c^'/.'^~67. BM& HIGH COUST OF JUDICATURE AT BILASPUR W.P.(S)^a^OF2009 iTITIONER l^SanjayRumarSbwastava,S^ Shri O.P.Shrivastava, Aged about 38 years R/o 27 Kholi, Near Hanuman Mandir wali gali, Bilaspur (C.G.) Versus RESPONDENTS ^ ..-^ /,{vf ^ i^<?:.7T\ *•• .^y ew w ^' ^ ^" 1. State ofChhattisgarh, through Secretary, General Adnunistration Department, D.K.S. Bhawan, Raipur(C.G.) 2. Chhattisgarh Public Service Commission, Through Its Secretary, Shankar Nagar Road, Raipur (C.G.) 3. Exam Controller, Chhattisgarh Public Service Commission, Shankar Nagar Road, Raipur(C.G.) 4. Under Secretary, CKhatdsgarh Public Service Commissioa, Shankar Nagar Road, ^^^ Raipur (C.G.) WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF WDIA FOR ISSUANCE OF WRIT W NATURE OF CERTIORARI MANDAMUS. PROfflBITION AND OTtIER SUITABLE WMT . DIRECTION. OR ORDER TO DO JUSTICE IN THE MATTER : &. Iff-1' il :1; ^y^^^ HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Writ Petition (S) No. 4579 of 2009 Writ Petition (S) No. 4691 of 2009 Writ Petition (S) No. 4868 of 2009 Writ Petition (S) No. 4829 of 2009 Writ Petition (S) No. 5004 of 2009 Writ Petition (S) No. 5199 of 2009 Post for pronouncement of the order on &12.2011. Sd/- Pritinker Diwaker Judge ^\^\lt>\N \ A-^ HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Writ Petition (S) No. 4579 of 2009 PETITIONERS RESPONDENTS VERSUS Jitendra Kumar Singh and another State of Chhattisgarh and another lw»l^^ Writ Petition (Sl No. 4691 of 2009 PETITIONER RESPONDENTS Sanjay Kumar Pandey VERSUS Chhattisgarh Public Commission and others Writ Petition (S) No. 4868 of 2009 PETITIONER RESPONDENTS VERSUS Service Rajendra Kumar Dohare State of Chhattisgarh and another Writ Petition (Sl No. 4829 of 2009 PETITIONER Sanjay Kumar Shrivastava VERSUS RESPONDENTS State of Chhattisgarh and others Writ Petition (Sl No. 5004 of 2009 PETITIONER Narendra Dhar Badgainyan VERSUS RESPONDENT State of Chhattisgarh r . -2-— ^ Writ Petition (S) No. 5199 of 2009 PETITIONER RESPONDENTS VERSUS Rajesh Kumar Sharma State of Chhattisgarh and another Shri P.K. Verma learned Sr. counsel with Shri Sumit Verma Advocate and shri P.P. Sahu, Shri Rakesh Pandey, Shri S.N. Nande, Shri Prateek Sharma and Shri Ashok Dubey for the petitioners. Shri Y.S. Thakur Dy. GA for the RespondenVState. Shri Y.C. Sharma, counsel for respondents/PSC. Shri Sanjay K. Agrawal, advocate appears as amicus curiae. WRIT PETITIONS UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA ORDER (%.12.2011) As the point involved in all the aforesaid petitions, six in number, is quite similar, they are disposed of by this common order. 2. Facts of the case in brief are that on 22.9.2008 advertisement No. 10/2008 was published by the Chhattisgarh Public Service Commission, Raipur inviting applications to participate in the preliminary examination for appointment on various posts prescribed under Rule 1 of Chhattisgarh State Services Examination Rules (hereinafter referred to as "Examination Rules" for convenience). Pursuant to the said advertisement various candidates filled-in their forms, participated in the preliminary examination which was conducted on 1.2.2009 and declared successful in the same. However, their candidature for the main examination has been rejected by the respondenVPSC on the ground of their being over age. 3. W.P. (Sl 5199 of 2009: In this petition, the petitioner appeared in the State Civil Services (Preliminary) Examination and was declared successful for the main examination and an application form for this purpose was also sent to him. However, vide Annexure P-10, he was declared ineligible for the main examination on the ground of being over age in spite of being a government servant. According to the petitioner, he is working as Excise Sub Inspector with the State Government and -3- therefore entitled for 8 year relaxation over and above the otherwise maximum age limit of 37 years which has been fixed for the residents of State of Chhattisgarh. 4. W.P. (S) 4579 of 2009: In this petition, the petitioners appeared in the State Civil Services (Preliminary) Examination and were declared successful for the main examination and an application form for this purpose was also sent to them. However, vide Annexure P-1, they were declared ineligible for the main examination on the ground of being over age in spite of being government servant. Petitioner No.1 is working as Assistant Veterinary Surgeon whereas petitioner No.2 as Patwari with the State Government and therefore they are entitled for 8 year relaxation over and above the otherwise maximum age limit of 37 years which has been fixed for the residents of State of Chhattisgarh. 5. W.P. (Sl 4829 of 2009: In this petition, the petitionerappeared in the State Civil Services (Preliminary) Examination and was declared successful for the main examination and an application form for this purpose was also sent to him. However, vide Annexure P-5, he was declared ineligible for the main examination on the ground of being over age in spite of being a government servant. According to the petitioner, he is working as Lecturer with the State Government and therefore entitled for 8 year relaxation over and above the otherwise maximum age limit of 37 years which has been fixed for the residents of State of Chhattisgarh. 6. W.P. (S) 4868 of 2009: In this petition, the petitioner appeared in the State Civil Services (Preliminary) Examination and was declared successful for the main examination and an application form for this purpose was also sent to him. However, vide Annexure P-1, he was declared ineligible for the main examination on the ground of being over age in spite of being a government servant. According to the petitioner, he is working as Chief Municipal Officer with the State Government and therefore entitled for 8 year relaxation over and above the otherwise maximum age limit of 37 years which has been fixed for the residents of State of Chhattisgarh. 1 ''?w""€l 1 .:LJJ :'^^^ ^ </- 7. W.P. (S) 5004 of 2009: In this petition, the petitioner appeared in the State Civil Services (Preliminary) Examination and was declared successful for the main examination and an application form for this purpose was also sent to him. However, vide Annexure P-4, he was declared ineligible for the main examination on the ground of being over age in spite of being a government servant. According to the petitioner, he is working as Assistant Teacher with the State Government and therefore entitled for 8 year relaxation over and above the otherwise maximum age limit of 37 years which has been fixed for the residents of State of Chhattisgarh. 8. W.P. (S) 4691 of 2009: In this petition, the petitioner appeared in the State Civil Services (Preliminary) Examination and was declared successful for the main examination and an application form for this purpose was also sent to him. However, vide Annexure P-8, he was declared ineligible for the main examination on the ground of being over age in spite of being a government servant and handicapped as he had completed the age of 45 years. According to the petitioner, he is working as Manager, Sahkari and Vipnan Prakriya Sanstha (Kishan Rice Mill) Kurud, and therefore entitled for age relaxation up to the age of 47 years over and above the otherwise maximum age limit of 37 years which has been fixed for the residents of State of Chhattisgarh. 9. With respect to the petitioner in W.P. (S) 4691/2009 it has been argued by the counsel for the petitioner that the petitioner has crossed the age of 45 years but as per clause 2 of the advertisement the petitioner is entitled for 10 year age relaxation on the upper age limit ( 37 plus 10 = 47). 10. Pursuant to the advertisement issued by the Chhattisgarh PSC all the petitioners who are the government employees appeared in the preliminary examination and passed the same. Petitioners filled in the form for the main examination however they have been declared ineligible on account of being over age. 11. Shri P.K. Verma learned Sr. advocate appearing for the petitioners submits that under the State Service Examination Rules initially the age has been provided from 21 to 30 years with the power to the government —-t I. ^' .-£> © to extend the same. He submits that in exercise of the said power the upper age limit has been extended from time to time and ultimately vide Annexure P-2 i.e. letter issued by the State Government dated 16.9.2008 the age limit has been extended upto 37 years for the permanent resident of State of Chhattisgarh. He submits that State Service Examination Rule 5 (c) (b) (xv) provides for 8 year age relaxation to the government employees of the State of Chhattisgarh or the State Government undertaking. He further submits that this relaxation as provided to the employees of Chhattisgarh State should be over and above the age of 37 years which has been fixed for the residents of State of Chhattisgarh because all the petitioners are residents of State of Chhattisgarh. He submite that once the State Government has framed the State Service Examination Rules, the petitioners would be covered under the said Rule and therefore they can apply till the age of 45 years (37 plus 8) which is the maximum age limit fixed under the State Service Examination Rules as provided in the document of Annexure P-2. According to him, action of the PSC declaring the petitioners ineligible for the main examination is contrary to the law and therefore writ may be issued to the respondent/PSC to permit them to appear in the main examination. He submits that as per clause 18, the Shiksha Karmis have been granted the maximum age limit as 45 years on the basis of circular and therefore the petitioners should also have been given the same benefit applying the same analogy and thereby permitted to participate in the examination up to the age of 45 years. It is submitted that when according to the State Government only the statutory Rules would prevail and govern the entire examination process then the State Service Examination Rules become ineffective and if they are to be given effect it has to be as a whole and no pick and choose method can be adopted. 12. State Counsel submits that the issue involved in the case is different and the petitioners' argument is beyond their pleadings and scope of writ petition which is not permissible in law. 13. Replying to the arguments of the petitioners, it is argued by Shri Sanjay K. Agrawal, amicus curiae that the State Service Examination Rules appear to have been framed in exercise of the executive power -<o- Ari:icle 162 of the Constitution of India and these rules are merely executive Rules and non statutory in character. He submits that for different posts statutory Rules under the proviso to Article 309 of the Constitution of India have been framed by the competent authority/Governor and in all those Rules maximum age prescribed for the government servants is upto 38 years. Counsel for the respondent/PSC further submits that the Rules which have been framed under the proviso to Article 309 of the Constitution of India with regard to the post covered under the advertisement are statutory and legislative in character and therefore the same would prevail over the State Service Examination Rules. He submits that in view of the conflict between the two rules made under the proviso to Article 309 wouid prevail. He submits that maximum age limit for the government employees which has to be granted is upto the age of 38 years and they cannot claim the benefit of 8 years counting their age from 37 years. 14. So far as the point raised by the petitioner that for the Shiksha Karmis maximum age limit has been given as 45 years, it is submitted by the respondent/PSC that as no such pleading is their in the writ petition, this argument is not available to them. According to him, Shiksha Karmis have been taken as a different class by a policy decision and therefore the State Government cannot be compelled to take the same policy decision in respect of the petitioners. 15. In W.P. (S) 4691/2009 it has been submitted on behalf of the State and the PSC that the petitioner cannot seek a writ of mandamus against the Rules and that in the Rules maximum age is provided as 45 years and under no circumstances the petitioner can be permitted to appear in the main examination when he has already completed the age of 45 years. According to them, relaxation cannot be claimed as a matter of right. 16. Heard counsel for the parties and perused the documents available on record. 17. The question that falls for consideration of this Court is whether for the posts advertised, the age as provided in the State Service Examination Rules read with circular dated 16.9.2008 would be applicable or whether \"''^: -7— the age as provided in the service rules framed by his Excellency, the Governor in exercise of proviso to Article 309 of the Constitution of India would be applicable? It is no longer res integra that the Rules framed by the Governor in exercise of power conferred under proviso to Article 309 of the Constitution of India is statutory in nature and legislative in character and have the same force as an act passed by appropriate legislative whereas the Rules framed by executive under Article 162 of the constitution of India in its general executive power, is non-statutory in nature. The Apex Court in the matter of A.B. Krishna and others v. State of Karnataka and others reported in (1998) 3 SCC 496 has held as under: "4. It is contended by the learned counsel for the appellants that the Karnataka Civil Services (General Recruitment) Rules, 1971 were amended in 1977 by Rules made by the Govemment underArticle 309 ofthe Constitution and, therefore, the Mysore Fire Force (Cadre Recruitment) Rules, 1971 shall be deemed to have been superseded at least to the extent that they make provision for an examination to be passed before promotion which under the General Rules, has to be made on the basis of seniohty alone and, therefore, the promotion of the appellants made on the basis of seniohty could not have been set aside. It is contended, in the alternative that Rules made under Section 39 of theAct have been made by the Government and not by the legislature and, therefore, if any rule is made by the Government under Article 309 of the Constitution, it will positively displace the Rule made under Section 39 of the same authohty, namely the Government and, therefore, those Rules be deemed to have been impliedly superseded. 5. Rule-making power, so far as services under the Union or any State, are concerned, are vested in the President or the Governor, as the case may be, under Article 309 of the Constitution which provides as under: "309. Recruitment and conditions of service of persons serving the Union or a State.- Subject to the provisions of this Constitution, Acts of the approphate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State : Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such .-.A.. /""'^ /..'"'^' ^ A?' .1^.. „._ 't ir t^%:iiiir^ ^... ~ J^ v^^ -8- person as he may direct in the case of services and poste in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provisions in that behalf is made by or under an Act of the appropriate Legislature under this article and any rules so made shall have effect subject to the provisions of any such Act." 6. It is primarily the legislature, namely, Parliament or the State Legislative Assembly, in whom power to make law regulating the recruitment and conditions of service of persons appointed to public services and posts, in connection with the affairs of the Union or the State, is vested. The legislative field indicated in this article is the same as is indicated in Entry 71 of List l of the Seventh Schedule or Entry 41 of List II of that Schedule. The proviso, however, gives power to the President or the Governor to make Service Rules but this is only a transitional provision as the power under the proviso can be exercised only so long as the legislature does not make an Act whereby recruitment to public posts as also other conditions of service relating to that post are laid down. 7. The rule-making function under the proviso to Article 309 is a legislative function. Since Article 309 has to operate subject to other provisions of the Constitution, it is obvious that whether it is an Act made by Parliament or the State Legislature which lays down the conditions of service or it is a rule made by the President or the Governor under the proviso to that article, it has to be in conformity with the other provisions of the Constitution specially Articles 14, 16, 310 and 311. 8. The Fire Sen/ices under the State Government were created and established under the Fire Force Act, 1964 made by the State Legislature. It was in exercise of the power conferred under Section 39 of the Act that the State Government made Service Rules regulating the conditions of the Fire Services. Since the Fire Services had been specially established under an Act of the legislature and the Government, in pursuance of the power conferred upon it under that Act, has already made Service Rules, any amendment in the Karnataka Civil Sen/ices (General Recruitment) Rules, 1977 would not affect the special provisions Validly made for the Fire Services. As a matter of fact, under the scheme of Article 309 of the Constitution, once a legislature intervenes to enact a law regulating the conditions of service, the power of the Executive, including the President or the Governor, as the case may be, is totally <1 J 1 / ;^.'^ '"^&^y -3— displaced on the phnciple of "docthne of occupied field". If, however, any matter is not touched by that enactment, it will be competent for the Executive to either issue executive instructions or to make rule under Article 309 in respect ofthat matter. 9. It is no doubt true that rule-making authority under Article 309 ofthe Constitution and Section 39ofthe Act /'s the same, namely, the Government (to be precise, the Governor, under Article 309 and the Government under section 39), but the two juhsdictions are different. As has been seen above, power under Article 309 cannot be exercised by the Governor, if the legislature has already made a law and the field is occupied. In that situation, rules can be made under the law so made by the legislature and not under Article 309. It has also to be noticed that rules made in exercise of the rule- making power given under an Act constitute delegated or subordinate legislation, but the rules under Article 309 cannot be treated to fall in that category and, therefore, on the principle of "occupied filed" the rules under Article 309 cannot supersede the rules made by the legislature." 18. It is well settled that in case of conflict between the Rules framed under proviso to Article 309 of the Constitution of India and Rules framed under Article 162 of the Constitution of India, the Rules framed under proviso to Article 309 of the Constitution of India would prevail. In the case of Union of India and others v. Somasundaram Viswanath and others reported in (1989) 1 SCC 175 it has been held by the Supreme Court as under: "6. It is well settled that the norms regarding recruitment and promotion of officers belonging to the Civil Services can be laid down either by a law made by the appropriate legislature or by rules made under the proviso to Article 309 of the Constitution of India or by means of executive instructions issued under Article 73 of the Constitution of India in the case of Civil Services under the Union of India and under Article 162 of the Constitution of India in the case of Civil Services under the State Governments. If there is a conflict between the executive instructions and the rules made under the proviso to Article 309 of the Constitution of India, the rules made under proviso to Article 309 of the Constitution of India would prevail, and if there is a conflict between the rules made under the proviso to Article 309 of the Constitution of India and the law made by the approphate legislature, the law made by the appropriate legislature prevails. The question for .^ -/G - <> \\ consideration is whether in the instant case there is any conflict between the Rules and the Office Memorandum dated December 30, 1976, referred to above. We have already noticed that there are different rules framed under the proviso to Article 309 of the Consfitution of India for making recruitments to services in the different departments and provisions have been made in them for the constitution of Departmental Promotion Committees for purposes of making recommendations with regard to promotions of officers from a lower cadre to a higher cadre. But these rules are to some extent skeletal in character. No provision has been made in any of them with regard to the procedure to be followed by the Departmental Promotion Committees and their various functions and also to the quorum of the Departmental Promotion Committees, as matter of practice, were laid down prior to December 30, 1976 by the Government of India in the form of Office Memoranda issued from time to time and that on December30, 1976 a consolidated Office Memorandum was issued containing instructions with regard to such details which were applicable to all Departmental Promotion Committees of the various Ministries/Departments in the Government of India. the said Office Memorandum deals with several topics, such as, functions of the Departmental Promotion Committees, frequency at which Departmental Promotion Committees should meet, matters to be put up for consideration by the Departmental Promotion Committees, the procedure to be observed by the Departmental Promotion Committees, the procedure to be followed in the case of an officer under suspension whose conduct is under investigation or against whom disciplinary proceedings are initiated or aboutto be initiated, validity of the proceedings of the Departmental Promotion Committees when a member is absent, the need for consultation with the Union Public Service Commission, the procedure to be followed when the appointing authority does not agree with the recommendations of a Departmental Promotion Committee, with implementation of the recommendations of the Departmental Promotion Committees, ad hoc promotions, period of validity of panels etc. The Officer Memorandum dated December 30, 1976, therefore, is in the nature of a complete code with regard to the topics dealt with by it, unless there is anything in the Rules made under the proviso to Article 309 of the Constitution of India, which is repugnant to the instructions contained in the Office Memorandum, the Office Memorandum which is apparently issued under Article 73 of the Constitution of India is entitled to be treated as valid and binding on all concerned. In the instant case the Rules do not contain any of these -//- \\^ details except indicating who are all the persons who constitute the Departmental Promotion Committee. We do not, therefore, find any repugnancy between the Rules and the Office Memorandum. In the circumstances we feel that the plea raised by respondent 1 in his additional affidavit dated May 13, 1988 (page 132 of the paper book) that the Office Memorandum is ineffective cannot be upheld. We do not agree with the decision of the Central Administrative Tribunal that in the instant case the proceedings of the Departmental Promotion