Chitrakant Choubey vs State Of Chhattisgarh
2022 Latest Caselaw 834 Chatt

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                                                                       AFR
        HIGH COURT OF CHHATTISGARH AT BILASPUR
               Writ Petition (S) No. 1107 of 2022


     Chitrakant Choubey S/o Shri Chhedilal Choubey,
     Aged about 35 years, R/o Village Badgadi, Post
     Bamhnidih,       Tahsil       Bamhnidih,      Distt.     Janjgir­
     Champa, Chhattisgarh.

                                                       ­­­Petitioner

                               Versus

   1. State    of   Chhattisgarh         through    the     Secretary,
     Department       of      Food        Supply      and     Consumer
     Protection,      Mantralaya,         Mahanadi     Bhawan,       Atal
     Nagar, New Raipur, Distt. Raipur, Chhattisgarh.

   2. The Director, Directorate of Department of Food
     Supply     and   Consumer         Protection,     Block    2,    3rd
     Floor, Indrawati Bhawan, Atal Nagar, New Raipur,
     Distt. Raipur, Chhattisgarh.

   3. Union of India, Ministry of Personnel and Public
     Grievances       and     Pensions       and     Department        of
     Personnel and Training, North Block, New Delhi.

   4. The     Controller      of       Examination,     Professional
     Examination Board, Vyapam Bhawan, North Block,
     Sector     19,    Atal    Nagar,       New    Raipur,      Distt.
     Raipur, Chhattisgarh.

                                                   ­­­ Respondents

For Petitioner :­ Mr. Ajay Kumar Barik, Advocate For Resp. 1 & 2/State:­ Mr. Amrito Das, Addl. A.G. For Respondent 3 :­ Mr. Tushar Dhar Diwan, Advocate For Respondent 4 :­ Dr. Saurabh Ku. Pande, Advocate

Hon'ble Shri Justice Sanjay K. Agrawal Order on Board 18/02/2022

1. Heard learned counsel for the parties on the

question of admission.

2. This writ petition has been filed by the

petitioner seeking quashment of advertisement

dated 04/01/2022 (Annexure P/1) issued by

respondent No. 2 inviting applications for the

post of Food and Civil Supply Inspector stating

that 10% reservation for the economic weaker

section (EWS) of the society has not been

provided in accordance with the Chhattisgarh Lok

Seva (Anusuchit Jatiyon, Anusuchit Jan Jatiyon

Aur Anya Pichhade Vargon Ke Liye Arakshan)

(Sansodhan) Ordinance, 2019.

3. Mr. Ajay Kumar Barik, learned counsel for the

petitioner, would submit that providing 10%

reservation to the economic weaker section (EWS)

category is a must in light of the aforesaid

Ordinance promulgated on 04/09/2019 in exercise

of the power contained under Article 213 of the

Constitution of India. He would rely upon the

decision rendered by the Supreme Court in the

matter of Dr. Jaishri LaxmanRao Patil v. State of

Maharashtra, through Chief Minister and Another1.

4. Per contra, Mr. Amrito Das, learned Additional

Advocate General appearing on behalf of

respondents No. 1 and 2/State, would submit that

the said Ordinance was issued on 04/09/2019 by

amending the Chhattisgarh Lok Seva (Anusuchit

Jatiyon, Anusuchit Jan Jatiyon Aur Anya Pichhade

Vargon Ke Liye Arakshan) Act, 1994 thereby

providing 10% reservation to the economic weaker

section (EWS) of the society by virtue of clause

5 of the said Ordinance. Thereafter, the

Legislative Assembly reassembled on 02/10/2019

and on 13/11/2019, six weeks expired in terms of

Article 213(2) of the Constitution of India and

therefore, the Ordinance, 2019 ceased to operate

and pursuant thereof, the impugned advertisement

(Annexure P/1) has been issued on 04/01/2022 by

the Directorate of Department of Food, Civil

Supplies and Consumer Protection, Raipur, which

is absolutely in accordance with law as at

present, there is no such Ordinance in operation

providing reservation as such. He would also

submit that the relief as claimed by the

petitioner seeking direction for providing 10% 1 (2021) 2 SCC 785

reservation to the candidates belonging to EWS

category cannot be granted by this Court in light

of the decision rendered by the Supreme Court in

the matter of State of Punjab v. Anshika Goyal2.

5. The Chhattisgarh Lok Seva (Anusuchit Jatiyon,

Anusuchit Jan Jatiyon Aur Anya Pichhade Vargon Ke

Liye Arakshan) Act, 1994 was sought to be amended

by Chhattisgarh Lok Seva (Anusuchit Jatiyon,

Anusuchit Jan Jatiyon Aur Anya Pichhade Vargon Ke

Liye Arakshan) (Sansodhan) Ordinance, 2019

thereby providing 10% reservation in recruitment

at State level arising in a recruitment year in

Class I, II, III and IV posts. The said

Ordinance, 2019 came into force on 04/09/2019 and

the Legislative Assembly reassembled on

02/10/2019 but it was not placed before the floor

of the House and accordingly, the period of six

weeks in terms of Article 213(2) of the

Constitution of India expired on 13/11/2019.

6. In the matter of Irfan Qureshi v. Chhattisgarh

state Public Service Commission through its

Chairman and Anr.3, this Court has held that the

Ordinance, 2019 has ceased to operate and

observed in paragraphs 7 and 11 as under :­

2 2022 SCC Online SC 86

"7. The entire reading of clause (2) of Article 213 purports that the ordinance promulgated under the Article shall have the same force of law as an Act of Legislature. However, it will cease to operate at the expiration of six weeks for reassembly of Legislature. Applying the time­line, therefore, would show that the ordinance was promulgated by the Governor on 04.09.2019 and thereafter on 2nd October and 3rd October, the House of State Legislature reassembled. Since the Article 213(2) mandates that the ordinance will expire from six weeks of the date of reassembly of the Legislature, the ordinance having not been laid before the Legislative Assembly, within six weeks it would expire on 13.11.2019. Consequently, the plain reading of Article would show that after 13.11.2019, the ordinance ceased to function in operation. The advertisement by Public Service Commission was made on 27.11.2019, it would not be within the specified target date of 13.11.2019. The submissions of the petitioners that the session of the Legislative Assembly of 2nd and 3rd October was not a session in terms of Article 174 as no legislative business was carried out cannot be appreciated in view of the wordings of Article 174 and any further interpretation of it would amount to addition of word, which is otherwise not in the Article.

11. The laying of an Ordinance before the State Legislature sub­serves the purpose of Legislative Control over the ordinance­ making power. Legislation by ordinances is not an ordinary source of law­making but is intended to meet extraordinary situations of an emergent nature, during the recess of the legislature. The reassembly of Legislature defines the outer limit for the validity of ordinance promulgated during its absence in session. Within that period, a legislature has authority to disapprove the Ordinance. The requirement of laying an Ordinance before the Legislative body sub­serves the constitutional purpose of ensuring that the provisions of the Ordinance are debated upon and discussed in the legislature. The legislature has before it a full panoply of

Legislative powers and as an incident of those powers, the express constitutional authority to disapprove an ordinance. If an ordinance has to continue beyond the tenure which is prescribed by Article 213(2)(a), a law has to be enacted by the Legislature incorporating its provisions. In order to assume the character of the enacted law beyond the tenure prescribed by Article 213(2)(a), a law has to be enacted. If such an action has not been adopted by the Legislature, this Court cannot issue a writ of mandamus to Legislature as it would amount to encroaching the turf of the State Legislature."

7. In view of the aforesaid authoritative

pronouncement of this Court, I am of the

considered opinion that the life of an Ordinance

is provided in Article 213(2) of the Constitution

of India wherein if the Ordinance is not laid

before the House, it shall cease to operate at

the expiration of six months from the re­assembly

of the legislature. Since the Ordinance, 2019

came into force on 04/09/2019 and the Legislative

Assembly reassembled on 02/10/2019, therefore, by

virtue of Article 213(2) of the Constitution of

India, it ceased to operate on 13/11/2019 as it

was not placed before the House for

consideration. The said issue has also been

considered and concluded by the decision rendered

by this Court in Irfan Qureshi (supra).

8. Now the question for consideration would be,

whether a writ of mandamus can be issued to the

State Government for providing reservation to

particular class or category ?

9. The Supreme Court in the matter of Anshika Goyal

(supra) has clearly held that no writ of mandamus

can be issued directing the State Government to

provide for reservation for the particular class

or category and it should be left to the wisdom

of the State Government. It has been held as

under in paragraph 22(a) as under :­

"22. While answering the aforesaid issue, few decisions of this Court referred to hereinabove are required to be discussed.

a) In the case of Gulshan Prakash (Dr.) v. State of Haryana4 it was observed that there cannot e any mandamus by the Court to provide for a reservation for a particular community. In the case before this Court, the State of Haryana did not provide any reservation for SC/ST/backward community at the postgraduate level. A conscious decision was taken by the State of Haryana not to provide for reservation at the postgraduate level. The same was challenged and to that this Court has observed that there cannot be any mandamus by the Court as claimed. In the aforesaid decision, it was further observed and held that Article 15(4) of the Constitution is an enabling provision and the State Government is the best Judge to grant reservation for SC/ST/backward categories at postgraduate level. Any policy and the decision of the State not to make any provision for reservation at postgraduate level suffers from no infirmity. It was 4 (2010) 1 SCC 477

further observed that every State can take its own decision with regard to reservation depending on various factors. At this stage it is to be noted that it was also submitted before this Court that since the Government has decided to grant reservation for SC/ST/backward class communities in admission at MBBS level, i.e., undergraduate level and therefore the State has to provide for reservation at postgraduate level also. To that, this Court observed that since the Government had decided to grant reservation for SC/ST/backward categories in admission at MBBS level, i.e., undergraduate level, it does not mean that it is bound to grant reservation at the postgraduate level also."

10. Thereafter, it was held by Their Lordships in

paragraph 23 as under :­

"23. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, we are of the opinion that the High Court has committed a grave error in issuing a writ of mandamus and directing the State Government to provide for 3% reservation/quota for sports persons, instead of 1% as provided by the State Government. A conscious policy decision was taken by the State Government to provide for 1% reservation/quota for sports persons. A specific order dated 25.07.2019 was also issued by the State Government. Therefore, the High Court has exceeded its jurisdiction while issuing a writ of mandamus directing the State to provide a particular percentage of reservation for sports persons, namely, in the present case, 3% reservation instead of 1% provided by the State Government, while exercising powers under Article 226 of the Constitution of India. Therefore, the impugned common judgment and order passed by the High Court insofar as directing the State to provide for 3% reservation for sports persons and/or

provide for a sports quota of 3% in the Government Medical/Dental Colleges is unsustainable and the same deserves to be quashed and set aside."

11. Thus, in light of the aforesaid principle of law

laid down by the Supreme Court in the matter of

Anshika Goyal (supra), it is quite vivid that

since the Ordinance, 2019 has already ceased to

operate on 13/11/2019, no writ or direction can

be given by this Court under Article 226 of the

Constitution of India to the State Government for

providing reservation to the candidates belonging

to EWS category.

12. The decision relied upon by the petitioner in

Dr. Jaishri LaxmanRao Patil (supra) would not be

applicable in the present case as the petitioner

therein assailed the constitutional validity of

the Maharashtra State Socially and Economically

Backward Class (SEBC)(Admission in Educational

Institutions in the State and for posts for

appointments in public service and posts)

Reservation Act, 2018 before the High Court by

way of PIL. The High Court upheld the validity of

the Act with certain directions. The SLP was

preferred by the petitioners before the Supreme

Court alleging that on account of the reservation

as has been provided for under the Act, 50%

ceiling over reservation as is prescribed in

Indra Sawhney v. Union of India 5 has been

violated and therefore the said Act is

unconstitutional. In addition, the interpretation

of the Constitution (102nd Amendment) Act, 2018

was also raised and since the said issue was

already pending before the larger Bench, the said

SLP was also referred to the larger Bench. It was

further directed that during the interregnum, the

appointments to the public services and posts

under the Government shall be made without

implementing the reservation as provided under

the Act.

13. Accordingly, the instant writ petition is

dismissed in limine leaving the parties to bear

their own cost(s).

Sd/­ (Sanjay K. Agrawal) Judge

Harneet

5 1992 Supp. (3) SCC 217

HIGH COURT OF CHHATTISGARH, BILASPUR Writ Petition (S) No. 1107 of 2022

Petitioner Chitrakant Choubey

Versus

Respondents State of Chhattisgarh and Others

(English)

No writ/direction can be issued to the State Government under Article 226 of the Constitution of India for providing reservation to the candidates belonging to EWS category.

(Hindi)

भभरत कक ससववधभन कक अननचछकद ­ 226 कक तहत आरररक रप सक कमजजर वरर (इ. डबलल. ऐस.) कक उमममदवभरर कज आरकण पदभन करनक हकतन रभजय सरकभर कज कजई ररट / वनदरश जभरम नहह ककयभ जभ सकतभ |