caste and 3 Other Backward Caste category posts. No reservation at all is prescribed in advertisement for the women or disabled category. Out of total 12 unreserved posts till date, only 11 posts have been filled bearing 4 women category candidates and out of 4 women candidates, one has got the post by virtue of her merit, whereas the other 3 respondents have got the promotion on the basis of women reservation.

Similarly, no disabled category candidate is available, nor applied, in the entire list of Patwari/Revenue category, but one post is kept vacant for unreserved disabled category candidate, despite the fact that no reservation is available for disabled category persons in the post of Patwari, as per prescribed procedures and rules of the respondent State. No column is prescribed in the application form for searching the candidate belonging to disabled category. Applying the above defected reservation policy, changing the rule of game at the end of selection process, the petitioner is denied promotion despite securing 10th position in the final result and respondents No. 3 to 5 were promoted by the impugned order dated 24.06.2015. By passing the merit of petitioner granting benefit of women reservation and one post kept deliberately vacant for disabled category candidate, though not a single Patwari is available in the entire state of Chhattisgarh, from disabled category, promoted in the post of Patwari.

The petitioner made several representations, but to no avail and the promotions were made by the respondent state and respondent No. 3 to 5 joined their service also taking benefit of above illegal reservation policy, hence this petition.

Learned counsel for the petitioner submits that the impugned undated final result and promotion order dated 24.06.2015 are arbitrary, unreasonable, unauthorized, unwarranted, illegal unjust and discriminatory & malafide, therefore, hit by the postulates of Article 14, 15 & 16 of the Constitution of India. The petitioner is duly eligible qualified and meritorious for promotion in the post of Naib Tahsildar from Patwari/Revenue Inspector cadre. Total 28 posts were allocated to the Patwari/R.I. cadre for filing by way of promotion, out of which total 12 posts were allocated to unreserved category out of which 4 posts are reserved for unreserved women category candidate in the midst of selection process.

In the advertisement, no horizontal reservation either for women or disabled person category and changing the game of rule of selection, the reservation was applied for horizontal reservation of women and disabled persons after written examination and before the declaration of final result and issue is already settled by the Hon'ble Supreme Court in judgment cited in (2015) 8 SCC 484 and AIR 2007 SC 2840. The selection process is for promotion in the post of Naib Tahsildar from Patwari/R.I. cadre, therefore no horizontal reservation either women or disabled category are applicable. The horizontal reservation for women and disabled person category is applied only against the direct recruitment in any post.

Article 15 bars gender reservation therefore no reservation can be granted to the women category only on the basis of gender. Benefit of reservation cannot be extended to disabled category person in the post of Patwari, therefore reserving one post for Naib Tahsildar for disabled category candidate is unreasonable and arbitrary. Prescribed procedure and rules of State prohibits application of reservation for disabled category person in the post of Patwari. Out of 12 unreserved post under Patwari/R.I. cadre, one post is still lying vacant and the petitioner is placed at serial no.10 in the final result as unreserved category candidate however till date no promotion is given to the petitioner in the post of Naib Tahsildar. Applying wrong reservation policy the respondent no. 3 to 5 have been granted promotion in the post of Naib Tahsildar bypassing the merit of the petitioner, by impugned order dated 24.06.2015.

The petitioner had made representations in this regard but to no avail and only assurances have been given to the petitioner. The game of rule of selection process cannot be changed in the midst of selection process. The horizontal reservation for women and disabled person category is not provided in the Rules 1980. From a bare perusal of column (5) of Schedule II of Rules 1980, it is clearly evident that the present selection is for promotion in the post of Naib Tahsildar and not the direct appointment.

In support of his contention, counsel for the petitioner placed reliance on the judgment passed by the Hon’ble Apex Court in the case of “Ganga Vishan Gujrati and others v. State of Rajasthan and others”, reported in (2019) 16 Supreme Court Cases 28 and this Court's order dated 10.02.2023 passed in WPS No. 4296/2014 (Smt. Parvati Verma v. State of Chhattisgarh and others).

Learned counsel for the respondent No.1/State strongly opposed the prayer of the petitioner and submits that this petition is not maintainable and liable to be dismissed on the ground that the petitioner has prayed for setting aside the order dated 24/06/2015 (Annexure P/1), whereas only few selected and appointed candidates i.e. the respondent no. 3 to 5 have been arrayed as party respondent, whereas all the selected and appointed candidates, whose names are mentioned in the order impugned (Annexure P/1) under Revenue Inspector/Patwari cadre are necessary party, have not been arrayed as party respondents. Main objection of the petitioner is that an advertisement dated 07/03/2014 was published by the respondents for promotion to the post of Naib Tahsildar, through limited departmental competitive examination from the departmental candidates, which includes Patwari, Revenue Inspector and Clerk etc. in accordance with the Chhattisgarh Junior Administrative Service Recruitment Rules, 1980 and the selection process has been made for promotion through the limited departmental competitive examination and therefore, no horizontal reservation was provided or applied in the aforesaid posts according to the Rules, 1980, however, changing the game of rule after the written examination and before issuance of final result, the horizontal reservation was provided to the women and disabled person.

The entire contention of the petitioner is far from truth and hence, the entire petition is devoid of merit. Admittedly, the petitioner secured 10th position in overall rank in the written examination conducted by the respondent no. 2 and evaluation of the last 5 years of ACR of the petitioner. As per the condition no. 7 enumerated in the advertisement, the merit list would be prepared on the basis of the total marks obtained by the candidates in written examination. Thereafter, the last 5 years of ACR of the successful candidates would be evaluated by the scrutiny committee and thereafter, a final merit list on the basis of the marks obtained by them in written examination and in by the candidates evaluation of the last 5 years of ACR of the candidates would be prepared and based upon the aforesaid select list, the appointment shall be given to the candidates according to serial-wise.

Initially in the advertisement, the reservation for women and disabled persons has not been given despite already there being 30% reservation for women category and 6% reservation for disabled person and 3% reservation for ex- defense personal etc. and therefore, during the selection procedure and before declaring final result/select list, the reservation to women category and disabled persons has been given. As there is a provision for 30% reservation in total vacancy for only women candidate and therefore, out of total 12 posts kept of unreserved category candidates, 4 posts have been reserved for women unreserved category candidate as per circular dated 10/02/1997 (Annexure R/1). The whole selection has been made strictly in accordance with merit and not otherwise, therefore, this petition is without any merit and liable to be dismissed. In support of his contention, counsel for the respondent/State placed reliance on the order passed by this Court on 27.10.2018 in WPS No. 1889/2014 (Mathura Prasad Kashyap & another v. State of Chhattisgarh & another) and other connected matters.

I have heard the contentions put forth by learned counsel for the parties and perused the material available on the record.

It is an admitted position in this case that as per advertisement dated 07.03.2014, the petitioner and other candidates were considered for promotion through limited competitive examination from in service candidates including Patwari, Revenue Officer and Clerk with certain conditions on the post of total 57 posts of Naib Tehsilar as per Annexure P/2 and P/3. Learned counsel for the petitioner submits that in advertisement total 12 posts were allocated to unreserved category, out of which 4 posts were reserved for the candidates of unreserved women category in the midst of selection process. In the advertisement, no horizontal reservation either for woman or disabled man category is discussed, therefore, no horizontal reservation either woman or disabled category are applicable. Hence, this reservation would be applied only against the direct recruitment in any post.

As per the respondent/State, the aforesaid promotion has been conducted strictly in accordance to the guidelines of State Government (Annexure R/1). The petitioner is claiming relief to set-aside the impugned order dated 24.06.2015 (Annexure P/1). It is clear from this order. As many as 27 candidates were promoted from Revenue Inspector/Patwari category and 24 candidates were promoted from Clerk cadre. The petitioner only impleaded 03 persons as party respondents. The Division Bench of this Court in the matter of “Mathura Prasad Kashyap” (supra) observed in para 19 as under:

“19. It is also to be seen that during pendency of both the writ petitions the entire selection process is over and the persons have been appointed/ promoted on the post of Naib Tahsildar. None of the appointees/ promotees have been impleaded as necessary party in these petitions. It is the well settled proposition of law that no adjudication can be made behind the back of the party (See : Ranjan Kumar etc. etc. v. State of Bihar and others, 2014 (3) Supreme 646)”

In this case also the petitioner not impleaded other selected candidates as party respondents. Learned counsel for the petitioner submits that the petitioner is affected only from promotion of the respondents No. 3 to 5 and therefore, he made them as a party. It is also clear that this promotion was conducted as per Annexure R/1, which is the guidelines of State Government. As per valuation sheet, the petitioner secured 10th position and got 247.15 marks. As per representation of the petitioner Annexure P/7, one Ramnarayan Sahu was selected by the respondents, who was not joined on the promotional post and his selection was cancelled by the respondents, therefore, the petitioner is entitled for promotion on the said vacant post, but the respondents did not consider the representation of the petitioner.

It is clear that the respondents followed the reservation policy and selection process, but as per petitioner, reservation policies are for direct selection and not for promotional post and as per Annexure R/1 reservation has been given on the promotional post.

Looking to the said facts and circumstances of the case, it is clear that the respondents applied proper reservation policy as per Annexure R/1 and issued Annexure P/1. The petitioner sought relief for setting aside the impugned order dated 24.06.2015 (Annexure P/1), but all promotees are not impleaded as necessary parties, therefore, this petition is liable to be and is hereby dismissed, leaving the parties to bear their own costs.