{WP(S) No.2621/2022} 2025:CGHC:45101-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 2621 of 2022 Smt. Savitri Kesharwani, W/o Kuleshwar Prasad Kesharwani, Aged 43 years, Working as Assistant Teacher (L.B.), At P.S. Guwara, Block Saja, District Bemetara, R/o Village Thankamhariya, District Bemetara, Chhattisgarh ... Petitioner versus 1. State of Chhattisgarh, Through its Secretary, Dept. of School Education, Mantralaya, Mahanadi Bhawan, Nava Raipur, Atal Nagar, Raipur, Chhattisgarh 2. The Director, Public Instructions, Chhattisgarh, H.Q. Indravati Bhawan, Nava Raipur, Atal Nagar, District Raipur, Chhattisgarh 3. The District Education Officer, District Bemetara, Chhattisgarh ... Respondents For Petitioner : Mr. Rajesh Kumar Kesharwani, Advocate. For Respondents/State : Mr. R.N. Pusty, Government Advocate. Division Bench: - Hon'ble Shri Sanjay K. Agrawal and Hon'ble Shri Sanjay Kumar Jaiswal, JJ. Order on Board (03/09/2025) Sanjay K. Agrawal, J. 1. The petitioner has filed this writ petition seeking writ of mandamus directing the respondents to amend the impugned Rules that is called the Chhattisgarh School Education Services (Educational SISTA SOMAYAJULU Digitally signed by SISTA SOMAYAJULU Date: 2025.09.08 17:46:33 +0530 {WP(S) No.2621/2022} and Administrative Cadre) Recruitment and Promotion Rules, 2019 (for short, ‘the Rules of 2019’) i.e. Annexure-I relating to Minimum Qualification for the post of Teacher appended to Schedule-IV enacted under Rules 14 & 15 of the Rules of 2019 be amended by including Political Science & Economics for promotion of Teacher (Mathematics) from the post of Assistant Teacher. 2. The petitioner’s services have been absorbed in the School Education Department by order dated 1-7-2018 on the post of Assistant Teacher (LB) and she is having the qualification of Bachelor’s Degree in BA (Mathematics) with Economics & Political Science as Subject Group. It is the case of the petitioner that as per the criteria contained in the notification Annexure P-1, she will not get promotion on the post of Teacher (Mathematics), as she had obtained her graduation in Bachelor of Arts in which the main subjects are Mathematics, Economics and Political Science, whereas the eligibility criteria for the post of Teacher (Mathematics) is Mathematics along with two other subjects those are Physics/Chemistry/Electronics/Computer Science/Statistics, Military Science/Groundnut Science and therefore appropriate writ of mandamus be issued directing the rule-making authority to include the subjects of Arts like Economics and Political Science in the Subject Group. 3. Return has been filed stating inter alia that minimum qualification for the post of Teacher has been prescribed by the National Council for Teacher Education (NCTE) and it is also the stand of the State {WP(S) No.2621/2022} that the State Government after due consultation with the experts in the field has prescribed that along with Mathematics, the subjects like Physics/Chemistry/Electronics/Computer Science/ Statistics, Military Science/Groundnut Science are required to be included in the Subject Group. It is the case of the petitioner that though she has passed her graduation in BA with one subject of Mathematics, the same could not fulfill the required criteria, which has been specifically prescribed by the State Government, as she is eligible to be considered for promotion on the post of Teacher in Arts subject (Social Science group), thus, she cannot say and submit that there is no promotional avenue available to her. The petitioner cannot dictate the rule-making authority as to how and in what manner the rules have to be framed and therefore the writ petition deserves to be dismissed, as the petitioner does not have graduation degree in Mathematics along with Physics, Chemistry and Mathematics, which is the basis requirement for appointment on the post of Teacher (Science) as per Annexure-I (Minimum Qualification) appended to Schedule-IV enacted under Rules 14 & 15 of the Rules of 2019. 4. Mr. Rajesh Kumar Kesharwani, learned counsel appearing for the petitioner, would submit that appropriate writ be issued to the respondents to include the Subjects namely, Political Science & Economics in Column (3) Subject Group of S.No.6 Subject Mathematics under clause (ii) – Teacher of Annexure-I – (Minimum Qualification) appended to Schedule-IV enacted under {WP(S) No.2621/2022} Rules 14 & 15 of the Rules of 2019, as there is no reason for not including the said Subjects Political Science & Economics as Subject Group. 5. Mr. R.N. Pusty, learned Government Advocate appearing on behalf of the State/respondents, would submit that it is the pure prerogative of the employer to make rules and the State Government has made rules after due consultation with the experts in the field confirming with the norms of NCTE and it would be inappropriate to direct the authorities to amend the rules which have been enacted in exercise of the powers conferred under the proviso to Article 309 of the Constitution of India. As such, the writ petition deserves to be dismissed. 6. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection. Grounds for Challenging Constitutional Validity of a Rule 7. 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 {WP(S) No.2621/2022} vires. (See Principles of Statutory Interpretation by Justice G.P. Singh, 12th Edition, page 592.) 8. 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. 9. The Supreme Court in the matter of State of Tamil Nadu and another v. P. Krishnamurthy and others1, recollected the following principles while adjudging the validity of subordinate legislation, including regulations: “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: (a) Lack of legislative competence to make the subordinate legislation. (b) Violation of fundamental rights guaranteed under the Constitution of India. (c) Violation of any provision of the Constitution of India. (d) Failure to conform to the statute under which it is made or exceeding the limits of authority conferred by the enabling Act. (e) Repugnancy to the laws of the land, that is, any enactment. 1 (2006) 4 SCC 517 {WP(S) No.2621/2022} (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).” Rules in Question 10. The impugned Rule which has been sought to be challenged by the petitioner is in Column (3) Subject Group of S.No.6 Subject Mathematics under clause (ii) – Teacher of Annexure-I – (Minimum Qualification) appended to Schedule-IV enacted under Rules 14 and 15 of the Rules of 2019, which states as under: - ANNEXURE-I (Minimum Qualification) (i) xxx xxx xxx xxx xxx xxx xxx xxx xxx (ii) Teacher (a) xxx xxx xxx xxx xxx xxx xxx xxx xxx Higher Secondary or its equivalent with at least 50% marks and 4 years B.A./B.Sc.Ed or B.A.Ed./B.Sc.Ed. xxx xxx xxx xxx xxx xxx (b) xxx xxx xxx The subjects of the bachelor's degree above will be as follows: - S.No. Subject Subject Group (1) (2) (3) 1 to 5. xxx xxx xxx xxx 6. Mathematics With two of the following subjects, with math: Physics / Chemistry / Electronics / Computer Science / Statistics, Military Science / Groundnut Science. 7 to 10. xxx xxx xxx xxx {WP(S) No.2621/2022} 11. The Rules of 2019 have been enacted in exercise of powers conferred by proviso to Article 309 of the Constitution of India. In order to adjudicate the constitutional validity of the aforesaid provision of the Rules of 2019, it would be expedient to notice Article 309 of the Constitution of India, which provides as under: - “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: 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 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.” 12. 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 Kerala2), 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 rule- making function of the competent authority under proviso to Article 309 is legislative in nature (see Nagara v. State of A.P.3). The Rules made in exercise of the power conferred by the proviso 2 AIR 1973 SC 2641 3 AIR 1985 SC 551 (para. 36) {WP(S) No.2621/2022} to Article 309 of the Constitution have statutory force (see State of U.P. v. Baburam4). Where a Rule is made in exercise of the power conferred by Article 309 of the Constitution or of a statute, such Rule has the force of law and is, accordingly, enforceable by a Court like any other statutory provision or subordinate legislation, subject, of course, to the doctrine of ultra vires (see State of Haryana v. Shamser5). 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.6, State of U.P. and another v. Ramgopal Shukla7 and State of Mysore v. M.H. Krishna Murthy and others8). 13. It is well settled that it is open to the appointing authority to lay down requisite qualifications for recruitment to Government Service as this pertains to the domain of policy (see Banarsidas v. State of U.P.9 and Commissioner, Corp of Madras v. Madras Corp. Teachers’ Mandram10). The Supreme Court in the matter of V.K. Sood v. Secretary, Civil Aviation and others11 has held that in the exercise of the rule-making power, the President or authorised person is entitled to prescribe method of recruitment, qualifications, both educational as well as technical, 4 AIR 1961 SC 751 (763) 5 AIR 1972 SC 1546 (para. 8) 6 (1980) 4 SCC 226 7 (1981) 3 SCC 1 8 (1973) 3 SCC 559 9 AIR 1956 SC 520 10 (1997) 1 SCC 253 11 1993 Supp (3) SCC 9 {WP(S) No.2621/2022} for appointment or conditions of service to an office or a post under the State. It was further held that the rules having been made in exercise of the power under proviso to Article 309 of the Constitution, being statutory, cannot be impeached on the ground that the authorities have prescribed tailor made qualifications to suit the stated individuals whose names have been mentioned in the appeal. It was also held by their Lordships of the Supreme Court that no motives can be attributed to the Legislature in making the law. Their Lordships finally held that it is for the rule- making authority to regulate the method of recruitment, prescribe qualifications etc. and this is not the province of the Court to trench into and prescribe qualifications. 14.The rule-making authority in its wisdom has, by the impugned Rules, prescribed minimum qualification for the post of Teacher and in the Subject Mathematics, Subject Groups have been added as Physics / Chemistry / Electronics / Computer Science / Statistics, Military Science / Groundnut Science, however, Political Science and Economics have been added in the Subject Social Science which is the Art Group and as such, the State Government in consultation with the experts in the field has framed the Rules in exercise of its power as the rule making function under Article 309 of the Constitution of India is legislative in nature and thus, the Rules of 2019 have been framed under the proviso to Article 309 of the Constitution of India. Page 10 of 11 {WP(S) No.2621/2022} 15. In the matter of Union of India v. Assn. for Democratic Reforms12, the Supreme Court observed that: “19. … it is not possible for this Court to give any directions for amending the Act or the statutory Rules. It is for Parliament to amend the Act and the Rules.” 16. Similarly, in the matter of Supreme Court Employees' Welfare Assn. v. Union of India13, the Supreme Court held that a court cannot direct the legislature to enact a particular law. This is because under the constitutional scheme, Parliament exercises a sovereign power to enact law and no other authority can issue directions to frame a particular piece of legislation. This principle was reiterated in the matter of State of J&K v. A.R. Zakki14, where this Court observed that:- “10. … A writ of mandamus cannot be issued to the legislature to enact a particular legislation. Same is true as regards the executive when it exercises the power to make rules, which are in the nature of subordinate legislation. Section 110 of the J&K Constitution, which is on the same lines as Article 234 of the Constitution of India, vests in the Governor, the power to make rules for appointments of persons other than the District Judges to the Judicial Service of the State of J&K and for framing of such rules, the Governor is required to consult the Commission and the High Court. This power to frame rules is legislative in nature. A writ of mandamus cannot, therefore, be issued directing the State Government to make the rules in accordance with the proposal made by the High Court.” 17. In the matter of V.K. Naswa v. Union of India15, the Supreme Court referred to a large number of decisions and held that:- “18. Thus, it is crystal clear that the court has a very limited 12 (2002) 5 SCC 294 13 (1989) 4 SCC 187 14 1992 Supp (1) SCC 548 15 (2012) 2 SCC 542 {WP(S) No.2621/2022} role and in exercise of that, it is not open to have judicial legislation. Neither the court can legislate, nor has it any competence to issue directions to the legislature to enact the law in a particular manner.” 18. Following the principles of law enunciated by the Supreme Court in the above-stated judgments (supra), we are of the considered opinion that it would be inappropriate to direct the rule-making authority to amend the Rules of 2019 as asked by the petitioner without any rhyme or reason so as to suit her promotional prospects, as by issuing such writ of mandamus this Court would be crossing the Lakshman Rekha which is not at all permissible in the eyes of law and as such, the writ petition is held to be not maintainable. Accordingly, we do not find any merit in the writ petition, it deserves to be and is hereby dismissed leaving the parties to bear their own cost(s). Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge Soma