State Of Chhattisgarh v. Cause-title taken from the Case Information System)

:- Mr. Saurabh Sahu, Advocate on behalf of Mr. Malay Shrivastava, Advocate For State/Resp. No.1 :- Mr. Rahul Tamaskar, Govt. Advocate For Respondent No.2 :- Mr. Gaurav Singhal, Advocate SB- Hon'ble Shri Justice Sanjay K. Agrawal Order On Board

16.12 .2024

1. This writ petition is directed against order dated

22.02.2016 (Annexure P/1) passed by respondent No.1, by which the petitioner’s representation seeking retrospective 2 (WPS No. 1263 of 2016) seniority on the post of Tahsildar w.e.f. 01.04.2008 has been rejected.

2. The case of the petitioner is that he was appointed to the post of Nayab Tahsildar on 13.04.2000 (Annexure P/2) and after completion of 05 years of service on the said post, he became entitled for promotion to the post of Tahsildar on 13.04.2005. In the meanwhile, the petitioner was allowed to work as in-charge Tahsildar on 04.11.2010 (Annexure P/5), but he was ultimately granted promotion to the post of Tahsildar on 27.04.2013 (Annexure P/8). After his promotion, the petitioner made representation before the State Government on 23.12.2015 (Annexure P/10) for grant of promotion from retrospective date, however, the said representation was rejected by the State Government vide the impugned order dated 22.02.2016 (Annexure P/1) finding no merit, against which this writ petition has been preferred.

3. Mr. Saurabh Sahu, learned counsel for the petitioner would submit that the State Government is absolutely unjustified in denying promotion to the petitioner from retrospective date, as he had become entitled for promotion to the post of Tahsildar on 13.04.2005 after completion of five years of service on the post of Nayab 3 (WPS No. 1263 of 2016) Tahsildar, whereas, he was granted delayed promotion on

27.04.2013, against which he made representation on

23.12.2015, which has been denied by the respondent authority without any rhyme or reason and, therefore, this writ petition deserves to be allowed. In this regard, he has relied upon the decisions rendered by the Supreme Court in the matter of P.N. Premachandran v. State of Kerala & Others ((2004) 1 SCC 245) and Major General H.M. Singh, VSM v. Union of India & Another ((2014) 3 SCC 670) to buttress his submission.

4. On the other hand, Mr. Rahul Tamaskar, learned Counsel for the State submits that the petitioner was granted promotion to the post of Tahsildar on 27.04.2013 and following that, he made representation claiming retrospective seniority w.e.f. the year 2008 for the first time on 23.12.2015 i.e. after a delay of 02 years. Thereafter, he filed this writ petition on 25.04.2016 in the wake of rejection of his representation by the State Government. As such, this writ petition suffers from delay and laches and is liable to be dismissed.

5. In reply, Mr. Saurabh Sahu, learned counsel for the petitioner would submit that he had also made representations for grant of promotion in the year 2008- 4 (WPS No. 1263 of 2016) 2009 and again on 31.07.2010, as such, this writ petition deserves to be allowed.

6. I have heard learned counsel for the parties, considered their rival submissions made herein above and gone through the materials available on record with utmost circumspection.

7. Admittedly, the petitioner was appointed to the post of Nayab Tahsildar on 13.04.2000 and after completion of 05 years of service on the said post, he became due for consideration for promotion to the post of Tahsildar. Thereafter, in the year 2007, the meeting of Departmental Promotion Committee was convened and against the nine vacancies, a total of 22 candidates were in the zone of consideration for promotion to the post of Tahsildar, however, the name of the petitioner was not there. Ultimately, seven persons were promoted to the post of Tahsilar and as per the affidavit filed by the State on

29.03.2016, the case of Mr. Diley Ram Dahire and Ms. Silli Thomas were kept in closed envelope. Later on, Ms. Silli Thomas was granted promotion after completion of due formalities on 06.05.2008 and Mr. Diley Ram Dahire was granted promotion on 31.10.2012, and both were granted seniority from the date the other persons were promoted 5 (WPS No. 1263 of 2016) i.e. 24.01.2008. Furthermore, the petitioner’s contention that the names of Mr. Ashish Shrivastava and Ms. Garima Upadhyay were put in the zone of consideration for promotion, whereas they had already left the department, yet he kept silent about it earlier and did not question it in accordance with law and he made his first representation only on 23.12.2015, which was considered and rejected by the State Government finding no merit, vide the impugned order dated 22.02.2016. Moreover, the petitioner, in his representation has sought retrospective seniority stating that he ought to have been granted promotion from the retrospective date as no DPC was convened in between

13.04.2005 to 27.04.2013, whereas the post of Tahsildar was vacant. However, it is incorrect on the face of the records as in the year 2007, the DPC was convened against the nine vacant posts and promotions to the post of Tahsildar were granted. Now, the petitioner has preferred this writ petition seeking retrospective seniority.

8. In this matter of conferment of retrospective seniority, the decision rendered by the Supreme Court in the matter of Shitla Prasad Shukla v. State of U.P. 1 may be noticed wherein, their Lordships have held as under :- 1 1986 Supp SCC 185 6 (WPS No. 1263 of 2016) “10.... The latecomers to the regular stream cannot steal a march over the early arrivals in the regular queue. On principle the appellants cannot therefore succeed. What is more in matters of seniority the Court does not exercise jurisdiction akin to appellate jurisdiction against the determination by the competent authority, so long as the competent authority has acted bona fide and acted on principles of fairness and fair play. In a matter where there is no rule or regulation governing the situation or where there is one, but is not violated, the court will not overturn the determination unless it would be unfair not to do so."

9. Similarly, in the matter of Ganga Vishan Gujrati v. State of Rajasthan 2 , their Lordships of the Supreme Court have held that retrospective seniority cannot be granted to an employee from a date when the employee was not borne on a cadre and has stated in para 45 as under :- "45. A consistent line of precedent of this Court follows the principle that retrospective seniority cannot be granted to an employee from a date when the employee was not borne on a cadre. Seniority amongst members of the same grade has to be counted from the date of initial entry into the grade. This principle emerges from the decision of the Constitution Bench of this Court in Direct Recruit Class II Engg. Officers' Assn. v. State of Maharashtra3. The principle was reiterated by this Court in State of Bihar v. Akhouri Sachindra Nath4 and 2 3 4 (2019) 16 SCC 28 (1990) 2 SCC 715 1991 Supp (1) SCC 334 7 (WPS No. 1263 of 2016) State of Uttaranchal v. Dinesh Kumar Sharma5. In Pawan Pratap Singh v. Reevan Singh6, this Court revisited the precedents on the subject and observed : (SCC pp.281-82, para 45) “45. … (i) The effective date of selection has to be understood in the context of the Service Rules under which appointment is made. It may mean the date on which the process of selection starts with the issuance of advertisement or the factum of preparation of the select list, as the case may be. (ii) Inter se seniority in a particular service has to be determined as per the Service Rules. The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from different sources. Any departure therefrom executive in the statutory rules, instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution. (iii) Ordinarily, notional seniority may not be granted from the backdate and if it is done, it must be based on objective considerations and on a valid classification and must be traceable to the statutory rules. (iv) The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant Service Rules. It is so because seniority cannot be given on retrospective basis 5 6 (2007) 1 SCC 683 (2011) 3 SCC 267 8 (WPS No. 1263 of 2016) when an employee has not even been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime.””

10. Reverting to the facts of the present case, since the petitioner had borne in the cadre of Tahsildar only on

27.04.2013, therefore, he is not entitled for grant of retrospective seniority, in view of the aforesaid judgments of the Hon’ble Supreme Court. Furthermore, the petitioner accepted his promotion on 27.04.2013 without any demur and protest and, thereafter, made a detailed representation against the same for the first time only on

23.12.2015 i.e. after a delay of more than two years from the date of his promotion, as such, the representation was made by the petitioner for stale claim.

11. In view of the above, the instant writ petition deserves to be and is accordingly, dismissed, on the grounds of delay and merits as well, leaving the parties to bear their own cost(s). Sd/- (Sanjay K. Agrawal) Judge @d!t!