Smt. Khomin Nayak Vs the State of Chhattisgarh

The State of Chhattisgarh, through its Secretary, Food, Civil Supplies, and Consumer Protection Department, Mantralaya, Naya Raipur, District Raipur, Chhattisgarh

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Secretary, General Administration Department, Mantralaya, Naya Raipur, District Raipur, Chhattisgarh

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Controller, Legal Metrology, Naya Raipur, Atal Nagar, Raipur, Chhattisgarh

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Assistant Controller, Legal Metrology, Durg Division, Near D.P.S. Junvani, Indira Nagar, Durg, Chhattisgarh

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... Respondents

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For Petitioner : Mr. Parag Kotecha, Advocate.

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For Respondents/State : Mr. Rahul Tamaskar, Government Advocate.

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Division Bench: - Hon'ble Shri Sanjay K. Agrawal and Hon'ble Shri Radhakishan Agrawal, JJ.

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Order on Board (12/09/2025)

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Sanjay K. Agrawal, J.

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The petitioner has filed the instant writ petition questioning the constitutional validity of clause 2(iii) of Schedule-IV enacted under

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Page 2 of 10

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(WPS No.8062/2022)

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Rule 13 of the Chhattisgarh Legal Metrology Class III (NonMinisterial) Service Recruitment Rules, 2013 (for short, ‘the Rules of 2013’) branding the same as arbitrary, unreasonable and violative of Articles 14 & 16 of the Constitution of India. She has further challenged the memo dated 29-9-2022 (Annexure P-7) by which she has been declared ineligible to participate in the limited competitive examination for appointment to the post of Inspector, Legal Metrology.

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The aforesaid challenge has been made on the following factual backdrop: -

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The petitioner was appointed as Assistant Grade-III on 29-1-2008. Thereafter, on 18-3-2013, the Rules of 2013 were notified in which there is a provision for limited departmental examination for the post of Inspector, Legal Metrology. The petitioner appeared in the said examination for the post of Inspector, Legal Metrology in the years 2014 and 2015, but she could not succeed and again, on 2010-2021, respondent No.3 invited applications for participation in the limited departmental examination for the said post to which the petitioner made application on 25-10-2021 (Annexure P-3) and list of eligible and ineligible candidates was declared on 20-4-2022 (Annexure P-5) to which the petitioner also made objection, however, she was declared ineligible on 29-9-2022 (Annexure P-7) holding that she being above the age of 45 years is not entitled to participate as per clause 2(iii) of Schedule-IV enacted under Rule 13

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Page 3 of 10

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(WPS No.8062/2022)

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of the Rules of 2013, which has been challenged by way of the instant writ petition.

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The State/respondents have filed their return stating inter alia that it is the prerogative of the employer to prescribe age limit for a particular post in exercise of power conferred under the proviso to Article 309 of the Constitution of India, it is neither ultra vires nor arbitrary or unreasonable, it is in accordance with law and it is within the right of the employer/State Government to prescribe age limit for a post which can neither be challenged nor termed as unreasonable, as such, the writ petition deserves to be dismissed.

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Mr. Parag Kotecha, learned counsel appearing on behalf of the petitioner, would submit that the said rule is in violation of the petitioner’s right under Articles 14 & 16 of the Constitution of India. Though the petitioner has twice appeared in the said examination, but since it is a promotional post, age limit could not be prescribed to be 45 years by which she had lost her right to be promoted on the post of Inspector, Legal Metrology. He would rely upon the decision of the Supreme Court in the matter of Indravadan H. Shah v. State of Gujarat and another 1 to buttress his submission.

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Mr. Rahul Tamaskar, learned Government Advocate appearing on behalf of the State/respondents, would submit that the Rules of 2013 provide additional opportunity to the ministerial staff of the Department to appear in the limited competitive examination for appointment to the executive, Class-III post of Inspector, Legal

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1 1986 (Supp) SCC 254

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Page 4 of 10

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(WPS No.8062/2022)

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Metrology and the Rules of 2013 are not rules of promotion but rules of direct recruitment to the post of Inspector, Legal Metrology as per Rules 8 and 13. Rule 8 deals with open category candidates and Rule 13 is with respect to ministerial staff of the Office of the Controller, Legal Metrology. He would further submit that there is always presumption in favour of constitutionality or validity of a legislation and challenge to the constitutional validity of legislation can be made on limited grounds. He would also submit that promotion, in itself, is not a vested right. As such, the writ petition deserves to be dismissed.

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We have heard learned counsel for the parties and considered their rival submissions made herein-above and also gone through the record meticulously and carefully as well.

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Grounds for Challenging Constitutional Validity of a Rule

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A Statute is construed so as to make it effective and operative on the principle expressed in the maxim “ ut res magis valeat quam pereat ”. Therefore, a presumption that the Legislature does not exceed its jurisdiction, and the burden of establishing that the Act is not within the competence of the Legislature, or that it has transgressed other constitutional mandates, such as those relating to fundamental rights, is always on the person who challenges its vires . (See Principles of Statutory Interpretation by Justice G.P. Singh, 12^th Edition, page 592 .)

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Page 5 of 10

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(WPS No.8062/2022)

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It is a settled principle of law that the Statute enacted by the Parliament or State Legislature cannot be declared unconstitutional lightly. The Court must be able to hold beyond any iota of doubt that the violation of the constitutional provisions was so glaring that the legislative provisions under challenge cannot stand.

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The Supreme Court in the matter of State of Tamil Nadu and another v. P. Krishnamurthy and others 2, recollected the following principles while adjudging the validity of subordinate legislation, including regulations:

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“15. There is a presumption in favour of constitutionality or validity of a subordinate legislation and the burden is upon him who attacks it to show that it is invalid. It is also well recognised that a subordinate legislation can be challenged under any of the following grounds:

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( a ) Lack of legislative competence to make the subordinate legislation.

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( b ) Violation of fundamental rights guaranteed under the Constitution of India.

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( c ) Violation of any provision of the Constitution of India.

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( d ) Failure to conform to the statute under which it is made or exceeding the limits of authority conferred by the enabling Act.

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( e ) Repugnancy to the laws of the land, that is, any enactment.

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( f ) Manifest arbitrariness/unreasonableness (to an extent where the court might well say that the legislature never intended to give authority to make such rules).”

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Rule in Question

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The impugned rule which is sought to be challenged by the petitioner states as under: -

2 (2006) 4 SCC 517

Page 6 of 10

(WPS No.8062/2022)

SCHEDULE – IV

(See rule – 13)

Scheme for promotion through limited competitive examination for the posts of Inspectors, Legal Metrology from amongst the ministerial services.

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1. Title – xxx xxx xxx

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2. Eligibility – Only such members of ministerial services of Legal Metrology will be eligible for the benefit of this scheme who possess the following qualification, namely : -

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(i) xxx xxx xxx (ii) xxx xxx xxx

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(iii) Members, who shall not be more than 45 years of age on the first day of January of that year, in which selection is made. Members belonging to Scheduled Caste and Scheduled Tribes they shall not be more than 50 years of age limit on the first day of January of that year in which selection is made.”

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A careful perusal of clause 2(iii) of Schedule-IV enacted under Rule 13 of the Rules of 2013 would reveal that it is a scheme for promotion through limited competitive examination to fill up the posts of Inspectors, Legal Metrology through selection from amongst the ministerial services in accordance with the procedure as laid down in Schedule-IV which shall be held by the appointing authority and clause 2 of Schedule-IV prescribes eligibility for members of ministerial services of Legal Metrology who possess the qualification as mentioned in sub-clause (ii) and one of the eligibility conditions is that the members should not be more than 45 years of age on the first day of January of that year in which selection is made. As such, Schedule-IV enacted under Rule 13 of

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Page 7 of 10

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(WPS No.8062/2022)

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the Rules of 2013, which is a scheme for promotion through limited competitive examination for the posts of Inspectors, Legal Metrology from amongst the members of ministerial services, is an opportunity to the ministerial staff of the Department to appear in the limited competitive examination for appointment to the executive, Class-III post of Inspector, Legal Metrology.

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The very object for providing the channel of promotion through the Limited Departmental Competitive Examination is to provide an incentive to the officers amongst the relatively junior officers to improve and to compete with each other so as to excel and get quicker promotion (see All India Judges Association and others v. Union of India and others 3).

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The aforesaid rule has been made under the proviso to Article 309 of the Constitution of India. In order to adjudicate the constitutional validity of the aforesaid provision of the Rules of 2013, it would be expedient to notice Article 309 of the Constitution of India, which provides as under: -

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“ 309. 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:

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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

3 (2022) 7 SCC 494

Page 8 of 10

(WPS No.8062/2022)

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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A careful perusal of the aforesaid provision would show that the object of Article 309 of the Constitution is that matters relating to Government service should be regulated by legislation (see Ramanatha v. State of Kerala 4), and until such legislation is available, they should be governed by Rules made under the Proviso to Article 309 of the Constitution of India. The Rules so framed under proviso to Article 309 of the Constitution must be reasonable, fair and not unjust if they are to survive the test of Articles 14 and 16 of the Constitution (see Baleshwar Dass v. State of U.P. 5, State of U.P. and another v. Ramgopal Shukla 6 and State of Mysore v. M.H. Krishna Murthy and others 7).

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Reverting to the facts of the present case in light of the aforesaid legal position, it is quite vivid that the petitioner who has twice appeared in the limited competitive examination for the post of Inspector, Legal Metrology, could not be successful and on third attempt, she became over age for the said post and was declared ineligible which led to challenge the impugned rule branding the same as arbitrary and unreasonable. The petitioner’s services are governed by the Chhattisgarh Weights and Measures Department (Class-III) Service Recruitment Rules, 2012 and she has been

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4 AIR 1973 SC 2641

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5 (1980) 4 SCC 226

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6 (1981) 3 SCC 1

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7 (1973) 3 SCC 559

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Page 9 of 10

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(WPS No.8062/2022)

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promoted on the post of Accountant by order dated 13-3-2023. As stated above, the Rules of 2013 are for direct recruitment to the post of Inspector, Legal Metrology through limited competitive examination giving an opportunity to the members of ministerial staff to compete on the post of Inspector, Legal Metrology and to shift on the executive post of Inspector, Legal Metrology and it is an additional mode of getting promotion on the post of Inspector, Legal Metrology apart from their usual mode of promotion as per rules. It is not the case of the petitioner that one member has been restricted to 45 years and other member has been allowed to appear without age restriction of 45 years. The purpose of holding the limited competitive examination for the post of Inspector, Legal Metrology is to provide an incentive to all the members of ministerial staff of subordinate offices of the Controller, Legal Metrology who are staff under Rule 5 i.e. AG-III, AG-II, Accountant, AG-I, Stenographer-III and other ministerial staff to get quicker promotion on the post of Inspector, Legal Metrology through the said limited competitive examination and who are not more than 45 years of age on the first day of January of that year, in which selection is made. Thus, with the avowed object of giving incentive to the ministerial staff of the Department to appear in the limited competitive examination for appointment to the executive Class-III post of Inspector, Legal Metrology, a scheme has been made under Rule 13 of the Rules of 2013, which in our considered opinion is neither arbitrary nor

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(WPS No.8062/2022)

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violative of the petitioner’s right under Articles 14 and 16 of the Constitution of India.

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The decision of the Supreme Court in Indravadan H. Shah (supra) relied upon by learned counsel for the petitioner, is clearly distinguishable to the facts of the present case, as it is not the case of the petitioner also that to compete for the post age limit has been prescribed as 45 years for one staff and others have been allowed to compete without any such restriction.

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In that view of the matter, we do not find any merit in the writ petition, it deserves to be and is accordingly dismissed leaving the parties to bear their own cost(s).

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Sd/Sd/(Sanjay K. Agrawal) (Radhakishan Agrawal) Judge Judge

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Soma

Smt. Khomin Nayak v. the State of Chhattisgarh

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Smt. Khomin Nayak v. the State of Chhattisgarh

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