Rajasthan High Court - Jaipur
Kum. Kalpana Moyal And Ors. vs State Of Rajasthan And Ors. on 30 September, 2002
Equivalent citations: 2003(2)WLC179, 2003(2)WLN65
JUDGMENT Sunil Kumar Garg, J.
1. All the aforementioned three writ petitions are being decided by this common order as in all of them similar and identical questions of law and facts are involved.
S.B. Civil Writ Petition No. 3369/2001
2. This writ petition under Article 226 of the Constitution of India has been filed by the petitioner on 17.8.2001 against the respondents with the prayer that by an appropriate writ, order or direction, Rule 10 of the Rajasthan Educational Service Rules, 1970 (hereinafter referred to as "the Rules of 1970") which prescribes minimum age as 24 years for selection to the post of School Lecturers, be declared ultra vires, unreasonable and unconstitutional and be struck down and the respondents be directed to allow the petitioner to participate in the selection process for the post of Lecturer (School), in pursuance of advertisement Annex. 5 dated 8.6.2001, irrespective of her age.
3. The case of the petitioner as put forward by her in this writ petition is as follows:
The petitioner qualified the Secondary Class in First Division in the year 1993 and her date of birth is 15.10.1978, which is evident from Annex. 1 which is a Certificate of Secondary School Examination, 1993.
According to the petitioner, she is having good academic record to her credit having passed the B.A. in First Division from Maharshi Dayanand Saraswati University, Ajmer in the year 1998, which is evident from Annex. 2 Provisional Certificate of BA. The petitioner was awarded B.Ed. degree from the same University in the year 2000 and she qualified the same in First Division in Theory and Practical both, as is evident from Annex. 3, which is a Provisional Certificate of B.Ed. The petitioner prosecuted her Master Degree in Political Science in the year 2001 and secured second division, as is evident from Annex. 4, which is a Provisional Certificate of M.A. The further case of the petitioner is. that the respondent No. 3 Rajasthan Public Service Commission (for short "Commission") advertised number of vacancies for School Lecturers vide advertisement No. 2/2001-2002 dated 8.6.2001 (Annex. 5) and this advertisement also includes the posts of School Lecturer in Political Science. The advertisement Annex. 5 prescribed the minimum age for the posts of School Lecturers as 24 years as on 1.7.2002, as Rule 10 of the Rules of 1970 prescribes the requisite minimum age for the post of School Lecturer as 24 years.
The further case of the petitioner is that the respondent No. 3 Commission advertised vacancies for the posts of College Lecturers through advertisement Annex. 6 dated 31.5.2001 and in that advertisement Annex. 6, the minimum age prescribed for the posts of College Lecturers is 21 years.
Thus, according to the petitioner, it is clear that when the College Lecturer teaching post graduate classes can be appointed on completion of 21 years of age but School Lecturers are denied the same till they attain the age of 24 years and thus, there is no nexus in prescribing minimum age to be 24 years for School Lecturers.
According to the petitioner, prescribing the minimum age of 24 years for the School Lecturers is violative of Article 14 of the Constitution of India as it discriminates between School Lecturers and College Lecturers on prescribing minimum age limit as in the Case of College Lecturer, the minimum age prescribed is 21 years.
4. Thus, the case of the petitioner can be summarised in the following manner:
(i) That since in some other Service Rules of the State, the minimum age limit prescribed is less than 24 years, therefore, prescribing the minimum age as 24 years for the purpose of appointment to the post of School Lecturer is discriminatory and, therefore, Rule 10 of the Rules of 1970 should be declared ultra vires the Constitution.
(ii) That the factum of age after being found eligible in all other respects, has no relevance for denying such employment.
(iii) That even the College Lecturer teaching post graduation classes can be appointed on completing 21 years of age, but School Lecturers are denied the same till they attain the age of 24 years and therefore, there is no basis for prescribing the minimum age limit to be 24 years for making appointment to the post of School Lecturers and what is relevant is only the acquiring of educational qualification and age should not be a relevant consideration at all.
Thus, the petitioner has challenged Rule 10 of the Rules of 1970, which prescribes minimum age to be 24 years for selection to the post of School Lecturers, on the ground that it is irrational, illegal, unjustified and unconstitutional and therefore, it should be struck down and the petitioner should be allowed to participate in the selection process for the post of School Lecturer irrespective of her age as the case of the petitioner was refused to be considered on account of her having not attained the minimum prescribed age of 24 years as on 1.7.2002. Hence, this writ petition with the prayers as stated above.
A reply to the writ petition was filed by the respondents No. 1 and 2. The respondent No. 3 Commission has also filed a separate reply.
The case of the respondents No. 1 and 2 is that the educational qualifications prescribed in the advertisement are that the candidate should atleast possess post graduation degree in the relevant subject in second division with degree/diploma of training or post graduate degree in the relevant subject alongwith degree/diploma of training and also five years teaching experience in the school of secondary or above level.
It was further submitted by the respondents No. 1 and 2 that the contentions of the petitioner are wholly misconceived for the following reasons:
(i) That the law is well settled by a catena of decisions of this Court as well as of Hon'ble Supreme Court that it is upto the Rule Making Authority to prescribe the qualifications including upper and lower age limit and this Court would not substitute such qualifications under Article 226 of the Constitution of India.
(ii) That it is equally settled that power under Article 309 of the Constitution of India to frame the Rules is legislative power and it is to be exercised by the Governor of the State and the High Court cannot issue a mandate to the State Government to legislate.
(iii) That it is also well settled position of law that the Court would not usurp the functions assigned to the executive under the Constitution of India.
(iv) That Rules of 1970 were framed by the Governor of Rajasthan under Article 309 of the Constitution of India and while framing the Rules of 1970, all relevant consideration germane to the fixing of the minimum age limit for the candidates seeking appointment to the post of School Lecturers were kept in mind. Thus, there is a well founded basis behind prescribing the qualifications under every set of Rules including the minimum age limit.
(v) That simply because certain different minimum age limits have been prescribed for recruitment in other services or for the similar post under different set of rules, Rule 10 of the Rules of 1970 cannot be declared ultra vires the Constitution.
(vi) That while prescribing the qualifications, a number of factors including age, educational qualification and experience have also to be taken into account and all these considerations have direct nexus with the object sought to be achieved arid that is why, the minimum age of 24 years has been prescribed in Rule 10 of the Rules of 1970 for appointment to the post of School Lecturers since teaching experience of five years is also sought in some matters and therefore, Rule 10 of the Rules of 1970 cannot be challenged on the ground that it prescribes minimum age of 24 years for appointment to the post of School Lecturers.
Hence, it was prayed that the writ petition filed by the petitioner be dismissed.
5. I have heard the learned Counsel appearing for the petitioners and the learned Counsel appearing for the respondents and gone through the materials available on record.
6. There is no dispute on the point that as on 1.7.2002, the petitioner was below 24 years of age and Rule 10 of the Rules of 1970 prescribes minimum age to be 24 years for appointment to the post of School Lecturers.
7. There is also no dispute on the point that for appointment to the post of College Lecturer, the minimum age prescribed is 21 years.
8. There is also no dispute on the point that Rules of 1970 were framed by the Governor of Rajasthan in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India and they were first published in Rajasthan Gazette on 28.5.1970 and since then all the Rules of 1970 including Rule 10 are in force.
9. From perusing advertisement Annex. 5 issued by the respondent No. 3 Commission, it appears that the posts of School Lecturers were advertised in different subjects and the minimum qualification prescribed for the post of School Lecturer was post graduation degree in the relevant subject in second division with degree/diploma of training or post graduate degree in the relevant subject alongwith degree/diploma of training and also five years teaching experience in the school of secondary or above level.
10. The question for consideration in the above facts and circumstances of the case is whether prescribing of minimum age of 24 years for appointment to the post of School Lecturer under Rule 10 of the Rules of 1970 is violative of Article 14 of the Constitution of India or not or whether if in the case of College Lecturer, the minimum age limit prescribed is 21 years, the case of the petitioner is discriminated on that ground or not or whether Rule 10 of the Rules of 1970 on that ground becomes violative of Article 14 or some other provisions of the Constitution of India or not or whether the petitioner has got any legal right to seek relief under Article 226 of the Constitution of India or not.
11. It may be stated here that what Article 14 of the Constitution of India prohibits is class legislation and not reasonable classification for the purpose of legislation. A classification would be justified if it is not palpably arbitrary. If there is equality and uniformity within each group, the law will not be condemned as discriminative, though due to some fortuitous circumstance arising out of a peculiar situation some included in a class get an advantage over others, so long as they are not singled out for special treatment.
12. Furthermore, the reasonableness is to be judged with reference to the object of the legislation and not moral considerations.
13. For the selection to the posts of School Lecturer or College Lecturer, it is legitimate for the authorities to make Rules for selection to these posts.
14. Apart from this, since the requirements in various services may be different in nature, therefore it would not be discriminatory to provide for different conditions of service including different age for recruitment.
15. Furthermore, if any Rule contravenes any of the provisions of the Constitution of India e.g., Articles 14, 15, 16, 19, 299, 234, 310(1), 311(7) or 311(2), the Rule shall be void.
16. The rule making function is a legislative and not executive or quasi-judicial function.
17. Thus, Rule 10 of the Rules of 1970 can be struck down if it is found violative of Articles 14 & 16 of the Constitution of Indna and not because the Court considers it to be unreasonable or because of improper motive. Furthermore, the test to determine constitutionality of any provision of such rule is whether the Legislature is competent to enact such a provision. It cannot be struck down merely because the Court considers them unreasonable. In this respect, the decision of the Hon'ble Supreme Court in Bansal v. Union of India, may be referred to.
18. Apart from this, making of Rule prescribing conditions for service including age at the stage of initial appointment, is a matter of policy of the Government and other appropriate authority, but the Court should not interfere with that policy unless the same is found discriminatory or arbitrary.
19. Therefore, it can be summarised that statutory power must be exercised reasonably and bonafidely and the exercise of discretion must not be arbitrary or capricious but must follow the course that reason directs.
20. In Sharp v. Wakefield, (1891) AC 173 (179), Lord Halsbury observed--
....When it is said that something is to be done according to the rules of reason and justice, not according to private opinion...; according to law, not humour. It is to be, not arbitrary, vague and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself.
21. Apart from this, the Hon'ble Supreme Court in Dr. Amilal Bhat v. State of Rajasthan and Ors., , has considered the aspect of prescribed age limit in Government Services and has come to the following conclusions:
Fixing of a cut-off date for determining the maximum or minimum age prescribed for a post is in the discretion of the rule making authority or the employer. One must accept that such a cut-off date cannot be fixed with any mathematical precision and in such a manner as would avoid hardship in all conceivable cases. As soon as a cut-off date is fixed there will be some persons who fall on the right side of the cut-off date and some on the wrong side. That cannot make the cut-off date per se arbitrary unless the cut-off date is so wide off the mark as to make it wholly unreasonable. Fixing an independent cut-off date, far from being arbitrary, makes for certainty in determining the maximum age. Unless the date is grossly unreasonable, the Court would be relcutant to strike down such a cut off date.
22. Thus, from the above observations of the Hon'ble Supreme Court, it is clear that prescribing of maximum or minimum age for recruitment to a post is in the discretion of the Rule Making Authority or the Employer.
23. As already stated above, a Rule can be struck down if it is found to be violative of Articles 14 & 16 and other provisions of the Constitution of India.
24. In the present case, in Rule 10 of the Rules of 1970, the minimum age for appointment to the post of School Lecturer has been prescribed as 24 years and in prescribing that age, all relevant factors including teaching experience of five years have been taken into consideration by the Rule Making Authority and, therefore, it cannot be said that prescribing of minimum age of 24 years for recruitment to the post of School Lecturer under Rule 10 of the Rules of 1970 is arbitrary, unreasonable, illegal and violative of Articles 14 & 16 and other provisions of the Constitution of India. Furthermore, Rule 10 of the Rules of 1970 cannot be considered to be discriminatory and violative of Article 14 of the Constitution of India merely on the ground that in the case of College Lecturer, the minimum age limit prescribed is 21 years, as the Legislatures has power to prescribe minimum age limit in different sets of services in different manner. Simply because in the case of College Lecturer if the minimum age prescribed is 21 years, it does not mean that in the case of School Lecturer also, similar minimum age should have been prescribed, as requisite eligibility qualifications are different in both of them as in the case of School Lecturer, teaching experience of five years is also mentioned as requisite qualification and, therefore, from this point of view also, the prescribing of minimum age of 24 years for recruitment to the post of School Lecturer cannot be said to be discriminatory and violative of any of the provisions of the Constitution of India.
25. In these circumstances, it can easily be concluded that the Rule Making Authority while framing Rule 10 of the Rules of 1970 prescribing minimum age to be 24 years for recruitment to the post of School Lecturer, has exercised the statutory power vested in it reasonably and bonafidely and the discretion exercised by the Rule Making Authority cannot be said to be arbitrary or capricious and thus, Rule 10 of the Rules of 1970 cannot be declared discriminatory and violative of any of the provisions of the Constitution of India.
26. Apart from this, Rule 10 of the Rules of 1970 is made for class of persons and it is not made for individual persons. From this point of view also, it cannot be classified as discriminatory to the petitioner.
27. Thus, for the foregoing reasons and discussion, this Court is inclined to hold that no legal right has accrued in favour of the petitioner to challenge Rule 10 of the Rules of 1970 on the ground that it is discriminatory and violative of Articles 14 & 16 and other provisions of the Constitution of India, and thus, petitioner's right has not been violated nor the petitioner has any right to say that the Rule 10 of the Rules of 1970 prescribing minimum age of be 24 years for recruitment to the post of School Lecturer, be declared ultra vires. Furthermore, the petitioner has no right to say that because of the reason that in the case of College Lecturer, the minimum age limit prescribed is 21 years, therefore, similar minimum age should have been prescribed for the School Lecturer also and therefore, prescribing of minimum age to be 24 years under Rule 10 of the Rules of 1970 for appointment to the post of School Lecturer, should be declared discriminatory and ultra-vires.
28. Thus, it is held that Rule 10 of the Rules of 1970 prescribing minimum age to be 24 years for the post of School Lecturer cannot be held to be ultra vires and is not hit by the vires of inequality enshrined in Articles 14 & 16 of the Constitution of India.
29. For the reasons stated above, none of the vested rights of the petitioner had been violated by prescribing the minimum age limit to be 24 years for appointment to the post of School Lecturer in Rule 10 of the Rules of 1970 and thus, the petitioner is not entitled to any relief under Article 226 of the Constitution of India and this writ petition is liable to be dismissed.
S.B. Civil Writ Petition No. 3359/2001 S.B. Civil Writ Petition No. 2991/2001
30. These two writ petitions also raise the same controversy which has been decided above in S.B. Civil Writ Petition No. 3369/2001 and therefore, for the reasons given above in S.B. Civil Writ Petition No. 3369/2001, these two writ petitions are also liable to be dismissed.
Accordingly, All the above mentioned three writ petitions are dismissed. No order as to costs.