Nandkumar Gupta S/o Shri Tikaram Gupta vs State of Chhattisgarh

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Chh) 244

IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
Arup Kumar Goswami, Gautam Chourdiya, JJ.
Nandkumar Gupta S/o Shri Tikaram Gupta & Ors. - Appellant
Vs.
State of Chhattisgarh & Ors. - Respondent
WPS No. 1081 of 2020, WPS No. 16, 3005, 6864 of 2021, WPS No. 4805 of 2020, WPPIL No. 29 of 2021, WPS No. 143 of 2022
Decided On : 12-05-2022

Advocates:
Advocate Appeared:
For the Petitioners:Mr. Ishan Verma, Mr. Sanjeev Kumar Sahu, Mr. Ajay Shrivastava, Ms. Naushina Afrin Ali, Advocate.
For the Respondents/State:Mr. Jitendra Pali, Deputy Advocate General
For the Intervenors :Mr. Ajay Shrivastava, Mr. Parag Kotecha and Mr. C.J.K. Rao and Mr. Ishan Verma, Advocate

Headnote:
Constitution of India,1950 - Articles 14,16, 309 , 244(1) , 244(2) , 16(2) , 16(3), 15 (1) and (2) - Public Employment (Requirement as to Residence) Act, 1957 - Section 3 - Recruitment to the Class-III and Class- IV posts of the District cadre - Discrimination on grounds not only of religion, race, caste or sex but also of place of birth - Petitioners residents of different - Petitioners in WPS residents of districts falling under Division of State of Chhattisgarh - Petitions can be divided into two categories one category comprising reservation in service on basis of residence in scheduled areas is canvassed and second category comprising opposite view is purpose of first category - Written test conducted by post of Teacher (Biology and Maths) and some for post of Assistant Teacher (Science) and posts of Assistant Teachers were reserved for Districts falling under Division - Participated for the post of Assistant Teacher (Science) and had cleared examination - Petitioners in WPC had participated in the examination for post of Assistant Teacher (Science) and (Laboratory) and had cleared same - Held, Candidates was sought to be taken away - It is in the above circumstance, notification was issued providing that the notification shall not affect advertisement - It is not that by notification rules of game had been sought to be changed after selection process has started, notification was allowed to hold the field, same would have changed rules of game after selection process had begun - Even if Governor has a power to make amendment retrospectively in exercise of power under paragraph 5 of Fifth Schedule, such power cannot be exercised to take away vested rights - retroactivity as being violative of Articles 14 and 16 of Constitution, but a rule which seeks to reverse from an anterior date a benefit which has been granted or availed of, can be assailed as being violative of Articles 14 and 16 of Constitution to extent it operates retrospectively - Expression ‘vested rights’ or ‘accrued rights’ have been used in the context of a right flowing under relevant rule which was sought to be altered with effect from an anterior date and thereby taking away benefits available under the rule in force at that time. Such an amendment having retrospective operation which has the effect of taking away a benefit already available to employee under the existing rule is arbitrary, discriminatory and violative of rights guaranteed under Articles 14 and 16 of Constitution - WPS No. 1081/2020, WPS No. 6864/2021, WPS No. 3005/2021 and WPPIL No. 29/2021 are dismissed. WP(S) No. 4850/2020, WPS No. 16/2021 and WPS No. 143/2022, are allowed

ORDER :

Arup Kumar Goswami, J.

Heard Mr. Ishan Verma, learned counsel, appearing for the petitioners in WPS No. 1081/2020, WPS No. 6864/2021, WPS No. 3005/2021, Mr. Sanjeev Kumar Sahu, learned counsel, appearing for the petitioners in WPPIL No. 29/2021, Mr. Ajay Shrivastava, learned counsel, appearing for the petitioners in WPS No. 4805/2020 and WPS No. 16/2021, Ms. Naushina Afrin Ali, learned counsel, appearing for the petitioners in WPS No. 143/2022, Mr. Jitendra Pali, learned Deputy Advocate General for the respondent State as well as Mr. Ajay Shrivastava, Mr. Parag Kotecha and Mr. C.J.K. Rao, learned counsel, appearing for the intervenors, in WPS No. 1081/2020, and Mr. Ishan Verma, learned counsel, appearing for the intervenors in WPS No. 16/2021.

2. The petitioners, in WP(S) No. 1081/2020, are residents of different districts falling under Bastar and Surguja Division and of District Korba of the State of Chattisgarh. The petitioner in WP(S) No. 6864/2021 is a resident of District Korba. The petitioners in WPS No. 3005/2021 are the residents of districts falling under Bastar and Surguja Division of the State of Chhattisgarh.

3. Bastar Division consists of Districts of Jagdalpur, Dantewada, Bijapur, Narayanpur, Sukma, Kondagaon and Kanker, and Surguja Division consists of Districts Koria, Surajpur, Balrampur, Ambikapur and Jashpur.

4. In these three writ petitions, identical prayers are made which are as follows:

“10.1 The Hon’ble Court may kindly be pleased to quash the impugned amended notification dated 30.01.2020 (Annexure P/1) as ultra vires to Article 14 and 16 of the Constitution of India.

10.2 The Hon’ble Court may kindly be pleased to direct the respondent authorities to follow the earlier notification dated 28.05.2019; thereafter issue the appointment orders as per merit.

10.3 This Hon’ble Court may kindly be pleased to grant any other relief(s)/writ(s), order(s) in favour of the petitioner, which the Hon’ble Court deemed fit and just in the facts and circumstances of the case, including awarding of the costs to the petitioner.”

5. The petitioner in WPPIL No. 29/2021 is the Regional Head (Prantadhyaksha) of the Government Employees Welfare Association. The prayers made in this petition are as follows:

“10.1 That this Hon’ble Court may kindly be pleased to declare the impugned amendment notification (Annexure P/1) as ultra vires to the provisions of subpara (1) of para 5 of the Fifth Schedule of the Constitution of India as well as Rule 5 of the Chattisgarh Civil Services (General Conditions of Services) Rules, 1961 and set aside/quash the impugned amendment notification (Annexure P/1).

10.2 That, this Hon’ble Court may kindly be pleased to direct the respondents No. 2 and 3 to fill up the post of Teacher cadre as per advertisement dated 09.03.2019 as per the notification dated 28.05.2019 by giving opportunity to the local residents of Bastar, Surguja and Korba Divisions from getting appointment to the Teachers cadre post, in accordance with law.

10.3 That, any other relief/order which may deem fit and just in the facts and circumstances of the case including award of the costs of the petition may be given.”

6. Annexure P/1, as referred to in the prayer portion of WPPIL No. 29/2021, is the amended notification dated 30.01.2020.

7. Prayers made in WPS No. 4805/2020 and WPS No. 16/2021 are identical and the same read as follows:

“10(i) That, this Hon’ble Court may kindly be pleased to held amendment in rule 5 of Chhattisgarh Civil Services (General Conditions of Service) Rules, 1961 by way of notification (Annexure P/1) as ultra vires being arbitrary and discriminatory, in the interest of justice.

10(ii) That, this Hon’ble Court may kindly be pleased to direct the respondent authorities to provide equal opportunity in employment irrespective of their domicile, in the interest of justice.

10(iii) Any other relief which may be suitable in the facts and circumstances of the case, may also be granted.”

8. The prayers made in WPS No. 143/2

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