Nafr High Court
Case Details
1 2025:CGHC:15367-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 7774 of 2023 Mahzabee Khan D/o Abdul Rashid Khan Aged About 29 Years R/o Ward No. 09, Akaltara Road, Near Gattani School, Janjgir, District Janjgir-Champa (C.G.) versus ... Petitioner(s) 1 - State of Chhattisgarh Through Its Secretary, Department of Forest, Mantralaya, Mahanadi Bhawan, Nava Raipur, Atal Nagar, Raipur, District Raipur (C.G.) 2 - Chhattisgarh Public Service Commission Through Its Secretary North Block Sector-19, Naya Raipur District Raipur (C.G.) ... Respondent(s) For Petitioner(s) : Mr. Ghanshyam Kashyap, Advocate. For Respondent No. 1/State : Mr. Y.S.Thakur, Additional Advocate General For Respondent No. 2/ CGPSC : Mr. Anand Mohan Tiwari, Advocate (through Video Conferencing)
Legal Reasoning
Hon’ble Mr. Ramesh Sinha, Chief Justice Hon’ble Mr. Ravindra Kumar Agrawal, Judge Order on Board Per Ramesh Sinha, Chief Justice 01/04/2025 1. Heard Mr. Ghanshyam Kashyap, learned counsel for the petitioner, Mr. 2 Y.S.Thakur, Additional Advocate General for the State/respondent No. 1 as well as Mr. Anand Mohan Tiwari, learned counsel for the respondent No. 2/CGPSC. 2. The petitioner has prayed for the following relief(s) in this petition: “10.1 That, the Hon'ble Court may kindly be pleased to set aside/declare rule 18 of the Chhattisgarh Public Service Commission Procedure Rules, 2014 as ultra-vires to the Constitution of India being violative of Articles 14 and 16 of the Constitution of India. 10.2 That, the Hon'ble Court may kindly be pleased to direct the respondent authorities to issue the waiting list for the post of Forest Ranger & further consider the candidature of the petitioner on the post of Forest Ranger under OBC female waiting list category. 10.3 Any other relief which this Hon'ble Court deems fit and proper in favour of the petitioner as per the facts & circumstance of the present case, in the ends of justice.” 3. The facts, in brief, as projected by the petitioner are that the petitioner is holding the degree of Bachelor in Engineering (B.E.) from C.G. Swami Vivekanand University, graduated in the year 2014. The respondent- CGPSC issued an advertisement on 10.06.2020 for the post of Assistant Conservator of Forest (ACF) & Forest Ranger (FR), a total of 34 and 177 vacancies, respectively, in which for the post of ACF, 13 seats for UR category, 4 for SC, 10 seats for ST & 5 seats for OBC and that of Forest Ranger is 73 seats for Unreserved (UR) category, 21 for Schedule Caste (SC), 57 for Schedule Tribe (ST) & 26 seats for Other Backward Classes (OBC). Further, seats were reserved for local resident women of State of C.G. in which 3 seats reserved for UR category, One seat for SC category, three seats for ST & one seat for OBC category and in the post of Forest Ranger, 21 seats for UR category, 6 seats for SC, 17 seats for ST & 7 seats for OBC category. 3 4. The petitioner finding herself duly eligible for the said post applied for the said exam in the preference of Assistant Conservator of Forest & Forest Ranger. The examination was conducted and results were declared and the name of the petitioner was found in the merit list (appearing at sl. no. 284 (OBC Category)) securing 291.3461 marks. Thereafter impugned final selection list dated 03.06.2023 was issued by the respondent authorities whereby the respondent authorities have issued only the main list and supplementary list without even issuing the waiting list. The aforementioned final list was declared without even issuance of waiting list wherein the petitioner as per her marks would have been in the waiting list and her chances of getting her name in the selection list would have increased if had it been the case where the waiting list would have been issued but it is because of the impugned Rule of the Chhattisgarh Public Service Commission Proccedure Rules, 2014 (for short, the Rules of 2014) issuance of waiting list for female candidates has been prohibited which is completely arbitrary, unreasoned and against the established procedure of law. 5. Mr. Ghanshyam Kashyap, learned counsel for the petitioner submits that Rule 3 of Chhattisgarh Civil Service (Special Provision for Appointment of Women) Rules, 1997, provides reservation of 30% of all posts in the service under the State in favour of women at the stage of direct recruitment. From the select list, the last OBC female candidate is one Meenakshi Sahoo holding overall rank of 281, selection rank 115 & secured 291.4324 marks and that of one Kshama Sonal OBC female candidate secured 291.4263 marks holding overall rank of 282 and that of petitioner is 291.3461 marks and overall rank 284. Two selected female candidates namely Priyanka Khushwaha and Asha Verma holding selection rank 92 and 96 and overall 4 merit list rank 210 and 223 respectively and so, had it been the situation that the waiting list would have been issued, then the chances of petitioner in getting herself in the select list would have been increased. Attention has been drawn to the table shown at paragraph 8.9 of the writ petition. Mr. Kashyap states that if the waiting list would have been issued, then the female candidate in the serial No. 4 of the afore-mentioned table would have appeared first in the waiting list under OBC category and the petitioner would have come at serial no. 2. Due to the non-issuance of waiting list for the post of Forest Ranger, the petitioner had to suffer as the petitioner would have come in the waiting list and her chances of getting selected would have been more favorable subject to clearance of candidates in the waiting list but due to arbitrary and discriminatory actions of the respondent authorities the petitioner candidature has not been considered for the said post of Forest Ranger. Mr. Kashyap submits that the Rule of 2014 is completely discriminatory and thus amounts to violation of Article 14 and 16 of the Constitution of India wherein the rule has been issued for non- issuance of waiting list for women candidates only thereby committing grave inequality and further discrimination being done in public employment by putting conditions only for women candidates by non-issuance of waiting list only for women candidates and is therefore liable to be declared as ultra- vires the constitutional provisions. 6. On the other hand, Mr. Y.S.Thakur, learned Additional Advocate General appearing for the State/respondents No.1 submits that from mere perusal of the relief as claimed by the petitioner and the submissions made in the memo of petition, it is evident that the entire action, which is under challenge is against the action of the respondent No. 2/CGPSC and all subsequent actions connected thereto, who is competent enough to defend itself. There is no specific allegation or prayer against the State. 7. Mr. Anand Mohan Tiwari, learned counsel appearing for the respondent- 5 CGPSC submits that the petitioner first took a calculated chance to appear and participate in the selection process and then after being unsuccessful challenged the impugned final selection list/waiting list therefore on this
Decision
count the petition is not maintainable in the eyes of law. The writ petition is based on only hypothetical assumptions of the petitioner and yet no cause of action has arisen to raise such grievances as nothing has been provided in the petition as to which the fundamental right of the petitioner would be violated. The entire petition would be based on surmises and probabilities; hence the instant petition is liable to be dismissed at the threshold. In the Rules of 1997 categories have also been defined and according to the category the CGPSC published a waiting list appended with the impugned selection list as per the rule in relation to the vacant posts advertised for each category. Furthermore, the petitioner has not made a party to the candidates whose names are mentioned in the impugned selection list as well as in the waiting list, hence this petition is suffering from the issue of non-joinder of the necessary party to the lis. Hence the instant petition is not maintainable in the eyes of laws and is liable to be dismissed at the threshold. The ground that in the absence of a waiting list consisting of women candidate's purpose of the Rules 1997 would be defeated, is baseless and against the spirit of the Rules 1997. It is noteworthy to mention here that the impugned final selection list/supplementary list is well within the four corners of the concerned Rules and Constitutional mandates in all respects and does not call for any interference. A total of 14 OBC Female Candidates have been finally selected, and out of 14 candidates 7 female candidates placed at Sr. No-100,101,104,105,109,113 and 115 have been selected in the OBC Female category and out of those 07 female candidates selected OBC Female candidates secured comparatively below 6 merit rank than non-selected available male candidates in OBC category and it happens only due to implementation of the provision of Rule 1997 regarding female reservation. In view of the above, there is no chance of a shortfall in the representation of female candidates in the impugned final selection list even as per the hypothetical baseless imagination of the petitioner. As per the memo dated 10.02.1997 (Annexure R-2/2) it is revealed that only in case of vertical reservation like the reservation for ST, SC and OBC non-creamy layer, posts are carried forward for next recruitment if required candidates are not available for selection and such situation is not available for female candidates and they were selected in their respective category up to 30% as per the provision of Rules-1997 and it is also provided in this Rules that if the female candidates are not available for selection then in place of female candidates male candidate of respective category may be selected. In the Rules 1997, there is no provision for the preparation of a separate waiting list for the female candidate thus in the absence of such provision the prayer made by the petitioner is beyond the scope of interference hence the instant writ petition is liable to be dismissed at the threshold. 8. Mr. Tiwari further submits that it is now a trite law that where the writ petitioner approaches the High Court after a long delay, reliefs prayed for may be denied to them on the grounds of delay and laches, and in the instant matter the petitioner has filed the instant petition without explaining the delay of 9 years hence at this belated stage the instant petition is also not maintainable and suffers from delay and laches. The CGPSC has duly completed the selection process in accordance with the law and procedure as mentioned in the advertisement therefore the grievance of petitioner is wholly hypothetical and based on illegal assumptions hence the writ petition is liable to be dismissed at the threshold. It was well within the knowledge of 7 the petitioner that the advertisement was issued for direct recruitment and knowingly the petitioner has enjoyed every opportunity to participate in the selection process initiated pursuant to the advertisement, Therefore, the entire contentions of the petitioner are frivolous, far from the truth and totally misconceived. Hence, the entire petition is devoid of merit and substance, being misconceived, and the petitioner is not entitled to any of the reliefs as prayed by the petitioner, therefore, the petitioner deserves to be dismissed at the threshold. 9. Mr. Kashyap, learned counsel for the petitioner, relying on the rejoinder to the return filed by the respondent-CGPSC and submits that the State Government, in various other Departments, have prepared / issued separate wait list for female category candidates. The Rules of 1997 has been farmed under Article 309 of the Constitution of India and the Rules of 1997 provides that there shall be reserved thirty percent of all posts in the service under the State in favour of women at the stage of direct recruitment and the said reservation shall be horizontal and compartment wise. Following the Rules of 1997, the authority has published the advertisement for the post of Forest Ranger and reserved 21 post of Unreserved Female category, 06 posts of Schedule Caste Female category, 17 posts of Schedule Tribe female category and 07 post of OBC Female category. The respondent - CGPSC has published selection list along-with waiting list for the post of Forest Ranger, and in the waiting list the respondent-CGPSC has not included a single female candidate in waiting list and in the select list female candidates namely Neeta Rahangdale, Asha Verma, Kaushambi Baghel and Venuka Dhruw they did not appear in physical walking test therefore their candidature has been rejected by the respondent authority and just because of non-inclusion of female candidates in waiting list the authority will appointment male candidates from waiting list in place of 8 female candidates, which directly affects the right of female candidates and the purpose of women reservation in employment. The Rules of 2014 is an executive Rule/Order/Guideline framed by the respondent-CGPSC and the Rules of 1997 has been framed by the State Government under Article 309 of the Constitution of India to strengthen and improve the status of women in public employment under the State, and it is a settled law that the rules framed under Article 309 of the Constitution of India will prevail over executive guidelines/order, therefore the impugned Rule 18 of the Rules of 2014 is arbitrary, discriminatory, illegal and contrary to the Rules of 1997 and violative of Article 14, 15 and 16 of the Constitution of India. He further submits that the rules framed under Article 309 of the Constitution of India cannot be modified or changed in exercise of executive powers by the State Government as has been laid down by the Apex Court in Union of India Vs. S.S. Soma Sundaram Vishwanath reported in (1989 1 SCC 175. Mr. Kashyap further places reliance on the decisions of the Supreme Court in Government of Andhra Pradesh v. P.B. Vijay Kumar, reported in (1995) 4 SCC 520, National Legal Services Authority v. Union of India, reported in (2014) 5 SCC 438, Air India Cabin Crew Assn. v. Yeshaswinee Merchant, reported in (2003) 6 SCC 277, Charu Khurana v. Union of India, reported in (2015) 1 SCC 192. 10. Mr. Tiwari places reliance on a decision of this Court in the matter of Manish Kumar Kashyap & Others v. State of Chhattisgarh & Others {WPS No. 1527/2024, decided on 11.03.2024} wherein this Court had observed that a candidate taking a calculated chance by appearing in the examination after knowing fully well the procedural norms and eligibility and only because the result of examination is not palatable to him, cannot turn around and subsequently question the method of selection/ eligibility qualification. 9 11. We have heard learned counsel appearing for the parties and the materials available on record. 12. Basically, the petitioner is aggrieved by non-issuance of separate wait list for the female candidates. The petitioner also seek declaration of Rule 18 of the Rules of 2014 as ultra vires being discriminatory as it prohibits preparation of wait list for the female candidates. The petitioner duly appeared in the recruitment process but could not succeed and her name did not find place in the select list. It is well settled principle that placement in the select list does not give a candidate an indefeasible right to employment; the State or its instrumentality for bona fide reasons can chose to not fill up the vacancies, however, if vacancies exist, the State or its instrumentality cannot arbitrarily deny appointment to a person within the zone of consideration. 13. Admittedly, in the case in hand, the petitioner’s name did not find place in the select list and has assumed that had it been a case where the wait list for the female candidates would have been prepared, then she would have better chances of selection. The said situation is a mere hypothetical situation. Even otherwise, Rule 18 of the Rules of 2014 clearly prohibits preparation of separate waiting list for the female candidates. The said Rules came into existence on 01.09.2014 and the present petition challenging the said Rules was filed on 25.09.2023 i.e. after lapse of about 9 years without explaining the delay. The petition is based on hypothetical assumptions and none of the fundamental rights appear to have been violated. It is not a case where the rights of female candidates have been curtailed rather, because of implementation of Rules of 1997, seven female candidates belonging to OBC category who have secured even less marks than that of male candidates have been selected, as has been stated in paragraph 5.4 of the return filed by the respondent-CGPSC. 10 14. The petitioner was aware of the facts and circumstances of the case and took a calculated risk and appeared in the recruitment process. When her name could not find place in the select list, the Rules of 2014 has been challenged to anyhow frustrate the entire selection process. The final select list has already been published way back on 03.06.2023 and after lapse of about about almost two years, no relief whatsoever as prayed for by the petitioner can be granted. Furthermore, those candidates who have been selected or those whose name find place in the waiting list have not been made party and as such, this petition suffers from non-joinder of parties and as such, on this count also, this petition deserves to be dismissed. 15. As a result, this petition stands dismissed. No order as to cost(s). Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) CHIEF JUSTICE JUDGE Amit AMIT KUMAR DUBEY Digitally signed by AMIT KUMAR DUBEY Date: 2025.04.04 15:36:41 +0530