The Chhattisgarh High Court was dealing with a challenge made in a writ petition against the order passed by the Joint Secretary of the State of Chhattisgarh whereby the appointment of the petitioner to the Post of President, Chhattisgarh Rajya Anusuchit Jati Ayog was terminated.
The facts of this case are that the petitioner was initially appointed as the President/Chairperson of Chhattisgarh State Anusuchit Jati Ayog for a period of 3 years. After completion of tenure in July 2018, he was again appointed in August, 2018 until further order as the President of the Ayog. Pursuant thereto, the petitioner joined the post of President. The State Government in May 2019 terminated the appointment on the ground that subsequent appointment in August 2018 was up till further orders and therefore, the appointment stands cancelled by the impugned order. The said cancellation was challenged in this petition.
The bench presided by Justice Goutam Bhaduri, relying upon the Constitution Bench ruling in B.N. Nagarajan v. State of Mysore (1966), observed that,
“if there is a statutory Rule or Act on the matter, the executive must abide by that Act or the Rules and it cannot, in exercise of executive Powers under Article 162 of the Constitution ignore or act contrary to the Rules or the Act. Likewise, in the instant case once the petitioner had assumed the charge of his office on 13.08.2018 by virtue of sub-section (1) of Section 4, he would continue and any executive order though was made up till the next order cannot override the statute.”
The High Court took note of another Constitution Bench judgement of the Supreme Court in Sant Ram Sharma v. State of Rajasthan and others (1967) wherein it was held that,
“it is true that the Government cannot amend or supersede the statutory rules by administrative instruction, but if the rules are silent on any particular point, the Government can fill-up the gap and supplement the rule and issue instructions not inconsistent with the rules already framed. Here in the facts of the case in hand it would show that the tenure appointment has been given by virtue of section 4 and the removal has also been slated in the manner to be made under subsection (3) of Section 4. Therefore, the removal order of the petitioner by Annexure P-1 which speaks that since the appointment was made until further orders he is being removed, will be against the spirit of Section 4.”
The High Court observed that there was another infirmity which existed in this case. The impugned order of terminating the period of petitioner purported that it was made for the reason that the appointment was until further order. However, before the High Court, the State came up with a new case that petitioner was not qualified to be appointed as chairperson as he was not a member. The HC said that the inconsistent reasoning was given by the State “to make a fumbling effort but instead it has created a steep challenge for itself to come out”.
The High Court by judgement delivered on 19.09.2019 held that the State Government had exceeded its jurisdiction in issuing the impugned order.
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