1.^v ^ / 3 IN THE BIGH CODKT OF JDDIQffiUBE :: OIHWTISGABH t: BILASPUR WRIT PETmON N0 :l27^0F 2004 / remioNER PBBMCD SHARMA aged 27 yrs : s/o Shri R3»Shari^i Gandidate : Contract Lectarer-MOM r/o C-6, Radhaswamy Nagar, Raipur- C.G. - V E R S U S - RESPGNPENTS ^l. STATE OF CHMTTISGABH throuah : The Secretary to the G@vt, of Chhattlsgarh, Teehnioal Education Departmeat, Maatralay : O^K^Bhavan Raipur- C.G. .^^- ^•'^7 \^A<1"/ THE DIKECT08 \ Directorate of Teehnical Bducation : Chhattlsgarb %ome»st Polytechiiic College Campy$» Byron Bazar : Raipixr C,G, UT< _/ )Y^~'\^ |L-8« THE P8INCIPAL. v^f\^y ^Y ' Governnient Polytechnlc College. y' y.-g..-' ~ Ourg - C.G. ^o* ^ .y/ -^ THE PRINCIP^L <^- ^-A" Government omens< Polytechfiic College, Jagdalpur • C.G. 5 f-5. SHRI KISHORE KUMAR SAHU Leetarer : NCT Governraent Polytecfiic College, Dnrg « C.G. iircy'^?KU^.^ ^<~>7 9 ^ SHRI P.K.SINGH Governmeat Polytechnic College, Jagdalpur - C.G. ^^^, ^.,-^i ,k lo ^^- 3SpUt ^-7. SHBI SGLMH JAIN Oovernmeiit ttomenst Polytechaic College Jagdalpur <- C.G^ [^^^ fy^" .^^ ^^^..^^ ^sS^ mil fESIEIW UNDER ARTICU! 2^6/2"§7 OF THE (X3RSTITBTION OF IN&IA FOR BSOANCE OF miT/OIRBCTION .^ F ^ H!GH COURT OF CHHATTESGARH AT BILASPUR Writ Petition No. 1275 of 2004 PetitioBer Pramod Sharma Versus Respondents State of Chhattisgai'h aiid ofhers ^,..,- +^ Post for order on ^T.June, 2006. Sd/- Satish K. Agnihotri Judge \1;-,-' ^ 1:,' --/) /cl HIGH COURT OF CHHATTISGARH AT BILASPUR Writ PetitEon No. 1275 of 2004 Petitioner Pramod Sharma Versus Respondents State of Chhattisgarh and ofhers SB: Honl^le Mr. Justice SatishK. Agttihotri, J Shri Anurag Shrivastava, Advocate for the petitiouer. Shri V. V. S. Moorthy, Deputy Advocate General with Shri I. N, Shrivastava, Panel Lawyer for fhe respondents No. 1 to 4. Shri Ravish Verma, Advocate for fhe respondents No. 5 aad 6. Shri Rataa Pusty, Advocate for the respondent No.7. ORDER (A7june,2006) The following order of fhe Court was passed by Satish K. Agnihotei, J. 1. The present petition fiiled under Article 226/227 of the Constitution of India impugns the order No. F 1-26/2003/42 dated 28.2.2004, whereby the Chhattisgarh Technical Education Three Years Contract Service (Recniitoient aad Conditions of Service) Rules 2002 (hercinafter refen'ed to as 'the Rules 2002') was aaiended to the extent of appointing part-tmie Lecturers, workin.g in enguieeriag coUeges/polytechnic coUeges, without going fhrough the provisions of exaaiination/ test, provided under Rule 4 ofthe Rules, 2002. 2. The factual position, in nutshell, are fh.at fhe Directorate of Technical Education, Chhattisgarh published an advertiseinent (Annexure P/2), inviting applications for fhe post of Lectiirer/AWS/Prograininer on contract basis ui engiaeeriiig coUeges aad polytechuics under Directorate of Techuical ^.. ^-L Education Chhattisgarh, stating tliat the recruitment to fhe said posts would be iii accordaace with the provisions of the existmg Rules 2002. The last date for subniission of fhe appUcation was uotified to be 31st May, 2003. The petitioner along wifh other caadidates subinitted aa appUcation for appoiatment on tlie post of Lecturer. The calt letter dated 7.2.2004 (Aimexure P/3) was issued to ihe petitioner, uitiinatmg hioi to appear for tlie intendew on 16,2.2004 at 10.00 a.ni. ia Engiiieeriiig CoUege, Raipur. The petitioner, along wifti ofhers, appeared ia iaterview accordmgly on 16.2.2004. 3. According to the petitioner, ftie naixie of fhe petitioner was at serial niunber 3 ia tiie raerit Mst, agaiast th.e four avallable seats, 4. In a coniBiunication to fhe petitioner with regard to fhe appomtment, it was found fhat fhe respoudeiits No. 5, 6 ao.d 7, who were workiag as part tiuaie Lecturers, were appom.ted without goiag flirough the required test/ iateiview as prescribed under fhe. provisions of Rule 4 of fhe Rules, 2002, on the basis of fhe impugned order dated 28,2.2004 (Annexure P/1). 5. Beiag aggrieved, fhe petitiouer has impugned tlie order dated 28.2.2004 in this petition aad further sought for quashiag ofthe apponitment of the respondeuts No. 5, 6 and 7 on tlie post of Lecturer, bemg unconstitzitional, illegal aad contrary to tlie provisions of Rules, 2002, The petitioner has further prayed for a writ of inandamus agaiust the respondent No.l to declare fhe result on tlie basis of fhe select Mst and appoint fhe petidoner accordiagly. 'l ^-i \.. 6. Shri Anurag Shrivastava, leamed counsel appearing for the ^ petitioner subinitted that tlie appouitmeat of the respondents No, 5, 6 ao.d 7 on tlie basis of tlie order dated 28.2.2004 (Aiinexiu-e P/l) is contrary to fhe provisions of flie existing Rules 2002, It was further submitted tiiat fhe executive order is invalid as flie saiae is contrary to fhe provisions of the Rules, 2002, fherefore, the appointment of fhe respondents No,5, 6 aiid 7 is illegal, unconstitutlonal aixd coutrary to the provisions of law. 7. Shri V. V. S. Moorfhy, leai-ned Deputy Advocate General with Shri I. N, Shrivastava, learaed Pauel Lawyer, appearing for the respondents No. 1 to 4, on the contarary, subnutted that tlie petitioner has no right to be appointed, even if fhe petitioner's name foiind place ia fhe select Mst. It was furtlier contended fhat fhe order dated 28.2.2004 (Annexiire P/ 1) was a poMcy decision of the State Govemnient with the pubHc purpose to graat benefit to tlie part time Lecturers by appointing fheni on regular basis agaiast full tioie posts direcUy. Hence, no fault could be found with tiie order dated 28.2.2004. 8. Shri Ravish Veniia, learaed counsel appearing for fhe respondents No. 5 aad 6 as well as Shri Ratmi Piisty, learaed counsel appearing for fhe respondeut No,7, coutended fhat tliere was no uecessity for the respondents No. 5 to7 to face tlie reqiured test prescribed under Rule 4 of fhe Rules 2002, as they were workiag as part time Lectiirers in Engineerbig CoUeges/Polytechnics for a long period. The order dated 28.2.2004 niay be treated as a draft legislation which led to fhe aiiiendment of Rules 2002 by Gazette Notification dated 25.5.2004, The appointaient offhe respondents No.5, 6 aiid 7 are in accordaace with law aiid the State/respondents have fuU aufhority to take a policy decision aad miplenient fhe saiae by executive iastruction/ or^ler ia fhe iaterest of fhe public. 9. Having heai'd leamed counsel for tlie parties aad penising tlie records appended to fhe petition aad ret-uni, it is evident fhat tiie advertisenient for fhe purpose of appouitoient ou the post of Lecturers ia engnieeruig colleges aiid polytechnics was raade before May, 2003^ as the last date for subiaission of tlie application form was 31st May, 2003. It was clearly stated iii tlie advertiseiuent fhat the appoin.tinents would be inade ia accordance wifh tlie provisions of tlie existing Rules 2002. The appointoient of tlie rcspondents No. 5, 6 aad 7, on fhe basis of fhe order dated 28,2.2004 was contrary to fhe prQvisions of fhe Rules 2002 as tlie respondents No. 5, 6 aad 7 along with other carxdidates who were workiag as part tiiae Lecturers were appointed without goiag through fhe test/iaterview as prescribed under Rule 4 ofthe Rules, 2002. lO.The subraissions ofleanied counsel for the respondents No. 1 to 4 fhat the order dated 28.2.2004, which adiaittedly was contrary to the provisions ofthe Rules 2002, was a poMcy decision and ia the nature of draft. legislation, is preposterous and not sustaiaable ia law. Hence, the appoiataient of fhe respondents No. 5, 6 and 7 is Ulegal aad contraiy to fhe provisions oflaw. / 1 l.The so caUed aniendinent under flie Rules 2002 was brought iato force by notification dated 25.5.2004 aiuch after fhe impugued order dated 28.2,2004 (Annexure P/1) leaduig to appoiatment of -""\ V.. c^ tlie respondents No. 5 to 7 vide order dated 6.5.2004 (Annexure R-7/2) was passed. 12.The Suprenie Court m the case ofP. Maheadraaa aiad otfaers ¥s, State of Karnataka aiad others {(1990) 1 SCC 411} observed as under:- <'ll. ...........,..,Jt is true that a caadidate does not get aiiy right to the post by merely makiag aj.i appUcation for the same, but a right is created ia his favouT for beiiig considered for tlie post ta accordaiice with tlie tenns and conditious of tiie advertisem.exit and the existing recruitaient niles. If a caadidate appUes for a post HI response to advertiseixient issiied by PubUc Service Commission in accoxdauce wit].i x'ecruitiiient Rules he acquires right to be considered for selectiou izi accordance with tiie then existiag Rules. This right cannot be affected by aiiiendment of aiiy rale iniless the amendiag rule is retrospective ia nature. In the iiislant case the.Commission had acted in accordaaee witli tlie Uien existmg rules and there is no dispute fliat the appeUan.ts were eligible for apponitaieut, flieii' selection was not in violation of the recruitment Rules......,." IS.The Supreme Court iri tlie case ofNo T< Devin Katti as&d otfaers ¥s»K^siataka Public Service Commtssioai aad otliers {(1990) 3 SCC 157} ui para 13 observed as under:- <<13. In Y,V. Raiigaiah v. J. Sreenivasa Rao similar question arose relatiag to recnutoient by proinotiou. The question was whether proniotiou should be made in accordaiice with the Rules, ia force on the date tlie vacaiicies occurred or iii accordaiice wifh the ainended Rules, The Court observed as under: (SCC p. 289, para 9) 'The vacaiicies which occurred prior to fhe amended rules would be govenied by tbie old rules and not by the amended rules. It is admitted by counsel for both r-"\ \^' /•<< fhe parties fhat hencefortli proniotion to the post of Sub-Registrar Grade II wiU. be accordnig to fhe new rules on fhe zonal basis and not on the Statewide basis aiid, therefore, there was no question of challengmg the uew i-ules. But tlie question is offillhig the vacancies that occurred prior to the amended rules. We have not fhe stightest doubt that tiie posts which feU vacaat prior to the amended rales would be goveraed by the old niles aiid not by fhe new inles/' The same view was taken ia P, Gaiieshwar Rao v, State of Andhra Pradesh. Similar view was takeu in A.A. Calton v, Director of Education. It is a weU accepted principle of constoraction that a statutory rule or goveniment order is prospective ia natiu'e unless it is expressly or by necessa^ impUcation niade to have retrospective effect, Where proceediags are iiiitiated for selection by issuiag advertiseinent, fhe selection shoiild normally be regulated by tlie fhen existiag niles and goveniBient orders aad aay aiiiendnieut of tlie rules or tlie goverainent order peiiding fhe selection should not affect fhe validity of fhe selection inade by the selectiag aufhority or fhe PubUc Service Coio.niission unless the amended Rules or the amended govemnient orders, issuecl ia. exercise of its statiitory power eifher by express provision or by necessary iiitendraent iiidicate fhat ameuded Rules shaU be appHcable to fhe pendirig selections, See P. Malieudraa v. State of Kamataka/' 14.The Supreme Cozirt m the case of A. Ko Bhatas^ar aad ofehers Vs. Uaion of ladia aad others { (1991) 1 SCC 544 } m para 13 observed as under:- "13.0n niore fh.an oue occasion this Court has iadicated to tlie Union aad the State Gtovemments that once fhey franie rules, fheir action ia respect of matters covered by i-ules shoiild be regulated by fhe rules. The rules franied io. exercise of powers couferred •m under tlie proviso to Article 309 of the ConstitutiQu are soleinn rules having buidiag effect. Acting ia a manner contrary to the rules does create probleni mid dislocation. Veiy often govemnient fheraselves get trapped on account of their own niistalces or actions in excess of what is provided ia the rules. We take serious view of these lapses aiid hope aiid trust that tlie goveraiaent bofh at fhe Centre aiid in the States would take note of fhis position aad refram froni acting ia a niaiiner not couteiiiplated by their own rules. There shall be uo order as to costs/' 15. The Suprem.e Court m the case of Qopal Kriishi&a Rafeh Vs. M. A. A. Baig (dead) by Lrs. aad others {(1999) 1 SCC 544} m para 6 obsen?ed as under:- "6. When the selection process has actuaUy conimenced and the last date for iaviting appUcations is over, any subsequent change in tiie requireinents regardiiig quallfications by fhe University Grants ConiBiission wiR not affect fhe process of selectiou which has akeady comnienced. Oflier^ise it would involve issuiag a fresh advertisem.ent witli fhe new ciuaUfications. In fhe case of P. Mab.endran v. State of Kaniataka fhis Cx)urt has obser^ed: (SCC p, 416, para 5) rt5. It is weU-setUed rale of consti-uction tliat every statute or statutory rule is prospective unless it is expressly or by necessary mipUcation made to have retrospective effect/" The Court further observed fhat: "Siace the aixiendiag Rules were not retrospective, it could not adversely affect fhe right of those caadidate who were qualified for selection aad appointoient 011 tlie date they applied for ttie post, moreover as flie process of selection had akeady coiiiinenced when fhe aiaendiag Rules came iato force, the amended Rules could uot affect fhe existing rights ofthose ca&didates who were beiag considered for selection as they E ^a possessed fhe requisite qualifications prescribed by fhe Riiles beforc its amendment^ 16.The Supreme Court iii fhe case of Usalosa of Is&dia Throu^s Govt. of Posidieherry aad aaaother Vs. V. Ramakrishaiaa afld others ((2005) 8 SCC 394 } m para 28 observed as under- a28, VaSid rules niade under proviso appended to Article 309 of fhe ConstitLifion operate so loug fhe said rules are not repealed aiid replaced, The draft niles, fherefore, coiild not fomi fhe basis for graat of proniotion, when. Rules to the contoraiy are holdiag the field. It can safely be assunied that fhe priiiciple iu Abraham Jacob, Viaial Kuniari and Gujarat Kishan Mazdoor Paachayat fliat draft rules C£IH be acted upon, wffl apply where there are no rules goveniing fhe inatter and wherc recruitmient is govemed by departmental iastnictions or executive orders under Artick 162 ofthe Constitution." 17.Receiitly, m the case of Secretary, State of Karnataka aad others Vs. Umadevi (3) and others { (2006) 4 SCC 1) Constitution Beuch ofthe Siipreme Court held as under: "6. ,..,*..........,.NomiaBy, statutory rules are framed under fhe azithority of law govenimg employmeiit. It is recognized that no goveniraent order, notification or circular caii be substituted for fhe statutoiy rules framed under fhe aufhority of law. This is becaiise, foUowiag aay ofher course coiild be disastrous masmiich as it wiU depnve the secuiity of tenure aiid fhe right of equalily conferred 011 civil seryants luider the consfitational schenie. It laa^^even axtionut to negatirig fhe accepted seryice jiirisprudence. Therefore/when statutoiy rules are framed zinder Article 309 of the Constitution whieh are exhaiistive, u^- tlie only fair Bieans to adopt is to niake appouitnients based on tlie i-ules so framed." IS.For tlie aforeixientione.d reasous aiid dicta proiiounced by the Supreme Court the apponitaient order dated 6.5.2004 (Annexzire R-7/2) ia favour offhe respoudents No. 5, 6 aad7, passed ou fhe basis of tlie order dated 28.2.2004 (Annexure P/1) is quashed, being contrary to tiie provisions of tlie Rules, 2002. The respondents No. 1 to 4 may consider appointnient of tlie petitioxier on the basis of tiie select Hst of fhe carididates, iii accordaiice witli law. 19.The petition is accordragly allowed. No order as to costs. Sd/- Satish K. Agnihotri Judge Thakur