Nafr High Court
Case Details
1 2025:CGHC:2578 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 1824 of 2016 1 - Smt. Santoshi Wadyakar W/o Late Shri Ghanshyam Prasad Wadyakar, Aged About 38 Years Govt. Higher Secondary School, Tarbahar Bilaspur Chhattisgarh, Chhattisgarh --- Petitioner versus 1 -District Education Officer District Bilaspur Chhattisgah, Chhattisgarh 2 - Director Of Public Instruction, D.P.I. Raipur Chhattisgarh, District : Raipur, Chhattisgarh 3 - State Of Chhattisgarh Through The Secretary Mahanadi Bhawan, Thana Raipur, Raipur Chhattisgarh, District : Raipur, Chhattisgarh --- Respondents WPS No. 197 of 2020 1 - Neelam Singh Thakur D/o Kunwar Singh Thakur Aged About 43 Years Working As Peon At Government Middle School, Rengakathera, Block Ambagarh Chowki, District Rajnandgaon, Chhattisgarh., District : Rajnandgaon, Chhattisgarh ---Petitioner Versus 1 - State Of Chhattisgarh Through The Secretary, School Education Department, Mahanadi Bhavan, Mantralaya, Atal Nagar, New Raipur, District Raipur, Chhattisgarh., District : Raipur, Chhattisgarh 2 - Commissioner Tribal Welfare Department Raipur, District Raipur, Chhattisgarh., District : Raipur, Chhattisgarh 3 - Assistant Commissioner Tribal Welfare Department, Rajnandgaon, District Rajnandgaon, Chhattisgarh., District : Rajnandgaon, Chhattisgarh 2 4 - Joint Director Treasury Account And Pension, Division Durg, District Durg, Chhattisgarh., District : Durg, Chhattisgarh [ 5 - District Education Officer Rajnandgaon, District Rajnandgaon, Chhattisgarh., District : Rajnandgaon, Chhattisgarh 6 - Principal Government Middle School Rengakathera, Block Ambagarh Chowki, District Rajnandgaon, Chhattisgarh., District : Rajnandgaon, Chhattisgarh 7 - Block Education Officer Ambagarh Chowki, District Rajnandgaon, Chhattisgsarh., District : Rajnandgaon, Chhattisgarh --- Respondents WPS No. 183 of 2020
Legal Reasoning
1 - Rekha Bai W/o Shri Harishchandra Borkar Aged About 47 Years Working As Peon At Government Higher Secondary School, Bandha Bazar, Block Ambagarh Chowki, District Rajnandgaon, Chhattisgarh., District : Rajnandgaon, Chhattisgarh ---Petitioner Versus 1 - State Of Chhattisgarh Through The Secretary, School Education Department, Mahanadi Bhavan, Mantralaya, Atal Nagar, New Raipur, District Raipur, Chhattisgarh., District : Raipur, Chhattisgarh 2 - Commissioner Tribal Welfare Department Raipur, District Raipur, Chhattisgarh., District : Raipur, Chhattisgarh 3 - Assistant Commissioner Tribal Welfare Department, Rajnandgaon, District Rajnandgaon, Chhattisgarh., District : Rajnandgaon, Chhattisgarh 4 - Joint Director Treasury Account And Pension, Division, Durg, District Durg, Chhattisgarh., District : Durg, Chhattisgarh 5 - District Education Officer Rajnandgaon, District Rajnandgaon, Chhattisgarh., District : Rajnandgaon, Chhattisgarh 6 - Principal Government Higher Secondary School, Bandha Bazar, Block Ambagarh Chowki, District Rajnandgaon, Chhattisgarh., District : Rajnandgaon, Chhattisgarh 7 - Block Education Officer Ambagarh Chowki, District Rajnandgaon, Chhattisgarh., District : Rajnandgaon, Chhattisgarh --- Respondents 3 WPS No. 283 of 2020 Bhagwati Prasad Arya S/o Late Latkhor Singh Arya, Aged About 47 Years Working As Peon At Govt. Higher Secondary School, Somatola, Block Mohla, District Rajnandgaon Chhattisgarh., District : Rajnandgaon, Chhattisgarh ---Petitioner Versus 1 - State Of Chhattisgarh Through The Secretary, School Education Department, Mahanadi Bhavan, Mantralaya, Atal Nagar, New Raipur, District Raipur Chhattisgarh, District : Raipur, Chhattisgarh 2 - Commissioner, Tribal Welfare Department Raipur, District Raipur Chhattisgarh, District : Raipur, Chhattisgarh 3 - Assistant Commissioner, Tribal Welfare Department, Rajnandgaon, District Rajnandgaon Chhattisgarh, District : Rajnandgaon, Chhattisgarh 4 - Joint Director, Treasury Account And Pension, Division, Durg, District Durg Chhattisgarh, District : Durg, Chhattisgarh 5 - District Education Officer, Rajnandgaon, District Rajnandgaon Chhattisgarh, District : Rajnandgaon, Chhattisgarh 6 - Principal, Govt. Higher Secondary School, Somatola, Block Mohla, District Rajnandgaon Chhattisgarh., District : Rajnandgaon, Chhattisgarh 7 - Block Education Officer, Mohla, District Rajnandgaon Chhattisgarh, District : Rajnandgaon, Chhattisgarh --- Respondent(s) WPS No. 383 of 2020 1 - Sunayana Mandavi D/o Late Patiram Kachlame Aged About 44 Years Working As Peon At Government Higher Secondary School, Koudikasa, Block Ambagarh Chowki, District Rajnandgaon Chhattisgarh, District : Rajnandgaon, Chhattisgarh ---Petitioner(s) Versus 4 1 - State Of Chhattisgarh Through The Secretary, School Education Department, Mahanadi Bhavan, Mantralaya, Atal Nagar, New Raipur, District- Raipur Chhattisgarh, District : Raipur, Chhattisgarh 2 - Commissioner Tribal Welfare Department Raipur, District Raipur Chhattisgarh, District : Raipur, Chhattisgarh 3 - Assistant Commissioner Tribal Welfare Department, Rajnandgaon, District Rajnandgaon Chhattisgarh, District : Rajnandgaon, Chhattisgarh 4 - Joint Director Treasury Account And Pension, Division-Durg District Durg Chhattisgarh, District : Durg, Chhattisgarh 5 - District Education Officer Rajnandgaon, District Rajnandgaon Chhattisgarh, District : Rajnandgaon, Chhattisgarh 6 - Principal Government Higher Secondary School, Koudikasa, Block Ambagarh Chowki, District Rajnandgaon Chhattisgarh, District : Rajnandgaon, Chhattisgarh 7 - Block Education Officer Ambagarh Chowki, District Rajnandgaon Chhattisgarh, District : Rajnandgaon, Chhattisgarh --- Respondent(s) --------------------------------------------------------------------------------------------------------------- For Petitioner : Ms. Rajni Soren, Advocate in W.P. (S) No. 1824 of 2016. For Petitioners : Mr. Shashi Kushwaha, Advocate in WPS No. 197 / 2020, WPS No. 183/2020, WPS No. 283/2020 & WPS No. 383/2024 For Respondent : Mr. Ajay Kumrani, Panel Lawyer. Mr. Pravas Singh Baghel, District Education Officer is also present in person. --------------------------------------------------------------------------------------------------------------- Hon’ble Mr. Justice Naresh Kumar Chandravanshi Order on Board 15/01/2025 1.
Decision
Issue involved in all the writ petitions are similar in nature, therefore, they are being heard together and decided by this common order. [For the sake of convenience, WPS No. 1824 of 2016 would be taken-up as lead case] 2. The petitioners have preferred these petitions under Article 226 of the 5 Constitution of India seeking writ of mandamus directing the respondents that the petitioners be given regularization along with all benefits with retrospective effect. 3. The facts of the case / grievance of the petitioners, as projected by them, in their respective petitions are common, that the petitioners are dependent of the respective deceased employees mentioned in the table below, who died in harness. On being applications filed by petitioners, seeking dependent employment, they were granted compassionate appointment on the post of Contingency Paid Employee. Nutshell of facts of aforesaid cases are stated to be in following manner :- Case No. Name Sr. No. Name & post of deceased employee Relation to deceased the Date of Death Date of compassion ate appointment Date of regularization 03.02.1997 20.8.2008 Wife 05.10. 1996 1. WPS No. 1824 of 2016 Smt. Santoshi Wadyakar 2. WPS No. 197 / 2020 Neelam Singh Thakur 3. WPS No. 183 / Rekha Bai 2020 4. WPS No. 283 / 2020 Bhagwati Prasad Arya 5. WPS No.383/2020 Sunayna Mandavi Lt.Ghanyshya m Prasad Wadyakr (Assistant Teacher) Lt. Kunwar Singh Thakur (Head Master) Lt. Harishchand Borkar (Assistant Teacher) Lt. Latkhor Singh (Head Master) Lt. Kachlame (Assistant Teacher Patiram Daughter ----- 29.12.1995 23.8.2014 Wife 30.04. 1996 19.08.1996 23.8.2014 Son 22.08. 1987 19.01.1995 23.8.2014 Daughter 16.12. 24.06.1995 23.8.2014 1994 Further case of the petitioners are that, since their relatives, who died in harness, were posted on regular post, therefore, as per prevailing Circular (Annexure P-3) issued by the then Government of Madhya Pradesh dated 10th June, 1994 and Circular (Annexure P-5) issued by Government of Chhattisgarh 6 dated 12th February, 2008, the petitioners ought to have appointed on regular post, but they were illegally appointed as contingent paid employee, which is per se illegal, therefore, they have prayed that, they be regularized on class IV posts from the date of their initial appointment / joining i.e. from the year 1997, 1995, 1996, 1995 and 1995, respectively and they also be granted all other benefits. 4. Ms. Rajni Soren, learned counsel appearing for the petitioner in WPS No. 1824 of 2016 would submit that deceased employee – Ghanshyam Prasad Wadyakar, who was husband of the petitioner- Smt. Santoshi Wadyakar, was working on the regular post of Assistant Teacher, therefore, as per Circular dated 10.06.1994 (Annexure P-3) and subsequent Circular dated 12.02.2008 (Annexure P-5) issued by the Govt. of Chhattisgarh, the petitioner ought to have appointed on regular post of 'Class-IV' from the year 1997, but her services was regularized from 20.8.2008, which is against the aforesaid instructions of the State Government. It is further contended that, though regular pay scale was granted to petitioner – Smt. Santoshi Wadyakar from 4.12.2000, but she was regularized on the post of 'Peon' on 20.8.2008. It is next contended that, because of such legal wrong done by respondents authorities, the petitioner has deprived from promotion, seniority and monetary benefits. As such, it is prayed that relief sough for by the petitioner may be granted to her. 5. Mr. Shashi Kumar Kushwaha, learned counsel appearing for the petitioners in other writ petitions also made aforesaid contention. He further submits that in WPS No. 197 / 2020, WPS No. 183/2020, WPS No. 283/2020 & WPS No. 383/2024, petitioners' relatives, who died in harness, were working on regular posts, therefore, petitioners of aforesaid cases would have appointed on regular posts of 'Class-IV employee' in light of aforesaid two circulars issued by 7 the State Government since their initial appointments i.e. from the year 1995, 1996, 1995 and 1995, respectively but due to unlawful act of respondent authorities, they were appointed on contingency paid employee and their services were regularized on 23.8.2014, since then they are being granted regular pay scale. It is contended further that since appointment granted to the petitioners by respondents were against the circular / instructions of State Government, therefore, relief sought for by the petitioners may be granted to them. 6. On the other hand, learned counsel for the State while referring to its reply would submit that though relatives of the petitioners, who died in harness, were posted on the post of Assistant Teacher / Head Master on regular post and the petitioners were appointed as contingent paid employee on compassionate ground, but since, at that time, no regular post was vacant in the Department, therefore, they were appointed as contingent paid employee. He further submits that if the petitioners were not satisfied with their appointment and they have any grievance in this regard, then they ought to have filed application / representation before the competent authority for redressal of their grievances or they have filed writ petitions at the earliest, but they did not do so and now they are raising their grievances after about inordinate delay of more than 20 years from their initial appointment, as such, all the writ petitions filed by the petitioners are liable to be dismissed. 7. In reply, learned counsel appearing for the petitioners submit that in appointment order of the petitioners, nothing has been mentioned to the effect that at the time of their initial appointment, no permanent post was vacant in the respondents-Department, therefore, now, respondents cannot be permitted to raise this ground. 8 8. I have heard learned counsel appearing for the parties and perused the material available on record with utmost circumspection. 9. From perusal of the records, it appears that on account of death of their relatives, the petitioners were appointed on the post of contingency paid employee between 1995 to 1997. Though as per prevailing instructions /circular dated 10th June, 1994 (Annexure P-3) issued by the then State of Madhya Pradesh and subsequent instructions /circular dated 12th February, 2008 (Annexure P-5) issued by State of Chhattisgarh, the petitioners ought to have appointed on regular post of class IV, as their deceased / relatives were posted as regular employee, but they have wrongly been appointed on the post of contingent paid employee, which is against the aforesaid circulars. As such, it is found that appointment of petitioners on the post of contingent paid employee was against the circulars issued by the State Government. 10. Though appointment of the petitioners were against the applicable instructions of the Government, as instead of regular appointment, they were wrongly appointed as contingent paid employee, but from perusal of record it is not reflected that petitioners had neither raised their grievance before competent authority at that time for their regular appointment nor filed writ petition for their regular appointment, rather petitioner namely Smt. Santoshi Wadyakar raised her grievance first time in the year 2016 by filing instant writ petition and other petitioners filed instant petitions in the year 2020 i.e. after about 20 years. No explanation has been extended by the petitioners that why said delay occurred. 11. Had the petitioners any grievance with regard to the date of their regularization, they ought to have approached competent authority / this court immediately after their appointment or immediately after their regularization in service. But, they have filed instant petitions after an inordinate delay of 18 to 20 years. 9 12. If the petitioners were regularized from their initial appointment with retrospective effect of 18 to 20 years, then their regularization from such long back date will disturb the seniority of regular employees in the cadre, who are not party in the instant case. 13. The question as to whether the regularisation should be granted with retrospective effect or it should be prospective effect is no longer res integra. It has been considered by the Supreme Court in the matter of Registrar General of India & Another v. V. Thippa Setty & Others1 and it has been held by their Lordships that the regularization should ordinary be prospective so that seniority of those who are already in regular service is not affected and held as under : “2. …………It must be remembered that they had entered as ad hoc appointees and the question was whether they should be regularised in service since they had worked as ad hoc employees for a sufficiently long time. If the ad hoc service is regularised from the back date in this manner, it will disturb the seniority of regularly appointed employees in the cadre and, therefore, ordinarily the regularisation must take effect prospectively and not retrospectively. It must also be borne in mind that ad hoc appointees, casual labour and daily-rated persons are not subject to strict discipline of service and it is a matter of common experience that their attendance is very often not regular and at times they do not even meet the qualification for appointment since they are taken on ad hoc basis. These deficiencies are overlooked by way of granting of relaxation and, therefore, care must be taken to see that they do not upset the seniorities of regular appointees. Whether they qualify in a given case or not is not relevant but what is relevant is that regularisation should be prospective and not retrospective as the chances of their upsetting the seniorities cannot be overlooked. The Tribunal must take care to see that when they pass orders of regularisation from retrospective dates, those who are likely to be affected on account of that order are not before that court and unwittingly their careers are not 1 (1998) 8 SCC 690 10 adversely affected. Ordinarily, regularisation must be prospective.” therefore, the 14. Similarly, in Union of India & Others v. Sheela Rani2, the principles of law laid down in V. Thippa Setty (supra) has been followed by the Supreme Court with approval and held in para 11 as under : “11. In Registrar General of India & Anr. Vs. V. Thippa Setty & Ors. (supra), the Tribunal's direction was to regularize the respondents w.e.f. the date of promulgation of the recruitment rules or from the date of their appointment depending on the seniority list. In pursuance of the said direction, on the new recruitment rules being promulgated on 11.5.1985, the regularization was given effect from that date. However, in the subsequent order passed by the Tribunal on 19.2.1993, the Tribunal had directed that they should be treated as having been conferred regular status w.e.f. 5.2.1981 i.e. the date of their entry into service as Investigators. This Court held that the employees had entered as ad hoc appointees and the question was whether they should be regularized in service since they had worked as ad hoc employees for a sufficient long time. If the ad hoc service is regularized from the back date in this manner, it will disturb the seniority of regularly appointed employees in the cadre and, therefore, ordinarily the regularization must take effect prospectively and not retrospectively. This Court ordered that care must be taken to see that regularization do not upset the seniorities of regular appointees. Whether they qualify in a given case or not is not relevant but what is relevant is that regularization should be prospective and not retrospective as the chances of their upsetting the seniorities cannot be overlooked. 15. In the matter of Masood Akhtar Khan & Others v. State of Madhya Pradesh & Others3 considering the Rules of M.P. Civil Services (General Conditions of Service) Rules, 1961, Rule 7, it has been held relying upon the earlier decisions that if the initial appointment is not made according to the 2 3 (2007) 15 SCC 230 (1990) 4 SCC 24 11 Rules, subsequent regularisation of his service does not entitle an employee to the benefit of intervening service for seniority. 16. Having considered aforesaid law laid down by the Apex Court, if petitioners are regularized with retrospective effect, that too, after about 18- 20 years, then it will upset the seniorities of regular appointee. Further, the petitioners are raising their grievance first time after about 18-20 years without extending any reason for delay and latches. 17. Hon’ble Supreme court in the case of Union of India v. Tarsem Singh 4 while considering the delay / latches in approaching appropriate forum by aggrieved person / party seeking relief, has observed as under :- “To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or refixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or 4 (2008) 8 SCC 648 12 promotion, etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied………... 18. In the case of Chairman, State Bank of India v M J James 5 , their lordships of the Supreme Court has held as under :- "36. What is a reasonable time is not to be put in a straitjacket formula or judicially codified in the form of days, etc. as it depends upon the facts and circumstances of each case. A right not exercised for a long time is non- existent. Doctrine of delay and laches as well as acquiescence are applied to non-suit the litigants who approach the court/appellate authorities belatedly without any justifiable explanation for bringing action after unreasonable delay. In the present case, challenge to the order of dismissal from service by way of appeal was after four years and five months, which is certainly highly belated and beyond justifiable time. Without satisfactory explanation justifying the delay, it is difficult to hold that the appeal was preferred within a reasonable time……………………..” 19. In Ram Chand v. Union of India 6 , and State of U.P. v. Manohar 7 , their Lordships has observed that if the statutory authority has not performed its duty within a reasonable time, it cannot justify the same by taking the plea that the person who has been deprived of his rights has not approached the appropriate forum for relief. If a statutory authority does not pass any orders and thereby fails to comply with the statutory mandate within reasonable time, they normally should not be permitted to take the defence of laches and delay. If at all, in such cases, the delay furnishes a cause of action, which in some cases as elucidated in Union of India v. Tarsent Singh 8 may be continuing cause of action. 5 6 7 8 (2022) 2 SCC 301 (1994) 1 SCC 44 (2002) 2 SCC 126 (2008) 8 SCC 648 13 “The State being a virtuous litigant should meet the genuine claims and not deny them for want of action on their part. However, this general principle would not apply when, on consideration of the facts, the court concludes that the respondent had abandoned his rights, which may be either express or implied from his conduct. Abandonment implies intentional act to acknowledge,…..” 20. In light of aforesaid law laid down by the Apex Court in afore-cited cases, if the case in hand is considered, then it is clear that though petitioners were wrongly appointed as contingent paid employee, rather, in light of prevailing instructions /circular dated 10th June, 1994 (Annexure P-3) issued by the then State of Madhya Pradesh and subsequent instructions /circular dated 12th February, 2008 (Annexure P-5) issued by State of Chhattisgarh, they ought to have been appointed on regular post, but it is also apparent from the record that petitioners did not raise their grievance neither at the time of their appointment or immediately thereafter nor even after their regularization i.e. in the year 2008 / 2014, rather they are raising grievance first time after lapse of 18 to 20 years. If relief, which contained / involved seniority, promotion, etc., is granted to them from the back date, that too, after 18 to 20 years, then it will upset the seniority of other regular appointees, who are not party before this Court, therefore, applying ratio of law laid down by the Apex Court in afore-cited cases, in the considered opinion of this Court, relief sought for by the petitioners cannot be granted to them after such huge delay and latches i.e. after 18 to 20 years. 21. Consequently, all these writ petitions stand dismissed. Sd/- (Naresh Kumar Chandravanshi) Judge Amit AMIT KUMAR DUBEY Digitally signed by AMIT KUMAR DUBEY Date: 2025.01.21 10:49:14 +0530