JUDGMENT : With the consent of the parties, hearing of the matter has been done through video conferencing and there is no complaint whatsoever regarding audio and visual quality. W.P.(S) No.2350 of 2020 The instant writ petition has been filed under the provision of Article 226 of the Constitution of India for seeking following reliefs:- (i) For issuance of an appropriate Writ/Rule/Direction particularly a Writ in the nature of Certiorari for quashing the Rule 4.2 of Jharkhand Town Planning Service (Recruitment, Promotion and other Conditions) Rules, 2014, which is discriminatory to the extent it does not include Masters in Geography as the first essential qualification; (ii) For issuance of an appropriate Writ/Rule/Direction particularly a Writ in the nature of Mandamus directing Jharkhand Public Service Commission (JPSC) to consider the candidature of the Petitioners in Recruitment of Assistant Town Planner vide Advertisement No.04/2020; (iii) For a further direction to the respondents to accept the candidature by granting all the Petitioners to submit their respective forms and also grant the petitioners with all consequential benefits thereof; (iv) Issuance of an appropriate writ, order or direction in the form of mandamus directing the Respondents for providing relaxation in the upper age limit to the Petitioner no.2, for the direct appointment examination for Assistant Town Planner vide Advertisement No.04/2020 published by JPSC due to delayed vacancy after a long gap despite the vacancies(needless to say that the instant vacancy had been published for the first time after the creation of State Jharkhand); (v) Issuance of an appropriate writ, order or direction, directing the Respondents for bifurcation of total number of advertised posts on the basis of year of passing of the minimum educational qualification for applying for the direct appointment examination for Assistant Town Planner vide Advertisement No.04/2020 published by JPSC; and (vi) For issuance of an appropriate writ, order or direction, directing the Respondents to keep 4 seats vacant/reserve for the petitioners until the adjudication of the instant writ petition. 2. The brief facts of the case as per the pleading made in the writ petition reads hereunder as:- The writ petitioners claim to have Masters Degree in Geography, which, according to the writ petitioners is the preceding field of study to the Masters in Planning (Urban/Regional). 2. The brief facts of the case as per the pleading made in the writ petition reads hereunder as:- The writ petitioners claim to have Masters Degree in Geography, which, according to the writ petitioners is the preceding field of study to the Masters in Planning (Urban/Regional). The Jharkhand Public Service Commission, in short ‘JPSC’, has come out with an advertisement being Advertisement No.04/2020 inviting application for 77 posts of Assistant Town Planner in Urban Development and Housing Department to be filled up through direct recruitment. The advertisement in question prescribes to have one of the eligibility criteria of having the membership of Institute of Town Planners (India), New Delhi, along with Master’s Degree either in Urban Planning, Transport Planning, Housing Environment Planning or Regional Planning and a Bachelor’s Degree in Architecture, B. Planning and Civil Engineering, without which the candidates will be treated to be ineligible for the post in question. 3. It is the case of the writ petitioners that the Institute of Town Planners, India (New Delhi) vide its letter dated 21.07.2020 addressed to the Chief Secretary, State of Jharkhand specifically mentioning therein that the Town and Country Planning education is imparted in India at PG level, since 1951 for which, the basic qualification prescribes are; Bachelor of Planning, Bachelor of Architecture, Bachelor of Civil Engineering or Masters in Sociology or Geography or Economics and Masters in Urban Planning. The basic eligibility criteria as stipulated by the Institute of Town Planners, India are entitled to apply for the post of Assistant Town Planner. The basic eligibility for the post of Assistant Town Planner in “Post-Graduation in Town or City or Urban or Housing or Country or Regional or Transport or Rural or Infrastructure or Environment Planning from recognized institute” or “Bachelor of Planning or Bachelor of Technology in Planning from a recognized University or Institute with three years of experience in the field of Planning. The writ petitioner contends that the other States have strictly following the eligibility criteria prescribed by the Institute of Town Planners while making advertisement for filling the post of Assistant Town Planner, the State of West Bengal being one. The Institute of Town Planners, India has also prescribed its membership as an eligibility criterion for the purpose of applying for the post of Assistant Town Planners which is reflected in the letter dated 21.07.2020 addressed to the Chief Secretary, State of Jharkhand. The Institute of Town Planners, India has also prescribed its membership as an eligibility criterion for the purpose of applying for the post of Assistant Town Planners which is reflected in the letter dated 21.07.2020 addressed to the Chief Secretary, State of Jharkhand. But the State of Jharkhand while issuing the aforesaid advertisement has not considered this aspect of the matter, even though, representations have been filed in this regard and hence, according to the writ petitioners, excluding Masters in Geography from the basic educational qualification is arbitrary exercise on the part of the respondent State of Jharkhand and hence, this writ petition for declaring the provision as contained under Rule 4.2 of Jharkhand Town Planning Service (Recruitment, Promotion and other Conditions), Rules, 2014. 4. It has been contended on behalf of the writ petitioners that non-inclusion of Masters in Geography as minimum qualification for the post of Assistant Town Planner in pursuant to the Advertisement No.04/2020 notified by the Jharkhand Public Service Commission, is arbitrary. The non-observance of the prescribed basic educational eligibility provided by the Institute of Town Planners, India for the post of Assistant Town Planner by the respondent State of Jharkhand, is arbitrary. The respondents by not including the Masters Degree in Geography holding the qualification to be a Town Planner i.e., Master in Planning is absolutely arbitrary and discriminatory by which action the writ petitioners have been deprived from their chances for consideration for appointment to the said post. 5. Mr. Piyush Chitresh, learned A.C. to A.G. appearing for the State of Jharkhand has submitted that the advertisement in question has been published by the State of Jharkhand in exercise of power conferred under proviso to Article 309 of the Constitution of India and in supersession of all existing rules, orders and circulars made in this behalf and therefore, the said rule having its statutory force, cannot be said to be ultra-vires merely for the reason that subject Geography has not been included as one of the eligibility criteria. He submits that proviso to Article 309 of the Constitution of India confers power upon the State or the Center to formulate the recruitment rules in absence of any enactment made in this regard and in exercising the aforesaid power, the State Government has formulated the Rules, 2014 inserting therein the eligibility criteria which the State Government as per the policy decision, has thought it proper to fill up the post from such candidates who are having the eligibility criteria as prescribed under the provision of Rule 4.2. It has further been submitted that merely because the Institute of Town Planners, India (New Delhi) has made a communication to the State Government giving therein the suggestion that does not preclude the State Government to make out a rule without taking into consideration such suggestion in pursuant to the power conferred to the State under proviso to Article 309 of the Constitution of India as the State Government being the appointing body is to prescribe the eligibility criteria to fill up the post and same being the policy decision, it cannot be interfered with the Court of Law merely because one particular subject has not been inserted in the said rule. 6. Dr. Ashok Kumar Singh, learned counsel appearing for the Jharkhand Public Service Commission, in short ‘JPSC’, has submitted that the Commission being the appointing agency is to act upon on the basis of the rule framed by the State Government and when the requisition has been made along with the provision of the Rules, 2014 which contains the educational eligibility criteria to consider the candidature of one or the other candidate as provided under the provision of Rule 4.2, advertisement has been issued inviting application from such candidates who are having educational qualification as per the provision of Rule 4.2 and hence, the advertisement in question cannot be said to be arbitrary or illegal rather since it is based upon the provision of Rule, 2014, therefore, the advertisement cannot be questioned. 7. This Court has heard the learned counsel for the parties. 8. 7. This Court has heard the learned counsel for the parties. 8. The question of legality and propriety of the provision of Rule 4.2 as contained in Rules, 2014 is under challenge apart from other prayers i.e., to consider the candidature of the petitioners in recruitment of Assistant Town Planner vide Advertisement No.04/2020, for direction to accept the candidature by granting all the petitioners to submit their respective forms and also grant the petitioners with all consequential benefits thereof, for a direction in the form of mandamus upon the respondents for providing relaxation in the upper age limit to the petitioner no.2 for the direct appointment examination for Assistant Town Planner vide Advertisement No.04/2020 published by JPSC due to delay vacancy after a long gap, for a direction upon the respondents for bifurcation of total number of advertised posts on the basis of year of passing of the minimum educational qualification for applying for the direct appointment examination for Assistant Town Planner vide Advertisement in question and for a direction upon the respondents to keep four seats vacant/reserve for the petitioners until the adjudication of the instant writ petition. It requires to refer herein that all the prayers made in this writ petition from prayer no.1(ii) to (vi) is consequential to the relief sought for at paragraph-1(i) as because admittedly herein as per the prevalent rule 4.2 of Rules, 2014, the petitioners are not eligible and as such, so long the writ petitioners are not declared to be eligible by declaring the provision of rule 4.2 of the Rules, 2014 as ultra-vires, the other reliefs as sought for under para-1(ii) to (vi) cannot be granted. 9. In view thereof, we are proceeding to examine the validity of the provision of rule 4.2 of the Rules, 2014. Rule 4.2 of Jharkhand Town Planning Service (Recruitment, Promotion and other Conditions) Rules, 2014, which is under challenge having been appended as Annexure-1 to the paper book. 9. In view thereof, we are proceeding to examine the validity of the provision of rule 4.2 of the Rules, 2014. Rule 4.2 of Jharkhand Town Planning Service (Recruitment, Promotion and other Conditions) Rules, 2014, which is under challenge having been appended as Annexure-1 to the paper book. It is evident from the aforesaid rule notified on 04.03.2014 vide notification no.984 by the Government of Jharkhand, Urban Development Department in exercise of powers conferred under proviso to Article 309 of the Constitution of India and in supersession of all existing rules, orders and circulars made in this behalf, regulating recruitment and conditions of service of persons appointed on gazetted posts in the Town Planning Service (including gazetted posts of Town Planning in ULBs) in the Department of urban Development. The Cadre setup as per the aforesaid rule is that the service shall be under the administrative control of the Department of Urban Development. Under Chapter-2 thereof, the Source of recruitment has been stipulated, wherein under the provision of Rule 4.1, it provides that cent percent posts of Assistant Town Planner belonging to the basis grade shall be filled by direct recruitment. Such appointment shall be made on the recommendations of the Commission. Rule 4.2 provides that the educational qualification for appointment to the basic grade of Assistant Town Planner, wherein the minimum educational qualification has been provided which reads as hereunder : Name of Post Minimum Educational Qualification Graduation Master’s Degree Association Assistant Town Planner A (i) Architecture (ii) B. Planning (iii) Civil Engineering Master of Planning with specialization on any of the following:- (i) Urban Planning (ii) Transport Planning (iii) Housing (iv) Environmental Planning (v) Regional Planning Associate Membership of Institute of Town Planners, (India) New Delhi. It is evident from the educational qualification as quoted hereinabove that the minimum educational qualification is to be considered for a candidate at graduation level as also in Master’s level. In the graduation level, the candidate is to possess graduation in Architecture, B. Planning and Civil Engineering. At Master’s Degree level, the candidate requires to possess Master of Planning with specialization on any of the following:- (i) Urban Planning (ii) Transport Planning (iii) Housing (iv) Environmental Planning (v) Regional Planning A candidate is also required to be Associate Membership of Institute of Town Planners (India), New Delhi. At Master’s Degree level, the candidate requires to possess Master of Planning with specialization on any of the following:- (i) Urban Planning (ii) Transport Planning (iii) Housing (iv) Environmental Planning (v) Regional Planning A candidate is also required to be Associate Membership of Institute of Town Planners (India), New Delhi. The aforesaid rule has been enacted under the proviso to Article 309 of the Constitution of India. The proviso to Article 309 of the Constitution of India provides that 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. Thus, it is evident that the proviso to Article 309 of the Constitution of India empowers the President of India or the Governor of the State to frame rules etc. for providing the service conditions as transitory in nature if the Parliament or the State Legislature has not enacted the rule. Admittedly herein, the provision as contained under rule 4.2 of the Rules, 2014 is the content of rule framed by the State of Jharkhand under proviso to Article 309 of the Constitution of India. 10. Before proceeding with the matter first to test the legality and propriety of the provision of Rule 4.2 on the ground as has been agitated by the writ petitioner being discriminatory and arbitrary, we have thought it proper to consider the law laid down by the Hon’ble Apex Court for consideration by the Court of Law for interfering with the rules and declaring it ultra-vires. In this regard, the Hon’ble Apex Court in Supreme Court Employees’ Welfare Association v. Union of India and Another reported in (1989) 4 SCC 187 , at paragraph 100, has laid down that the validity of a subordinate legislation (whether made directly under the Constitution or a statute) is in question, the court has to consider the nature, objects and scheme of the instrument as a whole, and, on the basis of that examination, it has to consider what exactly was the area over which, and the purpose for which, power has been delegated by the governing law. Further, at paragraph 101 it has been laid down that rules are liable to be declared invalid if they are manifestly unjust or oppressive or outrageous or directed to an unauthorised end or violative of the general principles of the law of the land or so vague that it cannot be predicated with certainty as to what is prohibited by them or so unreasonable that they cannot be attributed to the power delegated or otherwise disclose bad faith. In the judgment rendered in the case of Kunj Behari Lal Butail and Others v. State of H.P. and Others reported in (2000) 3 SCC 40 , principle has been laid down as under paragraph 13 and 14 which read as under :- “13. It is very common for the legislature to provide for a general rule-making power to carry out the purpose of the Act. When such a power is given, it may be permissible to find out the object of the enactment and then see if the rules framed satisfy the test of having been so framed as to fall within the scope of such general power confirmed. If the rule-making power is not expressed in such a usual general form then it shall have to be seen if the rules made are protected by the limits prescribed by the parent act. (See: Sant Saran Lal v. Parsuram Sahu [ AIR 1966 SC 1852 : (1966) 1 SCR 335 ] , AIR para 19.)... … …. …. 14. If the rule-making power is not expressed in such a usual general form then it shall have to be seen if the rules made are protected by the limits prescribed by the parent act. (See: Sant Saran Lal v. Parsuram Sahu [ AIR 1966 SC 1852 : (1966) 1 SCR 335 ] , AIR para 19.)... … …. …. 14. We are also of the opinion that a delegated power to legislate by making rules “for carrying out the purposes of the Act” is a general delegation without laying down any guidelines; it cannot be so exercised as to bring into existence substantive rights or obligations or disabilities not contemplated by the provisions of the Act itself.” In the judgment rendered in the case of Additional District Magistrate (Rev) Delhi Admn v. Siri Ram reported in (2000) 5 SCC 451 , at paragraph 16 the Hon'ble Apex Court has held as under :- “16. It is a well-recognised principle of interpretation of a statute that conferment of rule-making power by an Act does not enable the rule-making authority to make a rule which travels beyond the scope of the enabling Act or which is inconsistent therewith or repugnant thereto. From the above discussion, we have no hesitation to hold that by amending the Rules and Form P-5, the rule-making authority has exceeded the power conferred on it by the Land Reforms Act.” In the judgment rendered in the case of State of T.N. and Another v. P. Krishnamurthy and Others reported in (2006) 4 SCC 517 , the Hon'ble Apex Court has held at paragraphs 15 and 16 which are quoted hereunder :- “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. (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). 16. The court considering the validity of a subordinate legislation, will have to consider the nature, object and scheme of the enabling Act, and also the area over which power has been delegated under the Act and then decide whether the subordinate legislation conforms to the parent statute. Where a rule is directly inconsistent with a mandatory provision of the statute, then, of course, the task of the court is simple and easy. But where the contention is that the inconsistency or non-conformity of the rule is not with reference to any specific provision of the enabling Act, but with the object and scheme of the parent Act, the court should proceed with caution before declaring invalidity.” 11. We, after going through the judgments referred hereinabove, have found from the ratio laid down therein that the Law can be declared to be ultra-vires if enacted having lack of legislative competence to make the subordinate legislation, violation of fundamental rights guaranteed under the Constitution of India, violation of any provision of the Constitution of India, failure to conform to the Statute under which it is made or exceeding the limits of authority conferred by the enabling Act, repugnancy to the laws of the land, that is, any enactment, manifest arbitrariness/unreasonableness (to an extent where the court might will say that the legislature never intended to give authority to make such rules) and further, the validity of a subordinate legislation is to be considered taking into consideration the nature, object and scheme of the enabling Act and then decide whether the subordinate legislation confirms to the parent statute. Where a rule is directly inconsistent with a mandatory provision of the statute, then, of course, the task of the court is simple and easy. Where a rule is directly inconsistent with a mandatory provision of the statute, then, of course, the task of the court is simple and easy. But where the contention is that the inconsistency or non-conformity of the rule is not with reference to any specific provision of the enabling Act but with the object and scheme of the parent act, the court should proceed with caution before declaring invalidity. Herein, the petitioner’s main contention for holding the provision of Rule 4.2 is arbitrariness and discriminatory. The plea of arbitrariness and discrimination has been taken on the ground that subject Geography has not been inserted as one of the educational qualifications which deprives the petitioners from the consideration zone for appointment. Such plea has been taken by taking aid of the letter written by the Institute of Town Planner, (India) New Delhi. It is evident from the material available on record that the advertisement has been issued by the Urban Development Department for appointment of Assistant Town Planner. The work of Assistant Town Planner is to render service in the Town Planning, the services shall be under the administrative control of Urban Development Department, and therefore, the educational qualification being minimum in nature has been inserted under the provision of Rule 4.2 as quoted above. 12. The State Government has thought it proper by taking a policy decision in this regard to consider the candidature of one or the other candidates, if a candidate is graduate in Architecture, B. Planning, Civil Engineering as also Masters of Planning with specialization on any of the following i.e., Urban Planning, Transport Planning, Housing, Environmental Planning and regional Planning with membership of Institute of Town Planners (India), New Delhi, meaning thereby, the policy makers has thought to appoint such candidate to achieve object and intent of the act by appointing Assistant Town Planners to render their services in the Town Planning Area, for which, minimum educational qualification has been provided as inserted under the provision of rule 4.2 of the Rules, 2014. The same decision has been taken by way of policy decision by the State Government to achieve the object and intent of the Act, 2014 by making appointment of Town Planners and the same being a policy decision is not required to be interfered with by the Court of Law as has been held by the Hon’ble Apex Court in the case of State of Jharkhand and Ors. v. Ashok Kumar Dangi and Ors. reported in (2011) 13 SCC 383 , wherein the case pertains to the amended eligibility condition by issuing a corrigendum to the effect that candidates with qualification of CPEd and DPEd would be considered only for the post of physical instruction teacher, the said instruction has been challenged on the ground that the candidates having CPEd and DPEd be also considered against all the vacancies of primary school teachers. The learned Single Judge dismissed the writ petition filed by the respondent. The Division Bench allowed the appeal with a direction upon the respondent State of Jharkhand to appoint the respondent and thereby the matter went before the Hon’ble Apex Court which held that the State Government must have liberty and freedom in framing policy. Considering the fact of the said case, it has been laid down that the candidates trained in teaching claim that the posts of primary school teachers be filled by them and physical trained candidates be considered for posts of physical trained teachers only as they in the absence of any training in education are not equipped to teach in primary schools, whereas physical trained teachers contend that they should be considered for appointment against both the posts. The Hon’ble Apex Court, by addressing on the issue, has laid down that these competing claims need to be addressed by the policy makers. In Bihar Public Service Commission & Ors. v. Kamini and Ors., (2007) 5 SCC 519 , the issue first fell for consideration before the learned Single Judge of Patna High Court pertaining to consideration of candidates who have participated in the process of selection, in pursuant to advertisement which contains the minimum qualification of B.Sc. Zoology with two years Diploma in Fisheries Science from Central Institute of Fisheries Education, Mumbai or a Graduate Degree in Fisheries Science (B.F.S.C.) from a recognized University or M.Sc. Zoology with two years Diploma in Fisheries Science from Central Institute of Fisheries Education, Mumbai or a Graduate Degree in Fisheries Science (B.F.S.C.) from a recognized University or M.Sc. (Inland Fisheries Administration & Management) with Zoology from the Central Institute of Fisheries Education, Mumbai and when the candidature of the candidate in the said case has not been considered due to lack of educational eligibility criteria, the matter went before the Patna High Court. The writ petition was dismissed by the learned Single Judge but that decision was reversed by the Division Bench in Letters Patent Appeal jurisdiction, against which, the Bihar Public Service Commission had approached to the Hon’ble Apex Court. At paragraph-5, the Hon’ble Apex Court was pleased to hold that if the eligibility educational criteria was B.Sc. Zoology, such person must have passed B.Sc. Zoology as principal/main subject and not a subsidiary or optional subject. 13. The writ petitioner has tried to impress upon the Court by taking aid the letter written by the Institute of Town Planners, (India) New Delhi but according to our considered view, the said suggestion cannot bind the State Government in formulating its own recruitment rules in exercise of power under the proviso to Article 309 of the Constitution of India as any suggestion even by the Institute of Town Planners, (India) New Delhi cannot construe to be binding upon the State Government. In this regard, it requires to refer herein that if the rule has been formulated by the State under the proviso to Article 309 of the Constitution of India even the executive instruction cannot overwrite such rule as has been held by the Hon’ble Apex Court in the case of Union of India & Ors. v. Shri Somasundram Viswanath & Ors. reported in AIR 1988 SC 2255 , wherein the Hon’ble Apex Court observed that if there is a conflict between executive instructions and the rules framed under the proviso to Article 309 of the Constitution of India, the rules will prevail. v. Shri Somasundram Viswanath & Ors. reported in AIR 1988 SC 2255 , wherein the Hon’ble Apex Court observed that if there is a conflict between executive instructions and the rules framed under the proviso to Article 309 of the Constitution of India, the rules will prevail. In the case in hand, the petitioner’s claim is for a direction of consideration of the suggestion made by the Institute of Town Planners which cannot be exceeded to because when the executive instruction under the provision of Article 166(3) of the Constitution of India cannot overwrite the rule framed under proviso to Article 309 what to say about a suggestion made by the Institute of Town Planners. 14. In view thereof, the reliance placed by the learned counsel for the petitioners upon the letter issued by the Institute of Town Planners is misconceived one, therefore, rejected. 15. This Court after taking into consideration the law laid down to show interference in the validity of an Statute or the subordinate legislation as referred hereinabove, is of the view that the petitioners have failed to make out a case for declaring the provision of rule 4.2 as invalid. 16. Accordingly, the relief sought for under paragraph-1(i), is hereby rejected. 17. In consequence thereto, the other reliefs prayed for in this writ petition, are also rejected. 18. In the result, the writ petition is dismissed. 19. In consequent to dismissal of this writ petition, I.A.No.4988 of 2020 stands disposed of.