Research › Browse › Judgment

Rajasthan High Court · body

1993 DIGILAW 150 (RAJ)

Brijendra Singh v. State of Rajasthan

1993-03-05

K.C.AGRAWAL, V.K.SINGHAL

body1993
Honble AGRAWAL, CJ. — In exercise of the powers conferred by Section 78 of the Electricity (Supply) Act, 1948 (hereinafter referred to as "the Act, 1948"), the State Government framed the Rajasthan State Electricity Supply Rules, 1963 (hereinafter referred to as, "the Rules, 1963"). Rule 4 of the Rules, 1963 prescribes the terms of office and conditions of appointment of Chairman and Members of the Rajasthan State Electricity Board (in short, "the Board"). Sub-rule (3) of Rule 4 of the Rules, 1963 lays down that:- "4(3). No person shall hold office of the Chairman or a Member beyond the age of sixty five years." By means of an amendment made on 8.12.1992, made in exercise of the powers, aforesaid, Rules, 1963 were amended. In Rule 4, after sub-rule (2) a new sub-rule viz., (2A) has been inserted and for sub-rule (3) the following sub-rule has been substituted: "4(3). No person shall hold office of the Chairman or a member beyond the age of sixty seven years." (2) The petitioner has challenged the validity of the aforesaid rules on the ground that the same is not in consonance with the policy of the State Government and in keeping with the principles and the spirit of the Act, 1948. (3) Learned counsel for the petitioner has urged that the impugned rule, raising age, was framed by the State Government to benefit Shri R.C. Dave, as he was a favoured child of the Government and that there was no such special quality or competence in Shri R.C. Dave, which could not be found in others, who would have been considered had Shri R.C. Dave been not made the Chairman of the Board. (4) The submission of the learned counsel is not acceptable to us. (5) A trend, very much in vogue to-day in all democratic countries, is that only a relatively small part of the total legislative out put emanates directly from the legislature. The bulk of the legislation is promulgated by the executive, known as "delegated legislation". The legislature only lays down general principles and policies relating to the subject matter in question and confers rule-making power on the government, or on some other administrative agency. This technique of delegated legislation is designated by several names, such as, rules, regulations, bye-laws and orders etc. The legislature only lays down general principles and policies relating to the subject matter in question and confers rule-making power on the government, or on some other administrative agency. This technique of delegated legislation is designated by several names, such as, rules, regulations, bye-laws and orders etc. (6) The impugned rule was made by the State Government in exercise of the powers conferred by sub-sections (1) and (2) (a) of Sec. 78 of the Act, 1948. The relevant portions of these are quoted below: — "78. Power to make rules: (1) The State Government may, after previous publication by notifica- tion in the Official Gazette, make rules to give effect to the provisions of this Act. (2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for— (a) the powers of the Chairman and the term of office of the Chairman and other members of the Board, the conditions under which they shall be eligible for re-appointment and their remuneration, allowances and other conditions of service." (7) Sub-section (1) of Sec. 78 is general in nature whereas clause (a) of sub-section (2) is particular dealing with the subjects enumerated therein. One of the subjects, on which rule can be made, is about the term of office of the Chairman and other Members of the Board. It also deals with re-appointment. (8) On a consideration of Sec. 78 and the Rules impugned before us, we find that the same is not ultra vires as it does not go beyond the scope of the authority conferred by the Statute. The principle is that the delegate cannot make a rule, which is not authorised by the parent statute. Such is not the position in the instant case. Clause (a) of Sub-section (2) of Sec. 78 specifically authorises the State Government to make rules for retirement of a Chairman. It further authorises the State Government to make a provision for his retirement, if it is thought necessary. (9) The submission of the petitioners counsel that delegated legislation goes against the basic policy of the parent statute, principally cannot be denied. But the challenge made is not sustainable. Rules have to be made so as to facilitate the achieving and carrying out purposes of the Act. Such purpose sets out the limits of the framing of Rules so that a rule to be valid, must pertain to them. But the challenge made is not sustainable. Rules have to be made so as to facilitate the achieving and carrying out purposes of the Act. Such purpose sets out the limits of the framing of Rules so that a rule to be valid, must pertain to them. In the instant case, we find that the rule is within the power conferred by Sec. 78 (2)(a) of the Act, 1948. (10) A usual technique first is to give a general power to make rules for the purposes of the Act and then to lay down, without prejudice to the generality of the previous clause, specific heads for which the delegate may make rules. This technique has been adopted in the Act, 1948. (11) In the instant case, we find the rule to be valid both under Sub- section (1) and sub-section (2)(a) of Sec. 78 of the Act, 1978: (12) It is true that the test of reasonableness is applicable to delegated legislation both on general principles as well as under such fundamental rights as Articles 19 or 14. We are, however, unable to find any arbitrariness or invalidity in the rule. It is not correct to say that the amendment in Rule 4(3) of the Rules, 1963 was one mans legislation, meant to benefit Shri R.C. Dave alone. If the amendment is read as a whole in the light of the provisions of sub-section (2)(a) of Sec. 78 of the Act, 1948, there would be no justification for the submission made by the petitioners counsel. (13) The learned Advocate General submitted that the amendment in the rule was in accordance with the Act, 1948 and, therefore, was not ultra vires the Act. He contended that as to why was age increased to 67 years was dependent on the wisdom of the State Government, which was the rule making authority and its wisdom cannot be questioned in the court of law. He contended that as to why was age increased to 67 years was dependent on the wisdom of the State Government, which was the rule making authority and its wisdom cannot be questioned in the court of law. The Supreme Court in Bhandara District Central Co-operative Bank Ltd., and others vs. State of Maharashtra and another (1) has held as under :- "It has been firmly established that this Court cannot be called upon to embark on an enquiry into public policy or investigate into questions of political wisdom or even to pronounce upon motives of the legislature in enacting law which is otherwise within its legislative competence." (14) We have already noted above that delegated legislation, as a technique of modern administration, is now regarded as useful, inevitable and indispensable. The legislature was not guilty of having delegated its essential legislation. Reliance was placed by the petitioners counsel on the decision reported in State of Himachal Pradesh and another vs. Kailash Chand Mahajan and others (2), which also was concerned with the age of retirement of a Chairman. In paragraph 46, the Supreme Court said as under: — "Therefore, what does the State desire to do? It wants to embark on a policy of retirement of the Chairman/Members of the Electricity Board after attaining the age of 65 years. This Court is least concerned with the wisdom of the policy." (15) This observation makes it clear that with the wisdom of the policy, this Court is not concerned. However, this decision has no application to the facts of the present case. (16) Counsel for the petitioner urged that as the age of retirement of a Judge of the Supreme Court is 65 and that of the High Court is 62, there could be no purpose in enhancing the age of the Chairman to 67 years. The purpose only was to benefit Shri R.C. Dave. (17) We are unable to find substance in this submission. The age of retirement is laid down by the Government by considering the physical fitness and duties required for performance in one service. There is no rigid formula for laying down age of superannuation and that it can defer from service to service. It is incorrect to argue that it should be same in each service as its determination depends on various factors and considerations with which the Government servant is posted. There is no rigid formula for laying down age of superannuation and that it can defer from service to service. It is incorrect to argue that it should be same in each service as its determination depends on various factors and considerations with which the Government servant is posted. We have already held above that the legislation was not relating to a single person. In paragraph 86 of the judgment of State of Himachal Pradesh and others vs. Kailash Chand Mahajan and another (supra), the Supreme Court has held that a law applying to one person is constitutional if there is substance, basis or reason for it. In the instant case we find that reason of increasing age was to be formed by the legislature which it did. Consequently, the amendment challenged is perfectly valid and cannot be struck down on the grounds suggested. (18) For the reasons given above, this writ petition fails and is dismissed summarily.