Ram Niwas Sahu Vs State of Chhattisgarh

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2025:CGHC:31869

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AFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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WPS No. 3369 of 2021

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Reserved on : 24.04.2025

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Delivered on : 10.07.2025

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Ram Niwas Sahu, S/o Ganpat Ram Sahu, Aged About 40 Years Working As Teacher (L.B.) At Govt. Twd Middle Shcool Shivpur, B.E.O. Ramanujnagar District Dhamtari Chhattisgarh.

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--- Petitioner

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versus

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1 - State of Chhattisgarh, Through The Secretary, Department of School Education, Mantralaya, Mahanadi Bhawan, Atal Nagar Nawa Raipur District Raipur Chhattisgarh.

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2 - The Secretary, Department of Panchayat And Rural Development, Mantralaya, Mahanadi Bhawan, Atal Nagar, New Raipur District Raipur Chhattisgarh.

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3 - Joint Director, Directorate of Public Instructions, Surguja Division, District Surguja Chhattisgarh.

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--- Respondents

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and

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WPS No. 2408 of 2024

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Ram Niwas Sahu, S/o Lt. Ganpat Ram Sahu, Aged About 45 Years, Occupation Service, Posted As Teacher (L.B.) At Government Middle School, Shivpur District Surajpur (C.G.)

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--- Petitioner

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Versus

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1 - State of Chhattisgarh Through Secretary, Panchayat And Rural Development, Mahanadi Bhawan, Atal Nagar, Naya Raipur, Revenue & Civil District Raipur (C.G.)

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2 - State of Chhattisgarh Through The Secretary, School Education Department, (E) And (T) Mahanadi Bhawan, Atal Nagar, Naya Raipur, Revenue & Civil District Raipur (C.G.)

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3 - Director Directorate Public Instruction Indrawati Bhawan, Atal Nagar, Naya Raipur, District Raipur (C.G.)

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4 - Zila Panchayat Surajpur Through Its Chief Executive Officer, District Surajpur (C.G.)

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ARUN KUMAR DEWANGAN

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Digitally signed by ARUN KUMAR DEWANGAN Date: 2025.07.10 16:46:56 +0530

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5 - Joint Director, Surguja Division Ambikapur Dist. Surguja (C.G.)

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6 - District Education Officer, District Surajpur (C.G.)

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7 - Janpad Panchayat Ramanujnagar Through Its Chief Executive Officer, Dist. Surajpur (C.G.)

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8 - Block Education Officer, Ramanujnagar Dist. Surajpur (C.G.)

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--- Respondents

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Petitioner in Person	: Mr. Ram Niwas Sahu
For State	: Mr. Kalpesh Ruparel, Panel Lawyer
For Respondent No. 4	: Mr. Om Prakash Sahu, Advocate
(in WPS No. 2408 of 2024)

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Hon'ble Shri Narendra Kumar Vyas, J.

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CAV ORDER

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Since common question law and facts are involved in both the writ petitions, they heard analogously and are being decided by this common order.

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WPS No. 3369/2021 has been filed by the petitioner assailing the order dated 25.03.2021 passed by respondent No. 3 by which representation of the petitioner for grant of time bound pay scale has been rejected.

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WPS No. 2408/2024 has been filed by the petitioner assailing the order dated 09.02.2024 passed by respondent No. 3 by which representation of the petitioner for granting him promotion to the post of Lecturer (Hind) or Lecturer (Mathematics) has been rejected.

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The brief facts in WPS No. 3369/2021 as reflected from the record are that:-

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(A) The petitioner was appointed on the post of Shiksha Karmi GradeIl (Mathematics) in pay scale of Rs. 4500-125-7000 and posted at Middle School Podi, Surajpur on 29.05.2009 (Annexure P/2) as per the Chhattisgarh Panchayat Shiksha Karmi (Recruitment and Service

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Condition) Rules, 2007 (for short “the Rules, 2007”) and his services have been regularized on 08.06.2011 (Annexure P/8). The department of Finance and Planning, Government of Chhattisgarh issued clarification on 10.08.2009 clarifying the earlier circulars issued by the State Government on 28.04.2008 & 15.01.2009 regarding grant of time bound pay scale to Government employees after completion of 8 & 16 years for members of cadre-A & B respectively and for cadre-C 10 & 20 years. The clarification was sought whether any Government servant who has been directly appointed in the department which is included in the list of recognized department for grant of time bound pay scale then his previous appointment in any of the department or his past service will be counted for calculating the period for time bound pay scale. It has been further clarified that the direct recruited posts will be treated as first appointment for grant of first time bound pay scale only and the incumbent is not entitled to get the first time bound pay scale unless he fulfills the requisite length of service as mentioned in the circular issued by the State Government.

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(B) It is case of the petitioner that the State Government vide circular dated 10.03.2017 has issued direction for grant of first time bound pay scale and second time bound pay scale to Assistant Teachers after completion of 10 years & 20 years of service by reducing it from 12 years & 24 years, as such, the petitioner should be granted time bound pay scale. It is further case of the petitioner that the State Government has absorbed the Shiksha Karmi working in various schools run by the Panchayat to School Education Department vide

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order dated 30.06.2018 with effect from 01.07.2018 on certain conditions which read as under:-

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“3- f’k{kd ¼,y-ch-½ laoxZ dks fnukad 01 tqykbZ 2018 ls 7osa osru vk;ksx dh jkT; 'kklu }kjk le;≤ ij Lohd`r vuq’kalkvksa ds vuq:i osru ,oa vU; lqfo/kk,sa ns; gksaxhA

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4- f’k{kd ¼,y-ch-½ laoxZ dks ns; leLr ykHk ds fy;s lsok dh x.kuk lafofy;u fnukad 01 tqykbZ 2018 ls dh tk;sxhA

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5- fnukad 01 tqykbZ 2018 ds iwoZ dh vof/k ds fy;s fdlh Hkh izdkj ds ,fj;lZ dh ik=rk ugha gksxhA”

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(C) The petitioner filed writ petition before this Court which is registered as WPS No. 966/2021 and this Court vide order dated 05.03.2021 while deciding the case, has directed the Director, Directorate of Public Instruction, Raipur to take appropriate steps so far as grant of Kramonnati/Time Scale Pay to the petitioner on completion of 10 years of service as per memo dated 09.10.2019 memo written by Under Secretary, School Education Department to Director, Directorate of Public Instruction. In pursuance of the said order, the petitioner submitted a representation before respondent No. 3 on 12.03.2021 which has been rejected vide order dated 25.03.2021. Hence, this petition has been filed challenging the order dated 25.03.2021 (Annexure P/1) as well as for grant of time bound pay scale as he has already completed 10 years of service.

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Respondents No. 1 to 3/State in WPS No. 3369/2021 have filed their return mainly contending that the petitioner failed to show the existence of any right for the enforcement of which a writ may be issued by this Court. It has been further contended that the petitioner was initially appointed to the post of Shiksha Karmi Grade-II by the concerned Zila Panchayat in the year 2009 and his services have

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been regularized as per the provisions of the Chhattisgarh Shiksha Karmi (Recruitment & Conditions of Service) Rules, 2012. It is further contended that the respondents have earlier issued the order dated 02.11.2011 whereby those Shiksha Karmis who have completed 10 years of services have been granted benefit of Kramonnati but the order dated 02.11.2011 has been modified vide circular dated 17.05.2013 and the State Government has taken a policy decision to grant pay scale at par with the Government Teachers. The circular further provides that after revision of pay, the teachers will be granted annual increment after two years which is payable after completion of 8 years of service w.e.f. 01.05.2013. Thereafter, the State Government issued another order dated 14.11.2014 cancelling the order dated 02.11.2011 with retrospective effect from 01.05.2013 in view of pay scale at par with the Government Teacher. Later on another order has been issued by the State Government clarifying that though in the earlier order dated 14.11.2013 it has been retrospectively cancelled but it will be effective from 01.11.2011 to 30.04.2013 and the Teachers (Panchayat) will be entitled to get benefits of Kramonnati for this period. The relevant part of the circular dated 28.04.2015 reads as under:-

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“iapk;r f’k{kkdehZ ¼HkrhZ rFkk lsok dh 'krsZ½ fu;e] 1997 izHkko’khy jgk gSA bl HkrhZ fu;e ds rgr~ ftyk iapk;rksa }kjk f’k{kkdehZ oxZ 01 ,oa oxZ 02 rFkk tuin iapk;rksa }kjk f’k{kkdehZ oxZ 03 dh fu;qfDr dk izko/kku jgk gSA

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2& foHkkxh; vkns’k dzekad@iapk-@iaxzkfofo@22@2011@1094] fnukad 0211-2011 }kjk f’k{kd ¼iapk;r½ laoxZ ¼f’k{kkdfeZ;ksa½ dsk dzeksUUfr osrueku Lohd`r fd;k x;k] tks fnukad 01-11-2011 ls izHkko’khy gqvkA

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3& foHkkx vkns’k dzekad@iapk-@iaxzkfofo@22@2012@3597] fnukad 01-052012 dks f’k{kd ¼iapk;r½ laoxZ ds deZpkfj;ksa dks le;eku osrueku fn;s tkus dh Lohd`rh iznku dh xbZ] tks fnukad 01-04-2012 ls ns; gSA

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4& foHkkx vkns’k dzekad ,Q 6&36@iaxzkfofo@22&2@2013] fnukad 17-052013 }kjk f’k{kd ¼iapk;r½ laoxZ ds deZpkfj;ksa dks ’kkldh; f’k{kdksa ds lerqY; osrueku fnukad 01-05-2013 ls Lohd`r fd;k x;k gSA

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5& foHkkx ds dzekad@iapk-&411@iaxzkfofo@22@2014] fnukad 14-112014 }kjk xzkeh.k {ks=ksa esa lapkfyr ’kkykvks a esa dk;Zjr f’k{kkdfeZ;ksa dh dzeksUufr osrueku dsa laca/k esa vkns’k tkjh fd;k x;k gSA bl vksn’k ds rgr jkT; ’kklu }kjk foHkkx ds vkns’k dzekad@iapk@iaxzkfofo@22@2011@1094] fnukad 02-11-2011 dks fnukad 01-05-2013 ls Hkwry{kh izHkko ls fujLr fd;k x;kA vFkkZr fnukad 01-11-2011 dk dzeksUUkfr vkns’k 30-04-2013 rd izHkko’khy jgk gSA

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mijksDr nf’kZr rF;ksa dks n`f"Vxr j[krs gq, bu deZpkfj;ksa dks fu;eksa ds rgr~ dzeksUufr osrueku esa ns; LoRoksa dh ik=rk gksxhA”

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It is further contended that the policy decision of the State Government cannot be interfered with by this Court as the petitioner is unable to point out any illegality or breach of fundamental rights of the petitioner or the policy decision is against any Constitutional provisions. It has been further contended that as per the policy decision taken by the State Government, the past service of the petitioner as Shiksha Karmi is not liable to be counted for grant of any service benefit. It has been further contended that the petitioner has not challenged the policy decision of the State Government, therefore, the petitioner is not entitled to get any relief and the writ petition deserves to be dismissed.

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The petitioner in person through his written submission would submit that there is no reference of order dated 02.11.2011 in the order issued on 01.05.2013 or 28.04.2015, as such, he is entitled to get benefit of time bound pay scale. It has also been contended that in view of order issued by the State Government on 01.05.2013 or 28.04.2015, the order dated 02.11.2011 cannot be held to be cancelled automatically unless specific order in this regard is passed. He has also filed rejoinder contending that due to his absorption in School Education Department, his pay has been degraded causing loss to him and he

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has prayed for taking the rejoinder on record as well as prayed for allowing the petition.

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Learned State counsel would submit that though in the subsequent circular issued on 28.04.2015, the earlier circular dated 02.11.2011 has been protected upto 30.04.2013 and on that date also, the petitioner has not completed requisite service of 10 years for grant of first time bound pay scale, as such the petitioner is not entitled to get any relief. He would further submit that the judgment of Hon’ble Division Bench is not applicable to the present facts of the case on the count that in that case, the petitioner therein had completed 10 years of service at the time of withdrawal of the circular/order dated 10.03.2017 as she was appointed on 29.07.2005, as such she was entitled to get the Kramonnati after completion of 10 years of service whereas in the present case, the petitioner was appointed on 29.05.2009, as such the petitioner is not entitled to get any relief as he has not completed 10 years of service on 10.03.2017 and would pray for dismissal of the writ petition.

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The brief facts in WPS 2408 of 2024 as reflected from record are that:-

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(A) The petitioner was appointed on the post of Shiksha Karmi GradeII vide order dated 29.05.2009 and joined his services on 08.06.2009. As per the Schedule-II of Rules, 2007, the qualification is required for appointment on the post of Shiksha Karmi Grade-II, the candidate should be graduate with second class and B.Ed. The said rules were repealed by the Chhattisgarh Shikshak Panchayat (Cadre Recruitment & Service Conditions) Rules, 2012. As per the present rule, the post of Shiksha Karmi Grade-III, II & I have been replaced as Assistant

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Teacher (Panchayt), Teacher (Panchayat) & Lecturer (Panchayat) with the respective pay scale. The qualification for appointment on the posts has been prescribed in appendix attached with the rules and mentioned in Schedule-II of the said rules. The qualification prescribed for appointment on the post of Teacher (Panchayat) is graduation with 2 years diploma in Elementary Education or graduation with 50% marks or one year graduation in B.Ed. The qualification for Lecturer (Panchayat) has been prescribed as Post Graduation in the respective subject with B.Ed. For Mathematics subject, the qualification for promotion has been prescribed as post graduation in Mathematics/ applied Mathematics.

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(B) The petitioner completed 7 years of service on 08.06.2016, as such he was eligible for promotion but the respondent authority didn't consider the case of the petitioner for promotion. The petitioner was eligible for promotion but without considering his case for promotion, his services have been absorbed by the School Education Department as per the policy decision dated 30.06.2018. It is also case of the petitioner that on 31.12.2021 the State Government issued order regarding one time relaxation for promotion on the post of Lecturer from Teacher/Teacher(L.B.)/Primary Headmaster but respondent authority didn't consider his case, therefore, the petitioner submitted a representation before respondent No. 4/appointing authority on 19.01.2022, thereafter, respondent No. 4 wrote a letter on 31.01.2022 to respondent No. 7 & 8 to submit report within 3 days after examining the case of the petitioner but they have not considered the case of the petitioner, therefore, he has filed WPS No. 8237 of 2023 before this

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Court, which has been disposed of by this Court vide order dated 10.01.2023 by directing respondent No. 3 to consider the case of the petitioner within 45 days from the date of receipt of copy of this order in accordance with the law and relevant rules/circular but the said order has not been complied with by the respondents, therefore, a Contempt petition was filed and only thereafter the respondent No. 3/Director Public Institution has decided the representation of the petitioner vide order dated 09.02.2024 by recording its finding that as per the seniority list as on 01.04.2022 issued on 16.11.2022, in the final modified gradation list, the name of the petitioner has been mentioned at Serial No. 3074 and for Mathematics subject, only 20% posts were found vacant and in the year 2021, no proceedings for promotion have been carried out, therefore, the petitioner cannot be granted the benefit of promotion and seniority on the post of Lecturer. It is pertinent to mention here that the respondent has also rejected the prayer of the petitioner for grant of benefits of order dated 31.12.2021 by which essential length of service for considering the case for promotion of Teacher (LB) has also been rejected in view of the policy decision dated 30.06.2018 taken by the State Government on 26.10.2023. Hence, this petition has been filed for quashing of the order dated 09.02.2024 (Annexure P/1) and order dated 26.10.2023 (Annexure P/2) for grant of promotion on the post of Lecturer (Mathematics) w.e.f. 01.04.2020 or Lecturer (Hindi) w.e.f. 08.06.2016.

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Respondents No. 1, 2, 3, 5, 6 & 8/State in WPS No. 2408/2024 have filed their return mainly contending that the instant petition is not maintainable on the ground that the petitioner has not arrayed all

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those persons who are necessary and proper party for adjudication of the case, who have been promoted, their seniority will be adversely affected, hence, the petition for non-joinder of necessary party is liable to be dismissed. It is further contended that the reliefs sought by the petitioner also suffer from delay and latches as the petitioner is claiming promotion after completion of 8 years of their services which has been completed in the year 2017, but the instant petition has been filed by the petitioner in the year 2024. Hon’ble the Supreme Court in case of P.S. Sadasivaswamy Vs. State of Tamil Nadu [AIR 1974 SC 2271] has held in paragraph 2 that a person aggrieved by an order of promoting a junior over his head should approach the court at least within six months or at the most a year of such promotion. Though there is no period of limitation for the Courts to exercise their powers conferred under Article 226 of the Constitution of India but it should be expedient that the employee who has been superseded should knock the door of the Court to ventilate his grievance immediately.

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It has been further contended that as per the circular dated 30.06.2018 issued by the State Government, the services of the petitioner have been absorbed in the School Education Department with effect from 01.07.2018 wherein clause No. 4 of the aforesaid circular clearly stipulates that for the purpose of extending the service benefits, the services of Teacher (LB) would be counted from the date of absorption i.e. 01/07/2018. It is further contended that subsequent to aforesaid policy dated 30.06.2018, on 06.07.2018 a clarification / instruction / guideline was issued with regard to determination of seniority of the Teacher (Panchayat/ Local Body) whereby clause 4 clearly provides

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that the seniority list of Teacher (Panchayat/ Local Body) should be prepared in accordance with Appendix-III which clearly contains the date of appointment of the teacher on the post from which the absorption is to be done. Further, clause 6 provides that a consolidated seniority list in the Appendix - II, III and IV shall be prepared by the concerned Chief Executive Officer, Zila Panchayat which also contains the date of appointment of the teacher on the post from which the absorption is to be done. Further, clause 7 provides that the consolidated seniority list of Assistant Teacher (Panchayat/Local Body) and Teacher (Panchayat/ Local Body) shall be prepared and published by the concerned District Education Officers. Clause 8 provides that a consolidated seniority list of Lecturer (Panchayat/Local Body) shall be prepared by the Nodal Officer (concerned District Education Officer) and forwarded to the Director, Public Instructions, Raipur. A bare perusal of the aforesaid clarification /instruction dated 06.07.2018 would clearly reflect that for determination of seniority of Teacher (LB) into the School Education Department, the State Government has framed the method according to which, the seniority of absorbed teachers shall be determined on the basis of length of services/ the date of initial appointment as provided by the concerned Zila Panchayat and from the date of joining at the transferred place of posting in case of transfer.

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It is further contended that pursuant to the aforesaid clarification/instruction dated 06.07.2018, the seniority of absorbed teachers (LB) has been determined in the School Education Department while preparing the gradation list after the absorption of

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their services in the School Education Department and in light of the aforesaid clarification / instruction dated 06.07.2018, the petitioner has been placed at appropriate position at serial No. 5083 in the gradation list by considering the seniority from the date of his appointment on the post of Teacher (Panchayat).

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It is further contended that pursuant to the provisions contained in the Rules 2019, the respondents have initiated the proceedings for grant of promotion to the post of Lecturer (LB) for which the direction has been issued on 05.07.2024 to all the Divisional Joint Directors of Education Department to provide the service records of the eligible candidates like ACR of last 5 preceding years etc. A bare perusal of the chart appended to the said direction would clearly reflect that in the stream of Mathematics subject, the Teachers (LB) whose names are mentioned at serial No. 121 to 5214 have been considered for promotion to the post of Lecturer (LB) (Maths). It is further contended that as the name of the petitioner finds place at serial No. 5083 of the gradation list, certainly the name of the petitioner would be considered for promotion and the petitioner would be granted promotion in case he fulfills the criteria fixed by the Departmental Promotion Committee and would pray for dismissal of the writ petition.

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Respondent No. 4 in WPS No. 2408/2024 has contended that as per the Chhattisgarh Gazette (Extraordinary) notification dated 17.08.2012 and the Chhattisgarh Teacher (Panchayat) Cadre (Recruitment and Service Conditions) Rules, 2012, Schedule III, Note - 01, the process of promotion is carried out by the Zila Panchayat upon receiving the availability of posts from the Education Department. Accordingly, at

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that time, the District Education Officer, Surajpur, provided 36 available posts for promotion in the subject of Hindi. Accordingly, 36 teachers (Panchayat) were promoted to the post of Lecturer (Panchayat) on 05.12.2015 and 07.05.2016. Since only 36 posts were made available by the District Education Officer, Surajpur, for promotion in Hindi for that year only, the case of the petitioner could not be considered as the petitioner was found place at serial number 172 of the gradation/seniority list which is below the candidates whose cases have been considered for promotion, therefore, he was not eligible for promotion.

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It is further contended that as per the letter from the District Education Officer, Surajpur on 30.12.2016, instructions were received stating that promotions could only be carried out upon the availability of posts from the Government level. Subsequently, as per the letter dated 28.07.2017 issued by Directorate of Panchayat, New Raipur, dated 28.07.2017, total 66 posts were made available for promotion in various subjects. However, the number of posts available for the Hindi subject was Nil. Thereafter, due to non-availability of vacant posts for promotion in the Hindi subject and subsequent merger of Panchayat Shiksha Karmi with the School Education Department effective from 01.07.2018, the promotion process for the posts of Lecturer (Panchayat) in the Hindi subject could not be carried out. So far as his grievance for promotion as Lecturer (Mathematics) is concerned, it is quite vivid that the petitioner has completed post gradation in Mathematics in the year 2021 only and at that time, the Shiksha Karmi’s cadre has been merged with the State Government, therefore,

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the respondents No. 7 & 8 are not required to consider the case of the petitioner for promotion in the Panchayat Department.

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It is further contended that though the petitioner is claiming promotion after completion of 7 years service on 09.06.2016 but he cannot claim promotion as a matter of right. The promotion is a managerial function which is dependable upon various considerations like availability of vacant posts, requirement of the employer, ACR and qualification. Thus, the petitioner is not entitled to get any relief and it has been prayed for dismissal of the writ petition.

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The petitioner in WPS No. 2408/2024 has filed rejoinder mainly contending that the petitioner was initially appointed on 01.10.2008 and he was again appointed on 29.05.2009 on the post of Shiksha Karmi Grade-II and at present known as Teacher(L.B) from the first joining of the service i.e. 10.10.2008 to till date. It has been further contended that the petitioner possessed B.Ed. degree on 21.05.2008. Before first appointment dated 01.10.2008 he passed MA Hindi Literature in 57% on 31.07.2010 and M.Sc. Mathematics passed in 77.75% on 12.03.2021. It is further contend that the petitioner was entitled for the promotion on the post of Lecture (Panchayat) Hindi as per seniority list, which was put up in the DPC held on 06.11.2015 wherein petitioner’s name was found place at Serial No. 172 but respondent No. 4 has not considered the case of the petitioner for promotion as per Appendix of the appointment and promotion Rule dated 17.08.2012 and Rule of NCTE (1993), (31.10.2009) & (12.11.2014) and would pray for taking rejoinder on record.

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The petitioner in person in WPS No. 2408/2024 would submit that he is eligible for grant of promotion on the post of Lecturer (Panchayat) from Teacher (Panchayat) as per Annexure P/2 and Schedule IV of which provides for promotion to the post of Shiksha Karmi Grade-I after completion of 7 years of teaching experience on the post of Shisksha Karmi Grade-II and B.Ed. qualification along with post graduate degree in the relevant subject. He would further submit that the petitioner has completed the qualification on 08.06.2016 but the respondent authority didn't consider the case of the petitioner for promotion. He would further submit that according to circular dated 16.02.2015 issued by the State Government, the department should conduct meeting of Departmental Promotion Committee every year but respondent authority didn't comply with the circular. He would further submit that the petitioner is eligible for the promotion to the post of Lecturer (Hindi) & Lecturer (Mathematics) from Teacher (L.B) as per circular dated 31.12.2021 issued by the State Government as the vacant post of Lecturer (Mathematics) is already available and would pray for allowing the instant writ petition. To substantiate his submission, he would refer to the judgment rendered by Hon’ble Division Bench of this Court in case of Smt. Sona Sahu Vs. State of Chhattisgarh & others [WA No. 261 of 2023 (decided on 28.02.2024)] and claimed parity at par with the appellant therein.

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On the other hand, learned counsel for the respondents opposing the submissions reiterated the facts mentioned in the return filed by them in their respective return and would submit that the instant petition on

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the count of delay and latches as well as non-joinder of necessary party is liable to be dismissed by this Court with cost.

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I have learned counsel for the parties and perused the documents placed on record with utmost satisfaction.

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From submissions made by the parties, the Point emerged for determination by this Court in WPS No. 3369/2021 is:-

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“Whether the petitioner has completed 10 years of service as on 30.04.2013 or on 10.03.2017 to be eligible for consideration of grant of first time bound pay scale and whether the circular dated 02.11.2011 is still in force or not?”

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From the records, it is not in dispute that the petitioner was appointed as Shiksha Karmi Grade-II on 29.05.2009 and joined on 08.06.2009 as per the Panchayat Rules, 2007. The Panchayat Department has issued its first circular on 02.11.2011 by which, for cadre Teacher (Panchayat) and Shiksha Karmi was issued granting first time bound pay scale after completion of 12 years and second time bond pay scale after completion of 24 years. Subsequently, the Panchayat Department issued circular dated 01.05.2013 regarding pay scale at par with the Government teachers who have completed 8 years of service. Thereafter, another circular dated 14.11.2014 has been issued repealing the earlier circular dated 02.11.2011 on the count that the Teachers in Panchayat Department have already been granted pay scale at par with the Government Teachers, therefore, it has no relevancy and accordingly, it has been cancelled retrospectively. Thereafter another clarification has been issued by the State Government on 28.04.2015 which clarifies that though the circular has been retrospectively cancelled but the circular dated 02.11.2011

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granting time bound pay scale will be remained effective upto 30.04.2013, as such the Teachers employed in the Panchayat Department are allowed to get the benefit of time bound pay scale which has already been granted to them.

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Admittedly, the minimum qualifying service for grant of time bound pay scale is 10 years. The petitioner was appointed on 29.05.2009 vide Annexure P/2, as such when the circular was remained in force upto 30.04.2013, the petitioner has not completed 10 years of service which is basic eligibility criteria to get the pay scale. Tthus, the petitioner is not entitled to get first time bound pay scale. Even Hon’ble the Division Bench of this Court in WA No. 261/2023 has held that in view of circular dated 10.03.2017, she has completed her 10 years of service, therefore, she is entitled for Kramonnati after completion of 10 years of service upto that time also the petitioner has not completed 10 years of service in view of the fact that he was appointed on 29.05.2009 and thereafter his services have been absorbed with the School Education Department in view of policy decision dated 30.06.2018.

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It is pertinent to mention here that the circular dated 30.06.2017 (Annexure P/7) does not deal with the Teachers of Panchayat Cadre as this circular deals with grant of first time bound pay scale and second time bound pay scale to the regular and Government employees only as per circular dated 17.03.1999/ 19.04.1999 issued by the State Government. The circular dated 17.03.1999/19.04.1999 also deals with the time bound pay scale to the Government Servant only and the Shiksha Karmis were not employees of the State Government till their absorption as per the policy decision dated

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30.06.2018 taken by the State Government. The petitioner being an employee of Panchayat Department is not a Government Servant till their absorption with the School Education Department, as such his service condition will be governed by the Rules, 2007, 2012 or any other rules framed under Section 95 of the Panchayat Raj Adhiniyam. The relevant clause of the circular 17.03.1999/19.04.1999, is reproduced below:-

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“fo"k; %&’kkldh; lsodksa ds fy;s dzeksUufr ;kstukA

¶105

jkT; ’kklu us ;g uhfrxr fu.kZ; fy;k gS fd jkT; ’kklu ds izR;sd fu;fer ,oa ’kkldh; deZpkjh@vf/kdkjh dks mlds iwjs lsokdky esa] izos’k ds le; ykxw osrueku ds vfrfjDr de ls de nks mPprj osruekuksa dk ykHk fn;k tk;A

¶106

2- jkT; ’kklu dh lsok esa fu;qDr ,sls leLr deZpkjh tks lacaf/kr lsok Hkjrh fu;eksa ds varxZr fu;fer #i ls fu;qDr fd;s x;s gksa rFkk mlds Ik’pkr~ ,d gh osrueku ¼rRLFkkuh osrueku lfgr½ esa 12 o"kZ vFkok mlls vf/kd dh vof/k ls] fujUrj dk;Zjr gksa] rks mUgsa fuEukafdr ’krksZ ds v/khu] layXu lwph esa n’kkZ;s x;s vuqlkj mPp osrueku esa dzeksUur fd;k tk ldrk gSA ¼d½ ;fn mDr ’kkldh; dehZ dh fu;fer lsok esa fu;qfDr i'pkr dh lsok vof/k 12 o"kZ ls vf/kd ijUrq 24 o"kZ ls de gS] rFkk mls lsok Hkjrh ds le; yxw izkjafHkd osrueku vFkok mlds rRLFkkuh osrueku ds vfrfjDr dksbZ vU; osrueku inksUUfr@dzeksUufr@p;u@vixzs³ djds vFkok vU; fdlh ek/;e ls izkIr ugha gqvk gSA

¶107

¼[k½ ;fn mDr ’kkldh; dehZ dh fu;fer lsok esa fu;qfDr ds Ik’pkr dhs lsok vof/k 24 o"kZ ls vf/kd gS] RkFkk mls esa izos’k ds le; ykxw osrueku ds vfrfjDr ,d ls vf/kd mPprj osrueku inksUUfr@dzeksUufr@p;u@vixzs³’ku vFkok vU; fdlh ek/;e ls u feyk gksA

¶108

¼x½ bl ;kstuk ds varxZr dzeksUufr dk ykHk iznku djus ds fy;s mDr deZpkjh@vf/kdkjh ds foxr 5 o"kksZ ds xksiuh; izfrosnuksa dk ijh{k.k mlh izdkj fd;k tk;sxk ftl izdkj inksUufr ds izdj.kksa esa fd;k tkrk gS] rFkk mi;qDr ik;s tkus ij dzeksUufr dk ykHk fn;k tk;sxkA

¶109

¼?k½ dzeksUur gksus ij osru dk fu/kkZj.k osrueku esa vxyh Lvst ij fu/kkZfjr fd;k tkosxk%

¶110

ijUrq ;fn Hkfo"; esa blh osrueku es inksUufr dh tkrh gS rks mlds mijkar osru fu/kkZj.k ,slk ekurs gq, fd;k tkosxk tSls fd lacaf/kr deZpkjh iwoZ ds osrueku esa gh pyk vk jgk gks rFkk mls dzeksUufr ds QyLo#i osru fu/kkZj.k dk ykHk ugh feyk gksA

¶111

¼p½ bl dzeksUufr ds QyLo#i lacaf/kr vf/kdkjh@deZpkjh ds inuke esa fdlh izdkj dk ifjorZu ugha fd;k tk;sxkA

¶112

Page 19 of 25

¶113

3- ;g vkns’k] bl laca/k esa lacaf/kr foHkkxksa ds Hkjrh fu;eksa esa rRLFkuh la’kks/ku gksus ds fnukad ls ykxw gksxsaA

¶114

4- mijksDr dafMdk 2 esa n’kksZ;s vuqlkj dzeksUufr i'pkr izkIr gksus okyk osrueku] layXu lwph ds dkWye uacj 2 esa n’kkZ;s x;s orZeku osrueku ls lacaf/kr dkWye ua- 3 dk osrueku vFkok mldk rRLFkkuh osrueku] tks Hkh ykxw gks gksxkA

¶115

5- ;g vkns’k foRk foHkkx ds i"Bkadu dzekad 734@,l@110@99@eg@ lh@pkj] fnukad 19&4&1999 }kjk egkys[kkdkj] e/;izsn’k] Xokfy;j dks i"Bk a fdr fd;k x;k gSA”

¶116

The further contention made by the petitioner that the circular dated 02.11.2011 is not cancelled without following the due procedure which is misconceived and deserves to be rejected in view of well settled position of law that the executive instructions which are meant for supplement the rules, can be cancelled or withdrawn by issuing fresh circular cancelling the earlier circular and no specific procedure is required to be followed. It is pertinent to mention here that the specific clause regarding cancellation of circular dated 02.11.2011 has been made in the circular dated 30.04.2013 cancelling earlier circular dated 02.11.2011, as such the contention made by the petitioner is rejected.

¶117

Even the petitioner is claiming parity with the other candidates on the strength of judgment passed by Hon’ble Division Bench of this Court in case of Smt. Sona Sahu (supra) but he is unable to establish that he is at par with the appellant though onus lies upon him only, therefore, he is also not entitled to get the benefit at par with the appellant in case of Smt. Sona Sahu (supra). It is well settled position of law that for claiming parity, burden to prove lies upon the person claiming parity. Hon’ble the Supreme Court in case of State of Punjab & others Vs. Jagjit Singh & others [(2017) 1 SCC 148] had held in paragraph 42.1 as under:-

¶118

Page 20 of 25

¶119

“42.1 The ‘onus of proof’, of parity in the duties and responsibilities of the subject post with the reference post, under the principle of ‘equal pay for equal work’, lies on the person who claims it. He who approaches the Court has to establish, that the subject post occupied by him, requires him to discharge equal work of equal value, as the reference post (see – the Orissa University of Agriculture & Technology case10, Union Territory Administration, Chandigarh v. Manju Mathur15, the Steel Authority of India Limited case16, and the National Aluminum Company Limited case18).”

¶120

Accordingly, the Point emerged for determination in WPS No. 3369/2021 is answered against the petitioner and in favour of the respondents.

¶121

From submissions made by the parties, the Point emerged for determination by this Court in WPS 2408/2024 is :-

¶122

“Whether the petition is liable to be dismissed on the count of non-joinder of necessary parties or on the count of delay and latches.”

¶123

From perusal of records, it is quite vivid that the petitioner has neither pleaded nor made party the persons juniors to him who have been promoted. Thus, the writ petition for want of necessary party, is liable to be dismissed as held by Hon’ble the Supreme Court in case of Vijay Kumar Kaul & others Vs. Union of India & others [(2012) 7 SCC 610] wherein it has been held that the relief cannot be granted since any direction to re-fix seniority is likely to jeopardize interest of those not impleaded. Hon’ble the Supreme Court in paragraph 36 to 39 has held as under:-

¶124

“36. Another aspect needs to be highlighted. Neither before the tribunal nor before the High Court, Parveen Singh and others were arrayed as parties. There is no dispute over the factum that they are senior to the appellants and have been conferred the benefit of promotion to the higher posts. In their absence, if

¶125

Page 21 of 25

¶126

any direction is issued for fixation of seniority, that is likely to jeopardise their interest. When they have not been impleaded as parties such a relief is difficult to grant.

¶127

In this context we may refer with profit to the decision in Indu Shekhar Singh & Ors. v. State of U.P. & Ors.[8] wherein it has been held thus: -

¶128

“56. There is another aspect of the matter. The appellants herein were not joined as parties in the writ petition filed by the respondents. In their absence, the High Court could not have determined the question of inter se seniority.”

¶129

In Public Service Commission, Uttaranchal v. Mamta Bisht & Ors.[9] this Court while dealing with the concept of necessary parties and the effect of non-impleadment of such a party in the matter when the selection process is assailed observed thus: -

¶130

“9. ……. In Udit Narain Singh Malpaharia v. Additional Member, Board of Revenue, Bihar & Anr., AIR 1963 SC 786, wherein the Court has explained the distinction between necessary party, proper party and proforma party and further held that if a person who is likely to suffer from the order of the Court and has not been impleaded as a party has a right to ignore the said order as it has been passed in violation of the principles of natural justice. More so, proviso to Order I, Rule IX of Code of Civil Procedure, 1908 (hereinafter called CPC) provide that nonjoinder of necessary party be fatal. Undoubtedly, provisions of CPC are not applicable in writ jurisdiction by virtue of the provision of Section 141, CPC but the principles enshrined therein are applicable. (Vide Gulabchand Chhotalal Parikh v. State of Gujarat; AIR 1965 SC 1153; Babubhai Muljibhai Patel v. Nandlal, Khodidas Barat & Ors., AIR 1974 SC 2105; and Sarguja Transport Service v. State Transport Appellate Tribunal, Gwalior & Ors. AIR 1987 SC 88).

¶131

In Prabodh Verma & Ors. v. State of U.P. & Ors. AIR 1985 SC 167; and Tridip Kumar Dingal & Ors. v. State of West Bengal & Ors. (2009) 1 SCC 768 : (AIR 2008 SC (Supp) 824), it has been held that if a person challenges the selection process, successful candidates or at least some of them are necessary parties.”

¶132

From the aforesaid enunciation of law there cannot be any trace of doubt that an affected party has to be impleaded so that the doctrine of audi alteram partem is not put into any hazard.”

¶133

Page 22 of 25

¶134

Again Hon’ble the Supreme Court in case of Mukul Kumar Tyagi Vs.

¶135

State of Uttar Pradesh & others [(2020) 4 SCC 86] has held in paragraph 81 as under:-

¶136

“81. The present is a case where the writ petitioners had not raised any challenge to a particular qualification of any individual candidate rather their challenge was that without scrutiny large number of candidates, who were claiming qualification equivalent to CCC certificate have been included without there being any scrutiny and without they fulfil the qualification. The case of the writ petitioners was that the computer certificate issued by the private organisations and unregistered societies, who neither were recognised by the State Government or Central Government or by any statutory body could not issue any certificate. We may further notice that Division Bench also noticed the above argument of nonimpleadment of all the selected candidates in the writ petition but Division Bench has not based its judgment on the above argument. When the inclusion in the select list of large number of candidates is on the basis of an arbitrary or illegal process, the aggrieved parties can complain and in such cases necessity of impleadment of each and every person cannot be insisted. Furthermore, when select list contained names of 2211 candidates, it becomes unnecessary to implead every candidate in view of the nature of the challenge, which was levelled in the writ petition. Moreover, few selected candidates were also impleaded in the writ petitions in representative capacity.”

¶137

Similarly, the petitioner has claimed promotion in the year 2015 & 2016 by filing the petition in the year 2023 i.e. after lapse of more than 7-8 years. Hon’ble the Supreme Court has depreciated the practice of filing writ petition at the belated stage, particularly claiming relief of promotion though no limitation is prescribed but it should be challenged expeditiously, otherwise it will disturb the whole administrative functioning of the department. Hon’ble the Supreme Court in case of Dr. Akshya Bisoi & another Vs. All India Institute of Medical Sciences & others [(2018) 3 SCC 391] has held in paragraph 25 as under:-

¶138

“25. For the above reasons, we have come to the conclusion that the grant of relief would unsettle the inter se seniority

¶139

Page 23 of 25

¶140

between the petitioners and the Fourth respondent well over twelve years since the recommendation of the Selection Committee for appointment as Additional Professors. This cannot be done. Some expressions of opinion in favour of the First petitioner in the departmental processes may have engendered a sense of hope. But that cannot furnish a legal ground to unsettle something that has held the field for long years. We close the proceedings with the expectation that these distinguished doctors will pursue their avocations at AIIMS without rancour. Our decision on seniority is no reflection upon their distinguished service to a premier national institution.”

¶141

¶142

Hon’ble the Supreme Court in case of Ajay Kumar Shukla & others

¶143

Vs. Arvind Rai & others [(2022) 12 SCC 579] has held in paragraph 24 to 26 as under:-

¶144

“24. We may now discuss the law on the point regarding delay in approaching the court and in particular challenge to a seniority list. The learned Single Judge had placed reliance on a judgment of this Court in the case of Shiba Shankar Mohapatra vs. State of Orissa (supra). Dr. B.S. Chauhan, J., after considering the question of entertaining the petition despite long standing seniority filed at a belated stage discussed more than a dozen cases on the point including Constitution Bench judgments and ultimately in paragraph 30 observed that a seniority list which remains in existence for more than three to four years unchallenged should not be disturbed. It is also recorded in paragraph 30 that in case someone agitates the issue of seniority beyond period of three to four years he has to explain the delay and laches in approaching the adjudicatory forum by furnishing satisfactory explanation. Paragraph 30 is reproduced below: -

¶145

“30. Thus in view of the above, the settled legal proposition that emerges is that once the seniority had been fixed and it remains in existence for a reasonable period, any challenge to the same should not be entertained. In K.R. Mudgal, this Court has laid down, in crystal clear words that a seniority list which remains in existence for 3 to 4 years unchallenged, should not be disturbed. Thus, 3-4 years is a reasonable period for challenging the seniority and in case someone agitates the issue of seniority beyond this period, he has to explain the delay and laches in approaching the adjudicatory forum, by furnishing satisfactory explanation.”

¶146

Page 24 of 25

¶147

On the other hand, the Division Bench while shutting out the appellants on the ground of delay relied upon following judgments of this Court.

¶148

(I) Dayaram Asanand Gursahani vs. State of Maharashtra and others

¶149

(ii) B.S. Bajwa and another vs. State of Punjab and others

¶150

(iii) Malcom Lawrence Cecil D’Souza vs. Union of India and others

¶151

(iv) R.S. Makashi and others vs. I.M. Menon and others.

¶152

In the case of Dayaram Asanand Gursahani (supra), there was a delay of 9 years. In the case of B.S. Bajwa (supra), there was a delay of more than a decade. In Malcom Lawrence Cecil D’Souza(supra), the delay was of 15 years and in R.S. Makashi(supra) there was a delay of 8 years. In all these cases, this court has recorded that the delay has not been explained. Shiba Shankar Mohapatra (Supra) is a judgment of 2010, which has laid down that, three to four years would be a reasonable period to challenge a seniority list and also that any challenge (1984) 3 SCC 36 (1998) 2 SCC 523 (1976) 1 SCC 599 (1982) 1 SCC 379 beyond the aforesaid period would require satisfactory explanation”

¶153

Even the respondents have clarified that the petitioner was junior to the candidates who have been promoted on the post of Lecturer (Hindi) and Lecturer (Mathematics) as he has done post graduation in the year 2021 as evident from averments made by the petitioner in the writ petition itself. As such, he was not eligible to be considered for promotion in Mathematics subject in the year 2015-16 but now he has been eligible and the respondents in the return have already stated that the case of the petitioner is likely to be considered along with other candidates for promotion.

¶154

Thus, the writ petition on the count of delay and latches, inability to establish his eligibility for promotion as well as on account of nonjoinder of necessary parity, is liable to be dismissed and accordingly, it is dismissed. However, dismissal of the writ petition will not come in

¶155

Page 25 of 25

¶156

the way of the respondent to consider the case of the petitioner in light of the submission made in the return.

¶157

Accordingly, the Point emerged for determination in WPS No. 2408/2024 is also answered against the petitioner and in favour of the respondents.

¶158

In view of the above, WPS No. 3369/2021 which has been filed by the petitioner for grant of time bound pay scale and WPS No. 2408/2024 which has been filed by the petitioner for grant of promotion to the post of Lecturer (Hind) or Lecturer (Mathematics), are dismissed .

¶159

Sd/-

¶160

(Narendra Kumar Vyas)

¶161

Judge

¶162

Bhumika / Arun

Ram Niwas Sahu v. State of Chhattisgarh

Case brief

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Ram Niwas Sahu v. State of Chhattisgarh

Case brief

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