S i n g i e B e n c h I N T H E H I G H C O U R T O F C H H A T T I S G A R H A T B I L A S P U R 5 § 0 3 W R I T P E T I T I O N ( S ) N O . . . . . . O F 2 0 0 8 P E T I T I O N E R S h a n k a r S i n g h V e r m a S / o S h r i R i k h a n S i n g h V e r m a , a g e d a b o u t y ‘ ( y a / 4 O y e a r s , w o r k i n g a s F o r e s t G u a r d , T e r r i t o r i a l ‘ D i v i s i o n D h a m a t a r i , D i s t . D h a m a t a r i C . G . ) V E R S U S y “ 1 . R E S P O N D E N T S S t a t e o f C h h a t i s g a r h t h r o u g h i t s S e c r e t a r y F o r e s t D e p a r t m e n t D . K . S . B h a w a n R a i p u r ( C . G . ) 2 . T h e C o n s e r v a t o r o f F o r e s t , R a i p u r C i r c l e , J a i l R o a d R a i p u r ( C . G . ) 3 . T h e D i v i s i o n a l F o r e s t O f f i c e r T e r r i t o r i a l ' D i v i s i o n D h a m a t a r i D i s t . D h a r n a t a r i ( C . G . ) W R I T P E T I T I O N U N D E R A R T I C L E 2 2 6 O F T H E C O U N S T I T U T I O N O F I N D I A . iF'^^a APK, mOH COURT OF CHHATTISGARH AT BILASPUR PETITIONER WRIT PETITION (S) No. 1775 of2008 : Devnandan Tiwari & another. RESPONDENTS VERSUS : StateofChhattisgarh&Otfiers. ALONGWITH W.P. (S) No.4220 of 2008, 4571 of 2008, 4951 of 2008 and 5503 of2008 WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri SatishK, Aenihotri. 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 forfhe State/respondents. ORDER(ORAL) (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 Service Recmitenent Rules, 1967 (for short, 'the Rules, 1967'), the petitioners were considered for out oftum promotion. Accordingly, recoiTimendations were made for promoting them on out of tum basis. The State Govemment 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.(S) No. 1775/2008} addressed to Principal ChiefConservator ofForest, Chhattisgarh. y ••-"-"-^' 4. ^s*. ....^«..^^t^.. r amendment ofthe rules by adding Rule 15-A(1) was made in exercise ofthe powers conferred by the proviso t6 Article 309 ofthe Constitution of India. It cannot be stayed or de-notified by a letter issued by the Secretary to the Govemment. It is further submitted that the impugned letter is also not supported by powers under Article 166(3) of the Constitution oflndiaas fhe same was not issued in the name ofand by order ofthe Govemor. On account ofthe stay ofthe notification dated 19th July, 2007 (Annexure P/l to W.P.(8) No. 1775 of 2008) , fhe recommendation of the Conservator of Forest, Jagdalpiir dated 14.01.2008 {Amiexure P/5 to W.P.(S) No. 1775/2008 andAnnexure P/8 to W.P.(S) No. 4220/2008}, recommendation 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 {AnnexureP/11 to W.P.(S) No. 4571/2008}, recommendation ofthe Divisional Forest Officer, Sukma dated 03.11.2007 {Aimexure 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 considered for out oftiim promotion. On the other hand, Shri Moorthy, leamed Deputy Advocate General appearing for the State/respondents, relying on the averments made m 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 fpr out of i.a.iNu •^BS iL;: ;;IA""i.. ':'~?t ^ ^:^y/ !tt. dtS 7. ^w. tum promotion. However, the Secretary to the Porest Department has stayed the same. Having heard leamed counsel appearing for the parties, pehlsed the pleadings and documents appended fhereto, without going iato the merits ofthe case asto whether recommendation was correct or not as that is not the issue in fhe present petition,! propose to deal witU fhe issue asto whether the amendment which has been incorporated in the statutory mles in exercise ofits 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 au executive order or letter as has been done in fhe present case. Even the samecaimot.be done by the executive instaiictions ifissued in aproper manaer 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 ofMaharashtra & another v. Chandrakant Anant Kulkarni & Others , the Supreme Court observed as under: "14. On the remaming qilestion whether the State Government by its Resolution datedJune 13, 1964 and Memorandum dated November 21, 1964, effected a change of recruitment rwles by an executive order, in the conditions ofservice ofthe ASTOs from Madhyd Pradesh and Hyderabad, contrary to the praviso to sub-section (5) of Section 115 ofthe 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 ofthe Constitution. In our opinion, the question does notreally arise. There can be no dispute with the proposition that a rule framed ^ under the proviso to Article 309 of the Constitution cannot be modified by an executive order. But the question is whether 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 ofthe Constitution. They merely conveyed the deeision _of the Stafe Government that the allocated ASTOs from Madhya Pradesh and Hyderabad should be considered eligible for promotion lo the post of STO Grade III without passing the departmental examination for STO Grade ///. The State Gavernment had not by its Resolution dated June .13, ] 964, or by its Memorandum dated November 21, 1964, brought about a change in the conditions of service by an exectttive order. All that was done was to rectify a mistake that had been committed in the past in subjecting the ASTOs from Madkya 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 flnd no inflrmity in these two documents. The decisions reached by the Government on the representation made by ASTOs from Madhya Pradesh and Hyderabad were strictly in conformity'with the recruiiment rules fi-amed by the former States of Madhya Pradesh and Hyderabad under the proviso fo Article 309 ofthe Constitution.It is quite obvious that STIs from Bombay were not entitled to the above concession, as the passing ofthe STOs exammatiori had been made a condition precedent for their promotion as STO Grade III." 8. In Union of India & Others v. Arun Kumar Roy , the Supreme Court .observed as under: 15. A notiflcation has no statutory force. It cannot override. the rules statutorily made governing the conditions ofservice ofthe employees. The notification is dt. 26-8-1976. Rule 5(I)(b) v/as amended in 1971 with retrospective effect from May 1, 1965. The rule has necessarily to gavern fhe service conditions and not the notification. " _ The Supreme Court, in Uday Pratap Singh v. State ofBihar, observed as under: <w. t.i! ••y.. 6. By a catena of decisions of this Court, it is naw weSS-settled that by an executive order the statutory rules cannot be whitfled do-wn nor can any retrospective ejfectbe given to suchexeeutive order so as to destray any right'which became crystallised. In this connection, it is profltable to refer a decision of fhis Cowt inT.R. Kapur v. State of Haryanawherein it is held that rules framed under Articie 309 ofthe Constitution cannot affeet or impair vested rights, unless it is specifically so provided in the statutdry 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 Guptav. Unionof India, that effect ofupgradation ofapostis to mdke the incumbent occupy the upgraded post with all logical benefits flowing therefrom and can be treated as promotedto the post. Still it cannot be gainsaid that no retrospective effect could be given to any merger of erstwhile lawer branch into higher branch inthe cadre so as to affect the vested rights ofincumbents already occupying posts in the erstwhile higher branch of the cadre. In fhe present cwe it has to be kept in view that the contesting respondents were directly recruited and appointed in the Senior Branchon 12-5-1974 and 25- 5-1974 respectively, •while the appelldnts were appointed on 2-11-1975 in the merged cadre. It is true that their order of appointment purports to give them appointment retrospectively from l-4-1974 but such effect cannot be given so as to destroy the seniority rights ofthe •writ petitioners, respondents herein, who -were indttcted as directrecrwts in the Senior Branch prior to 2-11-1975. The earlier decision ofthe Patna High Court in the case ofKartik CharanJha casewas rightly distinguished by the Division Bench in the present case as in Jha case the direct recruits were inducted much after 2-11-1975 when the mergees got their Junior Branch's 'appointments upgraded to the combinedmerged cadre and became apart andparcel ofthe Senior Branch earlier to these direct recrutts, •while in thepresent case all the contesting respondents had entered the Senior Branch much prior to 2-11- 1975 as seenabove. Therefore, theywere entitSed to be treated as seniors to ths appellants. It is true that against earlier decision of the High Court, special leave petition was rejected by this Court but as it was not a speaking order, it cannot be saidthat this Court had put its imprimatur on the observations found in paragraph 14 ofthe judgment in Jha case whichwe have referred toearlier. As held in the deciswn ofthis Courtinlndian Oil Corpn. Ltd. v. State of Bihar,-when III. «1 ^. ^.. 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 review petitionfiled against the decision in Jha case was rejected by the High Court. But that is neither here northere.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 tothe merged cadre with effect from 1-4-1974. That observation runs counter to the well-established legal position that by executivefiat no svch retrospective appointments can be given to any incumbent so as to des'troy the seniority ofemployees who had entered the cadre muchprior to their entry. Reliance placed on the decision of this Court.in Director, Lift Irrigation Corpn. Ltd. v. Pravat Kiran Mohantyfor submitting that a policy decision to merge the two branches ofa cadre cannot be subjected to a judicial review is also of no avail to the learned counselfor the appellants for the simple reason tbat in that case the Cowt was not concerned with the consideration about any retrospective ejfect ofsuch a policy decision. Similarly, the decision ofthis Courf in Nirmal Kumar Choudharyv. State ofBihar, which laid doven that in the dbsence of any statutory rules seniority can be reckoned in the common cadre considering all the incwnbents,- 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 the field, andthe appellants •were not on the scene. Onthe other hand, ptirsuant to the merger of both these branches fresh rules were required to beframed under Article 309 of the Constitution even after l-4-1975 and which were not framed till the appellants entered the merged cadre. Learned counselfor the appellants lastlyplaced reliance onthe decisionofthis Court in Union oflndia v. Dr S. Krishna Mwthyfor subfnifting that there is no fundamental rtght of anyone to a particular seniority. This decision also canhot be ofany assistance to the appellants as in the present case as nghtly 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 tke Senior Branch as direct recruits prior thereto, the respondents would cleavly get their constitutional rights guaranteed under Articles 14 and 16 violated." •I .i: .: a —-...; ^."$^3^ ,fys&, "% 1 fe^ ~^'s^^i .^s dit Jf.- 7 . 10. In Union of India & Anr. v. Central Electrical & Mechanical Engineering Service Group A (Direct Recruits) Association, CPWD & Ors. , the Supreme Court observed as ynder: 10. It is now well settled principle of law that an executive order mwtbe passed in conformity with the Rules. Po-wer of the State Government to issue executive instructions is confined to filling up of the gaps or covering the area -which 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 Covst, m State of Orissa & Ors. -v. Prasana Kumar Sahoo , observed as under: 14. Even a policy decision taken by the State in exercise of its jurisdiction under Article 162 of the Constitution of India would be subservient to the recrwtmentrulesframedbythe State either in terms of a legislative act ortheproviso appended to Article 309 of the Constitution of India. A pwported policy decision issued by •way of an executive instniction cannot override the statute or statutory rules far less the constitutionalprovisions." 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, Anaexure 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 aceordance with the Rules, 1967. 13. Allthe writ petition areallowed.No orderasto costs. >' ^fc" 2007 AIR SCW.,6986 2007 AIRSCW 4604 V'Y:M. KSESSESaSERS^ • f^..'!'^