1 2025:CGHC:43073 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 10314 of 2019 1 - Dr. Basudev Roy S/o Shri Nirod Bihary Roy Aged About 55 Years R/o Civil Hospital Bhanpuri, Post Office Bhanpuri, Bastar, District Bastar, Chhattisgarh., District : Bastar(Jagdalpur), Chhattisgarh 2 - Dr. Anthan Dawale Bara S/o Shri Amrit Bara Aged About 64 Years R/o Jalaram Gali, Vinoba Nagar, Bilaspur, District- Bilaspur, Chhattisgarh., District : Bilaspur, Chhattisgarh 3 - Dr. Uttamlal Kaushik S/o Late Shri S.R. Kaushik Aged About 55 Years R/o Q No- Med F-2, Civil Line, Beside Government District Hospital, Dhamtari, District- Dhamtari, Chhattisgarh., District : Dhamtari, Chhattisgarh ... Petitioners versus 1 - State Of Chhattisgarh Through The Secretary, Health And Public Welfare Department, Mahanadi Bhawan, Nawa Raipur, Atal Nagar Raipur, District Raipur, Chhattisgarh., District : Raipur, Chhattisgarh 2 - Secretary Health And Public Welfare Department, Vallabh Bhawan, Bhopal, District- Bhopal, Madhya Pradesh., District : Bhopal, Madhya Pradesh 3 - Director Directorate Of Health And Public Services, Indrawati Bhawan, Atal Nagar Raipur, District- Raipur, Chhattisgarh., District : Raipur, Chhattisgarh ... Respondents For Petitioners : Mr. Prateek Sharma, Advocate. For Respondents : Mr. Ritesh Giri, Panel Lawyer. 2 Hon’ble Mr. Justice Naresh Kumar Chandravanshi Order on Board 25/08/2025 1. Instant writ petition under Article 226 of the Constitution of India has been preferred by the petitioners against deprivation of the pension. The petitioners are seeking pensionary benefits and arrears of pay from the date of their initial appointment alongwith interest. 2. Imperative facts leading to file instant petition are that the petitioners, who were working as Assistant Surgeon, were initially appointed on adhoc basis in the respondent Department in the year 1993 and have been subsequently regularized vide order dated 04.11.2016 (Annexure-P/3), but their past services have not been counted, as such, they are not entitled for pensionary benefits, however, some of the Assistant Surgeons have been regularized from the date of their initial appointment and were granted the consequential benefits, but the petitioners were deprived of the same and vide order dated 4.11.2016 issued by the respondent authorities, the medical officers including the present petitioners, who were appointed prior to 31.12.1997 have been deprived of their pensionary benefits as well as arrears of pay. Against which, the instant writ petition have been preferred by the petitioners questioning the same. 3. Learned counsel appearing for the petitioner would submit that the action of the respondents authorities is irrational, arbitrary and discriminatory in nature. The order dated 4.11.2016 violates the petitioners’ right to equality as enshrined under Article 14 and 16 of the Constitution of India. It is well settled principle of law that pension is neither a bounty nor a matter of grace depending upon the sweet will of the employer nor an ex-gratia payment, 3 rather it is a payment for the past services rendered. The pick and choose method adopted by the respondent authorities is arbitrary, as similarly situated medical officers have been granted regularization from the date of their initial appointment, whereas the present petitioners are being deprived of all the benefits, to which they are entitled. The appointment of petitioners is neither illegal nor irregular as they are appointed under the special recruitment scheme after inviting application through the advertisement published in daily news paper and the petitioners appeared before the selection committee and faced the interview. Therefore, the petitioners are entitled to regularize from the date of their initial appointment alongwith all consequential benefits. The most of the petitioners had served for more than 30 years without any break in service and they are getting annual grade increment and an employee having such a length of service under no law or rules has been disentitled from pension and other benefits. It is settled position of law that if the initial appointment has been made by following the due procedure of law and the appointee continues uninterruptedly till the regularization of their services in accordance with the rules, the period of officiating services will be counted from the initial date of appointment. Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation, therefore, the order dated 04.11.2016 is contrary to the C.G. Civil Services (General Conditions of service) Rules, 1961 Rules and thus the order dated 4.11.2016 is bad in law and deserves to be quashed. Reliance has been placed on the judgments rendered by the Hon’ble Supreme Court in the matter of Bhupendra Nath Hazarika and another vs State of Assam and others, reported in (2013) 2 SCC 516, State of Gujarat and others vs. Talsibhai Dhanjibhai Patel, reported in 2022 SCC Online SC 2004, the 4 judgment rendered by the High Court of Uttar Pradesh in the matter of Sunita Sharma vs. State of U.P. and others, passed in Writ Appeal No.25431/2018, decided on 20.12.2018 and the order passed by this Court in the matter of Dr. Phool Das Mahant vs The State of Chhattisgarh and others, passed in WPS No.785/2015 and other connected matters, decided on 22.09.2015. 4. Learned counsel for the State vehemently opposes the submission made by the petitioners’ counsel and submits that the petition preferred by the petitioners is absolutely misplaced and misconceived and is liable to be dismissed at the threshold being filed without examining the record of the respondents and instruction of the State Government with regard to regularization. As regards the allegations of the petitioners that they are entitled for regularization and all other service benefits from the date of initial appointment, the proposal was kept before the Ministry of concerned department on 17/05/2016 and after elaborate consideration regarding the aforesaid demands, it was decided that the doctors who have been appointed prior to 31/12/1997 will be regularized and will be provided increments as per their seniority but Pension Rules, 1976 will not be applicable to them nor they will be entitled for the arrears and the said proposal was approved by the Ministry of the concerned Department. In pursuance to the aforesaid proposal, the order dated 04/11/2016 [Annexure-P-3] was passed and in the said order as regards seniority, it has been mentioned that the petitioners/doctors will be kept below the doctors who have been appointed through Public Service Commission. It is further submitted that a New Pension Scheme named and styled as ‘New Contributory Pension Scheme’ has been formulated by the Government of India for the employees / officers who have been appointed on or after 01/11/2004 which has been also adopted by the State of Chhattisgarh for its employees / officers also. To 5 substantiate the above, copy of the circular dated 27/10/2004 alongwith the notification dated 27/10/2004 are also filed for the kind perusal of the Court. In the notification dated 27/10/2004, particularly point No.1, it is clearly mentioned that it is mandatory for all the new employees, who are recruited on or after 01/11/2004 to become members of the scheme. Thus, it is apparent that the petitioners are only entitled for Contributory Pension and not for pension as per Pension Rule, 1976. Vide notification dated 27/10/2004, some amendment in the Chhattisgarh Civil services (Pension) Rules, 1976 has been carried out by the State Government. It is further submitted that the present petition is not maintainable for non joinder of the necessary party, as the petitioners who are seeking parity with Dr. Suresh Chand Mishra and Dr. Suresh Chand Mishra, who have been regularized from the date of their initial appointment, have not made them necessary party. The petitioners have also not furnished or submitted any factual foundation to substantiate the allegation showing any legal fundamental right for regularization of service from the date of their initial appointment. Therefore, the petitioners have got no right seeking regularization from the date of initial appointment. It is further respectfully submitted that by the order dated 04.11.2016 (Annexure P/1), the benefit of promotion and time pay scale (krammonnati) has also been provided to the petitioners without there being any arrears. Thus, there is no illegality or infirmity in the order dated 04/11/2016 [Annex. P-3] and the same has been rightly passed in accordance with law. Therefore, the writ petition is liable to be dismissed. 5. I have heard learned counsel for the parties and perused the material available on record. 6. It is an admitted position in this case that the petitioners were 6 appointed as Assistant Surgeons on ad hoc basis in the Department of Public Health and Family Welfare through proper channel, as the advertisement was issued and the petitioners appeared therein and successfully cleared the examination. The petitioners have been working in the respondent Department as Assistant Surgeons on ad hoc basis since 1993. The order dated 04.11.2016 (Annexure-P-3) has been passed by the respondent authorities, whereby though the petitioners have been regularized, but they have been treated to be regularized from 04.11.2016 itself and they have not been entitled for pension and arrears of pay, as they have not been regularized from the date of their initial appointment. 7. It is also an admitted position that all the petitioners have been working continuously in the respondent Department for more than 20 years without any break in service and neither any departmental enquiry is pending against the petitioners nor any adverse remark has been communicated to them, thus service record of the petitioners is clear, but despite the same the order dated 04.11.2016 (Annexure-P/1) has been passed disentitling them from pension and arrears, which is as under:- “ekin.M %& ¼1½ fu;ferhdj.k dk ykHk mUgh fpfdRldksa dks fn;k tkosxk tks fnukad 31-12-1997 ds iwoZ e/;izns’k ‘kklu }kjk rnFkZ@vkikr rkSj ij fu;qDr fd;k gSA ¼2½ rnFkZ fu;qfDr ds ckn fujarj NRrhlx<+ jkT; esa lsokjr jgs gksA ¼3½ ftuds fo:} dksbZ vijkf/kd izdju.k vFkok vuq’kklukRed dk;Zokgh yafcr u gks rFkk iwoZ esa dh xbZ fdlh vuq’kklukRed dk;Zokgh ds laca/k esa n.M izHkko’khy u gksA 2@ Nkuchu lfefr }kjk dh xbZ vuq’kalk ds vk/kkj ij jkT; ‘kklu] ,rn~ }kjk o”kZ 31-12-1997 ds iwoZ fu;qDr fuEufyf[kr rnFkZ fpfdRlk vf/kdkfj;ksa dks fuEufyf[kr ‘krksZ ds v/khu fu;fer djrs gq, rkfydk ds dkye 03 esa n’kkZ;s orZeku inLFkkiuk LFky esa ;Fkkor inLFk djrk gS %& ¼1½ fu;fefrdj.k dk ykHk izkIr djus okys fpfdRldksa dks is’kau dh ik=rk ugh gksxhA ¼2½ fu;fer fu;qfDr ds fy, vuq’kaflr fpfdRldksa dh ofj”Brk dk fu/kkZj.k&NRrhlx<+ flfoy lsok ¼lsok dh lekU; ‘krsZ½ fu;e 1961 7 ds fu;e 12 ds ,o fu;e ¼4½ ds varxZr rnFkZ vk/kkj ij muds }kjk dh xbZ lsok dh vof/k dks /;ku esa j[kdj fd;k tkuk gSA bl izdkj fu/kkZfjr ofj”Brk ds vk/kkj ij fu;ekuqlkj inksUufr rFkk le;eku osru ¼dzeksUufr½ izkIr djus dh ik=rk gksxhA ijUrq mUgsa fdlh izdkj dk ,sfj;lZ ns; ugh gksxkA ¼3½ fu;fer fu;qfDr mijkUr osru dks lajf{kr djrs gq, osru fu/kkZj.k fd;k tkosxkA” 8. The main contention of the petitioners’ counsel is that the order dated 4.11.2016 is against Rule 12 (4) of the Civil Services (General Condition) Service Rules, 1961, which provides as under:- “12 (4) Seniority of Adhoc employees- (a) A person appointed on adhoc basis shall not get any seniority till the regularisation of his services. (b) If a person is appointed on adhoc basis by substantially following the procedure laid down by the Recruitment rules and the appointee continues in the post uninterruptedly till the regularization of his service in accordance with the rules, the period of officiating service shall be counted for seniority.” 9. In the matter of Bhupendra Nath Hazarika (supra), their Lordships of the Supreme Court have held in paras 40 & 41 as under:- “40. In D. Ganesh Rao Patnaik and others v. State of Jharkhand and others 1 , a three-Judge Bench was dealing with inter se seniority between the direct recruits and the promotees under the Bihar Superior Judicial Service Rules, 1946. The Bench also dealt with the concept of temporary posts and the computation of posts under Rule 6 therein, the definition of cadre and posed a question whether the temporary posts of Additional District and Sessions Judges are to be included in the cadre. After referring to various decisions, the Court opined that for determining the quota of direct recruits, both the temporary and permanent posts have to be counted and taken into consideration and their quota cannot be confined to permanent posts alone. In the said case, the promotees had exceeded their quota and entrenched into the quota of direct recruits and, in that context, the Court held that the promotion given to the promotees was not in accordance with law. The Court further proceeded to state that it did not lie in the mouth of the respondent therein to contend that the quota rule had broken down or that though their promotions were made beyond the quota fixed for promotees, yet the same should be treated not only perfectly valid but also in a manner so as to give them the benefit of seniority over the direct recruits. Eventually, the Bench ruled that the inevitable 1 (2005) 8 SCC 454 8 conclusion was that the contesting respondent could not claim seniority over the appellant. 41. We have referred to the aforesaid pronouncements to restate the legal principle that if the quota rule has been broken down, the appointee should not be pushed down below the appointees from other source; but, the Government before departing from the rule must make every effort to respect it and then only it may proceed to appoint from other source.” 10. In the matter of Talsibhai Dhanjibhai Patel (supra), their Lordships of the Supreme Court have held in paras 1 & 2 as under:- “1. It is unfortunate that the State continued to take the services of the respondent as an ad-hoc for 30 years and thereafter now to contend that as the services rendered by the respondent are ad-hoc, he is not entitled to pension/pensionary benefit. The State cannot be permitted to take the benefit of its own wrong. To take the Services continuously for 30 years and thereafter to contend that an employee who has rendered 30 years continues service shall not be eligible for pension is nothing but unreasonable. As a welfare State, the State as such ought not to have taken such a stand. 2. In the present case, the High Court has not committed any error in directing the State to pay pensionary benefits to the respondent who has retired after rendering more than 30 years service.” 11. This Court vide order dated 22.09.2015 passed in WPS No.785/2015 in case of Dr. Phool Das Mahant (supra) held in paras 12 to 14 as under:- “12. Indisputably, the petitioners were also appointed in exercise of powers under Rule 13(5) of the Rules, 1967 and were similarly placed like the petitioners before the Madhya Pradesh High Court. In fact, when the petitioners were appointed in the year 1986 to 1989 in the undivided State of Madhya Pradesh , they were governed by the same set of rules. Although the Rules of 1967 have since been replaced by the M.P./C.G. Educational Service (Collegiate Branch) Recruitment Rules, 1990 yet the same Rules still apply in the State of Chhattisgarh. 13. The law having been settled in the case of similarly appointed persons by the Single Bench of Madhya Pradesh High Court, affirmed by the Division Bench in Writ Appeal and SLP having been dismissed by the Supreme Court, this Court is of the considered opinion that the petitioners are also entitled for similar relief. 9 14. In view of the above, all the writ petitions stand allowed. The State Government shall consider the case of all the petitioners/emergency appointees for grant of Senior Pay Scale/Selection Grade Pay Scale by treating the services rendered by them from the initial date of appointment as regular appointment for the purpose of conferring the benefit of Senior Pay Scale and Selection Grade Pay Scale. Needless to say, in view of the above order, the order impugned cannot be given effect to by the State Government of Chhattisgarh.” 12. The main objection of the respondents is that the services of the petitioners were regularized on 04.11.2016 and as per Pension Rules, they are not entitled for any pensionary benefits, but it is an admitted position that the petitioners have been working in the respondent Department since long and they were appointed by following the due process of law and their appointment was not an irregular appointment or any back door entry and some of medical officers have also been regularized from the date of their initial appointment, but the petitioners have not been regularized from the date of their initial appointment. 13. The law having been settled in case of similarly appointed persons by the Single Bench of the Madhya Pradesh High Court, affirmed by the Division Bench in writ appeal and SLP having been dismissed by the Hon’ble Apex Court, it is clear that services of some employees were regularized by the Department, whereas the petitioners have continued in services for more than 2 decades. 14. Thus, considering the facts and circumstances of the case as well as the legal propositions of the Hon’ble Apex Court and this Court and other High Courts, the order dated 04.11.2016 (Annexure-P/3), so far as condition Nos.1 and 2 thereof are concerned, is hereby set aside, however, the other part of the order shall remain intact. The petitioners are also entitled for pensionary benefits and their past services be counted for grant of 10 pensionary benefits. The respondent authorities are directed to calculate the pensionary benefits of the petitioners from the date of their initial appointment and the arrears be given to them for the said period. This exercise be completed within 6 months from the date of receipt of copy of this order. 15. The writ petition stands allowed to the extent sketched hereinabove. No order as to costs. Sd/- (Naresh Kumar Chandravanshi) Judge AMIT KUMAR DUBEY Digitally signed by AMIT KUMAR DUBEY Date: 2025.08.29 10:46:48 +0530