Uttarakhand High Court
Prakash Chandra vs State Of Uttarakhand And Others on 10 October, 2019
Equivalent citations: AIRONLINE 2019 UTR 535, 2020 LAB IC 180
Bench: Ramesh Ranganathan, Alok Kumar Verma
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (S/B) No. 467 o 2019
Prakash Chandra .............Petitioner
Vs.
State of Uttarakhand and others ...........Respondents
Coram: Hon'ble Ramesh Ranganathan, C.J.
Hon'ble Alok Kumar Verma, J.
Ramesh Ranganathan, C.J. (Oral) Heard Mr. Zafar Siddique, learned counsel for the petitioner, Mr. Lalit Samant, learned counsel for the respondent No.3 and Mr. Pankaj Miglani, learned counsel for the High Court.
2. The petitioner has invoked the jurisdiction of this Court questioning the vires of Rule 7 of the Uttarakhand Subordinate Civil Courts Ministerial Rules 2007 (hereinafter referred to as the "2007 Rules"), in so far as it prescribes the upper age limit, for the ministerial cadre in Group-C posts, as 35 years, to be illegal and ultra vires Articles 14 & 16 of the Constitution of India; for a writ of certiorari to quash the advertisement dated 12.09.2019 to the extent it prescribes the maximum age limit as 35 years; a writ of mandamus commanding and directing the respondents to permit the petitioner to submit the application form pursuant to the advertisement dated 12.09.2019, and for his candidature to be considered; and a writ of mandamus commanding and directing the respondents to make necessary amendments in the 2007 Rules as well as in the advertisement dated 12.09.2019 by prescribing the maximum age for Group C posts as 42 years pursuant to the "Uttarakhand Sewao Me Bharti (Ayu Sima) Niyamawali 2014.
23. The petitioner's age is 37 years and it only if the upper age limit, prescribed in the 2007 Rules, is enhanced from 35 to 42 years, would he then be eligible to apply for, and to be considered for, appointment to Group C posts pursuant to the impugned advertisement. The petitioner's claim that Rule 7 of the 2007 Rules is ultravires Articles 14 and 16 of the Constitution of India is based on the ground that, by the 2014 General rules, the State Government had enhanced the upper age limit, for seeking appointment to Group C posts, to 42 years; and this upper age limit has not been extended to employees in the Ministerial Cadre, employed in the Civil Courts and Family Courts subordinate to the High Court, in the State of Uttarakhand.
4. The 2007 Rules were made in the exercise of the powers conferred by the proviso to Article 309 of the Constitution of India and in supersession of all existing Rules and Orders on the subject. The said Rules regulate recruitment and the conditions of service of persons appointed to the ministerial establishment of the Civil Courts and Family Courts in the State of Uttarakhand, subordinate to the High Court.
5. Rule 7 of the 2007 Rules relates to the age of candidates and, thereunder, a candidate for recruitment to posts in the ministerial establishment must have attained the age of 21 years and must not have attained the age of more than 35 years on the first day of January of the calendar year in which the vacancies of direct recruitment are advertised. The first proviso to Rule 7 permits the upper age limit, in case the candidate belongs to the Scheduled Castes and the Scheduled Tribes to be relaxed by such number of years as may be specified. The second proviso confers power on the Chief Justice to extend the age limit in favour of a candidate on grounds of public interest or for fair dealing.
6. The 2014 amendment to the Uttarakhand Sewao Me Bharti (Ayu Sima) (Pratham Sansodhan) Niyamawali, whereby 3 the upper age limit was enhanced to 42 years, is applicable in case of appointment to services under the Government. Since separate rules are made regulating recruitment and the conditions of service of a person appointed in the Ministerial Establishment of the Civil Courts and the Family Courts in the State of Uttarakhand subordinate to the High Court, the 2014 amendment made to the General Rules would not implicitly result in supersession of Rule 7 of the 2007 Rules. It is only if the 2007 Rules are also amended to bring it in conformity with the 2014 Rules can the upper age limit, prescribed by any such amendment, be thereafter made applicable to the recruitment exercise undertaken for appointment to Group C posts in the Ministerial Establishment of the Civil Courts and Family Courts, in the State of Uttarakhand, subordinate to the High Court. As the 2007 Rules, which have not been amended, are special rules applicable to Group C posts in the Ministerial Establishment of the Civil Courts and Family Courts, Rule 7 thereof would prevail notwithstanding the subsequent 2014 amendment to the General Rules.
7. Group "C" posts in the Ministerial Establishment of the Civil Courts and Family Courts in the State of Uttarakhand, subordinate to the High Court, constitute a distinct class different from Group "C" posts in other Government departments. An upper age limit of 35 years is prescribed therein taking into account the nature of work required to be discharged by persons appointed in Group "C" posts in the Ministerial Establishment of the Civil Courts and Family Courts. Prescription of the upper age limit of 35 years, for appointment to Group "C" posts in the Ministerial Establishment of Civil Courts and Family Courts subordinate to the High Court, has a rational relation to the object sought to be achieved by the classification (which in turn is based on an intelligible differentia which distinguishes these Group "C" posts from others), and is therefore in conformity with Articles 14 and 16 of the 4 Constitution of India. Since Group "C" posts in the Ministerial Establishment of the Civil Courts and Family Courts, in the State of Uttarakhand, subordinate to the High Court constitute a distinct class, and the upper age limit of 32 years, for appointment to such posts, has been prescribed bearing in mind the peculiar needs of the Ministerial Establishment of the Civil Courts and Family Courts subordinate to the High Court, the contention that prescription of the upper age limit of 35 years is arbitrary, and is in violation of Article 14 of the Constitution of India, does not merit acceptance.
8. Reliance is placed on behalf of the petitioners, on the earlier advertisement issued on 08.09.2014 whereby the upper age limit for Group "C" posts, in the Ministerial Establishment of the Civil Courts and Family Courts, was prescribed as 42 years. Such a prescription is, evidently, contrary to the 2007 Rules and, at best, can be justified only in terms of the Second proviso to Rule 7 of the 2007 Rules. The mere fact that, in the earlier recruitment of 2014, the upper age limit was relaxed from 35 to 42 years does not confer on the petitioner any right to claim that such a relaxation should be continued in perpetuity, even if it is contrary to the 2007 Rules made under the proviso to Article 309 of the Constitution of India. Any amendment to the 2007 Rules can only be made in consultation with the High Court; and the General Rules applicable to the other departments of the Government would not automatically apply to Group "C" posts in the Ministerial Establishment of the Civil Courts and Family Courts, in the State of Uttarakhand, subordinate to the High Court.
9. Even otherwise, what the petitioner seeks is for a mandamus to be issued to the State Government to amend the 2007 Rules. While the High Court, undoubtedly, has the power to strike down Rules, if they fall foul of Part-III of the Constitution of India, that would not justify the High Court 5 taking upon itself the task of amending Rule 7 of the 2007 Rules or to issue a mandamus to the State Government to do so. Legislative power is exercised by the legislature directly or, subject to certain conditions, may be exercised by some other authority on such a power being delegated to them. But exercise of that power, whether by the legislature or by its delegate, is an exercise of a legislative power. The fact that the power was delegated to the executive does not convert that power into an executive or administrative power. No court can issue a mandate to a legislature to enact a particular law. Similarly no court can direct a subordinate legislative body to enact or not to enact a law which it may be competent to enact. (Supreme Court Employees' Welfare Association v. Union of India: AIR 1990 SC 334; State of J&K v. A.R. Zakki & others: AIR 1992 SCC 1546; State of Andhra Pradesh v. T. Gopalakrishna Murthi and Ors: AIR 1976 SC 123; Mangalam Organics Ltd. vs. Union of India: (2017) 7 SCC 221 and Narinder Chand Hem Raj v. Lt. Governor, Administrator, Union Territory Himachal Pradesh: AIR 1971 SC 2399; Dhananjay Verma vs. State of Uttarakhand & others: Full Bench judgment in Writ Petition (S/B) No.45 of 2014 dated 21.05.2019).
10. While it has the power to strike down a law on the ground of want of authority, this Court would not sit in appeal over the policy of the State Legislature in enacting a law. [Rusom Cavasiee Cooper v. Union of India: (1970) 1 SCC 248). Just as it cannot direct a legislature to enact a particular law, (Supreme Court Employees' Welfare Association v. Union of India: AIR 1990 SC 334), the High Court, under Article 226 of the Constitution of India, cannot direct the Executive to exercise power by way of subordinate Legislation, pursuant to the power delegated by the Legislature to enact a law, in a particular manner. (Indian Soaps and Toiletries Makers Association vs. Ozair Husain and Ors: (2013) 3 SCC 641; Dhananjay Verma vs. State of Uttarakhand & others: Full Bench judgment in Writ Petition (S/B) No.45 of 2014 dated 21.05.2019).
611. It is not within the domain of the Court to legislate. The Courts interpret the law, and have the jurisdiction to declare the law unconstitutional. But, the courts are not to plunge into policy making by adding something to the policy by issuing a writ of mandamus. (Census Commissioner and Ors. v. R. Krishnamurthy: (2015) 2 SCC 796 and Mangalam Organics Ltd. vs. Union of India: (2017) 7 SCC 221). A writ of Mandamus cannot be issued to the Legislature to enact a particular law, or to the Rule making authority to make rules in a particular manner or even to the Government to frame a policy. (Supreme Court Employees' Welfare Association v. Union of India: AIR 1990 SC 334; State of J&K v. A.R. Zakki & others:
AIR 1992 SCC 1546; State of Andhra Pradesh v. T. Gopalakrishna Murthi and Ors: AIR 1976 SC 123; Mangalam Organics Ltd. vs. Union of India: (2017) 7 SCC 221 and Narinder Chand Hem Raj v. Lt. Governor, Administrator, Union Territory Himachal Pradesh: AIR 1971 SC 2399; Dhananjay Verma vs. State of Uttarakhand & others: Full Bench judgment in Writ Petition (S/B) No.45 of 2014 dated 21.05.2019). Since increase in the upper age limit from 35 to 42 years can only be made by an amendment to the 2007 Rules, which power is legislative in character, the relief which the petitioner seeks, for a mandamus to enhance the upper age limit from 35 to 42 years, cannot be granted.
12. In view of the above observation, the writ petition fails and is, accordingly, dismissed.
(Alok Kumar Verma, J.) (Ramesh Ranganathan, CJ.) 10.10.2019 JKJ/NEHA