Vikas Shrivastava vs State Of Chhattisgarh

The petitioner has preferred the present writ petition praying for the following reliefs:-

“10.1 That, the Hon'ble Court may kindly be pleased to call for entire records of the case from the respondents for its kind perusal.

10.2 That, the Hon'ble Court may kindly be pleased to direct the respondent authorities to issue fresh seniority/gradation list placing the names of the petitioners as per the promotion order dated 31.07.2008 considering the year of promotion as 2004.

10.3 That, the Hon'ble Court may kindly be pleased to quash the erroneous seniority/gradation lists dated 06.07.2013 and 29.03.2011 issued by the Govt. respondents and restrain the Government respondents from issuing new gradation list until necessary correction are made.

10.4 That, the Hon'ble Court be pleased to issue a writ or order the Govt. respondents to restrain from making further promotions on the basis of the erroneous seniority / gradation lists of Assistant Engineers.

10.5 That, the Hon'ble Court be pleased to award the cost and expenses of this petition.

10.6 That, any other relief which this Hon'ble Court deems fit in the present facts and circumstances of the case may kindly be granted.”

Brief facts of the case, as projected by the petitioner, are that the petitioner was initially appointed as Sub Engineer in the Public Works Department, Chhattisgarh. He was promoted on ad-hoc basis on 12.07.2004 as Assistant Engineer. Subsequently, vide order dated 31.07.2008, the petitioner along with 15 other Ad-hoc promotees Assistant Engineers were regularized. The petitioner's name appeared at Sr. No.5 in this order. On the same date ie. 31.07.2008, promotion orders for 119 Sub-Engineers were also issued promoting them as Assistant Engineer. These two orders for promotion of two different categories of Engineers on the same date and for the same post has created confusion in fixing seniority for the post of Assistant Engineer. In the year 2003, the Department promoted 34 persons as Assistant Engineers on Ad-hoc basis vide order dated 11.08.2003 and these Ad-hoc promoted Assistant Engineers were regularized vide order dated 01.03.2007. However all these Assistant Engineers were subsequently promoted as Executive Engineers vide order dated 19.09.2008 counting their seniority from the date of Ad- hoc promotion ie 11.08.2003. The Department had issued seniority/gradation list dated 29.03.2011 showing the position of Assistant Engineers as on 01.04.2010. In this list, the Assistant Engineers who were promoted during the year 2008 though they were juniors to the petitioner were placed above. Thereafter the petitioner and his other colleagues submitted application/objection for the same before the Department on 15/04/2011, but without redressing the objection, again on 06.07.2013 the Department issued the seniority/gradation list showing the position of Assistant Engineers as on 01.04.2012, against which the present writ petition has been preferred by the petitioner.

Learned counsel for the petitioner submits that the impugned gradation list is erroneous and has not been prepared according to the order of promotion. The juniors have been placed above the petitioner. The petitioner obtained Ad-hoc promotion during the year 2004, which was duly confirmed by order dated 31.07.2008. The services rendered and experience gained by the petitioner on the promotional post cannot be ignored due to mistakes committed by the respondents in preparation of the gradation list. All the Adhoc Assistant Engineers had already submitted application/representation before the Principal Secretary, Public Works Department in this regard, but the same is still pending before the authorities unattended. He further submits that the arbitrary act on the part of respondent authority in denying seniority to the petitioner is in violation of the rules and policy, which literally amounts to punishment for the petitioner which can lower down the moral and efficiency of any employee. The impugned action of the respondent authorities is illegal, arbitrary and violative of fundamental rights of the petitioner and is in violation of Article 14 and 16 of the Constitution of India. The petitioner had already been promoted on Ad-hoc basis long back vide order dated 12.07.2004 as Assistant Engineer and had been regularized as Assistant Engineer vide order dated 31.07.2008. The gradation lists are erroneous, as the same are prepared by jumbling with the sequence of promotion of both the orders. Therefore, the writ petition may kindly be allowed and the respondents be directed to fix the seniority of the petitioner as per promotion order. Reliance has been placed on the judgment rendered by the Hon’ble Supreme Court in the matter of Direct Recruit Class II Engineering Officers Association vs State of Maharashtra and others, reported in (1990) 2 SCC 715.

Learned State counsel opposes the submission made by the petitioner’s counsel and submits that para 5 of the order dated 12th July, 2004 (Annexure P/2) specifically and categorically stipulates that the employees, who are promoted on adhoc basis, shall not claim any seniority in their cadre and the seniority in the cadre will be made on the basis of regular promotion. Para 5 further says that in situation of any amendment in the seniority, the adhoc promotion may be changed. The impugned seniority list (Annexure P/1) as on 01.04.2012 for the post of Assistant Engineer (Civil) has been prepared by the respondents in accordance with the Recruitment Rules, whereby 25% Assistant Engineers by way of direct recruitment and 75% by way of direct promotion are to be promoted. The petitioner while joining on the promoted post of Assistant Engineer (Civil) has been very well aware about the instruction as laid down in Para 5 of the order dated 12th July, 2004 (Annexure P/2), therefore, he cannot claim any seniority since the year 2004. The adhoc promotion of the petitioner has been regularized vide order dated 31.07.2008 (Annexure P/3), therefore, his seniority cannot be determined from the year 2004. In para 3 of the order dated 31.07.2008 (Annexure P/3), it has also been clarified that the inter-se seniority of the Assistant Engineers shall be determined separately. Thus, there is no illegality or infirmity on the part of the respondents. The instant petition is devoid of any merit, therefore the same deserves to be dismissed. Reliance has been placed on the judgment rendered by the Hon’ble Supreme Court in the matter of Kum C. Yamini vs The State of Andhra Pradesh & Anr., decided on 14.08.2019 in Civil Appeal No.6296/2019 and other connected matters.

Heard learned counsel for the parties and perused the material available on record.

As per petitioner, the impugned gradation list has wrongly been issued by the respondents placing the petitioner below his juniors by not following Rule 12 of the Chhattisgarh Civil Services (Promotion) Rules, 2003. The petitioner has also filed representation (Annexure-P/14) before the respondent authorities agitating his grievance, but the same is still pending consideration. The respondents have also not rebutted this fact in their return and they simply denied the claim of the petitioner.

Considering the facts and circumstances of the case and for the fact that the petitioner’s representation is still pending consideration before the respondent authorities, I deem it appropriate to direct the respondent authorities to consider and decide the representation of the petitioner in light of the Chhattisgarh Civil Services (Promotion) Rules, 2003 and the guideline issued by the Hon’ble Supreme Court as well in this regard. The petitioner is also directed to file a fresh representation before the respondent authorities within a period of 1 month from the date of receipt of copy of this order, which shall be considered and decided by the respondent authorities within next 3 months.

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