Dismissed

Gopal Singh Thakur And Ors. v. State Of Chhattisgarh And Ors.

Chhattisgarh HC27 Aug 2024WPS/11/2015

Case brief

AI extract

What is this about?

Petitioners challenged the State Government's approval of a junior Sub-Engineer's promotion to Assistant Engineer, alleging violation of seniority rules. The Court dismissed the writ, relying on a coordinate bench's order directing the State Government to approve the junior's promotion due to a prior vacancy error. The Court noted the petitioners did not challenge the prior order.

What did the court decide?

The writ petition was dismissed; the order of promotion was held valid.

Gopal Singh Thakur And Ors. Vs State Of… — Pension and Retirement Benefits | Chhattisgarh HC (2024)

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2024:CGHC:32785

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

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WPS No. 11 of 2015

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1. Gopal Singh Thakur And Ors. S/o Late Shri F.R. Thakur Aged About 52 Years R/o Nagar Nigam Colony, Near Mahrana Pratap Chowk, Police Stastion Civil Line, Bilaspur, Civil And Rev. Distt. Bilaspur C.G., Chhattisgarh

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2. S.K. Doneria S/o Late Shri K.L. Doneria Aged About 53 Years R/o J.P. Vihar Colony, Mangla Police Station Civil Line, Bilaspur, Civil And Rev. Distt. Bilaspur C.G. , District : Bilaspur, Chhattisgarh

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3. Anupam Tiwari S/o Sambho Prasad Tiwari Aged About 47 Years R/o Gali No. 3, Bangali Para Sarkanda, Police Station Sarkanda, Bilaspur, Civil And Rev. Distt. Bilaspur C.G. , District : Bilaspur, Chhattisgarh

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4. Farid Ahmad Qureshi S/o Vakil Ahmad Qureshi Aged About 52 Years R/o Nagar Nigam Colony Near Maharana Pratap Chowk, Police Station Civil Line, Bilaspur, Civil And Rev. Distt. Bilaspur C.G. , District : Bilaspur, Chhattisgarh

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... Petitioners

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versus

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1. State Of Chhattisgarh And Ors. Through The Secretary, Ministry Of Urban And Rural Development Department, Mantralaya Mahanadi Bhawan, Naya Raipur Distt. Raipur C.G. , Chhattisgarh

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2. Municipal Corporation, Bilaspur S/o Through Its Commissioner, Municipal Corporation Bilaspur C.G.

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3. Director S/o Urban Administration Department, State Of Chhattisgarh, Distt. Raipur C.G.

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4. Chhattisgarh Public Service Commission S/o Through Secretary, Shankar Nagar Road, Bhagat Singh Square Distt. Raipur C.G.

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5. State Election Commission S/o Through Secretary, Near D.K.S. Bhawan Old Mantralaya, Distt. Raipur C.G.

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6. Rajkumar Mishra S/o Late K.P. Mishra Aged About 50 Years R/o Near Sidha Shikhar Apartment, Above State Bank Of India, Shanti Nagar, Bilaspur, Distt. Bilaspur C.G. , District : Bilaspur, Chhattisgarh

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... Respondents

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For Petitioners	: Mr. Malay Shrivastava, Advocate along with Ms. Anu Mishra, Advocate.
For State	: Mr. Satish Gupta, G. A.
For Respondent No. 2	: Mr. Ashutosh Singh Kachhawaha, Advocate
For Respondent No. 4	: Dr. SudeepAgrawal, Advocate

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For Respondent No. 5 : Mr. Akash Verma, Advocate holding brief of Mr. R. S. Marhas, Advocate For Respondent No. 6 : Mr. Manoj Paranjpe, Advocate For Intervener : Mr. Neeraj Choubey, Advocate

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Hon’ble Shri Justice Rakesh Mohan Pandey

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Judgment On Board

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28/08/2024

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(1) By way of this petition, the petitioners have sought the following

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relief(s):-

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10.1. This Hon'ble Court may kindly be pleased to quash the order dated 03.11.2014 passed by respondent no.1.

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10.2. This Hon'ble Court may kindly be pleased to quash the order dated 08.12.2014 passed by respondent no.2.

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10.3 . This Hon'ble Court may kindly be pleased to direct the respondents authorities to reconsider the promotion from the post of Sub-Engineer to Assistant Engineer applying the principle of Seniority Subject to fitness.

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10.4. Cost of the proceedings.

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10.5 . Any other relief in the discretion of this Hon'ble Court.

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(2) Facts of the present case are that the petitioners along with respondent No. 6 were appointed to the post of Sub-Engineer vide order dated 08.08.1986 and the list was approved by CG. Public Service Commission i.e. respondent No. 4 on 10.09.1987. Following is the

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order of merit:-

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S. No.	Name
1.	AjayShrivastava
2.	Gopal Singh
3.	S. K. Doneria
4.	Anupam Tiwari
5.	Farid Ahmed Qureshi
6.	Rajkumar Mishra
7.	Anil Dwivedi

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8. Pravin Shukla

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The DPC proceeding was convened by the department for promotion to the post of Assistant Engineer on 21.04.1997 taking into consideration the work experience on the post of Sub-Engineer. The criteria for promotion were merit-cum-seniority as per the Chhattisgarh Nagarpalika Karmchari (Bharti tatha Sewa shartein) Niyam, 1968. The DPC considered the merit of the eligible candidates on the basis of their ACRs and Mr. Rajkumar Mishra i.e. respondent No. 6 was placed at S. No. 1. in the seniority list for Sub-Engineer (Civil). The list is as follows:-

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S. No.	Name
1.	Rajkumar Mishra
2.	Pravin Shukla
3.	Gopal Singh
4.	Anil Dwivedi
5.	Farid Ahmed Qureshi
6.	Anupam Tiwari
7.	S. K. Doneria

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Thereafter, a decision was taken by the Standing Committee of the Municipal Corporation, Bilaspur on 29.05.1997 for the promotion of Rajkumar Mishra to the post of Assistant Engineer and the same was referred to the State Government for its approval. The State Government vide order dated 22.08.2000 declined to approve the recommendation/proposal of Municipal Corporation, Bilaspur for the promotion of respondent No. 6 on the ground that as per the reservation roster, only one post was vacant which was reserved for the ST category. The Municipal Corporation, Bilaspur vide order dated 04.01.2001 cancelled the promotion granted to respondent No. 6.

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Thereafter, respondent No. 6 filed WPS No. 3197/2005 challenging therein the decision taken by the State Government. The Co-ordinate Bench vide order dated 03.07.2014 in para 7 held that “Since on the date of consideration of approval there was a vacancy, which arose on 16.07.1997, the petitioner was entitled to promotion from the said date and the State Govt. should have considered the matter as per the vacancy position. However, it is for the State Govt. to consider this aspect in consultation with the Municipal Corporation, Bilaspur.” Further in para 8, it is stated that “ State Government was directed to reconsider the matter for approval of the recommendation of DPC and take a decision in this regard keeping in view the observation made above, as early as possible and preferably within a period of three months.”

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The State Government vide order dated 03.11.2014 accorded approval in favor of Rajkumar Mishra for promotion to the post of Assistant Engineer pursuant to the order passed in WPS No. 3197/2005 dated 03.07.2014. The Petitioners who were below Rajkumar Mishra in the list prepared during the departmental promotion process have filed this petition challenging the order passed by the State Government.

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(3) Mr. Malay Shrivastava, counsel appearing on behalf of the petitioners submits that as per the order of appointment approved by respondent No. 4, Rajkumar Mishra was at S. No. 6 but he has been placed at S. No. 1 by the DPC contrary to the seniority list. He further submits that the criteria for promotion were seniority-cum-merit but contrary to the rules and regulations, DPC prepared a list on the basis of merit-cumseniority which was erroneous and contrary to the rules. He also submits that as the proceeding of DPC was not confirmed by the State

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Government thus, there was no occasion for respondent No. 6 to challenge the proceeding of DPC or its outcome. He argues that there was no direction in WPS No. 3197/2005 to promote Rajkumar Mishra to the post of Assistant Engineer. He further argues that in the concluding para, the State Government was directed to re-consider the matter for approval of the recommendations of DPC, therefore the State Government committed an error of law in issuing the order of promotion in favour of Rajkumar Mishra. He also argues that a direction was issued by the State Government on 22.08.2000 to conduct a fresh DPC and that the order was neither challenged by respondent No. 6 nor has been complied with by Municipal Corporation, Bilaspur. He contends that petitioners were senior to Rajkumar Mishra, therefore the order dated 03.11.2014 (Annexure P/1) is erroneous and has been passed without application of mind. He states that the order dated 03.11.2014 deserves to be quashed and the respondent authorities in turn may be directed to consider the seniority afresh and thereafter take appropriate decisions regarding promotion.

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(4) On the other hand, Mr. Ashutosh Singh Kachhawaha, counsel appearing on behalf of respondent No. 2 submits that though in the order of appointment approved by C.G. Public Service Commission, the name of Rajkumar Mishra was placed at S. No. 6, since the criteria for promotion were merit-cum-seniority, therefore, according to ACRs of eligible candidates, a fresh merit list was prepared. He further submits that from the year 1991 to the year 1996 i.e. in ACRs of five years, respondent No. 6 was awarded A+ grade whereas the petitioners were granted A only, therefore according to Rule 12 of the Rules, 1968, Rajkumar Mishra was placed at S. No. 1. He argues that name of

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respondent No. 6 was recommended to State Government but the same was declined on the ground that on that date, there was no vacant post under UR category for the post of Assistant Engineer. He further argues that subsequently, the order of promotion was recalled by the Municipal Corporation, Bilaspur and the decision taken by the State Government was challenged by respondent No. 6 by filing WPS No. 3197/2005. He also argues that it was observed in the order dated 03.11.2014 passed in WPS No. 3197/2005 that a vacancy arose under the UR category on 16.07.1997 and therefore, the claim of Rajkumar Mishra should have been considered by the respondents therein. He contends that there was a clear finding in this regard in WPS No. 3197/2005, therefore, the State Government took the decision to restore the order of promotion of Rajkumar Mishra. It is submitted that petitioners No. 1 and 3 have already been promoted to the post of Executive Engineer whereas petitioners No. 2 and 4 have already retired from services. It is also submitted that the order passed in WPS No. 3197/2005 was never challenged by the petitioners and thus, has attained finality. He prays that the present petition deserves to be dismissed.

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(5) Mr. Manoj Paranjpe, counsel appearing on behalf of respondent No. 6 submits that DPC was held on 22.04.1997 for promotion to the post of Assistant Engineer and respondent No. 6 was found suitable whereas petitioners, who were also considered by the Committee, were not found fit for promotion. He further submits till 2015, the petitioners did not take any steps to challenge the order including the proceeding of DPC and thus they have waived their right to challenge the same after a lapse of more than 15 years. He also submits that petitioner No. 1

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was an intervener in WPS No. 3197/2005 and his application for intervention was rejected on default. He argues that as petitioner No. 1 participated in the proceeding, thus it can also be argued that he was aware of the proceeding and its outcome but he failed to challenge the order passed in that petition. In support thereof, he placed reliance on the judgment rendered by the Hon’ble Supreme Court in the matters of Union of India Versus N. Murugesan & Ors reported in (2022) 2 SCC 25 and Bichitrananda Behera Versus State of Orissa & Ors . reported in (2023) SCC OnLine SC 1307 wherein in para 25, it is held that:-

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25. Acquiescence would mean a tacit or passive acceptance. It is implied and reluctant consent to an act. In other words, such an action would qualify a passive assent. Thus, when acquiescence takes place, it presupposes knowledge against a particular act. From the knowledge comes passive acceptance, therefore instead of taking any action against any alleged refusal to perform the original contract, despite adequate knowledge of its terms, and instead being allowed to continue by consciously ignoring it and thereafter proceeding further, acquiescence does take place. As a consequence, it reintroduces a new implied agreement between the parties. Once such a situation arises, it is not open to the party that acquiesced itself to insist upon the compliance of the original terms. Hence, what is essential, is the conduct of the parties. We only dealt with the distinction involving a mere acquiescence. When acquiescence is followed by delay, it may become laches. Here again, we are inclined to hold that the concept of acquiescence is to be seen on a case-to- case basis."

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(6) Mr. Satish Gupta, Dr. Sudeep Agrawal, Mr. Neeraj Choubey and Mr. Akash Verma, counsel appearing on behalf of respective respondents also endorse the submissions made by Mr. Ashutosh Singh Kachhawaha and Mr. Manoj Paranjpe.

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(7) I have heard learned counsel appearing for the parties and perused the documents placed on the record.

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(8) Initially, the petitioners and respondent No. 6 were appointed to the post of Sub-Engineer under respondent No. 2 vide order dated 08.08.1986. Respondent No. 4/CGPSC approved their appointments vide order dated 10.09.1987. DPC was convened on 22.04.1997 for the promotion of Sub-Engineers to the post of Assistant Engineer and the petitioners as well as respondent No. 6 were considered in that DPC. The criteria for promotion were fixed as merit-cum seniority as per Rule 12 of the Rules, 1968 and the same is reproduced herein below:-

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12. पदोन्नति�द्वाराभ�� -- (1) पदोन्नति�द्वाराभ�� , योग्य�ाकेआधारपरकी जाएगी।किकन्�ुयोग्य�ाएँसमानहोनेकीस्थि!"ति�मेंवरिरष्ठ�ापरकिवचारकिकया जाएगा।

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(2) पदोन्नति�हे�ुउम्मीदवारोंकाचयनकर�ेसमय , किनम्नलि,लि-�परकिवचारकिकया जाएगा :( एक ) चा�ुय. औरक्षम�ा , ( दो ) बुति2मत्ता�"ायोग्य�ा ,

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( �ीन ) किनष्ठा , और ( चार ) पूव. सेवावृत्त।

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(3) उनपदोंकेमाम,ेमेंजिजनकामाजिसकवे�नअतिधकसेअतिधक 95 रुपयेसे अतिधकनहो , मुख्यनगरपालि,काअतिधकारीऔरअन्यमाम,ोंमेंजिज,ाचयन सकिमति�सभीपात्रउम्मीदवारोंकेमाम,ोंपरकिवचारकरेगीऔर!वकिववेकानुसार किकसीभीउम्मीदवारसेसाक्षात्कारकरसकेगी।

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(4) य"ास्थि!"ति�मुख्यनगरपालि,काअतिधकारीयाजिज,ाचयनसकिमति�उम्मीदवारों काचयनकरअतिधमानक्रमसेउनकेनामर-ेगी।जहाँमुख्यनगरपालि,का अतिधकारीकिनयुकि=याँकरनेहे�ुसक्षमप्रातिधकारीहोवहाँआदेशउसकेद्वाराजारी किकएजाएँगे।अन्यमाम,ोंमेंजिज,ाचयनसकिमति�पदोन्नति�हे�ुउपयु= पाएगए उम्मीदवारोंकेनामोंकीजिसफारिरश!"ायीसकिमति�कोकरेगी।�त्पश्चा�्!"ायी सकिमति�अस्थिन्�मचयनकरेगी।

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The ACRs of the preceding five years were taken into consideration to assess the merit of the candidates. Respondent No. 6 was awarded an (A+) grade in all five years whereas the petitioners were awarded an (A) grade in all five years, therefore respondent No. 6 was placed at S. No. 1 by the DPC and his name was recommended for promotion and the same was sent to the State

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Government for its approval. The State Government vide order dated 22.08.2000 declined to approve the recommendation on the ground that only one post of Assistant Engineer remained vacant, and that too was reserved for the ST category as per the reservation roster. Subsequently, the State Government passed an order to conduct a fresh DPC and the order of promotion of respondent No. 6 was also recalled. Thereafter, respondent No. 6 filed WPS No. 3197/2005 challenging therein the order dated 22.08.2000. The coordinate Bench vide order dated 03.07.2014 in paras 7 & 8 held as under:-

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7. I have heard learned counsel for the parties at length and perused the record. The dispute lies in very narrow compass. On 21/04/1997 petitioner's case was recommended by the DPC which was pending approval before the State Govt. Soon thereafter the DPC again met on 05/05/1997 to consider promotion to the post of Assistant Engineer to Executive Engineer and in the said meeting name of one Sudhir Gupta was recommended for promotion to the post of Executive Engineer. Based on this recommendation and the consequent resolution of the standing committee of the Corporation, the Municipal Corporation promoted the said Shri Sudhir Gupta to the post of in-charge Executive Engineer on 16/07/1997. The State Govt., by its order dated 15/10/1999 (Annexure P/9) accorded approval to the recommendation. of the DPC promoting Shri Sudhir Gupta on the post of Executive Engineer. On perusal of the documents pertaining to the promotion of Shri Sudhir Gupta and the recommendation with respect to the petitioner it would be manifest that within three months from the recommendation of petitioner's case, post of Assistant Engineer (Civil) in the general category had fallen vacant on account of promotion of Shri Sudhir Gupta. Not only this, the State Govt. have accorded approval to the promotion of Shri Sudhir Gupta on 15/10/1999, i.e. much before the order dated 22/08/2000 when it refused to accord petitioner's case for promotion, thus, the concerned department of the State Govt was fully aware of the vacancy available on the post of Assistant Engineer (Civil) This is also born out from the fact that the order dated 16/07/1997 promoting Shri Sudhir Gupta as Executive Engineer was also sent to the Principal Secretary of the department and the Directorate of Urban Administration It also finds reference in the order Annexure P/9, therefore, as early as on 16/07/1997 the State Govt. was aware of the vacancy position yet approval

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was refused on the ground that no vacancy exists on the post of Assistant Engineer (Civil) in the Municipal Corporation, Bilaspur. Since on the date of consideration of according to approval there was a vacancy, which arose on 16/07/1997, the petitioner was entitled for promotion from the said date, and the State Govt. should have considered the matter as per the vacancy position, however, it is for the State Govt to consider this aspect in consultation with the Municipal Corporation, Bilaspur.

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8. For the foregoing, this writ petition is disposed of with a direction that since post of Assistant Engineer (Civil) in the general category had fallen vacant on 16/07/1997 the State Govt. shall reconsider the matter for approval of the recommendation of DPC and take a decision in this regard keeping in view the observation made above, as early as possible and preferably within a period of three months from the date of submission of certified copy of this order. If the petitioner's grievance still subsists he would be at liberty to move afresh before this Court.

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From a bare reading of the aforementioned paras, it is quite clear that the State Government committed an error of law in not according approval on the ground that no vacancy existed under the UR category as there was a vacant post under the UR category since 16.07.1997. It is also observed that since on the date of consideration of approval, there was a vacancy, therefore, the petitioner was entitled to promotion from that date. While making this observation, the co-ordinate Bench directed the State Government to reconsider the matter afresh.

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Consequently, the order dated 03.11.2014 (Annexure P/1) was passed by the State Government and respondent No. 6 was promoted to the post of Assistant Engineer and the recommendation was approved. It is also not in dispute that the DPC was convened on 21.04.1997 and the matter was sent to the State Government for approval on 29.05.1997 but the same was declined vide order dated 22.08.2000 and the order of promotion was recalled by respondent

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No. 2 vide order dated 04.01.2001. Further, the State Government directed Municipal Corporation, Bilaspur to convene a fresh DPC, therefore no occasion arose for the petitioners to challenge the proceeding of that DPC and thus, the contention made by Mr. Manoj Paranjpe in this regard is misconceived.

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Respondent No. 6 had challenged the decision taken by the State Government by filing WPS No. 3197/2005 and this Court in clear terms held that respondent No. 6 was entitled to promotion on 16.07.1997 as there was a vacant and sanctioned post of Assistant Engineer under UR category and a direction was also issued to the State Government to reconsider the matter. Petitioner No. 1 was an intervener in that petition, therefore it cannot be said that he was not aware of the fact that any dispute is pending consideration before the High Court with regard to DPC or promotion. The order passed in WPS No. 3197/2005 was never challenged by any of the petitioners thus, it has attained finality. The State Government complied with the order dated 03.07.2014 and respondent No. 6 was promoted. Therefore, the contention made by Mr. Malay Shrivastava to the effect that respondent No. 6 was promoted contrary to the rules and regulations is misplaced.

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(9) Taking into consideration the above-stated facts, in the considered opinion of this Court, no case is made out for interference. Consequently, this petition deserves to be and is hereby dismissed . No costs.

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Sd/-

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Rakesh Mohan Pandey JUDGE

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Ajinkya

Gopal Singh Thakur And Ors. v. State Of Chhattisgarh And Ors.

Case brief

What is this about?

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Gopal Singh Thakur And Ors. v. State Of Chhattisgarh And Ors.

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