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2025:CGHC:31869

AFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

WPS No. 3369 of 2021

Reserved on : 24.04.2025

Delivered on : 10.07.2025

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.

--- Petitioner

versus

1 - State of Chhattisgarh, Through The Secretary, Department of School

Education, Mantralaya, Mahanadi Bhawan, Atal Nagar Nawa Raipur District

Raipur Chhattisgarh.

2 - The Secretary, Department of Panchayat And Rural Development,

Mantralaya, Mahanadi Bhawan, Atal Nagar, New Raipur District Raipur

Chhattisgarh.

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

Surguja Chhattisgarh.

--- Respondents

and

WPS No. 2408 of 2024

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.)

---Petitioner

Versus

1 - State of Chhattisgarh Through Secretary, Panchayat And Rural

Development, Mahanadi Bhawan, Atal Nagar, Naya Raipur, Revenue & Civil

District Raipur (C.G.)

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.)

3 - Director Directorate Public Instruction Indrawati Bhawan, Atal Nagar,

Naya Raipur, District Raipur (C.G.)

4 - Zila Panchayat Surajpur Through Its Chief Executive Officer, District

Surajpur (C.G.)

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

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

7 - Janpad Panchayat Ramanujnagar Through Its Chief Executive Officer,

Dist. Surajpur (C.G.)

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

--- Respondents

Petitioner in Person :Mr. Ram Niwas Sahu

For State :Mr. Kalpesh Ruparel, Panel Lawyer

For Respondent No. 4

(in WPS No. 2408 of 2024)

:Mr. Om Prakash Sahu, Advocate

Hon'ble Shri Narendra Kumar Vyas, J.

CAV ORDER

1.Since common question law and facts are involved in both the writ

petitions, they heard analogously and are being decided by this

common order.

1.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.

2.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.

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

that:-

(A) The petitioner was appointed on the post of Shiksha Karmi Grade-

Il (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.

(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:-

“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

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

5- fnukad 01 tqykbZ 2018 ds iwoZ dh vof/k ds fy;s fdlh Hkh izdkj

ds ,fj;lZ dh ik=rk ugha gksxhA”

(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.

4.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:-

“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

2& foHkkxh; vkns’k dzekad@iapk-@iaxzkfofo@22@2011@1094] fnukad 02-

11-2011 }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

3& foHkkx vkns’k dzekad@iapk-@iaxzkfofo@22@2012@3597] fnukad 01-05-

2012 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 17-05-

2013 }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

5& foHkkx ds dzekad@iapk-&411@iaxzkfofo@22@2014] fnukad 14-11-

2014 }kjk xzkeh.k {ks=ksa esa lapkfyr ’kkykvksaa 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

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”

5.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.

6.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.

7.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.

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

(A) The petitioner was appointed on the post of Shiksha Karmi Grade-

II 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.

(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.

9.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.

10.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.

11.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).

12.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.

13.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.

14.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.

15.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.

16.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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17.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.

18.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.

19.I have learned counsel for the parties and perused the documents

placed on record with utmost satisfaction.

20.From submissions made by the parties, the Point emerged for

determination by this Court in WPS No. 3369/2021 is:-

“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?”

21.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.

22.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.

23.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

Page 18 of 25

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:-

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

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

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

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

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

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

fd;k tkosxk%

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

¼p½ bl dzeksUufr ds QyLo#i lacaf/kr vf/kdkjh@deZpkjh ds inuke esa

fdlh izdkj dk ifjorZu ugha fd;k tk;sxkA

Page 19 of 25

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

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

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`"Bkaafdr fd;k x;k gSA”

24.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.

25.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:-

Page 20 of 25

“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).”

26.Accordingly, the Point emerged for determination in WPS No.

3369/2021 is answered against the petitioner and in favour of the

respondents.

27.From submissions made by the parties, the Point emerged for

determination by this Court in WPS 2408/2024 is :-

“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.”

28.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:-

“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

Page 21 of 25

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.

37. 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: -

“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.”

38. 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: -

“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 non-

joinder 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).

10. 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.”

39. 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.”

Page 22 of 25

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

State of Uttar Pradesh & others [(2020) 4 SCC 86] has held in

paragraph 81 as under:-

“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 non-

impleadment 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.”

30.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:-

“25. For the above reasons, we have come to the conclusion

that the grant of relief would unsettle the inter se seniority

Page 23 of 25

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.”

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

Vs. Arvind Rai & others [(2022) 12 SCC 579] has held in paragraph

24 to 26 as under:-

“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: -

“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.”

Page 24 of 25

25. On the other hand, the Division Bench while shutting out the

appellants on the ground of delay relied upon following

judgments of this Court.

(I) Dayaram Asanand Gursahani vs. State of

Maharashtra and others

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

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

others

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

26. 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”

32.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.

33.Thus, the writ petition on the count of delay and latches, inability to

establish his eligibility for promotion as well as on account of non-

joinder of necessary parity, is liable to be dismissed and accordingly, it

is dismissed. However, dismissal of the writ petition will not come in

Page 25 of 25

the way of the respondent to consider the case of the petitioner in light

of the submission made in the return.

34.Accordingly, the Point emerged for determination in WPS No.

2408/2024 is also answered against the petitioner and in favour of

the respondents.

35.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.

Sd/-

(Narendra Kumar Vyas)

Judge

Bhumika / Arun