Chattisgarh High Court
Pushpendra Sinha And Another vs State Of Chhattisgarh & Another on 3 May, 2012
HIGH COURT OF CHATTISGARH AT BILASPUR
WRIT APPEAL No 66 of 2010 & WRIT APPEAL No 150 of 2011 & WRIT APPEAL No 151 of 2011 & WRIT APPEAL No 152 of 2011 & WRIT
Angad Kumar Pandey and others
Murli Manohar Dubey
Bharat Lal Devangan and others
Ram Nath Sharma and another
Pawan Kumar Chandrakar and others
Girish Kumar Sahu and another
Sailesh Singh Somwanshi
Tulsi Dewangan
Dilip Kumar Choubey and others
Vimlesh Kumar Sahu
Mahendra Dubey
Mohammad Mustkim
Padma Dewangan
Mahesh Kumar
Lokesh Kumar Sahu and others
Rashmi Mishra
Devesh Datt
Krishna Kumar Gajendra
Vijay Laxmi Sahu
Govind Ram Sahu and others
Lakhan Lal Verma
Thanwar Das Deckar and another
Pushpendra Sinha and another
...Petitioners
VERSUS
State of Chhattisgarh & another
...Respondents
! Mr K S Pawar Mr Mateen Siddiqui and Mr Jitendra Pali Advocate for the respective appellants
^ Mr Kishore Bhaduri Additional Advocate General for the State Mr Y S Thakur Advocate for Janpad Panchayat Podi Uproda Mr
CORAM: HONBLE MR ABHAY MANOHAR SAPRE & HONBLE MR MANINDRA MOHAN SHRIVASTAVA JJ
Dated: 03/05/2012
: Judgement
ORDER
(Passed on 03/05/2012) WRIT APPEAL UNDER SECTION 2(1) OF THE CHHATTISGARH HIGH COURT (APPEAL TO DIVISION BENCH) ACT, 2006.
The following order of the Court was passed by Abhay Manohar Sapre, J:-
1. These appeals are filed by the writ petitioner(s) of W.P. (S) Nos. 5408/2009, 6228/2009, 4628/2009, 4941/2009, 4939/2009, 438/2011, 6255/2009, 435/2011, 4632/2009, 4787/2010, 6258/2009, 4780/2010, 6704/2009, 436/2011, 3600/2010, 4781/2010, 437/2011, 3599/2010, 3598/2010, 4782/2010, 4783/2010, 4779/2010, 433/2011 under Section 2(1) of the Chhattisgarh High Court (Appeal to Division Bench) Act, 2006 against the orders dated 17/11/2009, 28/02/2011, 28/02/2011, 28/02/2011, 28/02/2011, 28/02/2011, 28/02/2011, 28/02/2011, 28/02/2011, 28/02/2011, 28/02/2011, 28/02/2011, 28/02/2011, 28/02/2011, 28/02/2011, 28/02/2011, 28/02/2011, 28/02/2011, 28/02/2011, 28/02/2011, 28/02/2011, 28/02/2011, 28/02/2011 passed by learned Single Judge in aforementioned writ petitions.
2. By impugned order, the learned Single Judge dismissed the appellant's writ petition and in consequence declined to grant any relief claimed by him in his writ petition.
3. So the question, which arises for consideration in this appeal, is whether learned Single Judge (writ court) was justified in dismissing the appellant's writ petition?
4. Facts of the case lie in a narrow compass.
However, they need mention in brief to appreciate the controversy.
5. In January 2008, various Janpad Panchayats of the State of Chhattisgarh, such as Pondi, Uproda,, Pali (Korba), Mungeli, (Bilaspur), Kharsiya, (Raigarh), Gurur (Durg), Mainpur, Baloda Bazar and Abhanpur (Raipur), Kurud, (Dhamtari), Basna (Mahasamund), Bhanuptrappur (Kanker) and Khairagaqrh (Rajnandgao) etc. issued an advertisement inviting applications for filling the post of Shiksha Karmi Grade III. Several persons applied including the writ petitioners (appellants of these appeals). As per the advertisement, Panchyats were required to hold examination for selection of suitable candidates. Accordingly as per schedule programme, the examinations were held in the month of April 2008 and results were declared on 10.6.2008. The merit list of selection candidates was then prepared and on the basis of merit, the candidates were given their respective appointments as Shiksha Karmi Grade III in respective places. So far as the appellants (writ petitioners) are concerned, they were placed in the waiting list as per their respective merit awaiting for their appointment in case occasion so arises as per provisions made in that behalf in the relevant rule prevailing at that point of time.
6. Since the appellants did not receive any response from the respective Panchyats for their appointments which they were expecting as wait listed candidates, and hence they felt aggrieved of this inaction on the part of the State authorities and filed the writ petitions out of which these appeals arises against the respondents seeking for issuance of writ of mandamus contending that their cases be considered for appointment to the post of Shiksha Karmi Grade-III as per their placement in waiting list against the posts which either remained unfilled or fell vacant due to any reasons while giving appointment to the candidates from amongst the category of the list of select candidates as provided in Rules.
7. The appellants while claiming this relief placed reliance on clause 4.24 of the advertisement read with Rule 7(xi) of Chhattisgarh Panchayat Shiksha Karmi (Recruitment and Conditions of Services), Rules (hereinafter for brevity called "The Rules") which interalia provided that entire selection list together with the waiting list shall be valid for one year after the declaration of the examination result and new post sanctioned or any post if fall vacant in this period shall be filled by offering to the candidates placed in waiting list. According to the appellants, since the validity of the selection and waiting list coupled with the process of giving appointment pursuant to selection/waiting list was extended by the State till 30.8.2009 by issuance of one administrative order on 30.5.2009, and hence it was for the State to have ensured that appointment orders had been issued in favour of wait listed candidates within the extended period i.e. on or before 30.8.2009. It was also stated that some Janpads had also started process of giving appointment to some wait listed candidates but since no appointment letters to the appellants were issued and hence writ petitions were constrained to file writ petitions for issuance of writ of mandamus out of which these appeals arise.
8. The State and Janpad Panchyats filed their respective returns. According to them, the validity of select/waiting list or to say the life of select/waiting list was for one year from the date of declaration of results i.e. up to 10.6.2009 as provided in clause 4.24 read with Rule 7(xi) of the Rules (examinations were held on 10.6.2008). It was pointed out that though by executive order dt 30.5.2009, the validity of both the lists was extended till 30.8.2009 but later on it was realized that such extension could be granted by the State only by amending Rule 7(xi) and not by issuance of any executive/administrative order like the one issued on 31.5.2009 and therefore keeping in view this scenario, the State on 25.6.2009 issued a notification and made appropriate amendment in Rule 7(xi). As per the amendment, in place of words "one year", the words "thirteen months" were substituted". It was further pointed out that during one-year period, two elections (Parliamentary and State) were held in quick succession in the State due to which election code was in force which prevented the State/authorities to implement the list and in the mean time, since one-year period expired no benefit of select/waiting list could be given to wait listed candidates which included the appellants.. It was also pointed out that in last five years, successive advertisements were issued for filling the post of Shiksha Karmi by conducting fresh examinations of that year and several persons were appointed as Shiksha Karmi. The appellants were free to appear in such examination and if they had again appeared in this successive examinations then perhaps they could have been selected, had they performed better than their last year performance. It was thus pointed out that wait list of the year 2008 in these circumstances could not be given effect to for subsequent years and nor the seats of the year 2008 are available for being given to these appellants as these seats lapsed by efflux of time as provided in Rule 7(xi) read with clause 4.24 of advertisement on the expiry of one year.
9. The learned Single Judge dismissed the writ petitions. He held that validity of the select/waiting list (or we may say its life) was only for one year from the date of declaration of result i.e till 10.6.2009 and the same having lost its validity after one year by efflux of time , it was of no use for giving appointment to any candidate from amongst the category of wait listed candidates. It was also held that no benefit of an administrative/executive order issued on 31.5.2009 by which, the time to implement the list was extended could be given to the appellants in the light of statutory Rule operating in the field which had the over riding effect on such executive order. It was also held that no benefit of amended rule 7(xi) by which the period was extended from one year to thirteen months could be given to the appellant because the amendment was made on 25.6.2009 whereas the one year period in the case of appellants expired on 10.6.2009. It was also held that appellants couldn't take benefit of some appointments even if made, after one-year period by any Janpad Panchyat because such appointments were made obviously in contravention of requirement of Rule 7(xi). It is against this order of the learned Single Judge, the writ petitioners felt aggrieved and filed this intra Court appeals.
10. Learned counsel appearing for the respective appellants while assailing the legality and correctness of the impugned order in the first instance contended that once the State extended the period of one year up to 30.8.2009 by order dated 31.5.2009 then it was incumbent upon the State/Janpads to have ensured its compliance by filling up the vacancies from amongst the wait listed candidates before the due date. Their second contention was that in any event, when the period was extended eventually by amendment on 25.6.2009 by thirteen months in place of one year by amending the Rules than also its benefit should have been extended to the appellants by offering the appointments against the seats which were created or/and which fell vacant. Their third contention was that when some Panchyats gave appointments to some candidates from amongst the category of wait listed candidates then the same benefit could not be denied to appellants who also belonged to same category of candidates. Their fourth contention was that wait list candidates too have a legitimate right to claim appointment and the same could not be denied to them unless cogent reasons where assigned which in this case were not present to deny such relief. Their fifth and last submission was that plain and proper reading of Rule 7(xi) would spell out that in fact no time limit is prescribed for implementation of any wait list. Learned Counsel in support of their respective contentions, placed reliance on Shankarsan Dash v. Union of India [(1991) 3 SCC 47], Asha Kaul (Mrs.) and Anr. v. State of Jammu and Kashmir [(1993) 2 SCC 573], Gujarat State Dy. Executive Engineers Association v. State of Gujarat and others [1994 Supp. (2) SCC 591], R.S. Mittal v. Union of India [1995 Supp. (2) SCC 230], Virender S. Hooda & Ors. v. State of Haryana & Anr. [(1999) 3 SCC 696], Food Corporation of India and Ors. v. Bhanu Lodh and Ors. [(2005) 3 SCC 618], Director, S.C.T.I. for Medical Science and Technology and Another v. M. Pushkaran [(2008) 1 SCC 448], BSNL and Ors. V. Abhishek Shukla and Anr. [(2009) 5 SCC 368] and Naseem Ahmad v. State of U.P. [2010 SCW 133].
11. In reply, learned counsels appearing for the respondents i.e. State and Janpad Panchayats supported the reasoning and the conclusion of the learned Single Judge. According to them, appellants have not been able to make out any case so as to call for any interference in the impugned order. They placed reliance on the decisions reported in State of Bihar and Ors. v. Amrendra Kumar Mishra [JT 2006 (12) SC 304] and State of Orissa and Anr. Rajkishore Nanda and Ors. etc. ]JT 2010 (6) SC 33].
12. In order to appreciate the issue raised, clause 4.24 of the Advertisement and Rule 7(xi) of the Rules, which alone are relevant and were referred to need mention infra.
4.24 "laiw.kZ izrh{kk lwph lfgr p;u lwph ijh{kk ifj.kke ?kksf"kr gksus ds ,d o"kZ rd ds fy; oS/k gksxh rFkk bl vof/k esa u;s inksa dh Lohd`fr ;k fdlh Hkh dkj.k ls gq, fjDr inksa dh HkrhZ bl izrh{kk lwph ls dh tk ldsxhA"
"Rule 6(7)(XI)-The entire selection list together with the waiting list shall be valid for one year after the declaration of the examination result & new post sanctioned of post vacant because of any reason in this period shall be filled by this waiting list."
13. Plain reading of Rule 7(xi) would show that validity period for both the list namely selection and waiting list is one year and this one-year is to be counted from the date of declaration of result. The rule further provides that if during this one year period, if any new posts are sanctioned or any existing post fall vacant due to any reason then such posts would be filled in by taking candidates from the waiting list according to their intersee merit.
14. Coming first to the submission of Senior Counsel Mr. Verma, his contention was that plain reading of Rule 7(xi) would go to show that validity period of one year prescribed in Rule 7 is not applicable to the wait list candidates. According to Mr. Verma, the import of rule suggests that if any post becomes available after the expiry of one year then such posts alone can not be offered to wait listed candidate otherwise all such posts which fall vacant or sanctioned by the State during one year period from the date of the result of the examination have to be filled from wait listed candidates regardless of time factor. In other words, his submission was that the legislature not using the expression "expire" in place of "validity" in rule 7(xi) and secondly using the expression "and" in the Rule clearly suggest that rule in question did not intend to wipe out the effect of waiting list after one year which remains valid till all such posts are filled in out of the wait listed category of candidates. We do not agree.
15. In our considered opinion, plain reading of rule spells out only one interpretation, and that is the one, which we have made above. If we accept the interpretation suggested by Mr. Verma namely that wait list is not controlled by one year period as provided in Rule 7(xi) then it may lead to several unworkable results while implementing both the lists i.e one list to be implemented within one year and other without being governed by the said period. Such anomalous situation should always be avoided while interpreting the plain meaning of the Rule.
16. Indeed this question should not detain us more because while interpreting Rule 12 of Orrisa Ministerial Service (Method of Recruitment to posts of Junior Clerks in the District Offices) Rules, their lordship's of Supreme Court in the case reported in 2010(6) SC33 (State of Orissa vs Raj Kishore Nanda) held that life of such list remains valid for a period of one year from the date of publication of the same and it can not be given effect to after the period of one year.
17. Though Mr. Verma tried to contend that Rule 7(xi) not being identically worded like Rule 12 of the Orissa Rules which fell for interpretation before the Supreme Court and further every rule has to be interpreted according to their own wording, with respect, we do not agree with his submission in the facts of this case as in our opinion when the object, purport and substance of both the Rules is identical, then the observations made by the Supreme Court while interpreting such rule would equally apply to the Rule in hand also.
18. Once we hold that the validity or the life of both the lists is one year, then all formalities for implementation of such lists i.e. process of filling vacant seats as provided in Rule 7 (xi) have to be carried out within one year and if for some reasons, it remained to be accomplished fully than on expiry of one year period it lapses. In the event of occurrence of such eventualities, it may result in hard ship to wait listed candidates but it is not for the court to over come such eventualities or to make any arrangements for such candidates so long as rule operates in field and not declared ultravires. In such situation it is for the State to decide as to what appropriate remedial steps be taken to deal with such situation, so that any hardship caused to some candidates, can be remedied. So far as the courts are concerned, it has to interpret the Rule as it exists and then decide the rights of the parties keeping in view its plain meaning.
19. We are also not impressed by another submission of the learned counsel for the appellant when it was contended that since few candidates were accommodated out of the wait listed category by some Panchyat's by giving them appointment after the expiry of one year period then why not the appellant who are alike them. In substance, article 14 was taken aid to support this contention and for claiming appointment. As mentioned supra, this submission was rejected by the writ court and in our opinion rightly. It is a settled principal of law that article 14 can not be pressed in service for some thing which is prohibited or done wrongly or illegally or against the rules by the State and their authorities. In other words, there can be no enforcement of negative equality. If the appointment's (even if made) are made contrary to rule, then persons alike can not claim parity for such action to secure benefit for themselves by placing reliance on the principle enshrined in article 14 as accepting such submissions would tantamount to perpetuating the illegality which is otherwise required to be curbed and set aside by taking recourse to remedial measures against such persons who secured such benefit in accordance with law. Moreover, we also find that the appellant in their writ petition did not give any details as to who were such candidates appointed, when were they appointed etc. In the absence any details and further no such candidates were made parties to the writ petition, it is difficult for this Court to probe any more on this issue except to reject this submission being merit less and without any factual foundation. In the light of these well-settled legal principals, we thus reject this submission.
20. Yet other submission of learned counsel for the appellants that the appellants were entitled to take benefit of amended Rule 7(xi), which extended the period for implementing the lists from one year to thirteen months, has no merit. It is for the reason that the amendment was brought on Statue Book prospectively i.e. on and after 25.6.2009. In other words, the period of one year in this case expired on 10.6.2009 for implementation of the lists whereas, the amendment was introduced on 25.6.2009. In these circumstances, appellants had no subsisting right of any nature on and after 10.6.2009, because, the life of both the lists came to an end on 106.2009. In these circumstances, whatever rights the appellants may have had in the case, the same came to an end by efflux of time on 10.6.2009. Such rights could in our opinion, not be revived subsequently by introduction of amendment made in the Rule. In these circumstances, we are of the view that no benefit of amendment in Rule 7(xi) was available to the appellants. We, therefore, reject this submission also.
21. We however find force in the stand taken by the State when it was contended that due to valid and sufficient reasons prevailing in the State at the relevant time, the wait list in question could not be given full effect within the stipulated period. It was not disputed that during the period in question two successive elections were held in the State and to ensure fairness in its conduction, the State in its wisdom considered proper not to give effect to wait list else because they considered that it may amount to committing breach of election code which was in force during that period. The fact that there were reasons for not implementing the list therefore cannot be disputed. The appellants however did not challenge the adequacy of these reasons in the writ petition and hence we are of the view that it was not a case where, the State just kept silent for whole year and did nothing without there being any cause so as to strike down the action of the State as being totally arbitrary and unreasonable.
22. Learned Counsel for the appellants cited several decisions in support of their contentions such as Shankarsan Dash v. Union of India [(1991) 3 SCC 47], Asha Kaul (Mrs.) and Anr. v. State of Jammu and Kashmir [(1993) 2 SCC 573], Gujarat State Dy. Executive Engineers Association v. State of Gujarat and others [1994 Supp. (2) SCC 591], R.S. Mittal v. Union of India [1995 Supp. (2) SCC 230], Virender S. Hooda & Ors. v. State of Haryana & Anr. [(1999) 3 SCC 696], Food Corporation of India and Ors. v. Bhanu Lodh and Ors. [(2005) 3 SCC 618], Director, S.C.T.I. for Medical Science and Technology and Another v. M. Pushkaran [(2008) 1 SCC 448], BSNL and Ors. V. Abhishek Shukla and Anr. [(2009) 5 SCC 368] and Naseem Ahmad v. State of U.P. [2010 SCW 133].
23. We have carefully gone into the ratio decidendi of each one with a view to find out its applicability to the facts of this case. Having gone through the same, we find that law laid down in each one for which there can never be any quarrel, has no application to the facts of the case for giving any relief claimed by the appellant. In our view each stand on their own facts and hence not applicable. We thus do not consider proper to cite distinguishable features of each case to burden our order and increase its length.
24. To conclude, we find no merit in these appeals. As a consequence, these appeals fail and are accordingly dismissed.
No cost.
JUDGE