S. Santosh Kumar vs State Of Chhattisgarh

Challenge in WPPIL No. 19 of 2019 is to Annexure P/1 Chhattisgarh Public Services (Promotion) Rules, 2003 which provides reservation in promotion to Scheduled Castes and Scheduled Tribes Categories. As per the petitioner, the same is contrary to the constitutional mandate and the binding precedents.

Since the other petitions i.e. WPS No. 9778/2019, 839/2020 and 3600/2020 and WA No. 286/2021 also seek to raise similar issues, they were being clubbed together and are being heard together.

These cases were heard on 02.11.2023 on IA No. 60 and 61 filed by the intervenors, which are the applications for modification of the order dated 09.12.2019.

This Court, vide order dated 09.12.2019 passed the following orders:

“When the matter came up for consideration before this Court on 29-11-2019, we passed a detailed order as to course and events and made an observation to the effect that, the petitioner had prima facie made out a case for granting interim relief. However, considering the request made on the part of the Government to give an opportunity to get instructions and to make appropriate submissions, particularly, in the light of earlier direction given by this Court, which is stated as violated as put-forth by the petitioner; time was given in this regard. No return has been filed or no proper satisfactorily explanation is forthcoming, but for the submission that a letter bearing No. एफ 20-3/ 2019 /1-3 dated 05-12-2019 has been issued by the State to the Central Government, Ministry of Social Justice and Empowerment, pointing out the relevant aspects and for issuance of some guidelines. At the same time, the fact remains that notifications have been issued by way of Annexures P-1, P-& P-3 and steps are going on to fill up the posts accordingly, ignoring the rule of law.

In the said circumstances, we find it appropriate to grant an interim order as prayed for. Further proceedings pursuant to Annexures P-1, P-2 & P-3 will stand stayed for a period of 2 months. However, it is made clear that this order will not place any hurdle with regard to regular promotion and we make it applicable only with regard to extent of reservation to the eligible lots.

The respondents are directed to file their version.

List the matter for further consideration in the week commencing from 6th January, 2020.”

Mr. K.S.Chauhan, learned Senior Advocate assisted by Mr. Tribhuwan Das, learned counsel appearing for the Intervenors-Deepak Kumar & Others (in IA No. 60) and Vinod Kumar & Others (in IA No. 61) would submit that this Hon'ble Court may kindly be pleased to allow these applications for modification of the order dated 09.12.2019 and modify the same to the extent of the interim order dated 01.05.2023 passed by the Hon'ble Supreme Court so that the selection process, appointment and promotion orders withheld/stayed may be issued in the interest of justice.

It is further submitted that the Respondent/State vide its letter No. 1220/T7-133/2023/13/2 dated 03.05.2023 has forwarded the copy of interim order dated 01.05.2023 passed by the Hon'ble Supreme Court to The Managing Director of State Power Generation/Transmission/Distribution Co. Ltd. Including other Power Companies to comply with the same. The Respondent/State has also forwarded vide its letter No. F13-1/2023/A.Pra/1-3 dated 03.05.2023 the copy of the said interim order dated 01.05.2023 to all the Departments of the Government to ensure compliance of the order.

Mr. Chauhan further submits that WP(S) No 9778/2019 (Vishnu Prasanna Tiwari v. State of Chhattisgarh & Others) is pending and tagged along with WPPIL 91/2019 in which the similar interim order dated 09.12.2019 has been passed. Of late, the Hon'ble Supreme Court, vide its interim order dated 01.05.2023 considering the urgency of making admissions and promotions within the State has passed the following order in SLP Nos. 18816-18817/2022 (Yogesh Kumar Thakur v. Guru Ghasidas Sahitya Avam Sanskriti Academy & Others):

"Date: 01.05.2023. These matters were called on for hearing today.

UPON hearing the counsel the Court made the following

ORDER

SLP(C) No. 19668/2022

Dr. Abhishek Manu Singhvi, learned Senior counsel appearing for the State submits that before the judgment of the High Court was delivered, various advertisements have been issued and the selection processes were also in the process. It is submitted that if the petitioner is not permitted to go ahead with the selection process and also make the promotion, the State would face a acute shortage of manpower.

Ms. Pooja Dhar, learned counsel appearing for the writ-petitioners has vehemently opposed the grant of interim order. 3. We find that a situation cannot be permitted where the State does not have requisite manpower to run the administration.

We, therefore, permit the State to go ahead with the selection process and make appointments and promotions.

However, it is made clear that the same shall be subject to the result of the petition.

All appointment and promotion orders shall specifically mentions that such appointments and promotions are subject to the final outcome of the present proceedings.

List this matter alongwith other connected matters after ensuing summer vacation.”

Mr. Chauhan would also submit that the intervenors are aggrieved and suffering as their promotion orders have not been issued due to the aforesaid interim stay order dated 09.12.2019 staying the entire promotions to the SC/ST employees which needs modification in view of the aforesaid interim order dated 01.05.2023 passed by the Hon'ble Supreme Court. He relies on

On the other hand, learned counsel for the petitioners/appellants would submit that since the issue involved in these cases is pending consideration before the Apex Court, no order may be passed till the final disposal of the case pending before the Apex Court.

We have heard learned counsel for the parties, perused the pleadings and documents appended thereto.

Since the applications IA No. 60 and 61 have been filed by the intervenors claiming that their promotional avenues are being affected because of the interim order dated 09.12.2019.

This Court, vide order dated 08.01.2020, had passed a detailed order which reads as under:

“The Applicants, in I.A. Nos.04 to 10 filed in WPPIL No.91 of 2019 and I.A. Nos.03 to 41 filed in WPS No. 9778 of 2019 for intervention, have sought themselves to be impleaded in these proceedings pointing out that their rights by virtue of being a member of either scheduled caste or scheduled tribe are likely to be adversely affected and hence they are necessary parties, to be heard. It is also pointed out that, this Court, as per order dated 09.12.2019, has only stayed Annexures P/1, P/2 and P/3; but wrongly interpreting the same, the State Government is effecting promotion only in the unreserved segment, leaving the deserving scheduled caste and scheduled tribe segments.

This is sought to be rebutted by the learned counsel appearing for the Petitioners in WPS No.9778 of 2019 pointing out, with reference to I.A. No.19 of 2020 filed by Arvind Minj, that the proceedings filed along with the application, clearly reveal that the promotions given by the State are also in the 'reserved segment' and hence that there is no basis at all in the submission made across the bar.

This Court does not intend to deal with the merits of promotion given to the 'unreserved segment' or as to the alleged denial of the same to the 'reserved segment'. As far as the interim order is concerned, it is explicitly clear that the stay is in respect of further steps pursuant to Annexures P/1, P/2 and P/3. The reasons for passing the said order are also clearly discernible therefrom. On 29.11.2019, the sequence of events was taken note of, including as to the striking down of the '2003 Rules', which governed the field of reservation in promotion, by a Division Bench of this Court as per Annexure P/5; with liberty to the State to frame new Rules, strictly in conformity with the law declared by the Apex Court in M. Nagaraj and Others v. Union of India and Others, (2006) 8 SCC 212 and Jarnail Singh and Others v. Lachhmi Narain Gupta and Others, (2018) 10 SCC 396. Subsequently, when the matter was taken up for consideration on 02.12.2019, the learned Advocate General submitted that some inadvertent mistake had crept in respect of the Rules under challenge and that steps were being taken on war footing to have the same rectified. Accordingly, the learned Advocate General sought to have a posting on the next Monday, to make appropriate submissions.

The matter came up for consideration on 09.12.2019, when no satisfactory explanation was offered; but for stating that a letter dated 05.12.2019 had been sent to the Central Government seeking for issuance of some guidelines. This led to the order passed on 09.12.2019 whereby all further proceedings pursuant to Annexures P/1, P/2 and P/3 were stayed for a period of two months. This Court only made it clear, based on the submissions made by the respective parties that, the said order will not place any hurdle in granting 'regular promotion'. This Court had not directed the State Government to effect any promotion; but for clarifying that the Government was free to effect regular promotion in accordance with law; without giving effect to Annexures P/1, P/2 and P/3. When the old Rules were struck down as per Annexure P/5 verdict, whether the Government would be justified in effecting any promotion on the basis of the said Rules, can only be answered in the 'negative'. Insofar as this Court has not restricted the Government to effect promotion only one segment, it is open for the State to take appropriate action complying with the order passed by this Court on 09.12.2019 and also giving effect to Annexure P/5 judgment, whereby the earlier Rules were set aside.

The submission made by the learned counsel for the Intervenors to modify the order by way of 'status quo', does not impress this Court for the reasons aforesaid and also for the reason that no petition seeking for any modification of the order has been filed by any of the Respondents or Intervenors before this Court, nor have the State/Respondents filed their return on merits.

In the said circumstances, the oral request made by the learned counsel for the Intervenors to modify the order dated 09.12.2019 stands declined. All the interlocutory applications for intervention are allowed.

Post these matters on 06.02.2020.”

It is true that when the order dated 08.01.2020 was passed by this Court, since no application for modification of the order dated 09.12.2019 was filed, but this Court had observed that the intervenors had made an oral request on that date to modify the order dated 09.12.2019 which was declined. Now, again just by filing an application would not make any change. Further, in view of the fact that this Court has not restrained the State/respondents to effect regular promotions on the strength of their seniority position, it would not be appropriate to modify/amend/vacate the interim order dated 09.12.2019 at this stage and it would be prudent to wait for the outcome of the aforesaid SLP pending before the Apex Court.

Resultantly, IA No. 60 and 61, stand dismissed.

Let these matters be listed in the third week of January, 2024 for final hearing.