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2002 DIGILAW 1759 (RAJ)

Chandra Prakash v. State of Rajasthan

2002-10-25

SUNIL KUMAR GARG

body2002
JUDGMENT 1. - This writ petition under Article 226 of the Constitution of India has been filed by the petitioner on 7.10.1991 against the respondents with the prayer that by an appropriate writ, order or direction, the provision contained in the Schedule appended to the Rajasthan Technical Education Service Rules, 1973 (hereinafter referred to as "the Rules of 1973") insofar as it provides for five years experience as Head of Department for promotion to the post of Principal be declared illegal and be struck down. The other prayers are not being considered as after filing of the writ petition, the petitioner has retired from service of the respondents and the learned counsel for the petitioner has also not pressed for other prayers. 2. The case of the petitioner as put forward by him in this writ petition is as follows:- The petitioner obtained his degree of Engineering in Electrical from M.B.M. Engineering College, Jodhpur in the year 1965. The petitioner was appointed as Lecturer in the Technical Education Department, Government of Rajasthan in the month of July, 1965. Thereafter, the petitioner was promoted to the post of Senior Lecturer vide order dated 24.10.1983, but he joined as Senior Lecturer in January, 1984. Thereafter, the petitioner was promoted on the post of Head of Department vide order dated 8.12.1988, but he actually joined that post in March, 1989. The service conditions of the petitioner are governed by the Rules of 1973. So far as the post of Principal is concerned, it is to be filled up 100% by promotion from Head of Department in Engineering and its equivalent post and the person working as Head of Department in Engineering or its equivalent post is eligible for consideration for promotion to the post of Principal provided that such person has put in five years of service on the feeder post and his name comes in the zone of consideration. It may be stated here that the condition of five years of service on the post of Head of Department for promotion to the post of Principal, as contained in the Schedule appended to the Rules of 1973, has been mainly challenged by the petitioner in this writ petition on the ground that the length of service on the post of Head of Department was irrelevant and violative of Article 14 of the Constitution of India. Apart from this, in the Rules known as "The Rajasthan Educational Service (Collegiate Branch) Rules, 1986" (hereinafter referred to as "the Rules of 1986"), such type of condition is not there and therefore, by providing the condition of five years experience as Head of Department for promotion to the post of Principal, a discrimination has been made by the respondents in the Service Rules, as in the Rules of 1986, the Head of Department and Lecturers have been made eligible for promotion to the post of Principal, while in the Rules of 1973, only Heads of Department having five years experience have been made eligible for promotion to the post of Principal. Thus, this aspect is highly discriminatory and violative of Article 14 of the Constitution of India and therefore, the requirement of five years experience as Head of Department for promotion to the post of Principal as contained in the Schedule appended to the Rules of 1973, be declared illegal and unconstitutional and therefore, the same be struck down. Hence, this writ petition with the prayer as stated above. A reply to the writ petition was filed by the respondents and their main contentions are as follows:- (i) That the Rules of 1986 have no comparison with the Rules of 1973 and thus, if some conditions have been incorporated in the Rules of 1973, the same cannot be said to be violative of Article 14 of the Constitution of India merely on the ground that such conditions are not found in the Rules of 1986. (ii) That the promotions are made as per the Rules of 1973, which were published in the year 1973 and amended in 1979 and 1988 and the State Government is competent to frame and amend the Rules under Article 309 of the Constitution of India for administrative reasons. The Rule making Agencies have no intention to mala fide against the petitioner. Thus, there is no question of violation of Article 14 of the Constitution of India and, therefore, Rules are not discriminatory. Hence, the writ petition filed by the petitioner be dismissed. 3. I have heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents and gone through the materials available on record. 4. Thus, there is no question of violation of Article 14 of the Constitution of India and, therefore, Rules are not discriminatory. Hence, the writ petition filed by the petitioner be dismissed. 3. I have heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents and gone through the materials available on record. 4. There is no dispute on the point that as per Schedule appended to the Rules of 1973, the post of Principal is to be filled in up 100% by promotion from Head of an Engineering Department/Assistant Director of Technical Education and the qualification and experience for promotion to the post of Principal are as follows:- "At least Second class degree from a recognised University in any branch of Engineering for which courses are being run at polytechnics or equivalent qualifications recognised as equivalent to such a degree by the Government with four years experience on the post or posts mentioned in Column No. 5." 5. There is also no dispute on the point that the Rules of 1973 were amended in the year 1979 and further amended in the year 1988 and through amendment made in 1988, the experience on the post of Head of Department for promotion to the post of Principal as contained in the Schedule appended to Rules of 1973, was increased from four years to five years and that requirement of five years experience as Head of Department for promotion to the post of Principal has been challenged in this writ petition by the petitioner. 6. There is also no dispute on the point that the petitioner has now retired from service and the Rules under challenge were made long back in the year 1973 and since then they are being followed and they have been amended from time to time as per the need of the time. 7. There is also no dispute on the point that for promotion to the post of Principal, in the Rules of 1986, there is some difference and in these Rules of 1986, the condition of five years experience as Head of Department for promotion to the post of Principal is not there. 8. 7. There is also no dispute on the point that for promotion to the post of Principal, in the Rules of 1986, there is some difference and in these Rules of 1986, the condition of five years experience as Head of Department for promotion to the post of Principal is not there. 8. The question for consideration in the above facts and circumstances of the case is whether the provision contained in the Scheduled appended to the Rules of 1973, which prescribes condition of five years experience as Head of Department for promotion to the post of Principal can be said to be violative of Article 14 of the Constitution of India or not. 9. It is now well settled by a catena of decisions of this Court as well as of Hon'ble Supreme Court that it is upto the Rule Making Authority to prescribe the qualifications including the experience for promotion to a particular post. 10. It is equally settled that power under Article 309 of the Constitution of India to frame the Rules is legislative power and it is to be exercised by the Governor of the State and the High Court cannot issue a mandate to the State Government to legislate. 11. It is also well settled position of law that the Court would not usurp the functions assigned to the executive under the Constitution of India. 12. The Rules of 1973 were framed by the Governor of Rajasthan under Article 309 of the Constitution of India and while framing the Rules of 1973 and making amendment in 1988, all relevant considerations germane to the fixing of experience of five years as Head of Department for promotion to the post of Principal were kept in mind and thus, there is a well founded basis behind prescribing such experience. 13. Simply because certain different conditions for promotion to the post of Principal have been prescribed in the Rules of 1986, the condition of five years experience as Head of Department for promotion to the post of Principal, as contained in the Schedule appended to the Rules of 1973, cannot be declared ultra vires the Constitution. 14. 13. Simply because certain different conditions for promotion to the post of Principal have been prescribed in the Rules of 1986, the condition of five years experience as Head of Department for promotion to the post of Principal, as contained in the Schedule appended to the Rules of 1973, cannot be declared ultra vires the Constitution. 14. While prescribing the experience of five years as Head of Department for promotion to the post of Principal, it can be said that the Legislature has taken into consideration all relevant factors, which have direct nexus with the object sought to be achieved and thus, the provision prescribing five years experience as Head of Department for promotion to the post of Principal cannot be said to be arbitrary, illegal, unconstitutional and violative of Article 14 of the Constitution of India. 15. It may be stated here that what Article 14 of the Constitution of India prohibits is class legislation and not reasonable classification for the purpose of legislation. A classification would be justified if it is not palpably arbitrary. If there is equality and uniformity within each group, the law will not be condemned as discriminative, though due to some fortuitous circumstance arising out of a peculiar situation some included in a class get an advantage over others, so long as they are not singled out for special treatment. 16. Furthermore, the reasonableness is to be judged with reference to the object of the legislation and not moral considerations. 17. For promotion to the post of Principal, it is legitimate for the authorities to make Rules for selection to that post. 18. In my considered opinion, since the requirements in various services may be different in nature, therefore, it would not be discriminatory to provide for different conditions of service including condition of five years experience as Head of Department for promotion to the post of Principal, as the Rule Making function is a legislative function and not a quasi-judicial function. 19. Thus, Rule/provision under challenge can be struck down if it is found violative of Articles 14 and 16 of the Constitution of India and not because the Court considers it to be unreasonable or because of improper motive. Furthermore, the test to determine constitutionality of any provision of such rule is whether the Legislature is competent to enact such a provision. Furthermore, the test to determine constitutionality of any provision of such rule is whether the Legislature is competent to enact such a provision. It cannot be struck down merely because the Court considers them unreasonable. In this respect, the decision of the Hon'ble Supreme Court in Bansal v. Union of India, ( AIR 1993 SC 978 ) may be referred to. 20. Apart from this, making of Rule prescribing condition of five years experience as Head of Department for promotion to the post of Principal is a matter of policy of the Government and other appropriate authority, but the Court should not interfere with the policy unless the same is found discriminatory or arbitrary. 21. In Tech. Executive (Anti Pollution) Welfare Association v. Commissioner of Transport Department and anr., 1997(3) SCT 168 (SC) : (1997)9 SCC 38 , the Hon'ble Supreme Court observed that administrative Tribunal was not competent to give directions for laying down policy or for creation of promotional avenue because these matters fall within policy making function of appropriate Government. Thus, in policy matters, no direction can be issued to the Government nor such type of rules can be declared unconstitutional. 22. In the present case, in the Schedule appended to the Rules of 1973, experience of five years as Head of Department for promotion to the post of Principal has been prescribed and in prescribing that experience, all relevant factors have been taken into consideration by the Rule Making Authority and, therefore, it cannot be said that prescribing of such condition is arbitrary, unreasonable, illegal and violative of Articles 14, 16 and other provides of the Constitution of India. Furthermore, requirement of five years experience as Head of Department for promotion to the post of Principal as contained in the Schedule appended to the Rules of 1973 cannot be considered to be discriminatory and violative of Article 14 of the Constitution of India merely on the ground that in the Rules of 1986, such condition is not provided, as the Legislature has power to prescribe experience in different sets of services in different manner. Simply because the condition of five years experience as Head of Department for promotion to the post of Principal is not contained in the Rules of 1986, therefore, such condition as contained in the Rules of 1973 should be declared unconstitutional, is not a correct proposition of law and cannot be accepted. Simply because the condition of five years experience as Head of Department for promotion to the post of Principal is not contained in the Rules of 1986, therefore, such condition as contained in the Rules of 1973 should be declared unconstitutional, is not a correct proposition of law and cannot be accepted. Therefore, the prescribing of experience of five years as Head of Department for promotion to the post of Principal cannot be said to be discriminatory and violative of any of the provisions of the Constitution of India. 23. In these circumstances, it can easily be concluded that the Rule Making Authority while making the provision in the Scheduled appended to the Rules of 1973 prescribing experience of five years as Head of Department for promotion to the post of Principal, has exercised the statutory power vested in it reasonably and bonafidely and the discretion exercised by the Rule Making Authority cannot be said to be arbitrary or capricious and thus, such provision cannot be declared discriminatory and violative of any of the provisions of the Constitution of India. 24. Apart from this, the condition of five years experience as Head of Department for promotion to the post of Principal as contained in the Schedule appended to the Rules of 1973 is made for class of persons and it is not made for individual persons. From this point of view also, it cannot be classified as discriminatory to the petitioner. 25. Thus, for the foregoing reasons and discussion, this Court is inclined to hold that no legal right has accrued in favour of the petitioner to challenge the condition of five years experience as Head of Department for promotion to the post of Principal as contained in the Schedule appended to the Rules 1973 on the ground that it is discriminatory and violative of Articles 14, 16 and other provisions of the Constitution of India, and thus, petitioner's right has not been violated nor the petitioner has any right to say that such condition be declared ultra vires. Furthermore, the petitioner has no right to say that since in the Rules of 1986, the condition of five years experience as Head of Department for promotion to the post of Principal is not there, therefore, providing such condition in the Schedule appended to the Rules of 1973 should be declared discriminatory and ultra-vires. 26. Furthermore, the petitioner has no right to say that since in the Rules of 1986, the condition of five years experience as Head of Department for promotion to the post of Principal is not there, therefore, providing such condition in the Schedule appended to the Rules of 1973 should be declared discriminatory and ultra-vires. 26. Thus, it is held that the provisions contained in the Schedule appended to the Rules of 1973 prescribing experience of five years as Head of Department for promotion to the post of Principal cannot be said to be ultra vires and is not hit by the vires of inequality enshrined in Articles 14 and 16 of the Constitution of India. 27. For the reasons stated above, none of the vested rights of the petitioner have been violated by prescribing the experience of five years as Head of Department for promotion to the post of Principal in the Schedule appended to the Rules of 1973 and thus, the petitioner is not entitled to any relief under Article 226 of the Constitution of India and this writ petition is liable to be dismissed. 28. Before parting with this case, it may be stated here that the learned counsel for the petitioner has brought to the notice of this Court that through Annexure-6 the Expert Committee of the All India Council for Technical Education on the revision of staff structure in Engineering Institutions, gave some suggestions and they should have been accepted by the respondents as they are the views of the Experts and the Government should give respect to them. 29. In my considered opinion, it is for the Government to take into consideration these suggestions, but no mandamus can be issued for that.Accordingly, this writ petition filed by the petitioner is dismissed. However, it is made clear that so far as the suggestions contained in Annexure-6 are concerned, the respondents may consider the same and if they are found suitable, the respondents may suitably amend the Rules of 1973, but no mandamus is being issued for making compliance of the suggestions contained in Annexure-6.No order to costs. Petition dismissed. *******