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RAM SWAROOP AHIRWAR AND OTHERS versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Ram Swaroop Ahirwar And Others v. State Of U.P. And Others - WRIT - A No. 28012 of 2003 [2003] RD-AH 275 (8 August 2003)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

A.F.R.

RESERVED

COURT NO. 34

CIVIL MISC. WRIT PETITION NO. 28012 OF 2003

Ram Swaroop Ahirwar & ors. ------ Petitioners

 Vs.

State of U.P. & ors. ------       Respondents

 And

CIVIL MISC. WRIT PETITION NO. 28883 OF 2003

Dr. Phool Chandra Kharwar & ors. ------ Petitioners

  Vs.

State of U.P. & ors. ------                 Respondents.

______

Hon'ble Dr. B.S.Chauhan, J

Hon'ble D.P.Gupta, J.

(By Hon'ble Dr. B.S.Chauhan, J.)

These writ petitions have been filed for seeking direction to the respondents to consider the petitioners for appointments as Ayurvedic Medical Officer in pursuance to the Advertisement No. 1 of 2003-04 (Annex. ''6'), issued by the U.P.Public Service Commission exempting the petitioners from the upper age limit provided in the said Advertisement, or to grant relaxation in upper age limit for their consideration for the aforesaid post.

Facts and circumstances giving rise to the case are that an Advertisement dated 11.7.1996 was issued by the U.P.Public Service Commission inviting application for filling up 389 posts of Ayurvedic Medical Officers from amongst scheduled caste candidates or filling up the backlog of vacancies belonging to the said reserved category. Petitioners applied in pursuance of the said Advertisement and after completing selection in accordance with law their names were included in the select list published by the Commission on 9th June, 1997. However, no appointment letter could be issued to either of the successful candidates because of the interim order passed by this Court in Writ Petition No. 30542 of 1996, wherein the said Advertisement had been challenged as provided for 100% reservation for scheduled caste candidates . This Court vide judgment and order dated 20.5.1998 quashed the said Advertisement while allowing the writ petition and further directed to re-advertise the said vacancies. Being aggrieved some of the successful candidates approached the Hon'ble Supreme Court by filing the Special Leave petition No. 14567 of 1998 Satish Kumar & ors. Vs. State of U.P. & ors and the same was dismissed by the Hon'ble Apex Court by order dated 11.9.1998. The 81st Amendment Act 2000 was passed on 9th June, 2000 inserting Clause 4B in Article 16 of the Constitution providing procedure for filling up the backlog of vacancies for reserved categories. Vide impugned Advertisement dated 21/27th June, 2003, 481 posts of Ayurvedic Medical Officers have been advertised only for the scheduled caste candidates and it included 389 vacancies advertised on 11.7.1996. However, petitioners have become over-age and are not eligible to apply against the said Advertisement. Hence these petitions.

Shri Ashok Khare, learned Senior Advocate appearing for the petitioners has submitted that as the vacancies advertised vide impugned Advertisement includes the vacancies advertised earlier on 11.7.1996 and petitioner had been declared successful candidates therein, it is by the judgments and orders of the Courts that they could not be issued appointment letters and during this period they have become over-age, they cannot be deprived of their legitimate rights of being considered again against the vacancies advertised, particularly when the 81st Amendment of the Constitution had been brought to provide the procedure of filling up such vacancies. Recruitment in U.P.Governement Services (Age Limit) Rules, 1972 and Recruitment by U.P.Public Service Commission (Relaxation of Age Limit) Rules, 1992 (hereinafter called Rules 1972 and 1992) enable the Government to provide relaxation of age in individual case or for candidates of a particular category, the petition deserves to be allowed.

On the contrary, Shri S.P.Kesarwani, Learned Standing Counsel appearing for the respondents has submitted that the Division Bench of this Court while delivering the judgment dated 20.5.1998 quashed the Advertisement No. 1/96-97 and the said judgment has been affirmed by the Hon'ble Supreme Court dismissing the S.L.P. vide order dated 11.9.1998 and neither this Court nor Hon'ble Apex Court made an observation in favour of the petitioners that if the vacancies are re-advertised they may be given relaxation in age. Entertaining this petition would amount to reviewing the earlier judgment which is not permissible. More so, vacancies cannot be bifurcated year-wise and a candidate must possess the currently prescribed eligibility, including age etc. as on the last date of submitting the application forms as per the Advertisement. Rules 1972 and 1992 are not attracted in this case for the reason that the Rules under which the appointments are made, already have provided 5 years relaxation in age to the candidates belonging to scheduled caste. Petition is devoid of any merit and is liable to be dismissed.

We have considered the rival submissions made by the learned counsel for the parties and perused the record.

The contention raised by Shri Ashok Khare, Learned Senior Advocate appearing for the petitioners has been that because of the non-action of the State Government in not advertising the vacancies within reasonable time even after the order of the Hon'ble Supreme Court dated 11.9.1998 the petitioners have become over-age and have been deprived of their legitimate rights of being considered for the posts in question. Hence this Court must declare them eligible for the same or issue direction to the respondents to grant relaxation in age.

The issue involved herein was considered by the Hon'ble Apex Court in Jammu  & Kashmir Public Service   Commission  & Ors. vs. Dr Narendra  Mohan & ors (1994) 2 SCC 630,  wherein the Apex Court has observed as under:-

"It is difficult to accept the contention of  Shri Rao to adopt the chain system of recruitment  by  notifying each  year's vacancies  and  for  recruitment  of  the candidates found eligible for the respective  years. It would be  fraught with  grave consequences.  It is  settled law   that   the   Government  need   not immediately  notify vacancies as soon  as they  arose.   It  is open, as  early  as possible, to inform the vacancies existing or anticipated to the PSC  for recruitment  and  that every eligible person is entitled to apply for and to be considered  of his claim for  recruitment provided  he  satisfies   the  prescribed requisite  qualifications. Pegging  the recruitment in chain system would deprive all the eligible candidates as on date of inviting   application   for  recruitment offending Articles 14 and 16."

In  Union of India & Anr.  vs. Yogendra Singh 1994  (Suppl.)  2  SCC   226,  the  Hon'ble Supreme Court  has  held that the applicant  must possess the  requisite  qualification as per  the advertisement,  even if the vacancies have arisen prior to  the date of the advertisement.  In  the said judgment   the   Hon'ble   Apex  Court   has categorically held as under:-

"No candidate who does not possess  the currently prescribed qualification and he possess the qualification  prescribed earlier,  can be said to be qualified  or have any vested right to appointment even against  some earlier unfilled vacancies. Every  candidate, who aspires to fill any vacancy,  must  possess  the  educational qualification that are then prescribed."

No   candidate  has  a  right  to   claim appointment  as a matter of right though he has a right of  being  considered  on  the  post  being advertised  for the reason that selection process gets initiated  from  the  advertisement  itself.  Thus, the   contention  raised  by  the   learned counsel for   petitioner  in   this  respect   is rejected being preposterous.

Thus, in view of the above, the Advertisement cannot be  held  to  be bad only  on  the ground that it does not provide for age relaxation if the  examination   has  not  been conducted immediately after the order passed by this Court.

It  has been contended by Mr.  Khare  that in such an  eventuality, this Court must fill  up the gap and  issue  direction  to  consider  such candidates   to   be  eligible, and in the alternative,  the  Court must issue direction  to the respondents  to grant relaxation in age as per the Rules 1972 and 1992. We are afraid,  such contention is not acceptable for the reason  that the Court has no power to  issue any direction  in contravention of the  Statutory Rules.  The  Courts are meant to enforce the law,  therefore, they cannot issue any direction to any Authority not to act in accordance with law.

The  Court  has no competence to issue  a direction  contrary to law.  (vide Union of India & Anr. v.  Kirloskar Pneumatic Co.  Ltd.  (1996)  4 SCC 453;   State  of U.P.  & ors. v. Harish Chandra &  ors.,  (1996)  9 SCC  309;   and  Vice Chancellor,  University  of Allahabad & ors.,  v.  Dr.  Anand  Prakash Mishra & ors., (1997) 10  SCC 264).

In  State  of Punjab & ors. v. Renuka Singla &  ors.  (1994) 1 SCC 175, dealing with  a similar situation,   the  Hon'ble    Apex   Court observed as under:--

"We fail to appreciate as to how the High  Court  or  this Court can be generous  or  liberal  in issuing such directions which  in  substance  amount  to  directing  the  authorities  concerned  to violate  their  own statutory rules and regulations."    

Similarly, in  Karnataka   State   Road  Transport Corporation v.  Ashrafulla Khan & ors., JT 2002 (2)  SC  113, the Hon'ble Apex Court  has held as under:-

"The  High Court under Article 226 of the Constitution  is required to enforce rule of  law  and not pass order or  direction which  is  contrary  to   what  has  been injected by law."

It is also settled legal proposition that neither the  Court can legislate nor it can issue direction  to the State Government to legislate a law in a  particular manner.  At the most, if the Court comes  to the conclusion that a  particular provision  is ultra-vires or unconstitutional, it can simply   struck  down  the   same,  or  in  a particular  case, write down a particular law  to meet a particular  situation.  But these cases do not fall in that category.

In  Union  of  India  Vs.   Deoki  Nandan Aggarwal,  AIR  1992 SC 96, the  Hon'ble  Supreme Court observed as under:-

"It is not the duty of the Court  either to  enlarge  the scope of legislation  or the intention of the legislature when the nature  of  the  provision is  plain  and unambiguous. The Court cannot re-write, re-cast  or re-frame the legislation  for the very good reason that it has no power to legislate.  The power to legislate has not been conferred on the courts."

Moreso, the Court does not have the power to issue  a direction to the legislature to enact in a particular manner.

In  Mullikarjuna  Rao & ors.  etc.   etc. Vs. State  of Andhra Pradesh & ors., AIR  1990  SC 1251,  the  Hon'ble Apex Court has  held  that Writ Court,  in  exercise  of its  power under Article 226,  has no  power even  indirectly   require the  Executive to exercise its law-making power.  The  Court  observed that it  is  neither legal nor proper for the High Court to issue direction or advisory sermons to the Executive in respect of the sphere which is exclusively within the domain   of the Executive under the Constitution. The power under Article 309 of the Constitution  to  frame rules is the  legislative power.  This  power under the Constitution has to be exercised  by the President or the Governor of a State,  as the case may be.  The Courts  cannot usurp the  functions  assigned to  the  Executive under the Constitution and cannot even indirectly require the  Executive to exercise its law-making power in any manner.  The Courts cannot assume to itself a supervisory role over the rule-making power of  the Executive under Article 309 of  the Constitution.

While deciding the said case, the Hon'ble Court placed reliance  on  a  large  number  of judgments,  particularly  Narender Chand Hem  Raj Vs. Lt.   Governor, Union Territory,  Himachal Pradesh,  AIR  1971 SC 2399;  State  of  Himachal Pradesh Vs. the Parent of a Student of Medical College,  Shimla, AIR 1985 SC 910.  

In Asif Hamid Vs. State  of  Jammu  & Kashmir, AIR  1989  SC 1899, the Hon'ble Apex Court observed as under:-  

"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 matter of policy or to sermonize qua any matter which  under the Constitution lies within the sphere of Legislature or Executive."  

A Constitution Bench of the Supreme Court in Afzal  Ullah  Vs. State of Uttar Pradesh  & Anr., AIR  1964 SC 264, observed that validity of a subordinate  legislation  must  be  tested   by reference  to  the  question as  to  whether  the Authority  had  the power to provide for  such  a legislation.   Thus,  if  the Authority  has  the power of  fixing  the  eligibility  criteria,  no fault can   be  found  with   the  entry  in  the Schedule.

It is for the Government to prescribe the qualifications  laying  down the eligibility  and Court cannot  start probing the relevancy of  the same.  The Court cannot examine the wisdom, merit or efficacy of the policy of the legislature  to see whether  it  effectuates the purpose  of  the Act.  (Vide Maharastra State Board of Secondary & Higher Education  Vs.  Paritosh B. Sheth, AIR 1984 SC 1543).

In  V.K.   Sood Vs.  Secretary,  Civil Aviation  &  ors., AIR 1993 SC 2285, the  Hon'ble Supreme Court observed as under:-

"Thus,  it  would  be   clear  that,   in exercise  of the rule-making power, the President or  authorised person is entitled to prescribe method of recruitment, qualifications, both educational  as  well as technical, for appointment  or conditions of service  to an office or a post under the State.  The Rules, thus, having been made in exercise of  the  powers  under proviso  (2)  to Article  309  of the Constitution,  being statutory, cannot  be impeached on  the ground  that authorities have prescribed tailor-made  qualifications  to suit  the stated  individual.....Suffice  to  state that  it  is settled law that no  motives can  be attributed to the legislature  in making   law.    The Rules   prescribe qualifications  for  eligibility and  the suitability  of appellant would be tested by    the     Union Public Service Commission......  Moreover, it is for the rule-making   autholrity  or for the legislature  to  regulate the method  of recruitment,  prescribe    qualifications etc. It is open to the President or the authorised  person to undertake such exercise and that necessary test  should be  conducted  by  the  U.P.S.C.   before giving  certificates to them.  It is not the  province of the Court to trench into and prescribe qualifications    in particular  when matters are of technical nature."

In District Mining Officers & ors. Vs. Tata Iron & Steel Co. & anr.,  (2001) 7 SCC 358, the Hon'ble Supreme Court held that function of the Court is only to expound the law and not to legislate.

Similarly in Employees Welfare Association Vs. Union of India, (1989) 4 SCC 187 the Hon'ble Supreme Court held that Court cannot direct the legislature to enact a particular law for the reason that under the constitutional scheme the Parliament exercises sovereign power to enact law and no outside power or authority can issue a particular piece of legislation.

Similar view has been reiterated in State of Jammu & Kashmir Vs. A.R. Zakai & ors., AIR 1992 SC 1546; and A.K.Roy Vs. Union of India, 1982 SC 710.

In Union of India Vs. P. Hinduja & anr., JT (2003)5 SC 300 the Hon'ble Supreme Court held that if the Court issues a direction which amounts to legislation and is not complied with by the State, it cannot be held that the State has committed the Contempt of Court for the reason that the order passed by the Court was without jurisdiction and it has no competence to issue a direction amounting to legislation.

Thus in view of the above, the Court has a very limited role and in exercise of that, it is not open to have judicial scrutiny regarding the qualifications/eligibility prescribed by the Rules. Neither the Court can legislate, nor it has any competence to issue directions to the legislature to enact the law in a particular manner. Therefore, in view of the above, no such direction can be issued.

There is another aspect of the matter. This Court while allowing the petition earlier and quashing the Advertisement vide judgment and order dated 20.5.1998 did not issue a direction to grant relaxation to those who had been successful candidates in the earlier selection or for those who had been considered for the last selection. When the matter went before the Hon'ble Supreme Court petitioners did not make any attempt to get such a direction. Issuing any direction providing the relaxation today would amount to reviewing the earlier judgment of this Court which is not permissible as the matter had been adjudicated upon before the Hon'ble Apex Court.

In M/S Kabari Pvt Ltd. Vs. Sheo Nath Sharoff & ors., AIR 1996 SC 742 the Court held that application for review cannot be entertained by a court if the party had approached a superior Court.

Similar view has been reiterated by the Hon'ble Apex Court in Gopabandhu Biswal Vs. Krishna Chandra Mohanti & ors. (1998) 4 SCC 447; State of Maharashtra Vs. Prabhakar Bhikaji Ingle, (1996) 3 SCC 463; Sree Narayana Dharamasanghom Trust Vs. Swami Prakashnanda, (1997) 6 SCC 78; K. Ajit Babu Vs. Union of India & ors.; Raj Kumar Sharma Vs. Union of India, (1995) 2 Scale 24; and Abbai Maligai Partnership Firm & anr. Vs. K. Santhakumaran & ors., (1998) 7 SCC 386.

Thus in view of the above it is not permissible for this Court to review the earlier judgment of this Court or sit in appeal and over the same issue the directions sought by the petitioners.

So far as the relaxation of age under the Rules 1972 and 1992 is concerned, undisputedly there is already a relaxation of 5 years to the class as a whole i.e., the candidates belonging to the scheduled castes. Asking the State to grant further relaxation would be unreasonable and being arbitrary may fall within the ambit of Article 14 of the Constitution for the reason that there may be a case where relaxation may be granted to different categories. For example, 5 years' relaxation in age for being a woman and 5 years' relaxation being in some other Government service. Therefore, the question does arise as to whether a female candidate can claim all the three benefits of relaxation and ask the authorities to permit her to face the selection process giving her relaxation of 15 years of age. Such a relaxation would be unwarranted and impermissible. As the petitioners have already been granted five years' relaxation in age in general, it is difficult to be in agreement with them. Nor the State Government can be asked to grant further relaxation to them in such an eventuality.

To sum up, the petitioners under the law are not found entitled for any further relaxation over and above of 5 years in age as provided in the Rules. Candidates are required to possess the currently prescribed qualification. In view of the fact that the Court cannot direct to legislate or act in contravention of law, no relief can be granted to the petitioners.

Thus in view of the above, we are of the opinion that petitions have no force and are accordingly dismissed. There shall be no order as to costs.

8.8.2003

AKSI


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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