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IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
Arup Kumar Goswami, Rajendra Chandra Singh Samant, JJ.
Vikram Singh Yadav S/o Late I.S. Yadav - Appellant
Versus
State of Chhattisgarh Through Principal Secretary, Department Of Housing And Environment, Mantralaya, Naya Raipur Chhattisgarh - Respondent
WPS No. 6178, 10875 of 2019
Decided On : 28-06-2022
Constitution of India,1950 - Articles 166, 166(1) , 77 - Chhattisgarh General Clauses Act, 1957 - Section 2(41) - Chhattisgarh Grih Nirman Mandal Adhiniyam, 1972 - Sections 17 or 103(3), 2(41) , 2(42) , 18 , 17 - Preventive Detention Act, 1950 - Section 11(1) - Appointment by way of promotion - Recruitment process - Conduct of business of the Government of a State - Promotion from post of Senior Assistant in terms of Schedule II, Serial - It is pleaded that on ground of non-availability of qualified employees to fill up posts of Accountant, in a meeting held respondent resolved to amend Regulation of 2011 by proposing to fill up 50% of posts by way of direct recruitment, instead of 100% appointment by way of promotion - Recommendations were forwarded to respondent No. 1 for approval - Approval was accorded for amendment of the Regulation and a notification incorporating amendment was published in gazette - Approval was accorded by the Under Secretary to the Housing & Environment and not by the State Government as required under Regulation of 2011 as same was not issued by and in name of Governor in terms of Article 166 of the Constitution of India. It is pleaded that under Section 2(41) of Chhattisgarh General Clauses Act, 1957 State Government means Governor of the State of Chhattisgarh - Held, Housing Board has sent a proposal for amendment in Service (Recruitment) Regulations for filling up 50 posts of Estate Manager/Branch Officer by direct recruitment - Chief Accounts Officer, Chhattisgarh Housing Board was directed to remain present proposal Chief Accounts Officer was present - Chhattisgarh Grih Nirman Mandal Service (Recruitment) Regulations, 2011, there is a provision to fill up 100% posts of Estate Manager/Branch Officer by promotion and in the same manner, there is a provision to fill 100% posts of Accountant by promotion. According to the proposal of Board, out of said posts, if 50% of the posts are filled by direct recruitment, then chances of the employees/officers of the Board will be affected and there may be dissatisfaction amongst employees - Court find no merit in the contention that proposal of the Board for amendment of Regulation of 2011 was not approved/confirmed by State Government - There is no illegality in advertisement assailed in WPS appointment orders were issued to respondents advertisement was assailed on ground that there was no approval of the State Government for amending the Regulation of 2011 on the basis of which the impugned advertisement was issued - Writ petitions are dismissed.
JUDGMENT :
Arup Kumar Goswami, J.
Heard Mr. Shishir Dixit, learned counsel, appearing for the petitioner in WPS No. 6178/2019 and Mr. Tanmay Thomas, learned counsel, appearing for the petitioners in WPS No. 10875/2019, Mr. Gagan Tiwari, learned Deputy Government Advocate, appearing for the respondent No. 1/State as well as Mr. Sanjay Patel, learned counsel, appearing for the respondent No. 2 and 3/Chhattisgarh Housing Board and Mr. Rupesh Shrivastava, learned counsel, appearing for the respondents No. 4, 5, 7 to 11 in WPS No. 10875/2019.
2. The petitioner in WPS No. 6178/2019 was appointed as Assistant on 22.06.2010 in respondent No. 2, Chhattisgarh Housing Board (for short, the Board), established under the Chhattisgarh Grih Nirman Mandal Adhiniyam, 1972 (for short, the Act of 1972) and subsequently, he was promoted to the post of Senior Assistant on 18.09.2019. He is presently posted at Division Office at Durg and is also discharging duties as incharge Divisional Accountant.
3. The petitioner No.1 in WPS No.10875/2019 was also appointed as Assistant by order dated 23.08.1994 and the petitioners No. 2 to 4 were appointed as Assistant by order dated 09.08.1995. By order dated 03.12.2014, they were promoted as Senior Assistants.
4. In WPS No. 6178/2019, it is pleaded that in exercise of powers conferred under Section 17 and Section 103 of the Act of 1972, the Board framed the Chhattisgarh Grih Nirman Mandal Service (Recruitment) Regulations, 2011 (for short, the Regulation of 2011) and that the same had come into force on 16.02.2012. However, in WPS No. 10875/2019, it is stated that the same was notified on 16.01.2012. In the return filed by the respondents No. 4, 5, 7 to 11 in WPS No. 10875/2018, it is stated that the Regulations of 2011 had come into existence with effect from 16.02.2012.
5. Perusal of the notification goes to show that the same was issued on 16.01.2012 and clause 1(2) of the Regulation of 2011 states that the regulations shall come into force from the date of publication in the official gazette. The Regulations of 2011 was published on 08.06.2012, and therefore, it appears that the Regulation of 2011 had come into force on 08.06.2012.
6. It is pleaded in both the writ petitions that according to Regulation of 2011, the post of Accountant (Lekhapal) is to be filled up 100% by way of promotion from the post of Senior Assistant in terms of Schedule II, Serial No. 26. It is pleaded that on the ground of non-availability of qualified employees to fill up the posts of Accountant, in a meeting held on 19.06.2014, the respondent No. 2 resolved to amend the Regulation of 2011 by proposing to fill up 50% of the posts by way of direct recruitment, instead of 100% appointment by way of promotion. The recommendations were forwarded to respondent No. 1 for approval. Approval was accorded for amendment of the Regulation of 2011 and a notification incorporating the amendment was published in the gazette on 04.02.2015. The approval was accorded by the Under Secretary to the Housing & Environment and not by the State Government as required under Regulation of 2011 as the same was not issued by and in the name of the Governor in terms of Article 166 of the Constitution of India. It is pleaded that under Section 2(41) of the Chhattisgarh General Clauses Act, 1957 (for short, the Act of 1957) State Government means Governor of the State of Chhattisgarh.
7. In WPS No. 6178/2019, prayer is made for quashing the consent dated 04.02.2015 and the notification dated 04.02.2015.
8. In WPS No. 10875/2019, it is further pleaded that an advertisement dated 15.02.2018 was issued for direct recruitment for 11 posts of Accountant and that after publication of the aforesaid advertisement, the petitioners came to learn about the amendment made in the Regulation of 2011 and accordingly, had submitted various representations on 19.02.2018, 07.09.2018 and 18.11.2019.
9. In WPS No. 10875/2019, amongst others, a prayer is made to set aside the amendment noti
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