This common order dismissed multiple writ petitions and one appeal challenging retrospective amendments to service rules. The High Court held that rights accrue only upon appointment, making the amendment valid as it applied prospectively to appointments made after the notification date.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Writ Petition (S) No. 2530 of 2021
---- Petitioners
Versus
2
---- Respondents
Writ Petition (S) No. 5489 of 2021
3
4
---- Petitioners
Versus
5
Shankar Nagar, Raipur, District Raipur, Chhattisgarh.
---- Respondents
Writ Appeal No. 52 of 2022
6
Kamlesharpur, District Surguja, R/o Churcha Colliery, District Korea Chhattisgarh
---- Appellants
Versus
7
---- Respondents
Writ Petition (S) No. 938 of 2022
---- Petitioners
Versus
---- Respondents
8
Writ Petition (S) No. 1588 of 2022
9
---- Petitioners
Versus
Writ Petition (S) No. 2695 of 2022
10
---- Petitioners
Versus
11
---- Respondents
AND
Writ Petition (S) No. 4356 of 2022
---- Petitioner
Versus
---- Respondents
(Cause-title taken from Case Information System)
12
| For Petitioners | : | Mr. Rohit Sharma, Advocate {in WP(S) No. 2530/2021 and WP(S) No. 5489/2021} |
|---|---|---|
| For Appellants | : | Ms. Diksha Gouraha, Advocate {in WA No. 52/2022} |
| For Petitioners | : | Mrs. Naushina Afrin Ali and Mr. Topilal Bareth, Advocates {in WP(S) No. 938/2022 and WP(S) No. 1588/2022} |
| For Petitioners | : | Mr. Govind Prasad Dewangan, Advocate {in WP(S) No. 2695/2022} |
| For Petitioners | : | Mr. Malay Shrivastava, Advocate {in WP(S) No. 4356/2022} |
| For Respondent/State | : | Mr. H.S. Ahluwalia, Deputy Advocate General alongwith Ms. Astha Shukla, Government Advocate |
| For Respondent No. 7 | : | Mr. Anand Mohan Tiwari, Advocate {in WP(S) No. 5489/2021} |
| Date of hearing | : | 20.02.2023 |
| Date of Order/Judgment | : | 10.03.2023 |
Hon'ble Shri Arup Kumar Goswami, Chief Justice Hon'ble Shri Rakesh Mohan Pandey, Judge
C.A.V. Judgment
Per Rakesh Mohan Pandey, Judge :
13
One writ appeal has also been filed challenging the order dated 10.6.2021passed by the learned Single Judge in W.P.(S) No 2090/2021, whereby the writ petition has been dismissed. In the said writ petition, some circulars, which are under challenge in the present batch of writ petitions, were challenged.
In the said rules.–
For sub-rule (1) of rule 8, the following shall be substituted, namely: –
The amendment brought by the State Government in the subrule (1) of Rule 22 C of Chhattisgarh Fundamental Rules is as under:--
In the said rules:–
For sub-rule (1) of rule 22 C, the following shall be substituted, namely:–
“(1) (a) The following stipend shall be payable to the Government Servant selected to the post of direct recruitment during the probation period of three years:–
14
minimum of the pay scale of the post;
Second year - 80 percent of the minimum of the pay scale of the post;
Third year - 90 percent of the minimum of the pay scale of the post;
Provided that during the probation period, other allowances along with stipend shall be received as a Government Servant.
(b) On confirmation in the service or post after the expiry of the period of probation, the pay of the Government Servant shall be fixed at minimum in the time-scale applicable to the service or the post.
(c) The Government Servant selected on the posts of direct recruitment also includes the appointment of selected candidates through Chhattisgarh Public Service Commission.”
15
announced on 30.09.2019 and 22.11.2019 by Chhattisgarh Professional Examination Board (for short ‘CG.VYA.PA.M.’). On account of Covid-19, the Finance Department could not take decision on the issue of appointment and thereafter, sanction was accorded with certain conditions, and permission was granted to issue provisional select list. The duration of the probation period has been extended to three years as per the instructions of Finance Department dated 29.07.2020. It is also observed that the said order would be effective from 14.09.2020.
16
and the State Government has made promise in the advertisement to pay particular grade pay-scale to the appointees. The amendment effected by the State Government in the Fundamental Rules and the Rules of 1961 are contrary to the provisions of Article 309 of the Constitution of India. The counsel for the petitioners would also submit that the executive instruction issued by the General Administration Department on 28.07.2020 says that the same would be prospective, whereas, notifications are being given retrospective effect. She would also submit that the petitioners participated in the selection process, which commenced prior to 28.7.2020, and the entire selection process was completed prior to the date of notification except the issuance of appointment orders, and therefore, the amendment cannot be given retrospective effect. The Recruitment Rules of the respective departments, which have not been amended yet, provide basic pay and grade pay and the State Government cannot enforce it without amendment. She would further submit that the statute, which affects substantive rights, is presumed to be prospective in operation unless made retrospective. She would also submit that right accrued in favour of the petitioners as they participated in the selection process and the whole selection process was completed prior to the date of notification. It is further contended that the Doctors who were appointed after amendment had come into force are being paid full salary and therefore, denial of same treatment to the petitioners is, ex facie, arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution of India. It is further contended that Clause 3(7) of the advertisement deals with disqualification only and it cannot be used to curtail the terms and
17
conditions of Advertisement or existing Recruitment Rules. One more submission made by learned counsel for the petitioners is that in the advertisement, there being no whisper of change of rules of the game of the recruitment process and pay scale, etc., the gazette notifications and the executive instructions issued by the State Government are illegal and hence, liable to be set aside.
18
Cooperative Societies and Others, reported in (2022) 4 SCC 363, Subramanian Swamy vs. Director, Central Bureau of Investigation and Another, reported in (2014) 8 SCC 682 ; Chairman, Railway Board and Others vs. C.R. Rangadhamaiah and Others, reported in (1997) 6 SC 623 ; judgment dated 04.02.2022 of Gauhati High Court in the matter of Sanjay Kumar and Another vs. The Union of India and Others passed in WP(C)/7369/2021, judgment dated 29.01.2020 passed by High Court of Rajasthan in matter of Chandra Shekhar Swami and anr. Vs. The Secretary Cum Commissioner and others, Civil Writ petition No. 1465/2020 and judgment dated 28.01.2020 passed by High Court of Delhi in matter of Dr. Davinder Singh Brar Vs. Union of India and ors.
19
8(1) of the Rules of 1961 and Rule 22 C of the Chhattisgarh Fundamental Rules, exercising the powers conferred under Article 309 of the Constitution of India and in pursuance of those notifications, executive instructions have been issued to enforce the same. They would also submit that if the petitioners are not satisfied with the stipend, which is being given by the State Government after appointment, they should not have accepted the services of the State Government. Learned counsel for the respondents would further submit that no right has accrued in favour of the petitioners before issuance of the appointment orders and the appointment orders were issued only after issuance of the gazette notifications and executive instructions. They would further submit that some of the petitioners are aspirants for government jobs and who may appear in the examination in future and, thus, they have no right to challenge the gazette notifications and executive instructions issued by the State Government. They would submit that as at no point of time full salary was granted to the petitioners, therefore, the principle of doctrine of legitimate expectation would not apply. Thus, they would submit that these petitions deserve to be dismissed.
20
and Others vs. Ganges Rope Co. Ltd. and Others, reported in (2004) 1 SCC 663 and J.S. Yadav vs. State of Uttar Pradesh and Another, reported in (2011) 6 SCC 570.
21
(Government Servants) were issued after 28.07.2020, though the advertisements were issued much prior to the date of the gazette notification, but their right accrued only after issuance of the appointment orders. In the appointment orders, they have been given stipend for a period of three years in accordance with the amended Rules and they accepted it without any protest.
22
and no promise is held out to such person. As a matter of fact, on the date of their actual appointment, the only promise held out by the government to the writ petitioners is reflected in their appointment orders and the rules which were in existence at the relevant time. In the amendment, the Government has used the term “a person appointed” in the Rule 8(1) of the Rules of 1961, whereas in the Fundamental Rule 22 C (1) the phrase “government servants selected to a post” has been used. The petitioners claim that they are entitled to the benefit of the rules which were in existence prior to amendment as they were enlisted/selected/recruited before 01.04.2003, but the Government had used the word “appointment or selected to a post”, and therefore, prior to the date of appointment, no right accrued in favour of the petitioners.
23
selection or enlistment while ‘appointment’ is an actual act of offering a post to an individual. In so far as the civil post and the civil services under the State are concerned, it is well settled that they are not merely based on the contract, but are governed by statutory rules issued in terms of proviso to Article 309 of the Constitution of India. Therefore, a vested right is created in favour of a person only after he is appointed to a service or post. Till a person is actually appointed, he is merely a selectee for the post and his selection or enlistment does not confer any right. The Government is entitled even to cancel a selection and conduct the recruitment afresh. Therefore, on the ground that the writ petitioners were recruited for appointment, they cannot claim a right that they are entitled to get benefits prior to amendment of the impugned rules. In the aforesaid contextual setting, plea of legitimate expectation is wholly misconceived.
The Hon’ble Supreme Court in matter of Chairman, Railway Board and Others (supra) while dealing with the issues held in para 20, 24, 25 and 33 as under:-
2 0 .It can, therefore, be said 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, e.g., promotion or pay scale, can be assailed as being violative of Articles 14 and 16 of the Constitution to the extent it
24
operates retrospectively.
24. In many of these decisions the expressions “vested rights” or “accrued rights” have been used while striking down the impugned provisions which had been given retrospective operation so as to have an adverse effect in the matter of promotion, seniority, substantive appointment, etc., of the employees. The said expressions 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. It has been held that 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. We are unable to hold that these decisions are not in consonance with the decisions in Roshan Lal Tandon [AIR 1967 SC 1889 : (1968) 1 SCR 185 : (1968) 1 LLJ 576] , B.S. Vedera [AIR 1969 SC 118 : (1968) 3 SCR 575 : (1970) 1 LLJ 499] and Raman Lal Keshav Lal Soni [(1983) 2 SCC 33 : 1983 SCC (L&S) 231 : (1983) 2 SCR 287] .
25. In these cases we are concerned with the pension payable to the employees after their retirement. The respondents were no longer in service on the date of issuance of the impugned notifications. The amendments in the rules are not restricted in their application in futuro. The amendments apply to employees who had already retired and were no longer in service on the date the impugned notifications were issued.
33. Apart from being violative of the rights then available under Articles 31(1) and 19(1)(f), the impugned amendments, insofar as they have been given retrospective operation, are also violative of the rights guaranteed under Articles 14 and 16 of the Constitution on
25
the ground that they are unreasonable and arbitrary since the said amendments in Rule 2544 have the effect of reducing the amount of pension that had become payable to employees who had already retired from service on the date of issuance of the impugned notifications, as per the provisions contained in Rule 2544 that were in force at the time of their retirement.
26
process was initiated, all the employees were covered under CCS (Pension) Rules, 1972. Therefore, they claimed pension according to old pension scheme. The High Courts in those petitions allowed the prayer of the employees.
“ 34. We do not find that there was any deliberate delay on the part of the Corporation. We have found that the stand of the Corporation, on the basis of the Building Rules, cannot be held to be erroneous that for seeking three additional floors, the Company was required to file a fresh application for sanction with necessary particulars, documents, plans, and enclosures. The Company complied with the necessary requirements but thereafter, the Building Rules were amended and restrictions have been imposed on the height of buildings on G.T. Road. It cannot, therefore, be held that the action of the Corporation is malicious. The Building Rules were amended by the State and the Corporation can have no bona fide or mala fide hand in it. After the amended Building Rules were notified, the Corporation on relevant ground of limited resources for civic amenities in a congested city like Howrah, with the approval of the Mayor-in-Council, could legally impose legitimate restrictions on the height of buildings, in specified wards, roads and localities. It is to be noted
27
from the relevant resolution of the Corporation that restrictions with regard to the height of buildings are not only imposed on G.T. Road but there are several specified wards and areas in which such restriction are applied. This Court cannot accepts that such a legislative change and consequent resolution came to be passed and got approved only to frustrate the pending application of the Company.”
“ 21. The word “vest” is normally used where an immediate fixed right in present or future enjoyment in respect of a property is created. With the long usage the said word “vest” has also acquired a meaning as “an absolute or indefeasible right”. It had a “legitimate” or “settled expectation” to obtain right to enjoy the property, etc. Such “settled expectation” can be rendered impossible of fulfillment due to change in law by the legislature. Besides this, such a “settled expectation” or the so-called “vested right” cannot be countenanced against public interest and convenience which are sought to be served by amendment of the law. (Vide Howrah Municipal Corpn. v. Ganges Rope Co. Ltd.)”
In light of the judgment passed by Hon’ble Supreme Court in above cited cases it is crystal clear that ‘recruitment’ and ‘appointment’ are distinct words. Until and unless a person is appointed, he has no lien over the post and no right gets accrued in his favor.
28
petitioners, issue involved was with regard to equal pay for equal work. Prior to appointment of an employee, he is not entitled to get any salary; therefore, he cannot claim parity and equal pay for equal work before appointment. The judgment cited by the petitioners with regard to application of old pension scheme cannot be applied in the present case because pension becomes payable after retirement and that stage has not come yet.
So far as grant of relaxation to Doctors are concerned, it is the stand taken by the State that there was overwhelming necessity for recruitment of Doctors in the wake of Covid-19 pandemic and as there was reluctance to join government service with changed conditions due to the amendment, to meet the exigency of the situation, recourse was taken to relax the rules for the Doctors. There is no gainsaying the fact that the Doctors had a pivotal role to play during the Covid-19 pandemic and they were aptly called as Covid-19 warriors. In view of the extraordinary situation created by Covid-10 pandemic, no fault can be found in granting relaxation to the Doctors in large public interest for combating the situation and the petitioners, in the circumstances, cannot claim parity with the Doctors.
29
| Sd/- | Sd/- |
|---|---|
| (Arup Kumar Goswami) | (Rakesh Mohan Pandey) |
| Chief Justice |
Judge |
vatti
3 issues framed by the court
Whether the retrospective amendment of service rules reducing provisional salary to stipend violates Articles 14 and 16 of the Constitution.
Whether a right accrues in favour of a recruit before the issuance of formal appointment orders.
Whether the State Government can validly extend the probation period for direct recruits post-selection.
Colour shows how this judgement treated each authority
Punjab State Cooperative Agricultural Development Bank Ltd. vs. RegistrarReferred¶220
The Punjab State Cooperative Agricultural Development Bank Ltd. vs. The Registrar, Cooperative Societies and Others, reported in (2022) 4 SCC 363
Subramanian Swamy vs. Director, CBIReferred¶220
Subramanian Swamy vs. Director, Central Bureau of Investigation and Another, reported in (2014) 8 SCC 682 · Who else cites this
Chairman, Railway Board vs. C.R. RangadhamaiahReferred¶220,245
Chairman, Railway Board and Others vs. C.R. Rangadhamaiah and Others, reported in (1997) 6 SC 623
Sanjay Kumar vs. Union of IndiaReferred¶221
Sanjay Kumar and Another vs. The Union of India and Others, WP(C)/7369/2021
Chandra Shekhar Swami vs. Secretary, CommissionerReferred¶221
Chandra Shekhar Swami and anr. Vs. The Secretary Cum Commissioner and others, Civil Writ petition No. 1465/2020
Dr. Davinder Singh Brar vs. Union of IndiaReferred¶221
Dr. Davinder Singh Brar Vs. Union of India and ors.
Howrah Municipal Corporation vs. Ganges Rope Co. Ltd.Referred¶227,259
Howrah Municipal Corpn. and Others vs. Ganges Rope Co. Ltd. and Others, reported in (2004) 1 SCC 663 · Who else cites this
J.S. Yadav vs. State of Uttar PradeshReferred¶229,264
J.S. Yadav vs. State of Uttar Pradesh and Another, reported in (2011) 6 SCC 570 · Who else cites this
Prafulla Kumar Swain vs. Prakash Chandra MisraReferred¶239
Prafulla Kumar Swain vs. Prakash Chandra Misra and Others, 1993 Supp (3) SCC 181 · Who else cites this
Union of India vs. Sankalchand Himatlal ShethReferred¶240
Union of India vs. Sankalchand Himatlal Sheth and Another
Vijayendra Mahilane S/o Babulal Mahilane and Others
State of Chhattisgarh through Respondents
Arup Kumar Goswami
Rakesh Mohan Pandey
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
