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Swami Nath Nigam v. Union Of India & Others - WRIT - A No. 25769 of 2004 [2004] RD-AH 313 (14 July 2004)


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Swami Nath Nigam -------- Petitioner


Union of India & ors. ------- Respondents


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

Hon'ble Umeshwar Pandey, J.

This writ petition has been filed for seeking direction to the respondents to consider the petitioner for promotion in the I.P.S. Cadre exempting him from the upper age limit.

The facts and circumstances giving rise to this case are that petitioner was initially appointed in Uttar Pradesh Provincial Police Service in 1982. The date of birth of the petitioner as entered in the Service Book is 18th July, 1950. The petitioner joined as Dy. S.P. On 1st July, 1985 and was confirmed on 1.12.1988. He was granted the Selection Senior Grade of Dy. S.P. on 4.3.1991. He was promoted as Additional Superintendent of Police on 29.10.1994 and his service record is excellent. The petitioner's name finds place at sl. no. 120 in the Gradation List issued by the Department of Home, Uttar Pradesh, Secretariat, Lucknow in the year 2000. He is working at present as Additional S.P. (H.Q.), Uttar Pradesh Police Head Quarter, Allahabad. He claims to have been fully eligible and entitled for promotion for the I.P.S. Cadre in accordance with Rule 9 of the Indian Police Service (Recruitment) Rules, 1984 and Indian Police Service (Appointment by Promotion) Regulation 1955 (hereinafter called the Regulation 1955). The Regulation 1955 has enacted the age of retirement of I.P.S. officers as 58 years, which was enhanced upto 60 years by the Notification dated 13th May, 1998, issued by the Government of India. The Notification of the State Government also enhanced the age of retirement from 58 years to 60 years.  He has sent a representation for promotion, but no action has been taken in this regard so far. Hence this petition.

We have heard the learned counsel for the petitioner and Shri P.N. Rai, learned Standing Counsel appearing for the respondents and perused the record.

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."

More so, 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, as neither the Court can legislate, nor it has any competence to issue directions to the legislature to enact the law in a particular manner, no such direction can be issued.

The Court has no competence to issue a direction to the respondents to consider the case of the petitioner for promotion to I.P.S. Cadre contrary to law. (Vide Union of India & another Vs. Kirloskar Pneumatic Co. Ltd. (1996) 4 SCC 453; State of U.P. & ors. Vs. Harish Chandra & ors., (1996) 9 SCC 309; and Vice Chancellorl University of Allahabad & ors. Vs. 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., JT2002 (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."

The writ petition, therefore, stands dismissed.




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