09 .06.2025 K. N. Dewangan S/o Shri Tejuram Dewangan, Aged About 60 Years, Occupation v. …
Case Details
Page 1 of 14 2023:CGHC:30900 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 2839 of 2017 Reserved On : 11.03 .2025 Pronounced On : 09 .06.2025 K. N. Dewangan S/o Shri Tejuram Dewangan, Aged About 60 Years, Occupation Assistant Grade Il In District Court Dhamtari Civil and Revenue District Dhamtari Chhattisgarh. versus ….Petitioner 1 - The Registrar General, High Court of C.G. Bilaspur, Chhattisgarh. 2 - The District and Sessions Judge, District Dhamtari, Chhattisgarh. ….Respondents ________________________________________________________ For Petitioner : Mr. Shailendra Dubey and Mr. Himanshu Kumar Sharma, Advocates Respondent No. 1: Mr. Amrito Das, Advocate For State : Mr. Sanjeev Pandey, Dy. Advocate General ________________________________________________________ Hon'ble Shri Narendra Kumar Vyas, J. CAV ORDER 1. The petitioner has filed this writ petition assailing the order dated 09.11.2015 passed by respondent No. 1 by which the respondents have denied granting benefit of upgraded pay scale under the implementation of Shetty Pay Commission for the post of Reader Grade-I from the date of appointment on the post of Assistant Grade-II on the count that he has been inflicted with penalty of withholding of three annual increments without cumulative effect and simultaneously denied promotion to the post of Reader Grade-I on the count that one departmental Page 2 of 14 enquiry is also pending against him. 2. The facts projected by the petitioner are that (A) The petitioner is a retired employee from the establishment of District & Sessions Judge, Dhamtari. He retired on 31.03.2018 from the post of Reader Grade-II. It has been contended that this Court vide memo dated 23.7.2015 forwarded the guidelines related to implementation of recommendation of Shetty Pay Commission to all the District & Sessions Judges of the District Courts for its employees. In compliance of the memo dated 23.7.2015 the office of respondent No. 2 started the proceedings and vide order dated 9.11.2015 the benefit of upgraded pay scale has been given to the persons junior to the petitioner by upgrading/promoting them to the Post of Reader Grade-I, however, the said benefit has been denied to the petitioner on the count that as per annual confidential report for the year 2008 of the petitioner, he has not been found fit for promotion as the reporting authority has graded him very poor confidential report. It has further been contended that apart from imposition of penalties of withholding of annual increment with non-cumulative effect on three occasions, a departmental enquiry is also pending against the petitioner, therefore, he is not fit for promotion to the post of Reader Grade-II. Page 3 of 14 (B) On coming to know about the passing of the order dated 09.11.2015, the petitioner enquired into the matter and found that he has been denied promotion/up-gradation to the post of Reader Grade-II by taking into consideration the annual confidential report of the year 2008. Immediately thereafter the petitioner has made a representation to the Registrar General of the this Court on 01.03.2016 contending that the promotion has been taken place in 2015, therefore, ACR of the previous 5 years of ACR should be taken into consideration i.e. ACR for the year 2010 to 2014 can be considered in no case ACR of 2008 can be taken into consideration. Hence this petition has been filed for grant of upgradation in the pay scale and promotion as detailed above. 3. Respondent No. 2 has filed its return mainly contending that :- (A) The petitioner has assailed the validity of the order dated 09.11.2015 and have also annexed the DPC proceedings of the Administrative Committee, but the petitioner has not assailed the said proceedings of the Committee or the findings of the said Committee. The petitioner has not assailed the evaluation of the service record as has been done by the Committee, therefore, in absence of any challenge to the proceedings of the Committee, the challenge to the order dated 09.11.2015 which is a consequential order implementing the recommendation made by the Committee after evaluation of the service record of the petitioner cannot Page 4 of 14 be interfered. (B) It has been further contended that evaluation of service record as has been done by the Committee cannot be substituted by the wisdom of the petitioner. It is well known that a Selection Board while considering the suitability of an officer for promotion to a higher post or rank, takes into consideration several factors and it is not solely based on the Appraisal Report of the controlling officer. This Court shall not sit in appeal over the consideration recorded by the Committee. There is no allegation of any oblique motive against the members of the Committee and therefore there is no reason for interfering with the assessment made by the said Committee. The assessment made by the Committee is based on objective consideration of the available material and the same is not vitiated on account of any perversity. (C) It has been further contended that vide order dated 20.07.2015 the pay of the petitioner was upgraded from Assistant Grade-II to Reader Grade-II and the said benefit was given from 01.11.2005 to 07.10.2006, and thereafter vide order dated 22.12.2015, the pay of the petitioner was revised. The petitioner was an employee of the District Establishment Raipur from 01.04.2003 to 07 10.2006, and thereafter with the formation of the District Establishment Dhamtari, from 08.10.2006, the consideration for promotion was to be considered by the latter. As on 08. 10.2006, there was only 1 post of Reader Grade-I in the court of Additional District & Page 5 of 14
Legal Reasoning
Session Court Dhamtari. The said post was held by one Shri K. S. Dhruw. The said post of Reader Grade-I became vacant after the retirement of Shri K. S. Dhruw on 01.07.2012 It was thereafter that 2 posts of Reader Grade-I were sanctioned in Additional District & Sessions Court (FTC) and District & Sessions Court Dhamtari on 17 10.2013 and 16.06.2014, respectively. The name of the petitioner was duly considered for the said vacancies. The proceedings of the said Administrative Committee clearly demonstrate that the claim of the petitioner was duly examined and considered by the said Committee in a most objective manner. Since the petitioner was already sanctioned the upgraded pay scale of Reader Grade-II, therefore his candidature was being considered for promotion to the post of Reader Grade-I in the said proceedings. The Committee applied the criterion for promotion as 'seniority-cum-suitability and considered the service record of the candidates for the previous 5 years. The Committee after examination of the service record found that vide order dated 21.03.2012 passed against the petitioner in a departmental enquiry, he was imposed with a punishment for withholding of 2 annual increments with cumulative effect. Furthermore, vide order dated 12.12.2014 the petitioner was also imposed with a punishment for withholding of one annual increment with non-cumulative effect. In yet another departmental enquiry, the petitioner was imposed with a punishment of withholding of one annual increment with non- Page 6 of 14 cumulative effect vide order dated 14.07.2015. In addition to the above orders of punishment, a departmental enquiry was also pending against the petitioner on the said date when the Committee was considering the candidature of the petitioner. It was on account of the said facts that the Committee found the petitioner to be unfit for grant of promotion. (D) The petitioner has utterly failed to demonstrate any illegality in the proceedings conducted by the Committee, notwithstanding the fact that the petitioner has not assailed the said proceedings in the instant writ petition. The orders of punishment upon the petitioner have attained finality and therefore the petitioner was found unfit by the said Committee and he was denied promotion to the post of Reader Grade-I on 05.11.2015. The petitioner retired in the year 2018 and from 2016 to 2018 there was no vacancy of Reader Grade-I, As such, stood retired from the post of Reader Grade-II.
Decision
Therefore, would pray for dismissal of the writ petition. 4. This Court vide its order dated 21.03.2024 directed respondent No. 1 to clarify whether after completion of enquiry, the case of the petitioner has been considered or not and also clarify the contentions raised by the petitioner that the respondents have considered ACR of employees of one year while considering the case of promotion. Respondent No. 1 in compliance of direction issued by this Court has filed additional affidavit mainly contending that the enquiry was concluded vide order dated 01.03.2016 wherein he was inflicted with the penalty of censure. Page 7 of 14 It has been further clarified that no discrimination was done with the petitioner as his case was considered in the DPC held on 05.11.2015 along with other candidates. In the said DPC, one Shri Nageshwar Singh Mourya and Yogendra Prasad Sahu were considered against the two posts of unreserved category, they were found fit and accordingly, promoted. It has been further clarified that the petitioner superannuated on 31.03.2018 still no post of Reader Grade-I for unreserved category was available. As such, he stood retired from the post of Assistant Grade-II. It has been specifically denied that only one year ACR was considered by the respondents in fact, five years ACR of the employees who have been considered for promotion has been taken into consideration. 5. It has been further contended by learned counsel for the petitioner that the punishment order has not been issued, therefore, this Court on 29.04.2024 directed respondent No. 2 to file affidavit whether punishment for the year 2013-14, 2014-15, 2015-16 & 2016-17 have been communicated to the petitioner or not and they were directed to clarify whether case of the petitioner for time bound pay scale has been considered or not as according to them no vacant post was available. 6. This Court on 14.10.2024 has also directed respondent No. 2 to clarify whether punishment imposed upon the petitioner bars grant of third time bound pay scale or not. During proceedings, it has been submitted by respondent No. 2 that the petitioner was appointed on 07.03.1981 and he was promoted on 17.05.1982 Page 8 of 14 and thereafter he has been granted promotion twice, as such, he is not entitled to get third time bound pay scale, therefore, this Court has directed the respondents to place on record the rules governing the fields. 7. In pursuance of direction issued by this Court to understand the real controversy exits between the parties, respondent No. 2 has filed additional affidavit on 22.07.2024 and have contending that the punishment order dated 16.03.2012, 12.12.2014, 14.07.2015, 01.03.2016 & 07.12.2017 were duly communicated to the petitioner as evident from the dispatch register filed by them. The petitioner has never challenged the same, as such it has been attained finality. It has also been stated by respondent No.2 vide additional affidavit dated 18.11.2024 filed by them that the petitioner was appointed on 07.03.1981 and as per Circular dated 30.09.1983 issued by State Government the Kramonnati is payable to the employees on completion of 12 & 20 years of service, therefore, first Kramonnati is payable to the petitioner on 07.03.1993 but intervening this period, the petitioner was promoted on the post of Lower Division Clerk on 17.05.1982, as such he is not entitled for grant of first Kramonnati. The second Kramonnati can be granted to the petitioner after completion of 20 years of service on 07.03.2001 but intervening this period, he was promoted as Upper Division Clerk (Assistant Grade-II) on 30.07.1997, therefore, he is not entitled to grant second Kramonnati. The Circular dated 30.09.1983 has been superseded by the Circular dated 28.04.2008 (Annexure-E) Page 9 of 14 issued by the State Government which provides time bound pay scale after completion of 10 & 20 years of service in place of 12 & 20 years of service. In both the circulars, the mandatory condition for getting Kramonnati or time bound pay scale is that the candidate should be eligible and found fit for promotion but because of want of posts, he cannot be promoted. It has been further clarified that the State Government vide Circular dated 08.08.2018 (Annexure-D) introduced the grant of third time bound pay scale which will be accrued to the Government servants after completion of 10 years from the date the second time pay scale due on 07.08.2027. In the meanwhile, the petitioner stood retired on 31.03.2018, therefore, he is not entitled to get any relief and it has been prayed for dismissal of the writ petition. 8. Learned counsel for the petitioner reiterating the submission already made in the petition would pray for allowing the writ petition. 9. On the other hand learned counsel for respondent No.1 reiterating the submission made in the return and the affidavit filed on 18.04.2024, 22.07.2024 & 18.11.2024 would submit that the petitioner is not entitled to get any relief and the order dated 11.03.2024 passed by respondent No. 1 rejecting the representation of the petitioner, is also legal, justified and does not warrant any interference by this Court. 10. I have heard learned counsel for the parties and perused the Page 10 of 14 record with utmost satisfaction. 11. From the submissions made by the parties the point emerged for determination of this Court is :- “Whether denial of pay scale of Reader Grade-I vide order dated 09.11.2015 and denial of second time bound pay scale to the petitioner on the count that the petitioner has already been promoted twice first on 17.05.1982 as Lower Division Clerk and secondly on 30.07.1997 as Upper Division Clerk (Assistant Grade-II) and due to imposition of minor penalty of censure on 03.08.2017 and imposition of withholding of one increment without cumulative effect on 31.12.2017, are legal and justified?” Discussion and finding on the Point 12. Learned counsel for the petitioner has vehemently contended that the petitioner has been denied the benefit of pay scale of Assistant Grade-I though he was senior to the other respondents still he has been denied without any rhyme and reason. This was opposed by the learned counsel for respondent No. 1 and would submit that as per the guideline issued by the High Court on 23.07.2015 while considering case for promotion from the post Class-III to Class-III, the criteria is seniority-cum- merit and five years ACRs have be to considered. Respondent No. 2 has considered service record of the petitioner. Wherein it has been found that at the time of employment at District Court Raipur establishment, the petitioner has already been granted Page 11 of 14 upgraded pay scale of Assistant Grade-II and in the year 2008, he was found unfit for promotion due to very poor ACR. He was inflicted with the various punishment and enquiry was also pending against him. The petition has unable to refute the said material considered by respondent No. 1, as such it cannot be held that the decision making process adopted by respondent No. 1 suffers from perversity or illegality which warrants any interference by this Court. 13. Further submission of learned counsel for the petitioner that even if he was not considered for promotion from the post of Assistant Grade-I to Assistant Grade-I, he is entitled to get time bound pay scale. This submission was objected by learned counsel for respondent No. 2 by submitting that the petitioner appointed on 07.03.1981 and he has been promoted on 17.05.1982 as Lower Division Clerk and later on he has been promoted on 07.07.1997 as Upper Division Clerk (Assistant Grade-II) whereas after completion of 20 years of service, he is entitled to get second time bound pay scale on 07.03.2001. Since he has already been promoted twice, therefore, he is not entitled to claim time bound pay scale. 14. From the service records, it is quite vivid that the petitioner was promoted as Lower Division Clerk in the year 1997 whereas his case can be considered for grant of second Kramonnati as per the Circular dated 30.09.1983 on 07.03.2001 before that he has been granted promotion, as such he cannot be granted time bound pay scale/Kramonnati. The said circular has been Page 12 of 14 supersede on 28.04.2008 and it provides time bound pay scale after completion of 10 years. Accordingly, the petitioner was granted time bound pay scale on 07.08.2007 which has been granted on 20.02.2013 w.e.f. 07.08.2007. According to the Circular, the petitioner is entitled to get second time bound pay scale on 07.08.2017 before that he was served with minor penalty of censure on 03.08.2017, thereafter another punishment was imposed on 07.12.2017 according to the respondent, it has disqualified the petitioner to get second time bound pay scale. This submission deserves to be rejected as the punishment of censure imposed upon the petitioner on 03.08.2017 cannot be debarred the petitioner for entitlement of second time bound pay scale but it can differ for the period till existence of minor punishment of censure. Even otherwise, the subsequent imposition of punishment on 07.12.2017 withholding of one increment w.e.f. July, 2017, will not have any adverse effect upon the petitioner to get second time bound pay scale after differ period as service record of the petitioner has to be considered for the period which are essential for promotion. Even otherwise when the order was passed on 07.12.2017, the increment would have definitely added in the pay scale of the petitioner, as such also it can have prospective effect from 31.12.2017 only. Hon’ble the Supreme Court in case of Union of India & others Vs. A.N. Mohanan [(2007) 5 SCC 425] has considered the effect of imposition of minor penalty of censure while considering the case for promotion of a Government servant and has held in paragraphs 11 & 12 as under:- Page 13 of 14 “11. Awarding of censure, therefore, is a blameworthy factor. A bare reading of Para 3.1 as noted above makes the position clear that where any penalty has been imposed the findings of the sealed cover are not to be acted upon and the case for promotion may be considered by the next DPC in the normal course. 12. Having regard to the penalty imposed on him, undisputedly the respondent has been given promotion with effect from 26-11-2001. His claim for promotion with effect from 1-11-1999 was clearly unacceptable and, therefore, the CAT and the High Court were not justified in holding that he was entitled to be promoted with effect from 1-11-1999. The order of the High Court affirming the view taken by the CAT cannot be sustained and is, therefore, set aside.” 15. From the abovestated legal position and considering Rule 10 of the Chhattisgarh Civil Services (Classification, Control & Appeal) Rules, the ‘censure’ is a minor penalty and the minor penalty will loss its significance on the next year. Even the Circular dated 08.04.2008 does not provide that if minor penalty is imposed then the Government Servant is not entitled to get the time bound pay scale. The only rider which will come in the way of a Government servant who has suffered with minor penalty that grant of time bound pay scale will be differed till the existence of minor penalty. The petitioner has been suffered with minor penalty of ‘censure’ which will loss its significance immediately after one year i.e. 03.08.2018. Even after retirement on 31.03.2018, the case of the petitioner has to be considered for second time bound pay scale as ‘censure’ can be considered when evaluating a person overall service record and suitability for promotion or time bound pay scale which is continuous cause of action as it also affects pension after retirement. 16. It is pertinent to mention here that the petitioner has not Page 14 of 14 specifically prayed for grant of second time bound pay scale but since the petitioner has retired on 31.03.2018 and more than six years have already been lapsed, this Court can very well mould the relief of the petitioner for grant of promotion on the post of Assistant Grade-I as to grant of second time bound pay scale. 17. Thus, the denial of second time bound pay scale to the petitioner is against the law and direction is issued to respondent No. 2 to consider the case of the petitioner afresh for grant of second time bound pay scale taking into consideration that imposition of penalty of ‘censure’ is not rider for promotion or for grant of time bound pay scale but it can differ the same for grant of time bound pay scale. The exercise to re-examine the case of the petitioner for grant of second time bound pay scale shall be considered by respondent No. 2 within two months from today afresh ignoring the punishment of censure imposed upon the petitioner after 03.08.2018 on the basis of records available with them including ACRs for last five years. 18. Accordingly, the Point determined by this Court is answered partly in favour of the petitioner and partly against the petitioner. 19. Consequently, the writ petition is partly allowed. KISHORE KUMAR DESHMUKH Digitally signed by KISHORE KUMAR DESHMUKH Date: 2025.06.09 17:21:41 +0530 Deshmukh Sd/- (Narendra Kumar Vyas) Judge