Chattisgarh High Court
Neelam Singh Thakur vs State Of Chhattisgarh on 15 January, 2025
1
2025:CGHC:2578
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
WPS No. 1824 of 2016
1 - Smt. Santoshi Wadyakar W/o Late Shri Ghanshyam Prasad Wadyakar, Aged
About 38 Years Govt. Higher Secondary School, Tarbahar Bilaspur Chhattisgarh,
Chhattisgarh
--- Petitioner
versus
1 -District Education Officer District Bilaspur Chhattisgah, Chhattisgarh
2 - Director Of Public Instruction, D.P.I. Raipur Chhattisgarh, District : Raipur,
Chhattisgarh
3 - State Of Chhattisgarh Through The Secretary Mahanadi Bhawan, Thana Raipur,
Raipur Chhattisgarh, District : Raipur, Chhattisgarh
--- Respondents
WPS No. 197 of 2020
1 - Neelam Singh Thakur D/o Kunwar Singh Thakur Aged About 43 Years Working
As Peon At Government Middle School, Rengakathera, Block Ambagarh Chowki,
District Rajnandgaon, Chhattisgarh., District : Rajnandgaon, Chhattisgarh
---Petitioner
Versus
1 - State Of Chhattisgarh Through The Secretary, School Education Department,
Mahanadi Bhavan, Mantralaya, Atal Nagar, New Raipur, District Raipur,
Chhattisgarh., District : Raipur, Chhattisgarh
2 - Commissioner Tribal Welfare Department Raipur, District Raipur, Chhattisgarh.,
District : Raipur, Chhattisgarh
3 - Assistant Commissioner Tribal Welfare Department, Rajnandgaon, District
Rajnandgaon, Chhattisgarh., District : Rajnandgaon, Chhattisgarh
2
4 - Joint Director Treasury Account And Pension, Division Durg, District Durg,
Chhattisgarh., District : Durg, Chhattisgarh
[
5 - District Education Officer Rajnandgaon, District Rajnandgaon, Chhattisgarh.,
District : Rajnandgaon, Chhattisgarh
6 - Principal Government Middle School Rengakathera, Block Ambagarh Chowki,
District Rajnandgaon, Chhattisgarh., District : Rajnandgaon, Chhattisgarh
7 - Block Education Officer Ambagarh Chowki, District Rajnandgaon,
Chhattisgsarh., District : Rajnandgaon, Chhattisgarh
--- Respondents
WPS No. 183 of 2020
1 - Rekha Bai W/o Shri Harishchandra Borkar Aged About 47 Years Working As
Peon At Government Higher Secondary School, Bandha Bazar, Block Ambagarh
Chowki, District Rajnandgaon, Chhattisgarh., District : Rajnandgaon, Chhattisgarh
---Petitioner
Versus
1 - State Of Chhattisgarh Through The Secretary, School Education Department,
Mahanadi Bhavan, Mantralaya, Atal Nagar, New Raipur, District Raipur,
Chhattisgarh., District : Raipur, Chhattisgarh
2 - Commissioner Tribal Welfare Department Raipur, District Raipur, Chhattisgarh.,
District : Raipur, Chhattisgarh
3 - Assistant Commissioner Tribal Welfare Department, Rajnandgaon, District
Rajnandgaon, Chhattisgarh., District : Rajnandgaon, Chhattisgarh
4 - Joint Director Treasury Account And Pension, Division, Durg, District Durg,
Chhattisgarh., District : Durg, Chhattisgarh
5 - District Education Officer Rajnandgaon, District Rajnandgaon, Chhattisgarh.,
District : Rajnandgaon, Chhattisgarh
6 - Principal Government Higher Secondary School, Bandha Bazar, Block
Ambagarh Chowki, District Rajnandgaon, Chhattisgarh., District : Rajnandgaon,
Chhattisgarh
7 - Block Education Officer Ambagarh Chowki, District Rajnandgaon, Chhattisgarh.,
District : Rajnandgaon, Chhattisgarh
--- Respondents
3
WPS No. 283 of 2020
Bhagwati Prasad Arya S/o Late Latkhor Singh Arya, Aged About 47 Years Working
As Peon At Govt. Higher Secondary School, Somatola, Block Mohla, District
Rajnandgaon Chhattisgarh., District : Rajnandgaon, Chhattisgarh
---Petitioner
Versus
1 - State Of Chhattisgarh Through The Secretary, School Education Department,
Mahanadi Bhavan, Mantralaya, Atal Nagar, New Raipur, District Raipur
Chhattisgarh, District : Raipur, Chhattisgarh
2 - Commissioner, Tribal Welfare Department Raipur, District Raipur Chhattisgarh,
District : Raipur, Chhattisgarh
3 - Assistant Commissioner, Tribal Welfare Department, Rajnandgaon, District
Rajnandgaon Chhattisgarh, District : Rajnandgaon, Chhattisgarh
4 - Joint Director, Treasury Account And Pension, Division, Durg, District Durg
Chhattisgarh, District : Durg, Chhattisgarh
5 - District Education Officer, Rajnandgaon, District Rajnandgaon Chhattisgarh,
District : Rajnandgaon, Chhattisgarh
6 - Principal, Govt. Higher Secondary School, Somatola, Block Mohla, District
Rajnandgaon Chhattisgarh., District : Rajnandgaon, Chhattisgarh
7 - Block Education Officer, Mohla, District Rajnandgaon Chhattisgarh, District :
Rajnandgaon, Chhattisgarh
--- Respondent(s)
WPS No. 383 of 2020
1 - Sunayana Mandavi D/o Late Patiram Kachlame Aged About 44 Years Working
As Peon At Government Higher Secondary School, Koudikasa, Block Ambagarh
Chowki, District Rajnandgaon Chhattisgarh, District : Rajnandgaon, Chhattisgarh
---Petitioner(s)
Versus
4
1 - State Of Chhattisgarh Through The Secretary, School Education Department,
Mahanadi Bhavan, Mantralaya, Atal Nagar, New Raipur, District- Raipur
Chhattisgarh, District : Raipur, Chhattisgarh
2 - Commissioner Tribal Welfare Department Raipur, District Raipur Chhattisgarh,
District : Raipur, Chhattisgarh
3 - Assistant Commissioner Tribal Welfare Department, Rajnandgaon, District
Rajnandgaon Chhattisgarh, District : Rajnandgaon, Chhattisgarh
4 - Joint Director Treasury Account And Pension, Division-Durg District Durg
Chhattisgarh, District : Durg, Chhattisgarh
5 - District Education Officer Rajnandgaon, District Rajnandgaon Chhattisgarh,
District : Rajnandgaon, Chhattisgarh
6 - Principal Government Higher Secondary School, Koudikasa, Block Ambagarh
Chowki, District Rajnandgaon Chhattisgarh, District : Rajnandgaon, Chhattisgarh
7 - Block Education Officer Ambagarh Chowki, District Rajnandgaon Chhattisgarh,
District : Rajnandgaon, Chhattisgarh
--- Respondent(s)
---------------------------------------------------------------------------------------------------------------
For Petitioner : Ms. Rajni Soren, Advocate in W.P. (S) No. 1824 of 2016.
For Petitioners : Mr. Shashi Kushwaha, Advocate in WPS No. 197 / 2020,
WPS No. 183/2020, WPS No. 283/2020 & WPS No.
383/2024
For Respondent : Mr. Ajay Kumrani, Panel Lawyer.
Mr. Pravas Singh Baghel, District Education Officer is also present in person.
—————————————————————————————————————
Hon’ble Mr. Justice Naresh Kumar Chandravanshi
Order on Board
15/01/2025
1. Issue involved in all the writ petitions are similar in nature, therefore, they
are being heard together and decided by this common order.
[For the sake of convenience, WPS No. 1824 of 2016 would be taken-up
as lead case]
2. The petitioners have preferred these petitions under Article 226 of the
5
Constitution of India seeking writ of mandamus directing the respondents that
the petitioners be given regularization along with all benefits with retrospective
effect.
3. The facts of the case / grievance of the petitioners, as projected by them,
in their respective petitions are common, that the petitioners are dependent of
the respective deceased employees mentioned in the table below, who died in
harness. On being applications filed by petitioners, seeking dependent
employment, they were granted compassionate appointment on the post of
Contingency Paid Employee. Nutshell of facts of aforesaid cases are stated to
be in following manner :-
Sr. Case No. Name Name & post of Relation Date of Date of Date of
deceased to the Death compassion
No. regularization
employee deceased ate
appointment
1. WPS No. 1824 Smt. Santoshi Lt.Ghanyshya Wife 05.10. 03.02.1997 20.8.2008
of 2016 Wadyakar m Prasad 1996
Wadyakr
(Assistant
Teacher)
2. WPS No. 197 / Neelam Singh Lt. Kunwar Daughter —– 29.12.1995 23.8.2014
2020 Thakur Singh Thakur
(Head Master)
3. WPS No. 183 / Rekha Bai Lt. Wife 30.04. 19.08.1996 23.8.2014
Harishchand 1996
2020
Borkar
(Assistant
Teacher)
4. WPS No. 283 / Bhagwati Lt. Latkhor Son 22.08. 19.01.1995 23.8.2014
2020 Prasad Arya Singh (Head 1987
Master)
5. WPS Sunayna Lt. Patiram Daughter 16.12. 24.06.1995 23.8.2014
No.383/2020 Mandavi Kachlame 1994
(Assistant
TeacherFurther case of the petitioners are that, since their relatives, who died in
harness, were posted on regular post, therefore, as per prevailing Circular
(Annexure P-3) issued by the then Government of Madhya Pradesh dated 10 th
June, 1994 and Circular (Annexure P-5) issued by Government of Chhattisgarh
6dated 12th February, 2008, the petitioners ought to have appointed on regular
post, but they were illegally appointed as contingent paid employee, which is
per se illegal, therefore, they have prayed that, they be regularized on class IV
posts from the date of their initial appointment / joining i.e. from the year 1997,
1995, 1996, 1995 and 1995, respectively and they also be granted all other
benefits.
4. Ms. Rajni Soren, learned counsel appearing for the petitioner in WPS No.
1824 of 2016 would submit that deceased employee – Ghanshyam Prasad
Wadyakar, who was husband of the petitioner- Smt. Santoshi Wadyakar, was
working on the regular post of Assistant Teacher, therefore, as per Circular
dated 10.06.1994 (Annexure P-3) and subsequent Circular dated 12.02.2008
(Annexure P-5) issued by the Govt. of Chhattisgarh, the petitioner ought to have
appointed on regular post of ‘Class-IV’ from the year 1997, but her services was
regularized from 20.8.2008, which is against the aforesaid instructions of the
State Government. It is further contended that, though regular pay scale was
granted to petitioner – Smt. Santoshi Wadyakar from 4.12.2000, but she was
regularized on the post of ‘Peon’ on 20.8.2008. It is next contended that,
because of such legal wrong done by respondents authorities, the petitioner has
deprived from promotion, seniority and monetary benefits. As such, it is prayed
that relief sough for by the petitioner may be granted to her.
5. Mr. Shashi Kumar Kushwaha, learned counsel appearing for the
petitioners in other writ petitions also made aforesaid contention. He further
submits that in WPS No. 197 / 2020, WPS No. 183/2020, WPS No. 283/2020 &
WPS No. 383/2024, petitioners’ relatives, who died in harness, were working on
regular posts, therefore, petitioners of aforesaid cases would have appointed on
regular posts of ‘Class-IV employee’ in light of aforesaid two circulars issued by
7
the State Government since their initial appointments i.e. from the year 1995,
1996, 1995 and 1995, respectively but due to unlawful act of respondent
authorities, they were appointed on contingency paid employee and their
services were regularized on 23.8.2014, since then they are being granted
regular pay scale. It is contended further that since appointment granted to the
petitioners by respondents were against the circular / instructions of State
Government, therefore, relief sought for by the petitioners may be granted to
them.
6. On the other hand, learned counsel for the State while referring to its
reply would submit that though relatives of the petitioners, who died in harness,
were posted on the post of Assistant Teacher / Head Master on regular post and
the petitioners were appointed as contingent paid employee on compassionate
ground, but since, at that time, no regular post was vacant in the Department,
therefore, they were appointed as contingent paid employee. He further submits
that if the petitioners were not satisfied with their appointment and they have
any grievance in this regard, then they ought to have filed application /
representation before the competent authority for redressal of their grievances
or they have filed writ petitions at the earliest, but they did not do so and now
they are raising their grievances after about inordinate delay of more than 20
years from their initial appointment, as such, all the writ petitions filed by the
petitioners are liable to be dismissed.
7. In reply, learned counsel appearing for the petitioners submit that in
appointment order of the petitioners, nothing has been mentioned to the effect
that at the time of their initial appointment, no permanent post was vacant in the
respondents-Department, therefore, now, respondents cannot be permitted to
raise this ground.
8
8. I have heard learned counsel appearing for the parties and perused the
material available on record with utmost circumspection.
9. From perusal of the records, it appears that on account of death of their
relatives, the petitioners were appointed on the post of contingency paid
employee between 1995 to 1997. Though as per prevailing instructions /circular
dated 10th June, 1994 (Annexure P-3) issued by the then State of Madhya
Pradesh and subsequent instructions /circular dated 12 th February, 2008
(Annexure P-5) issued by State of Chhattisgarh, the petitioners ought to have
appointed on regular post of class IV, as their deceased / relatives were posted
as regular employee, but they have wrongly been appointed on the post of
contingent paid employee, which is against the aforesaid circulars. As such, it is
found that appointment of petitioners on the post of contingent paid employee
was against the circulars issued by the State Government.
10. Though appointment of the petitioners were against the applicable
instructions of the Government, as instead of regular appointment, they were
wrongly appointed as contingent paid employee, but from perusal of record it is
not reflected that petitioners had neither raised their grievance before competent
authority at that time for their regular appointment nor filed writ petition for their
regular appointment, rather petitioner namely Smt. Santoshi Wadyakar raised
her grievance first time in the year 2016 by filing instant writ petition and other
petitioners filed instant petitions in the year 2020 i.e. after about 20 years. No
explanation has been extended by the petitioners that why said delay occurred.
11. Had the petitioners any grievance with regard to the date of their
regularization, they ought to have approached competent authority / this court
immediately after their appointment or immediately after their regularization in
service. But, they have filed instant petitions after an inordinate delay of 18 to 20
years.
9
12. If the petitioners were regularized from their initial appointment with
retrospective effect of 18 to 20 years, then their regularization from such long
back date will disturb the seniority of regular employees in the cadre, who are
not party in the instant case.
13. The question as to whether the regularisation should be granted with
retrospective effect or it should be prospective effect is no longer res integra. It
has been considered by the Supreme Court in the matter of Registrar General
of India & Another v. V. Thippa Setty & Others 1 and it has been held by their
Lordships that the regularization should ordinary be prospective so that seniority
of those who are already in regular service is not affected and held as under :
“2. …………It must be remembered that they had
entered as ad hoc appointees and the question was
whether they should be regularised in service since
they had worked as ad hoc employees for a sufficiently
long time. If the ad hoc service is regularised from the
back date in this manner, it will disturb the seniority of
regularly appointed employees in the cadre and,
therefore, ordinarily the regularisation must take effect
prospectively and not retrospectively. It must also be
borne in mind that ad hoc appointees, casual labour
and daily-rated persons are not subject to strict
discipline of service and it is a matter of common
experience that their attendance is very often not
regular and at times they do not even meet the
qualification for appointment since they are taken on ad
hoc basis. These deficiencies are overlooked by way of
granting of relaxation and, therefore, care must be
taken to see that they do not upset the seniorities of
regular appointees. Whether they qualify in a given
case or not is not relevant but what is relevant is that
regularisation should be prospective and not
retrospective as the chances of their upsetting the
seniorities cannot be overlooked. The Tribunal must
take care to see that when they pass orders of
regularisation from retrospective dates, those who are
likely to be affected on account of that order are not
before that court and unwittingly their careers are not1 (1998) 8 SCC 690
10adversely affected. Ordinarily, therefore, the
regularisation must be prospective.”
14. Similarly, in Union of India & Others v. Sheela Rani 2, the principles of
law laid down in V. Thippa Setty (supra) has been followed by the Supreme
Court with approval and held in para 11 as under :
“11. In Registrar General of India & Anr. Vs. V. Thippa
Setty & Ors. (supra), the Tribunal’s direction was to
regularize the respondents w.e.f. the date of
promulgation of the recruitment rules or from the date of
their appointment depending on the seniority list. In
pursuance of the said direction, on the new recruitment
rules being promulgated on 11.5.1985, the
regularization was given effect from that date. However,
in the subsequent order passed by the Tribunal on
19.2.1993, the Tribunal had directed that they should be
treated as having been conferred regular status w.e.f.
5.2.1981 i.e. the date of their entry into service as
Investigators. This Court held that the employees had
entered as ad hoc appointees and the question was
whether they should be regularized in service since
they had worked as ad hoc employees for a sufficient
long time. If the ad hoc service is regularized from the
back date in this manner, it will disturb the seniority of
regularly appointed employees in the cadre and,
therefore, ordinarily the regularization must take effect
prospectively and not retrospectively. This Court
ordered that care must be taken to see that
regularization do not upset the seniorities of regular
appointees. Whether they qualify in a given case or not
is not relevant but what is relevant is that regularization
should be prospective and not retrospective as the
chances of their upsetting the seniorities cannot be
overlooked.
15. In the matter of Masood Akhtar Khan & Others v. State of Madhya
Pradesh & Others3 considering the Rules of M.P. Civil Services (General
Conditions of Service) Rules, 1961, Rule 7, it has been held relying upon the
earlier decisions that if the initial appointment is not made according to the
2 (2007) 15 SCC 230
3 (1990) 4 SCC 24
11
Rules, subsequent regularisation of his service does not entitle an employee
to the benefit of intervening service for seniority.
16. Having considered aforesaid law laid down by the Apex Court, if
petitioners are regularized with retrospective effect, that too, after about 18-
20 years, then it will upset the seniorities of regular appointee. Further, the
petitioners are raising their grievance first time after about 18-20 years
without extending any reason for delay and latches.
17. Hon’ble Supreme court in the case of Union of India v. Tarsem
Singh4 while considering the delay / latches in approaching appropriate
forum by aggrieved person / party seeking relief, has observed as under :-
“To summarise, normally, a belated service related
claim will be rejected on the ground of delay and
laches (where remedy is sought by filing a writ
petition) or limitation (where remedy is sought by
an application to the Administrative Tribunal). One
of the exceptions to the said rule is cases relating
to a continuing wrong. Where a service related
claim is based on a continuing wrong, relief can be
granted even if there is a long delay in seeking
remedy, with reference to the date on which the
continuing wrong commenced, if such continuing
wrong creates a continuing source of injury. But
there is an exception to the exception. If the
grievance is in respect of any order or
administrative decision which related to or affected
several others also, and if the reopening of the
issue would affect the settled rights of third parties,
then the claim will not be entertained. For example,
if the issue relates to payment or refixation of pay
or pension, relief may be granted in spite of delay
as it does not affect the rights of third parties. But if
the claim involved issues relating to seniority or4 (2008) 8 SCC 648
12promotion, etc., affecting others, delay would
render the claim stale and doctrine of
laches/limitation will be applied…………
18. In the case of Chairman, State Bank of India v M J James 5, their
lordships of the Supreme Court has held as under :-
“36. What is a reasonable time is not to be put in a
straitjacket formula or judicially codified in the form of
days, etc. as it depends upon the facts and
circumstances of each case. A right not exercised for a
long time is non- existent. Doctrine of delay and laches
as well as acquiescence are applied to non-suit the
litigants who approach the court/appellate authorities
belatedly without any justifiable explanation for bringing
action after unreasonable delay. In the present case,
challenge to the order of dismissal from service by way
of appeal was after four years and five months, which is
certainly highly belated and beyond justifiable time.
Without satisfactory explanation justifying the delay, it is
difficult to hold that the appeal was preferred within a
reasonable time……………………..”
19. In Ram Chand v. Union of India 6, and State of U.P. v. Manohar 7, their
Lordships has observed that if the statutory authority has not performed its duty
within a reasonable time, it cannot justify the same by taking the plea that the
person who has been deprived of his rights has not approached the appropriate
forum for relief. If a statutory authority does not pass any orders and thereby fails to
comply with the statutory mandate within reasonable time, they normally should not
be permitted to take the defence of laches and delay. If at all, in such cases, the
delay furnishes a cause of action, which in some cases as elucidated in Union of
India v. Tarsent Singh8 may be continuing cause of action.
5 (2022) 2 SCC 301
6 (1994) 1 SCC 44
7 (2002) 2 SCC 126
8 (2008) 8 SCC 648
13
“The State being a virtuous litigant should meet the
genuine claims and not deny them for want of action
on their part. However, this general principle would
not apply when, on consideration of the facts, the
court concludes that the respondent had abandoned
his rights, which may be either express or implied
from his conduct. Abandonment implies intentional
act to acknowledge,…..”
20. In light of aforesaid law laid down by the Apex Court in afore-cited cases, if
the case in hand is considered, then it is clear that though petitioners were wrongly
appointed as contingent paid employee, rather, in light of prevailing instructions
/circular dated 10th June, 1994 (Annexure P-3) issued by the then State of
Madhya Pradesh and subsequent instructions /circular dated 12 th February,
2008 (Annexure P-5) issued by State of Chhattisgarh, they ought to have been
appointed on regular post, but it is also apparent from the record that petitioners
did not raise their grievance neither at the time of their appointment or
immediately thereafter nor even after their regularization i.e. in the year 2008 /
2014, rather they are raising grievance first time after lapse of 18 to 20 years. If
relief, which contained / involved seniority, promotion, etc., is granted to them
from the back date, that too, after 18 to 20 years, then it will upset the seniority
of other regular appointees, who are not party before this Court, therefore,
applying ratio of law laid down by the Apex Court in afore-cited cases, in the
considered opinion of this Court, relief sought for by the petitioners cannot be
granted to them after such huge delay and latches i.e. after 18 to 20 years.
21. Consequently, all these writ petitions stand dismissed.
Sd/-
(Naresh Kumar Chandravanshi)
Judge
Amit
AMIT Digitally signed
by AMIT KUMAR
KUMAR DUBEY
Date: 2025.01.21
DUBEY 10:49:14 +0530
[ad_1]
Source link