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Rajasthan High Court · body

1998 DIGILAW 1058 (RAJ)

Dhan Raj v. State of Rajasthan

1998-10-08

R.R.YADAV

body1998
Honble YADAV J.–The present writ petition has been filed by the petitioner seeking a relief to quash the Notification dated 4.9.95 Annx.4A to the writ petition in so far as it provides for qualification of three years Diploma in Tourist and Travel of a Univeristy established by law in India or from any recognised Institution for direct recruitment to the post of Tourist Officer. It is also prayed that it may be de- clared by this Court that the persons holding Masters Degree in Tourism Administration is equivalent to three years Diploma in Tourist and Travel and such Degree-holders are eligible for recruitment on the post of Tourist Officer. It is further prayed that the respondents may be directed to consider the case of the petitioner for selection to the post of Tourist Officer by way of direct recruitment. (2). The brief facts necessary for disposal of the instant petition are that the petitioner passed B.Com. Examination from Mahirishi Dayanand Saraswati University, Ajmer in the year 1991. Thereafter the petitioner obtained Masters Degree in Tourism Administration (M.T.A.) from Jai Narayan Vyas University, Jodhpur in the year 1996. Photostat copies of the Mark-sheets of B.Com. and M.T.A. Examinations are filed and marked as Annx.1 and 2 respectively to the writ petition. (3). It is averred in paragraph 3 of the writ petition that an Advertisement was published in Rajasthan Patrika a daily news- paper on 20.5.98 inviting applications from eligible candidates for four posts of Tourist Officers. All the four posts of Tourist Officers were reserved i.e. one for Scheduled Caste, one for Scheduled Tri- be and two for Other Backward Classes with a stipulation that in the event of non-availability of suitable candidates of reserved categories, the posts so reserved, will be filled in by General Category candidates. A copy of the Advertisement dated 20.5.98 is filed along with the writ petition and marked as Annx.3. (4). The petitioner also applied for selection to the post of Tourist Officer but he entertained strong apprehension that his application form will be rejected on the ground that he did not possess minimum qualification prescribed for direct recruitment to the post of Tourist Officer. (5). (4). The petitioner also applied for selection to the post of Tourist Officer but he entertained strong apprehension that his application form will be rejected on the ground that he did not possess minimum qualification prescribed for direct recruitment to the post of Tourist Officer. (5). It is noticed from the perusal of materials on record that no separate Rules have been framed for recruitment to the post of Tourist Officer and, the recruitment is governed by the Rajasthan Sub-ordinate Service (Recruitment and Other Service Conditions) Rules, 1960 (for short `the Rule of 1960) vide Notification dated 4.9.95 Annx.4A to the writ petition. (6). A close scrutiny of notification dated 4.9.95 Annx.4A to the writ petition reveals that the post of Tourist Officer is required to be filled in by 75% by direct re- cruitment and 25% by promotion. The qualifications prescribed in the notification dated 4.9.95 (Annx.4A) for direct recruitment on the post of Tourist Officer are as under:- (1) Graduate of a University established by law in India. (2) Three years Diploma in Tourist and Travel of an University established by law in India or from any recognised Institution. A Note is appended to the aforesaid Notification stating therein that preference will be given to those candidates who possessed knowledge of Foreign Language. (7). The petitioner has candidly averred in the petition that although he is a Graduate but he does not possess three years Diploma in Tourism and Travel of an University established by law or from any recognised Institution. (8). It is further averred in the writ petition that the petitioner made an enquiry and from enquiry made by him, it is revealed that no University established by law or Institution in India is imparting three years Diploma in Tourism and Travel Management. The petitioner approached to the Indian Institute of Tourism and Travel Management through Head of the Department of Tourism, Faculty of Management to inform him as to whether in any University established by law or in any recognised Institution in India exist where course like three years Diploma in Tou- rism and Travel Management is imparted. The Indian Institute of Tourism and Travel Management vide its communication dated 16.6.98 Annx.5 to the writ petition confirmed the fact that no University established by law or recognised Institution is imparting like three years Diploma in Tourism and Travel Management. (9). The Indian Institute of Tourism and Travel Management vide its communication dated 16.6.98 Annx.5 to the writ petition confirmed the fact that no University established by law or recognised Institution is imparting like three years Diploma in Tourism and Travel Management. (9). It is pertinent to observe that correctness of the communication dated 16.6.98 Annx.5 to the writ petition is not being disputed by the learned counsel for the respondents from which it is easily deduciable that no U.G.C. recognised University established by law or recognised Institution in India is imparting three years Diploma Programme in Tourism and Travel Management after graduation. (10). The respondents have filed a evasive reply to the writ petition. A reading of the reply filed on behalf of the respondents lead me to believe that the respondents are making efforts to put the cart before the horse by filing an evasive reply which is to be depricated. (11). In preliminary objection raised by the respondents it is alleged that the petitioner has neither sought alternative remedy of moving the competent authority for prescribing appropriate qualifications for the post of Tourist Officer in view of non- availability of three years Diploma Course in any of the Indian Universities nor he has served any notice for Demand of Justice to the respondents. Had the petitioner raised this issue before the Government by way of representation, the Government would have been directed by the Court to look into the matter. The Government should have been given an opportunity to verify the contention of the petitioner. (12). It is observed that this is no way to file a reply in a writ petition questioning validity, legality, reasonableness or vires of notification dated 4.9.95 Annx.4A to the writ petition prescribing qualification for appointment to the post of Tourist Officer which is responsible post of the rank of the Gazetted Officer as disclosed by the learned counsel for the parties. (13). It is to be imbibed that whenever and wherever a writ of certiorari is prayed for challenging the vires of any Act or any Rule framed by the State Government in exercise of its statutory duty or any notification or ordinance on the ground of reasonableness and rationality there is no provision to make a representation or notice for demand of justice before filing of a writ petition. In the present writ petition the main relief prayed for is quashing of notification dated 4.9.95 Annx.4A prescribing qualification of three years Diploma in Tourism and Travel of a University established by law or from any recognised Institution in India for appointment on the post of Tourist Officer whereas no U.G.C. recognised University established by law or recognised Indian Institution exist imparting aforesaid qualification. (14). In the present case, the State Government failed to demonstrate before me that its action in prescribing qualification of three years Diploma in Tourism and Travel of a University established by law or any recognised Indian Institution for appointment on the post of Tourist Officer exist in India is reasonable. For the said reason, I am of the view that the aforesaid action of State Government is not in conformity with the principle which meets test of reason, hence impugned notification Annx.4A to that extent is arbitrary and unreasonable. Since the notification impugned dated 4.9.95 Annx.4A fails to meet the principle of reasonableness and rationality hence it is held to be arbitrary against constitutional philosophy enshrined under Article 14 of the Constitution of India. (15). It is now well settled as a result of the decisions of Honble Supreme Court in E.P.Royappa vs. State of Tamil Nadu ( AIR 1974 SC 555 ) and Maneka Gandhi vs. Union of India ( AIR 1978 SC 597 ) that Article 14 Strikes at arbitrariness in State action and ensures fairness. The aforesaid principle of reasonableness and fairness is reiterated by the Apex Court in case of Ramana Dayaram Shetty vs. International Airport Authority and others ( AIR 1979 SC 1628 ) holding that State action must not be arbitrary but must be based on some rational and relevant principle and it must not be guided by any extraneous or irrelevant consideration. (16). It is held that in a democratic country like ours every arbitrary action of the Government leading towards unfairness should always be taken to be enathema to the constitutional philosophy of Article 14 of the Constitution. Any arbitrary action of the State either after framing the Rules or without framing the Rules, which is arbitrary would be invalid and unconstitutional. (17). There is yet another reason to arrive at the aforesaid conclusion. Fairness is a fundamental principle of governance. Any arbitrary action of the State either after framing the Rules or without framing the Rules, which is arbitrary would be invalid and unconstitutional. (17). There is yet another reason to arrive at the aforesaid conclusion. Fairness is a fundamental principle of governance. Fairness is also a rule to ensure the vast power in the modern State is not abused but properly exercised. Any arbitrary action leading to unfairness affecting the interest of citizenary is subject to judicial review. (18). In the instant case, onece it is established that no UGC recognised University or Indian Institute in India is imparting three years Diploma programme in Tourism and Travel Management after Graduation, hence, there is no alternative except to quash the notification dated 4.9.95 Annx.4A to the writ petition prescribing in column No.5 qualification and experience for direct recruitment to the post of Tourist Officer to the extent of qualification prescribed under S.No.2 i.e. three years Diploma inTourism and Travel of a University established by law in India or from any recognised Institution but rest of the said notification is held valid and constitutional. (19). As regards second relief sought by the petitioner to the effect that holding of Masters Degree in Tourism and Travel Management should be declared to be equivalent to three years Diploma in Tourism and Travel of a University established by law in India or from any recognised Institution and last relief prayed by the petitioner to the effect that the respondents may be directed to consider the claim of the petitioner for his selection on the post of Tourist Officer as he passessed Masters Degree in Tourism Administration are refused for the reasons given hereinbelow. (20). The functions of three apparatus of State Legislature, executive and Judiciary are well demarcated under the Constitution. Each of the aforesaid organs of the State are to function within its periphery demarcated under the Constitution with mutual respect for each other. In the past, Rulers of erstwhile Indian States used to exercise sovereign powers legislative, executive and judicial by issuing `Farmans. Their Farmans were laws which could not be challenged prior to enforcement of the Constitution but after enforcement of the Constitution, the sovereign powers are conferred upon the three organs of the State Legislature, Executive and Judiciary. Transgression of power by any of the organ of the State is impermissible within the Constitutional philosopy. (21). Their Farmans were laws which could not be challenged prior to enforcement of the Constitution but after enforcement of the Constitution, the sovereign powers are conferred upon the three organs of the State Legislature, Executive and Judiciary. Transgression of power by any of the organ of the State is impermissible within the Constitutional philosopy. (21). However in order to protect the interest of the petitioner and many other citizens who claimed themselves to be eligible for appointment on the post of Tourist Officer the present vacancies and vacancies in future on the post of Tourist Officer shall be kept in abeyance till objective tests of eligibility i.e. qualification or qualifications for appointment on the post of Tourist Officers are not redrafted by the appropriate authority within the meaning of Art. 309 of the Constitution of India. (22). For the reasons stated hereinabove, the present writ petition is partly allowed with cost of Rs.2000/- and the notification dated 4.9.95 Annx.4A to the writ petition prescribing three years Diploma in Tourism and Travel of a University established by law in India or from any recognised Institution is struck down and the Advertisement dated 20.5.98 Annx.3 to the writ petition is hereby quashed with a direction to the State Government to reframe the Rules within the meaning of Article 309 of the Constitution of India. Till proper Rules within the meaning of Arti- cle 309 of the Constitution of India are reframed by the appropriate authority for appointment on the post of Tourist Officer in the light of the observations made in the body of the order in future the appointments on the posts of Tourist Officers shall be kept in abeyance.