Rajasthan High Court - Jaipur
Kaushal Kishor Sharma And Ors vs State Of Raj And Ors on 3 October, 2018
Bench: Mohammad Rafiq, Goverdhan Bardhar
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Civil Writ Petition No. 9258/2018
1. Kaushal Kishor Sharma S/o Sh. Chuttan Lal Sharma, age
45 years, R/o 121/161, Vijay Path, Mansarovar, Jaipur.
2. Anjani Kumar Vashistha, S/o Sh. Rameshwar Prasad
Sharma, age about 39 years, R/o 99 Goving Nagar, Oppsite
Sanganer Airport, Jaipur.
3. Bhoopesh Kumar Shisodia, S/o Late Sh. Lakhmi Chand
Shisodia, age about 29 years, R/o 63, Shri Ganesh Colony,
80 Feet Road, Mahesh Nagar, Jaipur.
4. Mohan Lal Sharma S/o Late Sh. Santosh Kumar Sharma,
age about 35 years, R/o C-11, Mahaveer Nagar, Sanganer,
Jaipur.
5. Ashok Kumar Gupta S/o Sh. Rameshwar Prasad Gupta,
aged about 27 years, R/o Via Post Bairada, Tehsil
Bamanwas, District Sawaimadhopur.
6. Girraj Kishor Mangal S/o Sh. Jay Chand Mangal, aged about
35 years, R/o Ramshala Chowk, Bonli, District
Sawaimadhopur.
7. Sunita Chahar W/o Sh. Sohan Singh, aged about 40 years,
R/o Shree Gift House Lata Gali Udai Mode, Gangapur City,
Karauli.
8. Hanuman Sharan Sharma S/o Sh. Nathu Lal Sharma, aged
about 36 years, R/o Udai Mod Lata House Gali Government
School Ke Pass, Gangapur City, Karauli.
9. Shiv Prasad Gupta S/o Sh. Rambharosi Deewan, aged
about 36 years R/o V/P Inayati, Tehsil Sapotra, District
Karauli.
----Petitioners
Versus
1. The State Of Rajasthan through Joint Secretary To The
Government Of Rajasthan, Revenue (Group-6) Department,
Secretariat, Jaipur.
2. The Board Of Revenue through Registrar, Ajmer
3. District Collector, Jaipur
Respondents
(2 of 17) [CW-9258/2018]
4. Gopal Singh S/o Shri Girwar Dan Singh, age about 44 years, Resident of 2/69, SFS Agarwal Farm, Mansarover, Jaipur.
5. Yatender Singh S/o Shri Mahendra Singh, aged about 42 years, by Caste Rajput, Resident of Mahmadpura, Tehsil Pahari, District Bharatpur at present Residing Flat No. 302, Srinath Towar, Budh Vihar, Jagatpura, Jaipur.
6. R M Gautam S/o Shri Basant Kumar, aged about 52 years, by Caste Brahmin, R/o 1/198, S.F.S. Agarwal Farm, Mansarover, Jaipur.
7. Girraj Prasad Sharma S/o Shri Devikinandan Sharma, aged about 54 years, Resident of 97 Sumer Nagar, N.S. Road, Mansarover, Jaipur.
8. Raju Kumar Dhakar S/o Sohan Lal Dhakar, aged about 45 years, Resident of 84/111 India Bank Wali Gali, Agarwal Farm, Mansarover, Jaipur.
9. Syonath Singh S/o Raghu Ram Dhakha, by Caste Jat, aged about 47 years, R/o VPO Anokhi, District Sikar (at present Patwari, UIT Sikar).
10. Ayub Ali S/o Noor Mohammed Shekh, by Caste Musalman, aged about 53 years, R/o VPO Chirana, District Jhunjhunu (at present Malkeda, District Sikar).
11. Gopal Ram Maharshi S/o Sanwar Mal, by Caste Brahmin, aged about 49 years, R/o VPO Beri, Via Kudan, District Sikar (at present Patwari, UIT Sikar).
Private Respondents No. 4 to 11
For Petitioner(s) : Dr. Saugath Roy For Respondent(s) : Shri D.V. Tholia, AAG with Shri Himanshu Tholia, Shri Vijay Pal, Shri Varun Choudhary, Shri Sajit Jakhar, Shri Anoop Dhand, Shri Lalit Sharma, Shri B.B.L. Sharma & Shri R.P. Saini HON'BLE MR. JUSTICE MOHAMMAD RAFIQ HON'BLE MR. JUSTICE GOVERDHAN BARDHAR REPORTABLE Judgment 03/10/2018 (PER HON'BLE MOHAMMAD RAFIQ, J.) (3 of 17) [CW-9258/2018] This writ petition has been filed by nine writ petitioners, who were all working on the post of Patwari in different districts of the Jaipur Division of the State of Rajasthan. The petitioners have assailed the validity of the amendment notification dated 12.10.2017, whereby the Rajasthan Land Revenue (Land Records) (Second Amendment) Rules, 2017 were promulgated, whereby Rule 171 and Rule 301 of the Rajasthan Land Revenue Act, 1956, were amended. Their grievance is mainly directed against the substitution of the earlier Rule 301 by the new one. The effect of the substituted amendment is that in earlier Rule 301, the promotion of Patwaris to the post of Land Record Inspector used to be made on the basis of interlaced seniority list of districts of a particular division at the division level for preparing the zone of consideration for promotion. Now as per the Amended Rule of 301, the Board of Revenue has been required to prepare the seniority list of Patwaris of Revenue and Land Record Department at State level, which would form basis for their promotion.
Dr. Saugath Roy, learned counsel for the petitioners, has submitted that petitioner nos.1 and 2 were appointed as Patwari in the year 2000, petitioner no.3 in 2001, petitioner no.4 in 2002 and petitioner nos.5 to 9 were appointed in the year 2011 and till date they have not been granted promotion. The respondents initiated the proceedings for promotion for the vacancies of the year 2017 and 2018 of the Jaipur Division in which considering the number of vacancies, the petitioners fell within the zone of consideration and were hopeful of getting promotion. However, due to the amendment carried out by the respondents suddenly for preparation of State-wise seniority, the very basis of preparing the zone of consideration has been changed. In the State wise (4 of 17) [CW-9258/2018] seniority now prepared as per the new Rule, name of the petitioners has been pushed down vis a vis the Patwaris of other divisions. Because of the amendment in the second proviso to clause (ib) of Rule 9, the seniority position settled earlier will be unsettled and juniors will be made seniors.
It is argued that earlier when the seniority list of each district was prepared separately, many Patwaris who sought transfer on their own request from one District to another were placed in the bottom of seniority, but now because of the State level seniority, they have regained the original placement in the seniority thereby prejudicing the right of the petitioners to claim promotion earlier than them. The impugned amendment would have huge adverse impact on the petitioners in that some of their juniors now when their names are reflected in State wise seniority list would be senior to them. Similarly, some of those who in State seniority were liable to be placed below them in State seniority list, yet because they have got promotion earlier as per the earlier criteria would continue to occupy the higher posts and the petitioners would be compelled to work under them. It is argued that the implementation of the Rule by the respondents in the mid of the year would take away the vested right of the petitioners inasmuch as some of the incumbents, who are on the verge of retirement would stand deprived of promotion forever. It is contended that after amendment made on 12.07.2017 from the Districts like Barmer, Jaisalmer and Jodhpur around 100 Patwaris have been transferred to Jaipur on their own request, though they as per the earlier rules were liable to be given seniority.
Dr. Saugath Roy, learned counsel for the petitioners has submitted that when similar amendment was made by the (5 of 17) [CW-9258/2018] respondent-State in Rule 171A of the Rules of 1957 vide notification dated 8.10.2014, the Department of Personnel, refused to give retrospective effect and applied the same prospectively for the purpose of further promotion of Patwaris on the post of Inspector Land Records. However, in the case of the petitioners, the respondents are taking contrary interpretation in similar situation. The argument of the learned counsel for the petitioners is that as per the Department of Personnel instructions, the eligibility of the incumbent for promotion is required to be considered with reference to 1st April, 2017, on which date the petitioners were in the zone of consideration and the process for promotion had also been initiated by the office of Divisional Commissioner, Jaipur. The respondent, however instead of convening the DPC of the year 2017-18 under the unamended Rules for the post of Inspector Land Records issued letters to all Collectors of Districts calling for the record to finalise the common seniority list on the basis of joining for the entire State of Rajasthan. It is argued that right of the petitioners to consideration for promotion would be seriously jeopardised as now they would go downwards in the State level seniority in comparison to their position in seniority of the respective divisions. While the Rules requires the eligibility of 1 st April, 2017 to be considered for the purpose of promotion, yet the respondents are seeking to apply the amended Rules, which would tantamount to giving retrospective effect to such Rules. The action of the respondents is wholly illegal and arbitrary.
Learned counsel argued that the right to consideration for promotion ought to be treated as fundamental right enshrined in Part-III of the Constitution of India as held by the Supreme Court (6 of 17) [CW-9258/2018] in Major General H.M. Singh vs Union of India-(2014) 3 SCC 670. In support of his arguments, learned counsel has relied on judgements of the Supreme Court in Y.V. Rangaiah vs. Sreenivasa Rao-(1983) 3 SCC 284, Kulwant Singh & Ors. vs. Daya Ram- (2015) 3 SCC 177, Union of India vs. Asian Foods-(2006) 13 SCC 542 and Commissioner of Income Tax vs. Sarkar Builders-(2015) 7 SCC 579.
Shri D.V. Tholia, learned Additional Advocate General for respondent-State has opposed the writ petition and submitted that the amendment in question has been carried out due to the persistent demand of the Rajasthan Patwar Sangh and other organisations and reason for this amendment is that Patwaris in some of the Districts / Divisions were getting promotion to the post of Inspector Land Records relatively earlier than their counter parts in other Districts/Divisions. Reference is made to the representation dated 19.5.2017 submitted by the Rajasthan Patwar Sangh under the signatures of its President. Moreover, the post of Inspector Land Records, on which promotion is made from the post of Patwaris, forms the feeder cadre for promotion to the post of Nayab Tehsildar and therefrom further promotion is granted on the post of Tehsildar. In both of such promotions, seniority list prepared at the State level was the basis for preparing the zone of consideration. Upto 18.2.1998, the promotions on the post of Inspector Land Records was made in the similar manner on the basis of State level seniority. It is only by amendment introduced vide notification dated 18.2.1998 for the period intervening from that date and 12.10.2017, the date on which the impugned notification was issued, that the basis of seniority in the promotion were made on the basis of division level (7 of 17) [CW-9258/2018] and now it has been restored back to the State level. This has been done without disturbing the promotions already conferred on the incumbent concerned. Since their promotion has not been disturbed, it cannot be argued that vested right of anyone else has been taken away. Petitioners merely have right of consideration for promotion and not any right to claim promotion. The Board of Revenue after the aforesaid amendment vide order dated 20.4.2018 issued direction to cancel all the lists and therefore the mere fact that petitioners found placement in the seniority list of Jaipur District and the interlaced seniority list of the Jaipur Division does not in any manner bestow any legal rights on them.
Learned Additional Advocate General has argued that seniority is merely a civil right and the legislature in its discretion may divest the right of seniority. In support of this argument, he has relied on judgement of the Supreme Court in Prafulla Kumar Das vs. State of Orissa-(2003) 11 SCC 614. It is argued that the amendment in the Rules became necessary because the earlier Rules caused lot of hardship not only to those who despite being appointed earlier in point of time were promoted relatively later than their counter parts in other districts / divisions, but also to those, who on being transferred from one district to another were greatly prejudice in the matter of placement of their seniority.
It is submitted that the Government required the Board of Revenue to examine this issue, which in its report proposed amendment in the Rules. When the amendment was not made, many Patwaris approached this Court by filing five writ petitions, leading one being S.B. Civil Writ Petition No.10096/2014, Banwari Lal vs. State of Rajasthan, all of which were decided by common judgement dated 8.10.2014, requiring the State Government to (8 of 17) [CW-9258/2018] take a final view to remove this anomaly with a view to restoring equality amongst all the Patwaris for determination of their seniority on the basis of length of service. It is therefore that the amended Rules seeks to do away with that anomaly and ensure justice to all. Learned Additional Advocate General relying on the judgement of Supreme Court in Deepak Agarwal vs. State of Uttar Pradesh-(2011) 6 SCC 742 has argued that the candidate has the right to be considered in the light of the existing rules, which would mean that the 'rule in force' at the time DPC is convened for promotion would be applicable regardless of period to which the vacancy pertained. It is therefore prayed that the writ petition be dismissed.
Shri Varun Choudhary, Shri Sajit Jakhar, Shri Anoop Dhand, Shri Lalit Sharma, Shri B.B.L. Sharma & Shri R.P. Saini, learned counsel for the private respondents also opposed the writ petition.
Shri Anoop Dhand, learned counsel for the respondent nos.9 to 11 submitted that the validity of Rule can be challenged only on the ground of either lack of competence on the part of legislature or violation of the fundamental rights. In the present case, the State not only has competence to amend the Rules, but also no fundamental right of the petitioners has been violated in any manner. Reliance in this connection is placed on judgement of the Supreme Court in Public Services Tribunal Bar Association vs. State of U.P. & Anr.-(2003) 4 SCC 104. It is argued that the petitioners are much junior to respondent nos.9 to 14, therefore, they cannot complaint of any prejudice caused to them by reason of restoration of the State level seniority. Earlier also i.e. prior to 4.4.1995, there was practice to prepare a common seniority list of all the Patwaris at the State Level (Board Level) on the basis of (9 of 17) [CW-9258/2018] their date of appointment and joining irrespective of the cadre to which they belong. Copy of the State Level seniority list dated 7.7.1993 has been placed on record to bring this point on the record. However, on 4.4.1995, a notification was issued whereby the word "Board" was substituted by the word "Division" vide notification issued on that date. On 18.2.1998 again certain amendments were made in Rule 301 of the Rules of 1957 whereby the existing words "Board of Revenue" were substituted by the word "Divisional Commissioner". It is this amended Rule, which introduced the system of having seniority and promotion on division basis. Since it caused lot of hardship to the Patwaris throughout the State, the Government was perfectly justified in bringing out the amendment in the Rules on the basis of report of the Board of Revenue and demand of the Rajathan Patwar Sangh.
Learned counsel in support of his arguments has relied on the judgements of the Supreme Court in Gajraj Singh Etc. vs. the State Transport Appellate Tribunal & Ors.-(1997) 1 SCC 650, S.S. Bola vs. B.D. Saradane-AIR 1997 SC 3127, Prafulla Kumar Das vs. State of Orissa-(2003) 11 SCC 614, Deepak Agarwal & Anr. vs. State of Uttar Pradesh & Ors.-(2011) 6 SCC 725, T. Narasimhulu & Ors. vs. State of A.P. & Ors.-(2010) 6 SCC 545 and single bench judgement of this Court in Banwari Lal vs. State of Rajasthan, S.B. Civil Writ Petition No.10096/2014 dated 8.10.2014. It is therefore prayed that the writ petition be dismissed.
We have given our anxious consideration to the rival submissions and perused the material on record.
The respondents have demonstrated that prior to 4.4.1995/18.2.1998, there was system of State wise seniority and preparation of seniority list on division basis came after the (10 of 17) [CW-9258/2018] amendment in Section 301, which was introduced on 18.2.1998 when the existing words "Board of Revenue" was substituted by the word "Divisional Commissioner" and the word "State" was substituted by the word "Division". The respondents have also demonstrated that the effect of this was that in some Districts, the Patwaris were able to secure promotion on the post of Inspector Land Records relatively earlier than the Patwaris of some other Districts.
As per the chart produced by the learned Additional Advocate General as Schedule-A to the additional affidavit dated 24.7.2018 filed on behalf of the respondent State regarding the difference of experience between the Junior most and Senior most Pawaris, while in Jodhpur District there was huge difference of time i.e. 11 years, 7 months and 20 days in general category of Patwari to the post of Land Records Inspector, this difference was 14 years, 2 months and 19 days in the case of Scheduled Caste and 11 years 7 months and 4 days in the case of Scheduled Tribe.
Rajasthan Patwar Sangh, which is the representative body of all the Patwaris of the State of Rajasthan, made a demand that the old system of promotion on the post of State wise seniority should be restored back. Copy of one such representation submitted by the Rajasthan Patwar Sangh to the Government dated 19.5.2017 has been placed on record. One of the grievances that has been voiced in the representation was that Patwari being a low paid employee, when gets appointed to other Districts and comes back to their own District on their own request of transfer, loses seniority and this considerably delay his promotion. This also affects such female Patwaris, who are even though appointed in their Home District but owning to marriage shift to another (11 of 17) [CW-9258/2018] Districts. There is no scientific method of allocation of district for the purpose of appointment and it is not linked with the merit of the candidate securing appointment on the post of Patwari. The matter was entrusted to the Board of Revenue which submitted its recommendation to the Government along with the draft Rules on 27.5.2012. The Patwaris approached this Court by filing several writ petition leading one S.B. Civil Writ Petition No.10096/2014, Banwari Lal vs. State of Rajasthan. The Single Judge of this Court by order dated 8.10.2014 disposed of the writ petitions observing that the Board of Revenue has already taken a view to remove this anomaly with a view to restoring equality amongst all the Patwaris for determination of their seniority on the basis of length of service. Petitioners ought to approach the State authority, which should take appropriate decision on the recommendations made by the Board of Revenue or otherwise decide their representation within four months from the date of its filing. The argument that this amendment will have a retrospective effect and would deprive the petitioners, the right to consideration for promotion in that subject amendment; would delay their promotion and this tantamount to taking their vested right, is taken note of, for being rejected.
It is trite as and when the promotions are to be considered on the basis of Rules in vogue, the petitioners cannot be allowed to argue that this would deprive them of their fundamental right of promotion or it can be their vested right.
The Supreme Court in Deepak Agarwal, supra, was dealing with a case whether the appellants were entitled to promotion on the post of Deputy Excise Commissioner under the U.P. Excise Group `A' Service Rules, 1983, prior to amendment in those Rules (12 of 17) [CW-9258/2018] on 17th May, 1999 under the unamended Rules. The petitioners would be eligible to be considered for promotion by virtue of the said Rules. Further Note to Rule 8 the respondents are required to prepare combined eligibility list of the candidates in order of seniority determined by the dates of their substantive appointments. The Supreme Court noted that the appellants were clearly in the better cadre of the post of promotion to the post of Deputy Excise Commissioner. Though Rule 7 provides that the Appointing Authority shall determine the vacancies to be filled during the course of the year and the number of vacancies, but there is no statutory duty cast upon the State to complete the selection process within a prescribed period.
Now the situation obtaining in the present case is also somewhat identical where the petitioners are contending that by virtue of the impugned amendment, the respondents are now preparing the State level seniority and that this would somehow delay their chances of promotion as their promotion would otherwise be made in the earlier point of time on the basis of division level seniority. The Supreme Court in that case posed a question that could the right of the appellants, to be considered under the unamended 1983 Rules be taken away? The Supreme Court held that it is by now a settled position of law that a candidate has the right to be considered in the light of the existing Rules, which implies the `rule in force' on the date the consideration took place. There is no rule of universal or absolute application that vacancies are to be filled invariably by the law existing on the date when the vacancy arises. The requirement of filling up old vacancies under the old Rules is interlinked with the candidate having acquired a right to be considered for promotion.
(13 of 17) [CW-9258/2018] The right to be considered for promotion accrues on the date of consideration of the eligible candidates. The Supreme Court then proceeded to observe in that case the consideration for promotion took place after the amendment came into operation, thus it can not be accepted that any accrued or vested right of the appellants have been taken away by the amendment. This judgement was followed by the Supreme Court in latest judgement of State of Tripura & Ors. vs. Nikhil Ranjan Chakraborty & Ors.-(2017) 3 SCC 646 decided on 20.1.2017, in para 10 of which it was held by the Supreme Court as under:
"10. The law is thus clear that a candidate has the right to be considered in the light of the existing rules, namely, "rules in force on the date" the consideration takes place and that there is no rule of absolute application that vacancies must invariably be filled by the law existing on the date when they arose. As against the case of total exclusion and absolute deprivation of a chance to be considered as in the case of Deepak Agarwal (supra), in the instant case certain additional posts have been included in the feeder cadre, thereby expanding the zone of consideration. It is not as if the writ petitioners or similarly situated candidates were totally excluded. At best, they now had to compete with some more candidates. In any case, since there was no accrued right nor was there any mandate that vacancies must be filled invariably by the law existing on the date when the vacancy arose, the State was well within its rights to stipulate that the vacancies be filled in accordance with the Rules as amended. Secondly, the process to amend the Rules had also begun well before the Notification dated 24.11.2011."
As regards the seniority, the Supreme Court in Wing Commander J. Kumar vs. Union of India & Ors.-(1982) 2 SCC 116 has observed that it is settled law that the service conditions pertaining to seniority are liable to alteration by subsequent changes that may be introduced in the rules and except to the extent of protecting promotions that have already been earned (14 of 17) [CW-9258/2018] under the previous rules, the revised rules will operate to govern seniority and future promotion prospects. The observations of the Supreme Court in para 2 to 10 are germane for consideration in the present case and therefore are worth quoting:
"2. It is settled law that the service conditions pertaining to seniority are liable to alteration by subsequent changes that may be introduced in the rules and except to the extent of protecting promotions that have already been earned under the previous rules, the revised rules will operate to govern seniority and future promotion prospects. There is, therefore, no substance in the argument advanced by the appellant that it was not open to the Government of India to introduce a new principle of seniority by promulgation of Rule 16 so as to affect his rights for future promotion. [463 D-E]
3. A statement contained in the statute or statutory rule of the factual background leading up to the enactment has ordinarily to be accepted and acted upon by the court as wholly correct. [463 A] 455
4. Rule 16 contains a categorical declaration that in the past also the seniority of service officers permanently seconded to the R & D Organisation was being reckoned on the basis of their dates of attainment of substantive rank of Major/Sqn. Ldr./Lt. Cdr. subject to any penalty/loss of seniority that an officer might suffer subsequently. It is therefore not possible to accept the contention of the appellant that prior to the coming into force of the rule be had acquired a vested right to have his seniority in the R & D reckoned with reference to the date of his permanent secondment and to have all Officers joining the organisation on subsequent dates ranked only below him. [462 G-H; 463 B-C]
5. The structure and composition of the Organisation have necessarily to undergo rapid, qualitative and quantitative changes in the light of the fast developments that take place in science technology and international relations. The intake of service Officers is not on the basis of any general selection from service cadres. As and when the Organisation finds it necessary to obtain the service of officers with operational experience in any particular weapon system or other scientific discipline the parent service is requested to spare for deputation suitable hands in the particular branch or speciality and initially they are taken on a tenure basis. There is a selection only in a very limited sense that the suitability of the concerned officer is adjudged before he is (15 of 17) [CW-9258/2018] taken but the claims or merits of others are not considered. The secondment of such officers to the R & D Organisation is not therefore, effected on the basis of a general selection. Officers who are senior in the parent service in relation to the person who is seconded and who may possess greater experience and superior attainment might not have been considered for secondment when their juniors in the service were seconded to the R & D Organisation, because the parent service might not have been in the position at the relevant point of time to spare the services of the former. [463 G-H; 464 A-E]
6. Where persons from different sources are drafted to serve in a new service a just and wholesome principle commonly applied is that the pre existing length of service in the parent department should be respected and preserved by taking the same into account in determining their ranking in the new service cadre. Such a provision does not involve any discrimination violative of Article 16 of the Constitution. [470 E] R.S. Makashi & Ors. vs. I.M. Menon & Ors., [1982] 1 S.C.C. 379, referred to.
7. The secondment of an officer from his parent service to the R & D is not a transfer to Central Service from a subordinate service or from another department. [469 G]
8. Rule 16 being statutory in origin, its validity cannot be affected by reason of any inconsistency with the provision of a prior executive order issued by the Central Government i.e. Office Memorandum dated July 22,1972.[469 H]
9. When a statutory rule governing seniority is issued in respect of a service, the said rule would govern the personnel in the service with effect from the date of its promulgation and in so giving effect to the rule in future, no element of retroactivity is involved. [470 G- H] 456
10. The promulgation of a statutory rule governing seniority is not a quasi-judicial function. It is the exercise of a legislative power and in respect thereof the principles of natural justice have no application at all."
It is trite that vires of a Rule can be questioned only either if it is shown that the Rule making authority does not have the competence to frame the Rules or that it creates unreasonable clarifications inasmuch as the equals are thereby treated unequals (16 of 17) [CW-9258/2018] and that the object which it seeks to achieve does not have any intelligible differentia and that the object sought to be achieved is not palpably arbitrary.
The Supreme Court in Namit Sharma vs. Union of India- (2013) 1 SCC 745 in para 14 of the judgement has made relevant observations with regard to the scope of this Court for examining the challenges to a statutory provision, which for the ready reference reads as under:
"14. A law which violates the fundamental right of a person is void. In such cases of violation, the Court has to examine as to what factors the Court should weigh while determining the constitutionality of a statute. First and the foremost, as already noticed, is the competence of the legislature to make the law. The wisdom or motive of the legislature in making it is not a relative consideration. The Court should examine the provisions of the statute in light of the provisions of the Constitution (e.g. Part III), regardless of how it is actually administered or is capable of being administered."
The three Judge Bench of the Supreme Court in S.S. Bola, supra held that to have a particular position in the seniority list within a cadre can neither be said to be accrued or vested right of a government servant and that an act of State legislature which is retrospective and which affects the seniority of government servants, cannot be held to be ultra vires to the Constitution. The Supreme Court in that case categorically held that seniority was neither a vested, nor an accrued right and that no one has vested right to promotion or seniority. It is trite that there is always a presumption in favour of constitutionality of Statutes. The law courts can declare the legislative enactment to be an invalid piece of legislation only if it finds that it merely violates the constitutional sanctions. The burden of proof is always on the writ (17 of 17) [CW-9258/2018] petitioners to show as to how the provision is unconstitutional. A matter within the legislative competence of the legislature has to be left to the discretion and wisdom of the framers, so long as it does not infringe any constitutional provision or violate any fundamental right. Petitioners cannot possibly have right to presumption as to the level of fundamental right. In fact, they did not even have the right of presumption. All that they can claim is the right to consideration for promotion.
The petitioners have not even alleged or argued that the respondent-State does not have the legislative competence to frame or amend the Rules. The petitioners have failed to demonstrate as to in what manner, the amended Rules violate any of the constitutional provisions.
In view of above discussion, we do not find any merit in this writ petition, which is accordingly dismissed.
(GOVERDHAN BARDHAR),J (MOHAMMAD RAFIQ),J
RS/5
Powered by TCPDF (www.tcpdf.org)