CAV Order

1. Heard Mr. Aman Tamboli, learned counsel for the petitioner as well as Mr. Hariom Rai, learned Panel Lawyer appearing for the State/respondents.

2. By filing the present petition, the petitioner has challenged the impugned orders dated 23.08.2019, 01.10.2019 and 09.06.2022, whereby the respondents have arbitrarily denied confirmation of her services on the post of Assistant District Public Prosecution Officer (‘ADPO’), deleted her name from the list of confirmed officers, rendered the earlier posting order ineffective qua her, and rejected her claim on the purported ground of non-availability of vacant posts, despite her undisputed selection through PSC, satisfactory and unblemished service since joining on 27.12.2010, and a categorical recommendation for confirmation made by respondent No.2 on 17.03.2015.

3. The petitioner further assails the action of the respondents in withholding confirmation and consequential benefits, including grant of increments and permanent status, solely on account of a subsequently initiated departmental enquiry, which has since concluded, contending that such action is illegal, arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution of India.

4. The petitioner has prayed for following relief(s) :-

          “10.1 Hon'ble Court be pleased to set aside the impugned order Annexure P/1 and be pleased to allow the petition by holding that the rejection of representation was illegal.

          10.2 Hon'ble Court be pleased to direct the respondent's authorities to treat the petitioner as confirmed in governmental service from the date and basis of recommendation (Annexure P/4) made on 17.03.2015.

          10.3 Hon'ble Court be further direct the respondent authority to grant the increment to the petitioner for which she is entitled from the date of confirmation, in the interest of justice.

          10.4 Any other relief[s] deemed fit and proper in the facts and circumstances of the case suitable to the petitioner may also be granted.

          10.5 That this Hon'ble Court be graciously pleased to allow this petition and set aside/ quash the impugned orders Annexure P/10, P/11 and P/12 in the interest of justice.

          10.6 That this Hon'ble Court be graciously pleased to direct the respondents to entire arrears of increments along with 10% per annum interest thereupon, from the date of entitlement till the date of actual payment, in the interest of justice.

          10.7 That this Hon'ble Court be pleased to direct the respondents to compensate the petitioner for harassment and mental agony. Cost of litigation may also be awarded.”

5. Brief facts of the case, in a nutshell, are that the petitioner was selected as Assistant District Public Prosecution Officer (ADPO) on 05.05.2010 and joined service on 27.12.2010 on a two-year probation. She performed her duties satisfactorily, and her service was recommended for confirmation on 17.03.2015. Despite a spotless record and completion of the probation period, the department delayed her confirmation and, without justification, initiated a departmental enquiry and suspended her from 24.05.2016 to 30.04.2018.

6. Earlier, the petitioner filed WPS No. 1120/2019 seeking regularization and increment benefits, which was disposed of on 20.02.2019 with a direction to decide her claim within 90 days. The department, however, rejected her representation on 04.09.2019, citing pendency of the departmental enquiry. The contempt petition filed for non-compliance was disposed of on 17.10.2019, leaving the petitioner the right to challenge subsequent actions.

7. Even after the departmental enquiry concluded on 10.05.2022, the petitioner has neither been granted confirmation nor entitled to salary increments, despite completing over 12 years of service. Several departmental orders (dated 23.08.2019, 01.10.2019, and 09.06.2022) further denied her confirmation, citing lack of vacant posts or invalidating earlier orders of posting. The petitioner contends that these actions are arbitrary, illegal, and have deprived her of rightful service benefits.

8. Mr. Aman Tamboli, learned counsel for the petitioner, submits that the petitioner has been working with honesty and sincerity for more than 12 years in the department, without any fault or stigma. Despite her spotless record, the respondent authorities have neither confirmed her service nor granted her entitled increments. It is further submitted that as per Rule 8(2) of the Chhattisgarh General Conditions of Service Rules, 1961, the petitioner’s probation period has not been extended, nor has she been granted permanent status on the post of ADPO. As a result, she has been deprived of the benefits of salary increments and permanent service status, in blatant violation of settled principles of service jurisprudence. He also submits that the petitioner successfully completed her two-year probation, as evident from the recommendation for confirmation dated 17.03.2015 (Annexure P-4), without any allegations against her during the probation period. The departmental enquiry and alleged misconduct arose only after the completion of probation, and therefore, the denial of confirmation is wholly unjustified and in violation of natural justice.

9. Mr. Tamboli further submits that the impugned orders dated 04.09.2019 (Annexure P/1), 23.08.2019 (Annexure P-10), 01.10.2019 (Annexure P-11), and 09.06.2022 (Annexure P-12) are arbitrary, non-speaking, and have been passed with malafide intent, solely to harass the petitioner and deny her lawful entitlements of increments and confirmation. The respondents had no jurisdiction to cancel the confirmation already granted, and such orders, which carry civil consequences, cannot be passed without affording the petitioner a reasonable opportunity of hearing. It is submitted that the petitioner is entitled to be treated as confirmed in service with effect from the date of recommendation dated 17.03.2015, and is entitled to all arrears of salary, increments, and consequential benefits from 2011 onwards.

10. Reliance has been placed upon the judgments of the Hon’ble Supreme Court in Srusti Academy of Management vs. State of Odisha and others (2024 INSC 939) and of this Court in Teekam Dewangan vs. State of Chhattisgarh and others (WPS No. 481/2024, 2025:CGHC:36611), wherein it was held that orders affecting service rights and civil consequences cannot be passed without adherence to the principles of natural justice. Lastly, it is submitted that the impugned orders deserve to be quashed and the petitioner’s confirmation and all consequential benefits ought to be restored.

11. On the other hand, Mr. Hariom Rai, learned counsel appearing for the State/respondents, learned State counsel vehemently opposes the writ petition and submits that the petition is devoid of merit, based on incorrect assumptions of facts and law, and is liable to be dismissed at the threshold. It is submitted that the petitioner was appointed as Assistant District Prosecution Officer on probation and did not acquire any vested or indefeasible right of confirmation merely on completion of the probationary period. Confirmation in service is not automatic and is subject to fulfillment of statutory requirements, availability of permanent posts and satisfactory service record, including the absence of any subsisting or concluded disciplinary proceedings.

12. Mr. Rai submits that during the year 2015, serious allegations of misconduct were levelled against the petitioner, which culminated in issuance of a charge-sheet on 28.01.2017 under the Chhattisgarh Civil Services (Conduct) Rules, 1965. The petitioner submitted her reply and thereafter participated in the departmental enquiry, wherein she voluntarily confessed to the charges. On the basis of such confession, the charges were found proved and the petitioner was awarded punishment as per the relevant service rules. In view of the pendency as well as the outcome of the disciplinary proceedings, the petitioner’s case was rightly kept out of consideration for confirmation along with other similarly placed probationary officers. Thus, there was a valid and lawful impediment in granting confirmation to the petitioner.

13. It is contended by Mr. Rai that although a posting order dated 23.08.2017 mentioned expiry of probation in respect of several officers including the petitioner, the said order was purely administrative in nature and did not confer any right of confirmation. Subsequently, on realizing that the petitioner’s probation had not legally concluded, the competent authority issued clarification/amendment deleting the reference to expiry of probation in the petitioner’s case. It is well settled that an erroneous or inadvertent administrative entry cannot override statutory rules or confer a benefit contrary to law.

14. Mr. Rai also that as per Rule 22-C of the Chhattisgarh Fundamental Rules, read with the General Administration Department circulars dated 09.12.1974, 30.05.1977 and 06.06.1979, a probationer or unconfirmed employee is not entitled to annual increments unless an order of confirmation is issued or a specific certificate regarding non-availability of permanent posts is granted by the competent authority. Since the petitioner was never confirmed and no such certificate was issued in her favour, the rejection of her claim for increment and confirmation was strictly in accordance with law.

15. It is also submitted by Mr. Rai that pursuant to the directions of this Hon’ble Court passed in WPS No.1120/2019, the petitioner’s representation was duly examined by the competent authority in a fair and reasoned manner and was rejected vide order dated 04.09.2019. The said order attained finality as the petitioner failed to challenge the same within a reasonable period. The present writ petition, filed after more than three years of rejection of the representation, suffers from gross delay and laches, for which no plausible explanation has been offered.

16. Mr. Rai places reliance upon the judgment of the Hon’ble Supreme Court in Surjeet Singh Sahni v. State of U.P. (SLP (C) No. 3008 of 2022, decided on 28.02.2022), wherein it has been categorically held that mere submission of representations does not extend the period of limitation and that stale claims should not be entertained by constitutional courts. Hence, the petitioner cannot seek to revive a dead cause of action on the pretext of pending representations or appeals.

17. It is further submitted by Mr. Rai that due to resignation, death of several similarly situated officers and non-availability of permanent posts, the question of confirmation of the remaining probationary officers, including the petitioner, did not arise. The administrative decision taken by the State on 09.06.2022 is a policy decision based on objective considerations and does not suffer from arbitrariness or mala fides.

18. In view of the aforesaid facts and legal position, Mr. Rai finally submits that the petitioner has failed to demonstrate any violation of statutory provisions or infringement of any legal right. The writ petition is thus misconceived, barred by delay and laches, and deserves to be dismissed with costs.

19. I have heard learned counsel for the petitioner as well as learned counsel appearing for the respondents and have perused the pleadings and documents placed on record.

20. It is not in dispute that the petitioner was duly selected through the Chhattisgarh Public Service Commission and appointed as Assistant District Public Prosecution Officer on 16.12.2010, joining service on 27.12.2010. It is equally undisputed that she successfully completed the prescribed period of two years’ probation on 26.12.2012 and that her service during the probation period was found satisfactory and unblemished. The recommendation dated 17.03.2015 made by respondent No.2 for confirmation of the petitioner’s service clearly records that she had completed her probation and was fit for confirmation. There is no material on record to show that the probation period of the petitioner was ever extended in accordance with law.

21. The subsequent initiation of a departmental enquiry in the year 2016–2017, i.e., long after the successful completion of the probation period, cannot retrospectively eclipse or nullify the petitioner’s accrued right to consideration for confirmation. The law is well settled that once an employee has completed probation satisfactorily and there is no adverse material pertaining to the probation period, confirmation cannot be withheld indefinitely on the basis of subsequent events, unless the applicable rules expressly so permit. In the present case, no such statutory provision has been brought to the notice of this Court by the respondents.

22. The conduct of the respondents in first recommending the petitioner for confirmation, thereafter including her name in the list of officers whose probation had ended and who were posted vide order dated 23.08.2017, and subsequently deleting her name and rendering the said order ineffective qua her, without issuing any show-cause notice or affording any opportunity of hearing, is ex facie arbitrary and violative of the principles of natural justice. Cancellation of confirmation or denial of confirmation after its due accrual entails serious civil consequences, including loss of increments, permanency, seniority, and other attendant service benefits, and therefore cannot be effected by a mechanical or unilateral executive action.

23. The impugned orders dated 23.08.2019, 01.10.2019 and 09.06.2022, when tested on the anvil of fairness, reasonableness, and non-arbitrariness, fail to pass constitutional muster. The plea of non-availability of vacant posts, as projected by the respondents, is found to be untenable, particularly in view of the admitted position that several appointments and confirmations have been made in the cadre from time to time and that the petitioner’s confirmation had already been recommended and acted upon in principle. Once a right to confirmation has crystallized, it cannot be defeated by such shifting and inconsistent stands.

24. The objection of delay and laches raised by the respondents is also devoid of merit. The petitioner has been continuously agitating her grievance, initially by filing WPS No.1120/2019, thereafter by instituting contempt proceedings, and finally by challenging the subsequent adverse orders which themselves furnished a fresh and continuing cause of action. In service matters involving recurring and continuing wrongs, particularly where denial of increments and permanent status persists from month to month, the plea of delay cannot be applied with rigidity so as to perpetuate illegality.

25. The reliance placed by learned counsel for the petitioner on the judgments of the Hon’ble Supreme Court in Srusti Academy of Management (supra) and of this Court in Teekam Dewangan (supra) is apposite. The impugned orders in the present case have admittedly been passed without affording any opportunity of hearing to the petitioner and, therefore, stand vitiated for violation of the principles of natural justice. Conversely, the decision relied upon by the respondents in Surjeet Singh Sahni (supra) is clearly distinguishable on facts and does not come to their aid.

26. It is settled principle of law that any order inviting adverse civil consequences cannot be passed without adherence to the principles of natural justice. In any case, the relevant provision itself requires a hearing to be given to the institution(s) before a revision is made.

27. This Court is constrained to observe that the manner in which the petitioner has been singled out for denial of confirmation and increments, despite long years of service and in the teeth of a clear recommendation for confirmation, reflects an arbitrary and colourable exercise of power. Such action strikes at the very root of service jurisprudence and offends Articles 14 and 16 of the Constitution of India.

28. In view of the foregoing discussion, this Court holds that the impugned orders dated 04.09.2019 (Annexure P/1), 23.08.2019 (Annexure P/10), 01.10.2019 (Annexure P/11) and 09.06.2022 (Annexure P/12) are illegal, arbitrary and unsustainable in law, and are liable to be quashed.

29. Consequently, the writ petition is allowed. The respondents are directed:

          (i) to treat the petitioner as having been duly confirmed on the post of Assistant District Public Prosecution Officer with effect from the date of recommendation dated 17.03.2015, or such earlier date as may be admissible under the rules;

          (ii) to grant to the petitioner all consequential service benefits, including annual increments, fixation of pay, and continuity of service, as admissible in law.

30. The writ petition stands allowed in the aforesaid terms. No order as to costs.