<VA.V^^.^ ^^:^^ ^c<*V'>*'^s ..^ ..^:f."^^'""" ^'^'.,... w';<^\ ^'^ y^s^-""' ^^^^- ^. c^ ^-&- ^^ ^^- IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (S) NO^:L.<^.L.OF 2008 PETITIONER Guru Vachan Singh S/o Late Shri Kamal Singh aged About 40 yrs. working as Forest Guard, Division Sukma, Dist. South Bastar Dantewada (C.G.) VERSUS SingleBench KESPONDENTS 2: "^MS^ 1. State of Chhatisgarh through its Secretary Forest Department D.K.S. Bhawan Raipur (C.G.) The Conservator of Forest, Jagadalpur Circle, Distt. Jagadalpur (C.G.) ^' 3. The Divisional Forest Officer Division Sukma Dist. South Baster, Dantewada (C.G.) ^ WRIT PETITION UNDBR ARTICLE 226 OF COUNSTITUTION OF INDIA. THE ^F^ ^•? HIGH COURT OF CHHATTISGARHATBILASPUR WRITPETITIONfS) No. 177iof2QP8 PETITIONER RESPONDENTS : Devnandan Tiwari & another. VER8US : StateofChhattisgarh&Others. ALONGWITH W.P. (S) No.4220 of 2008, 4571 of2008, 4951 of2008 and 5503 of2008 WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Agnihotri, J. Present: Shri Vikas Shrivastava, Shri Sandeep Dubey, Shri R.S.Patel, Shri S.L.Chandra, Advocate for the respective petitioners. Shri V.V.S.Moorthy, Deputy Advocate General with Shri A.V.Shridhar, Panel Lawyer for the State/respondents. ORDER rORAL) (Passed on 21st day of April, 2010) 1. Writ Petition (S) No. 1775 of 2008, 4220 of 2008, 4571 of 2008, 4951 of 2008 and 5503 of 2008 involve a common facts and common question oflaw and, as such, they are being disposed ofby this common order. 2. Leamed counsel appearing for the petitioners submit that pursuant to incorporation of Rule 15-A(1) in the Chhattisgarh Class III (Non- Ministerial) Forest Ser^ice Recruitment Rules, 1967 (for short, 'the Rules, 1967 )\ the petitioners were considered for out oftum promotion. Accordingly, reconuiiendations were made for promoting them on out oftum basis. The State Govermnent stayed the statutory notification by a communication issued under the signature of Secretary, Forest Department, on 21.04.2008 {Annexure P/7 to W.P.(8) No. 1775/2008} addressed to Principal ChiefConser/ator ofForest, Chhattisgarh. The sole contention of the learned counsel for the petitioners is the amendment ofthe rules by adding Rule 15-A(1) was made in exercise ofthe powers conferred by the proviso to Article 309 ofthe Constitution of India. It cannot be stayed or de-notified by a letter issued by the Secretary to the Government. It is further submitted that the impugned letter is also not supported by powers under Article 166(3) of the Constitution oflndia as the sarne was not issued in the name ofand by order of the Govemor. On account of the stay of the notification dated 19t11 July, 2007 (Annexure P/l to W.P.(S) No. 1775 of 2008) , the recoiiuiiendation of the Conservator of Forest, Jagdalpur dated 14.01.2008 {Annexure P/5 to W.P.(S) No. 1775/2008 and Annexure P/8 to W.P.(8) No. 4220/2008}, recomm&ndation ofthe Divisional Forest Officer, Raipur dated 27.09.2007 {Annexure P/5 and P/9 to W.P.(S) No. 4571/2008} and dated 18.02.2008 {Annexure P/ll to W.P.(S) No. 4571/2008}, recommendation ofthe Divisional Forest OfHcer, Sukma dated 03.11.2007 {Annexure P/5 to W.P.(S) No. 4951/2008}, and the recommendation of the Divisional Forest Officer, Dhamtari dated 18.01.2008 {Annexure P/4 to W.P.(S) No. 5503/2008}, could not be given effect to and the petitioners have been deprived from being f^ considered for out oftum promotion. 4. On the other hand, Shri Moorthy, learned Deputy Advocate General appearing for the State/respondents, relying on the averments made in para 3 ofthe retum dated 18.11.2008 filed in W.P.(S) No. 4220/2008, submits that the cancellation ofthe scheme as incorporated by Rule 15- A(l) in the Rules, is still under consideration and after the decision is taken by the Cabinet, the employees shall be granted benefit for out of 3 tum promotion. However, the Secretary to the Forest Department has stayed the same. Having heard learned counsel appearmg for the parties, perused the pleadings and documents appended thereto, without going into the merits ofthe case asto whether recommendation was correct or not as that is not the issue in the present petition, I propose to deal with the issue asto whether the amendment which has been incorporated in the statutory rules in exercise of its power under proviso to Article 309 of the Constitution of India and has been notified, can be stayed or amended by an executive officer. The law is well settled that statutory amendments or statutory provisions cannot be stayed by an executive order or letter as has been done in the present case. Even the same cannot be done by the executive instructions if issued in a proper manner as provided under the Rules of Business. In the case on hand, the Secretary, it appears have assumed the power of legislature also in staying the duly notified amendment in the Rules, 1976. The same is illegal and unconstitutional. In The State of Maharashtra & another v. Chandrakant Anant Kulkarni & Others1, the Supreme Court observed as under: "14, On the remaining question ^hether the State Government by its Resolution datedJune 13, 1964 and Memorandum dated November 27, 1964, effected a change of recruitment rules by an executive order, in the conditions of service ofthe ASTOs from Madhya Pradesh and Hyderabad, contrary to the proviso to sub-section (5) of Section 115 of the Act; and if so, whether such a change in the conditions of service could be brought about -without framing a rule under the proviso to Article 309 of the Constitution. In our opinion, the question does not really arise. There can be no dispute with the proposition that a rule framed 1AIR 1981 SC 1990 under the proviso to Article 309 of the Constitution cannot be modified by an executive order. But the question is ^hether that principle is attracted to the facts and circumstances of the present case, The Resolution and the Memorandum referred to above, undoubtedly do not have the status of a rule framed under the proviso to Article 309 of the Constitution, They merely conveyed the decision of the State Government that the allocated ASTOs from Madhya Pradesh and Hyderabad should be considered eligible for promotion to the post of STO Grade III ^ithout passing the departmental examination for STO Grade IIL The State Government had not by its Resolution dated June 13, 1964, or by its Memorandum dated November 21, 1964, brought about a change in the conditions of service by an execzitive order. All that was done ^as to rectify a mistake that had been committed in the past in subjecting the ASTOs from Madhya Pradesh and Hyderabad to the Departmental Examination Rules framed by the former State Government of Bombay i.e, to a rule -which did not form part ofconditions oftheir service and, therefore, was not applicable to them. We find no infirmity in these two documents, The decisions reached by the Government on the representation made by ASTOs from Madhya Pradesh and Hyderabad ^vere strictly in conformity with the recruitment rules framed by the former States of Madhya Pradesh and Hyderabad under the proviso to Article 309 ofthe Constitution, It is quite obvious that STIs from Bombay ^ere not entitled to the above concession, as the passing ofthe STOs examination had been made a condition precedentfor their promotion as STO Grade IIL>) 8. In Union of India & Others v. Arun Kumar Roy , the Supreme Court observed as under: <(15. A notification has no statutory force, It cannot override. the niles statutorily made governing the conditions ofservice ofthe employees. The notification is dt. 26-8-1976. Rule 5(l)(b) was amended in 1971 ^ith retrospective effect from May 1, 1965. The rule has necessarily to govern the service conditions and not the notification. " 9. The Supreme Gourt, in Uday Pratap Singh v. State ofBihar3, observed as under: ;AIR 1986 SC 737 (t6, By a catena of decisions of this Court, it is now well'settled that by an executive order the statutory rules cannot be ^vhittled down nor can any retrospective effect be given to such executive order so as to destroy any right which became crystallised. In this connection, it is profitable to refer a decision of this Court in T R, Kapur v. State ofHaryana -wherein it /*s' held that rules framed under Article 309 of the Constitution cannot affect or impair vested rights, unless it is specifically so provided in the statutory rules concerned. It is obvious that an executive direction stands even on a much weaker footing. It is true, as laid down in Bishan Sarup Gupta v. Union of India, that effect of upgradation of a post is to make the incumbent occupy the upgraded post -with all logical benefits flowing therefrom and can be treated as promoted to the post. Still it cannot be gainsaid that no retrospective effect could be given to any merger of erstwhile lower branch into higher branch in the cadre so as to affect the vested rights ofincumbents already occupying posts in the erst^hile higher branch ofthe cadre, Inthe present ca.se it has to be kept in vie^ that the contesting respondents ^vere directly recruited and appointed in the Senior Branch on 12-5-1974 and 25- 5-1974 respectively, while the appellants ^vere appointed on 2-11-1975 in the merged cadre. It is true that their order of appointment purports to give them appointment retrospectively from 1-4-1974 but such effect cannot be given so as to destroy the seniority rights ofthe ^rit petitioners, respondents herein, who were inducted as direct recruits in the Senior Branch prior to 2-77-7P75. The earlier decision ofthe Patna High Court in the case ofKartik Charan Jha case ^as rightly distinguished by the Division Bench in the present case as in Jha case the direct recruits ^ere inducted much after 2-11-1975 -when the mergees got their Junior Branch's 'appointments upgraded to the combined merged cadre and became apart andparcel of the Senior Branch earlier to these direct recruits, -while in the present case all the contesting respondents had entered the Senior Branch much prior to 2-77- 1975 as seen above. Therefore, they ^vere entitled to be treated as seniors to the appellants, It is true that against earlier decision of the High Court, special leave petition ^as rejected by this Court but as it -was not a speaking order, it cannot be said that this Court had put its imprimatur on the observations found in paragraph 14 of the judgment in Jha case which -we have referred to earlier. As held in the decision ofthis Court in Indian Oil Corpn. Ltd. v. State ofBihar, v^hen l994Supp(3)SCC451 ^ special leave petition is summarily rejected, it occasions no merger ofthe order ofthe lower court in the order of the Supreme Court, and even such an order can be challenged in the High Court It is true that even the revie^v petition filed against the decision in Jha case ^as rejected by the High Court But that is neither here nor there. It is not possible to agree with the observations ofthe High Court in Jha case made in paragraph 14 that on account of the merger, the erstwhile incumbents in Junior Branch became substantively appointed to the merged cadre ^ith effect from 1-4-1974. That observation runs counter to the well-established legal position that by executive fiat no such retrospective appointments can be given to any incumbent so as to destroy the seniority ofemployees -who had entered the cadre much prior to their entry. Reliance placed on the decision of this Court in Director, Lift Irrigation Corpn, Ltd, v. Pravat Kiran Mohantyfor submitting that apolicy decision to merge the t^o branches ofa cadre cannot be subjected to a judicial revie^ is also of no avail to the learned counselfor the appellants for the simple reason that in that case the Court ^as not concerned with the consideration about any retrospective effect ofsuch a policy decision. Similarly, the decision ofthis Court in Nirmal Kumar Choudhary v. State ofBihar, which laid do^n that in the absence of any statutory rules seniority can be reckoned in the common cadre considering all the incumbents, also cannot be ofany avail to the appellants as at the relevant time when the respondents entered the cadre as direct recruits, the erstwhile rules -were already holding thefield, and the appellants ^ere not on the scene. On the other hand, pursuant to the merger of both these branches fresh rules ^ere required to be framed under Article 309 of the Constitution even after 1-4-1975 and 'which were not framed till the appellants entered the merged cadre. Learned counsel for the appellants lastlyplaced reliance on the decision ofthis Court in Union oflndia v. Dr S. Krishna Murthyfor submitting that there is no fundamental right ofanyone to a particular seniority. This decision also cannot be ofany assistance to the appellants as in the present case as rightly found by the High Court if the appellants who entered the merged cadre ofthe Senior Branch only on 2-11-1975 are to be treated as senior to the respondents who had entered the Senior Branch as direct recruits prior thereto, the respondents would clearly get their constitutional rights guaranteed under Articles 14 and 16 violated." Amit 10. In Union of India & Anr. v. Central Electrical & Mechanical Engineering Service Group A (Direct Recruits) Association, CPWD & Ors4, the Supreme Court obser^ed as under: <(10. It is no^v well settled principle of law that an executive order must be passed in conformity -with the Rules. Po^ver of the State Government to issue executive instructions is confined to filling up of the gaps or covering the area ^hich otherwise has not been covered by the existing Rules. See Sant Ram Sahrma vs. State ofRajasthan & anr. and D.D.A. and Ors. vs, Joginder S.Monga and Ors. Such office order must be subservient to the statutory rules." 11. The Supreme Court, in State of Orissa & Ors. v. Prasana Kumar Sahoo , observed as under: t(14. Even a policy decision taken by the State in exercise of its jurisdiction under Article 162 of the Constitution of India ^ould be subservient to the recruitment rulesframed by the State either in terms of a legislative act or the proviso appended to Article 309 of the Constitution of India. A purported policy decision issued by ^ay of an executive instruction cannot override the statute or statutory rules far less the constitutional provisions,)J 12. In view of the foregoing, the impugned letter dated 21.04.2008 {Annexure P/7 to W.P.(S) No. 1775/2008, Annexure P/9 to W.P.(S) No. 4220/2008, Annexure P/l to W.P.(S) No. 4571/2008, 4951/2008 and 5503/2008} is quashed. The petitioners are entitled to consequential benefits flowing from this order, in accordance with the Rules, 1967. 13. All the writ petition are allowed. No order asto costs. _^^—— SatisbK.'Ag^otri Judge 4 2007 A1RSCW 6986 52007AIRSCW4604