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@JUDGMENT-JUDGMENT,,,
Heard.,,,
Learned counsel for the petitioner would submit that the notification was published inviting application by the PSC respondent No.1 on 27/11/2019,,,
which was pursuant to the official communication of 23/11/2019. Learned counsel would submit that the said notification do not carve out any space,,,
for the Economically Weaker Section (EWS) people which was brought about by the constitutional amendment i.e.,",,,
Constitution (One Hundred and Third Amendment) Act, 2019. It is stated that since State Legislature was not in session as such the Governor of",,,
Chhattisgarh in exercise of power under Article 213 (1) promulgated the Ordinance of 2019 which is named and styled 'The Chhattisgarh Lok Seva,,,
(Anusuchit Jatiyon, Anusuchit Jan Jatiyon Aur Anya Pichhade Vargon Ke Liye Arakshan) (Sanshodhan) Ordinance, 2019'. In such ordinance 10%",,,
reservation was provided to the EWS. It is stated that the Legislative Assembly of the State was held on 2-3rd October, 2019. In such session no",,,
legislative business was carried out and it was only meant for paying tribute to the father of nation (Rashtrapita) Mahatma Gandhi. Consequently this,,,
cannot be constituted as an Assembly of the Legislature for the purpose of Article 213 (2) or Article 174 of the Constitution of India. He would,,,
further submit that for the Legislative business the Assembly started on 25th November, 2019 and ended on 2nd December, 2019. It is stated that for",,,
the purpose of Article 174, this date would be constituted as re-assembly and therefore the ordinance which was promulgated on 4th September, 2019",,,
by the Governor would hold the field. It is contended that it would be important to find out as to when the State took a decision to conduct the,,,
examination as PSC is the only executing body to conduct the examination and if it was when the ordinance was existing the advertisement would be,,,
bad in law. He would submit that if the decision was taken prior to publication of the notification in the paper by the State it would amount to playing,,,
fraud with the Constitution. He referred to case law reported in (2017) 3 SCC 1, Para 40 (Krishna Kumar Singh & anr. Vs. State of Bihar) and would",,,
submit that laying of an Ordinance before Legislature is mandatory. Consequently, action of the PSC at the behest of the State would be bad.",,,
Per contra, learned State counsel would submit that under the admitted facts the Ordinance by the Governor was on 4th September, 2019 and as",,,
per Article 213 (2) and he would submit that as per Annexure R-1 the session of the Legislative Assembly re-assembled on 2nd October, 2019,",,,
therefore by virtue of sub-clause 2 of Article 213, six weeks expired on 13th November, 2019 and the Ordinance ceased to operate thereby after",,,
13/11/2019 and the advertisement since was made on 27/11/2019 the reservation of the EWS was not given effect to. He further submits that,,,
subsequently even if re-assembly of the State Legislature is accepted which started on 25th November, 2019 and ended on 2nd December, 2019 even",,,
after the expiry of six weeks therefrom ordinance was not laid in the House, therefore, the mandamus to this effect cannot be issued by this court.",,,
Perused the documents annexed to the petition. The undisputed facts are the Central Government amended the Constitution by One Hundred and,,,
Third Amendment Act, 2019, which reads as under :",,,
“MINISTRY OF LAW AND JUSTICE,,,
(Legislative Department),,,
New Delhi, the 12th January, 2019/Pausha 22, 1940 (Sakha)",,,
The following Act of Parliament received the assent of the President on the 12th January, 2019 and is hereby published for general information :--",,,
THE CONSTITUTION (ONE HUNDRED AND THIRD AMENDMENT),,,
ACT, 2019",,,
(12TH January, 2019)",,,
An Act further to amend the Constitution of India.,,,
Be it enacted by Parliament in the Sixty-ninth Year of the Republic of India as follows :-,,,
(1) This Act may be called the Constitution (One Hundred and Third Amendment) Act, 2019.",,,
(2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.",,,
In article 15 of the Constitution, after clause (5), the following clause shall be inserted, namely :-",,,
'(6) Nothing in this article or sub-clause (g) of clause,,,
(1) of article 19 or clause (2) of article 29 shall prevent the State from making,-",,,
(a) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5);,,,
and,,,
(b) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5),,,
in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or",,,
1.,(1),"This Ordinance may be called the Chhattisgarh
Lok Seva (Anusuchit Jatiyon, Anusuchit Jan
Jatiyon Aur Anya Pichhade Vargon Ke Liye
Arakshan)(Sanshodhan) Ordinance, 2019","Short title, extent and
commencement
,(2),"I t shall extend to the whole State of
Chhattisgarh",
,(3),"It shall come into force with effect from the
date of its publication in the Official gazette.",
2.,,"During the period of operation of this
Ordinance, the Chhattisgarh Lok Seva
(Anusuchit Jatiyon, Anusuchit Jan Jatiyon Aur
Anya Pichchade Vargon Ke Liye Arakshan)
Adhiniyam, 1994 (No.21 of 1994) (hereinafter
referred to as the Principal Act,) shall have the
effect, subject to the amendment specified in
Section 3, 4 and 5 of this Ordinance","Chhattisgarh Lok Seva
(Anusuchit Jatiyon,
Anusuchit Jan Jatiyon
Aur Anya Pichhade
Va r gon Ke Liye
Arakshan) Adhiniyam,
1994 (No.21 of 1994) to
be temporarily amended.
3,,"I n Section 1 of the Principal Act, for
subsection (1), the following shall be
substituted, namely :-
“(1) This Act may be called the
Chhattisgarh Lok Seva (Anusuchit Jatiyon,
Anusuchit Jan Jatiyon, Anya Pichhade Vargon
Aur Arthik Roop Se Kamjor Vargon Ke Liye
Arakshan) Adhiniyam, 1994.â€",Amendment of Section 1.
4.,,"In Section 2 of the Principal Act, after Clause
(h), the following clause shall be added namely
:
“(i) Economically Weaker Section†means
the persons who are not covered under the
reservation for the Scheduled Castes, the
Scheduled Tribes and other backward classes
and whose family has gross annual income
below Rs.8.00 lakh. The income shall include
income from all sources i.e., salary, agriculture,
business, profession etc., for the financial year
prior to the year of application.
Beside it the persons whose family owns or
possesses any of the following assets shall not
be identified as Economically Weaker Section
irrespective of the family income :
(i) 5 acres of Agricultural land or
above;
(ii) Residential flat of 1000 sqft., or
above;
(iii) Residential plot of 100 sq.yards or
above, in notified municipalities;
(iv) Residential plot of 200 sq.yards or
above, in areas other than the
notified municipalities.
Note : The property held by a “familyâ€
in different locations or different places or
cities would be clubbed while applying
measurement of the ownership of the land
or property for determining to EWS status.
The term “family†for this purpose will
include the person who seeks benefit of
reservation, his/her father-mother and
siblings below the age of 18 years as also
his/her spouse and children below the age
of 18 years.â€",Amendment of Section 2.
5,,"In section 4 of the Principal Act, for Clause (I)
of sub-section (2), the following shall be
substituted, namely :-
“(i) at the state level, the following
percentage of vacancies arising in a
recruitment year in Class I, II, III and IV posts
:
Scheduled Castes - 13 percent
Scheduled Tribes - 32 percent
Other Backward Classes 27 percent
Economically Weaker Sections - 10 per cent",Amendment of Section 4.
the State. It do not demarcate or carves-out an exception of conducting legislative business or otherwise. Therefore, a perusal of Annexure R-1,",,,
which is a notification issued by the Governor would be a power exercised under Article 174 wherein the State Legislature meeting was slated.,,,
Consequently, the ordinance has expired by virtue of Article 213(2) after six weeks of the assembling of the State Legislature. It is also contended by",,,
the petitioners that the Public Service Commission is only the Agency, which conducts the examinations and it is the State decision which would hold",,,
the field. It was contended by the petitioners that if the decision to conduct examination has been taken even before the expiry of the ordinance and,,,
EWS has not been taken care can be made clear from the State internal correspondence. The said argument also cannot be appreciated in view of,,,
subsequent session of assembly held on 25th November, 2019.",,,
It is not in dispute that the subsequent session of the State Legislative Assembly was summoned for 25th November, 2019 uptill 2nd December,",,,
2019. Consequently the period of six weeks too has lapsed from such date as till last session, the ordinance of EWS was not tabled. If the State",,,
Government has not intended to enforce the ordinance for the economically weaker sections, then this Court cannot issue a mandate to the State to",,,
table a particular ordinance, which has already lapsed with passage of time. Conclusively if the State has not placed ordinance for EWS in the",,,
Legislative Assembly, the Court cannot issue a writ to promulgate the ordinance by way of mandamus on the principles of separation of powers. The",,,
reliance placed by the petitioner in (2017) 3 SCC 1 do not endorse the view that if the ordinance is not placed within the time prescribed under Article,,,
213(2) the Court will assume such power of effective review or reconsideration.,,,
In a similarly situated case, the Supreme Court in Sri Chand Kasera Vs. State of Bihar (1998) 8 SCC 72 5observed that since the ordinance in",,,
question was not got converted into an Act of the legislature, it lapsed and, therefore, the consequential action taken thereunder must also fall.",,,
The laying of an Ordinance before the State Legislature sub-serves the purpose of Legislative control over the ordinance-making power.,,,
Legislation by ordinances is not an ordinary source of law-making but is intended to meet extraordinary situations of an emergent nature, during the",,,
recess of the legislature. The reassembly of Legislature defines the outer limit for the validity of ordinance promulgated during its absence in session.,,,
Within that period, a legislature has authority to disapprove the Ordinance. The requirement of laying an Ordinance before the Legislative body sub-",,,
serves the constitutional purpose of ensuring that the provisions of the Ordinance are debated upon and discussed in the legislature. The legislature has,,,
before it a full panoply of Legislative powers and as an incident of those powers, the express constitutional authority to disapprove an ordinance. If an",,,
ordinance has to continue beyond the tenure which is prescribed by Article 213(2)(a), a law has to be enacted by the Legislature incorporating its",,,
provisions. In order to assume the character of the enacted law beyond the tenure prescribed by Article 213(2)(a), a law has to be enacted. If such an",,,
action has not been adopted by the Legislature, this Court cannot issue a writ of mandamus to Legislature as it would amount to encroaching the turf",,,
of the State Legislature.,,,
In view of the aforesaid discussion, no relief can be granted to the petitioners. Accordingly these petitions are dismissed.",,,