ORDER : Arup Kumar Goswami, J. Heard Mr. Ishan Verma, learned counsel, appearing for the petitioners in WPS No. 1081/2020, WPS No. 6864/2021, WPS No. 3005/2021, Mr. Sanjeev Kumar Sahu, learned counsel, appearing for the petitioners in WPPIL No. 29/2021, Mr. Ajay Shrivastava, learned counsel, appearing for the petitioners in WPS No. 4805/2020 and WPS No. 16/2021, Ms. Naushina Afrin Ali, learned counsel, appearing for the petitioners in WPS No. 143/2022, Mr. Jitendra Pali, learned Deputy Advocate General for the respondent State as well as Mr. Ajay Shrivastava, Mr. Parag Kotecha and Mr. C.J.K. Rao, learned counsel, appearing for the intervenors, in WPS No. 1081/2020, and Mr. Ishan Verma, learned counsel, appearing for the intervenors in WPS No. 16/2021. 2. The petitioners, in WP(S) No. 1081/2020, are residents of different districts falling under Bastar and Surguja Division and of District Korba of the State of Chattisgarh. The petitioner in WP(S) No. 6864/2021 is a resident of District Korba. The petitioners in WPS No. 3005/2021 are the residents of districts falling under Bastar and Surguja Division of the State of Chhattisgarh. 3. Bastar Division consists of Districts of Jagdalpur, Dantewada, Bijapur, Narayanpur, Sukma, Kondagaon and Kanker, and Surguja Division consists of Districts Koria, Surajpur, Balrampur, Ambikapur and Jashpur. 4. In these three writ petitions, identical prayers are made which are as follows: “10.1 The Hon’ble Court may kindly be pleased to quash the impugned amended notification dated 30.01.2020 (Annexure P/1) as ultra vires to Article 14 and 16 of the Constitution of India. 10.2 The Hon’ble Court may kindly be pleased to direct the respondent authorities to follow the earlier notification dated 28.05.2019; thereafter issue the appointment orders as per merit. 10.3 This Hon’ble Court may kindly be pleased to grant any other relief(s)/writ(s), order(s) in favour of the petitioner, which the Hon’ble Court deemed fit and just in the facts and circumstances of the case, including awarding of the costs to the petitioner.” 5. The petitioner in WPPIL No. 29/2021 is the Regional Head (Prantadhyaksha) of the Government Employees Welfare Association. The petitioner in WPPIL No. 29/2021 is the Regional Head (Prantadhyaksha) of the Government Employees Welfare Association. The prayers made in this petition are as follows: “10.1 That this Hon’ble Court may kindly be pleased to declare the impugned amendment notification (Annexure P/1) as ultra vires to the provisions of subpara (1) of para 5 of the Fifth Schedule of the Constitution of India as well as Rule 5 of the Chattisgarh Civil Services (General Conditions of Services) Rules, 1961 and set aside/quash the impugned amendment notification (Annexure P/1). 10.2 That, this Hon’ble Court may kindly be pleased to direct the respondents No. 2 and 3 to fill up the post of Teacher cadre as per advertisement dated 09.03.2019 as per the notification dated 28.05.2019 by giving opportunity to the local residents of Bastar, Surguja and Korba Divisions from getting appointment to the Teachers cadre post, in accordance with law. 10.3 That, any other relief/order which may deem fit and just in the facts and circumstances of the case including award of the costs of the petition may be given.” 6. Annexure P/1, as referred to in the prayer portion of WPPIL No. 29/2021, is the amended notification dated 30.01.2020. 7. Prayers made in WPS No. 4805/2020 and WPS No. 16/2021 are identical and the same read as follows: “10(i) That, this Hon’ble Court may kindly be pleased to held amendment in rule 5 of Chhattisgarh Civil Services (General Conditions of Service) Rules, 1961 by way of notification (Annexure P/1) as ultra vires being arbitrary and discriminatory, in the interest of justice. 10(ii) That, this Hon’ble Court may kindly be pleased to direct the respondent authorities to provide equal opportunity in employment irrespective of their domicile, in the interest of justice. 10(iii) Any other relief which may be suitable in the facts and circumstances of the case, may also be granted.” 8. The prayers made in WPS No. 143/2020 read as follows: “10.1 That, this Hon’ble Court may be pleased to call for the entire records of the case for its kind perusal. 10.2 That, the Hon’ble Court may kindly be pleased to issue an appropriate writ/order/direction and be pleased to quash the impugned notification dated 28.05.2019 issued by the Respondent State as being violative of Article 14 and 16 of the Constitution of India. 10.2 That, the Hon’ble Court may kindly be pleased to issue an appropriate writ/order/direction and be pleased to quash the impugned notification dated 28.05.2019 issued by the Respondent State as being violative of Article 14 and 16 of the Constitution of India. 10.3 That, the Hon’ble Court may kindly be pleased to issue an appropriate writ/order/direction and quash the notification dated 23.09.2020 issued by the State Government. 10.4 That, the Hon’ble Court may kindly be pleased to issue an appropriate writ/order/direction and quash the notification issued by the Respondent No. 2 (Annexure P/11) as being without jurisdiction. 10.5 That, the Hon’ble Court may kindly be pleased to issue an appropriate writ/order/direction and direct the Respondent No. 4 and 5 to issue appropriate appointment order to the petitioners on the post of Assistant Teacher (Science) after scrutinizing their testimonials at the earliest. 10.6 That, any other relief(s) which the Hon’ble Court deems fit and proper may kindly be granted in favour of the petitioners.” 9. Having regard to the challenge made and the reliefs sought for, the 7 writ petitions can be divided into two categories: one category comprising of WPS No. 1081/2020, 6864/2020, 3005/2021 and WPPIL No. 29/2021, wherein, broadly, reservation in service on the basis of residence in scheduled areas is canvassed and the second category comprising of WPS No. 4805/2020, 16/2021 and 143/2022, wherein the opposite view is taken. For the purpose of the first category, pleadings in WPS No. 1081/2020 is taken into consideration. Facts which are in addition to what is stated in the other three writ petitions including in the WPPIL No. 29/2021, will also be taken note of. 10. It is pleaded that the General Administration Department had issued a notification on 17.01.2012 providing that in the Districts falling under Bastar and Surguja Division of the State of Chhattisgarh, only local residents shall be eligible for recruitment to the Class-III and Class- IV posts of the District cadre for a period of two years with effect from 17.01.2012 to 16.01.2014. The aforesaid notification was extended for a period of one year from 17.01.2014 to 16.01.2015 by a notification dated 19.05.2014. The term of the notification was again extended for a period of two years from 17.01.2015 to 16.01.2017 by a notification dated 10.03.2015 and then again extended for a further period of two years from 17.01.2017 to 31.12.2018 by a notification dated 25.02.2017. 11. The term of the notification was again extended for a period of two years from 17.01.2015 to 16.01.2017 by a notification dated 10.03.2015 and then again extended for a further period of two years from 17.01.2017 to 31.12.2018 by a notification dated 25.02.2017. 11. An advertisement dated 09.03.2019 was issued by the Director, Directorate of Public Instructions, Raipur, for filling up 14,580 posts of teachers out of which 4,479 posts were reserved for the Districts falling under Bastar and Surguja Divisions and District Korba. 12. After issuance of the advertisement, the General Administration Department had extended the term of the original notification dated 17.01.2012 for a period of three years with effect from 01.01.2019 to 31.12.2021 by a notification dated 28.05.2019. 13. Some of the petitioners had appeared in the written test conducted by the Chhattisgarh Vyavasayik Pariksha Mandal (for short, CGVYAPAM’), for the post of Teacher (Biology and Maths) and some for the post of Assistant Teacher (Science) and (Laboratory). In WPS No. 6864/2020, it is stated that out of 14,580 posts, 2,207 posts of Assistant Teachers were reserved for the Districts falling under the Bastar and Surguja Division. The petitioners in WPS No. 6864/2020 had participated for the post of Assistant Teacher (Science) and had cleared the examination. The petitioners, in WPC No. 3005/2021, had participated in the examination for the post of Assistant Teacher (Science) and (Laboratory) and had cleared the same. 14. On 04.01.2020, the Director, Directorate of Public Instructions had sent a letter to the District Education Officers (for short, DEOs) except the DEOs falling under Bastar and Surguja Division and District of Korba for document verification for the post in the Assistant Teacher cadre. Later on, the General Administration Department, by a notification dated 30.01.2020 amended the notification dated 28.05.2019, which laid down that in the Districts falling under Bastar and Surguja Division and District of Korba, only local residents would be eligible for recruitment in Class III and Class IV posts of District cadre, providing that the notification dated 28.05.2019 shall not affect the advertisement dated 09.03.2019 issued by the School Education Department for the recruitment of 14,580 Teacher cadre posts. 15. 15. It is also pleaded that by notification dated 05.03.2019, the Government of Chhattisgarh had framed Rules called the Chhattisgarh School Education Services (Educational and Administrative Cadre) Recruitment and Promotion Rules, 2019, wherein in Schedule I, it is mentioned that the post of Teachers and Assistant Teachers are Class III posts. 16. In the response filed by the State, it is stated that the scheduled areas have a special designation under the Constitution of India and the essence of it lies in paragraphs 2 and 5 of the Fifth Schedule. In the scheduled areas, the Governor can exercise powers as enumerated under paragraph 5(1) of Fifth Schedule and in exercise of such power, Rule 5 of the Chhattisgarh Civil Services (General Conditions of Service) Rules, 1961 (for short, ‘the Rules of 1961’) was modified. It is pleaded that when the advertisement dated 09.03.2019 was issued, there was no notification giving benefit of reservation to the local residents of the Districts falling under Bastar and Surguja Division, and therefore, no reservation was extended to any of the candidates in the said advertisement for which the last date of submission of application was fixed 25.04.2019. It was only after issuance of the advertisement, the notification dated 28.05.2019 was issued giving retrospective effect from 01.01.2019 to 31.12.2021 in respect of Bastar and Surguja Division and also including the District of Korba. 17. It is not very clear as to whether the petitioners in WPS No. 4805/2020 and WPS No. 16/2021 had participated in the recruitment process pursuant to the advertisement dated 19.03.2019. However, a statement is made that the impugned amendment dated 28.05.2019 would deprive them from applying as the petitioners are the residents of the Districts other than Korba and the Districts falling in the Bastar and Surguja Division. It is pleaded that the impugned amendment would adversely affect their rights to apply and get appointed in respect of the posts falling in the said Districts, thus, affecting their employment opportunities in the aforesaid areas. 18. In WPS No. 143/2020, it is pleaded that the petitioners had applied for the post of Assistant Teacher (Science) as 4000 posts of Assistant Teacher (Science) were to be filled up in the entire State of Chhattisgarh out of which 20 posts of Assistant Teacher (Science) were to be filled up in the Surguja District. 18. In WPS No. 143/2020, it is pleaded that the petitioners had applied for the post of Assistant Teacher (Science) as 4000 posts of Assistant Teacher (Science) were to be filled up in the entire State of Chhattisgarh out of which 20 posts of Assistant Teacher (Science) were to be filled up in the Surguja District. The petitioners have been declared successful in the written examination conducted by the CGVYAPAM. 19. Ms. Naushina Afrin Ali, learned counsel for the petitioner in WPS No. 143/2022 submits that the impugned notification dated 28.05.2019 is violative of Articles 14 and 16 of the Constitution of India as residents of the same State are being deprived of securing public employment in respect of Class III and Class IV posts in the Scheduled Districts thereby violating the principles of equal opportunity to be guaranteed by the State in the matters of public employment. It is submitted that the impugned notification has resulted in 100% reservation in favour of the candidates of scheduled areas which cannot be sustained in law. In this connection, she places reliance on the judgment of the Supreme Court in Indra Sawhney v. Union of India, reported in (1992) Supp 3 SCC 217. Ms. Ali submits that on the basis of non-obstante clause in paragraph 5(1) of the Fifth Schedule of the Constitution, the Governor cannot override the fundamental rights guaranteed under Part III of the Constitution and there cannot be 100% reservation based upon residence, so as to make only the residents of a particular area to be eligible for appointment to a public post. It is also submitted that as there was no notification extending the notification dated 17.01.2012 when the advertisement dated 09.03.2019 was issued, retrospective extension of the same with effect from 01.01.2019 to 31.12.2021 is illegal and cannot be sustained. It is submitted by Ms. Ali that exercise of powers by the Governor under paragraph 5(1) of the Fifth Schedule does not extend to subordinate legislation and therefore, the Governor could not have modified in any manner the provisions of the Rules of 1961 which is a rule framed under Article 309 of the Constitution of India. It is submitted by Ms. Ali that exercise of powers by the Governor under paragraph 5(1) of the Fifth Schedule does not extend to subordinate legislation and therefore, the Governor could not have modified in any manner the provisions of the Rules of 1961 which is a rule framed under Article 309 of the Constitution of India. She relies on the judgments of the Hon’ble Supreme Court in the cases of Chebrolu Leela Prasad Rao v. State of Andhra Pradesh, reported in 2020 SCC OnLine SC 383, Kailash Chand Sharma v. State of Rajasthan & Others, reported in (2002) 6 SCC 562 , and a judgment of the Full Bench of the Jharkhand High Court in Soni Kumari & Others v. State of Jharkhand & Others, WPC No. 1387/2017, decided on 21.08.2020. She also relies on the decisions rendered by the Hon’ble Supreme Court in A.V.S. Narasimha Rao & Others v. The State of Andhra Pradesh and Another, reported in (1969) 1 SC 839, Dr. Pradeep Jain v. Union of India & Others, reported in (1984) 3 SCC 654 , State of Orissa & Others v. Sudhir Kumar Biswal & Others, reported in (1994) Supp 3 SCC 245, Uttar Pradesh Power Transmission Corporation Ltd v. CG Power and Industrial Solutions Limited, reported in 2020 SCC OnLine SC 383 : (2021) 11 SCC 408, Punjab State Cooperative Agricultural Development Bank Ltd v. Registrar, Cooperative Societies, reported in 2022 SCC OnLine SC 28. 20. Mr. Ajay Shrivastava, learned counsel for the petitioners in WPS No. 4805/2020 and WPS No. 16/2021, has endorsed the submissions of Ms. Ali. 21. Three intervention applications were filed in WPS No. 1081/2020. Mr. Parag Kotecha, who is a counsel in respect of one intervention application submits that in view of the order dated 23.09.2021 clarifying that the interim order dated 24.02.2020 passed in WPS No. 1081/2020 shall apply in respect of District Cadre posts i.e. the posts of Assistant Teacher and shall not affect the recruitment of Teachers, which are Division Cadre posts, the petitioners in the intervention application have obtained relief as they had applied for the post of Teacher. 22. Mr. C.J.K.Rao, learned counsel for some of the intervenors has adopted the arguments advanced by Ms. Naushina Afrin Ali and Mr. Ajay Shrivastava in WPS No. 4805/2022, 16/2021 and 143/2022. 23. Mr. 22. Mr. C.J.K.Rao, learned counsel for some of the intervenors has adopted the arguments advanced by Ms. Naushina Afrin Ali and Mr. Ajay Shrivastava in WPS No. 4805/2022, 16/2021 and 143/2022. 23. Mr. Ishan Verma, learned counsel appearing for the petitioners in WPS No. 1081/2020, 3005/2021 and 6864/2021, submits that the notification dated 17.01.2012 was issued for advancement of the residents of tribal areas in the State of Chhattisgarh and to safeguard and secure government employment in their favour. It is submitted that the respondents cannot alter or amend the criteria to change the rules of the game after the process of selection had begun. He submits that although other advertisements for recruitment were issued during the relevant period, by the amended notification dated 30.01.2020, exception was carved out only in respect of the advertisement dated 09.03.2019 and therefore, the classification made to take out the advertisement dated 09.03.2019 beyond the purview of the notification dated 28.05.2019 is arbitrary and illegal, there being no intelligible differentia between the aforesaid advertisement and the other advertisements. He places reliance on paragraphs 27, 32 to 36, 49 and 52 in Shri Sitaram Sugar Company Limited & Another v. Union of India & Others, reported in (1990) 3 SCC 223 , on paragraph 20 in Onkar Lal Bajaj v. Union of India & Others, reported in (2003) 2 SCC 673 and on paragraph 33 in Kallakkurichi Taluka Retired Officials Association, Tamil Nadu & Others v. State of Tamil Nadu, reported in (2013) 2 SCC 772 . 24. Mr. Sanjeev Kumar Sahu, learned counsel, appearing for the petitioners in WPPIL No. 29/2021, while endorsing the submissions of Mr. Ishan Verma, points out that in WPS No. 143/2022, notification dated 17.01.2012 is not put to challenge. 25. Mr. Jitendra Pali, learned Deputy Advocate General, appearing for the respondents submits that post of Lecturer and Teacher are Class II posts for which notification dated 17.01.2012 is not applicable. He has submitted that there is no merit in the contention that the notification dated 17.01.2012 and the subsequent notifications extending the notification dated 17.01.2012 as illegal, arbitrary as the notifications had been issued by the Governor in exercise of powers under paragraph 5 of the Fifth Schedule of the Constitution of India. He has submitted that there is no merit in the contention that the notification dated 17.01.2012 and the subsequent notifications extending the notification dated 17.01.2012 as illegal, arbitrary as the notifications had been issued by the Governor in exercise of powers under paragraph 5 of the Fifth Schedule of the Constitution of India. He has also submitted that as the notification dated 28.05.2019 invoking paragraph 5(1) of the Fifth Schedule of the Constitution of India had been issued giving retrospective effect from 01.01.2019 to 31.12.2021 subsequent to issuance of advertisement dated 09.03.2019, considering that the notification dated 28.05.2019 would change the eligibility criteria laid down in the advertisement dated 09.03.2019, notification dated 30.01.2020 was issued amending the notification dated 28.05.2019 to the extent that the notification dated 28.05.2019 would not affect the advertisement dated 09.03.2019. He has submitted that, in substance, as the rules of the game cannot be changed, the notification dated 30.01.2020 came to be issued as pursuant to the advertisement dated 09.03.2019, the selection process had commenced. It is further submitted that there was no existing right in favour of the residents in Division of Bastar and Surguja and the District of Korba for the Class III and Class IV posts that they alone would be entitled to participate in the selection process when the advertisement dated 09.03.2019 was issued. 26. Mr. Pali submits that no other advertisement was issued during the relevant period under which the residents of the entire State of Chhattisgarh were allowed to take part in the selection process in respect of Class III and Class IV posts. 27. We have considered the submissions of the learned counsel for the parties and have perused the materials on record. 28. Rules of 1961 was issued in exercise of powers conferred under proviso to Article 309 of the Constitution of India for regulating the recruitment and conditions of service of persons appointed to public services and posts in the State of Chhatisgarh. The relevant part of Rule 5 of the Rules of 1961 reads as follows: “5. Eligibility for appointment. 28. Rules of 1961 was issued in exercise of powers conferred under proviso to Article 309 of the Constitution of India for regulating the recruitment and conditions of service of persons appointed to public services and posts in the State of Chhatisgarh. The relevant part of Rule 5 of the Rules of 1961 reads as follows: “5. Eligibility for appointment. – A candidate for appointment to a service or post must be either – (a) a citizen of India; or (b) a subject of Sikkim; or (c) a person of Indian origin who has migrated from Pakistan with intention of permanently settling in India; or (d) a subject of Nepal or of Portugese or French territory in India.” 29. Part X of the Constitution of India is devoted to scheduled and tribal areas. Article 244(1) of the Constitution provides that the provisions of the Fifth Schedule shall apply to the administration and control of the Scheduled Areas and Scheduled Tribes in any State other than the States of Assam, Meghalaya, Tripura and Mizoram. Article 244(2) of the Constitution provides that the provisions of the Sixth Schedule shall apply to the administration of the tribal areas in the States of Assam, Meghalaya, Tripura and Mizoram. 30. What is a scheduled area is laid down in Part ‘C’ under paragraph 6 of the Fifth Schedule. Paragraph 6 provides that in the Constitution, the expression ‘scheduled areas’ means such areas as the President may by order declare to be scheduled areas. 31. Paragraph 5 of the Fifth Schedule reads as follows: “5. Law Applicable to scheduled areas.—(1) Notwithstanding anything contained in this Constitution the Governor may by Public notification direct that any particular Act of Parliament of the legislature of the State shall not apply to a scheduled area or any part thereof in the State or shall apply to a scheduled area or any part thereof in the State subject to such exceptions and modifications as he may specify in the notification. (2) The Governor may make regulations for the peace and good government of any area in a State which is for the time being a scheduled area. (2) The Governor may make regulations for the peace and good government of any area in a State which is for the time being a scheduled area. In particular and without prejudice to the generality of the foregoing power, such regulations may— (a) prohibit or restrict the transfer of land by or among members of the scheduled tribes in any such area; (b) regulate the allotment of land to members of the scheduled tribes in such areas; (c) regulate the carrying on of business as money-lender by persons who lend money to members of the scheduled tribes such areas. (3) In making any regulation as is referred to in subparagraph (2) of this paragraph, the Governor may repeal or amend any Act of Parliament or of the Legislature of the State or any existing law which is for the time being applicable to the area in question. (4) All regulation made under this paragraph shall be submitted forthwith to the President and until assented to by him shall have no effect. (5) No regulation shall be made under this paragraph unless the Governor making the regulation has in the case where there is a Tribes Advisory Council for the State, consulted such Council.” 32. At the outset, it is appropriate to reproduce the notification dated 17.01.2012, which reads as under : “NOTIFICATION Raipur, dated 17/01/2012 “No. F1-1/2012/1-3: In exercise of the powers conferred by the provisions by sub-para 5 of the Fifth Schedule to the Constitution of India, the Governor of Chhattisgarh, hereby, directs that the provisions regarding “eligibility for appointment” mentioned in rule 5 of the Chhattisgarh Civil Services (General Conditions of Service) Rule, 1961 made by the State Government under Article 309 of the Constitution of India, shall be deemed to be modified and enforced up to the extend as specified hereinafter, namely: - “Notwithstanding anything contained in these rules or any other Act, Order, Direction, Rules or Law for the time being in force, only local residents of the districts falling under Baster and Surguja Division, shall be eligible for recruitment to the vacancies arising in Class III and Class IV posts of the district cadre in various departments of the concerned districts, for a period of two years from the date of issue of this Notification. By order and in the name of the Governor of Chhattisgarh Sd/- (Nidhi Chibbar) Secretary, Government of Chhattisgarh, General Administration Department” 33. A perusal of the above would go to show that by the aforesaid notification issued by the Government under paragraph 5 of the Fifth Schedule to the Constitution of India, Rule 5 of the Rules of 1961 was modified providing that only local residents of the districts falling under Baster and Sarguja Division, shall be eligible for recruitment to the vacancies arising in Class III and Class IV posts of the district cadre in various departments of the concerned districts, for a period of two years from the date of issue of this Notification. 34. The notification dated 28.05.2019 reads as follows: “Atal Nagar, the 28th May, 2019 NOTIFICATION No. F1-1/2012/1-3. 34. The notification dated 28.05.2019 reads as follows: “Atal Nagar, the 28th May, 2019 NOTIFICATION No. F1-1/2012/1-3. – Whereas, in exercise of the powers conferred by sub-para 5 of the Fifth Schedule to the Constitution of India, the Governor of Chhattisgarh, modified the provision regarding “eligibility for appointment” mentioned in rule 5 of the Chhattisgarh Civil Services (General Conditions of Service) Rules, 1961 made by the Sate Government under Article 309 of the Constitution of India vide Notification No. F I1/2012/1-3, Dated 17th January, 2012, ordered that “Notwithstanding anything contained in these rules or any other Act, Order, Direction, Rules of Law for the time being in force, only local residents of the districts falling under baster and Sarguja Division, shall be eligible for recruitment to the vacancies arising in Class III and Class IV posts of the district cadre in various departments of the concerned districts, for a period of two years from the date of issue of the said Notification”; And Whereas, the said notification was issued on 17th January, 2012 for a period of two years and was in force till 16th January, 2014: And Whereas, the term of the said notification was extended for a period of one year i.e. from 17th January, 2014 to 16th January, 2015 vide Notification No F1-1/2012/1-3, Dated 19th May, 2014; and again, the term of the said Notification was extended for a period of two years i.e. from 17th January, 2015 to 16th January, 2017 vide Notification No. F1-1/2012/1-3, Dated 10th March, 2015; and for a period of two years i.e. from 17th January, 2017 to 31st December, 2018 vide Notification No. F1-1/2012/1-3, Dated 25th February, 2017; And Whereas, again it has become necessary to extend the term of the said Notification for a further period of three years and it shall also extend for the residents of Korba District; Now therefore, in exercise of the powers conferred by sub-para (1) of para 5 of the Fifth Schedule of the Constitution of India, the Governor of Chhattisgarh, hereby, directs that modification made by the said Notification in the rule 5 of the Chhattisgarh Civil Services (General Conditions of Services) Rules, 1961 shall remain continuously in force for a further period of three years i.e. from 1st January, 2019 to 31st December, 2021 and shall also extend to the residents of Korba District. By order and in the name of the Governor of Chhattisgarh KAMALPREET SINGH, Secretary” 35. By the aforesaid notification, in essence, notification dated 17.01.2012 was extended for a period of three years from 01.01.2019 to 31.12.2021. It is noticed that the district of Korba was also brought within the aforesaid notification apart from districts falling under Bastar and Sarguja Division. 36. The notification dated 30.01.2020 reads as follows: “Atal Nagar, the 28th May, 2019 NOTIFICATION No. F1-1/2012/1-3. – Whereas, in exercise of the powers conferred by Sub-Para (1) of para 5 of the Fifth Schedule to the Constitution of India, the Governor of Chhattisgarh, hereby, makes the following amendment in Notification No. F1-1/2012/1-3, dated 28th May, 2019 relating to the provision regarding eligibility for appointment specified in rule 5 of the Chhattisgarh Civil Services (General Conditions of Service) Rules, 1961 made by the State Government under Article 309 of the Constitution of India, namely:- AMENDMENT In the said notification, - 1. After the last para, for the punctuation full stop “.”, the punctuation colon “:” shall be substituted and 2. After the last para, the following shall be added, namely: - “Provided that, this notification shall not affect the advertisement number/ estt/ advertisement/direct recruitment/2019/422-PA, Atal Nagar, dated 09-03-2019 issued by the School Education Department for the recruitment of 14580 teacher cadre posts. By order and in the name of the Governor of Chhattisgarh. KAMALPREET SINGH, Secretary.” 37. The above notification dated 28.05.2019 has provided that the notification dated 28.05.2019 shall not affect the advertisement dated 09.03.2019. 38. Though Mr. Verma has submitted that by amendment dated 30.01.2020, only one advertisement, namely, the advertisement dated 19.03.2019, had been taken out from the purview of the notification dated 28.05.2019 while not including other advertisements issued during the interregnum, the submission is not well-founded. 39. The petitioner in WPS No.1081/2020, by means of an application for taking documents on record, had placed certain advertisements issued during the relevant period from 01.01.2019 to 29.05.2019. A perusal of the said advertisements would go to show that the applications were invited not from the candidates all over the State but was confined to the candidates belonging to the scheduled areas. A perusal of the said advertisements would go to show that the applications were invited not from the candidates all over the State but was confined to the candidates belonging to the scheduled areas. No advertisement has been placed by the petitioner demonstrating that there was any other advertisement issued during the relevant period enabling candidates from all over the State to apply in respect of Class III and Class IV posts including in respect of posts falling within the Bastar and Surguja Division and the District of Korba. It is, however, not understood on what basis the advertisements restricting candidature of the candidates belonging to the scheduled districts was permitted as apparently at the relevant point of time, there was no notification extending the original notification dated 17.01.2012. However, this Court will not dilate further on this subject. 40. In Shri Sitaram Sugar Company Limited (supra), the Hon’ble Supreme Court laid down that any act of the repository of power, whether legislative or administrative or quasi-judicial, is open to challenge if it is in conflict with the Constitution or the governing act or the general principles of the law of the land or it is so arbitrary or unreasonable that no fair minded authority could ever have made it. 41. In Onkar Lal Bajaj (supra), the Hon’ble Supreme Court laid down that unequals cannot be clubbed and that an arbitrary exercise of power and order passed without any application of mind deserves to be quashed. 42. In Kallakkurichi Taluk Retired Officials Association, Tamil Nadu & Others (supra), at paragraph 33, the Hon’ble Supreme Court laid down that a valid classification is based on a just objective and that a classification to be valid must necessarily satisfy two tests. Firstly, the distinguishing rationale has to be based on just objective and secondly, the choice of differentiating one set of persons from another must have a reasonable nexus with the objective sought to be achieved. Thus, a valid classification is founded on an intelligible differentia which has a rational relationship with the object sought to be achieved. 43. The judgments cited by Mr. Ishan Verma have no application in the facts of the case. 44. In Dr. Thus, a valid classification is founded on an intelligible differentia which has a rational relationship with the object sought to be achieved. 43. The judgments cited by Mr. Ishan Verma have no application in the facts of the case. 44. In Dr. Pradeep Jain (supra), at paragraph 5, it was observed by the Hon’ble Supreme Court that though Article 15 (1) and (2) bars discrimination on grounds not only of religion, race, caste or sex but also of place of birth, Article 16 (2) goes further and provides that no citizen shall on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them be ineligible for or discriminated against in state employment. So far as employment under the state, or any local or other authority is concerned, no citizen can be given preference nor can any discrimination be practiced against him on the ground only of residence. It would thus appear that residential requirement would be unconstitutional as a condition of eligibility for employment or appointment to an office under the State or under any local or other authority within the State or any corporation, such as a public sector corporation which is an instrumentality or agency of the State. But Article 16 (3) provides an exception to this rule by laying down that Parliament may make a law "prescribing, in regard to a class or classes of employment or appointment to an office under the government of, or any local or other authority, in a state or union territory, any requirement as to residence within that state or union territory prior to such employment or appointment”. Parliament alone is given the right to enact an exception to the ban on discrimination based on residence and that too only with respect to positions within the employment of a State Government. It is further laid down that wholesale reservation on the basis of domicile or residence is unconstitutional and void as being violative of Article 14 of the Constitution. 45. In Kailash Chand Sharma (supra), at paragraphs 13 and 14, the Hon’ble Supreme Court held as follows: “13. Before proceeding further we should steer clear of a misconception that surfaced in the course of arguments advanced on behalf of the State and some of the parties. 45. In Kailash Chand Sharma (supra), at paragraphs 13 and 14, the Hon’ble Supreme Court held as follows: “13. Before proceeding further we should steer clear of a misconception that surfaced in the course of arguments advanced on behalf of the State and some of the parties. Based on the decisions which countenanced geographical classification for certain weighty reasons such as socio-economic backwardness of the area for the purpose of admissions to professional colleges, it has been suggested that residence within a district or rural areas of that district could be a valid basis for classification for the purpose of public employment as well. We have no doubt that such a sweeping argument which has the overtones of parochialism is liable to be rejected on the plain terms of Article 16(2) and in the light of Art. 16(3). An argument of this nature flies in the face of the peremptory language of Article 16 (2) and runs counter to our constitutional ethos founded on unity and integrity of the nation. Attempts to prefer candidates of a local area in the State were nipped in the bud by this Court since long past. We would like to reiterate that residence by itself be it be within a State, region, district or lesser area within a district cannot be a ground to accord preferential treatment or reservation, save as provided in Article 16(3). It is not possible to compartmentalize the State into Districts with a view to offer employment to the residents of that District on a preferential basis. At this juncture it is appropriate to undertake a brief analysis of Article 16. 14. Article 16 which under clause (1) guarantees equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State reinforces that guarantee by prohibiting under clause (2) discrimination on the grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them. Be it noted that in the allied Article 15, the word 'residence' is omitted from the opening clause prohibiting discrimination on specified grounds. Be it noted that in the allied Article 15, the word 'residence' is omitted from the opening clause prohibiting discrimination on specified grounds. Clauses (3) and (4) of Article 16 dilutes the rigour of clause (2) by (i) conferring an enabling power on the Parliament to make a law prescribing the residential requirement within the State in regard to a class or classes of employment or appointment to an office under the State and (ii) by enabling the State to make a provision for the reservation of appointments or posts in favour of any backward class of citizens which is not adequately represented in the services under the State. The newly introduced clauses (4-A) and (4-B), apart from clause (5) of Article 16 are the other provisions by which the embargo laid down in Article 16 (2) in somewhat absolute terms is lifted to meet certain specific situations with a view to promote the overall objective underlying the Article. Here, we should make note of two things: firstly, discrimination only on the ground of residence (or place of birth) in so far as public employment is concerned is prohibited; secondly, Parliament is empowered to make the law prescribing residential requirement within a State or Union Territory, as the case may be, in relation to a class or classes of employment. That means, in the absence of parliamentary law, even the prescription of requirement as to residence within the State is a taboo. Coming to the first aspect, it must be noticed that the prohibitory mandate under Article 16(2) is not attracted if the alleged discrimination is on grounds not merely related to residence, but the factum of residence is only taken into account in addition to other relevant factors. This, in effect, is the import of the expression 'only'. 46. In A.V.S. Narasimha Rao & Others (supra), the Hon’ble Supreme Court in the context of Article 16 of the Constitution of India, observed at paragraphs 6 and 9 as follows: “6. The legislative power to create residential qualification for employment is thus exclusively conferred on Parliament. Parliament can make any law which prescribes any requirement as to residence within the State or Union territory prior to employment or appointment to an office in that State or Union territory. Two questions arise here. The legislative power to create residential qualification for employment is thus exclusively conferred on Parliament. Parliament can make any law which prescribes any requirement as to residence within the State or Union territory prior to employment or appointment to an office in that State or Union territory. Two questions arise here. Firstly, whether Parliament', while prescribing the requirement, may prescribe the requirement of residence in a particular part of the State and, secondly, whether Parliament can delegate this function by making a declaration and leaving the details to be filled in by the rule making power of the Central or State Governments. xxx xxx xxx 9. The claim for supremacy of Parliament is misconceived. Parliament in this, as in other matters, is supreme only in so far as the Constitution makes it. Where the Constitution does not concede supremacy, Parliament must act within its appointed functions and not transgress them. What the Constitution says is a matter for construction of the language of the Constitution. Which is the proper construction of the two suggested? By the first clause equality of opportunity in employment or appointment to an office is guaranteed. By the second clause, there can be no discrimination, among other things, on the ground of residence. Realising, however, that sometimes local sentiments may have to be respected or sometimes an inroad from more advance States into less developed States may have to be prevented, and a residential qualification may, therefore, have to be prescribed, the exception in clause (3) was made. Even so, that clause spoke of residence within the State. The claim of Mr. Setalvad that Parliament can make a provision regarding residence in any particular part of a State would render the general prohibition lose all its meaning. The words 'any requirement' cannot be read to warrant something which could have been said more specifically. These words bear upon the kind of residence or its duration rather than its location within the State. We accept the argument of Mr. Gupte that the Constitution, as it stands, speaks of a whole State as the venue for residential qualification and it is impossible to think that the Constituent Assembly was thinking of residence in Districts, Taluqas, cities, towns or villages. We accept the argument of Mr. Gupte that the Constitution, as it stands, speaks of a whole State as the venue for residential qualification and it is impossible to think that the Constituent Assembly was thinking of residence in Districts, Taluqas, cities, towns or villages. The fact that this clause is an exception and came as an amendment must dictate that a narrow construction upon the exception should be placed as indeed the debates in the Constituent Assembly also seem to indicate. We accordingly reject the contention of Mr. Setalvad seeking to put a very wide and liberal construction upon the words 'any law' and 'any requirement'. These words are obviously controlled by the words 'residence within the State or Union territory' which words mean what they say, neither more nor less. It follows, therefore, that Section 3 of the Public Employment (Requirement as to Residence) Act, 1957, in so far as it relates to Telangana (and we say nothing about the other parts) and Rule 3 of the Rules under it are ultra vires the Constitution.” 47. In Chebrolu Leela Prasad Rao (supra), amongst others, the following questions had arisen for consideration: “(1) What is the scope of paragraph 5(1), Schedule V to the Constitution of India? (a) Does the provision empower the Governor to make a new law? (b) Does the power extend to subordinate legislation? (c) Can the exercise of the power conferred therein override fundamental rights guaranteed under Part III? (d) Does the exercise of such power override any parallel exercise of power by the President under Article 371D? (2) Whether 100% reservation is permissible under the Constitution? (3) Whether the notification merely contemplates a classification under Article 16(1) and not reservation under Article 16(4))?” 48. While considering as to whether 100% reservation is permissible under the Constitution, the Hon’ble Supreme Court observed as follows: “127. The 100% reservation would amount to unreasonable and unfair and cannot be termed except as unfair and unreasonable. Thus, we are of the considered opinion that providing 100% reservation to the scheduled castes and scheduled tribes were not permissible. The Governor in the exercise of the power conferred by para 5(1) of the Fifth Schedule of the Constitution, cannot provide a 100% reservation. 131. Thus, we are of the considered opinion that providing 100% reservation to the scheduled castes and scheduled tribes were not permissible. The Governor in the exercise of the power conferred by para 5(1) of the Fifth Schedule of the Constitution, cannot provide a 100% reservation. 131. The reason assigned that reservation was to cover impetus in the scheduled areas in the field of education and to strengthen educational infrastructure is also equally bereft of substance. By depriving opportunity to the others, it cannot be said that any impetus could have been given to the cause of students and effective education, and now that could have been strengthened. The provisions of 100 percent reservation are ignoring the merit. Thus, it would weaken the educational infrastructure and the merit and the standard of education imparted in the schools. Educational development of students cannot be made only by a particular class of teachers appointed by providing reservation, ignoring merit in toto. The ideal approach would be that teachers are selected based on merit. 133. There were no such extraordinary circumstances to provide a 100 percent reservation in Scheduled Areas. It is an obnoxious idea that tribals only should teach the tribals. When there are other local residents, why they cannot teach is not understandable. The action defies logic and is arbitrary. Merit cannot be denied in toto by providing reservations. 134. A reservation that is permissible by protective mode, by making it 100 percent would become discriminatory and impermissible. The opportunity of public employment cannot be denied unjustly to the incumbents, and it is not the prerogative of few. The citizens have equal rights, and the total exclusion of others by creating an opportunity for one class is not contemplated by the founding fathers of the Constitution of India. Equality of opportunity and pursuit of choice under Article 51-A cannot be deprived of unjustly and arbitrarily…... ” 49. In view of the decision of the Hon’ble Supreme Court as noted above, it is impermissible for the Governor in the exercise of power conferred under paragraph 5 of the Fifth Schedule of the Constitution to provide 100% reservation in respect of posts falling within the scheduled areas in favour of only the local residents of the scheduled areas. 50. In view of the decision of the Hon’ble Supreme Court as noted above, it is impermissible for the Governor in the exercise of power conferred under paragraph 5 of the Fifth Schedule of the Constitution to provide 100% reservation in respect of posts falling within the scheduled areas in favour of only the local residents of the scheduled areas. 50. At paragraphs 52 and 54, while dealing with the question of scope of paragraph 5(1) of the Fifth Schedule, the Hon’ble Supreme Court observed as under: “52. The exceptions and modifications are created by the law, which is already applicable in the area. It is not the formulation of a new law which is contemplated under Para 5(1) of Schedule V. No new law can be formulated while exercising power under Para 5(1) of Schedule V. The power of modification cannot extend to rewriting the entire statute. The power cannot be used to supplant the law, which is applicable. The law has to be applied only with exceptions or modifications. It cannot totally supersede the existing law, which is wholly opposed to the idea of applicable law as in that case it would tantamount to the new law and not the modification or exception or creation of exceptions or modifications to the applicable law. The object and substance of law applicable cannot be changed within the purview of Para 5(1), though the applicability of applicable law can be excluded. In case the Governor decides the law to remain applicable, he has the power only to create exceptions and to modify the same, not to create a new one juxtaposed to the same applicable law. xxx xxx xxx 54. We are of the opinion that the Governor's power to make new law is not available in view of the clear language of Para 5(1), Fifth Schedule does not recognise or confer such power, but only power is not to apply the law or to apply it with exceptions or modifications. Thus, notification is ultra vires to Para 5(1) of Schedule V of the Constitution.” 51. Thus, notification is ultra vires to Para 5(1) of Schedule V of the Constitution.” 51. The notification dated 17.01.2012 and the other notifications extending the said notifications demonstrate that Rule 5 of the Rules of 1961 was modified providing that for recruitment to the vacancies arising in Class III and Class IV posts of the District Cadre of various departments of the District falling in the Bastar and Sarguja Division as well as for the District of Korba only the local residents would be eligible. Under paragraph 5 of the Fifth Schedule of the Constitution, there is no power vested in the Government to make new law, which is the case in the instant case. 52. The Hon’ble Supreme Court, while answering the question as to whether the power under paragraph 5(1) of schedule 5 extends to subordinate legislation, at paragraph 60 and 61, held as follows: “60. The submission that the order of the Governor shall be treated as legislation and has to be tested like legislation cannot be disputed. However, when it comes to modification or exception, concerning the Act of Parliament or the State legislature, we cannot add subordinate legislation in the ken of Para 5(1). The Governor can make a decision not to apply Parliamentary law or State law to scheduled areas and modify such law. 61. The rules framed under the proviso to Article 309 of the Constitution cannot be said to be the Act of Parliament or State legislature. Though the rules have the statutory force, they cannot be said to have been framed under any Act of Parliament or State legislature. The rules remain in force till such time the legislature exercises power. The power of the Governor under Para 5(1) of Schedule V of the Constitution is restricted to modifying or not to apply, Acts of the Parliament or legislature of the State. Thus, the rules could not have been amended in the exercise of the powers conferred under Para 5(1) of Schedule V. The rules made under proviso to Article 309 of the Constitution cannot be said to be an enactment by the State legislature. Thus, in our opinion, it was not open to the Governor to issue the impugned G.O. No.3/2000.” 53. Thus, in our opinion, it was not open to the Governor to issue the impugned G.O. No.3/2000.” 53. The Hon’ble Supreme Court has made it explicitly clear that the power of the Governor under paragraph 5 (1) of the Fifth Schedule is restricted to modifying or not to apply, acts of the Parliament or legislature of the State and such power does not extend to rules made under Article 309 of the Constitution of India. In the instant cases, the Governor has exercised power under paragraph 5 of the Fifth Schedule in relation to Rules of 1961, which is a rule made under Article 309 of the Constitution of India and as such, such exercise of power is wholly impermissible in law. 54. With regard to the question as to whether exercise of power conferred under paragraph 5 can override the fundamental rights guaranteed under part III, the Hon’ble Supreme Court, at paragraph 84, held as follows: “84. The power is conferred on the Governor to deal with the scheduled areas. It is not meant to prevail over the Constitution. The power of the Governor is pari passu with the legislative power of Parliament and the State. The legislative power can be exercised by the Parliament or the State subject to the provisions of Part III of the Constitution. In our considered opinion, the power of the Governor does not supersede the fundamental rights under Part III of the Constitution. It has to be exercised subject to Part III and other provisions of the Constitution. When Para 5 of the Fifth Schedule confers power on the Governor, it is not meant to be conferral of arbitrary power. The Constitution can never aim to confer any arbitrary power on the constitutional authorities. They are to be exercised in a rational manner keeping in view the objectives of the Constitution. The powers are not in derogation but the furtherance of the constitutional aims and objectives.” 55. While answering the above question, the Hon’ble Supreme Court has also held that the paragraph 5 of the Fifth Schedule beginning with the words “notwithstanding anything in this Constitution” cannot be construed as taking away the provision outside the limitations on the amending power and it has to be harmoniously construed consistent with the founding principles and the basic features of the Constitution. 56. 56. Non-obstante clause contained in para 5(1) of the Fifth schedule of the Constitution means the Governor can exercise powers inspite of provisions contained in Article 245 of the Constitution, conferring the power on the parliament to make laws and legislature of the State. In Chebrolu Leela Prasad Rao & Others (supra), the Hon’ble Supreme Court, at paragraph 80 observed as follows: “80. The non obstante clause contained in Para 5(1) of the Fifth Schedule of the Constitution means the Governor can exercise power in spite of the provisions contained in Article 245 of the Constitution, conferring the power upon Parliament to make laws and the legislature of the State. The Parliament has the power to enact the law. It cannot be questioned on the ground that it would have extraterritorial operation.” 57. In Soni Kumari & Others (supra), a notification under paragraph 5 of the Fifth Schedule of the Constitution was issued providing that in the the 13 scheduled Districts of Jharkhand, only the local residents of the concerned scheduled districts were held eligible for appointment on the District Cadre Class III and Class IV posts for a period of ten years from the date of issuance of the notification. 58. Perusal of paragraph 42 of Soni Kumari & Others (supra) goes to show that the learned Advocate General conceded that in view of the decision of the Hon’ble Supreme Court in Chebrolu Leela Prasad Rao & Others (supra), the Rules framed under Article 309 of the Constitution of India cannot be said to be an act of the Parliament or the State Legislature and as by the impugned notification and order dated 14.07.2016, none of the Act of the Parliament or the State Legislature is sought to be affected, the notification and order may not stand the test laid down by the Hon’ble Supreme Court. 59. In view of the above discussion, the notification dated 17.01.2012 and the subsequent notifications extending the said notification including the notification dated 28.05.2019 cannot be sustained in law and therefore, they are set aside and quashed. 60. In view of the above conclusion, the challenge made to the notification dated 30.01.2020 which had amended the notification dated 28.05.2019 is not really called for. However, we will assume for the moment that the notifications dated 17.01.2012 and 28.05.2019 are valid in law. 60. In view of the above conclusion, the challenge made to the notification dated 30.01.2020 which had amended the notification dated 28.05.2019 is not really called for. However, we will assume for the moment that the notifications dated 17.01.2012 and 28.05.2019 are valid in law. It is an admitted position that on the date of advertisement on 09.03.2019, there was no notification issued under paragraph 5 of the Fifth Schedule extending the notification dated 17.01.2012 and other extended notifications. There was no stipulation in the advertisement dated 09.03.2019 that only the local residents of the Districts falling under Bastar and Surguja Division and Korba District shall be eligible for recruitment to the vacancies arising in respect of Class III and Class IV posts of the District Cadre in various Departments of the concerned scheduled areas and accordingly, candidates from all over the State had participated in such selection process. After the selection process had commenced on issuance of the advertisement dated 09.03.2019, the notification dated 28.05.2019 was issued extending the notification dated 17.01.2012 and other subsequent notifications for a further period of three years from 01.01.2019 to 31.12.2021. 61. A right had accrued to the candidates who were not the residents of Division of Bastar and Surguja or Korba District to take part in the examination. By the notification dated 28.05.2019, the vested right of such candidates was sought to be taken away. It is in the above circumstance, the notification dated 30.01.2020 was issued providing that the notification dated 28.05.2019 shall not affect the advertisement dated 09.03.2019. It is not that by the notification dated 30.01.2020, the rules of the game had been sought to be changed after the selection process has started, as contended by Mr. Ishan Verma. Rather, if the notification dated 28.05.2019 was allowed to hold the field, the same would have changed the rules of the game after the selection process had begun. Even if the Governor has a power to make amendment retrospectively in exercise of power under paragraph 5 of the Fifth Schedule, such power cannot be exercised to take away vested rights. 62. Even if the Governor has a power to make amendment retrospectively in exercise of power under paragraph 5 of the Fifth Schedule, such power cannot be exercised to take away vested rights. 62. In Punjab State Cooperative Agricultural Development Bank (supra), the Hon’ble Supreme Court had taken note of the judgment of the Constitution Bench in the case of Chairman, Railway Board v. C.R.Rangadhamaiah, reported in (1997) 6 SCC 623 , wherein it was observed that a rule which operates in futuro so as to govern future rights of those already in service cannot be assailed on the ground of retroactivity as being violative of Articles 14 and 16 of the Constitution, but a rule which seeks to reverse from an anterior date a benefit which has been granted or availed of, can be assailed as being violative of Articles 14 and 16 of the Constitution to the extent it operates retrospectively. The expression ‘vested rights’ or ‘accrued rights’ have been used in the context of a right flowing under the relevant rule which was sought to be altered with effect from an anterior date and thereby taking away the benefits available under the rule in force at that time. Such an amendment having retrospective operation which has the effect of taking away a benefit already available to the employee under the existing rule is arbitrary, discriminatory and violative of the rights guaranteed under Articles 14 and 16 of the Constitution. 63. In view of the above discussion, WPS No. 1081/2020, WPS No. 6864/2021, WPS No. 3005/2021 and WPPIL No. 29/2021 are dismissed. WP(S) No. 4850/2020, WPS No. 16/2021 and WPS No. 143/2022, are allowed. 64. Interim orders passed earlier stand vacated and all the IAs also stand disposed of. No cost.