Allowed

Limendra Singh Rathore v. State Of Chhattisgarh and Ors.

Chhattisgarh HC28 Jan 2024WPS/3906/2014

Case brief

AI extract

What is this about?

A senior Ward Boy challenged promotion of a junior to Assistant Grade-3 in the handicap category, as his Higher Secondary qualification was omitted from the gradation list and his application came four days after the cut-off date. The Court held the State's action violated the 24.05.1996 circular and service jurisprudence, allowed the petition, and directed reconsideration with back-date seniority

What did the court decide?

Respondents directed to consider petitioner's promotion and, if qualified, promote him with original seniority from the back date (09.06.2014) and all consequential benefits, within four months.

Limendra Singh Rathore Vs State Of Chhattisgarh… — Service and Employment | Chhattisgarh HC (2024)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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WPS No. 3906 of 2014 Order reserved on 30/10/2023 Order passed on 29/ 01/2024

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- Limendra Singh Rathore S/o Shri Bharat Lal Rathore, aged About 30 Years, Working As Ward Boy, District Hospital, Janjgir, District Janjgir- Champa Chhattisgarh

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---- Petitioner

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Versus

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1 - State Of Chhattisgarh And Ors Through The Secretary, Department Of Health And Family Welfare, New Mantralaya, Mahanadi Bhawan, Mantralaya, P.S. Rakhi, Tahsil Aarang, Naya Raipur, District Raipur, Chhattisgarh.

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2 - Chief Medical And Health Officer, Janjgir - Champa , District. Janjgir – Champa, Chhattisgarh.

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3 - Satish Chandra Rathore, Assistant Grade 3, Office Of Chief Medical And Health Officer Janjgir Champa C.G. , District : Janjgir-Champa, Chhattisgarh.

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---- Respondents

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For Petitioner. : Mr. C. Jayant K. Rao, Adv.

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For State/Respondent Nos. 1 & 2 : Mr. Saumya Rai, P. L.

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For Respondent No. 3 : Mr. Manoj K. Jaiswal, Adv.

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Hon'ble Smt. Justice Rajani Dubey

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CAV ORDER

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The petitioner has filed this petition under Article 226 of the

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Constitution of India being aggrieved by the order dated 09.06.2014 (Annexure-P/1) whereby the Junior to the petitioner i.e. respondent No. 3 has been considered for promotion over the petitioner to the post of Lower Division Clerk/ Assistant Grade-III in the handicap category.

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Brief facts, as projected by the petitioner, are that he was appointed as Ward Boy on 12.10.2007 (Annexure-P/2) under the handicapped category. The petitioner has passed Higher secondary examination and also has Diploma in Computer Application. He submitted all his educational qualifications before the respondent No. 2 so that it could be entered into the service book. The copy of the mark-sheet (Annexure-P/3) and the application dated 11.02.2014 (Annexure-P/4) has been collectively filed. Even in the gradation list (Annexure-P/5) issued by the office of the respondent No. 2 on 31.08.2012, the name of the petitioner is at Serial No. 119 and the name of the respondent No. 3 is at serial No. 152. Respondent No. 3 was appointed on 06.10.2008 (Annexure-P/6) and accordingly he is junior to the petitioner. Despite being aware of this fact, the respondent No. 2 has not considered the petitioner in the handicap category and he considered respondent No. 3 for the post of Assistant Grade-3 over the petitioner vide promotion order dated 09.06.2014 (Annexure-P/1).

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As per circular of the State Government dated 24.05.1996

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(Annexure-P/7) all the class-4 employees who have regularly worked and completed 5 years of service are to be considered for the post of Lower Division Clerk/ Assistant Grade-3. Accordingly, as per the circular dated 19.01.89 25% seats of Lower Division Clerk/ Assistant Grade-3 are to be reserved for departmental employees. The action of the respondent No. 2 is illegal, arbitrary, and against the well settled principles of service jurisprudence, constitutional principles and de hors the principle of natural justice. Hence, the instant petition by the petitioner seeking following relief(s):-

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“10.1 That this Hon’ble Court may kindly be pleased to issue a writ in the nature of mandamus setting aside the promotion order dated 09.06.2014 (Annexure P-1) relating to the respondent No. 3 for the post of Assistant Grade-3 in the handicap category.

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10.2 That this Hon’ble Court be pleased to issue a writ or direction directing the respondent No. 2 to consider the petitioner case for promotion to the post of Assistant Grade-3.

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10.3 That this Hon’ble Court be pleased to issue a writ or direction directing the respondent’s authorities to provide all consequential benefits to the petitioner including seniority and monetary benefits.

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10.4 To grant any other relief as it may deems fit and appropriate.

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10.5 Cost of the petition.”

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Learned counsel for the petitioner submits that the action of the respondent authority is illegal, arbitrary and unjustified, hence deserved to be quashed. The petitioner is qualified and eligible in spite of that without considering the seniority of the petitioner, the junior to the petitioner has been promoted to the post of Assistant Grade-3. The petitioner filed several representations, but no action has been taken and he was not being considered for filing of the petition. The action of the respondent authorities is illegal, arbitrary and against the well settled principles of service jurisprudence. The respondent authority is discriminating with the petitioner which is per se illegal, arbitrary and unconstitutional. The learned counsel for the petitioner further submits that as per Annexure-P/7 circular dated 24.05.1996, the petitioner has to be considered for the post of Assistant Grade-3 in the handicap category over and above the respondent No. 3 who has been promoted vide Annexure-P/1 dated 09.06.2014 at serial No. 12 in the handicap category.

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The learned counsel for State/Respondent strongly opposed the prayer of the petitioner and submits that respondent No.

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3 was appointed on the basis of gradation list (AnnexureP/5) and as per gradation list, respondent No. 3 is at serial No. 152 and the petitioner is placed at serial No. 119 but the petitioner is only 8^th pass, whereas the respondent No. 3 is graduate with LLB degree. The gradation list was first published on 31.08.2012 and thereafter in the year 2013. It is submitted that, earlier the gradation list was prepared on 31.08.2012, thereafter letter was issued by the Chief Medical & Health Officer Janjgir Champa on 22.10.2012 AnnexureR/1 and as per this Annexure, information was called for correction or modification of the gradation list within a week’s time. Thereafter, similar gradation list was issued on 31.12.2013 and consequently another letter was issued on 04.02.2014 (Annexure-R/2) by Chief Medical & Health Officer to Civil Surgeon whereby information was called to modify or correct the gradation list by 07.02.2014 and said letter was also called for information with respect to employee completing Higher Secondary whose name was not in the list. Thus, as per notification as mentioned in Annexure-R/3 the promotion of those candidates would be considered who had completed Higher Secondary. The petitioner was first appointed in the year 2007 and since then, the gradation list shows that the petitioner is only 8^th passed and the petitioner never made any effort to get his

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service book corrected/modified so that he could include his Higher Secondary qualification in the same. The petitioner filed an application dated 11.02.2014 before the Civil Surgeon, District Hospital, Janjgir for including his 10^th & 12^th certificate in his service book. However, from the certificate of the petitioner (Annexure-P/3) it is evident that the petitioner completed his Higher Secondary Examination in the year 2002 which is much prior to the petitioner’s joining in his service on 16.10.2007. Although his joining in the gradation list as well as in the service records were neither rectified nor any attempts made by the petitioner to modify the same and when the gradation list was issued on 04.02.2014, the petitioner moved an application for inclusion of his 10^th & 12^th Certificates. The respondent No. 3 has been appointed on the basis of gradation list prepared prior to the submission of any application by the petitioner. The respondent authorities complied with the requirements and thereafter selected the candidate having proper qualification as per the requirement. As such, this petition is devoid of any merit and is liable to be dismissed.

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Learned counsel for respondent No. 3 submits that he was appointed on the basis of gradation list vide Annexure-P/5 and as per gradation list, he is at serial No. 152, whereas the petitioner is placed at serial No. 119, but as per gradation list

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the petitioner is 8^th Class passed, whereas respondent No. 3 is graduate with LLB degree. The petitioner never tried to correct his qualifications after publishing of gradation list and consequently another letter was issued by the Chief Health & Medical Officer to Civil Surgeon whereby information was called to modify/correct the correct gradation list by 07.02.2014 and the said letter also called for information with respect to employee completed Higher Secondary whose name was not in the list. The final list which published was to be prepared on the basis of information supplied prior to 07.02.2014 and the gradation list was prepared thereafter. Although, the petitioner had filed his application for inclusion of his Higher Secondary qualification after 07.02.2014 I.e, on 11.02.2014. Before the petitioner could submit his application to the Civil Surgeon the information was supplied to the respondent authority was closed and a final list was already prepared on the basis of which promotion was made. The respondent No. 3 has been promoted on the basis of gradation list prepared prior to the submission of any application by the petitioner, as such this instant petition is bereft of any merit and is liable to be dismissed.

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Heard both the counsel for the parties and perused the material available on record.

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This is an admitted petition in this case that the petitioner

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was appointed as Ward Boy on 12.10.2007. It is also not disputed by the respondent that in gradation list the petitioner’s name was on serial No. 119 and respondent No. 3 was at serial No. 152 in gradation list.

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The petitioner filed a copy of application dated 11.02.2014 (Annexure-P/4) with his 10^th , 12^th and DCA mark-sheet, but as per respondent all objections were invited till 07.02.2014 and after cut off date, the petitioner filed this application, as such his name was not considered.

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It is clear that (Annexure-P/1) the promotion order was issued on 09.06.2014 after four months of cut off date and it is also not disputed that the petitioner filed his mark-sheet on 11.02.2014 after four days of cut off date, circular dated 24.05.1996 (Annexure-P/7) was not denied by the respondent and the operative part of this circular is held as under:-

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‘‘2- ‘kklu ds le{k ;g iz’u mBk;k x;k gS fd D;k 5 o”kZ dh lsok iwjh djus okys gk;j lsds.Mjh ijh{kk fdlh dfu”B HkR; }kjk igys mRrh.kZ djus ds dkj.k mls ofj”B ekuk tk;sxk] fdlh ,sls HkR; dh rqyuk esa tks Hk`R; dh indze lwph esa ofj”B gS fdarq gk;j lsds.Mjh dh ijh{kk ckn esa mRrh.kZ fd;k gksA

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3- mi;qZDr laca/k esa ;g Li”V fd;k tkrk gS fd prqFkZ Js.kh ds in ¼HkR;½ fyfid ls fuEu Js.kh ds in ij inksUufr ds fy, cukbZ tkus okyh lwph esa HkR;ksa ds uke mlh dze ls j[ks tk;saxs ftl dze ls mudk uke ofj”Brk lwph esa gks] Hkys gh mUgksaus gk;j

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lsds.Mjh ijh{kk dHkh Hkh mRrh.kZ dh gks] vFkkZr~ HkR; ds in ij 5 Ok”kZ dh lsok ,oa gk;j lsds.Mjh ijh{kk mRrh.kZ djus ls dfUk”B HkR; ofj”B ugha gks tk;sxkA bl laCka/k esa foHkkxh; inksUufr lfefr dh cSBd ds le; foHkkxksa }kjk fiNys o”kZ ds ijh{kk ifj.kkeksa ds vk/kkj ij fopkj fd;k tkuk pkfg;sA’’

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It is clear from this circular that the petitioner obtained Higher Secondary degree and his name has to be considered for the promotion. The petitioner filed application (Annexure-P/4) only after four days of cut off date, but neither his name was considered nor his application was forwarded for Promotional Committee. The act of respondent is against the service jurisprudence and against this circular of the State Government.

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It is clear from the gradation list that the petitioner was senior to respondent No. 3 in gradation list and he possess all certificates as per required qualifications.

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As such looking to the facts and circumstances of the case, this petition is allowed and the respondent authorities are directed to consider the case of the petitioner for promotion and if he possess all qualifications promotion be given to the petitioner and his original seniority be maintained from the back date when his junior was promoted as per AnnexureP/1 dated 09.06.2014 with all consequential benefits. This exercise must be completed within four months from the

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receipt of copy of this order.

Sd/-

(Rajani Dubey)

Judge

Uttej

Limendra Singh Rathore v. State Of Chhattisgarh and Ors.

Case brief

What is this about?

What did the court decide?

Limendra Singh Rathore v. State Of Chhattisgarh and Ors.

Case brief

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What did the court decide?

What the court decided

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