Dismissed

Photo Bai v. State Of Chhattisgarh

Chhattisgarh HC14 Jul 2025WPS/5305/2017

Case brief

AI extract

What is this about?

Writ petition by an ST woman candidate not appointed as Driver after recruitment because she had more than two living children born after 26.01.2001, barred by Rule 6(6). The court held eligibility was to be judged on the advertisement date and that the later omission of Rule 6(6) was prospective; petition dismissed.

What the court decided

AI extract

Photo Bai Vs State Of Chhattisgarh — Service and Employment | Chhattisgarh HC (2025)

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Page No.1 of 15 IN WPS-5305-2017

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2025:CGHC:32993

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Digitally signed by SAIFAN SAIFAN KHAN Date: KHAN 2025.07.15 18:07:23 +0530

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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AFR

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Order Reserved on : 07.07.2025

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Order Pronounced on : 15.07.2025

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WPS No. 5305 of 2017

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Photo Bai, W/o Shukla Prasad Uraon, aged about 38 years, R/o Ward No. 47, Vijaypur Boierdadar, Raigarh, Tahsil and District Raigarh, (Chhattisgarh)

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... Petitioner

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Versus

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1 – State of Chhattisgarh, through the Secretary, Department of Revenue, Mahanadi Bhavan, Mantralaya, Naya Raipur, District Raipur, (Chhattisgarh)

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2 - Collector, Raigarh, District Raigarh, (Chhattisgarh)

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... Respondents

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[Cause-title taken from Case Information System (CIS)]

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For Petitioner : Mr. T.K. Jha, Advocate For Respondent/State : Mr. Rahul Tamaskar, Govt. Adv. & Dr. SK Dewangan, Panel Lawyer

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Single Bench: Hon'ble Shri Justice Sanjay K. Agrawal

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(CAV Order)

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In this writ petition filed under Article 226 of the Constitution

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of India, the petitioner is aggrieved against her non-selection/appointment on the post of Driver pursuant to advertisement (Annexure-P/01) dated 01.10.2016.

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Facts of the case, in brief, are that the respondent No.02 issued advertisement (Annexure-P/01) on 01.10.2016 for recruitment on the post of Driver with a specific condition mentioned in sub-clause (31) of Clause 3 of the advertisement that Rules 5 & 6 of the Chhattisgarh Civil Services (General Condition of Service) Rules 1961 (for short the “Rules of 1961”) will be applicable to the recruitment process. Clause 3(5) of the said advertisement also provides that the candidate has to fulfill all the requisite eligibility criteria as on the date of advertisement (i.e. 01.10.2016). Thereafter, an amended advertisement was also issued on 17.10.2016 (Annexure-R/1 of the reply of the State). On completion of recruitment process, notice calling the candidates were issued vide Annexure-P/03 on 01.07.2017 for the purpose of counselling and verification of documents on 12.07.2017, in which, the present petitioner also participated under Scheduled Tribe category. Meanwhile, on 13.07.2017, Rule 6(6) of the Rules of 1961 was omitted, removing the disqualification relating to having more than 02 children on or after 26^th day of January, 2001. Thereafter, on 10.08.2017, the appointment order (Annexure-P/04) was issued, in which, the name of the petitioner was not appointed on account of her non-selection on the post of Driver. Feeling aggrieved, the petitioner submitted representation before the concerned respondent, which was also rejected on 08.09.2017 vide Annexure-

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Page No.3 of 15 IN WPS-5305-2017

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R/2 of the reply of the State, leading to filing of this writ petition.

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The petitioner has filed this writ petition stating, inter-alia, that once she has been called for interview on 01.07.2017 and her candidature has also not been rejected on the ground of applicability of Rule 6(6) of the Rules of 1961, consequently, she ought to have been appointment on the post of Driver and her selection on the said post could not have been rejected being hit by Rule 6 (6) of the Rules of 1961. Furthermore, the impugned notification dated 13.07.2017, by which, said Rule 6(6) was omitted vis-a-vis removing the disqualification relating to having more than 02 children on or after 26.01.2001 is retrospective in nature, therefore, the same is squarely applicable to the case of the petitioner. Hence, appropriate order be passed directing the respondents to appoint the petitioner on the post of Driver.

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The State has also filed its return stating, inter-alia, that the petitioner has applied under Scheduled Tribe (Women) post and no post of ST category (Women) was advertised. The candidature of the petitioner is bared by Rule 6(6) of the Rules of 1961, therefore, the same has rightly been rejected, as she is not eligible for appointment and her writ petition deserves to be dismissed.

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Mr. T.K. Jha, learned counsel appearing for the petitioner would submit that recruiting authority is absolutely unjustified in not selecting/appointing the petitioner on the post of Driver

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pursuant to advertisement issued on 01.10.2016 for the reason that once she has been declared qualified for the said post and called for counselling and document verification, her candidature could not have been rejected subsequently relying upon Rule6(6) of the Rules of 1961. The petitioner should have been appointed on the said post, as the operation of Rule 6(6) of the Rules of 1961 would be retrospective in nature. He would rely upon the decision Union of India v. Uzair Imran1 and others to buttress his submission. Hence,

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the petition be allowed.

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Mr. Rahul Tamaskar, learned Government Advocate appearing for the respondents-State would submit that Rule 6 (6) of the Rules of 1961 clearly provides that no candidate shall be eligible for appointment to a service or post who has more than two living children on of whom is born on or after the 26^th day of January, 2001 and, admittedly, petitioner is having more than two children and on of whom is born after 26.01.2001 on the date of advertisement i.e. 01.10.2016. As such, the petitioner was not eligible for making application for appointment on the post of Driver. He vehemently submits that though said disqualification vis-a-vis Rule 6(6) has been omitted vide notification dated 13.07.2017, but it will operate prospectively, as the amendment has not been given the retrospective effect. Even otherwise, the

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1 2023 SCC Online SC 1308

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Page No.5 of 15 IN WPS-5305-2017

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subordinate legislation/ rule making authority has no power to make rule with retrospective effect unless conferred expressly by the statute. Therefore, the present writ petition deserved to be dismissed.

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I have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the record with utmost circumspection.

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True it is that in the present case the advertisement was issued on 01.10.2016 for appointment on the post of Driver with a specific condition mentioned in sub-clause (31) of Clause 3 of the advertisement that Rules 5 & 6 of the Rules of 1961 will be applicable to the subject recruitment process, in which the petitioner had applied for the post of Driver. Sub-rule (6) to Rule 6 of the Rules of 1961 states as under:

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“(6) No candidate shall be eligible for appointment to a service or post who has more than two living children on of whom is born on or after the 26^th day of January, 2001.”

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A careful perusal of the aforesaid rule would show that there is a legislative injunction baring the candidates to be appointed to a service or post who are having more than two living children on of whom is born on or after the 26^th day of January, 2001. Therefore, any candidate, applying for a service or post, is having more than two living children on of whom is born on or after the 26^th day of

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Page No.6 of 15 IN WPS-5305-2017

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January, 2001, would not be eligible for appointment and selection in view of Rule 6(6) of the Rules of 1961.

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In this regard, principles of statutory interpretation by Justice GP Singh (15^th Edition) may be noticed herein, whereby under the heading “Use of Negative Words” it has been held as under:

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“Another mode of showing a clear intention that the provision enacted is mandatory, is by clothing the command in a negative form. As stated by Crawford:

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Prohibitive or negative words can rately, if ever, be directory. And this is so even though the statute provides no penalty for disobedience.

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Similarly, the Supreme Court speaking through Justice Subbarao in the matter of M Pentiab v. Muddala Veeramallappa2 has held that negative words are clearly prohibitory and are ordinarily used as a legislative device to make a statute imperative. This preposition of law has further been followed in Nasiruddin v. Sita Ram Agarwal3 with approval.

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Admittedly, as stated at the bar by Mr. T.K. Jha, learned counsel appearing for the petitioner that there is no dispute that the petitioner is having more than 02 living children on of whom is born on or after 26.01.2001. However, Rule 6(6) of the Rules of 1961, baring the candidates to be appointed to a service or post who

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2 AIR 1961 SC 1107

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3 AIR 2003 SC 1553

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Page No.7 of 15 IN WPS-5305-2017

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are having more than two living children on of whom is born on or after the 26^th day of January, 2001, has been removed by notification dated 13.07.2017, duly published in the Official Gazette, which states as under:

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“ Government of Chhattisgarh

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General Administration Department

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Mantralaya Mahanadi Bhawan, Naya Raipur

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Notification

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Naya Raipur, dated 13/07/2017

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No.F2-1/2017/1-3:: In exercise of powers conferred by the proviso to Article 309 of the Constitution of India, the Governor of Chhattisgarh, hereby, makes the following further amendment in the Chhattisgarh Civil Services (General Conditions of Service) Rules, 1961, namely:-

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Amendment

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In the said rules,-

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In rule6, sub-rule(6) be omitted.

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By order and in the name of Governor of Chhattisgarh

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Sd/(Vikas Sheel)

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Secretary Government of Chhattisgarh General Administration Department”

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Mr. T.K. Jha, learned counsel appearing for the petitioner submits that this amendment is retrospective in nature, therefore, even if it is removed w.e.f. 13.07.2017, after issuance of advertisement on 01.10.2016. the same would be applicable in the

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Page No.8 of 15 IN WPS-5305-2017

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present case.

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In this regard the Constitution Bench judgment of the Supreme Court reported in Tej Prakash Pathak v. High Court of Rajasthan4 may be noticed herein profitably, in which, their Lordships have clearly held that cut-off date with reference to which eligibility has to be determined is the date appointed by the relevant service rules; where no such cut-off date is provided in the rules, then it will be the date appointed in the advertisement inviting applications and observed in Para-15 as under:

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“ 15. Cut-off date with reference to which eligibility has to be determined is the date appointed by the relevant service rules; where no such cut-off date is provided in the rules, then it will be the date appointed in the advertisement inviting applications; and if there is no such date appointed, then eligibility criteria shall be applied by reference to the last date appointed by which the applications were to be received. [Shankar K. Mandal v. State of Bihar, (2003) 9 SCC 519 : 2003 SCC (L&S) 1145].”

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Further, while concluding their Lordships have summed up the principles of law in Para-65.1. & 65.2. as under:

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“ 65.1. Recruitment process commences from the issuance of the advertisement calling for applications and ends with filling up of vacancies;

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65.2. Eligibility criteria for being placed in the select list, notified at the commencement of the recruitment process, cannot be changed midway through the recruitment process unless the extant Rules so

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4 (2025) 2 SCC 1

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Page No.9 of 15 IN WPS-5305-2017

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permit, or the advertisement, which is not contrary to the extant Rules, so permit. Even if such change is permissible under the extant Rules or the advertisement, the change would have to meet the requirement of Article 14 of the Constitution and satisfy the test of non-arbitrariness;”

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Applying the above principles of law laid down by their Lordships of the Supreme Court in the matter of Tej Prakash Pathak (supra) in the present case, the petitioner herein was admittedly having more than two living children on of whom is born on or after the 26.01.2001, therefore, she was ineligible for the post of Driver on the date of advertisement i.e. 01.10.2016 by virtue of Rule 6(6) of the Rules of 1961. As such, her candidature was liable to be rejected in view of Clause 3(5) read with Rule 6(6) of the Rules of 1961 of the advertisement, wherein it is specifically been stated that the candidate had to fulfill all the requisite eligibility criteria as on the date of advertisement. Thus, petitioner’s candidature has rightly been rejected by the recruiting authority on that count.

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The next argument which needs consideration is that once the petitioner was allowed to complete the recruitment process, as she was called for counseling and document verification, therefore, the respondents cannot raise the plea that she is disqualified. However, this argument, in my considered opinion, deserves to be noted for rejection.

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Page No.10 of 15 IN WPS-5305-2017

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In this regard, the decision of Madhya Pradesh High Court in the matter of Bhagyashree Syed v. State of MP5 , needs consideration, wherein similar question has been answered against the petitioner by holding as under:

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“17. ….The advertisement was clear and categorical that the disqualification shall be as per the 1994 Rules and 1961 Rules. Mere participation in the written examination and the interview will not make a candidate eligible if in terms of the advertisement itself the candidate was not eligible for appointment. No right accrues in favour of the petitioner prior to appointment, when the candidature was cancelled on the ground of disqualification under the 1961 Rules. In the present case, the candidature of the petitioner has been cancelled before the stage of appointment in terms of the condition of the advertisement itself. Therefore, the petitioner cannot raise a plea of estoppel against the respondents.”

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The last argument which has been raised on behalf of the petitioner is that notification dated 13.07.2017, by which Rule 6(6) has been omitted vis-a-vis removing the disqualification relating to having more than 02 children, is retrospective in nature, also deserves to be noted for rejection for the reasons that it is well settled law that subordinate legislation/ rule making authority has no power to make rule with retrospective effect unless conferred expressly by the statute.

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The Union Parliament and State Legislatures have plenary

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5 2018 SCC Online MP 1193

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Page No.11 of 15 IN WPS-5305-2017

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powers of legislation within the fields assigned to them and subject to certain constitutional and judicially recognised restrictions can legislate prospectively as well as retrospectively. …… The power to make retrospective legislation enables the Legislature to obliterate an amending Act completely and restore the law as it existed before the amending Act. …… It is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation. …… Unless there are words in the statute sufficient to show the intention of the Legislature to affect existing rights, it is “deemed to be prospective only - “nova constitutio futuris formam imponere debet non praeteritis”—a new law ought to regulate what is to follow, not the past. …… It is not necessary that an express provision be made to make a statute retrospective and the presumption against retrospectivity may be rebutted by necessary implication especially in a case where the new law is made to cure an acknowledged evil for the benefit of the community as a whole. (See Principles of Statutory Interpretation by Justice G.P. Singh, 15^th Edition, at p.408-410.).

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It is well settled law that subordinate legislation can be given retrospective effect if the power in this behalf is contained in the main Act.

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In the matter of Mahabir Vegetable Oils (P) Ltd. v. State of

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Page No.12 of 15 IN WPS-5305-2017

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Haryana 6, their Lordships of the Supreme Court have held as under: (SCC p.633, paras 41-43)

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“41. We may at this stage consider the effect of omission of the said note. It is beyond any cavil that a subordinate legislation can be given a retrospective effect and retroactive operation, if any power in this behalf is contained in the main Act. The rule-making power is a species of delegated legislation. A delegatee therefore can make rules only within the four corners thereof.

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It is a fundamental rule of law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implication. (See West v. Gwyne⁷ .)

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A retrospective effect to an amendment by way of a delegated legislation could be given, thus, only after coming into force of sub-section (2-A) of Section 64 of the Act and not prior thereto.”

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See also MRF Ltd. v. Asstt. Commr. (Assessment) Sales Tax⁸ .

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The principle of law laid down in Mahabir Vegetable Oils (P)

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Ltd. (supra) has been followed in MRF Ltd. (supra) and thereafter, in the matter of State of Rajasthan and others v. Basant Agrotech (India) Limited 9.

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6 (2006) 3 SCC 620

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7 (1911) 2 Ch 1 : 104 LT 759 (CA)

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8 (2006) 8 SCC 702

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9 (2013) 15 SCC 1

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Page No.13 of 15 IN WPS-5305-2017

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In the matter of Federation of Indian Mineral Industries and

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others v. Union of India and another 10, their Lordships of the Supreme Court have considered the aspect of retrospective applicability of subordinate and delegated legislations and held that unless the parent statute, expressly or by necessary implication authorizes the delegated legislation to make rules retrospectively, it cannot do so. It has been observed by their Lordships as under: -

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“ 26. The power to give retrospective effect to subordinate legislation whether in the form of rules or regulations or notifications has been the subject-matter of discussion in several decisions rendered by this Court and it is not necessary to deal with all of them—indeed it may not even be possible to do so. It would suffice if the principles laid down by some of these decisions cited before us and relevant to our discussion are culled out. These are obviously relatable to the present set of cases and are not intended to lay down the law for all cases of retrospective operation of statutes or subordinate legislation. The relevant principles are:

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(i) The Central Government or the State Government (or any other authority) cannot make a subordinate legislation having retrospective effect unless the parent statute, expressly or by necessary implication, authorises it to do so. [Hukam Chand v. Union of India¹¹ and Mahabir Vegetable Oils (P) Ltd. v. State of Haryana⁵ ].

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10 (2017) 16 SCC 186

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11 (1972) 2 SCC 601

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(ii) Delegated legislation is ordinarily prospective in nature and a right or a liability created for the first time cannot be given retrospective effect. (Panchi Devi v. State of Rajasthan¹² )

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(iii) As regards a subordinate legislation concerning a fiscal statute, it would not be proper to hold that in the absence of an express provision a delegated authority can impose a tax or a fee. There is no scope or any room for intendment in respect of a compulsory exaction from a citizen. [Ahmedabad Urban Dev. Authority v. Sharadkumar Jayantikumar Pasawalla¹³ and State of Rajasthan v. Basant Agrotech (India) Ltd.⁸ ]

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A much more erudite, general and broadbased discussion on the subject is to be found in the Constitution Bench decision in CIT v. Vatika Township (P) Ltd.¹⁴ and we are obviously bound by the conclusions arrived at therein. It is not at all necessary for us to repeat the discussion and the conclusions arrived at by the Constitution Bench in the view that we have taken except to say that our conclusions do not depart from the conclusions arrived at by the Constitution Bench.”

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As such, it is well settled now that every statute shall be construed as prima facie prospective unless expressly or by necessary implication it is made to have a retrospective operation. It is also trite law that a power conferred to make a subordinate legislation must be exercised in conformity with the parent Act. A

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12 (2009) 2 SCC 589 : (2009) 1 SCC (L&S) 408

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13 (1992) 3 SCC 285

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14 (2015) 1 SCC 1

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Page No.15 of 15 IN WPS-5305-2017

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subordinate legislation can be given a retrospective effect and operation if any power in this behalf contained in the main Act as held by their Lordships of the Supreme Court in the aforesaid judgments and, in the present case, it has not been demonstrated that Rule 6 (6) of Rules of 1961 has been omitted with retrospective effect or Rule 6(6) of the Rules of 1961 has been given retrospective effect.

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In view of the above, the decision relied upon by learned counsel for the petitioner in the matter of Uzair Imran (supra) is clearly distinguishable under the facts and circumstances of the present case.

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As a fallout and in consequence of the above discussion, I do not find any merit in this writ petition. It deserves to be and, is accordingly, dismissed .

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s@if

Photo Bai v. State Of Chhattisgarh

Case brief

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What the court decided

Photo Bai v. State Of Chhattisgarh

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