Allahabad High Court
Kapil Kumar Dixit And 32 Others vs State Of U.P. And 4 Others on 24 March, 2023
Bench: Suneet Kumar, Rajendra Kumar-Iv
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved Court No. - 42 Case :- 1. WRIT - A No. - 20960 of 2022 Petitioner :- Kapil Kumar Dixit And 32 Others Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Prabhakar Awasthi,Durvesh Kumar,Shikher Trivedi,Vijai Shanker Tripathi,Vinod Shankar Tripathi Counsel for Respondent :- C.S.C. ALONG WITH Case :- 2. WRIT - A No. - 635 of 2023 Petitioner :- Udayveer Singh Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Durvesh Kumar Counsel for Respondent :- C.S.C. Hon'ble Suneet Kumar,J.
Hon'ble Rajendra Kumar-IV,J.
Suneet Kumar, J.
1. Heard Shri Prabhakar Awasthi, learned counsel assisted by Shri Durvesh Kumar, Shri Vinod Shanker Tripathi, Shri Vijai Shanker Tripathi and Shri Shikher Trivedi, learned counsels for the petitioners and Shri Manish Goyal, learned Additional Advocate General assisted by Shri Vikram Bahadur Singh, learned counsels for the State-respondents.
2. Petitioners (33 in number) seek to declare Rule 15(f) of U.P. Police Sub-Inspector and Inspector (Civil Police), Rules, 2015 (for short ''Rules, 2015'), as amended in the year 2020, ultra vires, of Articles 14 and 16 of the Constitution of India.
3. A further direction has been sought to the State-respondents to invite the petitioners for medical test against the vacancy which could not be filled up as some of the candidates were declared medically unfit, and/or, were absent.
4. The facts, inter se, parties are not in dispute.
5. The second respondent-Uttar Pradesh (Police Recruitment and Promotion Board) U.P., Lucknow, (for short ''Board'), issued an advertisement dated 24 February 2021, inviting online applications for recruitment of 9,027 posts of Sub-Inspector (Police), 484 posts of Platoon Commander and 23 post of P.A.C. and Fire Station Second Officer, i.e., total 9,534 posts were advertised.
6. The rules governing recruitment/selection is provided under Rules, 2015.
7. The candidates as per the scheme of selection were required to clear: (i) Written Examination, (ii) Scrutiny of documents and physical standard test, (iii) Physical efficiency test.
8. The petitioners herein being eligible, applied for the post and successfully cleared the written examination. Thereafter, their documents were scrutinized and petitioners, thereafter, appeared for the physical standard test. It is claimed that all the petitioners cleared the physical standard test and their documents were also found to be valid and genuine. Thereafter, petitioners appeared for the physical efficiency test.
9. The petitioners claim that they qualified the physical efficiency test. In the result published by the Board on 12 June 2022, the name of the petitioners did not find place in the select list. The Board forwarded the final merit list with its recommendation to the Head of Department, in terms of Rule 15(e) of Rules, 2015. The final select list was subject to the candidates clearing medical test and character verification. There is no provision for preparation of waiting list under the Rules, 2015. The Head of Department after according his approval shall forward the list sent by the Board to the Appointing Authority for further action.
10. Rule 15(e) is extracted:
"15(e) Selection and Final Merit List- From amongst the candidates found successful in Physical Efficiency Test under clause (d), on the basis of marks obtained by the each candidate in written examination under clause (b), Board shall prepare, as per the vacancies, a select list of each category of candidates, as per the order of merit keeping in view the reservation policy and send it with recommendation to the Head of Department subject to Medical test and character verification. No waiting list shall be prepared by the Board. List of all candidates with marks obtained by the each candidate shall be uploaded on its website by the Board. The Head of the Department shall after his approval forward the list sent by the Board to the Appointing Authority for further action."
11. On plain reading of Rule 15(e), it mandates that there would be no waiting list, i.e., the Board is required to recommend that many number of candidates against the vacancies notified. Further, the list so forwarded is subject to the candidates clearing medical test and character verification to be undertaken by the Appointing Authority before issuing appointment letter to the recommended candidates.
12. The impugned Rule 15(f) provides for medical test. The Rule is extracted:
15(f) Medical Test- The candidates, whose names are in as per 15(e), will be required to appear for Medical Examination by the Appointing Authority. For conducting the medical examination, the Chief Medical Officer of the concerned district shall constitute a Medical Board, which will have three doctors, who will conduct medical examination as per "Police Recruitment Medical Examination Form' as prescribed and codified by the Head of Department in consultation with the Director General of Medical Health. Any candidate not satisfied by the Medical Examination, may file an appeal on the day of examination itself. Any appeal with regard to Medical Examination will not be considered if the candidates fails to file the appeal on the date of medical examination and declaration of its result itself. The Medical Board constituted for appeal shall have expert regarding Medical deficiency of the applicant. The detailed instructions for conducting medical examination will be issued Director General of Police. The candidates found unsuccessful in Medical Examination shall be declared unfit by the Appointing Authority and such vacancies shall be carried forward for next selection."
13. The Rule mandates that the Appointing Authority would request the Chief Medical Officer of the concerned district to constitute the Medical Board which will conduct medical examination of the selected candidates as per Police Recruitment Medical Examination Form in consultation with Director General of Health. The aggrieved candidate has remedy of appeal.
14. The Rule further mandates that candidates found unsuccessful in the medical examination, i.e., declared unfit by the Appointing Authority, all such vacancy shall be carried forward for the next selection.
15. Rule 16 of Rules, 2015 provides for character verification of the candidates recommended by the Board. The Rule mandates that character verification shall be completed under the supervision of the Appointing Authority before issuing appointment letter and before sending the candidate for training. The Rule reads thus:
"The candidates found unsuccessful in the Medical Examination shall be declared unfit by the appointing authority and such vacancies shall be carried forward for the next selection"
16. In this backdrop, the learned counsel for the petitioner submits that the Rule 15(f) is inherently arbitrary as it does not provide for the waiting list.
17. Accordingly, it is submitted that all those candidates who were not found fit in the medical examination, and/or, character verification, such vacancies would remain unfilled and is required to be carried forward for next selection. It is submitted that petitioners who had successfully qualified the written and other examinations/tests may be treated as candidates in the waiting list and their names be sent for medical examination/character verification.
18. According to the petitioners, seven lakh candidates appeared for the recruitment process, and finally result of 9,534 candidates was declared by the Board. It is further submitted that 763 candidates were found medically unfit and 101 candidates were absent.
19. In this backdrop, it is submitted that the vacancies that remained unfilled, accordingly, petitioners should be given an opportunity to appear for medical examination/character verification and if found fit, they be considered for appointment. In the event, the vacancies are carried forward, as per Rule 15(f), according to the petitioners, it is inherently arbitrary and violative of Article 14 and 16 of the Constitution of India.
20. Per contra, learned counsel appearing for the State-respondent has placed reliance on the decision of the Division Bench rendered in Ajay Prakash Mishra and Others vs. State of U.P. and others1, decided along with companion writ petitions. It is urged that the vires of a similar rule has been upheld. The writ petition lacks merit and is liable to be dismissed.
21. Rival submissions fall for consideration.
22. The question that arises is as to whether the impugned Rule is manifestly arbitrary/unreasonable to render it violative of Article 14 of the Constitution of India.
23. There is a presumption in favour of constitutionality or validity of a subordinate legislation and the burden is upon him who challenges it to show that it is ultra vires/invalid. It is also well recognized that subordinate legislation can be challenged under any of the following grounds:
"(a) Lack of legislative competence to make the sub-ordinate legislation.
(b) Violation of Fundamental Rights guaranteed under the Constitution of India.
(c) Violation of any provision of the Constitution of India.
(d) Failure to conform to the Statute under which it is made or exceeding the limits of authority conferred by the enabling Act.
(e) Repugnancy to the laws of the land, that is, any enactment.
(f) Manifest arbitrariness/unreasonableness (to an extent where the Court might well say that the legislature never intended to give authority to make such rules)."
(Refer: State of T.N. vs. P. Krishnamurthy2 & Cellular Operators Association of India and others vs Telecom Regulatory Authority Of India and others3)
24. One of the tests for challenging the constitutionality of subordinate legislation is that the subordinate legislation should not be manifestly arbitrary. Also, it is settled law that subordinate legislation can be challenged on any of the grounds available for challenge against plenary legislation.
(Refer: Indian Express Newspapers (Bombay) (P) Ltd. vs. Union of India4)
25. That takes us to consider the test of 'manifest arbitrariness'. It is well explained in Khoday Distilleries Ltd. and others vs. State of Karnataka and others5, which reads thus:
"13. . . . The tests of arbitrary action which apply to executive actions do not necessarily apply to delegated legislation. In order that delegated legislation can be struck down, such legislation must be manifestly arbitrary; a law which could not be reasonably expected to emanate from an authority delegated with the law-making power. In the case of Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India [(1985) 1 SCC 641 : 1985 SCC (Tax) 121 : (1985) 2 SCR 287], this Court said that a piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent legislature. A subordinate legislation may be questioned under Article 14 on the ground that it is unreasonable; "unreasonable not in the sense of not being reasonable, but in the sense that it is manifestly arbitrary" . . . In India, arbitrariness is not a separate ground since it will come within the embargo of Article 14 of the Constitution. But subordinate legislation must be so arbitrary that it could not be said to be in conformity with the statute or that it offends Article 14 of the Constitution."
(emphasis supplied)
26. Also in Sharma Transport vs. Government of A.P. and others6, the Supreme Court held as follows:
"25. . . . The tests of arbitrary action applicable to executive action do not necessarily apply to delegated legislation. In order to strike down a delegated legislation as arbitrary it has to be established that there is manifest arbitrariness. In order to be described as arbitrary, it must be shown that it was not reasonable and manifestly arbitrary. The expression "arbitrarily" means: in an unreasonable manner, as fixed or done capriciously or at pleasure, without adequate determining principle, not founded in the nature of things, non-rational, not done or acting according to reason or judgment, depending on the will alone. . . ."
(emphasis supplied)
27. The Division Bench of this Court in Reeta Singh and others vs. State of U.P. and others7, declared Rule 5 of U.P. Medical Health and Family Welfare Department Health Workers and Health Supervisors (Male & Female) Service Rules, 1997, insofar as it relates to Health Worker (Female) ultra vires of India Nursing Council Act, 1947, and violative of petitioners' fundamental right under Articles 14 and 16 of the Constitution. The rule was held to be manifestly arbitrary as it permitted only those female candidates who had successfully completed training course conducted by U.P. Nurses and Midwives Council, excluding other such female candidates for the post who had obtained recognized qualifications prescribed under the Act from other institutions.
28. Learned counsel for the petitioner is unable to show as to how the Rule 15(f) of Rules, 2015, is invalid being manifestly arbitrary.
29. One of the questions before the Court in Prakash Mishra (supra) was with regard to the validity of the Rule 15(e) of the Uttar Pradesh Constable and Head Constable Services Rules, 2015.
30. In Paragraph 10 of the report, it is noted that ''The challenge to constitutional validity of Rule 15(e) has also been made which denies preparation of wait list. It is also Rule 15(g) which provides carry forward of the vacancies if one is declared medically unfit.'
31. Rule 15(e) is pari materia with the Rule impugned 15(f) of the Rules, 2015, under challenge in the present writ petition.
32. The Division Bench rejected the argument with regard to the validity of the Rule. Paragraph 26 and 27 is extracted:
"26. The argument aforesaid cannot be accepted only for the reason that after publication of the select list on the website when the candidates were called for medical examination, many of them were declared unfit and as a consequence of which, the posts remained vacant and were carried forward....The elimination of candidates was even in absence of character verification as per Rule 16 to the Rules 2015 and thereby all those eliminated after preparation of the select list under clause (e) to Rule 15, equivalent posts were carried forward. It is for the reason that no provision for wait list exist rather it is barred by Rule 15(e) to the Rules of 2015.
27. The alleged procedural lapse in carrying out the recruitment is not made out. The direction to fill up the vacant posts cannot be given only for the reason that in the medical examination or character verification, certain candidates were eliminated. It is more so when the Rule provides for carry forward of the vacancy as a consequence thereof. It is also settled law that mere participation in the selection or even placement in the select list does not give indeficiable right of appointment. The aforesaid issue has been touched in detailed by the learned Single Judge. It may be true that number of posts remained vacant but that is due to declaration of certain candidates to be medically unfit or in absence of character verification but merely for the reason that certain posts remained unfilled would not invite an interpretation of the Rule different than what was intended by the legislatures. When Rule 15(e) is specific and directs preparation of the select list equivalent to the number of vacancies with restrain on wait list, then consequence was to follow. Accordingly, we are unable to accept any of the arguments raised by the appellants. It is also that unfilled posts in the recruitment of 2015 were carried forward and taken in account for recruitment in the year 2018. With the next selection, the issue pertaining to recruitment of year 2015 would not have survived."
33. The Court relying on an earlier Division Bench decision rendered in Ranvijay Singh and others vs. State of U.P. and others8, did not find Rules 15(b), 15(c) and 15(e) of the Rules, to be ultra vires to the Constitution or statutory provisions. The challenge to Rule 15(e) was made mainly in reference to bar on preparation of wait list. The Division Bench in Ranvijay Singh (supra) held Rule 15(e) to be constitutionally valid. The relevant paragraphs of the judgment is extracted hereunder:
"10. It is not in dispute that Rules, 2015 supersede all existing rules, i.e. the Rules, 2008 and orders issued in that behalf. In other words, the moment Rules, 2015 were introduced and were brought into force, Rules, 2008 ceased to operate. The writ petitions before us do not challenge Rules, 2015 as a whole and seek declaration that Rules 15(b), (c) and (e) of the Rules, 2015, as ultra vires the provisions of the Constitution of India. In the absence of challenge to Rules, 2015, as a whole, a very strange situation would arise if the challenge to Rules 15(b), (c) and (e) only is upheld. If these clauses are declared ultra vires the Constitution, the remaining rules will make the entire Rules, 2015 otiose/unworkable, which is impermissible and cannot be conceived. It is settled position of law that Courts cannot legislate or enter into the realm of executive field by substituting or altering the subordinate legislation. Despite such declaration and so also legal hurdle in the way, we have examined the challenge raised to clauses (b), (c) and (e) of Rule 15 of Rules, 2015 independently to find out whether the procedure prescribed for recruitment or the mode of selection to the post of constable vide Rules, 2015 is irrational and arbitrary, as contended by Mr. Khare, learned Senior Counsel for the petitioners. The question, therefore, arise whether the criteria of selection and evaluation is manifestly arbitrary.
13. In this backdrop, when we look at the procedure for recruitment laid down under Rules, 2015, we find that these Rules provide a mechanism for selection of the most suitable person for the job of constable on merits, impartially and objectively. The procedure would definitely avoid patronage and favoritism and also would do away with unfairness. We would also like to examine the case from another angle and to record further reason to say so. It is well settled that the power of judicial review can be exercised in such matters only if it is shown that the action of the employer is contrary to any Constitution or statutory provision or is patently arbitrary or is vitiated due to mala fides. It is settled legal position that matters relating to creation and abolition of posts formation or structuring and restructuring of cadres, prescribing mode of recruitment and qualifications, criteria of selection, evaluation of candidates/employees falls within the exclusive domain of the employer."
34. Reliance was placed on the decision rendered by the Supreme Court in Union of India vs. Pushpa Rani and others9, wherein, it was held that the Court and tribunals can neither prescribe the qualifications nor sit in appeal over the judgment of the employer laying down the criteria and methodology of recruitment and selection. Paragraph 37 reads thus:
"37. Before parting with this aspect of the case, we consider it necessary to reiterate the settled legal position that matters relating to creation and abolition of posts, formation and structuring/restructuring of cadres, prescribing the source/mode of recruitment and qualifications, criteria of selection, evaluation of service records of the employees fall within the exclusive domain of the employer. What steps should be taken for improving efficiency of the administration is also the preserve of the employer. The power of judicial review can be exercised in such matters only if it is shown that the action of the employer is contrary to any constitutional or statutory provision or is patently arbitrary or is vitiated due to mala fides. The Court cannot sit in appeal over the judgment of the employer and ordain that a particular post be filled by direct recruitment or promotion or by transfer. The Court has no role in determining the methodology of recruitment or laying down the criteria of selection. It is also not open to the Court to make comparative evaluation of the merit of the candidates. The Court cannot suggest the manner in which the employer should structure or restructure the cadres for the purpose of improving efficiency of administration."
(emphasis supplied)
35. Similarly, in Chandigarh Administration vs. Usha Kheterpal Waie and others10, Supreme Court, in paragraph 22, observed thus:
"22. It is now well settled that it is for the rule-making authority or the appointing authority to prescribe the mode of selection and minimum qualification for any recruitment. The courts and tribunals can neither prescribe the qualifications nor entrench upon the power of the authority concerned so long as the qualifications prescribed by the employer is reasonably relevant and has a rational nexus with the functions and duties attached to the post and are not violative of any provision of the Constitution, statute and rules. [See J. Rangaswamy vs. Govt. of A.P. (1990) 1 SCC 288 and P.U. Joshi vs. Accountant General (2003) 2 SCC 632]. In the absence of any rules, under Article 309 or statute, the appellant had the power to appoint under its general power of administration and prescribe such eligibility criteria as it is considered to be necessary and reasonable. Therefore, it cannot be said that the prescription of Ph.D. is unreasonable."
(emphasis supplied)
36. Having regard to the decision rendered in Ajay Prakash Mishra (supra) and Ranvijay Singh (supra), Court was of the view that the issue of constitutional validity of Rule 15(e) of the Rules, cannot be held to be manifestly arbitrary, merely for the reason that wait list has not been provided by the Rule making authority. Further, mandating that the unfilled vacancies shall be carried forward, would not make the Rule ultra vires of the provisions of the Constitution of India or the statutory statute. It is the sole prerogative of the Rule making authority to spell out the modalities of selection and recruitment. The Court has no role in the matter.
37. It is settled principle of law that the employer is at liberty to legislate and provide the conditions of recruitment and selection. The Court would not substitute the discretion of the employer until it is shown that the Rule itself is inherently arbitrary to be violative of Article 14. No such ground has been raised while challenging the constitutional validity of Rule 15(f). In any case, Division Bench has upheld a similar pari materia rule in Ajay Prakash Mishra (supra).
38. Accordingly, the employer has the sole discretion to prescribe qualification and decide the mode of recruitment. The Court under the garb of judicial review would not substitute the Rule making authority to decide what is best suited for the employer in the recruitment process. Having regard to the nature of duty, the selected candidates have to perform, it is always open to the employer to provide or not provide for waiting list. Mere absence of a provision providing for waiting list would not render the rule manifestly arbitrary to make it contrary to the Constitution.
39. In Maharashtra Public Service Commission vs. Sandeep Shriram Warade11, the Court observed as under:
9. The essential qualifications for appointment to a post are for the employer to decide. The employer may prescribe additional or desirable qualifications, including any grant of preference. It is the employer who is best suited to decide the requirements a candidate must possess according to the needs of the employer and the nature of work. In no case can the Court, in the garb of judicial review, sit in the chair of the appointing authority to decide what is best for the employer and interpret the conditions of the advertisement contrary to the plain language of the same.
40. In Punjab National Bank vs. Anit Kumar Das12, the Court observed as under:
21. "it is for the employer to determine and decide the relevancy and suitability of the qualifications for any post and it is not for the Courts to consider and assess. A greater latitude is permitted by the Courts for the employer to prescribe qualifications for any post. There is a rationale behind it. Qualifications are prescribed keeping in view the need and interest of an Institution or an Industry or an establishment as the case may be. The Courts are not fit instruments to assess expediency or advisability or utility of such prescription of qualifications......"
41. Similarly, in Zahoor Ahmad Rather vs. Seikh Imtiyaz Ahmad13, the Supreme Court made the following observation:
27. The state is entrusted with the authority to assess the needs of its public services. Exigencies of administration, it is trite law, fall within the domain of administrative decision making. The state as a public employer may well take into account social perspectives that require the creation of job opportunities across the societal structure. All these are essentially matters of policy. Judicial review must tread warily"
42. Supreme Court similarly in Sanjay Kumar Manjul vs. Chairman, UPSC14, observed as under:
25. The statutory authority is entitled to frame statutory rules laying down terms and conditions of service as also the qualifications essential for holding a particular post. It is only the authority concerned who can take ultimate decision therefore.
27. It is well settled that the superior courts while exercising their jurisdiction under articles 226 or 32 of the Constitution of India ordinarily do not direct an employer to prescribe a qualification for holding a particular post.
43. As per Rule 15(e) of Rules, 2015, the Board is called upon to prepare the select list of candidates of that many vacancies notified to the Board. The Board in that event cannot recommend candidates over and above the vacancies notified. It follows that the State cannot make more appointments than the posts notified in the advertisement. In Prem Singh vs. Haryana State Electricity Board15, the Supreme Court observed as under-
"The selection process by way of requisition and advertisement can be started for clear vacancies and also for anticipated vacancies but not for future vacancies. If the requisition and advertisement are for a certain number of posts only, the State cannot make more appointments than the number of posts advertised...State can deviate from the advertisement and make appointments on the posts falling vacant thereafter in exceptional circumstances only or in an emergent situation and that too by taking a policy decision in that behalf."
(Refer: Ashok Kumar vs. Chairman, Banking Service Recruitment Board16)
44. The learned counsel for the petitioner failed to show as to how the impugned Rule 15(f) is unreasonable in the sense that it is manifestly arbitrary so as to offend Article 14 of the Constitution.
45. Accordingly, we hold Rule 15(f) of Rules, 2015, to be constitutionally valid.
46. Having regard to the discussions hereinabove, the writ petition being devoid of merit is, accordingly, dismissed.
Order Date :- 24.03.2023 Mukesh Pal (Rajendra Kumar-IV, J.) (Suneet Kumar, J.)