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Swami Nath Nigam v. Union Of India & Others - WRIT - A No. 25769 of 2004  RD-AH 313 (14 July 2004)
COURT NO. 34
CIVIL MISC. WRIT PETITION NO.25769 OF 2004
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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