Bheem Singh Dhruv Vs State of Chhattisgarh

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2024:CGHC:44739

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AFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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WPS No. 2321 of 2018

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Order Reserved on : 20.08.2024

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Order Delivered on : 18.11.2024

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Bheem Singh Dhruv S/o Late Kholbahra Singh Dhruv, Aged About 43 Years Occupation Terminated Choukidar, Office Of District And Sessions Judge, Raigarh, R/o Modhapara, District Raigarh Chhattisgarh., District : Raigarh, Chhattisgarh

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... Petitioner

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versus

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State Of Chhattisgarh Through The Secretary, Department Of Law And Legislature, Mahanadi Bhawan, New Mantralaya, New Raipur Chhattisgarh., District : Raipur, Chhattisgarh

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The Registrar General, High Court Of Chhattisgarh, Bilaspur Chhattisgarh.

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The Secretary, Department Of General Administration, New Mantralaya, Mahanadi Bhawan, New Raipur Chhattisgarh.

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The Court Superintendent, District And Sessions Court, Raigarh District Raigarh Chhattisgarh.

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... Respondents

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For Petitioner	:	Mr. Arun Kumar Shukla, Advocate
For State	:	Mr. Pramod Shrivastava, Dy. Govt. Advocate
For Respondent No.		Ms. Akanksha Jain, Advocate
2 and 4

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Hon'ble Shri Justice Narendra Kumar Vyas

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(CAV Order)

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The petitioner has filed the present writ petition under Article 226 of

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the Constitution of India for quashing of the order dated

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09.05.2017 (Annexure P/1) passed by the learned District and Sessions Judge, Raigarh (C.G.) in Case No. 116/Do-11-05/2015 by which the appeal filed by petitioner has been dismissed and also challenged the order dated 22.09.2016 (Annexure P/5) by which the service of the petitioner has been terminated by learned District and Sessions Judge, Raigarh on the count that the petitioner was having three children after 26.01.2001 which is against the Rule 6(6) of Chhattisgarh Civil Services (General Conditions of Service) Rules, 1961 (in short ‘ the Rules, 1961’).

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Brief facts of the case are that the petitioner was appointed by the Respondent No.3 on the post of Choukidar after following due process of selection on 22.08.2007. In compliance of the order dated 22.08.2007 the petitioner joined his duties. It is the case of the petitioner that prior to joining of service, he was two living children and during service period a child was also born on 16.01.2011. The Respondent No.3 sought information from all the class IV employees regarding marital status and number of living child. The petitioner submitted reply clearly mentioning that his two children were born on 08.10.2004, 25.03.2007 and thereafter third child was born on 16.01.2011.

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The respondent without giving any opportunity of hearing terminated the service on the count that the petitioner is having more than two children which dis-entitled the petitioner to get Government job as per Rule 6(6) of Rules of 1961. Being aggrieved with this order the petitioner has preferred Writ Petition before this Court bearing registration number WP(S) No.

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478/2017. This Court vide its order dated 30.01.2017 granting the liberty to the petitioner to prefer an appeal within 15 days and same shall be decided by the Appellate Authority within 2 months from the date of presentation of appeal.

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In compliance of the order the petitioner has preferred an appeal on 15.02.2017 before the learned District Judge contending that Rule 6 is not applicable to the contingency paid employees as such the termination is illegal. It has been further contended that the third child of the petitioner who was born on 21.05.2011 has been given on adoption to his brother, therefore, it cannot be said that the petitioner is having three children, thus, he would pray for allowing the appeal.

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After receipt of the appeal, the District and Sessions Judge, Raigarh had issued a show cause notice to the petitioner on 04.05.2017 asking him to submit reply, in which, apart from the issue of third child he has also sought explanation regarding conduct of the petitioner. The petitioner had submitted his reply to the show cause notice on 06.05.2017. The learned District and Sessions Judge, Raigarh without considering the submission mechanically rejected the appeal vide its order dated 09.05.2017 (Annexure P-1). Being aggrieved with this order, the petitioner has preferred this writ petition.

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Learned counsel for the petitioner would submit that the Respondent authority without considering the fact that the third child of petitioner was adopted by his brother therefore, the third child cannot be said to be the child of the petitioner. It has been

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further contended that provisions of Rules 13, 14 and 15 of the Rules Relating to Recruitment and Condition of Service of Contingency Paid (District and Sessions Judge Establishment) Employee Rule, 1980 have not been properly taken care of and thus committed illegality in rejecting the appeal. Thus, he would pray for quashing the impugned order and reinstatement of the petitioner with full back wages.

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Learned counsel for the respondents No. 2 and 4 supported the order and would submit that the petitioner was appointed in violation of the Rules of 1961 as such, there is no illegality in terminating the service and would pray for dismissing the writ petition. She would further submit that a report was called from the Administrative Committee by the Establishment for promotion of contingency paid employees. In compliance thereof, the Administrative Committee submitted a report on 21.9.2016 mentioning therein that for promoting the contingency paid employees, information regarding their family was called and as per information furnished by the petitioner, he has three children out of which one was born after joining the service and there is deficiency in the quality of his work, he is lacking etiquette and respect towards superiors and has got average grading. She would further submit that the so called adoption deed executed by the petitioner on 21.12.2016 is nothing but an afterthought story and appears to be fabricated. Therefore, he cannot take any advantage from the adoption deed and would pray for rejection of the writ petition.

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

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From the above stated submission the point to be determined by this Court is what should be the effect of omission of the Rule which has been omitted by the State Government on 13.07.2017?

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To appreciate this point it is expedient for this Court to extract the Rule 6(6) of the Rules, 1961 which provides disqualification for appointment to any service or post :-

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“Rule 6(6) as stood prior to omission “ No candidate shall be eligible for appointment to a service or post who has more than two living children one of them is born on or after 26.01.2001

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[provided that no candidate shall be disqualified for appointment to a service or post who has already one living child and next delivery takes place on or after the 26^th day January, 2001 in which two or more than two children are born]”

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The history of this provision would demonstrate that these provisions have been initially made applicable in Panchayat Raj Adhinium 1993 with regard to appointment of Panch, Sarpanch of Panchayat. The virus of the said provisions have come up for consideration before the Hon’ble Supreme Court in case of Javed and Others vs. State of Haryana and Others {(2003) 8 SCC 369} wherein Hon’ble Supreme Court has held in paragraph 61 and 62 as under:-

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“61. If anyone chooses to have more living children than two, he is free to do so under the law as it stands now but then he should pay a little price and that is of depriving himself from holding an office in Panchayat in the State of Haryana. There is nothing illegal about it and certainly no unconstitutionality attaches to it.

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It was submitted that the enactment has created serious problems in the rural population as couples desirous of contesting an election but having living children

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more than two, are feeling compelled to give them in adoption. Subject to what has already been stated hereinabove, we may add that disqualification is attracted no sooner a third child is born and is living after two living children. Merely because the couple has parted with one child by giving the child away in adoption, the disqualification does not come to an end. While interpreting the scope of disqualification we shall have to keep in view the evil sought to be cured and purpose sought to be achieved by the enactment. If the person sought to be disqualified is responsible for or has given birth to children more than two who are living then merely because one or more of them are given in adoption the disqualification is not wiped out.”

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This judgment has been recently followed in Civil Appeal No. 2744/2024 in case of Ramji Lal Jat vs State of Rajasthan decided on 20.02.2024.

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The similar provisions have also been inserted in the Rules of 1961 in the year 2001. The Rules 6(6) disqualified any person to be appointed having more than two children. As such, the orders passed by the authority treating the petitioner as disqualified for appointment cannot be said to be unjustifiable till the Rules were in existence. But, this Court cannot lose sight of the fact that the said Rules have been omitted on 13.07.2017, as such, disqualification clause is not in existence now. The effect of omission of any clause has come up for consideration before the Hon’ble Supreme Court in case of Shree Bhagwati Steel Rolling Mills vs. Commissioner of Central Excise {(2016) 3 SCC 643} wherein in paragraph 12 and 13 Hon’ble Supreme Court has held as under:-

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“12. From this it is clear that when Section 6 speaks of the repeal of any enactment, it refers not merely to the enactment as a whole but also to any provision contained in any Act. Thus, it is clear that if a part of a statute is deleted, Section 6 would nonetheless apply. Secondly, it is clear, as has been stated by referring to a passage in Halsbury’s Laws of England in the Fibre Board’s judgment,

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that the expression “omission” is nothing but a particular form of words evincing an intention to abrogate an enactment or portion thereof. This is made further clear by the Legal Thesaurus (Deluxe Edition) by William C Burton, 1979 Edition. The expression “delete” is defined by the Thesaurus as follows:

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“Delete: - Blot out, cancel, censor, cross off, cross out, cut, cut out, dele, discard, do away with, drop, edit out, efface, elide, eliminate, eradicate, erase, excise, expel, expunge, extirpate, get rid of, leave out, modify by excisions, obliterate, omit, remove, rub out, rule out, scratch out, strike off, take out, weed wipe out.” Likewise the expression “omit” is also defined by this Thesaurus as follows:-

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“Omit:- Abstain from inserting, bypass, cast aside, count out, cut out, delete, discard, dodge, drop exclude, exclude, fail to do, fail to include, fail to insert, fail to mention, leave out, leave undone, let go, let pass, let slip, miss, neglect, omittere, pass over, praetermittere, skip, slight, transire.” And the expression “repeal” is defined as follows:-

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“Repeal:- Abolish, abrogare, abrogate, annul, avoid, cancel, countermand, declare null and void, delete, eliminate, formally withdraw, invalidate, make void, negate, nullify, obliterate, officially withdraw, override, overrule, quash, recall, render invalid, rescind, rescindere, retract, reverse, revoke, set aside, vacate, void, withdraw.”

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On a conjoint reading of the three expressions “delete”, “omit”, and “repeal”, it becomes clear that “delete” and “omit” are used interchangeably, so that when the expression “repeal” refers to “delete” it would necessarily take within its ken an omission as well. This being the case, we do not find any substance in the argument that a “repeal” amounts to an obliteration from the very beginning, whereas an “omission” is only in futuro. If the expression “delete” would amount to a “repeal”, which the appellant’s counsel does not deny, it is clear that a conjoint reading of Halsbury’s Laws of England and the Legal Thesaurus cited hereinabove both lead to the same result, namely that an “omission” being tantamount to a “deletion” is a form of repeal.”

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Even in the omission clause, there is no such provision for saving the action taken in pursuance of the pre-existing Rules. It is

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apparent from record that State Government itself omitted the said Rule, therefore, entire action of the respondent in terminating the service of the petitioner has lost its significance and it cannot be said that omission of a rule will have prospective effect, it has same effect of repeal as held by the Hon’ble Supreme Court in case of Shri Bhagwati (Supra). Consequently, he is entitled to be reinstated in the service with continuity of service but without backwages as the petitioner has nowhere pleaded that during termination he remained unemployed.

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This Court has also sought information from respondents No. 2 to 4 regarding vacancy position for the post of contingency paid employees at Raigarh District Court establishment and it was informed that one post of Chowkidar in contingency paid employee category is lying vacant at Raigarh District Court establishment. As such, there will be no difficulty for the respondent No. 2 to 4 to reinstate the petitioner.

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Accordingly, the writ petition is allowed in part directing respondents No. 2 to 4 to reinstate the petitioner with continuity of service without back wages.

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Pending interlocutory applications, if any, stand disposed of.

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Sd/- (Narendra Kumar Vyas)

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Judge

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Manish

Bheem Singh Dhruv v. State of Chhattisgarh

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Bheem Singh Dhruv v. State of Chhattisgarh

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