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Gujarat High Court · body

2020 DIGILAW 34 (GUJ)

Rajendra Shivrambhai Patel v. State Of Gujarat

2020-01-09

A.J.SHASTRI, VIKRAM NATH

body2020
ORDER : A.J. SHASTRI, J. 1. Present petition under Article 226 of the Constitution of India is filed by some 15 petitioners for challenging the legality and validity of Rule 2 and 4 of the Recruitment Rules of Deputy Director of Animal Husbandry (Class-I) cadre prescribed by virtue of Notification dated 31.7.2018. 2. The premise on which the aforesaid Rules are challenged, is that the petitioners are the Veterinary Doctors presently working either as Veterinary Officer or Assistant Director in the Animal Husbandry as Class II officers or Deputy Director/Joint Director of Animal Husbandry as Class I officers. According to the petitioners, the prevailing Recruitment Rules and governing the posts, were from 2.5.1989. Under these for the purpose of promotion from Class-II officer to Class-I officer, minimum experience of not less than 8 years in Gujarat Animal Husbandry Class II Service was required for direct appointment as a Class I officer where a minimum educational qualification was a bachelor degree in Veterinary Science and Animal Husbandry. Rule 2(a) and Rule 3(b)(i) and (ii) prescribed such position, according to the petitioners. These posts of Veterinarians have been divided into various classes, whereby under Class II service, there are two posts; one is that of a Veterinary Officer and the other is that of an Assistant Director of Animal Husbandry. In Class I cadre, there is a post titled as Deputy Director of Animal Husbandry. The old Recruitment Rules were notified for the post of Deputy Director on 2.5.1989, prescribing the eligibility criteria for qualification and experience. According to the petitioners, new Rules have been framed effecting a change in the said criteria, which, if granted would be a minimum experience of 13 years comprising 5 years minimum experience as Veterinary Officer, for the purpose of promotion to the post of Assistant Director. Another 8 years minimum experience in the cadre of Assistant Director of Animal Husbandry (Class II) will be required for further promotion. So, this has caused an adverse effect on the promotional avenue and prospect of petitioners resulting in the filing of present petition, seeking following reliefs : “(A) Your Lordships may be pleased to admit and allow the present Special Civil Application. So, this has caused an adverse effect on the promotional avenue and prospect of petitioners resulting in the filing of present petition, seeking following reliefs : “(A) Your Lordships may be pleased to admit and allow the present Special Civil Application. (B) Your Lordships may be pleased to quash and setaside the Rule No.2 and 4 of the Recruitment Rules of Deputy Director of Animal Husbandry Class I cadre, dated 31.7.2018 notified by Agriculture, Farmer Welfare and Cooperation Department, Sachivalaya, Gandhinagar as the same are unreasonable and violative Article 14 and 16 of the Constitution of India. (C) Your Lordships may be pleased to quash and setaside the advertisement published by the Gujarat Public Service Commission vide advertisement No.111/2019-20 for the purpose of appointment of the Class I officer in Animal Husbandry Department. (D) Pending hearing and final disposal of the present petition, Your Lordship may be pleased to stay the operation of the Rule No.2 and 4 of the Recruitment Rules pertaining to Deputy Director of Animal Husbandry Class I cadre, dated 31.7.2018 notified by Agriculture, Farmer Welfare and Cooperation Department, Sachivalaya, Gandhinagar. (E) Pending hearing and final disposal of the present petition, Your Lordship may be pleased to stay the implementation and operation of the advertisement issued vide advertisement No.111/2019-20 on 26.12.2019. In the alternative: Pending hearing and final disposal of the present petition, Your Lordship may be pleased to direct the Respondent authority to accept the application forms on behalf of the present petitioners and other eligible candidate of the department as per the old Recruitment Rules and allow them to appear in the exam to be conducted by the Respondent Authority. (F) Pass any such and further order as Your Lordships may deem fit, just and proper in the interest of justice.” 3. Shri Gautam M. Joshi, learned Senior Counsel, assisted by Shri D.R.Bhatt, learned counsel for the petitioners, has submitted that because of these new Rules, indirectly the minimum experience is prescribed and required at 13 years. Instead of the original 8 years, now, for the purpose of promotion to Class I post, 13 years would be the minimum base prescribed. Additionally, it has also been asserted that the post of Assistant Director in Class II cadre is purely a promotional post. Instead of the original 8 years, now, for the purpose of promotion to Class I post, 13 years would be the minimum base prescribed. Additionally, it has also been asserted that the post of Assistant Director in Class II cadre is purely a promotional post. Though the department has notified the Recruitment Rules for the said post, neither any direct appointment has been made so far nor any advertisement qua the same was circulated in the past. It has further been submitted that as per factual scenario, the cadre strength for the purpose of Veterinary Officer and that of Assistant Director, one gets promoted only after putting 15 to 20 years in service. To substantiate, it has also been asserted that total number of vacancies are 800 for the post of Veterinary Officer and there are only 266 vacancies for the post of Assistant Director and only 101 vacancies for the post of Deputy Director. The chances of attaining a higher position become bleak by virtue of the introduction of new Rules. 3.1 Shri Joshi has further contended that the new Recruitment Rules seem to have no nexus for the purpose sought to be achieved since a more experienced candidate would never get a chance to serve as a Class I officer. It has also been contended that the Authority has made stringent rules for promotion. Through a bare perusal of the new Recruitment Rules, it would appear that a postgraduate degree in any branch of Veterinary Science and Animal Husbandry or Animal Husbandry and Veterinary Science has been made a minimum educational qualification to be eligible for appointment by direct selection. The old Recruitment Rules prescribed only a bachelor’s degree by way of educational qualification. According to Shri Joshi, this prescription of postgraduate degree as eligibility criteria, is nothing but a clear example of arbitrary exercise of power with non-application of mind. It has further been contended that the Class I officer’s post, on looking at its job chart, appears to be merely administrative in nature and requires no specialized knowledge as compared to a person who is holding a bachelor degree. By referring to the job chart, it has been contended that enhancing the criteria of minimum educational qualification, is nothing but a sheer non-application of mind. By referring to the job chart, it has been contended that enhancing the criteria of minimum educational qualification, is nothing but a sheer non-application of mind. Shri Joshi has further contended that there are several States in the country where this minimum qualification requirement is not visible for the post of Deputy Director in Class I cadre. These present Rules under challenge are not in consonance with the Recruitment Rules of any other States, either? It has been further contended that in the present Government, there are several departments like R & B, Social Justice and Empowerment, Science and Technology, etc. where for direct appointment as a Class I cadre, a minimum qualification for appointment is a bachelor degree and not a postgraduate degree. Therefore, these Rules under challenge are not on the touchstone of Article 14 of the Constitution of India. According to Shri Joshi, on the contrary, a bachelor degree in the said field includes an extensive educational program of 5 and 1/2 years and subjects taught in the bachelor curriculum are sufficient to perform the task under this job chart for the post in question. These Rules under challenge are arbitrary, irrational and ultra vires Article 14 of the Constitution of India. Hence, a request is made to grant the relief prayed for in the present petition by declaring the same being violative of Articles 14 and 16 of the Constitution of India. No other submissions have been made. 4. At this stage, before dealing with this controversy, we put a straight question to the learned Senior Counsel as to whether this change has been made with any malafide intent or to accommodate somebody through nepotism, having position in the Government. To this, Shri Joshi has fairly and candidly submitted that there is no such malafide intent asserted or alleged in the petition and is not the case of the petitioners as well. With this background, we may now examine the controversy posed before us. 5. First of all, the Rules in question which are under challenge are Rule 2 and 4 of the Recruitment Rules prescribed in Notification dated 31.7.2018. Through a bare perusal of this Notification, it would appear that the same is prescribed in exercise of powers conferred by the proviso to Article 309 of the Constitution of India. 5. First of all, the Rules in question which are under challenge are Rule 2 and 4 of the Recruitment Rules prescribed in Notification dated 31.7.2018. Through a bare perusal of this Notification, it would appear that the same is prescribed in exercise of powers conferred by the proviso to Article 309 of the Constitution of India. In supersession of all Rules made in this behalf, the aim is to regulate the recruitment to the post of Deputy Director of Animal Husbandry, Class I. So these are Rules framed under Article 309 of the Constitution of India and their effect is akin to rule making function, which is legislative in nature. Hence, the Rules which made in exercise of power under the proviso to Article 309 of the Constitution of India constitute a law. Further, the effect of framing of new Rules is undisputedly within the domain of State Authority and it is not alleged that the State Authority has no domain to frame them. So, the only question which is left for the Court to examine is the limitating effect of the Rules under challenge. 6. In the aforesaid context, we have noticed that there is no malafide intent, no malice is alleged nor is prescription of ratio between direct selection and promotion under challenge. Since the relief is with regard to Rule 2 and 4 only, it can be seen from the notification in question, that the wisdom of the Authority has taken care of and struck a balance between direct recruitment and the promotion for the purpose of filling up the post. The major submission is based on the effect that the chances of promotion would be bleak for Class I post for these petitioners. As said earlier, this aspect is well within the domain of the State Authority which has been taken care of for the simple reason that the ratio of 1:3 is also prescribed. So, the anxiety of the petitioners cannot be stretched to that effect that the Rules themselves are violative of Article 14 of the Constitution of India. On the contrary, the ratio itself is a direct answer to the grievance voiced by the petitioners. 7. Apart from that, which qualificatory/eligibility criteria is to be prescribed depends on the situation and the circumstance and the need for which is found by the Authority in its wisdom. On the contrary, the ratio itself is a direct answer to the grievance voiced by the petitioners. 7. Apart from that, which qualificatory/eligibility criteria is to be prescribed depends on the situation and the circumstance and the need for which is found by the Authority in its wisdom. The Courts, under the guise of judicial review, cannot usurp such function of the Authority. We are of the opinion that in the absence of any malafides or in the absence of lack of competence, we are not inclined to exercise our writ jurisdiction, particularly when these Rules are framed in exercise of proviso to Article 309 of the Constitution of India and in supersession of earlier Rules. The aspect of hardship and limited promotional avenues are not circumstances by virtue of which it may be held that the Rules are ultra vires the Constitution of India. On the contrary, in catena of decisions, this role of the Courts under judicial review is well propounded which can be seen from observations made in decisions delivered by the Apex Court. Ofcourse, the Courts powers are not that circumscribed that if a patent irrationality or arbitrariness is visible then also the Court cannot interfere. In fact, we see no such situation here which may prompt us to exercise our jurisdiction. 8. Since the Rules are framed in legislative competence of the State Authority, we refrain from exercising our writ jurisdiction, particularly since we see no arbitrariness or any violation of Articles 14 and 16 of the Constitution of India. Following are some of the observations which may not permit us to examine the issue any further. The Apex Court has, in the case of State of Himachal Pradesh & Ors. v. Satpal Saini, reported in (2017) 11 SCC 42 , observed in Para.6 and 9, thus; “6. The grievance, in our view, has a sound constitutional foundation. The High Court has while issuing the above directions acted in a manner contrary to settled limitations on the power of judicial review under Article 226 of the Constitution. A direction, it is well settled, cannot be issued to the legislature to enact a law. The power to enact legislation is a plenary constitutional power which is vested in Parliament and the state legislatures under Articles 245 and 246 of the Constitution. A direction, it is well settled, cannot be issued to the legislature to enact a law. The power to enact legislation is a plenary constitutional power which is vested in Parliament and the state legislatures under Articles 245 and 246 of the Constitution. The legislature as the repository of the sovereign legislative power is vested with the authority to determine whether a law should be enacted. The doctrine of separation of powers entrusts to the court the constitutional function of deciding upon the validity of a law enacted by the legislature, where a challenge is brought before the High Court under Article 226 (or this Court under Article 32) on the ground that the law lacks in legislative competence or has been enacted in violation of a constitutional provision. But judicial review cannot encroach upon the basic constitutional function which is entrusted to the legislature to determine whether a law should be enacted. Whether a provision of law as enacted subserves the object of the law or should be amended is a matter of legislative policy. The court cannot direct the legislature either to enact a law or to amend a law which it has enacted for the simple reason that this constitutional function lies in the exclusive domain of the legislature. For the Court to mandate an amendment of a law as did the Himachal Pradesh High Court is a plain usurpation of a power entrusted to another arm of the state. There can be no manner of doubt that the High Court has transgressed the limitations imposed upon the power of judicial review under Article 226 by issuing the above directions to the state legislature to amend the law. The government owes a collective responsibility to the state legislature. The state legislature is comprised of elected representatives. The law enacting body is entrusted with the power to enact such legislation as it considers necessary to deal with the problems faced by society and to resolve issues of concern. The courts do not sit in judgment over legislative expediency or upon legislative policy. This position is well settled. Since the High Court has failed to notice it, we will briefly recapitulate the principles which emerge from the precedent on the subject. 9. The courts do not sit in judgment over legislative expediency or upon legislative policy. This position is well settled. Since the High Court has failed to notice it, we will briefly recapitulate the principles which emerge from the precedent on the subject. 9. Similarly, in Supreme Court Employees’ Welfare Association v. Union of India, (1989) 4 SCC 187 this Court held that a court cannot direct the legislature to enact a particular law. This is because under the constitutional scheme, Parliament exercises a sovereign power to enact law and no other authority can issue directions to frame a particular piece of legislation. This principle was reiterated in State of Jammu & Kashmir v. A.R. Zakki & Ors., 1992(1) S.C.T 499 : AIR 1992 SC 1546 where this Court observed that : “10. ...A writ of mandamus cannot be issued to the legislature to enact a particular legislation. Same is true as regards the executive when it exercises the power to make rules, which are in the nature of subordinate legislation. Section 110 of the J & K Constitution, which is on the same lines as Article 234 of the Constitution of India, vests in the Governor, the power to make rules for appointment of persons other than the District Judges to the Judicial Service of the State of J & K and for framing of such rules, the Governor is required to consult the Commission and the High Court. This power to frame rules is legislative in nature. A writ of mandamus cannot, therefore, be issued directing the State Government to make the rules in accordance with the proposal made by the High Court.” In V.K. Naswa v. Union of India, (2012) 2 SCC 542 this Court referred to a large number of decisions and held that : “18. Thus, it is crystal clear that the court has a very limited role and in exercise of that, it is not open to have judicial legislation. Neither the court can legislate, nor has it any competence to issue directions to the legislature to enact the law in a particular manner.” 10. The Apex Court, in yet another decision, in the case of Binoy Viswam v. Union of India & Ors., reported in (2017) 7 SCC 59 , has propounded that the Court cannot question the wisdom of the Legislature in enacting a legislation. The Apex Court, in yet another decision, in the case of Binoy Viswam v. Union of India & Ors., reported in (2017) 7 SCC 59 , has propounded that the Court cannot question the wisdom of the Legislature in enacting a legislation. The judicial review of administrative act is different from review of legislative enactment. The limited grounds on which the Court can strike down a law are stated as a lack of legislative competence or if the same contravenes fundamental rights or constitutional guarantees and here we see no such reasons in existence. As a result of this, we are not inclined to exercise our writ jurisdiction to set at naught the Rules, precisely Rule 2 and 4, of the new Rules which have been framed. 11. Shri Joshi has emphasized that in other departments and the other States, the requirement of eligibility criteria is not similar to the present Rules and, therefore as well, the Rules in question are not in consonance with the same. We may observe that each State will have its own situation and background to be dealt with. The situation which has been prescribed here, may not be the situation prevailing in other States. Hence, in the absence of any equality being pointed out, we are not impressed by such submission made by Shri Joshi. In the limited sphere of extraordinary jurisdiction, we would not like to venture such application of submission. As a result of which, no case is made out by the petitioners. 12. We may further observe that this exercise of framing of Rules has been undertaken by a particular methodology where after considering the object and the reasons for such prescription, the enactment has been effected. We are not inclined to interfere with the challenge made in the petition, to substitute our views in absence of any better material, in the petition. 13. We have also noticed that the Authority has not completely prohibited the class of petitioners from being further promoted to the post of Class I category. On the contrary, an adequate and proper unchallenged ratio is prescribed in the new Rules, which can be seen from Rule 3, which is not under attack by the petitioners. We are unable to examine the matter further and the petition is found to be not entertainable. 14. On the contrary, an adequate and proper unchallenged ratio is prescribed in the new Rules, which can be seen from Rule 3, which is not under attack by the petitioners. We are unable to examine the matter further and the petition is found to be not entertainable. 14. At this juncture, a judgment has been tried to be pressed into service by Shri Joshi which is reported in 1994 (0) GLHELSC-31515. By referring to observations made in Para-23, a contention is raised that these Rules under challenge, precisely Rule 2 and 4, are not on the touchstone of Article 14 of the Constitution of India. We have seen the said decision and considered the circumstances under which the Apex Court made such proposition. Having found that circumstances and the background of facts are altogether different, we are not in a position to straightaway apply the observations pointed out by Shri Joshi as a straitjacket formula, more particularly when the recent trend and the observations contained in 2017 decisions delivered by the Apex Court has propounded, in more specific. 15. As a result of this, the petitioners have not been able to make out any case to call for any interference. As a result of this, the present petition stands dismissed with no order as to costs.