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2022 DIGILAW 96 (CHH)

Chitrakant Choubey S/o. Shri Chhedilal Choubey v. State of Chhattisgarh through the Secretary

2022-02-18

SANJAY K.AGRAWAL

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JUDGMENT : 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 Laxman Rao Patil v. State of Maharashtra, through Chief Minister and Another (2021) 2 SCC 785 . 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% 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 Goyal 2022 SCC Online SC 86. 5. He would also submit that the relief as claimed by the petitioner seeking direction for providing 10% 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 Goyal 2022 SCC Online SC 86. 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. WPS No. 198 of 2020 decided on 07/02/2022, this Court has held that the Ordinance, 2019 has ceased to operate and observed in paragraphs 7 and 11 as under :- “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. 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. 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 Haryana (2010) 1 SCC 477 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. 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 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. 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 Laxman Rao 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 1992 Supp. (3) SCC 217 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).