Sampat Ram Toppo Vs State of Chhattisgarh

iii. To kindly direct the respondents to accept the recommendation of Departmental Promotion Committee held on 07/11/2005 and promote the petitioner with all consequential benefits from the date of recommendation made by the DPC.

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iv. To kindly direct the respondents to consider the case of the petitioner for grant of upgdation pay scale to the post of Stenographer GradeIII from the date of completion of 7 years of service as has been granted to other steno typist.

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v. To kindly make any other order that may be deemed fit and just in the facts and circumstances of the case including awarding of the costs to the petitioner.”

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Facts of the case, in a nutshell, are that the petitioner was appointed as a Steno Typist in the respondent department by order dated 21.06.1993 and since then has been continuously discharging his duties with utmost sincerity, dedication and integrity. The respondent State framed the M.P. (Chhattisgarh) Class III (Ministerial) Forest Service Recruitment Rules under Article 309 of the Constitution of India; however, with the passage of time, it was noticed that no promotional avenue was provided for employees holding the post of Steno Typist, resulting in stagnation and denial of career progression. This anomaly was examined by the Chowdhri Commission, which recommended that Steno Typists who had passed the requisite examination of 100 words per minute and had completed seven years of service

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be promoted to the post of Stenographer in the revised pay scale. The said recommendation was accepted by the State Government and implemented through circular dated 18.02.1983, which was further clarified by circular dated 04.02.1985, affirming the entitlement of Steno Typists to promotion upon completion of seven years of service. Despite the issuance of the aforesaid circulars, no effective steps were taken by the respondent department to extend the promotional benefits to Steno Typists. Even after more than a decade, the Singh Deo Committee was constituted, which again examined the issue and recommended promotion of Steno Typists to the post of Stenographer. The State Government accepted these recommendations and issued a circular dated 14.05.1997, directing all departments, including the Forest Department, to amend their service rules by incorporating provisions for promotion of Steno Typists to the post of Stenographer. This was followed by another circular dated 24.02.1998, whereby all departments were once again directed to carry out the necessary amendments, with the amended M.P. Secretariat Service Recruitment Rules, 1977 being provided as a model for guidance. Thereafter, the State Government issued yet another circular dated 17.06.1998, deciding that 50% of the posts of Stenographers would be filled by promotion from amongst eligible Steno Typists and the remaining 50% by direct recruitment, and also directed preparation of a separate seniority list for Steno Typists. The petitioner, having completed seven

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years of service in the year 2000, along with other similarly situated employees, submitted representations seeking promotion. Acting upon such representations, respondent No. 03 constituted a Departmental Promotion Committee, which, on 07.11.2005, found the petitioner eligible for promotion to the post of Steno Grade-III. Subsequently, respondent No. 03, by letter dated 09.12.2005, informed respondent No. 02 that 37 posts of Steno Grade-III were available at the State level and could be filled by promotion. However, respondent No. 02 failed to act upon the recommendations of the Departmental Promotion Committee as well as the availability of vacancies, compelling the petitioner to submit several further representations, which also remained unattended. Left with no alternative, the petitioner, along with other similarly situated employees, approached this Court by filing WPS No. 7221 of 2009. During the course of hearing, the State Government categorically submitted that the case of the petitioner and others would be considered in the light of the memo dated 09.12.2005. Recording such submission, this Court disposed of the writ petition on 10.08.2021, directing respondent No. 02 to consider and decide the representation of the petitioner within a period of 60 days. In the meantime, the petitioner was promoted to the next higher post in the year 2013. However, in purported compliance of the aforesaid order, respondent No. 02 passed the impugned order dated 21.12.2021, rejecting the petitioner’s claim for promotion from the date of his eligibility, while at the same time

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admitting delay and lapses on the part of the department in incorporating and implementing the required amendments as directed by various committees and circulars issued by the State Government. The petitioner further submits that similarly situated Steno Typists in other departments have been granted promotion or upgradation from the date of completion of seven years of service. One such instance is of Shri P.K. Sharma, who was promoted to the post of Stenographer by order dated 09.07.1986. Likewise, various other departments have extended promotional and upgradation benefits to their Steno Typists, including the District Collector, Bemetara, who granted upgradation to a Steno Typist by order dated 11.11.2021, and the Directorate of Animal Husbandry, which promoted three Steno Typists to the post of Stenographer Grade-III by order dated 05.01.2004. The petitioner contends that despite being similarly situated and fully eligible, he has been arbitrarily denied the same benefits, resulting in hostile discrimination, which is illegal, unjust and violative of Articles 14 and 16 of the Constitution of India.

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Learned counsel for the petitioner submits that the impugned order is ex facie illegal, arbitrary and unsustainable in the eyes of law and, therefore, deserves to be quashed. It is contended that the respondents have acted in a mechanical and unreasonable manner, without properly appreciating the relevant facts, binding circulars and settled principles of service jurisprudence, thereby causing grave prejudice to the petitioner. It is further submitted

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that the respondents have failed to appreciate that Steno Typists working in other departments of the State Government have been granted the benefit of promotion or upgradation to the post of Stenographer, whereas the petitioner has been singled out and denied similar benefits without any rational basis or lawful justification. Such differential treatment, it is argued, amounts to hostile discrimination and is violative of Articles 14 and 16 of the Constitution of India. Learned counsel submits that in the earlier round of litigation, the respondent State itself made a categorical statement before this Court that the case of the petitioner would be considered in the light of the recommendation made by respondent No. 03 vide memo dated 09.12.2005 for promotion to the post of Stenographer Grade-III. Despite such an assurance and the consequent directions of this Court, the respondents have denied the petitioner his rightful claim, which not only renders the impugned order unsustainable but also reflects a contemptuous disregard of the submissions made before this Court. It is also submitted that the District Collector, Bemetara, has already granted the benefit of upgradation to a Steno Typist by providing the pay scale of Stenographer Grade-III from the date of completion of seven years of service. In view of such precedent within the State administration, the petitioner, being similarly situated, is entitled to the same treatment, and denial thereof is arbitrary and discriminatory. Learned counsel further submits that the petitioner has been deprived of his fundamental right to be

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considered for promotion, which is an integral facet of Articles 14 and 16 of the Constitution. The petitioner has been continuously working on the post of Steno Typist since his initial appointment without any effective promotional avenue, resulting in stagnation of service, which is impermissible in law and contrary to constitutional guarantees. It is argued that the Hon’ble Supreme Court, in a catena of decisions, has consistently held that the right to be considered for promotion is a fundamental right of an employee and that the State is under a constitutional obligation to provide reasonable promotional avenues. The respondents, despite repeated recommendations of expert committees and issuance of binding circulars, have failed to discharge this obligation in the case of the petitioner. Learned counsel submits that similarly situated persons in the Forest Department itself have been promoted to the post of Stenographer, whereas the petitioner has been denied promotion at the relevant time, which amounts to clear violation of Article 14 of the Constitution of India. Such arbitrary action cannot be sustained merely on administrative convenience or inaction. It is further submitted that the Departmental Promotion Committee had duly considered the case of the petitioner and found him fit for promotion. Due to the alleged non-availability of posts at the circle level, respondent No. 03 sought further instructions from respondent No. 02. However, respondent No. 02 deliberately failed to take any decision, despite the existence of several vacant posts of Stenographer, as evident

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from the seniority list, thereby causing undue delay and injustice to the petitioner. Learned counsel places reliance on the judgment of the Hon’ble Supreme Court in Dr. Ms. O.Z. Hussain v. Union of India [1990 (Supp) SCC 688] , wherein it has been held that promotion is a normal incidence of service and that denial of promotional avenues to one category of employees, while extending the same to similarly situated employees in other departments, is unjustified and contrary to the concept of a welfare State. It is submitted that the respondents have failed to adhere to these principles. Reliance is also placed on the decision of the Hon’ble Supreme Court in State of Tripura & Ors. v. K.K. Roy [(2004) 9 SCC 65] , wherein it was held that the State, being bound by its constitutional obligations under Articles 14 and 16, cannot deny promotional avenues to its employees and cannot take shelter under the plea that the employee accepted appointment knowing that there was no promotional channel. The respondents’ conduct, it is submitted, is squarely hit by the ratio laid down in the said judgment. Lastly, learned counsel submits that throughout his service career, the petitioner has never been communicated any adverse remarks or deficiencies. In the absence of any adverse material, the respondents cannot justify the denial of promotion to the petitioner, and the impugned action is therefore wholly arbitrary, illegal and liable to be set aside.

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Learned State counsel, at the outset, submits that the present writ petition, as framed and filed, is wholly misconceived, devoid of

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merit and substance, and therefore liable to be dismissed. It is contended that the petitioner has failed to demonstrate the existence of any enforceable legal or fundamental right warranting issuance of a writ by this Court, and the petition is merely an attempt to seek retrospective benefits contrary to the applicable statutory rules. It is further submitted that the petitioner, along with two others namely S.C. Sharma and P.L. Kachhi, had earlier approached this Court by filing WPS No. 7221 of 2009, wherein the grievance pertained to non-consideration of their cases for promotion to the post of Stenographer Grade-III pursuant to the recommendation memo dated 09.12.2005. The said writ petition was disposed of by this Court on 10.08.2021 with a limited direction to the respondent authorities to consider and decide the representations of the petitioners in the light of the said memo. Learned State counsel submits that in strict compliance of the aforesaid directions, the representations submitted by the petitioner and the other concerned employees were duly examined by the competent authority, namely the Principal Chief Conservator of Forests, Chhattisgarh, Raipur. After considering all relevant circulars, government orders, and the statutory provisions contained in the Chhattisgarh Tritiya Shreni (Lipik Vargiya) Van Sewa Bharti Niyam, 1978 and the amended Rules of 2012, a reasoned and speaking order dated 21.12.2021 was passed, rejecting the claim of the petitioner. It is emphasized that the impugned order does not suffer from any illegality, arbitrariness or

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perversity. It is further submitted that under Schedule-II of the 1978 Rules, the post of Stenographer was originally a 100% direct recruitment post, and only pursuant to the recommendations of the Singh Deo Committee and the subsequent amendment, 50% of the posts were made available for promotion from the post of Steno Typist subject to fulfillment of eligibility conditions and availability of vacancies. In the Departmental Promotion Committee meeting held on 07.11.2005, the cases of the petitioner and other eligible candidates were duly considered; however, no regular vacancy was available in the concerned circle, and the two available posts were reserved for backlog vacancies. Consequently, the matter was referred to the State level authorities. Learned State counsel submits that after the amendment of the Rules in 2012, promotions were effected strictly in accordance with the amended statutory provisions, and the petitioner was duly promoted to the post of Stenographer Grade-III vide order dated 26.03.2013. Thus, even prior to the disposal of WPS No. 7221 of 2009, the case of the petitioner had already been considered and finalized as per rules. The petitioner’s claim for retrospective promotion and consequential benefits is therefore untenable, as promotions cannot be granted with retrospective effect in the absence of an enabling statutory provision. In view of the aforesaid facts and settled legal position, learned State counsel submits that the impugned order dated 21.12.2021 is legal, valid and well reasoned, and the present

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petition does not call for any interference by this Court. Accordingly, the writ petition deserves to be dismissed.

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I have heard learned counsel for the parties and have also perused the documents enclosed along with the petition.

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The grievance of the petitioner is confined to denial of promotion from a retrospective date along with consequential benefits. According to him, the delay was attributable to the respondents and similarly situated employees in other departments were granted such benefits. On the strength of these submissions, the petitioner has sought retrospective promotion and upgradation.

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It is well settled that promotion is governed by the applicable statutory service rules. Unless the rules specifically provide for retrospective promotion, no employee can claim promotion from a back date as a matter of right. At best, an employee has a right to be considered for promotion in accordance with the rules in force, but not a vested right to be promoted retrospectively.

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In the present case, under the Chhattisgarh Tritiya Shreni (Lipik Vargiya) Van Sewa Bharti Niyam, 1978, as amended, the post of Stenographer was initially a 100% direct recruitment post. Only after amendment of the rules, promotional quota was introduced and promotions were thereafter effected strictly in accordance with the amended statutory provisions. The petitioner was admittedly promoted to the post of Stenographer Grade-III vide order dated 26.03.2013 in accordance with the rules then in force. The impugned order dated 21.12.2021 reveals that the competent

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authority considered the petitioner’s claim in compliance of the earlier direction of this Court and, after examining all relevant circulars, recommendations of committees and the statutory rules, rejected the claim for retrospective promotion. This Court does not find any perversity, arbitrariness or illegality in the said order. Merely because certain employees in other departments were granted promotion or upgradation from an earlier date, the petitioner cannot claim parity unless it is shown that such benefits were granted strictly in accordance with identical statutory provisions. Equality under Articles 14 and 16 of the Constitution does not envisage negative equality, nor does it permit perpetuation of an illegality, if any, committed in other cases. The contention of the petitioner that delay on the part of the department entitles him to retrospective promotion cannot be accepted. It is a settled principle of service jurisprudence that promotion cannot be granted from a retrospective date in the absence of an enabling rule, even if there was administrative delay. At best, such delay may entitle an employee to consideration or notional benefits, but not actual retrospective promotion with all consequential benefits.

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In view of the aforesaid discussion, this Court is of the considered opinion that the petitioner has failed to make out any legal or constitutional right for grant of promotion from a retrospective date. The impugned order dated 21.12.2021 is legal, reasoned and in consonance with the applicable service rules.

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