Smt. Sahodra Jaiswal Earlier Sahodra Dansena v. State Of Chhattisgarh
NAFR HIGH COURT OF CHHATTISGARH, BILASPUR WA No. 305 of 2019 {Arising out of Order dated 06/03/2018 passed in Writ Petition(S) No. 1516 of 2019 by the learned Single Judge} • Smt. Sahodra Jaiswal earlier Sahodra Dansena, W/o Fuleshwar Jaiswal, aged about 31 years, Working as Peon at Govt. Middle School, Jhitipali, Block Kharshiya, District Raigarh, Chhattisgarh ----Appellant/Petitioner
VERSUS
1. State of Chhattisgarh Through Secretary, Tribal Welfare Department, Mahanadi Bhawan, Atal Nagar, Raipur, District Raipur Chhattisgarh.
2. Commissioner Tribal Welfare Department, Indrawati Bhawan, Atal Nagar Raipur, District Raipur Chhattisgarh.
3. Collector, Tribal Development Branch, Raigarh, Chhattisgarh
4. Assistant Commissioner, Tribal Welfare Department, Raigarh, Chhattisgarh -------Respondents For Appellant : Mr. C.J.K. Rao, Advocate For Respondent-State : Mr. Vikram Sharma, Dy. G.A. Hon'ble Shri P.R. Ramachandra Menon, Chief Justice Hon'ble Shri Parth Prateem Sahu, Judge Judgment on Board Per P.R. Ramachandra Menon, Chief Justice.
17/10/2019
1. This appeal arises from the judgment dated 06-03-2019 passed by learned Single Judge whereby the prayer to grant seniority respectively w.e.f. the date on which regularization was given to similarly situated person was turned down and the writ petition came to be dismissed.
2. Heard Mr. C. Jayant K.Rao, Advocate appearing for the appellant as well as Mr. Vikram Sharma, Deputy Government Advocate representing the State.
3. The crux of the factual position is that, there was some scheme for granting compassionate appointment for persons like the appellant/petitioner; who, along with few other persons, came to be appointed as Class-IV employees
vide order dated 24-11-2006 and later, their service came to be regularized in the year 2009. In fact, a list of eligible candidates was proposed and issued, which contained names of 9 persons who were given appointment as per Annexure P/1 order dated 24-11-2006. In Annexure P/1, the appellant/petitioner was placed at serial No. 8 and the last person placed at serial No. 9 was Mr. Jageshwar Yadav. As per Annexure P/2 order dated 09-08-2008, six persons from serial No. 1 to 6 came to be regularized in service w.e.f. 24.11.2006, and regular pay scale was granted to them. It was much later, that service of the appellant/petitioner came to be regularized as per Annexure P/3 order dated 22-02-2009.
4. The claim put-forth by the appellant/petitioner for granting seniority w.e.f. 09-08-2008 (whereby the employees appointed along with appellant/petitioner as per Annexure P/1 were regularized) was not considered favorably. This made the writ petitioner to move to this Court by filing writ petition with the following prayers.
"10.1 That, this Hon'ble may kindly be pleased to direct the respondent authorities to consider the petitioner sonority w.e.f. 09.08.2008 whereby the employees appointed along with the petitioner have been granted seniority.
10.2 That, this Hon'ble may kindly be pleased to direct the respondent authorities to consider the representation made by the petitioner to this affect.
10.3 That, this Hon'ble Court may kindly be pleased to grant any other relief as it may deems fit and appropriate."
5. The reliefs were sought to be resisted by the respondents, mainly contending that regularization was given, subject to availability of vacancies and that the earlier vacancies were filled up by accommodating persons from Annexure P/1 based on their higher position; whereas the appellant/petitioner was standing
only at serial No. 8, whose turn had not come at that time. It is only on arising a subsequent vacancy, that the claim was considered and accordingly Annexure P/3 was issued granting regularization to the writ petitioner. This was accepted and interference was declined by the learned Single Judge, holding that the writ petitioner was not able to show as to whether any person whose name found a place beneath the writ petitioner had been regularized earlier to her. The observation as given in para-3 of the judgment is to the following effect.
"3. The Court on perusal of record finds that in the order of appointment, the name of petitioner appears at serial no.8. The persons who have been regularized in 2008 are the persons whose name finds place at serial no. 1 to 6. It appears that the regularization has been done subject to the availability of vacancy. The petitioner has not been able to show as to whether any person whose name finds place beneath the petitioner has been regularized earlier to her. In the absence of which it cannot be said that the action on the part of the respondents is with malafide intention."
The above is under challenge in this appeal.
6. When the matter came up for consideration before this Court on the earlier occasions, this Court wanted to ascertain the 'basis' for placement given in Annexure P/1; for being considered for regularization. It was submitted that the placement was given with reference to the date of receipt of the application and the date of death of the breadwinner under the scheme for compassionate appointment.
7. In the above circumstances, in addition to the return dated 25-09-2019 filed in the writ appeal, the respondents have filed an additional reply dated 30-09-2019, giving the factual particulars and also producing a chart marked as Annexure R/2, giving the details of all the 9 candidates who were recruited
in the year 2006 as per Annexure P/1. So as to have an easy understanding of the factual aspects and to avoid verbal repetition, we find it appropriate to have the relevant portion extracted below:
"वर 2006 म अनुकम्पपा ननयनुनक्ति हेतनु पपाप्त पकरणणों ककी वररष्टतपा सूचचशपासo कमरचपारच कo आवहेदक कपा नपाम आवहेदन पत पपाप्त आवहेदन अनुकम्पपा ननयनमत वहेतनमपान नकस मपाध्यम नदनपानांक ननयनुनक्ति नदनपानांक ककी स्वचककनत नतथथ कपा मकत्यनु नदनपानांक सहे पपाप्त हआ शचमतच सररतपा यपादव 02.01.2006 24.11.2006 07.06.2007 03.01.2004 आवहेदक सहे पनत स्वo शच सनुरमद सचधहे पपाप्त कनुमपार यपादव बचड़पपारपा नदनपानांक 02.01.2006 वपार कमपानांक 10 सपारनांगढ़ थजिलपा रपायगढ़ शच कपानतरकहेश्वर थसदपार 23.01.2006 24.11.2006 07.06.2007 07.11.2003 नवo खनांo नशo आत्मजि स्वo शच अथधo तमनपार जिगनपाथ थसनांह थसदपार मनुo कहे पत पपo तमनपार थजिलपा कमपानांक2063 रपायगढ़ नदनपानांक 20.01.2006 शच चन्दभवन पैकरपा 03.02.2006 24.11.2006 07.06.2007 28.09.
2005 पपाचपायर उo आत्मजि स्वo शच लपथहेर मपाo नवo सपाय पैकरपा गपाम रपाजिपनुर कपा पत पपालहेपखनपा पपo रनुमररयपा कमपानांक थपानपा फरसपाबहपार थजिलपा 341 नदनपानांक 16.01.2006 जिशपनुर शच अमर लपाल उरपानांव 13.02.2006 24.11.2006 29.09.2007 01.11.2005 आवहेदक सहे आत्मजि स्वo शच झनांगल सचधहे पपाप्त थसनांह उरपानांव मनुo पपo नदनपानांक 13.02.2006 मड़वपा व्हपायपा चनांदपनुर थजिलपा जिपानांजिगचर चपाम्पपा शच रपामकनुमपार थधरहे 21.06.2006 24.11.2006 07.06.2007 13.04.2006 नवo खनांo नशo आत्मजि स्वo शच अथधo लपैलसूनांगपा खहेमरपाम सतनपामच गपाम व कहे पत कमपानांक नदनपानांक 20.06.2006 पपo कनुसमसूल तह. रभरपा थजिलपा जिपानांजिगचर चपाम्पपा शच सनुरहेश कनुमपार यपादव 17.08.2006 24.11.2006 07.06.2007 24.06.2006 पपाचपायर शपासo आत्मजि स्वo शच उo मपाo नवo लक्ष्मचनपारपायण यपादव छपाल कहे पत गपाम व पपo छपाल नव. ख.
कमपानांक 137 धरमजियगढ़ थजिलपा नदनपानांक 28.07.2006 रपायगढ़
शच दशरथ कनुमपार थसदपार 31.08.2006 24.11.2006 07.06.2007 24.11.1999 नवo खनांo नशo आत्मजि स्वo शच अथधo लपैलसूनांगपा मतवपार थसनांह थसदपार गपाम कहे पत कमपानांक नदनपानांक 25.08.2006 बसनांतपनुर पपo नपारपायणपनुर नव. खनां. लपैलसूनांगपा थजिलपा रपायगढ़ कनुo सहपदपा रनसहेनपा 02.09.2006 24.11.2006 22.02.2009 23.10.1999 आवहेदक सहे आत्मजि स्वo शच सचधहे पपाप्त सपमनपाथ रनसहेनपा गपाम नदनपानांक02.09.
रसूमरपपालच तह रभरपा पपo टनुनांरडच थजिलपा जिपानांजिगचर चपाम्पपा शच जिपागहेश्वर यपादव 11.09.2006 24.11.2006 29.09.2007 03.07.2006 पपाचपायर आत्मजि स्वo शच हपाईस्कसूल सपाखचरपाम यपादव गपाम धधौरपाभपाठपा कपा नटहलचरपामपनुर पपo थलबरपा पत कमपानांक व्हपायपा तमनपार तह.
118 नदनपानांक 11.09.2006 घरघपड़पा थजिलपा रपायगढ़
8. The respondents have pointed out in para-4 of the additional reply statement that the date of regularization of other employees happened to be wrongly mentioned as '09-08-2008' in the return filed earlier, as shown by the petitioner in the writ petition, adding that, the correct date is '07-06-2007' and not 09-08-2008. A copy of the relevant order dated 07-06-2007 has been produced as Annexure R/3.
9. The respondents have conceded in para-5 of the additional reply statement that the person named Mr. Jageshwar Yadav, placed at serial No. 9, has been wrongly given regular pay scale over and above the petitioner, as he has been granted regular pay scale w.e.f. 29-09-2007; whereas the writ petitioner was given regular pay scale only by order dated 22-02-2009 (Annexure P/3). A copy of the order dated 29-09-2007, in respect of the person named Jageshwar Yadav (placed at serial No. 9) has been produced as Annexure R/4.
10.On going through the said pleadings and Annexure R/4, in the light of Annexure R/2, it is quite evident that the date of death of the father of the writ
petitioner was on 23-10-1999 and the application for compassionate appointment was submitted on 02-09-2006, whereas in the case of the person named Jageshwar Yadav placed at serial No. 9, the date of death of the breadwinner was on 03-07-2006 and the date of submission of application for compassionate appointment was on 11-09-2006. This clearly indicates that the appellant/petitioner was rightly placed at serial no. 8, above the person named Jageshwar Yadav who placed at serial No. 9, based on his better eligibility.
11.In view of the admission by the respondents in paragraph-9 of the additional reply statement that the regular pay scale has been given wrongly to the person Jageshwar Yadav placed at serial No. 9 in preference to the petitioner/appellant, the observation made by the learned Single Judge in paragraph-3 of the judgment that the petitioner/appellant had not been able to show that any person whose name found a place beneath the petitioner has been regularized earlier to her, is not correct. The respondents unfortunately omitted to bring the correct factual position to the notice of the learned Single Judge when the said finding was rendered.
12.Coming to the relief to be moulded by this Court, we are aware that 'writ of mandamus' cannot be issued to perpetuate a mistake. The respondents, when they concede that the person Jageshwar Yadav, placed at serial No. 9, has been given the benefit by wrongly placing him above the writ petitioner in the matter of regularization, they have not stated anything in the said additional reply that they have taken necessary steps to correct the mistake and to redress the grievance. Another aspect is whether the benefit already given to the said person because of the mistake committed by the authorities could be recovered at this point of time; which cannot be done in view of the law declared by the Supreme Court in State of Punjab v. Rafiq Masih (Whitewasher) & others reported in (2015) 4 SCC 334. The prayer sought for by the petitioner in the writ petition was only to grant her seniority with effect
from the date on which the other persons were regularized. In fact, the other persons placed above the writ petitioner were given regularization based on availability of the vacancies. However, the respondents granted regularization to the 9th person, skipping the appellant/petitioner, as per Annexure P/4 order dated 24-11-2010, which admittedly is not correct. The fact remains that only the writ petitioner/appellant has been left out. Nothing is mentioned by the respondents as to the steps with regard to the correction of mistake, in respect of granting the benefit to the person placed at serial no. 9. We are of the view that the appellant/petitioner shall not be left out with regard to the benefit of regularization given as in the case of the person Jageshwar Yadav, placed at serial no. 9.
13.Accordingly, we hold that the seniority of the appellant/petitioner is liable to be re-fixed with reference to the date on which the service of the person by name Jageshwar Yadav, placed at serial no. 9 in Annexure P/1, was regularized and to place the appellant/petitioner over and above him. However, we make it clear that the appellant/petitioner will not be entitled to get any monetary benefits because of this exercise and will be having the rights and liberties only to get seniority to the limited extent as above. The proceeding shall be corrected and necessary order shall be issued within a period of one-month from the date of receipt of copy of this judgment. Writ appeal is disposed of as above.
Sd/- Sd/- (P.R. Ramachandra Menon) (Parth Prateem Sahu) Chief Justice Judge Pawan