Rekha Soni, Vs State of Chhattisgarh

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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WPS No. 1395 of 2024

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Rekha Soni, W/o Mahendra Soni Aged About 39 Years R/o A- 403, Vardhman Skyline, New Rajendra Nagar, Infront Of Dronacharya Public School, Raipur, District : Raipur, Chhattisgarh

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---- Petitioner

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Versus

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State Of Chhattisgarh Through Secretary, Department Of Higher Education Mantralaya, Mahanadi Bhawan, Atal Nagar, Nawa Raipur, District : Raipur, Chhattisgarh

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Chhattisgarh Public Service Commission Through Secretary, Chhattisgarh Public Service Commission Raipur, District : Raipur, Chhattisgarh

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---- Respondents

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For Petitioner : Ms. Fouzia Mirza, Sr. Advocate with Mr. Shamsuddin Mirza, Advocate

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For State : Ms. Upasna Mehta, Dy. Government Advocate

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For Respondent No.2: Mr. Anand Mohan Tiwari, Advocate

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Hon'ble Shri Justice Narendra Kumar Vyas Order on Board

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18.06.2024

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The petitioner has filed present writ petition being aggrieved with order dated 14.02.2024 by which the representation made by the petitioner for appointment to the post of Assistant Professor (Chemistry) has been rejected on the count that as per the Rule 19.6 of the Public Service Commission Procedure Rule, 2014 (in short ‘the Rules of 2014’) if candidate resigns, then the post cannot be considered as vacant post.

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Brief facts as projected by the petitioner is that that the petitioner participated in the recruitment proceedings for appointment on the post of Assistant Professor (Chemistry) pursuant to advertisement dated 23.01.2019. Respondents have published main select list on 26.06.2021 and also wait list of candidates.

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Name of petitioner finds place at Sr. No. 8 in the wait list. As per information received by the petitioner candidates at Sr. No.11, 14 and 37 of the select list have resigned after joining on the post. Proceedings with respect to wait list candidates at Sr. No. 1 and 2 are already in process and as the wait list candidates at Sr. No. 3 to 7 have executed a document that they do not intend to join on the post of Assistant Professor, therefore now the next candidate in the wait list is the petitioner. As the third post which became vacant after resignation of selected candidate at Sr. No.11, petitioner is entitled to be considered. She also contended that life of select list is already extended by the State Government till 23.06.2023. According to service recruitment rules governing the field, she is coming within the zone of consideration for her appointment.

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Learned Senior Counsel for the petitioner would submit that the impugned order Annexure P/1 is bad in law and against the Rules framed by the State Government under Article 309 of the Constitution of India namely Rule 12(7) of the Chhattisgarh Education Services (Collegiate Branch) Recruitment Rule, 2019 (in short ‘ the Rules of 2019’). Rule 12(7) is extracted below:-

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Rule 12(7) – Any candidate, whose name is included in the selection list, do not join the duty within the valid period or resigns or for any reason he is found unfit or the selected candidate dies during the valid period, the name of candidate from the waiting list can be recommended by the Commission for appointment.

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She would further submit that the advertisement issued by the Public Service Commission also provides that the advertisement has been issued in accordance with the Rules framed under Article 309 of the Constitution of India i.e. Rules of 2019. She would further submit that the Rule 19.6 of the Rules of 2014 has been inserted on 02.05.2019 whereas the advertisement has been published on 23.01.2019, therefore the amendment in the Rules cannot be given retrospective effect, as such, Rule 19.6 is not applicable in the present facts of the case and would pray for

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allowing the writ petition by directing Respondent No. 1 to issue appointment order in favour of the petitioner.

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Learned counsel for the State as well as PSC would submit that as per the Rule 19.6 of the Rules of 2014, resignation does not fall within the ambit of vacant post, therefore, the petitioner’s claim cannot be considered, as such, the impugned order dated 14.02.2024 is just and proper and does not call any interference by this Court.

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I have heard learned counsel for the parties and perused the record.

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Considering the submission of the learned counsel for the parties and bare perusal of the record, the point which emerged for consideration of this Court, is whether Recruitment Rules framed by the State under Article 309 of the Constitution of India will prevail or the procedure Rules of 2014 framed by the PSC. To decide the issue it is expedient for this Court to extract Article 309 which reads as under:-

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Recruitment and conditions of service of persons serving the Union or a State Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State:Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act.

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Learned counsel for the PSC would submit that the Public Service Commission has been constituted as per provisions of Article 320 of the Constitution of India which is a statutory body and is carrying out recruitment for Union as well as State. The PSC to carry out its business has framed Procedure Rules which are binding over the Public Service Commission. Thus, he would

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submit that the Rules of 2014 will have force of law and is binding and would pray for dismissal of the writ petition.

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The learned counsel for the State would submit that the impugned order dated 14.02.2024 is legal, justified and does not warrant interference by this Court and would pray for dismissal of the writ petition.

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10.Considering the well settled position of law that the Rules made under Article 309 of the Constitution of India has binding and overriding effect and it is settled position of service jurisprudence that Rules of recruitment to various services under the State, the State is bound to follow the same and to have selection of the candidates to be made as per the Scheme of the recruitment rules. It is also well settled position of law that the State shall make an effort for strict adherence to the procedure prescribed under the recruitment rules. Thus, it is quite vivid that the Recruitment Rules, 2019 will prevail over the Chhattisgarh Public Service Commission Procedure Rule, 2014. The issue with regard to binding effect of Rules framed under Article 309 of the Constitution of India has come up for consideration before the Hon’ble Supreme Court in case of Ram Pal Chaturvedi vs. State of Rajasthan {(1970) 1 SCC 75} wherein Hon’ble Supreme Court has held under :-

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“The Collegiate Branch Rules having been made pursuant to the power conferred by Art. 309 of the Constitution, they must be given full effect subject to the provisions of any Act made by the appropriate Legislature regulating the recruitment and conditions of service of persons appointed to the Rajasthan Medical Service (Collegiate Branch). Such Act need not specifically deal with the aforesaid Medical Services but it must be an Act as contemplated by Art. 309 by or under which provision is made regulating the recruitment and conditions of service taking within its fold the said Medical Services.”

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11.Considering the well settled position of law that the Rules made under Article 309 of the Constitution of India will prevail over the Rules framed by the PSC and also considering the fact that Rule 19.6 has been framed by the PSC on 02.05.2019 which cannot be given retrospective effect, as such, the impugned order

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Annexure P/1 deserves to be and is hereby set aside.

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12.Accordingly, it is directed that the State shall issue appointment order to the petitioner within 15 days from the date of receipt of copy of this order. It is made clear that the petitioner will not claim any monetary benefits or seniority for the period she has not been given appointment by respondent No.1.

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13.With the aforesaid observation and direction the writ petition stands allowed.

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Sd-

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(Narendra Kumar Vyas) Judge

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Deshmukh

Rekha Soni, v. State of Chhattisgarh

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Rekha Soni, v. State of Chhattisgarh

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