The Registrar General High Court of Chhattisgarh Vs Bheem Singh Dhruv

2 - State Of Chhattisgarh Through The Secretary, Department Of Law And Legislative Affairs (Incorrectly Referred To As Legislature), Mantralaya, Nava Raipur, Atal Nagar, District Raipur, Chhattisgarh.

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3 - The Secretary Department Of General Administration, Mantralaya, Nava Raipur, Atal Nagar, District Raipur Chhattisgarh.

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... Respondent(s)

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For Appellant(s) : Mr. Chandresh Shrivastava, Advocate. For Respondent(s) No. 1 : Mr. Arun Kumar Shukla, Advocate. For Respondent(s) No. 2 : Mr. S.S.Baghel, Government Advocate. and 3

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Hon’ble Mr. Ramesh Sinha, Chief Justice Hon’ble Mr. Ravindra Kumar Agrawal, Judge

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Order on Board

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Per Ramesh Sinha, Chief Justice

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18/06/2026

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1. Heard Mr. Chandresh Shrivastava, learned counsel for the appellants. Also heard Mr. Arun Kumar Shukla, learned counsel for

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the respondent No. 1 as well as Mr. S.S.Baghel, learned Government Advocate for the State/respondent No. 2 and 3.

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2. Challenge in this appeal is to the order dated 18.11.2024 passed by the learned Single Judge in WP(S) No. 2321 of 2018 whereby the petition filed by the writ petitioner (respondent No. 1 herein), challenging the order of termination from service on the ground that he was having three children after 26.01.2021, which was against Rule 6(6) of the Chhattisgarh Civil Services (General Conditions of Service) Rules, 1961 ( for short, the Rules of 1961 ), was allowed and the writ petitioner was directed to be reinstated in service with continuity of service but without backwages.

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3. The facts, in brief, as projected by the writ petitioner before the learned Single Judge is that he was appointed as Chowkidar on 22.08.2007 after following due process of selection in the contingency paid establishment of the District & Sessions Court, Raigarh, on Collector’s rate purely on temporary basis. In compliance of the order dated 22.08.2007, the writ petitioner joined his duties. The service of the writ petitioner was governed by the provisions of the Chhattisgarh Recruitment and Conditions of Service of Contingency Paid (District & Sessions Judges Establishment) Employees Rules, 1980 ( for short, the Rules of 1980 ). It is the case of the writ petitioner that prior to joining of service, he was having two living children and during service period, another child was 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 writ petitioner submitted reply clearly mentioning that his two children were born on 08.10.2004, 25.03.2007 and thereafter the third child was born on 16.01.2011. According to the writ petitioner, the District & Sessions Judge,

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Raigarh, without giving any opportunity of hearing terminated his service on the count that he was having more than two children which disentitled him to get Government service as per Rule 6(6) of Rules of 1961. Being aggrieved with this order, the writ petitioner preferred a petition before a learned Single Judge of this Court being WP(S) No. 478/2017. The learned Single Judge, vide its order dated 30.01.2017 granted liberty to the writ petitioner to prefer an appeal within 15 days and same was directed to be decided by the Appellate Authority within 2 months from the date of presentation of appeal. In compliance of the said order, the writ petitioner preferred an appeal on 15.02.2017 before the learned District Judge contending that Rule 6 is not applicable to the contingency paid employees, and as such, the termination was illegal. It was further contended that the third child of the writ petitioner who was born on 21.05.2011 has been given on adoption to his brother, therefore, it cannot be said that the writ petitioner is having three children, thus, he prayed for allowing the appeal.

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4. After receipt of the appeal, the District and Sessions Judge, Raigarh issued a show cause notice to the writ petitioner on 04.05.2017 asking him to submit reply, in which, apart from the issue of third child he sought explanation regarding conduct of the writ petitioner. The writ petitioner submitted his reply to the show cause notice on 06.05.2017. According to the writ petitioner, the learned District and Sessions Judge, Raigarh without considering his submission mechanically rejected the appeal vide its order dated 09.05.2017. Being aggrieved with the said order, the writ petitioner preferred another petition being WPS No. 2321/2018 which was allowed by the learned Single Judge vide its order dated 18.11.2024 and the said

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order is sought to be challenged by the appellants in this appeal.

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5. Mr. Chandresh Shrivastava, learned counsel appearing for the appellants submit that Rule 6(6) of the Rules of 1961 was a valid statutory rule on the date on which the impugned order of dismissal was passed by the competent authority and therefore, the said order of dismissal of the petitioner from service cannot be said to be bad or illegal. The order passed by the learned Single Judge is self contradictory. The services of the writ petitioner were also terminated also on the ground of misconduct and therefore, the omission of clause (6) of Rule 6 of the Rules of 1961 did not automatically invalidate the order of dismissal. The order was based upon allegations of misconduct as well as on the ground of disqualification of the writ petitioner which aspect has not been properly considered by the learned Single Judge.

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6. Mr. Shrivastava further submits that the learned Single Judge ought to have appreciated that the order of termination of service of the writ petitioner on 09.05.2017 will have to be considered with reference to the statutory provisions as it stood on the said date. It is not a case against the writ petitioner that he has been proceeded after the amendment/omission having been brought about in the statutory rules. While exercising the power of judicial review, the validity of the impugned order dated 09.05.2017 is to be tested qua the provisions as were existing on the date of the issuance of the said order. The Hon'ble Single Judge having categorically recorded that the order passed by the authority, treating the writ petitioner as disqualified for appointment cannot be said to be unjustifiable till the rules were in existence, could not have allowed the petition and directed for reinstatement of the writ petitioner, merely for the reason that the

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relevant provision stood omitted in the subsequent course of time. Had the amendment in the Rule by way of omission of clause (6) of Rule 6 of the Rules, 1961 introduced before issuance of the order of termination of service of the writ petitioner, the position would have been entirely different. However, but then after the issuance of the order of termination, the amendment in the Rules, 1961 shall not affect or nullify the orders validly passed under the pre-existing provisions of the Rules of 1961. The learned Single Judge relied upon the observations made by the Hon'ble Supreme Court, in the judgement of Shree Bhagwati Steel Rolling Mills v. Commissioner of Central Excise , reported in (2016) 3 SCC 643, but then the said judgment was based upon a different factual foundation and therefore, is distinguishable from the facts of the present case. It is trite law that a judgment cannot be read as a statute and therefore the observations made by the Hon'ble Supreme Court in the case of Bhagwati Steel (supra) will have to be understood within the factual contours of the said judgment. Furthermore, the writ petitioner though had challenged the validity of the order passed by the District and Session Judge Raigarh, but then the District and Session Judge Raigarh was not impleaded as a necessary party in the writ petition and as such, the writ petition itself ought to have been dismissed on account of non-joinder of necessary parties. Moreover, the writ petitioner did not exhaust the alternate remedy as was available under Rule 16 of the Rules, 1980, and therefore, on account of availability of alternate remedy, the writ petition was liable to be dismissed.

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7. On the other hand, Mr. Arun Kumar Shukla, learned counsel for the respondent No.1/writ petitioner submits that the order passed by the

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learned Single Judge is just and proper warranting no interference. When the third child was given in adoption, it cannot be said that the writ petitioner was having three children on the relevant date.

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8. Mr.S.S.Baghel, learned counsel for the respondents No. 2 and 3 submits that the contesting party in this appeal would be the respondent No. 1.

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9. We have heard learned counsel appearing for the parties, perused the pleadings and documents appended thereto.

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10. The principal question which arises for consideration in the present appeal is whether the learned Single Judge was justified in setting aside the order dated 09.05.2017 terminating the services of the writ petitioner and directing his reinstatement with continuity of service on the ground that Rule 6(6) of the Rules of 1961 stood omitted subsequently on 13.07.2017.

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11. Rule 6(6) of the Rules of 1961, as it stood prior to omission states that “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, provided that no candidate shall be disqualified for appointment to a service or post who has already one living children and next delivery takes place on or after the 26^th day of January, 2001, in which two or more than two children are born”. The said provision has been omitted by the State Government on 13.07.2017.

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12. It is not in dispute that the writ petitioner was appointed on 22.08.2007. It is equally undisputed that prior to entering service he had two living children and that during his service tenure a third child was born on 16.01.2011. The information furnished by the writ petitioner himself before the authorities clearly disclosed the birth of the third child after 26.01.2001. Therefore, on the date when the

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competent authority initiated action and passed the order terminating his services, Rule 6(6) of the Rules, 1961 was very much in force. Rule 6(6) of the Rules, 1961, as it then stood, specifically provided that no candidate shall be eligible for appointment to a service or post if he has more than two living children and one of them is born on or after 26.01.2001, except in the circumstances carved out in the proviso. Admittedly, the case of the writ petitioner does not fall within the exception contained in the proviso.

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13. The learned Single Judge fell in error in granting reinstatement solely on the ground that Rule 6(6) of the Rules of 1961 subsequently came to be omitted on 13.07.2017. It is a settled principle of law that the legality and validity of an administrative or quasi-judicial order is required to be tested with reference to the law prevailing on the date on which such order was passed. Unless the amending provision expressly or by necessary implication provides retrospective operation, an omission or repeal of a statutory provision does not invalidate actions validly taken under the provision when it was in force. In the present case, the order impugned before the learned Single Judge was passed on 09.05.2017. On that date, Rule 6(6) of the Rules of 1961 was a valid and enforceable statutory provision. The omission of the said rule on 13.07.2017 was prospective in nature and there is nothing in the notification of omission indicating that actions already taken under the said Rules would stand obliterated or rendered void. We are therefore unable to subscribe to the view taken by the learned Single Judge that the subsequent omission of Rule 6(6) would entitle the writ petitioner to reinstatement. Acceptance of such a proposition would amount to giving retrospective effect to the omission, despite the absence of any legislative intent to that effect.

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The contention raised on behalf of the writ petitioner that the third child had been given in adoption also does not advance his case. The relevant consideration under Rule 6(6) was the existence of more than two living children. Admittedly, the third child was born to the writ petitioner on 16.01.2011. The subsequent act of giving the child in adoption cannot erase the disqualification already incurred under the statutory provision then in force.

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14. We also find substance in the submission advanced on behalf of the appellants that the judgment of the Hon’ble Supreme Court in Shree Bhagwati Steel Rolling Mills (supra), relied upon by the learned Single Judge, was rendered in an entirely different factual and statutory context and could not have been applied mechanically to the facts of the present case. Once it is found that the writ petitioner had admittedly incurred the disqualification contemplated under Rule 6(6) of the Rules of 1961 and that the impugned order was passed when the said provision was in force, the order dated 09.05.2017 cannot be said to suffer from any illegality warranting interference in exercise of writ jurisdiction. As such, the learned Single Judge was not justified in setting aside the order passed by the competent authority and directing reinstatement of the writ petitioner with continuity of service.

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15. For the foregoing reasons, the writ appeal deserves to be and is hereby allowed. The judgment and order dated 18.11.2024 passed by the learned Single Judge in WPS No. 2321 of 2018 is set aside. As a consequence thereof, the order dated 09.05.2017 passed by the District & Sessions Judge, Raigarh, affirming the termination of services of the writ petitioner, stands restored. No order as to costs.

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Sd/Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) JUDGE CHIEF JUSTICE

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Amit

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AMIT KUMAR DUBEY Digitally signed byAMIT KUMAR DUBEY Date: 2026.06.23 11:12:59 +0530

The Registrar General High Court of Chhattisgarh v. Bheem Singh Dhruv

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The Registrar General High Court of Chhattisgarh v. Bheem Singh Dhruv

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