High Court of Chhattisgarh
Case Details
-1- Digitally signed by NADIM MOHLE 2025:CGHC:39631 HIGH COURT of CHHATTISGARH AT BILASPUR NAFR WPS No. 5710 of 2021 1 - Abhay Kumar Pandey S/o Late Shri B. L. Sharma Aged About 56 Years R/o Nehru Nagar, Bhilai, District Durg Chhattisgarh. 2 - Anand Kudarya S/o Late Shri J.P. Kudarya Aged About 48 Years R/o G-8, Maruti Residency, Raipur, District Raipur Chhattisgarh. 3 - Udai Singh Thakur S/o Shri Komal Singh Thakur Aged About 59 Years R/o E-178, Sector-5, Devendra Nagar, Raipur District Raipur Chhattisgarh. 4 - P. Narsingh Rao S/o Late P.K. Naidu, Aged About 59 Years R/o 18/773, Baila Bazar Road, Jagdalpur, District District Bastar Chhattisgarh ... Petitioner(s) versus 1- State of Chhattisgarh Through The Secretary Department of General Administration Mahanadi Bhawan, Village Rakhi, Atal Nagar, Naya Raipur District Raipur Chhattisgarh. 2 - Principal Secretary Department of Forest State of Chhattisgarh Naya Raipur Mantralaya Raipur, District Raipur Chhattisgarh. 3 - Pricipal Chief Conservator of Forests Aranya Bhawan,medical College Road, Raipur ... Respondent(s) District Raipur Chhattisgarh.
Legal Reasoning
For Petitioners : Mr. Akash Pandey, Advocate For State/Respondents : Mr. Vedant Shadangi, Panel Lawyer Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board -2- 07.08.2025 1) The petitioners have filed this petition seeking the following relief(s):- “10.1 To call for the records of the case for kind perusal of this Hon'ble court. 10.2 To issue an appropriate writ or order and to quash/set aside the impugned office memorandum/ circular (Annexure P/1) dated 08.03.2006 being ultra vires not legal and any action on the basis of office memorandum dated 08.03.2006 to be also declared unconstitutional and further to declare that communication / instruction dated 28.07.21 & 31.10.19 as illegal. 10.3 To issue an appropriate writ or order and to declare the actions on the part of respondent authorities giving consequential seniority to the candidates belonging to the reserved category without collecting quantifiable data is perse illegal. 10.4 Any other relief deemed fit in the facts and circumstances of the case may also be granted.” 2) Learned counsel for the petitioners submits that juniors to the petitioners, belonging to the Scheduled Caste and Scheduled Tribe categories, were promoted to the post of Assistant Conservator of Forest (ACF) prior in time to the petitioners. He would further submit that the petitioners, who are members of the general category, were promoted subsequently from the post of Forest Range officer to ACF, but in the gradation list, they have been placed below their juniors, though in the merit list they were above to those promoted ACFs, thus, it violates Articles 16 (1) and 16 (4A) of the Constitution of India. He further submits that the issue is no longer res integra and stands settled by several -3- decisions of the Hon’ble Supreme Court, namely: S. Panneer Selvam & Ors. v. State of Tamil Nadu & Ors. (2015) 10 SCC 292, para 36; Suraj Bhan Meena v. State of Rajasthan (2011) 1 SCC 467, paras 64–65; Ajit Singh Januja v. State of Punjab AIR 1996 SC 1189, para 16; Bavakar Mallick v. State of Orissa (2020) 15 SCC 297, para 23; Union of India v. Virpal Singh Chauhan & Ors. (1995) 6 SCC 684, para 26. 3) It is argued that a circular was issued by the State of Chhattisgarh with regard to reservation in the matter of promotion on 08.03.2006, para- 4, provides that if a government servant belonging to SC/ST is junior to a general category employee and is promoted at earlier point in time, his seniority in the promotional cadre will not remain the same as was in the feeder cadre. This provision, according to the counsel for the petitioners, is contrary to Article 16(4A) and the binding law laid down by the Supreme Court in the above mentioned decisions. 4) On the other hand, learned State counsel opposes the submissions made by counsel for the petitioners and would contend that the petitioners have not challenged the individual promotion orders, nor have they impleaded them as party respondents, and therefore, the petition is not maintainable. 5) I have heard learned counsel for the parties and perused the documents placed in the file. 6) The petitioners have not challenged the individual promotion granted to the -4- SC/ST officials but have challenged the validity of para-4 of the circular dated 08.03.2006, which is a decision taken by the respondent authorities. Therefore, the objection regarding non-impleadment of individual promotees would not be fatal. 7) In the matter of General Manager, South Central v. A.V.R. Siddhanti and Ors. Etc. reported in 1974 (4) SCC 335, the Hon’ble Supreme Court has held that when the policy decisions relating to absorption, seniority, and pay are challenged without assailing any specific seniority list or order against particular individuals, such individuals are at most proper parties and not necessary parties, and their non-joinder does not vitiate the writ petition. The relevant para-15 is reproduced as under:- “15. As regards the second objection, it is to be noted that the decisions of the Railway Board impugned in the writ petition contain administrative rules of general application, regulating absorption in permanent departments, fixation of seniority, pay etc. of the employees of the erstwhile Grain Shop Departments. The respondents-petitioners are impeaching the validity of those policy decisions on the ground of their being violative of Articles 14 and 16 of the Constitution. The proceedings are analogous to those in which the constitutionality of a statutory rule regulating seniority of Government servant is assailed. In such proceedings the necessary parties to be impleaded are those against whom the relief is sought, and in whose absence no effective decision can be rendered by the Court. In the present case, the relief is claimed only against the Railway which has been impleaded through its representative. No. list or order fixing seniority of the petitioners vis-a-vis particular individuals, pursuant to the impugned decisions, is being challenged. The employees who were likely to be affected as a result of the re-adjustment of the petitioner's seniority in accordance with the principles laid down in the Board's decision of October 16, 1952, were, at the most, proper parties and not necessary parties, and their non-joinder -5-
Decision
could not be fatal to the writ petition.” 8) In the matter of S. Panneer Selvam (supra), the Hon’ble Supreme Court held that in the absence of a specific rule providing for consequential seniority, the catch-up rule will apply, and roster-point reserved category promotees cannot claim seniority from the date of their promotion; if general category candidates later reach the promotional post, they regain their seniority, and Article 16(4A) does not automatically confer consequential seniority. The relevant para 36 is reproduced as under:- “36. In the absence of any provision for consequential seniority in the rules, the ‘catch up rule’ will be applicable and the roster- point reserved category promotees cannot count their seniority in the promoted category from the date of their promotion and the senior general candidates if later reach the promotional level, general candidates will regain their seniority. The Division Bench appears to have proceeded on an erroneous footing that Article 16 (4A) of the Constitution of India automatically gives the consequential seniority in addition to accelerated promotion to the roster-point promotees and the judgment of the Division Bench cannot be sustained. ” 9) The Hon’ble Supreme Court in the matter Virpal Singh Chauhan (supra), explained that the reservation through a roster enables the reserved category candidates to get an earlier promotion or appointment, but it does not confer seniority over general candidates appointed or promoted later on merit, and thus, the benefit is limited and qualified. The relevant para 26 is reproduced as under:- “26. Now let us see how does the above principle operate in practice. Selection is made for direct recruitment to Grade `C' -6- Guards. A panel is prepared by the selecting authority on the basis of and in the order of merit. Appointments have to be made from out of this list/panel. But appointment orders will not be issued in the order in which the candidates are arranged in this select list/panel; they will be issued following the roster. Suppose the forty-point roster is being operated afresh, then the first vacancy inthe roster would go to a Scheduled Caste candidate though he may be down below in the select list/panel. The candidate at Sl. No.1 in the said select list - a general candidate - will be appointed in the second vacancy. But once appointed, the general candidate (at Sl. No.1 in the select list) will rank senior to the Scheduled Caste candidate though he (general candidate) is appointed subsequent to the Scheduled Caste candidate. Now take the case of promotions (based on seniority-cum-suitability, i.e., non-selection posts) to Grade `B'. Roster applies even to promotions to Grade B'. Again assume that the forty-point roster is opening now in Grade `B'. The first vacancy has again got to go to a Scheduled Caste candidate though he may not be the senior- most in Grade `C'. The senior-most candidate in Grade `C' (the general candidate, who was at Sl. No.1 in the select list/panel and who regained his seniority on appointment to Grade `C' as aforestated) will be promoted in the next vacancy. But once promoted, the general candidate again becomes senior to the Scheduled Caste candidate though promoted subsequent to the Scheduled Caste candidate. And so on and so forth. It is in this manner that the rule of reservation (and the roster) merely enables a reserved category candidate to obtain an appointment or promotion, as the case may be - which he may not have obtained otherwise or would not have obtained at the time he is now getting - but it does not give him the seniority. In this sense, the rule confers a limited benefit - a qualified benefit. We have already stated that such a rule of reservation does not fall foul of Article 16(4).“ 10) In Ajit Singh Januja (supra), the Hon’ble Supreme reiterated that once the reserved quota is filled, the operation of the roster stops, and reserved category candidates promoted on merit are not counted in the reservation quota; for promotion to general category posts, reserved category candidates must compete on merit, and earlier promotion through reservation does not ensure further -7- promotion without merit. The relevant para-16 is reproduced as under:- “16.The Constitution Bench in R.K. Sabharwal has said in clear and unambiguous terms that after the quota is over and roster points are full, then the "running account" of roster shall stop and there is no question of promoting beyond the posts which had been reserved. In the said judgment it has been said in respect of members of Scheduled Castes that if they are appointed/promoted on their own merit, then such candidates shall not be counted towards the percentage of reservation fixed for them. On the basis of the same logic, whenever members of the Scheduled Castes are to be considered for promotion against posts which are not reserved for them, then they have to be selected on merit only. They cannot claim that as they had been promoted earlier from grade 'C to grade 'B' on basis of reservation and roster in this process they have superseded the candidates belonging to the general category and even for promotion against general category posts in grade 'A' only requirement shall be satisfactory record of service.” 11) In the matter of Suraj Bhan Meena (supra), the Hon’ble Court held that while the State is not bound to provide reservation in promotions, if it chooses to do so, it must collect quantifiable data regarding backwardness and inadequate representation in terms of Article 335, and as laid down in M. Nagaraj, Articles 16(4A) and 16(4B) require satisfaction of these conditions through proper inquiry. The relevant paras 64 & 65 are reproduced as under:- “64. Ultimately, after the entire exercise, the Constitution Bench held that the State is not bound to make reservation for Scheduled Castes and Scheduled Tribes candidates in matters of promotion but if it wished, it could collect quantifiable data touching backwardness of the applicants and inadequacy of representation of that class in public employment for the purpose of compliance with Article 335 of the Constitution. 65. In effect, what has been decided in M. Nagaraj's case (supra) is part recognition of the views expressed in Virpal Singh Chauhan's case (supra), but at the same time upholding the -8- validity of the 77th, 81st, 82nd and 85th amendments on the ground that the concepts of "catch-up" rule and "consequential seniority" are judicially evolved concepts and could not be elevated to the status of a constitutional principle so as to place them beyond the amending power of the Parliament. Accordingly, while upholding the validity of the said amendments, the Constitution Bench added that, in any event, the requirement of Articles 16(4-A) and 16(4-B) would have to be maintained and that in order to provide for reservation, if at all, the tests indicated in Article 16(4-A) and 16(4-B) would have to be satisfied, which could only be achieved after an inquiry as to identity.“ 12) In the matter of Pravakar Mallick (supra), it has been observed that despite the 85th Constitutional Amendment enabling the State to grant promotion with consequential seniority, the State of Orissa had not enacted any law or issued any executive order after assessing adequacy of representation, and the resolution issued merely based on central instructions could not confer such benefit. The relevant para 23 is reproduced as under:- “23. In view of the judgments as referred above, in this case, it is to be noticed that after the Constitution (85th Amendment) Act, 2001, amending Article 16(4-A) of the Constitution which enabled the State to extend the benefit of promotion with consequential seniority by examining the adequacy of representation to Scheduled Castes and Scheduled Tribes in the State services, the State of Orissa has not made any provision, either by way of legislation or by an executive order, to extend such benefit in the Class I services. The advocate for the State specifically admitted that the Government has not issued any executive order or has passed any legislation. The Government Resolution dated 20-3-2002 is issued merely based on the instructions issued by the Government of India, without examining the adequacy of representation in posts. As is evident from the order of the High Court, the State in its counter-affidavit has taken the stand that there is no necessity for bringing out any law to extend the benefit of seniority for those who are promoted in reserved vacancies.” -9- 13) Applying the above principles to the present case, it is evident that the impugned provision of para – 4 of the circular dated 08.03.2006 grants consequential seniority to promotees from the reserved category without the State having collected any quantifiable data or fulfilling the requirements mandated by the Constitution and the above judicial pronouncements. Therefore, it is contrary to the mandate of Articles 16(1) and 16(4A) of the Constitution. 14) Accordingly, the said portion of para - 4 of the circular dated 08.03.2006 is declared unconstitutional and bad in law. 15) The respondents are directed to reconsider the petitioners’ claim for seniority in accordance with the law and after affording a due opportunity of hearing to the affected promotees, preferably within a period of 90 days from the date of receipt of a copy of this order. 16) The writ petition is allowed to the extent indicated herein above. No order as to costs. Sd/- (Rakesh Mohan Pandey) Judge Nadim