HC Can't Direct State To Enforce Ordinance For EWS Reservation In PSC Examination: Chhattisgarh HC [Read Judgment]

The decision was rendered by Justice Goutam Bhaduri who refused to direct the State to enforce an ordinance in that behalf. He said,

"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 Petitioners had challenged the PSC advertisement dated November 27, 2019, that did not carve out any space for the EWS candidates, stating that it impinged the 'Chhattisgarh Lok Seva (Anusuchit Jatiyon, Anusuchit Jan Jatiyon Aur Anya Pichhade Vargon Ke Liye Arakshan) (Sanshodhan) Ordinance, 2019', promulgated by the Governor on September 4, 2019.

A Governor is empowered under Article 213(1) of the Constitution to promulgate an Ordinance if the circumstances require so, and if the Legislative Assembly of the State is not in session. Such an ordinance, however, as per Article 213(2) of the Constitution ceases to operate at the expiration of six weeks from the reassembly of the Legislature, if the State legislature does not clear the same.

In the instant case, the state legislature re-assembled on October 2 and 3. Therefore, the period of six weeks expired on November 13, 2019, and since the ordinance was not cleared, it stood vacated. Consequently, an advertisement dated November 27 would not be affected by the ordinance.

The Petitioners however, argued that the assembly of the house on October 2 would not amount to an assembly for the purposes of Article 213 (2) or Article 174 as it was called only to commemorate the father of the nation and not to conduct any legislative business.

"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 argued.

He would further contend that subsequently, the house assembled on November 25, 2019, and ended on December 2, 2019, and this would be constituted as re-assembly. Therefore, the ordinance held the field when the PSC advertisement was notified, i.e. on November 27.

The court could not come to a consensus with these arguments and it held that the assembly held on October 2 was an assembly in terms of Article 213 (2) and that the Ordinance had expired on November 14, 2019. Hence, there was no patent illegality in the impugned advertisement.

It reasoned as under,

"The submission of the petitioners that the session of the Legislative Assembly of 2nd and 3rd October was not a session in terms of Article 174 as no legislative business was carried out cannot be appreciated in view of the wordings of Article 174 and any further interpretation of it would amount to addition of word, which is otherwise not in the Article.

Plain reading of Article 174 of the Constitution shows that it gives power to the Governor to summon the house herein the Legislative Assembly of the State. It do not demarcate or carves-out an exception of conducting legislative business or otherwise."

Denying any relief to the Petitioners, the court held that if the State Government does not intend to enforce the ordinance for economically weaker sections, then the Court cannot issue a mandate to the State to table a particular ordinance, which has already lapsed with the passage of time.

"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," the court held.

Case Details:

Case Title: Irfan Qureashi v. Chhattisgarh State Public Service Commission & Anr.

Case No.: WPS No. 198/2020

Quorum: Justice Goutam Bhaduri

Appearance: Advocates Rohit Sharma,Tanuj Patwardhan and Arun Kumar Pathak (for Petitioner); Addl. AG Amrito Das (for State); Advocate Shri Rohishek Verma on behalf of Advocate Ashish Shrivastava (For PSC)

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