Afr High Court
Case Details
1 2025:CGHC:19791 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 1332 of 2013 Order Reserved on : 04.02.2025 Order Delivered on : 01.05.2025 • Gouri Shankar Chourasiya S/o Mulchand Chourasiya Aged About 43 Years Posted As Asstt Grade 1, High Court Establishment, R/o Lig 182, Devrikhurd, Ps Torva, Distt Bilaspur, Cg, Chhattisgarh --- Petitioner versus 1. High Court Of Chhattisgarh And Ors S/o Through Registrar General, Bodri, Distt Bilaspur, Cg, Chhattisgarh 2. Registrar General High Court Of C.G., Bodri, Dist Bilaspur, Cg, District : Bilaspur, Chhattisgarh 3. Dev Sharan Dilliwar Presently Posted As Asst Grad 1, High Court Establishment, Bodri, Ps Chakarabhata, Dist Bilaspur,c G, District : Bilaspur, Chhattisgarh 4. Sunil Kumar Verma Aged About 43 Years Presently Posted As Asst Grad 1, High Court Establishment, Bodri, Ps Chakarabhata, Dist Bilaspur,c G, District : Bilaspur, Chhattisgarh 5. Vivek Shrivastava Aged About 43 Years Presently Posted As Asst Grad 1, High Court Establishment, Bodri, Ps Chakarabhata, Dist Bilaspur,c G, District : Bilaspur, Chhattisgarh 6. Narottam Sahu Aged About 39 Years Presently Posted As Asst Grad 1, High Court Establishment, Bodri, Ps Chakarabhata, Dist Bilaspur,c G, District : Bilaspur, Chhattisgarh --- Respondent(s) MANISH YADAV Digitally signed by MANISH YADAV Date: 2025.05.01 15:22:57 +0530 2 WPS No. 1029 of 2013 • 1. 2. 3. 4. 5. 6. 7. 8. K.S. Angare S/o Late Derha Ram Angare Aged About 49 Years Qtr. No. I-4/3, 27 Kholi, Vikas Nagar, Bilaspur, P.S. Civil Line District Bilaspur C.G. , Chhattisgarh --- Petitioner Versus High Court Of Chhattisgarh And Ors. S/o Through Registrar General Village - Bodri Bilaspur C.G. , Chhattisgarh
Legal Reasoning
Registrar General High Court Of C.G. Village Bodri, Distt. Bilapsur C.G., District : Bilaspur, Chhattisgarh Dev Sharan Dilliwar Aged About 45 Years Currently Working As Assistant Grade I, High Court Eastabilishment Village Bodri, Police Station Chakarbhatha Bilaspur C.G. , District : Bilaspur, Chhattisgarh Sunil Kumar Verma Aged About 43 Years Currently Working As Assistant Grade I, High Court Eastabilishment Village Bodri, Police Station Chakarbhatha Bilaspur C.G. , District : Bilaspur, Chhattisgarh Pramod Kuar Pathak Aged About 41 Years Currently Working As Assistant Grade I, High Court Eastabilishment Village Bodri, Police Station Chakarbhatha Bilaspur C.G. , District : Bilaspur, Chhattisgarh Ram Kumar Sahu Aged About 44 Years Currently Working As Assistant Grade I, High Court Eastabilishment Village Bodri, Police Station Chakarbhatha Bilaspur C.G. , District : Bilaspur, Chhattisgarh Vivek Shrivastava Aged About 45 Years Currently Working As Assistant Grade I, High Court Eastabilishment Village Bodri, Police Station Chakarbhatha Bilaspur C.G. , District : Bilaspur, Chhattisgarh Narottam Sahu Aged About 39 Years Currently Working As Assistant Grade I, High Court Eastabilishment Village Bodri, Police Station Chakarbhatha Bilaspur C.G. , District : Bilaspur, Chhattisgarh 9. Manoranjan Kumar Sinha Aged About 41 Years Currently Working As Assistant Grade I, High Court Eastabilishment Village Bodri, Police Station Chakarbhatha Bilaspur C.G. , District : Bilaspur, Chhattisgarh 3 10. Mini Rajan D/o Aged About 41 Years Currently Working As Assistant Grade I, High Court Eastabilishment Village Bodri, Police Station Chakarbhatha Bilaspur C.G. , District : Bilaspur, Chhattisgarh --- Respondent(s) For Petitioner(s)
Legal Reasoning
: Mr. Vaibhav Shukla and Ms. Ruchi Nagar, Advocates For Respondent No. 1 and 2 : Mr. R.S. Marhas with Mr. S.S. Marhas, Advocates Hon'ble Shri Justice Narendra Kumar Vyas (CAV Order) 1. Since common question of law and facts are involved in both the
Decision
writ petitions, they are heard analogously and being disposed of by this common order. 2. The petitioners have filed the present writ petitions under Article 226 of the Constitution of India for quashing the revised gradation list for the year 2004 issued on 18.10.2012 and memo dated 08.02.2013 by which the petitioners’ representation for grant of seniority in the High Court establishment in the cadre of Assistant Grade III with effect from date of joining in the district court establishment 14.09.1990 and 09.01.1992 respectively. They have also prayed for quashing of the criteria of passing of English / Hindi typing for the purpose of seniority on the post of AG-III. 3. Brief facts of the case as projected by the petitioners are:- A) The petitioner in WPS No. 1332/2013 was initially appointed as Sales Ameen in the District Court Establishment on 14.09.1990 and the petitioner in WPS No. 1029/2013 was initially appointed as Sales Ameen in the District Court Establishment on 09.01.1992. 4 B) The record of the case would demonstrate that the then Additional Registrar (A) vide its memo dated 17.01.2001 has requested all the District Judges to send the information regarding sending the employees on deputation to meet out the acute shortage of employees. The note-sheet further provides that due to repatriation of the employees of the High Court, the High Court is facing acute shortage of manpower to meet out the work and accordingly, willingness was sought and respondents No. 2 to 4 submitted their willingness. It is pertinent to mention here that at the time of deputation, the petitioners were working as Sales Ameen but while taking them on deputation they were posted as AG-III in the High Court Establishment. The petitioners were taken on deputation with the High Court wherein it has been clearly mentioned that the essential qualification for appointment on the post is the candidate should be graduate and Hindi and English typing pass, but looking to the urgent nature of circumstances Hon’ble the Chief Justice in exercise of power conferred under Rule 21 of High Court Class III (Recruitment and Service) Rules, 1966 has waived the condition and vide order dated 22.02.2001 the petitioners were deployed in the High Court on deputation for a period of two years. The respondent High Court on 06.11.2003, sought option for absorption in the High Court from the petitioners. C) Pursuant to the options submitted by the petitioners, their services were absorbed in the establishment of respondent 5 High Court on the post of Assistant Grade-III vide order dated 28.04.2004 subject to condition that they will submit Hindi or English Typing pass certificate and their seniority shall be counted in the Establishment of the High Court with effect from the date of their passing examination of Hindi or English Typing. D) After absorption of the petitioners, the High Court published a provisional gradation list of Assistant Grade-III on 01.05.2004, inviting objections from the employees. Some of the employees finding that in the provisional list of Assistant Grade-III, their names were shown below the employees who were appointed in the establishment of High Court, they immediately submitted their objections and prayed for fixation of their seniority from the date of their joining in the establishment of High Court and proper placement in the final gradation list in the cadre of Assistant Grade-III. However, the respondent High Court, ignoring the objections raised by those employees and without making any correction regarding their placement, published the final gradation list on 27.12.2004, which was challenged by them by filling Writ Petition No. 3926/2005 (Dev Sharan Dilliwar & Others versus High Court of Chhattisgarh & Others) before this Court. Relevant para of the judgment is quoted below: “20. On the basis of the aforesaid discussions, we hold the words ".. ..subject to the condition that he will be given seniority, from the date he has been holding the post on deputation or the date from which he has been appointed on a regular basis to the same or equivalent grade in his present department whichever is later" of 6 clause (c) of Rule 12(2) of the Rules of 1961 are liable to be struck being absurd and non-est in the eye of law and accordingly, the same are hereby struck down. 21. The respondent No.1 is to prepare a fresh gradation list of the Assistant Grade-III counting seniority of petitioners in accordance with the existing rules, that is to say, after excluding the part of clause (c) of the Rule 12 (2) which has been struck down by this order. 22. The petition is allowed to the extent indicated above. No order as to costs.” E) It has also been contended that in view of the order passed by the Hon’ble Division Bench the State has amended the Rule 12 (2)(C) of the Chattisgarh Civil Services (General Condition of Service) Rules, 1961 which reads as under:- “12(2)(C) of the Rule, 1961 In the case of a person who is initially taken on deputation and absorbed later (i.e., where the relevant recruitment rules provide for "transfer on deputation/transfer") his seniority in the grade in which he is absorbed normally be counted from the date of absorption. If he has however been holding already (on the date da absorption) the same or equivalent grade on regular basis in his "parent department" (earlier it was present department), such regular service in the grade shall be taken into account in fixing his seniority, subject to the condition that he will be given seniority, from the date he has been holding the post on deputation or the date from which he has been appointed on a regular basis to the same or equivalent grade in his parent department "whichever is earlier" (earlier it was whichever is later).” F) The High Court in view of order passed by the Hon’ble Division Bench has revised the gradation list of AG-III and AG-II for the year 2004-2005 which was published on 18.10.2012 and the petitioners have been placed below the private respondents. Being aggrieved with this gradation list placing them below private respondents have preferred representation on 18.10.2012, 29.10.2012 and 12.10.2012 before the High Court 7 mainly contending that the petitioners were working in the District Court Establishment since 1990/1992 and since 2001 they were working on deputation in High Court and subsequently they have been absorbed in the High Court Establishment on 28.04.2004, therefore, their seniority should be counted from initial appointment whereas their seniority has been counted from 07.02.2005 and 07.02.2006 respectively after passing of the typing exam which is illegality and prayed for correction in the gradation list. The same have been rejected on 08.02.2013, which has been challenged in the writ petitions and prayed for grant of seniority from the date of initial appointment in view of the amendment in Rule 12(2)(C) of the General Condition Rules. 4. The High Court has filed their return denying the allegation mainly contending that the respondents in compliance of the order has corrected the gradation list and the past services of the petitioners have also been considered for absorbing them but since essential qualification for appointment of AG-III as per the Chhattisgarh High Court Establishment (Appointment and Condition of Service) Rule, 2003 is graduate and knowledge of Hindi and English typing with proof and one year Diploma Courses from ITI or any equivalent board/university, as such, the petitioners have been granted seniority from the date they are having requisite qualification for appointment, therefore, there is no illegality on the part of the respondents. It has been further submitted that the petitioner Gouri Shankar has never challenged the order 29.09.2005 by which he 8 has been absorbed with effect from the date he has passed the typing examination on 07.02.2005. Similarly, the petitioner Kunwar Singh Angare has never challenged the same order by which the period of deputation has been extended for one year till 03.02.2006. As such, the subsequent rejection of representation does not give any right to the petitioners to file the present petitions after lapse of 8 years. Thus, it has been prayed for dismissal of both the writ petitions. 5. Learned counsel for the petitioners would submit that since the petitioners were initially appointed in the District Court Establishment and they have been absorbed with the High Court, therefore, as per Rule 12(2)(C) they should be granted seniority from the date they were sent on deputation, as such, the respondents have committed illegality in not grating seniority to them from their initial appointment. It has also been submitted by the learned counsel for the petitioners that the post of process writer / sale Ameen are class-III post as per the order issued by High Court of Madhya Pradesh on 11.07.1975 and 28.06.1996 and as per the M.P. Revision of Pay Rule, 1996. The pay scale of post of Sale Ameen / Process Writer and AG-III are one and same i.e. in the pay scale of 3050-75-3950-80-4590. Therefore, it has been contended the petitioners before deputation from their initial appointment are getting the pay scale of AG-III, as such also their services should be counted for the purpose of seniority. It has been further contended that Hon’ble the Chief Justice of High Court of Madhya Pradesh has empowered to relax from the 9 operation of any rule made under the Madhya Pradesh Officers and Employees Recruitment and Condition of Service (Classification, Control, Appeal and Conduct) Rules, 1998 accordingly the Hon’ble Chief Justice has granted relaxation for enforcing the minimum qualification for a district recruitment in case of promotees and ordered that the order dated 28.08.1971 issued by the GAD cannot be made applicable to the Sale Ameen and Process Writer who are promoted as Lower Division Clerk, Thus, they would submit that relation from typing certificate should be granted for absorption also and would pray for allowing the writ petitions. To substantiate their submission the petitioners have referred to the judgment of Hon’ble Division Bench of this Court in Writ Petition No. 3926/2005 (Dev Sharan Dilliwar & Others versus High Court of Chhattisgarh & Others) and judgment of the Hon’ble Supreme Court in case of S.I. Rampal vs. Lt. Governor through Chief Secretary {2000 (1) SCC 644}. It has also been contended that the executive instruction cannot override the statutory provisions, as the condition mentioned in the order dated 29.04.2005 cannot replace the Rule 12(2)(C) and would refer to the judgment in case of K. Karuppaswami and Others vs. State of Tamil Nadu {1998 (8) SCC 475} and Union of India and Others vs. Soma Sundaram Vishwanath and Others {1989 (1) SCC 175} and would pray for allowing the petitions. 6. On the other hand, learned counsel for the High Court reiterating the submission would submit that the petitioners were not having the requisite qualification prescribed under the Rules, 2003 10 whereas the private respondents are having requisite qualification therefore, they have been given seniority from the date of their initial appointment in compliance of the Rule 12(2)(C) and no discrimination and arbitrariness has been done. It has been further contended that from bare perusal of the additional documents filed by the High Court it is quite vivid that Dev Sharan Dilliwar has cleared typing in the year Feb, 1990, Sunil Kumar Verma has passed typing on 15.04.1996, Vivek Shrivastava has passed typing on 31.01.1988, Narottam Kumar Sahu has cleared the typing examination in Nov, 2001, Ram Kumar Sahu has cleared typing examination on 24.04.1988, Mini Rajan has cleared typing examination on 13.09.1989, thus, all the candidates were having requisite qualification of typing pass at the time of absorption as such, the petitioners cannot claim parity with other respondents and would pray for dismissal of the writ petitions. 7. I have heard learned counsel for the parties and perused the record. 8. From the submission made by the parties, the points emerged for determination by this Court are I. Whether the absorption of the petitioners from the date of passing of the typing examination is against the Rule 12(2)(C) of the General Condition Rules, 1961? II. Whether the non-challenging the order dated 28.04.2004 by which the petitioners have been granted seniority from the date of passing of the typing examination and extension of deputation period of one of the petitioners suffer from delay and 11 latches are fatal and subsequent challenge of rejection of representation can condone the delay of 8 years in preferring the petition? Discussion and finding on Point No. I 9. The counsel for the petitioners have vehemently submitted that the High Court of Madhya Pradesh and the State of Madhy Pradesh issued memo dated 13.11.1980 (Annexure P/6) and 27.01.1983 (Annexure P/7) for exemption from passing of typing examination to the Sales Ameen for promotion on the post of Lower Division Clerk as such, the petitioners should have been granted seniority from their initial appointment from 1990/1992 is being considered. The memo dated 13.11.1980 reads as under :- “(I) Posts of lower division clerks, which do not require typing knowledge, if and when fall vacant, may be filled in by promoting non-qualified process writers / Sales- Amins according to their merit tampered by seniority; (ii) For posts of copists and typists, process writers / Sales-Amins who possess requisite educational and typing examination certificates may be allowed to compete with others and those candidates called from employment exchange taking into consideration their work and conduct in their present jobs. In case of selection on merit, such process writers, clerks irrespective of their position in the seniority in the lower scale of pay; (iii) These instructions would not debar promotion of qualified process writers/ Sales-Amins even to posts which do not require 12 typing qualifications in case no suitable senior persons as mentioned in clause (I) above are available for promotion. 10. From the above mentioned circulars, it is quite vivid that the circulars deal with the promotion of Sales Amin on the post of Lower Division Clerk, if the exigencies as set out in the circular (Annexure P/6) are available. The circular further provides that in case candidates for promotion are not available then only relaxation can be considered for promotion. Similarly, the circular of 1983 deals with the grant of exemption from typing examination to the Lower Division Clerk who have completed 40 years while absorbing them or when they directly recruited. Thus, the circulars referred by the petitioners are not applicable to the present facts of the case. Even otherwise, in the present case the petitioners were initially working as Sales Amin in the District Court establishment and they have been taken on deputation grating relaxation to them. The High Court of Chhattisgarh Officers and Employees Recruitment and Conditions of Service (Classification, Control & Appeal) Rules, 1996 (for short “the Rules, 1996”) provides qualification for appointment on the post of AG-III by direct recruitment through competitive examination as may be prescribed by the Appointing Authority or by deputation of qualified personnel from the Establishment of District and Sessions Judges in the State to such extent as may be determined by the Chief Justice from time to time. The qualification has been prescribed in Schedule 9 of the Rules which reads as under :- “(a) Must be graduate from any recognised university 13 (b) Must have passed Typewriting Examination in English and Hindi languages from any recognised Board of Shorthand and Typewriting Examination & knowledge of computer application. 11. From the bare perusal of the rules, it is quite vivid that the typing examination was essential qualification for appointment for the post of AG-III which essentially the petitioners were not possessing. The High Court taking lenient view has allowed them to continue on deputation subject to condition of passing typing examination before expiration of deputation period vide order dated 29.04.2004 and as soon they have cleared the typing examination and fulfilled the eligibility criteria for appointment they have been granted seniority. Thus, the action of the respondent in granting seniority from the date of passing of the typing examination and imposing condition for passing the typing examination which is essential qualification for appointment and cannot be relaxed or waived, has granted the seniority cannot be found faulty. The Hon’ble Supreme Court in case of Jomon K.K. vs. Shajimon P. and Others {2025 INSC 425} has considered the delay in challenging the adverse order in service law and prevailing of essential qualification for appointment and has held as under :- “19. Though there can be little quarrel with the law laid down in Ranjan Kumar (supra) and Kulwant Singh (supra) and considering what has been argued by Mr. Ravindran as a proposition of law, noted above, to be correct, what stands out is that the appellant did not immediately challenge the Tribunal’s order and rested on his oars to throw a challenge till his service came to be terminated. In fact, he took a chance of favourable consideration of his case by responding to the show cause. Having taken a chance and not being successful,he cannot, thereafter, succeed before us on the ground of his non-joinder as a necessary party. Having not initiated appropriate legal action that the law 14 permitted him to take, he can get back his service only if the primary contention raised by Mr. Ravindran succeeds. 25. We have further seen from the letter of the Director dated 9thOctober, 2010 addressed to KPSC that it was not voluntary; rather,it was at the behest of candidates who did not possess current Lascar’s licence. It can well be presumed that the Director buckled under pressure. However, notwithstanding that, qualifications statutorily laid down could not have been diluted by what the Director felt should be considered by KPSC and, therefore, it is the statutorily prescribed qualifications that should prevail.” 12. Since the petitioners were not having the essential qualification for appointment for the post of AG-III therefore, they cannot claim benefits of seniority after absorption invoking Rule 12(2)(C) of the Rules of 1961 as the Rules clearly provide that the candidate who is holding same or equivalent grade on regular basis in his parent department on absorption is entitled to get seniority from the period he was on deputation. As such, the impugned orders do not suffer from any illegality or irregularity which warrants any interference by this Court. 13. The writ petitions being devoid of merit deserve to be dismissed and accordingly, they are dismissed. No order as to costs. Sd/- (Narendra Kumar Vyas) Judge Manish