Madhya Pradesh High Court
Anjulata Shivhare vs The State Of Madhya Pradesh on 14 December, 2022
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 14th OF DECEMBER, 2022
WRIT PETITION No. 27271 of 2022
BETWEEN:-
RAMKUMAR DANGI S/O RAMJI SHARAN
DANGI, AGE 47 YEARS, OCCUPATION:
LITIGATION, R/O 1/36, CIVIL LINE RAM
NAGAR COLONY DATIA (MADHYA
PRADESH)
........PETITIONERS
(BY SHRI PRADEEP SHARMA- ADVOCATE)
AND
1. STATE OF MADHYA PRADESH THROUGH
PRINCIPAL SECRETARY, HOME
DEPARTMENT VALLABH BHAVAN
BHOPAL (MADHYA PRADESH)
2. EXAMINATION CONTROLLER, MPPSC
INDORE (MADHYA PRADESH)
3. ADDITIONAL SECRETARY, GENERAL
ADMINISTRATION DEPARTMENT,
VALLABH BHAVAN, BHOPAL (MADHYA
PRADESH)
........RESPONDENTS
(SHRI C.P. SINGH- PANEL LAWYER FOR STATE)
(SHRI RAVINDRA DIXIT-ADVOCATE FOR RESPONDENT NO.2)
WRIT PETITION No. 27024 of 2022
BETWEEN:-
1. SACHIN AGRAWAL S/O SHRI SURENDRA
AGRAWAL, AGE - 42 YEARS,
2
OCCUPATION: ADVOCATE, R/O H-10,
JAGRATI NAGAR, LAXMIGANJ,
LASHKAR, GWALIOR (MADHYA
PRADESH)
2. ASHISH GANGIL S/O SHRI SURESH
CHANDAR GANGIL, AGE 41 YEARS,
OCCUPATION: ADVOCATE, R/O GANJ
GATE, SADAR BAZAAR, MORAR
(MADHYA PRADESH)
3. AJAY SHRIVASTAVA S/O SHRI VINOD
KUMAR SHRIVASTAVA, AGE 42 YEARS,
OCCUPATION: ADVOCATE, R/O NEAR
SHRI KRISHNA ASHRAM, LAXMAN PURA,
DABRA, DISTT. GWALIOR (MADHYA
PRADESH
........PETITIONERS
(BY SHRI VIVEK JAIN- ADVOCATE)
AND
1. STATE OF MADHYA PRADESH, THROUGH
THE PRINCIPAL SECRETARY,
DEPARTMENT OF HOME, VALLABH
BHAWAN, BHOPAL (MADHYA PRADESH)
2. THE MADHYA PRADESH PUBLIC
SERVICE COMMISSION, RESIDENCY
AREA, INDORE (MP) THROUGH ITS
SECRETARY
........RESPONDENTS
(SHRI C.P. SINGH- PANEL LAWYER FOR RESPONDENT NO.1/STATE)
(SHRI RAVINDRA DIXIT-ADVOCATE FOR RESPONDENT NO.2)
WRIT PETITION No. 28721 of 2022
BETWEEN:-
1. ANJULATA SHIVHARE W/O SHRI VISHNU
SHIVHARE, AGED 46 YEARS,
OCCUPATION: ADVOCATE, R/O SADAR
BAZAR, MOHNA DISTRICT GWALIOR
(MADHYA PRADESH)
2. HEMANT SINGH TOMAR S/O LATE SHRI
PEHLAD SINGH TOMAR, AGED 41 YEARS,
3
OCCUPATION - ADVOCATE, R/O NAKA
CHANDRVATI LASHKAR (MADHYA
PRADESH
........PETITIONERS
(BY SHRI IMRAN KHAN- ADVOCATE)
AND
1. STATE OF MADHYA PRADESH THROUGH
THE PRINCIPAL SECRETARY, HOME
VALLABH BHAWAN, BHOPAL (MADHYA
PRADESH)
2. M.P. PUBLIC SERVICE COMMISSION,
THROUGH SECRETARY, M.P.P.S.C.
RESIDENCY AREA, INDORE (MADHYA
PRADESH)
3. ADDITIONAL SECRETARY, GENERAL
ADMINISTRATION DEPARTMENT,
MADHYA PRADESH BHOPAL (MADHYA
PRADESH)
........RESPONDENTS
(SHRI C.P. SINGH- PANEL LAWYER FOR STATE)
(SHRI RAVINDRA DIXIT-ADVOCATE FOR RESPONDENT NO.2)
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These petitions coming on for admission this day, the Court
passed the following:
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ORDER
By this common order, W.P. No.27271/2022 filed by Ramkumar Dangi, W.P. No.27024/2022 filed by Sachin Agrawal and others and W.P. No.28721/2022 filed by Anjulata Shivhare and another shall also be decided.
2. For the sake of convenience, the pleadings of W.P. No.27271/2022 filed by Ram Kumar Dangi shall be considered.
3. This petition under Article 226 of the Constitution of India has 4 been filed seeking following relief:-
It is most humbly prayed to Hon'ble Court to direct the respondent no. 2 re-open the portal for filing the exam form.
Or, direct the respondent to conduct the exam, and issue the notification for session 2023, so that petitioner may not be discriminated.
4. The petitioner is a practicing Lawyer and is interested for participating in the recruitment process for the post of Assistant District Prosecution Officer (ADPO). At present, the petitioner is aged about 47 years. It is the case of the petitioner that since last 7 years, no examination has been conducted for the post of ADPO. On 17.06.2021 examination was notified and the last date for submission of application form was 16.07.2021, but the said date has been extended and examination is now fixed for 18.12.2022. It is submitted that on 18.09.2022, the GAD has issued a circular No.F-07-46/2021/A.PR./1 and granted age relaxation of 3 years to the aspirants who are interested in participating in the recruitment to the various posts of State Government. The said circular was issued in the light of the difficulties due to Covid-19 Pandemic. It is submitted that the petitioner belongs to OBC category and upper age limit for appearing in the examination of ADPO is 45 years for OBC candidate. If the petitioner is granted relaxation of three years in the light of circular dated 18.09.2022, then he would become eligible to participate in the examination. However, the portal is not being opened for filling up the examination form. Thus, it is the case of the petitioner that because of non-holding of examination for the post of ADPO for the last seven years, legitimate right of the petitioner to participate in the recruitment to the said post 5 has been taken away which is violative of Article 16 of the Constitution of India. Furthermore, once the State Government has decided that the relaxation of three years shall be given in respect of all government jobs in the light of Covid-19 Pandemic, then non-extension of same benefits to the advertisement in question is bad in law.
5. The respondent No. 2 has filed its return and submitted that the examination of ADPO, 2021 has been scheduled to be held on 18.12.2022. MPPSC has issued an advertisement for recruitment to the post of ADPO and the last date for filling up the examination form was 16.07.2021. On 30.05.2022 corrigendum was issued for filling up the examination form as per the directions issued by the Court vide order dated 08.03.2022 passed in W.P. No.5096/2022 for those candidates who belong to other States. As per the directions dated 08/02/2022 issued by the Division Bench of this Court in W.P. No.2108/2022, age relaxation of 5 years has been granted to EWS category and as per the corrigendum, 10 days further time was granted to fill up the examination form up to 17.06.2022. As per the condition No. 6 of the advertisement, minimum eligible age is 21 years, whereas the maximum eligible age is 40 years as on 01.01.2022. The petitioner belongs to OBC category and, therefore, the maximum age for OBC candidate is 45 years.
6. So far as the circular dated 18.09.2022 is concerned, it will have prospective effect and since it was not in existence on the last date of submission of application form, therefore, the same cannot be given retrospective effect. The Supreme Court in the case of Hirendra Kumar Vs. High Court of Judicature at Allahabad and another passed in Civil Appeal No.1262/2019 has negatived the contention of 6 the aspirants to roll back the date with reference to attainment of upper age limit.
7. The respondent No. 1 has also filed its return and submitted that the circular dated 18.09.2022 is prospective in nature and cannot be given retrospective effect. The advertisement for recruitment to the post of ADPO was issued in the year 2021 and last date for submission of application form was 16.07.2021. Last date for submission of form was extended in the light of the judgment passed by this Court and even in accordance with the corringendum, the last date for submitting the examination form is/was 17.06.2022.
8. Heard the learned counsel for the parties.
9. It is the case of the petitioner that because of non-issuance of advertisement for the recruitment to the post of ADPO, he could not appear in the examination and could not apply for the same. It is the case of the petitioner that the examination could not take place because of Covid-19 Pandemic.
10. The Supreme Court in the case of Rachna and others Vs. Union of India and another, reported in (2021) 5 SCC 638 has held as under:-
"45. Judicial review of a policy decision and to issue mandamus to frame policy in a particular manner are absolutely different. It is within the realm of the executive to take a policy decision based on the prevailing circumstances for better administration and in meeting out the exigencies but at the same time, it is not within the domain of the courts to legislate. The courts do interpret the laws and in such an interpretation, certain creative process is involved. The courts have the jurisdiction to declare the law as unconstitutional. That too, where it is called for. The court is called upon to consider the validity of a policy decision only when a challenge is made that such 7 policy decision infringes fundamental rights guaranteed by the Constitution or any other statutory right. Merely because as a matter of policy, if the 1st respondent has granted relaxation in the past for the reason that there was a change in the examination pattern/syllabus and in the given situation, had considered to be an impediment for the participant in the Civil Services Examination, no assistance can be claimed by the petitioners in seeking mandamus to the 1st respondent to come out with a policy granting relaxation to the participants who had availed a final and last attempt or have crossed the upper age by appearing in the Examination 2020 as a matter of right.
46. It has been brought to our notice that not only the petitioners-interveners before this Court, but there are large number of candidates who appeared in the various examinations in the year 2020 during COVID- 19 Pandemic and everyone must have faced some constraints/impediments/inconvenience in one way or the other and this Court can take a judicial notice that these petitioners have appeared in the same pattern of examination in the previous years since the year 2015 and what is being claimed and prayed for under the guise of COVID-19 Pandemic is nothing but a lame excuse in taking additional attempt to participate in the Civil Services Examination 2021 to be held in future and we find no substance in either of the submissions which has been made before us.
47. The data furnished to this Court by the Commission clearly indicate that various selections have been held by the Commission for Central Services in the year 2020 during COVID-19 Pandemic and selections must have been held by the State Commissions and other recruiting agencies, if this Court shows indulgence to few who had participated in the Examination 2020, it will set down a precedent and also have cascading effect on examinations in other streams, for which we are dissuaded to exercise plenary powers under Article 142 of the Constitution.
48. We, however, make it clear that this decision 8 would not restrict the 1st respondent or the executive in exercising its discretion in meeting out the nature of difficulties as being projected to this Court, if come across in future in dealing with the situation, if required."
11. Accordingly, the circular dated 18.09.2022 shall be considered in the light of the above-mentioned judgment. The circular dated 18.09.2022 reads as under:-
e/; izns'k 'kklu lkekU; iz'kklu foHkkx ea=ky;
oYyHk Hkou Hkksiky&462004 dzekad ,Q 07&46@2021@vk-iz-@,d Hkksiky fnukad 18 flrEcj] 2022 izfr] 'kklu ds leLr foHkkx] leLr foHkkxk/;{k] leLr laHkkxk;qDr] leLr dysDVj] leLr eq[; dk;Zikyu vf/kdkjh] ftyk iapk;r e/;izn's kA fo"k;%& jkT; 'kklu dh lsokvksa esa lh/kh HkrhZ ls Hkjs tkus okys inksa ij fu;qfDr ds fy;s fu/kkZfjr vf/kdre vk;q lhek esa NwV ckcr~A lanHkZ%& foHkkxh; ifji= dzekad lh&3&8@2016@1@3 Hkksiky fnukad 04 tqykbZ 2019 &&&&& bl foHkkx ds lanfHkZr ifji= }kjk jkT; 'kklu dh lsokvksa esa lh/kh HkrhZ ls Hkjs tkus okys inksa ij fu;qfDr;ksa ds fy;s vf/kdre vk;q lhek laca/kh funZ's k tkjh fd;s x;s gSA dksfoM&19 ds dkj.k foxr rhu o"kkZs ls HkrhZ ijh{kk,a fu;fer vk;ksftr ugha dh tk ldh gSa] vr% vH;kfFkZ;ksa ds fgrksa dks /;ku esa j[krs gq, jkT; 'kklu fnlEcj 2023 rd vH;kfFkZ;ksa dh vf/kdre vk;q lhek esa rhu o"kkZs dh NwV Hkjs tkus okys inksa ds laca/k esa tkjh izFke foKkiu esa iznku djrk gSA 9 e/;izn's k ds jkT;iky ds uke ls rFkk vkns'kkuqlkj ¼'kSyckyk ,- ekfVZu½ vij lfpo e/;izn's k 'kklu lkekU; iz'kklu foHkkx
12. It is nowhere mentioned that whether the circular will have retrospective effect or prospective effect, therefore, the only question for consideration before this Court is as to whether above-mentioned circular will have retrospective effect or not ?
13. The Supreme Court in the case of District Collector, Vellore District Vs. K. Govindaraj, reported in (2016) 4 SCC 763 has held as under:-
13. As mentioned above, though the legislature has plenary powers of legislation within the fields assigned to it and can legislate prospectively or retrospectively, the general rule is that in the absence of the enactment specifically mentioning that the legislation or legislative amendment concerned is retrospectively made, the same is to be treated as prospective in nature. It would be more so when the statute is dealing with substantive rights. No doubt, in contrast to statute dealing with substantive rights, wherever a statute deals with merely a matter of procedure, such a statute/amendment in the statute is presumed to be retrospective unless such a construction is textually inadmissible. At the same time, it is to be borne in mind that a particular provision in a procedural statute may be substantive in nature and such a provision cannot be given retrospective effect. To put it otherwise, the classification of a statute, either substantive or procedural, does not necessarily determine whether it may have a retrospective operation. In Maxwell v.
Murphy [Maxwell v. Murphy, (1957) 96 CLR 261 10 (Aust)] , Dixon, C.J. formulated the aforesaid procedure in the following words:
"The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events. But given rights and liabilities fixed by reference to the past facts, matters or events, the law appointing or regulating the manner in which they are to be enforced or their enjoyment is to be secured by judicial remedy is not within the application of such a presumption."
14. The Supreme Court in the case of Commissioner of Income Tax 5 Mumbai Vs. Essar Teleholdings Limited Through Its Manager, reported in (2018) 3 SCC 253 has held as under:-
22. The legislature has plenary power of legislation within the fields assigned to them; it may legislate prospectively as well as retrospectively. It is a settled principle of statutory construction that every statute is prima facie prospective unless it is expressly or by necessary implications made to have retrospective operations. Legal maxim nova constitutio futuris formam imponere debet non praeteritis i.e. a new law ought to regulate what is to follow, not the past, contain a principle of presumption of prospectivity of a statute.
23. Justice G.P. Singh in Principles of Statutory Interpretation (14th Edn. in Chapter 6), while dealing with operation of fiscal statute, elaborates the principles of statutory interpretation in the following words:
"Fiscal legislation imposing liability is generally governed by the normal 11 presumption that it is not retrospective and it is a cardinal principle of the tax law that the law to be applied is that in force in the assessment year unless otherwise provided expressly or by necessary implication. The above rule applies to the charging section and other substantive provisions such as a provision imposing penalty and does not apply to machinery or procedural provisions of a taxing Act which are generally retrospective and apply even to pending proceedings. But a procedural provision, as far as possible, will not be so construed as to affect finality of tax assessment or to open up liability which had become barred. Assessment creates a vested right and an assessee cannot be subjected to reassessment unless a provision to that effect inserted by amendment is either expressly or by necessary implication retrospective. A provision which in terms is retrospective and has the effect of opening up liability which had become barred by lapse of time, will be subject to the rule of strict construction. In the absence of a clear implication, such a legislation will not be given a greater retrospectivity than is expressly mentioned; nor will it be construed to authorise the Income Tax Authorities to commence proceedings which, before the new Act came into force, had by the expiry of the period then provided, become barred. But unambiguous language must be given effect to, even if it results in reopening of assessments which had become final after expiry of the period earlier provided for reopening them. There is no fixed formula for the expression of legislative intent to give retrospectivity to a taxation 12 enactment..."
24. A three-Judge Bench of this Court in Govind Das v. CIT [Govind Das v. CIT, (1976) 1 SCC 906 : 1976 SCC (Tax) 133] , noticing the settled rules of interpretation laid down following in para 11: (SCC pp. 914-15) "11. Now it is a well-settled rule of interpretation hallowed by time and sanctified by judicial decisions that, unless the terms of a statute expressly so provide or necessarily require it, retrospective operation should not be given to a statute so as to take away or impair an existing right or create a new obligation or impose a new liability otherwise than as regards matters of procedure. The general rule as stated by Halsbury in Vol. 36 of Laws of England (3rd Edn.) and reiterated in several decisions of this Court as well as English courts is that 'all statutes other than those which are merely declaratory or which relate only to matters of procedure or of evidence are prima facie prospective and retrospective operation should not be given to a statute so as to affect, alter or destroy an existing right or create a new liability or obligation unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only'.
15. The Supreme Court in the case of State of Punjab and others Vs. Bhajan Kaur and others, reported in (2008) 12 SCC 112 has held as under:-
139. A statute is presumed to be prospective unless held to be retrospective, either expressly or by necessary implication. A substantive law is presumed to be prospective. It is one of the facets of the rule of law.
10. Section 92-A of the 1939 Act created a right and a liability on the owner of the vehicle. It is a statutory liability. Per se it is not a tortuous (sic tortious) liability. Where a right is created by an enactment, in the absence of a clear provision in the statute, it is not to be applied retrospectively.
16. If the facts of the present case are considered, it is clear that an advertisement was issued for recruitment to the post of ADPO in the year 2021 and on the said date, the petitioner had already crossed the upper age limit of 45 years (after relaxation for 5 years to OBC candidate).
17. It is fairly conceded by the counsel for the petitioner that the right to participate in the recruitment process is a substantive right and not a procedural law. It is well established principle of law that a substantive law shall be presumed to be prospective unless and until it is specifically provided otherwise. In circular dated 18.09.2022, the date of coming into force of the said circular is nowhere mentioned, therefore, it has to be held that the said circular dated 18.09.2022 is prospective in operation.
18. Accordingly, the only interpretation which can be given to circular dated 18.09.2022 is that the relaxation of three years shall be applicable to the advertisement which are issued on or after 18.09.2022 and on or before December, 2023. The benefit of the said circular cannot be given retrospectively to the advertisements which were already issued and recruitment is to take place in pursuance of those live 14 recruitment advertisements.
19. Since the petitioner had already crossed upper age limit of 45 years on the date of issuance of advertisement in the year 2021, no case is made out for interference in the matter.
20. Accordingly, the petitions fail and are hereby dismissed.
(G.S. AHLUWALIA) JUDGE Abhi Digitally signed by ABHISHEK CHATURVEDI Date: 2022.12.15 10:26:24 +05'30'