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2018 DIGILAW 1278 (ALL)

PRASHANT SINGH v. STATE OF U. P.

2018-05-21

DILIP B.BHOSALE, SUNEET KUMAR

body2018
JUDGMENT By the Court.—Heard Sri Punit Kumar Upadhyay, learned counsel for the petitioners and Sri R.N. Pandey, Additional Chief Standing Counsel for the respondent-State. 2. Petitioners are assailing sub-clause (2) of Clause 13 of Uttar Pradesh Yuva Kalyan Vibhag Evam Kshetriya Yuva Kalyan Evam Pradeshik Vikas Dal Adhikari Evam Vyayam Prashikshak Adhinastha sewa Niyamwali, 2017 to the extent it prescribes minimum height as a criterion for physical fitness being void and violative of Article 14 and 16 of the Constitution of India. In other words the question for determination is whether the State Government can, inter alia, prescribe minimum height for the post of Regional Youth Welfare Officer and Exercise Trainer to be eligible for appointment. 3. The State Government initiated selection process for the post of Regional Youth Welfare Officer and Exercise Trainer. The petitioners fulfil the academic qualification, that is, they are graduate from recognized university and have degree/diploma in Physical Education. However, none of the petitioners have the minimum height prescribed for the post i.e. 167.7 cm, hence, the challenge to the rule prescribing height for the post. Learned counsel for the petitioner submits that having due regard to the nature of the job to be preformed by the physical trainers, requirement of minimum height has no relevance, therefore, it is urged that the rule prescribing height as an essential requirement for appointment to the post is void and violative of Article 14. Further, it is contended that some of the petitioners have obtained training of Sports Coach from Neta Ji Subhash National Institute of Sports, Patiala, run and managed by the Sports Authority of India which does not prescribe height as a criterion for the course. In other words it is contended that the institutions and authorities imparting training and coaching course which is required for the post do not prescribe height for admission to the course, therefore, it is urged that it was not open for the State Government to have prescribed minimum height as an essential qualification for physical fitness. Further, the institutes/universities conferring diploma or degree in physical education do not prescribe any height as a criterion for admitting candidates for the course. 4. Sri R.N. Pandey, learned Additional Chief Standing Counsel appearing for the respondent submits that it is within the domain of the State Government to prescribe essential qualifications including minimum physical standards for a post. Further, the institutes/universities conferring diploma or degree in physical education do not prescribe any height as a criterion for admitting candidates for the course. 4. Sri R.N. Pandey, learned Additional Chief Standing Counsel appearing for the respondent submits that it is within the domain of the State Government to prescribe essential qualifications including minimum physical standards for a post. The appointing authority can prescribe minimum physical standards viz. height, chest and weight which cannot be objected to by the candidate merely for the reason that the institutes imparting diploma/degree or training in physical education do not prescribe minimum physical standards for admitting students for instructions in physical education course. Admitting candidates to a course imparting physical education is distinct and different from the essential qualifications and other conditions of service required by the appointing authority for the post. The Rule is intra vires and not violative of Article 14 of the Constitution. 5. Rival submission fall for consideration. 6. The impugned rule, inter alia, prescribes the following criteria for physical fitness: Male Candidates/Height In Centimeters a. Scheduled Tribes Candidates 160 cms b. For other Candidates 167.7 cms Female Candidates/Height In Centimeters a. Scheduled Tribes Candidates 147 cms b. For Other Candidates 152 cms 7. The rule mandates that all male candidates other than Scheduled Tribes must have minimum height of 167.7 cms, whereas, Scheduled Tribe candidates must not be less than 160 cms. It is thus evident from the impugned rule that the requirement of height is uniform for all persons (General/SC/OBC) except candidates belonging to the Scheduled Tribe. The rule is not discriminatory insofar as it relates to candidates belonging to General Category/Scheduled Caste/Other Backward Class, whereas, the height for Scheduled Tribe candidates is lower probably for geographical and biological reasons and that does not render the rule arbitrary. It is settled legal position that matters relating to creation and abolition of posts formation or structuring and restructuring of cadres, prescribing mode of recruitment and qualifications, criteria of selection, evaluation of candidates/employees falls within the exclusive jurisdiction of the employer. Reference may be made to the judgment of the Supreme Court in Union of India v. Pushpa Rani and others, (2008) 9 SCC 242 . 8. Prescription of qualifications and other conditions of service pertains to the field of policy and is within the exclusive discretion and jurisdiction of the State. Reference may be made to the judgment of the Supreme Court in Union of India v. Pushpa Rani and others, (2008) 9 SCC 242 . 8. Prescription of qualifications and other conditions of service pertains to the field of policy and is within the exclusive discretion and jurisdiction of the State. It is not open to the Courts to direct the Government to have a particular method of recruitment or eligibility criteria. The observation of the Supreme Court made in paragraph 10 of the judgment in P.U. Joshi and others v. Accountant General, Ahmedabad and others, (2003) 2 SCC 632, is relevant for our purpose which reads thus: “10. ... Questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for such promotions pertain to the field of Policy is within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the Constitution of India and it is not for the statutory tribunals, at any rate, to direct the Government to have a particular method of recruitment or eligibility criteria or avenues of promotion or impose itself by substituting its views for that of the State. Similarly, it is well open and within the competency of the State to change the rules relating to a service and alter or amend and vary by addition/substraction the qualifications, eligibility criteria and other conditions of service including avenues of promotion, from time to time, as the administrative exigencies may need or necessitate.” (Refer: V.K. Sood v. Secretary, Civil Aviation, AIR 1993 SC 2285 ) In Chandigarh Administration v. Usha Kheterpal Waie and others, (2011) 9 SCC 645 , the Supreme Court, in paragraph 22, observed thus: “22. It is now well-settled that it is for the rule-making authority or the appointing authority to prescribe the mode of selection and minimum qualification for any recruitment. The Courts and tribunals can neither prescribe the qualifications nor entrench upon the power of the authority concerned so long as the qualifications prescribed by the employer is reasonably relevant and has a rational nexus with the functions and duties attached to the post and are not violative of any provision of the Constitution, statute and rules. The Courts and tribunals can neither prescribe the qualifications nor entrench upon the power of the authority concerned so long as the qualifications prescribed by the employer is reasonably relevant and has a rational nexus with the functions and duties attached to the post and are not violative of any provision of the Constitution, statute and rules. [See J. Rangaswamy v. Government of A.P., (1990) 1 SCC 288 and P.U. Joshi v. Accountant General, (2003) 2 SCC 632].” 9. When a State action is challenged, the function of the Court is to examine the action in accordance with law and to determine whether the legislature or the executive has acted within the powers and functions assigned under the Constitution and if not, the Court must strike down the action. While doing so the Court must remain within its self-imposed limits. The Court sits in judgment on the action of a coordinate branch of the Government. While exercising power of judicial review of administrative action, the Court is not an appellate authority. The Constitution does not permit the Court to direct or advise the executive in matters of policy or to sermonize qua any matter which under the Constitution lies within the sphere of legislature or executive, provided these authorities do not transgress their constitutional limits or statutory powers. There is a presumption in favour of constitutionality or validity of a subordinate legislation and the burden is upon him who challenges it to show that it is ultra vires/invalid. It is also well recognized that subordinate legislation can be challenged under any of the following grounds: “(a) Lack of legislative competence to make the sub-ordinate 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. (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).” (Refer: State of T.N. v. P. Krishnamurthy, (2006) 4 SCC 517 and Cellular Operators Association of India and others v. Telecom Regulatory Authority Of India and others, (2016) 7 SCC 703 ) 10. (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).” (Refer: State of T.N. v. P. Krishnamurthy, (2006) 4 SCC 517 and Cellular Operators Association of India and others v. Telecom Regulatory Authority Of India and others, (2016) 7 SCC 703 ) 10. One of the tests for challenging the constitutionality of subordinate legislation is that the subordinate legislation should not be manifestly arbitrary. Also, it is settled law that subordinate legislation can be challenged on any of the grounds available for challenge against plenary legislation. (Refer: Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India, (1985) 1 SCC 641 ). 11. That takes us to consider the test of ‘manifest arbitrariness’. It is well explained in Khoday Distilleries Ltd. and others v. State of Karnataka and others, (1996) 10 SCC 304 , which reads thus: “13. . . . The tests of arbitrary action which apply to executive actions do not necessarily apply to delegated legislation. In order that delegated legislation can be struck down, such legislation must be manifestly arbitrary; a law which could not be reasonably expected to emanate from an authority delegated with the law-making power. In the case of Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India [ (1985) 1 SCC 641 : 1985 SCC (Tax) 121 : (1985) 2 SCR 287 ], this Court said that a piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent legislature. A subordinate legislation may be questioned under Article 14 on the ground that it is unreasonable; “unreasonable not in the sense of not being reasonable, but in the sense that it is manifestly arbitrary” . . . In India, arbitrariness is not a separate ground since it will come within the embargo of Article 14 of the Constitution. But subordinate legislation must be so arbitrary that it could not be said to be in conformity with the statute or that it offends Article 14 of the Constitution.” 12. The tests of arbitrary action applicable to executive action do not necessarily apply to delegated legislation. In order to strike down a delegated legislation as arbitrary it has to be established that there is manifest arbitrariness. The tests of arbitrary action applicable to executive action do not necessarily apply to delegated legislation. In order to strike down a delegated legislation as arbitrary it has to be established that there is manifest arbitrariness. In order to be described as arbitrary, it must be shown that it was not reasonable and manifestly arbitrary. The expression “arbitrarily” means: in an unreasonable manner, as fixed or done capriciously or at pleasure, without adequate determining principle, not founded in the nature of things, non-rational, not done or acting according to reason or judgment, depending on the will alone. (Refer: Sharma Transport v. Government of A.P. and others, (2002) 2 SCC 188 ) 13. Whether height can be the sole criteria for the selection of a police constable, the Supreme Court, in Abhay Kumar Singh and others v. State of Bihar and others, 2015 (1) SCC 90 , considered the issue; while disagreeing with earlier order of a coordinate bench on the said question referred the matter to a Larger Bench making the following observations: 1.The dispute relates to the selection of constables in the State of Bihar. The minimum height requirement was 165 cm for general candidates and 160 cm for Scheduled Castes candidates. Admittedly, the petitioners were above that minimum height. However, it seems that they were rejected because the procedure adopted by the respondents was that height was the sole criterion for selection, which, in our view, is arbitrary and violative of Article 14 of the Constitution of India. 2. In our opinion, once a candidate has the minimum height as required by the relevant Rules, height then becomes an irrelevant consideration and other criteria should be taken into consideration, like intelligence, physical strength, etc. In this case, the selection amongst those who had the minimum height was done by only selecting the tallest candidates for the available vacancies. We are of the opinion that this was wholly arbitrary, and police constables must also have intelligence and other requirements, apart from height. To give an example, supposing there are twenty vacancies and 100 candidates have the minimum height as required by the Rules, in such a situation, the selection authority, in our opinion, cannot validly select the tallest twenty among these 100 candidates. 3. To give an example, supposing there are twenty vacancies and 100 candidates have the minimum height as required by the Rules, in such a situation, the selection authority, in our opinion, cannot validly select the tallest twenty among these 100 candidates. 3. The learned counsel for the respondents, however, invited our attention to a judgment passed by a Division Bench of this Court in State of Bihar v. Mal Babu Sharma in which the contention of the State of Bihar has been accepted. We respectfully cannot agree with the view taken by the Division Bench and hence, we refer this matter to a larger Bench to be nominated by the Hon’ble the Chief Justice.” 14. The basic presumption, however, remains that it is the state who is in the best position to define and measure merit in whatever ways they consider it to be relevant to public employment because ultimately it has to bear the costs arising from errors in defining and measuring merit. In the facts of the instant case height is not the sole criteria for selection, the impugned rule mandates that the candidates must have the minimum height prescribed. 15. It is now well-settled, as observed by the Supreme Court in Chandigarh Administration (supra), that it is for the rule-making authority or the appointing authority to prescribe the mode of selection and minimum qualification for any recruitment. The Courts can neither prescribe the qualification nor entrench upon the power of the authority concerned so long as the qualifications prescribed by the appointing authority/employer is reasonably relevant and has a rational nexus with the functions and duties attached to the post and are not violative of any provisions of the Constitution, Statute and Rules. It is equally well-settled that laying down of relevant criteria for recruitment is within the exclusive domain of the employer. Questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service is within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations and restrictions envisaged in the Constitution of India and it is not for the Courts, at any rate, to direct the Government to have a particular method of recruitment or eligibility criteria or impose itself by substituting its views for that of the State [Refer: P.U. Joshi (supra)]. 16. 16. Similarly, it is well open and within the competence of the State to change the rules relating to a service and alter or amend or vary by addition/subtraction of qualifications, the eligibility criteria and other conditions of service, from time to time, as the administrative exigencies may need or necessitate. There is no right in any person to claim that the rules for recruitment should be forever the same as the one which is more suited to him. The power of judicial review can be exercised in such matters only if it is shown that the action of the employer is contrary to any constitutional or statutory provisions or is arbitrary or is vitiated due to mala fides. We have applied all these tests while examining the challenge and we are satisfied that the impugned rule is neither arbitrary nor irrational nor contrary to any constitutional or statutory provision or are vitiated due to mala fides. 17. The plea of the petitioners that the institutes/university do not prescribe height as a criterion for admission for the course or the nature of duties to be performed, height would not be an impediment does not bear merit. Admission to a course to acquire a degree/diploma/training is different from seeking employment on the basis of the degree/diploma/training. The relevance of a criterion for selection is within the exclusive domain of the State/employer and it is beyond the scope of judicial review, unless being violative of the constitution/statutory scheme. 18. In the circumstances, we find no merit in the challenge raised in the writ petition. The writ petition is, accordingly dismissed.